The contradictory nature of pre-trial cognition in the criminal procedural system of 1930 and 1988.

Abstract

Identifying a judgment of content and object of merit in the pre-trial phase of 1930, derives (was) from the fact that the extinction provision was attributed (was) the nature of a substantial decision in hypothesis; this, also with respect to art. 469 c.p.p. 1988. There were different orientations on the subject. A part of the doctrine, for example, maintained that the declaration of extinction constituted a decision of merit since it presumed the finding of the absence of any causes for acquittal pursuant to art. 152, paragraph 2, c.p.p. 1930, both in fact and in law. The theory established an indisputable symmetry between knowledge and punitive duty. The provision examined, for this reason, not providing for the obligation to punish, presupposed - even if hypothetically - that the crime committed to which the extinction criminal relevance refers was identified. This orientation was believed to be supported by the comparison of this pronouncement with the resolutions of inadmissibility and non-prosecutability of the action. It was argued on the point that, while the latter sanctioned the inexistence of a valid process and, therefore, the lack of a punitive duty of the judge, the former, by eliminating this same obligation, presupposed (presupposed) its existence, and, that is, the logical reference to a crime committed. In other words, it was stated that the declaration of extinction was based on a hypothetical existence of the crime and therefore of the punishability by the judge. Conversely, in compliance with a shared doctrine, it will be demonstrated that the extinction decision is connected (was) - also in the 1988 code - to the exercise of a power of persuasion on the facts, not only to a merely hypothetical evaluation.