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 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 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. 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 (. In the U.S., these are cases for state courts almost exclusively. 1 Italian Constitution). [5] The English Courts Hierarchy: Supreme Court Court of Appeal High Court and Crown Court subordinated courts such as Magistrates and County Courts. This means that they are not subject to external pressure of any kind when they execute their functions. Some cases are decided solely by judges because the case may be one where there is no right to a jury trial or because the parties waived their right to a jury trial. This is because higher courts review the decisions of lower courts. . computer manufacturer whose litigation experience had hitherto been confined mostly to the Italian legal system. The constitutional system provides for the following separation of powers: Parliament is vested with the legislative power. More serious crimes and civil cases in both countries are then subject to a three-court hierarchy. No specific reporting restrictions typically apply at any stage preceding or during a civil trial. [7] Dissenting opinions constitute obiter dicta. Under the Constitution, recruitment to the judiciary takes place through a public competitive exam published by the Minister of Justice (Article 106). law, the current evolution of the law, developed by the Supreme Judicial Authority taking into account the dynamic requirements of the modern society. Enter to open, tab to navigate, enter to select, 24 hour Customer Support: +44 345 600 9355. While it does not mean that prosecutors control the police during the investigation, prosecutors rely on the police and interact with them constantly. Interrogate the parties or the witnesses on their answers to questions by the parties. 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 judiciary, which is independent, exercises judicial powers. [13] Nomofilachia, from greek and , literally protection of the law. In a critical report last year, the Council of Europe's top official for human rights,. There is no conventional jury system compared to some common law systems. All judicial decision had to be taken in accordance with the law in the code, which became the primary source of law. 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. 2023Thomson Reuters. In this case, the Supreme Court decided that the March 2013 acquittal was illogical because the judges had not fully considered all the evidence. The executive only possesses the emergency power to declare a state of emergency under the laws on civil protection (see. If the case is serious, in particular, they are effectively in charge of the investigation. Ogg, J. T. (2012). Italian criminal law is primarily an adversarial system (as opposed to the inquisitorial system). Codice di Procedura Civile, (Regio Decreto 28 ottobre 1940, n. 1443 in G.U. 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). 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. However, the constitution establishes the Constitutional Court, which examines and decides on the compatibility of laws with the Constitution (Article 134). Parkinson v St. James and Seacroft University Hospital NHS Trust [2001], All ER Rees v Darlington Memorial Hospital NHS Trust [2002], House of Lords For example, the Italian system is inquisitorial, while the United States system is adversarial. The sources of law are arranged hierarchically (see. In addiction, judicial decisions are not binding on the legislature, which so can pass new laws to overrule unpopular court decisions. Common Law Legal Definition. The court can only order the relief asked for by the parties, which can include: Specific performance of an act by the losing party. That a new right has arisen between the parties to the proceedings as a consequence of the verdict. Italian criminal trials: Lost in transition? The applicable sanctions on a conviction are: Various forms of detention including imprisonment or house detention. 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. JgJ*cH4w^P. 2023 Thomson Reuters. Grossi, S. (2010). The Italian legislature focuses on regulating the relevance and efficiency of evidence presented by the parties to the court rather than on imposing exclusionary rules of evidence before the court. This may be due to the fact that both legal systems are not solely adversarial or inquisitorial in nature. Since the very beginning of their development, their differences seemed to be so marked that nobody could even suggest the contrary. 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 . In particular, proposed amendments to the Constitution and other types of constitutional laws (see. Pasticcio giudiziario a Milano, i legali di Palazzo Marino perdono in tribunale contro il Comune - IL GIORNO, Elenco delegati aste giudiziarie, partono i corsi per l'iscrizione - NT+ Diritto, Falsi avvocati o vigilantes, le truffe pi diffuse in Toscana - Toscana Media News, Per il terzo anno consecutivo Paolini fra gli Studi Legali dellAnno secondo il Sole24Ore, Studio Paolini nuovamente selezionato fra gli Studi Legali dellAnno secondo il Sole 24 Ore, Voucher 3i per Startup Innovative Cosa finanzia e come richiederlo, Studio Paolini fra gli Studi Legali dellAnno secondo il Sole 24 Ore, Il marchio online e limportanza del domain name. The defendant (accused person) who, through their counsel, presents the defence version of the facts and evidence. 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 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. These procedures are only initiated if evidence gathering during the trial may be endangered. [4] From Latin maxim stare decisis et quieta non muovere, literally let the decision stand and dont unsettle what is. Decisions declaring the alleged death of a person or that a person is missing are always subject to publication in the. Honorary judges not professionals (see. 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. However, the United States law has now diverged from its English ancestor in both substance and procedure (Boundless, N.d). Se continui ad utilizzare questo sito noi assumiamo che tu ne sia felice. Another 46 million euros was paid out to . Another well-known specialist court is the High Court of Public Waters, which has jurisdiction over disputes relating to public water issues. Slow-moving, hugely bloated and sometimes alarmingly politicised, Italy's justice system needs fixing. 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 Civil law system, indeed, entirely relies on the legislative source of law. The Constituent Assembly, specifically appointed for the task, enacted the Constitution in 1947. They have jurisdiction over disputes in accordance with the legal provisions determining the appropriate venue for litigation. 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. The law-making procedure is divided into the following stages: Introduction of draft law (legislative initiative). Sexual abuse: these can be closed or partially closed. ;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 Griffith, R. and Tengnah, C., Law and Professional Issues in Nursing, London: Learning Matters, (2010) (2020). The right of asylum to people who are denied the effective exercise of their democratic freedoms in their own country. 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. At the end of the civil trial, the court can issue one of the following verdicts: That the claim cannot be granted for issues concerning the procedure or the merits of the claim (because the procedure set up by the claimant is not the correct one or the claimant has no legal standing). The Constitutional Court rules on issues concerning the Italian constitution and the legitimacy of laws (see. 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 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). It can also obtain additional evidence. They can also help to improve them. 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. Conviction, if the accused is proven to be guilty of the alleged offence beyond any reasonable doubt. 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 United States court system consists of fifty state court systems and a separate system of federal courts (Baum, 2013). (n.d.). 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. C 6/64 Costa v Enel, ECLI:EU:C:1964:66 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 particular, investigative information is confidential until the accused is entitled to have knowledge of them and, in any case, before the preliminary investigations have finished. Ordinary laws, law decrees and legislative decrees. The criminal court structure is similar to the civil system, as follows. 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. In this case, a second appeal procedure was necessary because of the decision of the Court of Cassation (Corte di Cassazione). In addition, the Italian constitution provides for the legality principle, which means that every case must be prosecuted: there is no judicial discretion. N:0b kb}z|4v_7?AJD Italian Justice System Compared To Us 10 min read. Moreover, when the facts are exactly the same and there is no possibility for distinguishing, an higher court can overrule the principle established in an earlier decision by a lower court or another court on the same level, even itself, because appears to be clearly wrong (when appears to do so is the wording of the Supreme Court in the Practice Statement of 1966) or so outdated that is no longer applicable for modern times. Italian civil procedural law is governed by the dispositive principle (. Instead, Italy has various tribunali which are located in several districts and several corti dappello which are located in different Italian provinces. 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. However, case law often influences a judge's decision on a disputed matter. At the end of the criminal trial, the court can pronounce a judgment of: declaration of extinguishment of the offence. 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. All rights reserved. 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. 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. It will only apply if the facts of the current case are consistent with those of the decision from which is extracted the precedent. Courts can also act as courts of second instance to hear appeals from the lower courts. [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). There are many similar avenues and techniques for identifying the facts and evidence when applying them to both legal systems. According to the principle of the burden of proof (see. You should not treat any information in this essay as being authoritative. endstream endobj startxref 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. Civil liability is based on the principle of the burden of proof. In specific cases, the judge can also order the disgorgement of goods or property. 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. hVmo9+KS2$$fI;w1E74pyc8#(A~/8xD$eF HCWVTn:7NeqBw?|c s%iJBF81O040VFyrr2jN~}\C\T M yPZNNW59y>5-t3(Caf&;;:%zjut$azsA39\%|+c5'Fp'( 28 ottobre 1940) -Constitutional Reform Act, 2005 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. 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. 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. National security secrets: these can be closed or partially closed. Specifically, the Constitution recognises, grants and protects: The dignity of the person as an individual and in social groups. 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' . 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. It provides the legal basis for the administration of public authorities. 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. 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. The court can request a more in-depth examination by the parties on a specific issue or suggest a new investigation. Across a sample of 13 Italian cities, starting a business can take about a week on average. In essence, this means that many decisions taken by the Supreme Court in fact straddle the border between points of law and facts. England 3. The result is, thus, a set of decisions that can be cited as Precedents, and defined as rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases. 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. 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. Retrieved from https://www.britannica.com/place/Italy/Justice. However, the law provides for special cases in which the judge has. It indeed prevails in case of conflicts with case law, and therefore is binding to judges, who have to adjudicate the cases in compliance with it. 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. There are actually two kinds of binding precedent: Vertical, which binds all the courts from the highest to the lowest (i.e. 65, regio decreto n. 12 del 1941. This resource is periodically updated for necessary changes due to legal, market, or practice developments. Wason v Walter (1868), All ER, Legislation: Worked as an honorary judge for at least six years without revocation. 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. 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. However, in the University of Torino, a 2:1 (3.5-4.49 on a 5 point scale), translates to 70% - 89% on the 100th and 77-98 on the 110th. Significant developments affecting this resource will be described below. criminal trials relating to corporate liability, bankruptcy, tax, banking and HSE crimes, as well as crimes against the public administration and market abuse; criminal proceedings against companies charged under Legislative Decree No. 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. Minor criminal offenses and small civil disputes are handled by special magistrate courts tasked with resolving such disputes. 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. 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 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. View examples of our professional work here. In these cases, the judges role is still much more passive than it would be under the inquisitorial system. Advises investment funds, both Italian and foreign companies, listed and unlisted, as part of their ordinary and extraordinary business activities. 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. Lecturer in Law, City, University of London. Contextual background for the comparison - 2. Italian law that conflicts with fundamental rights recognised by an international treaty is considered unconstitutional (Article 117, Constitution). 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].