Drawing on the “Batalla” case, decided by the Argentinian Supreme Court in December 2018, the article analyses the possibility of applying the interpretation of the criminal law provided by the law-maker itself, in detriment to the defendant or to the convicted (by a non-definitive judgement). We argue for the existence of complex or borderline cases (e.g. the Batalla one), which cannot be solved in light of the applicable laws thereto and where Courts are expected to solve the issues resorting to judge-made law.
In these puzzling cases, the Parliament would not only be authorized to envisage a criminal law interpretation as provided by the legislator: such a solution should be desirable to avoid the creation and application of creative and unreliable judgments.
However, the law interpretation given by the lawmaker should not be applied for ongoing criminal proceedings: such a solution would stand in contradiction with the duty of the judge to choose legal interpretation that mostly advantages the defendant