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. In the U.S., these are cases for state courts almost exclusively. Carlson Laura, American Business Law For Civil Law Lawyers 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 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). Published: 9th Jun 2021. Legislative powers are vested in the Italian Parliament, in compliance with the Constitution, and under the constraints of EU legislation and international obligations. [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. 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. There is one Corte Costitutzionale which deals with making sure that any law provision complies with the Constitution and is met accordingly, similar to the Supreme Court of the United States (Grossi, 2010). The courts are located in various districts of Italy. Conviction, if the accused is proven to be guilty of the alleged offence beyond any reasonable doubt. 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. 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. Appoint the President of the Council of Ministers (also known as the Prime Minister) and, after consultation with the Prime Minister, the remaining government ministers. In the adversarial system in the United States, the judges play a comparably passive role in the proceedings (Grossi, 2010). 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. There were nearly 50,000 such claims compared to 3,500 in . hb```, edd```d`1#[sM{& It provides the legal basis for the administration of public authorities. 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. Common Law Legal Definition. The Italian civil judicial system is neither purely adversarial nor purely inquisitorial. Retrieved from https://www.lawyersitaly.eu/civil-law-in-italy, Mondials. Ogg, J. T. (2012). 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. 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. 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 . (2020). Therefore, the theoretical distinction between Stare Decisis and Constant Jurisprudence collapses in practice, giving as result two systems that, from opposite starting points, slowly converge each one taking advantage of some positive characteristics of the other realizing two contaminated systems that are better aware of the needs, the wants and the usages of the dynamic and globalized modern society. The following can bring proceedings before the Constitutional Court: A judicial authority, in the course of proceedings. The court can only order the relief asked for by the parties, which can include: Specific performance of an act by the losing party. 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. 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. 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. However, case law often influences a judge's decision on a disputed matter. Claimant who starts the proceeding, alleges the disputed facts, and presents the evidence in support of the claim. for the Italian justice system this is not, however, a victory . Causes of the 14th Amendment to the US Constitution. The Common law/Civil law dualism has always been pivotal for any scholar approaching the study of Comparative law. 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. In essence, this means that many decisions taken by the Supreme Court in fact straddle the border between points of law and facts. %PDF-1.5 % 2023 Thomson Reuters. According to the principle of the burden of proof (see. Specifically, the Constitution recognises, grants and protects: The dignity of the person as an individual and in social groups. 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. Authorise the introduction of bills by the government. Rigid: modification requires a complex process of reform unlike the passing of ordinary laws. London Street Tramways Co. Ldt v. London County Council, 1898 Therefore, Italian decisions have a subjective ambit of efficacy, being applicable only to their recipients and to nobody else, even if a similar dispute arises. England - 3. The judgment must contain a description of de facto and de jure grounds on which the decision is based. Unlike most continental countries,. Codice Civile, (Regio Decreto 16 marzo 1942, n. 262). There are actually two kinds of binding precedent: Vertical, which binds all the courts from the highest to the lowest (i.e. 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. However, the constitution establishes the Constitutional Court, which examines and decides on the compatibility of laws with the Constitution (Article 134). 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. When the Supreme Court of Cassation decides that a certain court has jurisdiction over a disputed matter. (N.d.). 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. In Italy, there is nothing similar to the Federal courts in the United States. This is five days faster than the EU average. 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. Congress is heavily involved throughout the process of appointing federal judges such as the selection of candidates and confirmation of candidates. Mason v State. Seen that, it is now clear how the main features of these two systems are strictly linked to their historical genesis. Free resources to assist you with your legal studies! This is because higher courts review the decisions of lower courts. However, the United States law has now diverged from its English ancestor in both substance and procedure (Boundless, N.d). 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. The Italian legal system is based on continental civil law. In addiction, judicial decisions are not binding on the legislature, which so can pass new laws to overrule unpopular court decisions. Judges and prosecutors belong to the same civil service sector, and their positions are interchangeable. The main function of a criminal trial is to present facts and evidence before a judge for the latter to determine the guilt or innocence of the accused person. 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. Retrieved from http://www.picchieassociati.it/ENG/more-details/the-italian-law-system. 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. Do you have a 2:1 degree or higher? Wason v Walter (1868), All ER, Legislation: The Civil law system, indeed, entirely relies on the legislative source of law. 65, regio decreto n. 12 del 1941. According to case law, for the standard of proof to be met, the court must find that it is reasonably likely that the alleged facts happened or that it is more likely than not compared to other facts alleged during the trial. The judiciary, which is independent, exercises judicial powers. 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. In these cases, the judges role is still much more passive than it would be under the inquisitorial system. 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. A panel of three judges hears more serious cases. And yet, in practice, a decision of the Italian Supreme Court of Cassazione will be followed by lower courts to the same extent of the english ones, due to the particular Nomofilactic[13] function entrusted to the Supreme Court itself: in addiction of being the Court of last instance in civil and penal matters, it has indeed the task of ensuring the observance and uniform interpretation of the law, in order to guarantee equality of treatment to everybody[14] and the unity of the legal system on the whole national territory[15]. I was denied admission because I didn't score 90% on the 100th or 100 on the 110th. Costituzione della Repubblica Italiana, [Gazzetta Ufficiale 27 dicembre 1947, n. 298]. The President of the Republic is the head of state elected by Parliament in a joint session of its members and represents national unity. The public prosecutor can also ask the judge to order the seizure of goods, property or documents related to the offence that, if still available to the suspect, could aggravate or extend the consequences of the offence or facilitate the commission of other crimes. Lecturer in Law, City, University of London. 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. Some prohibitions exist in pre-determined cases, such as: Use of witness testimony to prove the existence of a contract. Facts and evidence are gathered by both the defense and prosecutor and judged by a jury which is a group of regular citizens that are instructed by the judge to make a judgment based on the laws, evidence, and facts that the judge will then make a verdict. Contextual background for the comparison 2. In this case, the Supreme Court decided that the March 2013 acquittal was illogical because the judges had not fully considered all the evidence. This is why Knox and Sollecito went through a much more complex and lengthy judicial procedure than Guede. The Italian justice system is often considered one of the most efficient in the world. The courts are not only involved in the court proceedings but are also involved in the investigation which means that the prosecutor and the judge work together when finding out the facts of the case. 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 President is also the commander-in-chief of the Armed Forces and chairs the Superior Council of the Judiciary. Wickham, C. J., & Clark, M. (N.d.). [1] The codes are entire bodies of general statutes which deal with generalities and guide the legislator in creating new statutes (written law) outside the code, dealing with more specific matters following the codified principles. Relevance and necessity are two of the main criteria used to determine whether evidence should be excluded. As a consequence of what we have seen, the heritage of English history is now a system in which there is not a written constitution, and nonetheless there are unwritten constitutional principles to rely on[3], namely the principle of separation of powers, of supremacy of the Parliament and of the rule of law. A Comparative Analysis Between Italian Civil Proceedings and American Civil Proceedings Before Federal Courts. Courts can also act as courts of second instance to hear appeals from the lower courts. Copyright 2003 - 2023 - LawTeacher is a trading name of Business Bliss Consultants FZE, a company registered in United Arab Emirates. 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 Sexual abuse: these can be closed or partially closed. 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). However, it must always be stressed that the theoretical difference between Stare Decisis and Constant Jurisprudence, although in practice may lead to same results, remains significant: regarding cases with similar features,39 English lower Courts cant do anything but applying the binding precedent given by the Supreme Court, while Italian Courts can deliberately avoid it and decide the case for themselves. 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. In this case, a second appeal procedure was necessary because of the decision of the Court of Cassation (Corte di Cassazione). Differing degrees of criminal justice convergence in Italy and Australia. Avery, The English Legal System 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. On the other hand, in England lower courts are bound to the Supreme Court precedent and cannot overturn it even if they disagree; they have to apply it, with the only chance to express their disagreement in a dissenting opinion which will invite the party to appeal the decision and which will hopefully persuade the Supreme Court to overrule their judgement. south dakota wrestling rankings 2021, lori and julia divorce,

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