In this case, a second appeal procedure was necessary because of the decision of the Court of Cassation (Corte di Cassazione). In the most serious circumstances, the public prosecutor can also ask the judge to issue a decision ordering the precautionary detention of the suspect in prison. Retrieved from http://www.picchieassociati.it/ENG/more-details/the-italian-law-system. Articles 24, 25, 101 to 104 and 111 of the Constitution, in particular, ensure the autonomy and independence of the judiciary. Investigations are confidential and therefore any pre-trial inquiries are protected. Carlson Laura, American Business Law For Civil Law Lawyers from the Supreme Court to the County Court in England[5]), and Horizontal, which binds the issuing court itself and the other on the same level[6]. Elliott, C. and Quinn, F. (2011) English Legal System, London: Longman Lecturer in Law, City, University of London. Italian criminal trials: Lost in transition? In a critical report last year, the Council of Europe's top official for human rights,. The Common law/Civil law dualism has always been pivotal for any scholar approaching the study of Comparative law. 0 South Africa is estimated to have 500,000 rapes per year, Egypt 200,000, China 32,000 and the UK with 85,000 rapes per year. The parties are responsible for gathering and filing evidence with the court. The court of assizes (. Griffith, R. and Tengnah, C., Law and Professional Issues in Nursing, London: Learning Matters, (2010) As a rule, the burden of proof falls on the party making the allegation of fact. Prosecutors would first have to notify Ms Knox of her sentence and issue a warrant for . To export a reference to this article please select a referencing stye below: This selection of law essays, problem questions and case summaries is relevant to students within the US and for law students from outside the country wishing to learn more about the laws and legislature of the USA. As the Constitutional Court has stated, this principle is intended to guarantee equality before the law within the penal process. Worked as an honorary judge for at least six years without revocation. It is fully consistent with the inductive method of reasoning typical of common law systems: proceeding from the specific case to develop a rule of general application. Decisions can be made public, for example through the publication on websites and newspapers when such publication can contribute to the compensation of the damages suffered by the winning party. You should not treat any information in this essay as being authoritative. And even if the direction of the investigation is bureaucratic and reactive, prosecutors are still in a position to take very important decisions. In particular, the parties can ask the court to: Appoint an expert to examine the state of a particular site/area. See Young v. Bristol Airplane co., 1944. In the inquisitorial system which Italy uses, the judge plays a more active role in the proceeding. For example, they can sanction negligent conduct and delaying tactics. Claimant who starts the proceeding, alleges the disputed facts, and presents the evidence in support of the claim. An important principle of Italian procedural law is the adversarial principle, which guarantees the parties' right to defend themselves on all issues before the judge makes a decision. The Italian constitution and acts of parliament set out a system whereby criminal prosecutors are fully independent; in particular, they have external independence from all the other constitutional powers. In addiction, judicial decisions are not binding on the legislature, which so can pass new laws to overrule unpopular court decisions. Grossi, S. (2010). Conviction, if the accused is proven to be guilty of the alleged offence beyond any reasonable doubt. The role of the precedent in the English and Italian judicial system: Between Stare Decisis and Constant Jurisprudence SUMMARY: 1. Across a sample of 13 Italian cities, starting a business can take about a week on average. (g7J$&r^3*;v|d) *A,l ii @!P2Yx KD-KGHBFcFLY+3C04#DQ5"a j8 *2I1H8l 0;.2j 1AS Xxy&s7?4q2~^fasT$fdyKD`^DP @1,`S/47CY'%@ &d`G "Having been found innocent before, I expected better from the Italian justice system." . This means that they are not subject to external pressure of any kind when they execute their functions. JgJ*cH4w^P. Send messages to Parliament and dissolve one or both of its houses. The courts are located in various districts of Italy. Assists clients, both Italian and foreign, in the structuring and realisation of purchase and sale transactions and joint ventures in the industrial, banking, real estate, insurance and financial sectors. Rigid: modification requires a complex process of reform unlike the passing of ordinary laws. At the end of the criminal trial, the court can pronounce a judgment of: declaration of extinguishment of the offence. The first decision is when the court considers a case based on its merits and the second tier is the appeal that challenges the courts decision, requesting a change to the decision made by the court of first instance either in its entirety or partially. *You can also browse our support articles here >, Boundless. [9] Civil code, Penal Code, Administrative code etc. However, since Italy is a member of the European Union, which makes the European Union legislation the next source of law (Lawyersitaly, 2020). However, press must comply with the relevant legal provisions generally governing reporting and privacy rights. This is a very important point: the Supreme Court in Italy does not review the facts of a case, so if the judges are unhappy with the previous decision, the case must be sent back to the Court of Appeal to be re-examined. Civil hearings are not generally open to the public and the case file is confidential. The judges are represented by the Consiglio Superiore della Magistratura which is a body chaired by the President of the Republic and includes the public prosecutor of Corte di Cassazione, and university law professors and attorneys with fifteen years of experience (Grossi, 2010). Federal courts have limited jurisdiction where they can only hear cases when a federal question is raised (Baum, 2013). Transmission of the text to the other House for approval in the same form or with amendments. Summing up, English judgements create law. Courts can also act as courts of second instance to hear appeals from the lower courts. The Constitutional Court rules on issues concerning the Italian constitution and the legitimacy of laws (see. And that is the reason why we will not find any reference to the jurisprudence among the Italian legislative sources[11], but only to the statutes. Parties usually refer to previous decisions of the lower courts and the Supreme Court of Cassation in interpreting the law, but they are not directly bound by them. Issue the decision based on the statements made by the parties. The Italian judicial system consists of a series of courts and a body of judges who are civil servants. Defendant who raises any objections and defences to the claimant's claim, and can file counterclaims and evidence. 1979) Disclaimer: This essay has been written by a law student and not by our expert law writers. computer manufacturer whose litigation experience had hitherto been confined mostly to the Italian legal system. In the adversarial system in the United States, the judges play a comparably passive role in the proceedings (Grossi, 2010). Other special courts provided by the Constitution include the: Administrative appeal court, which is the Council of State (. One aspect of the Knox-Sollecito case that most coverage omits to mention is that it is has now been analysed by three prosecutors (at least), a preliminary investigation judge, a preliminary hearing judge, a first instance court, two courts of appeal, the Italian Supreme Court and a significant number of skilled police officers. In the United States, a defendant taking the stand must take an oath to tell the truth. To promulgate the amendment, the majority of voters must approve it in the referendum. If you are the original writer of this essay and no longer wish to have your work published on LawTeacher.net then please: Our academic writing and marking services can help you! Codice Civile, (Regio Decreto 16 marzo 1942, n. 262) The purpose of this paper is therefore to analyze the different role of judicial precedents in each jurisdiction, taking a closer look to their relation to the other legislative sources in those countries, in order to find out what kind of influence they might have in the law development process. The judicial system is unified, with every court being part of the national network. Thus, with its pronounces, the Court establishes what must be the current interpretation of a certain statute, and lower courts will follow it: they will decide the case at the stake applying the law as interpreted by the Cassazione, giving birth to a series of decisions consistent with the precedent of the Supreme Court. These procedures are only initiated if evidence gathering during the trial may be endangered. The Constitution is: In written form. Avery, The English Legal System by Lucas Taylor Posted on . r` At the end of the civil trial, the court can issue one of the following verdicts: That the claim cannot be granted for issues concerning the procedure or the merits of the claim (because the procedure set up by the claimant is not the correct one or the claimant has no legal standing). Mason v State. Precedents so are all those decisions that are binding for future judges called to adjudicate similar cases, and that therefore become law themselves: the case-law. By imprisonment not exceeding four years. In specific cases, the judge can also order the disgorgement of goods or property. There is no specific pre-trial phase, although there are specific precautionary proceedings which provide an independent examination of evidence before trial. This is a very important legal power. Therefore, while codified law is the cornerstone of the system, judges are reduced to a subordinated role of applying the law already stated in the codes, just choosing time to time the rule that best fits the case at stake. The social dignity of all citizens, who must be considered as equal before the law, without distinction as to sex, race, language, religion, political opinions, or personal and social condition. It will only apply if the facts of the current case are consistent with those of the decision from which is extracted the precedent. All rights reserved. The Italian equivalent of 2:1 is actually 100/110 - 104/110 according to Ca' Foscari University's website. It is true that in common law decisions are considered law according to the Stare Decisis principle, but it is as much true that in civil law systems, although decisions might have only persuasive force, the more cases are decided with consistent reasoning the more weight they acquire: this is the phenomenon of Constant Jurisprudence, a way to give quasi legislative effects to the Italian pronounces without violating the principle of separation of powers. There are many similar avenues and techniques for identifying the facts and evidence when applying them to both legal systems. [3] Even though it should be more accurate to describe it as an uncodified Constitution rather than an unwritten one, seen that these principles might be considered as stemming from several important documents of English history such as the Magna Charta and the Bill of Rights. Filing of correspondence exchange between legal counsels regarding a possible agreement between parties. National security secrets: these can be closed or partially closed. Despite this, traditionally case law has always played a large role in law-making. In the United States, appellate courts are also responsible for hearing and reviewing appeals from legal cases that have been heard before in the lower courts and these appellate courts do not include a jury. Therefore, the theoretical distinction between Stare Decisis and Constant Jurisprudence collapses in practice, giving as result two systems that, from opposite starting points, slowly converge each one taking advantage of some positive characteristics of the other realizing two contaminated systems that are better aware of the needs, the wants and the usages of the dynamic and globalized modern society. Italian criminal procedure is a difficult concept to grasp for lawyers and citizens in other countries, who are used to adversarial systems. The court can request a more in-depth examination by the parties on a specific issue or suggest a new investigation. They have jurisdiction over the disputes in accordance with territorial jurisdiction rules. Approval by the House before which it is first presented. Parkinson v St. James and Seacroft University Hospital NHS Trust [2001], All ER Rees v Darlington Memorial Hospital NHS Trust [2002], House of Lords Justice. Ratify international treaties that Parliament has approved in advance. The applicable sanctions on a conviction are: Various forms of detention including imprisonment or house detention. During the preliminary investigations, the public prosecutor and the defence lawyer can request to gather necessary and essential evidence by an evidentiary hearing (. This obviously does not mean that the Italian system is infallible, and aspects of the cases progress have certainly raised eyebrows: Amanda Knoxs statements are certainly difficult to accept as evidence, the media put a lot of pressure on prosecutors, and the police clearly acted to protect their credibility. If they are fundamentally distinct, the judge will be entitled to hold that the precedent has no applicability in the instant case, according the distinguishing rule, and will issue a new decision which will become a new binding precedent[8]. However, at appellate levels the same judges sometimes sit on both types of courts. Comparison - Conclusions - Bibliography Contextual background for the comparison [13] Nomofilachia, from greek and , literally protection of the law. According to case law, for the standard of proof to be met, the court must find that it is reasonably likely that the alleged facts happened or that it is more likely than not compared to other facts alleged during the trial. In common law jurisdictions, almost every case that brings a bona fide disagreement on the law is dealt with in a written opinion. This should also help clarify some of the questions posed by non-academic writers and journalists during the Kercher case: prosecutors were not abusing their power, they were in fact asserting their legally defined central role in the justice system. The selection of judges, therefore, makes the judiciary an independent body where judges are chosen by their merit through an exam. More serious crimes and civil cases in both countries are then subject to a three-court hierarchy. Contextual background for the comparison 2. Facts and evidence are gathered by both the defense and prosecutor and judged by a jury which is a group of regular citizens that are instructed by the judge to make a judgment based on the laws, evidence, and facts that the judge will then make a verdict. The judiciary of Italy is a system of courts that interpret and apply the law in the Italian Republic. The Superior Council of the Judiciary can appoint university law professors and lawyers of at least 15 years' standing who are enrolled in a specific register as Counsellors of the Supreme Court of Cassation. The Italian system instead, following the Roman tradition and the French Codification experience, is entirely based upon the written legislative source. If, after preliminary investigations, the public prosecutor deems that the evidence gathered show evidence of guilt, they present facts and evidence against the defendant at the trial. Thus, while theory distinguishes them, in practice both systems aim to assure the equality of treatment with a system of precedents which are binding by reason of authority according to the English Stare Decisis doctrine, and by authority of reason according to the Italian Constant Jurisprudence doctrine. Judges are bound by the law, not by the previous decisions of higher courts. When the Supreme Court of Cassation decides that a certain court has jurisdiction over a disputed matter. Young v. Bristol Airplane co., 1944, Court of Appeal Italian Justice System Compared To Us 10 min read. Their independence is protected because prosecutors are part of the judiciary, which in Italy is fully separated from the other constitutional powers. [11] Art 1 disp. [2] The common law is judicially created law that is developed on a case by case basis, wrote Chief Justice Hannah of the Supreme Court of Arkansas in Mason v State. There are actually two kinds of binding precedent: Vertical, which binds all the courts from the highest to the lowest (i.e. England - 3. McFarlane v Tayside Health Board [2000], House of Lords The Italian criminal justice system is sometimes branded as semi-adversarial, but its legal culture and the Italian law in action in fact demonstrate an inquisitorial approach to. However, it must always be stressed that the theoretical difference between Stare Decisis and Constant Jurisprudence, although in practice may lead to same results, remains significant: regarding cases with similar features,39 English lower Courts cant do anything but applying the binding precedent given by the Supreme Court, while Italian Courts can deliberately avoid it and decide the case for themselves. In some cases, the trial judge may be the same judge that presided over the precautionary proceeding aimed at the gathering of evidence in the case (see. Abstract In the United States the prosecutor bridges the gap between the police and the courts by exercising independent judgment concerning the need to . The judiciary, which is independent, exercises judicial powers. In particular, investigative information is confidential until the accused is entitled to have knowledge of them and, in any case, before the preliminary investigations have finished. They are entitled to introduce evidence, submit documents, and question witnesses both for and against their client. In criminal trials, legal counsel represent, assist, and defend their clients. Unless this standard is met, the defendant must be acquitted. These are the substantial assumptions, but obviously the Stare Decisis rule is not absolute. In Italy, the court of last resort is the Corte di Cassazione which resides in Rome (Grossi, 2010). Any of the following can request a referendum within three months of the amendment's publication: One-fifth of the members of a parliamentary house. hVmo9+KS2$$fI;w1E74pyc8#(A~/8xD$eF HCWVTn:7NeqBw?|c s%iJBF81O040VFyrr2jN~}\C\T M yPZNNW59y>5-t3(Caf&;;:%zjut$azsA39\%|+c5'Fp'( Minor criminal offenses and small civil disputes are handled by special magistrate courts tasked with resolving such disputes. The method of bringing prosecutions under the U.S. criminal justice system is compared and contrasted with prosecutorial procedures in England; differences between the two are emphasized. London Street Tramways Co. Ldt v. London County Council, 1898 That the claim is proved or not proved and that consequently the losing party is obliged to restore the claimant (for example, by paying a sum of money, by carrying out a specific action (. The Italian legal system is based on rules set in place by the Italian Civil Code which define the powers in the state and the main Italian rules of law. Another 46 million euros was paid out to . The court of appeal reviews the judgments delivered by the courts of first instance. The result is, thus, a set of decisions that can be cited as Precedents, and defined as rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases. Sexual abuse: these can be closed or partially closed. Eventually, a decision of a lower court can be reversed in appeal; here the case is still open and the decision has not become a precedent yet. Organisations and bodies empowered by a constitutional law (for example, the National Council for Economics and Labour (CNEL)). These are certainly important problems but they cannot be addressed without a clear understanding of how the Italian criminal justice system is set up to function. The general provisions of the Italian Civil Code set out the hierarchy of domestic sources of law in the following order: Constitutional law and laws of constitutional reform. Thecriminal system is broadly an adversarial system and is governed by the presumption of innocence. The decision for the prior case will remain, but from that moment on it is replaced by the fresh issued precedent. The Italian parliament on Thursday approved reform of the criminal justice system, and has also given the initial green light for changes to the civil side. Although this is a very short summary, it should help clarify why during the investigation the prosecutor becomes the key figure, and why prosecutors have so much influence over political decisions about responses to crime in Italy. In the light of Fridays guilty verdict in the case of Amanda Knox and Raffaele Sollecito, the Italian criminal justice system is once again under the magnifying glass. Causes of the 14th Amendment to the US Constitution. Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not reflect the views of LawTeacher.net. For example, the Italian system is inquisitorial, while the United States system is adversarial. The Constituent Assembly, specifically appointed for the task, enacted the Constitution in 1947. What differs between civil law systems, is that individual case decisions do not have a binding effect but are only used for advisory purposes (Baum, 2013). Unlike most continental countries,. The core of the law has always been developed by the judges, relegating the statutes to just a specification of the rules stated in the decisions, only completing the case law. Do you have a 2:1 degree or higher? These provisions are considered immutable. att. [8] The judge can distinguish between two similar cases due to some particular details that are decisive to a distinction, nut can also individuate a completely new and never adjudicated situation: this eventuality is called matter of first impression. State courts can hear almost any kind of case including federal issues as well as constitutional ones, but they are subject to the oversight of the United States (Baum, 2013). Black and Latinx Americans make up 39% of the US population, but represent 59% of those in US prisons. In addition to the above, the constitution recognises and guarantees the protection of human rights by directly applying international conventions and treaties (for example, the European Convention of Human Rights and the EU Charter of Fundamental Rights). [7] Dissenting opinions constitute obiter dicta. Honorary judges not professionals (see. Figures expressed per million people for the same year. It provides the legal basis for the administration of public authorities. EU legislation (EU directives and regulations) (see. The trial of Knox and Sollecito was standard, meaning no special rules were used; on the other hand, Rudy Guedes lawyers decided to use one of the special procedures that are aimed to speed up the criminal process, in this case a giudizio abbreviato or fast-track trial. In Italy, procedural justice is part of the concept of justice: a decision is legally acceptable so long as it results from patterns of official activity that provide protection to the defendants rights and an opportunity to find the truth. Another well-known specialist court is the High Court of Public Waters, which has jurisdiction over disputes relating to public water issues. The government, which is the institutional body vested with executive powers, is supervised by Parliament. the rights to travel, assemble, profess a faith, and express personal thoughts. In Italy, judges are public officials and, since they exercise one of the sovereign powers of the State, only Italian citizens are eligible for judgeship. However, the law provides for special cases in which the judge has. There are two main exceptions to the normal legislative procedure: In general, the judiciary has no power to control legislative and executive actions. The most significant rights and powers are attributed to the parties in a case (a public prosecutor on one side and a defence lawyer on the other). Hence, it follows that, according to the Stare decisis[4] principle, which governs the English system, whenever a judge comes to adjudicate cases with similar features, s/he must follow the precedent stated in the prior decisions, so that similar facts yield to similar results in order to guarantee an equal treatment for all. They can also help to improve them. Knox and Sollecito have therefore not been tried twice for the same crime, because in Italy, all these decisions are legally speaking part of the same continuous criminal process. Differences between legal systems are not anymore seen as obstacles but as inspiring models to aim if anyone wants to achieve a decent level of integration that a modern, interconnected world as ours requires. Promulgate laws, decrees, and regulations. All rights reserved. There are limited exceptions, for example cases involving: Underage defendants: these are not open to the public and the names of the defendants are not made public. The Constituent Assembly, specifically appointed for the task, enacted the Constitution in 1947. This is important in noting that the judge will often know the evidence before the defense and by the time the trial is in place, the judge will have already concluded whether the defendant is guilty or innocent (Ogg, 2012). Under the Constitution, Italy must agree on conditions of equality with other states and with the necessary limitations of sovereignty to create an order that ensures peace and justice between nations. Before this occurrence, in fact, each part of England had different local rules, an unpleasant situation which rendered very complex the relations between traders due to the halo of uncertainty surrounding the law which was to be applied. The courts of first instance and appeal are located in various districts of Italy. This is why Knox and Sollecito went through a much more complex and lengthy judicial procedure than Guede. They, therefore, have an objective ambit of efficacy, their ruling being applicable to every dispute having the same object, but different subjects. endstream endobj 1355 0 obj <>stream A decision not conforming to case law would therefore reasonably be subject to review. This resource is periodically updated for necessary changes due to legal, market, or practice developments. Looking for a flexible role? [5] The English Courts Hierarchy: Supreme Court Court of Appeal High Court and Crown Court subordinated courts such as Magistrates and County Courts. Boundless Political Science. So, in Italy judges just look at the law and decide the case at stake without being bound by previous decisions, which therefore are only persuasive (in particular the decisions of the Supreme Court of Cassazione). Congress is heavily involved throughout the process of appointing federal judges such as the selection of candidates and confirmation of candidates. Reforming Italy's creaking justice system is one of the toughest tasks facing Prime Minister Mario Draghi's government - and one of the conditions the EU attached to the granting of the . The civil judiciary system is structured as follows. (n.d.). The Constitution states that the legislative function must be exercised jointly by the two Houses of Parliament (.
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