Functional Jurisdiction and Derogation from Perpetuatio Iurisdictionis: Analysis of Judgment No. 44814 of 2024

The recent judgment No. 44814 of October 15, 2024, issued by the Court of Cassation, represents an important intervention regarding functional jurisdiction in proceedings involving magistrates. In particular, the Court ruled on the derogation from the principle of "perpetuatio iurisdictionis", clarifying how situations that emerge during the trial can influence judicial jurisdiction.

The Principle of Perpetuatio Iurisdictionis

The principle of "perpetuatio iurisdictionis" establishes that once the trial has begun, the judge's jurisdiction cannot be modified, even if new circumstances emerge that could justify a change of judge. However, the Court of Cassation has acknowledged that, in specific cases, it is possible to derogate from this principle, particularly when dealing with proceedings involving magistrates. This aspect is governed by Article 11 of the Code of Criminal Procedure, which sets out the rules for jurisdiction concerning magistrates.

Analysis of Judgment No. 44814

In the case under examination, the Court held that jurisdiction relating to proceedings concerning magistrates requires consideration of emerging situations, even if they occur after the trial has begun. In particular, the Court stated:

Functional jurisdiction under Art. 11 of the Code of Criminal Procedure - Derogation from the principle of "perpetuatio iurisdictionis" - Situation occurring after the opening of the trial - Relevance - Subsequent transmission of documents to the public prosecutor at the competent court under Art. 11 of the Code of Criminal Procedure - Case law. The jurisdiction relating to proceedings concerning magistrates, established by Art. 11 of the Code of Criminal Procedure, implies a derogation from the principle of "perpetuatio iurisdictionis", as the situation provided for by the rule must be taken into account even if it occurred or emerged after the opening of the trial, and even at the appellate stage.

In this case, the Court annulled the appealed judgment and ordered the transmission of the documents to the competent public prosecutor, following the death of the original injured party and the substitution of a magistrate as a civil party.

Implications of the Judgment

The implications of this judgment are significant, as they clarify that jurisdiction can vary even at the appellate stage, should new facts or situations emerge. It is therefore crucial for lawyers to be attentive to monitoring the procedural situation and reporting any changes that may affect the judge's jurisdiction. Among the key points, one can consider:

• The need for careful examination of circumstances emerging during the trial.
• The possibility of transmitting documents to the competent public prosecutor in case of a change in the situation.
• The recognition of derogation from the principle of "perpetuatio iurisdictionis" in proceedings concerning magistrates.