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. 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. [13] Nomofilachia, from greek and , literally protection of the law. (N.d.). How to convert Italian grades to American and U.K system? 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. italian justice system compared to uk - opportunityzonehub.org In the adversarial system in the United States, the judges play a comparably passive role in the proceedings (Grossi, 2010). Common Law Legal Definition. Amanda Knox and Italy's 'Carnivalesque' Justice System The United . Beetween Stare Decisis and Constant Jurisprudence. England - 3. The decision for the prior case will remain, but from that moment on it is replaced by the fresh issued precedent. The Italian justice system is often considered one of the most efficient in the world. Italian criminal procedure is a difficult concept to grasp for lawyers and citizens in other countries, who are used to adversarial systems. Honorary judges not professionals (see. Federal courts have limited jurisdiction where they can only hear cases when a federal question is raised (Baum, 2013). hVmo9+KS2$$fI;w1E74pyc8#(A~/8xD$eF HCWVTn:7NeqBw?|c s%iJBF81O040VFyrr2jN~}\C\T M yPZNNW59y>5-t3(Caf&;;:%zjut$azsA39\%|+c5'Fp'( Claimant who starts the proceeding, alleges the disputed facts, and presents the evidence in support of the claim. A Comparative Analysis Between Italian Civil Proceedings and American Civil Proceedings Before Federal Courts. A panel of three judges hears more serious cases. 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. Since the very beginning of their development, their differences seemed to be so marked that nobody could even suggest the contrary. Comparing the Italian and US Legal Systems - LawTeacher.net 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. Been appointed as judges of administrative and accounting courts. McFarlane v Tayside Health Board [2000], House of Lords 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. The United States court system consists of fifty state court systems and a separate system of federal courts (Baum, 2013). They have jurisdiction over disputes in accordance with the legal provisions determining the appropriate venue for litigation. Another well-known specialist court is the High Court of Public Waters, which has jurisdiction over disputes relating to public water issues. Amanda Knox: European court orders Italy to pay damages Occupied certain managerial roles in the public administration. 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. 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. Boundless Political Science. Civil hearings are not generally open to the public and the case file is confidential. Promotion to the rank of appeal court judge or Supreme Court of Cassation judge is based on order of seniority. C 6/64 Costa v Enel, ECLI:EU:C:1964:66 endstream endobj 1355 0 obj <>stream 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. r` 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. Instead, Italy has various tribunali which are located in several districts and several corti dappello which are located in different Italian provinces. There is an actual real risk the suspect will flight or danger that the suspect/ accused will commit a serious crime. The Italian law is based on Roman law in regards to civil law and the codes of the kingdom of Sardinia, one of Italy's 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.). [10] Moreover, art. The right of asylum to people who are denied the effective exercise of their democratic freedoms in their own country. Ratify international treaties that Parliament has approved in advance. 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. In these cases, the publication is ordered by the court with the decision itself. This is five days faster than the EU average. In essence, this means that many decisions taken by the Supreme Court in fact straddle the border between points of law and facts. The judges in Italy of first instance courts are appointed by public examination which requires a law degree. Italian civil procedural law is governed by the dispositive principle (. But under Italy's justice system, the supreme court is unlikely to hear the case until April or May 2015. In specific cases, the judge can also order the disgorgement of goods or property. law, the current evolution of the law, developed by the Supreme Judicial Authority taking into account the dynamic requirements of the modern society. The Italian equivalent of 2:1 is actually 100/110 - 104/110 according to Ca' Foscari University's website. 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. Differences and Similarities: Policing in the US and the UK 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. Filing of correspondence exchange between legal counsels regarding a possible agreement between parties. [15] Art. 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. The Constitution adopts a model of equal bicameralism. And even if the direction of the investigation is bureaucratic and reactive, prosecutors are still in a position to take very important decisions. 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. During the preliminary investigations, the public prosecutor and the defence lawyer can request to gather necessary and essential evidence by an evidentiary hearing (. 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. Wickham, C. J., & Clark, M. (N.d.). The Supreme Court of Cassation and the Constitutional Court are located in Rome. No referendum is required to amend laws approved on the second round of voting by a two-thirds majority of the members of each parliamentary house (super majority). 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. The role of the precedent in the English and Italian judicial system: Between Stare Decisis and Constant Jurisprudence, SUMMARY: 1. 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. Congress is heavily involved throughout the process of appointing federal judges such as the selection of candidates and confirmation of candidates. 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. 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. Ordinary first instance judges preside over the courts (. 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. The examining committee is appointed by the Superior Council of the Judiciary. 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. [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. . 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). Issue the decision based on the statements made by the parties. PDF Judicial System Reform in Italy A Key to Growth 1 Italian Constitution). The General Court, which can be summoned by individuals, companies, and national governments to annul decisions taken by the institutions of the EU. 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. The Common law/Civil law dualism has always been pivotal for any scholar approaching the study of Comparative law. duhaime.org [11] Art 1 disp. I will support MacKinnon's ideas on gender equality, briefly summarize Crenshaw's discussion of intersectionality, and provide an analysis of the court's approach to gender in at least three cases. Looking for a flexible role? Prosecutors would first have to notify Ms Knox of her sentence and issue a warrant for . In Italy, the court of last resort is the Corte di Cassazione which resides in Rome (Grossi, 2010). Major Differences Between the US and UK Legal Systems 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 - JSTOR 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. Attended a stage or training course in court. Utilizziamo i cookie per essere sicuri che tu possa avere la migliore esperienza sul nostro sito. Italy 4. 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 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. Unlike most continental countries,. Examination of certain persons as witnesses. 4 It can also obtain additional evidence. 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. City, University of London provides funding as a founding partner of The Conversation UK. 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. Worked as an honorary judge for at least six years without revocation. 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. Criminal justice system America vs. Italy by Alice Conti - Prezi Under the Constitution, recruitment to the judiciary takes place through a public competitive exam published by the Minister of Justice (Article 106). Worked as a regular university law professor. However, the law provides for special cases in which the judge has. Reforming Italy's creaking justice system is one of the toughest tasks facing Prime Minister Mario Draghi's government - and one of the conditions the EU attached to the granting of the . The court can only order the relief asked for by the parties, which can include: Specific performance of an act by the losing party. In common law jurisdictions, almost every case that brings a bona fide disagreement on the law is dealt with in a written opinion. 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. Federal: The federal criminal justice system handles crimes committed on federal property or in more than one state. Ukraine war latest: Boy, 6, cries as sister killed in Russian attack 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. "Having been found innocent before, I expected better from the Italian justice system." . Articles 24, 25, 101 to 104 and 111 of the Constitution, in particular, ensure the autonomy and independence of the judiciary. Legal Systems in Italy: Overview | Practical Law The Civil law system, indeed, entirely relies on the legislative source of law. 1376 0 obj <>stream 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' . Justice system > Punishment > Capital punishment (last execution year) : Year of last use. 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. In particular, proposed amendments to the Constitution and other types of constitutional laws (see. N:0b kb}z|4v_7?AJD Codice di Procedura Civile, (Regio Decreto 28 ottobre 1940, n. 1443 in G.U. Free resources to assist you with your legal studies! However, in specific cases and only if necessary to reach a decision, the judge can introduce further evidence at the trial. 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. In these cases, the judges role is still much more passive than it would be under the inquisitorial system. The criminal court system has A decision not conforming to case law would therefore reasonably be subject to review. %PDF-1.5 % However, since Italy is a member of the European Union, which makes the European Union legislation the next source of law (Lawyersitaly, 2020). Lecturer in Law, City, University of London. However, case law often influences a judge's decision on a disputed matter. Info: 1539 words (6 pages) Essay Decisions can be made public, for example through the publication on websites and newspapers when such publication can contribute to the compensation of the damages suffered by the winning party. The people, through a proposal made by at least 50,000 voters (Article 71, Constitution). The Italian judicial system consists of a series of courts and a body of judges who are civil servants. 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. 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. 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]. The main role of the judiciary in both civil and criminal trials is to: Govern the hearings and the proceedings, order the parties to file further written statements and set hearings. Likewise the Appeal Court can exceptionally overcome its pronounces. Totals Citation Statistics for Government > Legal system Categories Top Stats 0 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 constitutional system provides for the following separation of powers: Parliament is vested with the legislative power. In many ways, it is very different from the system in the United States. 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. 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. For example, the Italian system is inquisitorial, while the United States system is adversarial. 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. Minor criminal offenses and small civil disputes are handled by special magistrate courts tasked with resolving such disputes. For example, they can sanction negligent conduct and delaying tactics. Slow-moving, hugely bloated and sometimes alarmingly politicised, Italy's justice system needs fixing. In this system, it is statutory law that assumes a secondary role, very often just reflecting the rules of law enunciated in judicial decisions (i.e., they are the statutory embodiment of rules developed through the judicial decision-making process). State courts can hear almost any kind of case including federal issues as well as constitutional ones, but they are subject to the oversight of the United States (Baum, 2013). The most significant rights and powers are attributed to the parties in a case (a public prosecutor on one side and a defence lawyer on the other). The most relevant sources of international law are: Ordinary judges and honorary judges, who form the judiciary, administer judicial power. In the inquisitorial system which Italy uses, the judge plays a more active role in the proceeding. Italian Justice System Compared To Us - malcolmmackillop The selection of judges, therefore, makes the judiciary an independent body where judges are chosen by their merit through an exam. Therefore this constant jurisprudence will define what is called the living 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. 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). 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). hbbd``b`{AcH0l n $XA,/l4HqHIH,HQ@bv&Fk@#nU + They will obviously be strongly persuasive, but the new case will be decided only referring to the law, and nothing prevents judges to reach a different solution. Causes of the 14th Amendment to the US Constitution. American judges are lawyers who have been appointed to the bench and many of them still consider themselves to be lawyers unlike the judges in Italy. Starting a business in Italy can take less time but costs more than the EU average. 4I^!Ai-u\xC`@;fN+kXi/Aqe [(K`]7BExDlkp9ERMe;tm'[N- wILUaT1Jc'L;> H+:$\ )HMl=U0(%p$2YqBr mbEx2f$>xl!I(4 Of\Po:}N Tj$0WfEeN F There were nearly 50,000 such claims compared to 3,500 in 2003. PDF Resource Guide on Strengthening Judicial Integrity and Capacity These provisions are considered immutable. 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. There are actually two kinds of binding precedent: Vertical, which binds all the courts from the highest to the lowest (i.e. 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. As Italy is an EU member state, the main sources of international law derive from the EU. This may be due to the fact that both legal systems are not solely adversarial or inquisitorial in nature. Retrieved from http://www.picchieassociati.it/ENG/more-details/the-italian-law-system. 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. [4] From Latin maxim stare decisis et quieta non muovere, literally let the decision stand and dont unsettle what is. 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. Codice Civile, (Regio Decreto 16 marzo 1942, n. 262). 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. However, not all cases are tried through a jury trial. [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. What differs between civil law systems, is that individual case decisions do not have a binding effect but are only used for advisory purposes (Baum, 2013). 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. 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 parties are responsible for introducing evidence about the guilt or innocence of an accused person. Retrieved from https://courses.lumenlearning.com/boundless-politicalscience/chapter/origins-of-american-law/. 'Reorganizing the System Is the Key': A Bonelli Partner Explains Italy There is no conventional jury system compared to some common law systems. All rights reserved. Any of the following can request a referendum within three months of the amendment's publication: One-fifth of the members of a parliamentary house. Judges are bound by the law, not by the previous decisions of higher courts. The President is also the commander-in-chief of the Armed Forces and chairs the Superior Council of the Judiciary. For example, the enterprises courts were instituted by law decree in 2012 within every court (. It provides the legal basis for the administration of public authorities. Therefore, while codified law is the cornerstone of the system, judges are reduced to a subordinated role of applying the law already stated in the codes, just choosing time to time the rule that best fits the case at stake. In the United States we grant a trial by a jury of one's peers for felony defendants if they request it. This was the beginning of the Civil law, and the first step of a process of codification that will continue after the French Revolution with the Code Napolon, the source of inspiration of the modern codes. Conviction, if the accused is proven to be guilty of the alleged offence beyond any reasonable doubt. Send messages to Parliament and dissolve one or both of its houses. By imprisonment not exceeding four years. Significant developments affecting this resource will be described below. The standard of proof required is "beyond any reasonable doubt." 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. Justice. Italian law that conflicts with fundamental rights recognised by an international treaty is considered unconstitutional (Article 117, Constitution).
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