The public prosecutor can also ask the judge to order the seizure of goods, property or documents related to the offence that, if still available to the suspect, could aggravate or extend the consequences of the offence or facilitate the commission of other crimes. In Italy there is a constitutional right to appeal on points of law to the Court of Cassation, which can agree with the Court of Appeals decision or can disagree with its interpretation of the law. In the U.S., these are cases for state courts almost exclusively. For example, out-of-court statements can be introduced by the parties and then evaluated by the court. The Supreme Court of Cassation and the Constitutional Court are both based in Rome. 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. The court of assizes (. 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]. Significant developments affecting this resource will be described below. "It's one of the many failings of Italian justice that it never . 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]. The Italian legal system is not quite different from the United States legal system. In the inquisitorial system which Italy uses, the judge plays a more active role in the proceeding. 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! The Constitution is: In written form. Worked as an honorary judge for at least six years without revocation. Civil hearings are not generally open to the public and the case file is confidential. Therefore, the first thing everyone usually recognizes as characterizing the English law system is often wrong: the primary legislative source is not case law, but, at least in theory, the written law. Young v. Bristol Airplane co., 1944, Court of Appeal The right of asylum to people who are denied the effective exercise of their democratic freedoms in their own country. (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 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. [15] Art. [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. Se continui ad utilizzare questo sito noi assumiamo che tu ne sia felice. Italian criminal procedure is a difficult concept to grasp for lawyers and citizens in other countries, who are used to adversarial systems. Precedents, so, in Italy are only persuasive, because, as article 2909 of Italian Civil Code provides, judgements are only binding on (and therefore constitute law among) the parties, their successors or assignees. 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. The Common law/Civil law dualism has always been pivotal for any scholar approaching the study of Comparative law. All rights reserved. The federal courts and the majority of the state court systems are organized into trial courts (The United States district courts in the federal system), intermediate appellate courts, and a Supreme Court. The Constitution states that the legislative function must be exercised jointly by the two Houses of Parliament (. The role of the precedent in the English and Italian judicial system: Between Stare Decisis and Constant Jurisprudence, SUMMARY: 1. 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. [5] The English Courts Hierarchy: Supreme Court Court of Appeal High Court and Crown Court subordinated courts such as Magistrates and County Courts. 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 Constitution prohibits the establishment of new extraordinary or special courts, except for specialised divisions in specific sectors which can be set up within the ordinary judicial bodies. The Italian equivalent of 2:1 is actually 100/110 - 104/110 according to Ca' Foscari University's website. The Constituent Assembly, specifically appointed for the task, enacted the Constitution in 1947. 1 Italian Constitution). These include measures to reduce case inflow (e.g., by increasing court fees, creating appeal barriers, and changing lawyers' fee Free resources to assist you with your legal studies! 231/2001, as well as with the organisation and management models provided by the same law. [11] Art 1 disp. The selection of judges, therefore, makes the judiciary an independent body where judges are chosen by their merit through an exam. 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. Advises investment funds, both Italian and foreign companies, listed and unlisted, as part of their ordinary and extraordinary business activities. Send messages to Parliament and dissolve one or both of its houses. hVmo9+KS2$$fI;w1E74pyc8#(A~/8xD$eF HCWVTn:7NeqBw?|c s%iJBF81O040VFyrr2jN~}\C\T M yPZNNW59y>5-t3(Caf&;;:%zjut$azsA39\%|+c5'Fp'( Justice system > Punishment > Capital punishment (last execution year) : Year of last use. And even if the direction of the investigation is bureaucratic and reactive, prosecutors are still in a position to take very important decisions. Black and Latinx Americans make up 39% of the US population, but represent 59% of those in US prisons. Issue the decision based on the statements made by the parties. Italian law establishes independent administrative authorities to deal with specific legal areas. Slow-moving, hugely bloated and sometimes alarmingly politicised, Italy's justice system needs fixing. 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). Judiciary of Italy - Wikipedia In particular, proposed amendments to the Constitution and other types of constitutional laws (see. The law-making procedure is divided into the following stages: Introduction of draft law (legislative initiative). 4 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. 2023 Thomson Reuters. The executive only possesses the emergency power to declare a state of emergency under the laws on civil protection (see. You should not treat any information in this essay as being authoritative. This is because higher courts review the decisions of lower courts. After this, the public prosecutor can, if necessary for investigative reasons, order that certain documents are kept confidential and/or not published. Differing degrees of criminal justice convergence in Italy and Australia. During the preliminary investigations, the public prosecutor and the defence lawyer can request to gather necessary and essential evidence by an evidentiary hearing (. Info: 1539 words (6 pages) Essay The role of the precedent in the English and Italian judicial system. 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). 4I^!Ai-u\xC`@;fN+kXi/Aqe [(K`]7BExDlkp9ERMe;tm'[N- wILUaT1Jc'L;> H+:$\ )HMl=U0(%p$2YqBr mbEx2f$>xl!I(4 Of\Po:}N Tj$0WfEeN F The fact that English system is not codified influences, indeed, the task that their Courts have to carry out: not only deciding the case at issue, but also creating and developing new law if necessary. A law degree and a lawyer's licence are essential to be appointed directly as an honorary judge in a lower court (. for the Italian justice system this is not, however, a victory . 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. Italy - Justice | Britannica The examining committee is appointed by the Superior Council of the Judiciary. . Its core principles are codified into a referable system which considers these codes as the primary source of law. The Q&A gives a high-level overview of the key legal concepts including the constitution, system of governance and the general legislative process; the main sources of law; the court structure and hierarchy; the judiciary and its appointment; the general rules of civil and criminal litigation, including reporting restrictions, evidentiary requirements, the roles of the judge and counsel, burdens of proof and penalties. 6 Key Ways the British Legal System Differs From the Rest of the World This is a very important legal power. 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. The main source of law in Italy is the Italian Constitution followed by the constitutional laws which happen to be the same for the United States where the United States Constitution is the highest form of law (Lawyersitaly, 2020). If the case is serious, in particular, they are effectively in charge of the investigation. In these cases, the publication is ordered by the court with the decision itself. Contextual background for the comparison - 2. The Constitution states it is the duty of the Republic to remove any obstacles that may limit the equality or freedom of citizens or their effective participation in the political, economic, and social organisation of Italy (Article 3). Chairman of the supervisory boards of national and international companies, including listed companies and public law agencies. The defendant (accused person) who, through their counsel, presents the defence version of the facts and evidence. In Italy, there is nothing similar to the Federal courts in the United States. Retrieved from http://www.picchieassociati.it/ENG/more-details/the-italian-law-system. Moreover, when the facts are exactly the same and there is no possibility for distinguishing, an higher court can overrule the principle established in an earlier decision by a lower court or another court on the same level, even itself, because appears to be clearly wrong (when appears to do so is the wording of the Supreme Court in the Practice Statement of 1966) or so outdated that is no longer applicable for modern times. American judges are lawyers who have been appointed to the bench and many of them still consider themselves to be lawyers unlike the judges in Italy. The Italian authorities have taken a number of measures to address the inefficiencies and bottlenecks in the functioning of their justice system. The government, which is the institutional body vested with executive powers, is supervised by Parliament. Occupied certain managerial roles in the public administration. The role of the courts here is limited to just spot the right rule and apply it to the instant dispute, interpreting it if necessary. Apple James G., A Primer on the Civil-Law System, and Deyling Robert P. , Chief, Interjudicial Affairs Office Federal Judicial Center, Judicial Fellow, Administrative Office of the U.S. Courts, 19941995 In contrast, civil law decisions usually do not consist of explanatory opinions. Comparing the Italian and US Legal Systems - LawTeacher.net The burden of proof falls on the public prosecutor. While it does not mean that prosecutors control the police during the investigation, prosecutors rely on the police and interact with them constantly. Congress is heavily involved throughout the process of appointing federal judges such as the selection of candidates and confirmation of candidates. endstream endobj 1352 0 obj <>/Metadata 161 0 R/Outlines 266 0 R/PageLabels 1332 0 R/Pages 1336 0 R/StructTreeRoot 267 0 R/Type/Catalog/ViewerPreferences<>>> endobj 1353 0 obj <>/ExtGState<>/Font<>/ProcSet[/PDF/Text]/Properties<>>>>>/Rotate 0/StructParents 0/TrimBox[0.0 0.0 595.276 841.89]/Type/Page>> endobj 1354 0 obj <>stream A Comparative Analysis Between Italian Civil Proceedings and American Civil Proceedings Before Federal Courts. 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. 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. The jury system is seen as an integral part of the legal system, even though only 1% of criminal cases go before a jury; among the general public in the UK, juries are more trusted than judges, magistrates or government ministers, and the right to a jury trial is seen as more important even than the right to political protest. 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. CISG Scope of Application Exclusions and Effects. Some cases are decided solely by judges because the case may be one where there is no right to a jury trial or because the parties waived their right to a jury trial. The differences between them are of course several and significant, so that one might think that they should be referred as the antipodes of the legal system conception, with no chance of commixture from one to the other. Six children were among the dead after a Russian missile attack on Uman; Russian soldiers are likely being placed in improvised cells consisting of holes in the ground as punishment, the UK's MoD . 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. The role of President has a direct impact on the political life of the country and it is not a purely ceremonial position. The intent of this paper is to analyze the legal system of two countries, England and Italy, which historically have a very strong tradition of Common and Civil law being the latter the leading exponent and exporter of the first system, and the former a direct descendant of the Roman law tradition to assess whether effectively those two systems are diametrically the opposite or instead they might be running together, but in parallel, towards a certain point of coincidence. EU legislation (EU directives and regulations) (see. According to reliable statistics, about the 70% of the world finds itself under a legal system identified in Civil Law or Common Law (around 44% of the States are under Civil law, around 27% are under Common law), so anyone who wants to truly dive into the study of matter must almost inevitably deal with at least one of those systems. Griffith, R. and Tengnah, C., Law and Professional Issues in Nursing, London: Learning Matters, (2010) They have jurisdiction over the disputes in accordance with territorial jurisdiction rules. Italian criminal law is primarily an adversarial system (as opposed to the inquisitorial system). Ukraine war latest: Boy, 6, cries as sister killed in Russian attack The sources of law are arranged hierarchically (see. Italian Justice System Compared To Us - malcolmmackillop The jury's role is substantially different from that of juries in common law criminal systems, since in the Italian system the jurors make their decisions in collaboration with the professional judges. The courts of first instance and appeal are located in various districts of Italy. However, case law often influences a judge's decision on a disputed matter. A decision not conforming to case law would therefore reasonably be subject to review. The General Court, which can be summoned by individuals, companies, and national governments to annul decisions taken by the institutions of the EU. However, the difference between these two countries is less marked than it appears. PDF Judicial System Reform in Italy A Key to Growth . I was denied admission because I didn't score 90% on the 100th or 100 on the 110th. Avery, The English Legal System 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. To promulgate the amendment, the majority of voters must approve it in the referendum. Thus, despite the need of legal certainty was the same, the solution that Romans adopted pointed in the opposite direction: Justinian, Eastern Roman Emperor, commissioned an encyclopedic work, called Corpus Iuris Civilis, which gathered and harmonized all the roman law in one single, complete Code. Decisions declaring the alleged death of a person or that a person is missing are always subject to publication in the. Federal: The federal criminal justice system handles crimes committed on federal property or in more than one state. 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. 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. There are actually two kinds of binding precedent: Vertical, which binds all the courts from the highest to the lowest (i.e. It provides the legal basis for the administration of public authorities. 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. Legal system DEFINITION: A brief description of the legal system's historical roots, role in government, and acceptance of International Court of Justice (ICJ) jurisdiction. Prosecutors would first have to notify Ms Knox of her sentence and issue a warrant for . 384 Codice di Procedura Civile, (Regio Decreto 28 ottobre 1940, n. 1443 in G.U. Mason v State. 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. The Constitution is rigid (as opposed to a flexible constitution), since modifying it involves a more complex process of reform than that needed for amending ordinary laws. The result of this although partial analysis, is the evidence of how the distinctions between the two systems have blurred, as a consequence of a trend of change registered from both sides, the one taking inspiration from the other, towards a common point of coincidence, a commixture more fitting the modern globalization reality. Take a look at some weird laws from around the world! Boundless Political Science. Once the applicants have earned a law degree, they can take the exam to become judges without having to have practiced as a lawyer (Grossi, 2010). British, French and American Systems of Justice Compared 99 enee, we shall focus on the court system in En-gland.6 There are two judicial structures in England - one for civil cases and one for criminal cases. Generally there are no provisions making the decisions of higher courts binding on lower courts, except: When reviewing an appeal judgment, the Supreme Court of Cassation can return the file to the Court of Appeal, imposing a specific principle of law to resolve the dispute. The Supreme Court of Cassation and the Constitutional Court are located in Rome. That a new right has arisen between the parties to the proceedings as a consequence of the verdict. 1368 0 obj <>/Filter/FlateDecode/ID[<2BC44B71D5E8BD4AA52CEAD376FA45ED>]/Index[1351 26]/Info 1350 0 R/Length 87/Prev 901430/Root 1352 0 R/Size 1377/Type/XRef/W[1 2 1]>>stream These procedures are only initiated if evidence gathering during the trial may be endangered. Contextual background for the comparison 2. Under stare decisis, a single case that has been decided upon is binding law to the same extent as a statute or regulation in common law systems. Seen that, it is now clear how the main features of these two systems are strictly linked to their historical genesis. England - 3. Though the Italian system of laws uses civil law while the United States uses common law (Mondials, N.d.). All rights reserved. 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. The courts are not only involved in the court proceedings but are also involved in the investigation which means that the prosecutor and the judge work together when finding out the facts of the case. There is no specific pre-trial phase, although there are specific precautionary proceedings which provide an independent examination of evidence before trial. In essence, this means that many decisions taken by the Supreme Court in fact straddle the border between points of law and facts. Wickham, C. J., & Clark, M. (N.d.). Common law, instead, is a system in which law is made by judges[2]: there are not written codes to rely on, therefore law is developed directly by the Courts and stated in decisions issued when judges come to adjudicate individual cases, so after the dispute arises. They can also help to improve them. Origins of the Italian Juvenile Justice System In Italy, juvenile courts were established in 1934, and their structure and responsibilities in the field of juvenile justice remained unchanged until 1956, when elements of a rehabilitative approach were introduced. 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). In many ways, it is very different from the system in the United States. As we have seen above, in Italy the Constant Jurisprudence doctrine combined with the Nomofilactic function of the Supreme Court consent to reach almost the same results of the English Stare Decisis principle, aiming to satisfy the needs of equality of treatment and predictability of the decisions without giving up the characteristic of legal certainty typical of a code-centric legal system, but being at the same time flexible and capable to easily adapt the general written rules to the varying and unforeseen conditions of society without turning to the very slow parliamentary law-making process[17]. Copyright 20102023, The Conversation Media Group Ltd, Lecturer in Environmental Art - School of Art and Design. The Italian Civil Code then proceeds to state that the ordinary law, the legislative decrees, and the regional legislation are the next main sources of law for Italy (Lawyersitaly, 2020). These are the substantial assumptions, but obviously the Stare Decisis rule is not absolute. The main role of the judiciary in both civil and criminal trials is to: Govern the hearings and the proceedings, order the parties to file further written statements and set hearings. This will be an important point if and when the Italian government asks for the extradition of Amanda Knox, pending the confirmation of the most recent verdict by the Supreme Court. In these cases, the judges role is still much more passive than it would be under the inquisitorial system. This is something that individuals who are facing a trial can freely opt for. 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.
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