18. After ordering the archiving of the inquiry by the judicial authority, due to lack of basis for the complaint, the police authority may carry out further research, if it has news of other evidence.
New searches after archiving
New evidence one: Once the investigation is archived for lack of evidence, the police authority cannot carry out new investigations, unless it has news of new evidence. The decision to close the investigation will only be modified if new evidence comes to light. STF Precedent 524 : “Once the police inquiry has been archived, by order of the judge, at the request of the prosecutor, the criminal action cannot be initiated without new evidence.” – (see also jurisprudence subsequent to the publication of the Precedent). It is the principle of stability of judicial decisions overcoming the principle of investigation of the crime. The new test, as confirmed by the STF, must be substantially innovative, and not just formally new (RT 540/393). From the judicial decision that determines the archiving of the investigation at the request of the Public Prosecutor’s Office, the legitimate party can appeal to file a subsidiary private action (RJTJRS 98/20). The non-appealable thesis affronts the constitutional guarantee of subsidiary private action and the principle of double jurisdiction.
New evidence two: Archiving does not make res judicata material. If new evidence emerges, unarchiving is authorized. However, such evidence must be formally and materially new. Their presentation needs to result in a new probative context, in a probability of the narrative different from the previous one that led to the filing, it needs to authorize a new conviction regarding the convenience of continuing the investigations.
Reassessment of evidence: Reassessment of evidence does not authorize unfiling. Just new evidence.
Definitive archiving: In the case of archiving due to atypical conduct or extinct cause of punishment, the archiving becomes definitive.
Appropriate appeal against unfiling: Against the decision to unarchive without new evidence, habeas corpus applies .
Jurisprudence
Archiving of the investigation: The reopening of the investigation when new evidence appears does not constitute an illegal constraint (RT 676/303). After the archiving of the investigation, it is forbidden to receive a complaint without new evidence (RT 579/425).
