The court can request a more in-depth examination by the parties on a specific issue or suggest a new investigation. (2020). 28 ottobre 1940) -Constitutional Reform Act, 2005 The General Court, which can be summoned by individuals, companies, and national governments to annul decisions taken by the institutions of the EU. 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]. 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. Italy - 4. Civil liability is based on the principle of the burden of proof. In common law jurisdictions, almost every case that brings a bona fide disagreement on the law is dealt with in a written opinion. I was denied admission because I didn't score 90% on the 100th or 100 on the 110th. The defendant (accused person) who, through their counsel, presents the defence version of the facts and evidence. 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. This is five days faster than the EU average. 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. Articles: The Italian civil judicial system is based on a two-tier justice system that allows for the reconsideration of a case that had been decided (Mondials, N.d.). Send messages to Parliament and dissolve one or both of its houses. Specifically, the Constitution recognises, grants and protects: The dignity of the person as an individual and in social groups. Issue the decision based on the statements made by the parties. The Italian legal system is based on continental civil law. Legislative powers are vested in the Italian Parliament, in compliance with the Constitution, and under the constraints of EU legislation and international obligations. The most relevant are: The Italian Authority on Communications (, The Italian Securities and Exchange Commission (, The Italian Regulatory Authority for Electricity Gas and Water (. Decide on preliminary questions of ritual or merit raised by the parties or noted. Seen that, it is now clear how the main features of these two systems are strictly linked to their historical genesis. Investigations are confidential and therefore any pre-trial inquiries are protected. The following can bring proceedings before the Constitutional Court: A judicial authority, in the course of proceedings. The judiciary, which is independent, exercises judicial powers. 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. London Street Tramways Co. Ldt v. London County Council, 1898 Mason v State. The law is in fact expression of the people sovereignty, exercised by directly electing their representatives in Parliament (art. In particular, the parties can ask the court to: Appoint an expert to examine the state of a particular site/area. This means that they are not subject to external pressure of any kind when they execute their functions. 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 burden of proof falls on the public prosecutor. In addition, the Italian constitution provides for the legality principle, which means that every case must be prosecuted: there is no judicial discretion. For example, out-of-court statements can be introduced by the parties and then evaluated by the court. In the United States, a defendant taking the stand must take an oath to tell the truth. Boundless Political Science. 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. Books: Honorary judges not professionals (see. First published on Thu 24 Jan 2019 00.00 EST The European court of human rights has ordered Italy to pay Amanda Knox 18,400 for police failures to provide her access to a lawyer and a translator. The first part of the Constitution sets out fundamental principles governing the rights of Italian citizens and the protection of these rights (Articles 1 to 12). See Young v. Bristol Airplane co., 1944. "It's one of the many failings of Italian justice that it never . Make declarations of war agreed by Parliament. Decisions declaring the alleged death of a person or that a person is missing are always subject to publication in the. 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. In Italy no such oath exists. 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. 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. 2023 Thomson Reuters. The examining committee is appointed by the Superior Council of the Judiciary. A person who wants to obtain protection from a judge must prove the basis of their reasons. Therefore this constant jurisprudence will define what is called the living This differs from the United States where the second-highest form of law are the statutes which are laws enacted by legislatures and then the third would be executive orders (Baum, 2013). National security secrets: these can be closed or partially closed. 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. [15] Art. Italy ranks 58th for overall ease of doing business and 98th for starting a business, out of 190 economies. 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. Take a look at some weird laws from around the world! Though the Italian system of laws uses civil law while the United States uses common law (Mondials, N.d.). 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. 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). 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. For what is our concern, it should be born in mind that supremacy of the Parliament means that the Parliament has the supreme legislative power, and thus supremacy must be given to the result of its work, the statutes. A panel of three judges hears more serious cases. In the U.S., these are cases for state courts almost exclusively. Causes of the 14th Amendment to the US Constitution. Unlike the United States appointment process, the Italian executive branch does not have any part in selecting judges (Grossi, 2010). Retrieved from https://www.britannica.com/place/Italy/Justice. This does not mean that in Italy investigations are routinely conducted and structured like in England, because the police consider prosecutors as their superiors during the investigation. [7] Dissenting opinions constitute obiter dicta. 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. 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 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.). hb```, edd```d`1#[sM{& Courts can also act as courts of second instance to hear appeals from the lower courts. 2005, Court of Arkansas 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. [4] From Latin maxim stare decisis et quieta non muovere, literally let the decision stand and dont unsettle what is. There were nearly 50,000 such claims compared to 3,500 in 2003. 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 In particular, proposed amendments to the Constitution and other types of constitutional laws (see. This resource is periodically updated for necessary changes due to legal, market, or practice developments. In the United States we grant a trial by a jury of one's peers for felony defendants if they request it. 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. More serious crimes and civil cases in both countries are then subject to a three-court hierarchy. Precautionary measures apply to those cases in which: There is a real and actual danger that the gathering or the authenticity of evidence could be compromised. 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. This is something that individuals who are facing a trial can freely opt for. Totals Citation Statistics for Government > Legal system Categories Top Stats 0 Common law countries are adopting some of the characteristics of the Civil law system, while Civil law countries are incorporating some features of the Common law tradition. Codice di Procedura Civile, (Regio Decreto 28 ottobre 1940, n. 1443 in G.U. Examination of certain persons as witnesses. The Italian judicial system consists of a series of courts and a body of judges who are civil servants. 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 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. Info: 1539 words (6 pages) Essay Reitz John C., HOW TO DO COMPARATIVE LAW, American Journal of Comparative Law Fall, 1998, Symposium: New Directions in Comparative Law, Comparative Law in the United States Today: Distinctiveness, Quality, and Tradition , Lloyd Duhaime. Italian criminal law is primarily an adversarial system (as opposed to the inquisitorial system). However, the United States law has now diverged from its English ancestor in both substance and procedure (Boundless, N.d). Black and Latinx Americans make up 39% of the US population, but represent 59% of those in US prisons. %%EOF [11] Art 1 disp. att. In Italy, there is nothing similar to the Federal courts in the United States. Besides, also England, on the other side, has been conditioned by Civil law, especially by the need of a written law more democratic and easily cognizable by people, with an ordinated and referable consulting system in place of the immense and confusing precedents yearbooks in which sentences were gathered. Large numbers of rapes go unreported. This means that Parliament, which is the legislative body of the state, has two Houses which are the: The Houses are independent from one another, but possess the same rights and powers. However, not all cases are tried through a jury trial. Likewise the Appeal Court can exceptionally overcome its pronounces. Occupied certain managerial roles in the public administration. 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). According to the principle of the burden of proof (see. The main function of a criminal trial is to present facts and evidence before a judge for the latter to determine the guilt or innocence of the accused person. 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. Unless this standard is met, the defendant must be acquitted. 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. The courts of first instance and appeal are located in various districts of Italy. The Court of Justice of the European Union (CJEU) consists of: The European Court of Justice, which can be summoned by national courts to consider annulments and appeals or to obtain preliminary rulings regarding the interpretation of EU law. Recent reforms appear to be oriented towards a non-adversarial model and the judges have been given the power to issue, on their own initiative, sanctions against the parties. The court of assizes (. Italian civil procedural law is governed by the dispositive principle (. 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. However, press must comply with the relevant legal provisions generally governing reporting and privacy rights. Contextual background for the comparison - 2. 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]. Lecturer in Law, City, University of London. Regio Decreto n. 12 del 1941. Costituzione della Repubblica Italiana, [Gazzetta Ufficiale 27 dicembre 1947, n. 298]. Under the Constitution, recruitment to the judiciary takes place through a public competitive exam published by the Minister of Justice (Article 106). They have jurisdiction over disputes in accordance with the legal provisions determining the appropriate venue for litigation. 1979) When the Supreme Court of Cassation decides that a certain court has jurisdiction over a disputed matter. Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not reflect the views of LawTeacher.net. The courts of appeal review the judgments of the courts of first instance. 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. 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. Young v. Bristol Airplane co., 1944, Court of Appeal But under Italy's justice system, the supreme court is unlikely to hear the case until April or May 2015. The Italian legal system is not quite different from the United States legal system. duhaime.org 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. 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). As aforementioned, Common and Civil law may be referred as the antipodes of the legal system conception. Looking for a flexible role? All judicial decision had to be taken in accordance with the law in the code, which became the primary source of law. This is a difficult decision to interpret, but the criteria to make an appeal on points of law and the limits to the courts jurisdiction are flexible. Ethical and social relations, for example, the rights to: Political rights, for example, the right to vote and to be elected. 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. The parties are responsible for introducing evidence about the guilt or innocence of an accused person. 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. This is completely coherent with the deductive method of reasoning typical of civil system: proceeding from setting a system of general and abstract rules to a specific application of them. 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. 384 Codice di Procedura Civile, (Regio Decreto 28 ottobre 1940, n. 1443 in G.U. 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. The applicable sanctions on a conviction are: Various forms of detention including imprisonment or house detention. "Having been found innocent before, I expected better from the Italian justice system." . In the specific cases provided for by the law, request further investigations (expert examination of the facts, witness clarification requests and information from public bodies). The court can only order the relief asked for by the parties, which can include: Specific performance of an act by the losing party. The judicial system is unified, with every court being part of the national network. 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. 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. Thecriminal system is broadly an adversarial system and is governed by the presumption of innocence. ;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 A public prosecutor who conducts the related investigations to assess the potential liability of the suspect. The Italian equivalent of 2:1 is actually 100/110 - 104/110 according to Ca' Foscari University's website. Figures expressed per million people for the same year. Grossi, S. (2010). The role of the precedent in the English and Italian judicial system: Between Stare Decisis and Constant Jurisprudence SUMMARY: 1. The selection of judges, therefore, makes the judiciary an independent body where judges are chosen by their merit through an exam. 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. This is because higher courts review the decisions of lower courts. 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. Indeed, the Stare Decisis principle is not followed in Italy because it violates the principle that only the Parliament should make law[12]; therefore, as aforementioned, Italian judgements only have effect between the parties and lower courts are not bound to precedents established by higher courts. Promulgation by the President of the Republic, who has the power to refer bills back to Parliament for reconsideration. Avery, The English Legal System 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. Professor Richards Edward, The Importance of Precedent, LSU Law Center. The judiciary of Italy is a system of courts that interpret and apply the law in the Italian Republic. 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. Prosecutors would first have to notify Ms Knox of her sentence and issue a warrant for . 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 role of President has a direct impact on the political life of the country and it is not a purely ceremonial position. Rigid: modification requires a complex process of reform unlike the passing of ordinary laws. 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). (n.d.). 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. 28 ottobre 1940). The law-making procedure is divided into the following stages: Introduction of draft law (legislative initiative). 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 . Courts in Italy are divided into their specialties which include civil courts, criminal courts, and administrative courts. 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. 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. Interrogate the parties or the witnesses on their answers to questions by the parties. 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. 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]. 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. The courts are located in various districts of Italy. As Italy is an EU member state, the main sources of international law derive from the EU. 65, regio decreto n. 12 del 1941. 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). Promotion to the rank of appeal court judge or Supreme Court of Cassation judge is based on order of seniority. The government, which is the institutional body vested with executive powers, is supervised by Parliament. The President is also the commander-in-chief of the Armed Forces and chairs the Superior Council of the Judiciary. Therefore, the Normans, under command of Henry II, wishing to establish a unified legal system that would become common throughout the country, sent out itinerant judges with the task of ensuring a standardized system of law all across the country, issuing uniform decisions based upon a set of common principles which begun to be crystalized in those decisions: these are the first examples of case-law, and that is the beginning of the Common law, a law common to all English people, in England and all over its colonies. Black people were over 3 times as likely to be arrested as White people - there were 32 arrests for every 1,000 Black people, and 10 arrests for every 1,000 White people. 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. [13] Nomofilachia, from greek and , literally protection of the 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. 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 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). For example, they can sanction negligent conduct and delaying tactics. Jointly by fine and imprisonment of up to four years. 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 However, it must be stressed that not the whole decision is binding, but only the ratio decidendi, which is the abstract principle of law which has been applied to the facts at issue and which have led to the decision, becoming the legal rule deriving from it. Worked as a regular university law professor. (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 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. Unlike most continental countries,. Authorise the introduction of bills by the government. EU legislation (EU directives and regulations) (see. During the preliminary investigations, the public prosecutor and the defence lawyer can request to gather necessary and essential evidence by an evidentiary hearing (.
