Advises investment funds, both Italian and foreign companies, listed and unlisted, as part of their ordinary and extraordinary business activities. 0 Codice Civile, (Regio Decreto 16 marzo 1942, n. 262). 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. 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. It provides the legal basis for the administration of public authorities. 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. Both the United States and Italy have an appellate system, they both have a court of appeals. On the other hand, similar difficulties went arising in Continental Europe: around the 6th century, Roman law was the wide legal basis for everyone in the land, but due to its vastness it was impossible to reach uniformity of application; the law used to change depending on the people to whom it was to be applied, the phenomenon of personalit del diritto5 was wide spread. 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. The Constitution forms the fundamental law of the Italian legal system. 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 Supreme Court of Cassation and the Constitutional Court are both based in Rome. Do you have a 2:1 degree or higher? Lawyersitaly. Retrieved from https://courses.lumenlearning.com/boundless-politicalscience/chapter/origins-of-american-law/. Therefore, Italian decisions have a subjective ambit of efficacy, being applicable only to their recipients and to nobody else, even if a similar dispute arises. for the Italian justice system this is not, however, a victory . 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. Copyright 2003 - 2023 - LawTeacher is a trading name of Business Bliss Consultants FZE, a company registered in United Arab Emirates. The Sollecito and Knox case has, however, demonstrated a major problem with the Italian CJS: the criminal process takes far too long to reach a final decision. Elliott, C. and Quinn, F. (2011) English Legal System, London: Longman However, the law provides for special cases in which the judge has. 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. The Italian system instead, following the Roman tradition and the French Codification experience, is entirely based upon the written legislative source. The context around the case is obviously very complicated, but from a legal point of view it is simply wrong to say (as some have) that it was artificially pushed along by an obsessive, tyrannical prosecutor. 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. The judiciary, which is independent, exercises judicial powers. 2023Thomson Reuters. the scoreboard cannot be seen as a definitive comparison of EU judicial systems. 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. I was denied admission because I didn't score 90% on the 100th or 100 on the 110th. 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. 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. 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). 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. (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 Across a sample of 13 Italian cities, starting a business can take about a week on average. Amanda Knox: European court orders Italy to pay damages Courts in Italy are divided into their specialties which include civil courts, criminal courts, and administrative courts. 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. Large numbers of rapes go unreported. JgJ*cH4w^P. External independence does not just apply to the moment when the prosecutor decides upon penal action: the prosecutor is fully independent even during the investigation phase, during which he or she directs the police. A person who wants to obtain protection from a judge must prove the basis of their reasons. In these cases, the judges role is still much more passive than it would be under the inquisitorial system. Jointly by fine and imprisonment of up to four years. 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. Thecriminal system is broadly an adversarial system and is governed by the presumption of innocence. [6] However, later on, the House of Lords also recognized the possibility for itself to avoid its own precedents, but only when appears right to do so with the Practice Statement, 1966. Italy vs United States Crime Stats Compared - NationMaster Explainer: how does the Italian criminal justice system work? For example, out-of-court statements can be introduced by the parties and then evaluated by the court. This may be due to the fact that both legal systems are not solely adversarial or inquisitorial in nature. "Having been found innocent before, I expected better from the Italian justice system." . Comparing International Criminal Justice Systems Part One 9 Benefits of international comparisons 1.3 International comparisons have an important role to play in building understanding of how individual criminal justice systems are functioning. The Italian constitution and acts of parliament set out a system whereby criminal prosecutors are fully independent; in particular, they have external independence from all the other constitutional powers. Decide on preliminary questions of ritual or merit raised by the parties or noted. It can also obtain additional evidence. 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. 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. Therefore this constant jurisprudence will define what is called the living This is why Knox and Sollecito went through a much more complex and lengthy judicial procedure than Guede. Likewise the Appeal Court can exceptionally overcome its pronounces. Another 46 million euros was paid out to . Civil Law in Italy. Differences and Similarities: Policing in the US and the UK 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' . 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. 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. In particular, commentators have focused on the central role of the cases prosecutor something poorly understood outside Italys distinctive legal culture. Justice system > Punishment > Capital punishment (last execution year) : Year of last use. [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 authorities have taken a number of measures to address the inefficiencies and bottlenecks in the functioning of their justice system. The courts are located in various districts of Italy. 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 role of the precedent in the English and Italian judicial system. 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. Since the very beginning of their development, their differences seemed to be so marked that nobody could even suggest the contrary. 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. England - 3. In the United States, a defendant taking the stand must take an oath to tell the truth. The General Court, which can be summoned by individuals, companies, and national governments to annul decisions taken by the institutions of the EU. British, French and American Systems of Justice Compared - JSTOR 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. National Research Council (IRSIG-CNR), Bologna, Italy; Mr. Francesco Contini, Researcher, the Research Institute on Judicial Systems, National Research Council (IRSIG-CNR), Bologna, Italy; Justice Riaga Samuel Omolo, Judge at the Court of Appeal, Kenya; Justice Dory Reiling, Vice-president, Amsterdam District Court, The Netherlands; Prof. The parties are responsible for gathering and filing evidence with the court. Courts can also act as courts of second instance to hear appeals from the lower courts. Books: For example, the enterprises courts were instituted by law decree in 2012 within every court (. To promulgate the amendment, the majority of voters must approve it in the referendum. Abstract In the United States the prosecutor bridges the gap between the police and the courts by exercising independent judgment concerning the need to . And, unless the appealed judge adduces very strong reasonings in order to make the Court change its orientation, the lower decision will inevitably be quashed, and the case sent back to another lower judge, who this time, and only this time, is legally bound by the Courts decision[16]. 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. The defendant (accused person) who, through their counsel, presents the defence version of the facts and evidence. If the case is serious, in particular, they are effectively in charge of the investigation. Reding speaks as if the UK has no police force or justice system, when in fact our traditions of habeas corpus should be held up as a beacon of fairness. No specific reporting restrictions typically apply at any stage preceding or during a civil trial. Lecturer in Law, City, University of London. 28 ottobre 1940) -Constitutional Reform Act, 2005 This is something that individuals who are facing a trial can freely opt for. Some prohibitions exist in pre-determined cases, such as: Use of witness testimony to prove the existence of a contract. 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. 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 law-making procedure is divided into the following stages: Introduction of draft law (legislative initiative). 4 The judge plays a more passive role. 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. 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. In criminal trials, legal counsel represent, assist, and defend their clients. Parties usually refer to previous decisions of the lower courts and the Supreme Court of Cassation in interpreting the law, but they are not directly bound by them. 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. In particular, proposed amendments to the Constitution and other types of constitutional laws (see. Juvenile Justice in Italy | Oxford Handbook Topics in Criminology and ;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 It provides the legal basis for the administration of public authorities. Parties to a case have significant rights and powers to introduce claims and defences and submit evidence. Government > Legal system: Countries Compared - NationMaster 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. The process is not automatic. [11] Art 1 disp. The Constitution forms the fundamental law of the Italian legal system. law, the current evolution of the law, developed by the Supreme Judicial Authority taking into account the dynamic requirements of the modern society. 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. London Street Tramways Co. Ldt v. London County Council, 1898 endstream endobj startxref Unlike the United States appointment process, the Italian executive branch does not have any part in selecting judges (Grossi, 2010). 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. [7] Dissenting opinions constitute obiter dicta. 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. McFarlane v Tayside Health Board [2000], House of Lords Under the Constitution, recruitment to the judiciary takes place through a public competitive exam published by the Minister of Justice (Article 106). When the Supreme Court of Cassation decides that a certain court has jurisdiction over a disputed matter. 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 (. 231/2001, as well as with the organisation and management models provided by the same law. Parkinson v St. James and Seacroft University Hospital NHS Trust [2001], All ER Rees v Darlington Memorial Hospital NHS Trust [2002], House of Lords 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. Major Differences Between the US and UK Legal Systems 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. 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. According to the principle of the burden of proof (see. This is five days faster than the EU average. Unlike the examination to become a judge in Italy, the Justices of the Supreme Court, the district courts, and the circuit courts of appeals are appointed by the President of the United States with the help and approval of the Senate. If a party believes that law is unconstitutional or breaches any part of the Constitution, the party can file a motion before Corte Costitutzionale through the judge of the pending proceeding where the issue is raised (Grossi, 2010). The following can bring proceedings before the Constitutional Court: A judicial authority, in the course of proceedings. According to case law, for the standard of proof to be met, the court must find that it is reasonably likely that the alleged facts happened or that it is more likely than not compared to other facts alleged during the trial. However, case law often influences a judge's decision on a disputed matter. 384 Codice di Procedura Civile, (Regio Decreto 28 ottobre 1940, n. 1443 in G.U. PDF Resource Guide on Strengthening Judicial Integrity and Capacity The court of assizes (. byMarco Gubitosi, Niccol Bertolini Clerici, Andrea Tortora della Corte, Marianna Consiglio, Legance Avvocati Associati. This is a very important legal power. Young v. Bristol Airplane co., 1944, Court of Appeal . Griffith, R. and Tengnah, C., Law and Professional Issues in Nursing, London: Learning Matters, (2010) The Italian legal system is not quite different from the United States legal system. 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. In fact, while the Civil law system stemmed from Roman law and is referred as a system of rules prescribed in authoritative texts, the Common law system is defined as a body of immemorial customary law discovered by the courts, and finds its origin in the 11th century in England, precisely after the Norman conquest of 1066. All judicial decision had to be taken in accordance with the law in the code, which became the primary source of law. ., vM \@[Z*%*K3u2q#$)|0\&Wzeg'A In the inquisitorial system which Italy uses, the judge plays a more active role in the proceeding. Legal Systems in Italy: Overview | Practical Law Other special courts provided by the Constitution include the: Administrative appeal court, which is the Council of State (. 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. In these cases, the publication is ordered by the court with the decision itself. This is because higher courts review the decisions of lower courts. Ethical and social relations, for example, the rights to: Political rights, for example, the right to vote and to be elected. Judiciary of Italy - Wikipedia 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 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. 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]. Differing degrees of criminal justice convergence in Italy and Australia. While it does not mean that prosecutors control the police during the investigation, prosecutors rely on the police and interact with them constantly. the rights to travel, assemble, profess a faith, and express personal thoughts. The court systems are different from the United States in where our courts are divided into the trial courts (district courts), circuit courts (the first level of appeal), and the Supreme Court of the United States (or on the state level, the state supreme court) (Baum, 2013). 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. Wickham, C. J., & Clark, M. (N.d.). Though the Italian system of laws uses civil law while the United States uses common law (Mondials, N.d.). EU justice scoreboard finds severe problems in Italy - POLITICO 2005, Court of Arkansas 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). Relevance and necessity are two of the main criteria used to determine whether evidence should be excluded. 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. Thus, with its pronounces, the Court establishes what must be the current interpretation of a certain statute, and lower courts will follow it: they will decide the case at the stake applying the law as interpreted by the Cassazione, giving birth to a series of decisions consistent with the precedent of the Supreme Court. The Civil law system, indeed, entirely relies on the legislative source of law. 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]. %%EOF Judges are bound by the law, not by the previous decisions of higher courts. 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. The most relevant sources of international law are: Ordinary judges and honorary judges, who form the judiciary, administer judicial power. Honorary judges not professionals (see. Its core principles are codified into a referable system which considers these codes as the primary source of law. The Italian judicial system consists of a series of courts and a body of judges who are civil servants. The role of President has a direct impact on the political life of the country and it is not a purely ceremonial position. 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. 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. Comparison - Conclusions - Bibliography Contextual background for the comparison Rigid: modification requires a complex process of reform unlike the passing of ordinary laws. In Italy, the court of last resort is the Corte di Cassazione which resides in Rome (Grossi, 2010). 1376 0 obj <>stream 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. PDF Judicial System Reform in Italy A Key to Growth However, at appellate levels the same judges sometimes sit on both types of courts. Blacks Law Dictionary (5th ed. Contextual background for the comparison 2. Knox verdict: how the Italian legal system works - Channel 4 News These procedures are only initiated if evidence gathering during the trial may be endangered. 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). [9] Civil code, Penal Code, Administrative code etc. Authorise the introduction of bills by the government. Totals Citation Statistics for Government > Legal system Categories Top Stats 0 Italian criminal procedure is a difficult concept to grasp for lawyers and citizens in other countries, who are used to adversarial systems. A decision not conforming to case law would therefore reasonably be subject to review. [8] The judge can distinguish between two similar cases due to some particular details that are decisive to a distinction, nut can also individuate a completely new and never adjudicated situation: this eventuality is called matter of first impression. Moreover, when a case must be adjudicated on the basis of a statute, the latter gets absorbed in the jurisprudential circuit and, from that moment on, the sentence that rely on the given statute will become a binding judgement which will be followed by lower Courts and that will be cited as a Precedent instead of the statute itself. The Constitution states that the legislative function must be exercised jointly by the two Houses of Parliament (. 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! In Italy no such oath exists. 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. In contrast, civil law decisions usually do not consist of explanatory opinions. In specific cases, the judge can also order the disgorgement of goods or property. Investigations are confidential and therefore any pre-trial inquiries are protected.
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italian justice system compared to uk