Ratify international treaties that Parliament has approved in advance. 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. A decision not conforming to case law would therefore reasonably be subject to review. As Italy is an EU member state, the main sources of international law derive from the EU. However, the constitution establishes the Constitutional Court, which examines and decides on the compatibility of laws with the Constitution (Article 134). Totals Citation Statistics for Government > Legal system Categories Top Stats 0 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.). 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. for the Italian justice system this is not, however, a victory . 1351 0 obj <> endobj The Supreme Court of Cassation and the Constitutional Court are located in Rome. 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. Claimant who starts the proceeding, alleges the disputed facts, and presents the evidence in support of the claim. [16] Art. Authorise the introduction of bills by the government. Reitz John C., HOW TO DO COMPARATIVE LAW, American Journal of Comparative Law Fall, 1998, Symposium: New Directions in Comparative Law, Comparative Law in the United States Today: Distinctiveness, Quality, and Tradition , Lloyd Duhaime. 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. 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. 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. 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. Sexual abuse: these can be closed or partially closed. England - 3. There are two main exceptions to the normal legislative procedure: In general, the judiciary has no power to control legislative and executive actions. In the United States, a defendant taking the stand must take an oath to tell the truth. HN0~x=(HzkRDQY!z7%Wuxv7k6Z 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. 231/2001, as well as with the organisation and management models provided by the same law. Precedents so are all those decisions that are binding for future judges called to adjudicate similar cases, and that therefore become law themselves: the case-law. 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. Grossi, S. (2010). %%EOF [10] Moreover, art. Retrieved from http://www.picchieassociati.it/ENG/more-details/the-italian-law-system. There are limited exceptions, for example cases involving: Underage defendants: these are not open to the public and the names of the defendants are not made public. Likewise the Appeal Court can exceptionally overcome its pronounces. Disclaimer: This essay has been written by a law student and not by our expert law writers. In the inquisitorial system which Italy uses, the judge plays a more active role in the proceeding. The Italian legal system is based on continental civil law. Has advised institutional investors on criminal law issues, in M&A transactions and in extraordinary transactions in general, including debt restructuring. Interrogate the parties or the witnesses on their answers to questions by the parties. Courts can also act as courts of second instance to hear appeals from the lower courts. Six children were among the dead after a Russian missile attack on Uman; Russian soldiers are likely being placed in improvised cells consisting of holes in the ground as punishment, the UK's MoD . The main source of law in Italy is the Italian Constitution followed by the constitutional laws which happen to be the same for the United States where the United States Constitution is the highest form of law (Lawyersitaly, 2020). r` The Constitution is: In written form. The Constitution states that the legislative function must be exercised jointly by the two Houses of Parliament (. hb```, edd```d`1#[sM{& The law-making procedure is divided into the following stages: Introduction of draft law (legislative initiative). 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. However, press must comply with the relevant legal provisions generally governing reporting and privacy rights. London Street Tramways Co. Ldt v. London County Council, 1898 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 . In Italy, the court of last resort is the Corte di Cassazione which resides in Rome (Grossi, 2010). Ogg, J. T. (2012). The judiciary of Italy is a system of courts that interpret and apply the law in the Italian Republic. They are entitled to introduce evidence, submit documents, and question witnesses both for and against their client. The Italian system instead, following the Roman tradition and the French Codification experience, is entirely based upon the written legislative source. Codice Civile, (Regio Decreto 16 marzo 1942, n. 262) Investigations are confidential and therefore any pre-trial inquiries are protected. Black and Latinx Americans make up 39% of the US population, but represent 59% of those in US prisons. For example, the enterprises courts were instituted by law decree in 2012 within every court (. 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. Info: 1539 words (6 pages) Essay 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. The Constitutional Court rules on issues concerning the Italian constitution and the legitimacy of laws (see. In particular, proposed amendments to the Constitution and other types of constitutional laws (see. Despite this, traditionally case law has always played a large role in law-making. A panel of three judges hears more serious cases. 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. 2023 Thomson Reuters. To promulgate the amendment, the majority of voters must approve it in the referendum. The Italian civil judicial system is neither purely adversarial nor purely inquisitorial. The following exceptions apply to the usual appointment procedure: The President of the Republic, the Parliament in joint session, and the highest-instance ordinary and administrative courts, appoint the judges of the Constitutional Court. Unlike the United States appointment process, the Italian executive branch does not have any part in selecting judges (Grossi, 2010). Been appointed as judges of administrative and accounting courts. 2023Thomson Reuters. Codice di Procedura Civile, (Regio Decreto 28 ottobre 1940, n. 1443 in G.U. It will only apply if the facts of the current case are consistent with those of the decision from which is extracted the precedent. hVmo9+KS2$$fI;w1E74pyc8#(A~/8xD$eF HCWVTn:7NeqBw?|c s%iJBF81O040VFyrr2jN~}\C\T M yPZNNW59y>5-t3(Caf&;;:%zjut$azsA39\%|+c5'Fp'( 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). However, at appellate levels the same judges sometimes sit on both types of courts. That a new right has arisen between the parties to the proceedings as a consequence of the verdict. 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. Elliott, C. and Quinn, F. (2011) English Legal System, London: Longman 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. Both the United States and Italy have an appellate system, they both have a court of appeals. The Common law/Civil law dualism has always been pivotal for any scholar approaching the study of Comparative law. 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. Wason v Walter (1868), All ER, Legislation: 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. 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 (. Specifically, the Constitution recognises, grants and protects: The dignity of the person as an individual and in social groups. Comparison Conclusions Bibliography. 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. Another 46 million euros was paid out to . The following can bring proceedings before the Constitutional Court: A judicial authority, in the course of proceedings. This is a very important point: the Supreme Court in Italy does not review the facts of a case, so if the judges are unhappy with the previous decision, the case must be sent back to the Court of Appeal to be re-examined. Griffith, R. and Tengnah, C., Law and Professional Issues in Nursing, London: Learning Matters, (2010) The burden of proof falls on the public prosecutor. Beetween Stare Decisis and Constant Jurisprudence. The Constitution is rigid (as opposed to a flexible constitution), since modifying it involves a more complex process of reform than that needed for amending ordinary laws. *You can also browse our support articles here >, Boundless. Blacks Law Dictionary (5th ed. 384 Codice di Procedura Civile, (Regio Decreto 28 ottobre 1940, n. 1443 in G.U. However, since Italy is a member of the European Union, which makes the European Union legislation the next source of law (Lawyersitaly, 2020). 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. byMarco Gubitosi, Niccol Bertolini Clerici, Andrea Tortora della Corte, Marianna Consiglio, Legance Avvocati Associati. 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). There is no conventional jury system compared to some common law systems. Legislative powers are vested in the Italian Parliament, in compliance with the Constitution, and under the constraints of EU legislation and international obligations. 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. 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. [5] The English Courts Hierarchy: Supreme Court Court of Appeal High Court and Crown Court subordinated courts such as Magistrates and County Courts. 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. To export a reference to this article please select a referencing stye below: This selection of law essays, problem questions and case summaries is relevant to students within the US and for law students from outside the country wishing to learn more about the laws and legislature of the USA. Italian law that conflicts with fundamental rights recognised by an international treaty is considered unconstitutional (Article 117, Constitution). 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 constitutional system provides for the following separation of powers: Parliament is vested with the legislative power. 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. 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. No specific reporting restrictions typically apply at any stage preceding or during a civil trial. A public prosecutor who conducts the related investigations to assess the potential liability of the suspect. During the preliminary investigations, the public prosecutor and the defence lawyer can request to gather necessary and essential evidence by an evidentiary hearing (. This is five days faster than the EU average. The courts of first instance and appeal are located in various districts of Italy. Se continui ad utilizzare questo sito noi assumiamo che tu ne sia felice. the scoreboard cannot be seen as a definitive comparison of EU judicial systems. Civil hearings are not generally open to the public and the case file is confidential. 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. Decisions declaring the alleged death of a person or that a person is missing are always subject to publication in the. 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. By imprisonment not exceeding four years. C 6/64 Costa v Enel, ECLI:EU:C:1964:66 The parties are responsible for introducing evidence about the guilt or innocence of an accused person. Causes of the 14th Amendment to the US Constitution. 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. The standard of proof required is "beyond any reasonable doubt." . (N.d.). Instead, Italy has various tribunali which are located in several districts and several corti dappello which are located in different Italian provinces. 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. Other special courts provided by the Constitution include the: Administrative appeal court, which is the Council of State (. However, the law provides for special cases in which the judge has. Costituzione della Repubblica Italiana, [Gazzetta Ufficiale 27 dicembre 1947, n. 298]. 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. The Italian authorities have taken a number of measures to address the inefficiencies and bottlenecks in the functioning of their justice system. Rigid: modification requires a complex process of reform unlike the passing of ordinary laws. This is the result of a specific constitutional choice of maintaining the principle of separation of powers very rigid: the Judicial body must not interfere with the legislative power of the Parliament, whose members are directly elected by the people and which therefore is the only one which has the democratic legitimacy to create law[10]. Their independence is protected because prosecutors are part of the judiciary, which in Italy is fully separated from the other constitutional powers. (2020). The judicial system is unified, with every court being part of the national network. 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. In Italy there is a constitutional right to appeal on points of law to the Court of Cassation, which can agree with the Court of Appeals decision or can disagree with its interpretation of the law. Federal courts have limited jurisdiction where they can only hear cases when a federal question is raised (Baum, 2013). While it does not mean that prosecutors control the police during the investigation, prosecutors rely on the police and interact with them constantly. National security secrets: these can be closed or partially closed. In contrast, civil law decisions usually do not consist of explanatory opinions. There is an actual real risk the suspect will flight or danger that the suspect/ accused will commit a serious crime. Before this occurrence, in fact, each part of England had different local rules, an unpleasant situation which rendered very complex the relations between traders due to the halo of uncertainty surrounding the law which was to be applied. As a rule, the burden of proof falls on the party making the allegation of fact. 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). Worked as an honorary judge for at least six years without revocation. A jury is present only in the court of assizes (. 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. Codice Civile, (Regio Decreto 16 marzo 1942, n. 262). Books: Decide on preliminary questions of ritual or merit raised by the parties or noted. There are rare exceptions: for example, a final discussion of the case is always open to the public. 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' . 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 United States laws were derived from the common law system of English which was in place at the time of the Revolutionary war at both the federal and state levels. Approval by the House before which it is first presented. [7] Dissenting opinions constitute obiter dicta. Honorary judges not professionals (see. For example, they can sanction negligent conduct and delaying tactics. [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. 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. "Having been found innocent before, I expected better from the Italian justice system." . As the Constitutional Court has stated, this principle is intended to guarantee equality before the law within the penal process. The court, if summoned, cannot declare its incompetency. The court can only order the relief asked for by the parties, which can include: Specific performance of an act by the losing party. Professor Richards Edward, The Importance of Precedent, LSU Law Center. 2005, Court of Arkansas The judgment must contain a description of de facto and de jure grounds on which the decision is based. Retrieved from https://courses.lumenlearning.com/boundless-politicalscience/chapter/origins-of-american-law/. computer manufacturer whose litigation experience had hitherto been confined mostly to the Italian legal system. 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. More serious crimes and civil cases in both countries are then subject to a three-court hierarchy. City, University of London provides funding as a founding partner of The Conversation UK. It provides the legal basis for the administration of public authorities. Organisations and bodies empowered by a constitutional law (for example, the National Council for Economics and Labour (CNEL)). The Civil law system, indeed, entirely relies on the legislative source of law. [4] From Latin maxim stare decisis et quieta non muovere, literally let the decision stand and dont unsettle what is. The United States court system consists of fifty state court systems and a separate system of federal courts (Baum, 2013). 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. (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 The Supreme Court of Cassation and the Constitutional Court are both based in Rome. Italian criminal law is primarily an adversarial system (as opposed to the inquisitorial system). 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). [9] Civil code, Penal Code, Administrative code etc. They can also help to improve them. A law degree and a lawyer's licence are essential to be appointed directly as an honorary judge in a lower court (. Contextual background for the comparison 2. 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. 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. Seen that, it is now clear how the main features of these two systems are strictly linked to their historical genesis. 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. Italian Justice System Compared To Us 10 min read. 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 criminal court structure is similar to the civil system, as follows. 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 judge plays a more passive role. Free resources to assist you with your legal studies! The Constitution adopts a model of equal bicameralism. It provides the legal basis for the administration of public authorities. 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.). Ordinary laws, law decrees and legislative decrees. The judges in Italy of first instance courts are appointed by public examination which requires a law degree. It has a written Constitution containing all the fundamental principles to comply with, several codes gathering general rules for each branch of law[9] and a set of detailed statutes specifying the abstract rules of the codes. 1376 0 obj <>stream 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).

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