Action of the judge and the parties in the process: A study about mutatio libelli from the perspective of procedural reforms

Abstract

This article presents the discussion about the interpretation of art. 384 of the CPP, which regulates the mutatio libelli, after the changes brought by Law n. 11719/2008. From a concrete case, in which the new wording of art. 384 of the CPP was declared unconstitutional, it is offered a third way of answering the following question: the judge should be completely bound by the accusation terms or he could, by new circumstances or evidence obtained during the process, modify the content of the complaint? Thus, the study parts from a paradigmatic analysis of the interpretations of art. 384 of the CPP, and then, using the case presented, interpret the new wording of article from the understanding of the constitutional process model. Furthermore, it presents, as a logical consequence of the understanding of the constitutional process model, the discussion about the renewal of the concept of action, which takes to the concept of part in the process. The proposed discussion, from the current text of mutatio libelli, also offers a reflection about the movement of total reform of the criminal proceeding.

Key words: mutatio libelli, judge, constitutional process model, action, constitutional democracy.