The burden of proof falls on the public prosecutor. The Constitution forms the fundamental law of the Italian legal system. Judges are bound by the law, not by the previous decisions of higher courts. the rights to travel, assemble, profess a faith, and express personal thoughts. They can also help to improve them. Appoint the President of the Council of Ministers (also known as the Prime Minister) and, after consultation with the Prime Minister, the remaining government ministers. 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. 1979) England - 3. The courts of first instance and appeal are located in various districts of Italy. In Italy no such oath exists. Courts can also act as courts of second instance to hear appeals from the lower courts. Seen that, it is now clear how the main features of these two systems are strictly linked to their historical genesis. A decision not conforming to case law would therefore reasonably be subject to review. The judgment must contain a description of de facto and de jure grounds on which the decision is based. Congress is heavily involved throughout the process of appointing federal judges such as the selection of candidates and confirmation of candidates. 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. Ogg, J. T. (2012). And even if the direction of the investigation is bureaucratic and reactive, prosecutors are still in a position to take very important decisions. (2020). Blacks Law Dictionary (5th ed. The Constitutional Court rules on issues concerning the Italian constitution and the legitimacy of laws (see. Decisions declaring the alleged death of a person or that a person is missing are always subject to publication in the. Justice system > Punishment > Capital punishment (last execution year) : Year of last use. In the adversarial system in the United States, the judges play a comparably passive role in the proceedings (Grossi, 2010). Retrieved from https://www.britannica.com/place/Italy/Justice. Across a sample of 13 Italian cities, starting a business can take about a week on average. The Supreme Court of Cassation and the Constitutional Court are located in Rome. 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. Each jurisdiction has a single criminal justice system, which means There are many similar avenues and techniques for identifying the facts and evidence when applying them to both legal systems. Civil hearings are not generally open to the public and the case file is confidential. Italian criminal procedure is a difficult concept to grasp for lawyers and citizens in other countries, who are used to adversarial systems. Boundless Political Science. 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. 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. 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. 0 The examining committee is appointed by the Superior Council of the Judiciary. 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). Applicants for the public competitive examination must have a law degree and one of the following: A PhD or other postgraduate degree from a law school. 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. 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). The applicable sanctions on a conviction are: Various forms of detention including imprisonment or house detention. 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. On the other hand, in England lower courts are bound to the Supreme Court precedent and cannot overturn it even if they disagree; they have to apply it, with the only chance to express their disagreement in a dissenting opinion which will invite the party to appeal the decision and which will hopefully persuade the Supreme Court to overrule their judgement. Griffith, R. and Tengnah, C., Law and Professional Issues in Nursing, London: Learning Matters, (2010) 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. Honorary judges not professionals (see. The parties are responsible for gathering and filing evidence with the court. The role of the precedent in the English and Italian judicial system: Between Stare Decisis and Constant Jurisprudence SUMMARY: 1. There is one Corte Costitutzionale which deals with making sure that any law provision complies with the Constitution and is met accordingly, similar to the Supreme Court of the United States (Grossi, 2010). 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]. 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. 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). 28 ottobre 1940) -Constitutional Reform Act, 2005 They will obviously be strongly persuasive, but the new case will be decided only referring to the law, and nothing prevents judges to reach a different solution. The Supreme Court of Cassation and the Constitutional Court are both based in Rome. *You can also browse our support articles here >, Boundless. Approval by the House before which it is first presented. National security secrets: these can be closed or partially closed. The President of the Republic is the head of state elected by Parliament in a joint session of its members and represents national unity. Riccardo Montana does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment. 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. 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 law-making procedure is divided into the following stages: Introduction of draft law (legislative initiative). Articles 24, 25, 101 to 104 and 111 of the Constitution, in particular, ensure the autonomy and independence of the judiciary. In the United States, a defendant taking the stand must take an oath to tell the truth. Decide on the relevance and admissibility of the evidence presented by the parties. Registered office: Creative Tower, Fujairah, PO Box 4422, UAE. Published: 9th Jun 2021. The role of the precedent in the English and Italian judicial system: Between Stare Decisis and Constant Jurisprudence, SUMMARY: 1. 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. The court of assizes (. Therefore, although Supreme Courts precedents are not binding, Italian lower Courts will follow them either way because they are strongly persuasive in their legal reasoning and because they know in advance that different decisions will be quashed if they are not supported by reasonings convincing enough to change Courts mind. Civil law proceeds, with a deductive method of reasoning, from abstraction (codes[1] contain general principles which apply to every case that could possibly be brought before the court) to factually specific scenarios, in which judges apply the principles stemmed from the code to the concrete dispute. All the other incidental statements about the law which do not constitute part of the courts ruling on the case at stake, are obiter dicta, so not binding rules but only persuasive justification of the judges legal reasoning[7]. This is a scenario that in Italy cannot be allowed, since the Courts have the specific duty to speak for the law as it is stated in the codes. Mason v State. We must remember that there is not a single common global ideal of justice, and that the imperfect Italian system complies with rules that are logical and rooted in a legal tradition albeit one very different from what non-Italian audiences are used to. Black and Latinx Americans make up 39% of the US population, but represent 59% of those in US prisons. Federal courts have limited jurisdiction where they can only hear cases when a federal question is raised (Baum, 2013). And yet, in practice, a decision of the Italian Supreme Court of Cassazione will be followed by lower courts to the same extent of the english ones, due to the particular Nomofilactic[13] function entrusted to the Supreme Court itself: in addiction of being the Court of last instance in civil and penal matters, it has indeed the task of ensuring the observance and uniform interpretation of the law, in order to guarantee equality of treatment to everybody[14] and the unity of the legal system on the whole national territory[15]. 384 Codice di Procedura Civile, (Regio Decreto 28 ottobre 1940, n. 1443 in G.U. The constitutional system provides for the following separation of powers: Parliament is vested with the legislative power. 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 (. [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. The Italian law is based on Roman law in regards to civil law and the codes of the kingdom of Sardinia, one of Italys twenty regions, in civil and penal affairs are from the Napoleonic Code which extended to all of Italy when it was unified in the mid-19th century (Wickham & Clark, N.d.). In this system, it is statutory law that assumes a secondary role, very often just reflecting the rules of law enunciated in judicial decisions (i.e., they are the statutory embodiment of rules developed through the judicial decision-making process). Young v. Bristol Airplane co., 1944, Court of Appeal By imprisonment not exceeding four years. 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. 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. In this case, the Supreme Court decided that the March 2013 acquittal was illogical because the judges had not fully considered all the evidence. Figures expressed per million people for the same year. In Italy, there is nothing similar to the Federal courts in the United States. [13] Nomofilachia, from greek and , literally protection of the law. These are the substantial assumptions, but obviously the Stare Decisis rule is not absolute. Parts of the original text have been amended or repealed several times by constitutional laws passed by a special procedure of the Italian Parliament (, Under the Constitution, Italy is a representative democracy in the form of a parliamentary republic that is "one and indivisible," meaning that even though decentralisation of powers to local authorities is allowed, the state holds powers of sovereignty (. 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). The United States laws were derived from the common law system of English which was in place at the time of the Revolutionary war at both the federal and state levels. [9] Civil code, Penal Code, Administrative code etc. They rarely do so because the Cassazione is the court of last instance and thus parties can appeal any kind of decision even slightly divergent from what is the interpretation of the law made by the Court itself with its precedents. Prosecutors would first have to notify Ms Knox of her sentence and issue a warrant for . However, the law provides for special cases in which the judge has. Interrogate the parties or the witnesses on their answers to questions by the parties. Decide on preliminary questions of ritual or merit raised by the parties or noted. 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. Differing degrees of criminal justice convergence in Italy and Australia. Retrieved from http://www.picchieassociati.it/ENG/more-details/the-italian-law-system. BAME communities make up 14% of the UK population, but represent 25% . 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. 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. A Comparative Analysis Between Italian Civil Proceedings and American Civil Proceedings Before Federal Courts. Thus, here we have an inductive method of reasoning, in which law arises from specific cases to become an abstract rule of general application, crystalized in the judicial precedents. Promotion to the rank of appeal court judge or Supreme Court of Cassation judge is based on order of seniority. 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. [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. All rights reserved. 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. There were nearly 50,000 such claims compared to 3,500 in . Elliott, C. and Quinn, F. (2011) English Legal System, London: Longman 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. This may be due to the fact that both legal systems are not solely adversarial or inquisitorial in nature. 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. N:0b kb}z|4v_7?AJD 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. This is what happened in this case, where the Court of Appeal was told to review all the evidence and issue a verdict on the basis of a logical and legal evaluation of the facts; that is exactly what the court did in the run-up to Fridays verdict. Instead, Italy has various tribunali which are located in several districts and several corti dappello which are located in different Italian provinces. Free resources to assist you with your legal studies! 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. Contextual background for the comparison 2. As the Constitutional Court has stated, this principle is intended to guarantee equality before the law within the penal process. The judicial system is unified, with every court being part of the national network. In common law jurisdictions, almost every case that brings a bona fide disagreement on the law is dealt with in a written opinion. This is why Knox and Sollecito went through a much more complex and lengthy judicial procedure than Guede. The Constitution states that the legislative function must be exercised jointly by the two Houses of Parliament (. From the beginning of civilization and organized society negotiations have occurred to solve disputes. [16] Art. City, University of London provides funding as a founding partner of The Conversation UK. [1] The codes are entire bodies of general statutes which deal with generalities and guide the legislator in creating new statutes (written law) outside the code, dealing with more specific matters following the codified principles. 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. It provides the legal basis for the administration of public authorities. Courts in Italy are divided into their specialties which include civil courts, criminal courts, and administrative courts. The people, through a proposal made by at least 50,000 voters (Article 71, Constitution). It will only apply if the facts of the current case are consistent with those of the decision from which is extracted the precedent. The judiciary of Italy is a system of courts that interpret and apply the law in the Italian Republic. 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. Copyright 20102023, The Conversation Media Group Ltd, Lecturer in Environmental Art - School of Art and Design. Filing of correspondence exchange between legal counsels regarding a possible agreement between parties. 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. endstream endobj 1355 0 obj <>stream Judges and prosecutors belong to the same civil service sector, and their positions are interchangeable. All judicial decision had to be taken in accordance with the law in the code, which became the primary source of law. 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. For example, the enterprises courts were instituted by law decree in 2012 within every court (. This is the result of a specific constitutional choice of maintaining the principle of separation of powers very rigid: the Judicial body must not interfere with the legislative power of the Parliament, whose members are directly elected by the people and which therefore is the only one which has the democratic legitimacy to create law[10]. ;vfm4u s(Jm ` *X^=sV9TSFoMcYBW+ [G{H{#R/AAG#&/$(jiwzjjDr7}BGT*rDC0?~`n;NUj\~wSSt| ghofQ-~b8 -M0y:j_c+135FiYzXP+8XLABEJdDfgrK3,}qsL$>ZEQF\,^}$J3"D*zCde~I'KorztmZ!C=rlG(EFYsoY%z5'pKp_/"e7@ y R SAB C3 Make declarations of war agreed by Parliament. 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 judge plays a more passive role. The Constituent Assembly, specifically appointed for the task, enacted the Constitution in 1947. In particular, commentators have focused on the central role of the cases prosecutor something poorly understood outside Italys distinctive legal culture. 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. Foreign scrutiny of the case has so far been unflattering to the Italian legal system (and Italy in general), not helped by the seemingly endless twists and turns of a case that has been running for close to seven years. 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. A further decision on the legitimacy of a case is allowed on appeal to the Court of Cassation which only considers the legality of the proceedings that the lower courts conducted. Minor criminal offenses and small civil disputes are handled by special magistrate courts tasked with resolving such disputes. In particular, the parties can ask the court to: Appoint an expert to examine the state of a particular site/area. Since the very beginning of their development, their differences seemed to be so marked that nobody could even suggest the contrary. Conviction, if the accused is proven to be guilty of the alleged offence beyond any reasonable doubt. Has advised institutional investors on criminal law issues, in M&A transactions and in extraordinary transactions in general, including debt restructuring. In most cases, criminal trials are open to the public. The role of President has a direct impact on the political life of the country and it is not a purely ceremonial position. 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). Carlson Laura, American Business Law For Civil Law Lawyers This was the beginning of the Civil law, and the first step of a process of codification that will continue after the French Revolution with the Code Napolon, the source of inspiration of the modern codes. Contextual background for the comparison - 2. [17] As a matter of fact, the Parliamentary law making process is extremely slow, while the judge-made law is able to be more responsive to the changing of society circumstances (Griffith and Tengnah, 2010). Authorise the introduction of bills by the government. Been appointed as judges of administrative and accounting courts. %PDF-1.5 % Parties to a case have significant rights and powers to introduce claims and defences and submit evidence. For example, they can sanction negligent conduct and delaying tactics. . 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. [7] Dissenting opinions constitute obiter dicta. 28 ottobre 1940). The United States court system consists of fifty state court systems and a separate system of federal courts (Baum, 2013). Lawyersitaly. As a consequence of what we have seen, the heritage of English history is now a system in which there is not a written constitution, and nonetheless there are unwritten constitutional principles to rely on[3], namely the principle of separation of powers, of supremacy of the Parliament and of the rule of law. However, the United States law has now diverged from its English ancestor in both substance and procedure (Boundless, N.d). This is a very important legal power. 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. sergey fetisov biography,
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