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. In Italy no such oath exists. 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]. Legal Systems in Italy: Overview | Practical Law Criminal Procedure in England and the United States Comparisons in Knox verdict: how the Italian legal system works - Channel 4 News Unlike most continental countries,. 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. Italian law establishes independent administrative authorities to deal with specific legal areas. You should not treat any information in this essay as being authoritative. Defendant who raises any objections and defences to the claimant's claim, and can file counterclaims and evidence. 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). This is because higher courts review the decisions of lower courts. The following can bring proceedings before the Constitutional Court: A judicial authority, in the course of proceedings. However, the constitution establishes the Constitutional Court, which examines and decides on the compatibility of laws with the Constitution (Article 134). The judge plays a more passive role. 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. 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). 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. In addition, the Italian constitution provides for the legality principle, which means that every case must be prosecuted: there is no judicial discretion. 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. Filing of correspondence exchange between legal counsels regarding a possible agreement between parties. Codice Civile, (Regio Decreto 16 marzo 1942, n. 262). Each jurisdiction has a single criminal justice system, which means 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. Has advised institutional investors on criminal law issues, in M&A transactions and in extraordinary transactions in general, including debt restructuring. 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. For example, they can sanction negligent conduct and delaying tactics. 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. Government > Legal system: Countries Compared - NationMaster 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 . 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. They, therefore, have an objective ambit of efficacy, their ruling being applicable to every dispute having the same object, but different subjects. 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. Amanda Knox and Italy's 'Carnivalesque' Justice System 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. Boundless Political Science. Black and Latinx Americans make up 39% of the US population, but represent 59% of those in US prisons. 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. Mason v State. 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. 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. CISG Scope of Application Exclusions and Effects. Lecturer in Law, City, University of London. Authorise the introduction of bills by the government. 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. Retrieved from https://www.lawyersitaly.eu/civil-law-in-italy, Mondials. The Italian legal system is not quite different from the United States legal system. The court can request a more in-depth examination by the parties on a specific issue or suggest a new investigation. Griffith, R. and Tengnah, C., Law and Professional Issues in Nursing, London: Learning Matters, (2010) 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. It will only apply if the facts of the current case are consistent with those of the decision from which is extracted the precedent. by Lucas Taylor Posted on . 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. There are actually two kinds of binding precedent: Vertical, which binds all the courts from the highest to the lowest (i.e. While it does not mean that prosecutors control the police during the investigation, prosecutors rely on the police and interact with them constantly. Investigations are confidential and therefore any pre-trial inquiries are protected. In the inquisitorial system which Italy uses, the judge plays a more active role in the proceeding. All judicial decision had to be taken in accordance with the law in the code, which became the primary source of law. The court can only order the relief asked for by the parties, which can include: Specific performance of an act by the losing party. 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. 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. Promotion to the rank of appeal court judge or Supreme Court of Cassation judge is based on order of seniority. (N.d.). . Abstract In the United States the prosecutor bridges the gap between the police and the courts by exercising independent judgment concerning the need to . When the Supreme Court of Cassation decides that a certain court has jurisdiction over a disputed matter. Promulgation by the President of the Republic, who has the power to refer bills back to Parliament for reconsideration. Honorary judges not professionals (see. Ordinary first instance judges preside over the courts (. 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. No specific reporting restrictions typically apply at any stage preceding or during a civil trial. 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). [11] Art 1 disp. They have jurisdiction over the disputes in accordance with territorial jurisdiction rules. There are obviously some questions about how this particular investigation was conducted, but they must be separated from any analysis or evaluation of the Italian system. 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. Criminal justice system America vs. Italy by Alice Conti - Prezi In addiction, judicial decisions are not binding on the legislature, which so can pass new laws to overrule unpopular court decisions. Unless this standard is met, the defendant must be acquitted. Italian Justice System Compared To Us - malcolmmackillop [7] Dissenting opinions constitute obiter dicta. 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. 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. The role of the precedent in the English and Italian judicial system. These include measures to reduce case inflow (e.g., by increasing court fees, creating appeal barriers, and changing lawyers' fee Elliott, C. and Quinn, F. (2011) English Legal System, London: Longman In essence, this means that many decisions taken by the Supreme Court in fact straddle the border between points of law and facts. 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. hbbd``b`{AcH0l n $XA,/l4HqHIH,HQ@bv&Fk@#nU + 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 A panel of three judges hears more serious cases. 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. 2005, Court of Arkansas 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). 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. [4] From Latin maxim stare decisis et quieta non muovere, literally let the decision stand and dont unsettle what is. However, press must comply with the relevant legal provisions generally governing reporting and privacy rights. 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). Federal courts have limited jurisdiction where they can only hear cases when a federal question is raised (Baum, 2013). The burden of proof falls on the public prosecutor. The Italian justice system has again emerged as one of the worst performers in the European Union, with the European Commission's 2015 scoreboard revealing that in Italy it takes civil and commercial cases an average of 600 days to get to court. In criminal trials, legal counsel represent, assist, and defend their clients. 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). Take a look at some weird laws from around the world! Instead, Italy has various tribunali which are located in several districts and several corti dappello which are located in different Italian provinces. Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not reflect the views of LawTeacher.net. 'Reorganizing the System Is the Key': A Bonelli Partner Explains Italy Transmission of the text to the other House for approval in the same form or with amendments. 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. Parties to a case have significant rights and powers to introduce claims and defences and submit evidence. The Constitutional Court rules on issues concerning the Italian constitution and the legitimacy of laws (see. 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. 1351 0 obj <> endobj The judgment must contain a description of de facto and de jure grounds on which the decision is based. 4 Jointly by fine and imprisonment of up to four years. Causes of the 14th Amendment to the US Constitution. Wason v Walter (1868), All ER, Legislation: This may be due to the fact that both legal systems are not solely adversarial or inquisitorial in nature. Congress is heavily involved throughout the process of appointing federal judges such as the selection of candidates and confirmation of candidates. 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. In the United States, a defendant taking the stand must take an oath to tell the truth. These are the substantial assumptions, but obviously the Stare Decisis rule is not absolute. The Italian equivalent of 2:1 is actually 100/110 - 104/110 according to Ca' Foscari University's website. 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 An amendment must be submitted to a popular referendum. This resource is periodically updated for necessary changes due to legal, market, or practice developments. 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. Civil Law in Italy. italian justice system compared to uk Found inside - Page 29here was once an Italian computer manufacturer whose British subsidiary sold an expensive system to a large solicitors' . Contextual background for the comparison 2. 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 trial is the pivotal stage in the litigation process, particularly as its main function is to hear the parties evidence and resolve the dispute. 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 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. In particular, commentators have focused on the central role of the cases prosecutor something poorly understood outside Italys distinctive legal culture. 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. 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. 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. In addition, the Constitution recognises and protects: Basic and fundamental civil rights, for example: freedom and privacy of correspondence; and. 101 of Italian Constitution explicitly says that judges are subject to the law, therefore they cannot be allowed to create what they are suppose to be bound by. 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. Sexual abuse: these can be closed or partially closed. City, University of London provides funding as a founding partner of The Conversation UK. hVmo9+KS2$$fI;w1E74pyc8#(A~/8xD$eF HCWVTn:7NeqBw?|c s%iJBF81O040VFyrr2jN~}\C\T M yPZNNW59y>5-t3(Caf&;;:%zjut$azsA39\%|+c5'Fp'( The judiciary, which is independent, exercises judicial powers. Some prohibitions exist in pre-determined cases, such as: Use of witness testimony to prove the existence of a contract. 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. Make declarations of war agreed by Parliament. Its core principles are codified into a referable system which considers these codes as the primary source of law. They are entitled to introduce evidence, submit documents, and question witnesses both for and against their client. Judiciary of Italy - Wikipedia Minor criminal offenses and small civil disputes are handled by special magistrate courts tasked with resolving such disputes. For example, the Italian system is inquisitorial, while the United States system is adversarial. This means that they are not subject to external pressure of any kind when they execute their functions. 1979) Carlson Laura, American Business Law For Civil Law Lawyers However, the difference between these two countries is less marked than it appears. The courts of first instance and appeal are located in various districts of Italy. Regio Decreto n. 12 del 1941. A law degree and a lawyer's licence are essential to be appointed directly as an honorary judge in a lower court (. Judges are bound by the law, not by the previous decisions of higher courts. 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. Occupied certain managerial roles in the public administration. Though the Italian system of laws uses civil law while the United States uses common law (Mondials, N.d.). During the preliminary investigations, the public prosecutor and the defence lawyer can request to gather necessary and essential evidence by an evidentiary hearing (. In a critical report last year, the Council of Europe's top official for human rights,. There is no specific pre-trial phase, although there are specific precautionary proceedings which provide an independent examination of evidence before trial. 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 fact-finding. 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. In contrast, civil law decisions usually do not consist of explanatory opinions. [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. And even if the direction of the investigation is bureaucratic and reactive, prosecutors are still in a position to take very important decisions. The United States court system consists of fifty state court systems and a separate system of federal courts (Baum, 2013). In this case, a second appeal procedure was necessary because of the decision of the Court of Cassation (Corte di Cassazione). %PDF-1.5 % duhaime.org However, in specific cases and only if necessary to reach a decision, the judge can introduce further evidence at the trial. England - 3. The Constitution states that the legislative function must be exercised jointly by the two Houses of Parliament (. In particular, proposed amendments to the Constitution and other types of constitutional laws (see. The courts are located in various districts of Italy. *You can also browse our support articles here >, Boundless. 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. 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. Since the very beginning of their development, their differences seemed to be so marked that nobody could even suggest the contrary. The executive only possesses the emergency power to declare a state of emergency under the laws on civil protection (see. Major Differences Between the US and UK Legal 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. 28 ottobre 1940). The most relevant sources of international law are: Ordinary judges and honorary judges, who form the judiciary, administer judicial power. The civil judiciary system is structured as follows. Ethical and social relations, for example, the rights to: Political rights, for example, the right to vote and to be elected. 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. Relevance and necessity are two of the main criteria used to determine whether evidence should be excluded. JgJ*cH4w^P. Decide on the relevance and admissibility of the evidence presented by the parties. The applicable sanctions on a conviction are: Various forms of detention including imprisonment or house detention. Utilizziamo i cookie per essere sicuri che tu possa avere la migliore esperienza sul nostro sito. Italian civil procedural law is governed by the dispositive principle (. In fact, these decisions will have precedential authority on future cases with similar features, binding judges who are to make future decision just as any other law does: decisions become law itself. (n.d.). endstream endobj startxref 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. 231/2001, as well as with the organisation and management models provided by the same law. Contextual background for the comparison - 2. As Italy is an EU member state, the main sources of international law derive from the EU. In this case, the Supreme Court decided that the March 2013 acquittal was illogical because the judges had not fully considered all the evidence. Enter to open, tab to navigate, enter to select, 24 hour Customer Support: +44 345 600 9355. 384 Codice di Procedura Civile, (Regio Decreto 28 ottobre 1940, n. 1443 in G.U. 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. [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). 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). 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].
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