Been appointed as judges of administrative and accounting courts. Civil liability is based on the principle of the burden of proof. Retrieved from https://www.britannica.com/place/Italy/Justice. 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. 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. Sexual abuse: these can be closed or partially closed. You should not treat any information in this essay as being authoritative. The most relevant sources of international law are: Ordinary judges and honorary judges, who form the judiciary, administer judicial power. 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. This is completely coherent with the deductive method of reasoning typical of civil system: proceeding from setting a system of general and abstract rules to a specific application of them. 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. 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). (N.d.). If the case is serious, in particular, they are effectively in charge of the investigation. 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. After this, the public prosecutor can, if necessary for investigative reasons, order that certain documents are kept confidential and/or not published. Blacks Law Dictionary (5th ed. The standard of proof required is "beyond any reasonable doubt." 2023Thomson Reuters. 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. (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 In a critical report last year, the Council of Europe's top official for human rights,. As aforementioned, Common and Civil law may be referred as the antipodes of the legal system conception. 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 courts of first instance and appeal are located in various districts of Italy. The following can bring proceedings before the Constitutional Court: A judicial authority, in the course of proceedings. But under Italy's justice system, the supreme court is unlikely to hear the case until April or May 2015. The General Court, which can be summoned by individuals, companies, and national governments to annul decisions taken by the institutions of the EU. Advises investment funds, both Italian and foreign companies, listed and unlisted, as part of their ordinary and extraordinary business activities. The role of the precedent in the English and Italian judicial system. Approval by the House before which it is first presented. However, case law often influences a judge's decision on a disputed matter. Contextual background for the comparison - 2. 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). PDF NAO Briefing: Comparing International Criminal Justice Systems - March 2012 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. 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. Courts can also act as courts of second instance to hear appeals from the lower courts. 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 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. Promulgate laws, decrees, and regulations. 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. Minor criminal offenses and small civil disputes are handled by special magistrate courts tasked with resolving such disputes. Transmission of the text to the other House for approval in the same form or with amendments. The Constitution states that the legislative function must be exercised jointly by the two Houses of Parliament (. By imprisonment not exceeding four years. 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. All rights reserved. [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. Costituzione della Repubblica Italiana, [Gazzetta Ufficiale 27 dicembre 1947, n. 298]. As a rule, the burden of proof falls on the party making the allegation of fact. A person who wants to obtain protection from a judge must prove the basis of their reasons. Retrieved from https://courses.lumenlearning.com/boundless-politicalscience/chapter/origins-of-american-law/. 2023 Thomson Reuters. 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. 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. Has advised institutional investors on criminal law issues, in M&A transactions and in extraordinary transactions in general, including debt restructuring. Legal Systems in Italy: Overview | Practical Law The Civil law system, indeed, entirely relies on the legislative source of law. 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. The Italian equivalent of 2:1 is actually 100/110 - 104/110 according to Ca' Foscari University's website. The role of the precedent in the English and Italian judicial system 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. Summing up, English judgements create law. This is because higher courts review the decisions of lower courts. It can also obtain additional evidence. However, since Italy is a member of the European Union, which makes the European Union legislation the next source of law (Lawyersitaly, 2020). Specifically, the Constitution recognises, grants and protects: The dignity of the person as an individual and in social groups. duhaime.org Across a sample of 13 Italian cities, starting a business can take about a week on average. 4 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. In Italy no such oath exists. The government, which is the institutional body vested with executive powers, is supervised by Parliament. The Constituent Assembly, specifically appointed for the task, enacted the Constitution in 1947. 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. 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]. 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. Likewise the Appeal Court can exceptionally overcome its pronounces. 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. Codice Civile, (Regio Decreto 16 marzo 1942, n. 262). In Italy, the court of last resort is the Corte di Cassazione which resides in Rome (Grossi, 2010). The judiciary, which is independent, exercises judicial powers. 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). Comparing the Italian and US Legal Systems - LawTeacher.net Justice. Black and Latinx Americans make up 39% of the US population, but represent 59% of those in US prisons. The Italian civil judicial system is based on a two-tier justice system that allows for the reconsideration of a case that had been decided (Mondials, N.d.). Italian criminal procedure is a difficult concept to grasp for lawyers and citizens in other countries, who are used to adversarial systems. hVmo9+KS2$$fI;w1E74pyc8#(A~/8xD$eF HCWVTn:7NeqBw?|c s%iJBF81O040VFyrr2jN~}\C\T M yPZNNW59y>5-t3(Caf&;;:%zjut$azsA39\%|+c5'Fp'( In the United States we grant a trial by a jury of one's peers for felony defendants if they request it. byMarco Gubitosi, Niccol Bertolini Clerici, Andrea Tortora della Corte, Marianna Consiglio, Legance Avvocati Associati. Articles 24, 25, 101 to 104 and 111 of the Constitution, in particular, ensure the autonomy and independence of the judiciary. The Superior Council of the Judiciary can appoint university law professors and lawyers of at least 15 years' standing who are enrolled in a specific register as Counsellors of the Supreme Court of Cassation. 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. This is a very important legal power. The executive only possesses the emergency power to declare a state of emergency under the laws on civil protection (see. Congress is heavily involved throughout the process of appointing federal judges such as the selection of candidates and confirmation of candidates. Claimant who starts the proceeding, alleges the disputed facts, and presents the evidence in support of the claim. [10] Moreover, art. As the Constitutional Court has stated, this principle is intended to guarantee equality before the law within the penal process. For example, the Italian system is inquisitorial, while the United States system is adversarial. CISG Scope of Application Exclusions and Effects. They have jurisdiction over the disputes in accordance with territorial jurisdiction rules. The judge plays a more passive role. 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 Italian Civil Code then proceeds to state that the ordinary law, the legislative decrees, and the regional legislation are the next main sources of law for Italy (Lawyersitaly, 2020). Italy 4. [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). 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. City, University of London provides funding as a founding partner of The Conversation UK. However, the constitution establishes the Constitutional Court, which examines and decides on the compatibility of laws with the Constitution (Article 134). It provides the legal basis for the administration of public authorities. The parties are responsible for gathering and filing evidence with the court. Significant developments affecting this resource will be described below. 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). Consequently, a lower court may not rule against the higher, even if it feels that the precedent is unjust; it may only express the hope that a higher court will reform the rule in question, issuing an only-persuasive dissenting opinion which might encourage the claimant to appeal the forced decision, in order to let the higher court overturn it, setting a new precedent of higher authority. 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 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). 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. The criminal court structure is similar to the civil system, as follows. However, in specific cases and only if necessary to reach a decision, the judge can introduce further evidence at the trial. A decision not conforming to case law would therefore reasonably be subject to review. There is no jury in Italian civil proceedings. Take a look at some weird laws from around the world! (n.d.). Italian criminal law is primarily an adversarial system (as opposed to the inquisitorial system). In essence, this means that many decisions taken by the Supreme Court in fact straddle the border between points of law and facts. The six things wrong with Italy - and how to solve them Legislative powers are vested in the Italian Parliament, in compliance with the Constitution, and under the constraints of EU legislation and international obligations. Differing degrees of criminal justice convergence in Italy and Australia. Composed of 139 Articles. Filing of correspondence exchange between legal counsels regarding a possible agreement between parties. 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. 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. During the preliminary investigations, the public prosecutor and the defence lawyer can request to gather necessary and essential evidence by an evidentiary hearing (. Enter to open, tab to navigate, enter to select, 24 hour Customer Support: +44 345 600 9355. 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. Beetween Stare Decisis and Constant Jurisprudence. In the adversarial system in the United States, the judges play a comparably passive role in the proceedings (Grossi, 2010). Differences and Similarities: Policing in the US and the UK Decisions declaring the alleged death of a person or that a person is missing are always subject to publication in the. 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). It will only apply if the facts of the current case are consistent with those of the decision from which is extracted the precedent. 28 ottobre 1940). In 1962, in accordance with the 1956 reform, a national social service was set up. Instead, Italy has various tribunali which are located in several districts and several corti dappello which are located in different Italian provinces. 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. [11] Art 1 disp. Civil Law in Italy. endstream endobj startxref 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 (. Defendant who raises any objections and defences to the claimant's claim, and can file counterclaims and evidence. Carlson Laura, American Business Law For Civil Law Lawyers Its core principles are codified into a referable system which considers these codes as the primary source of law. (2020). 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 differences between them are of course several and significant, so that one might think that they should be referred as the antipodes of the legal system conception, with no chance of commixture from one to the other. The role of the precedent in the English and Italian judicial system: Between Stare Decisis and Constant Jurisprudence SUMMARY: 1. 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. England - 3. Occupied certain managerial roles in the public administration. 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. The President of the Republic is the head of state elected by Parliament in a joint session of its members and represents national unity.
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