2005, Court of Arkansas 1351 0 obj <> endobj The examining committee is appointed by the Superior Council of the Judiciary. Practice Statement, 1966 Composed of 139 Articles. A panel of three judges hears more serious cases. 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. Summing up, English judgements create law. The Supreme Court of Cassation and the Constitutional Court are both based in Rome. 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. 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. (n.d.). 1368 0 obj <>/Filter/FlateDecode/ID[<2BC44B71D5E8BD4AA52CEAD376FA45ED>]/Index[1351 26]/Info 1350 0 R/Length 87/Prev 901430/Root 1352 0 R/Size 1377/Type/XRef/W[1 2 1]>>stream Jointly by fine and imprisonment of up to four years. 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. A law degree and a lawyer's licence are essential to be appointed directly as an honorary judge in a lower court (. In addition, the Italian constitution provides for the legality principle, which means that every case must be prosecuted: there is no judicial discretion. Federal courts have limited jurisdiction where they can only hear cases when a federal question is raised (Baum, 2013). Differing degrees of criminal justice convergence in Italy and Australia. Looking for a flexible role? . The courts of first instance and appeal are located in various districts of Italy. It can also obtain additional evidence. Do you have a 2:1 degree or higher? The judge plays a more passive role. However, it must be stressed that not the whole decision is binding, but only the ratio decidendi, which is the abstract principle of law which has been applied to the facts at issue and which have led to the decision, becoming the legal rule deriving from it. In a critical report last year, the Council of Europe's top official for human rights,. 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. CISG Scope of Application Exclusions and Effects. The judges are represented by the Consiglio Superiore della Magistratura which is a body chaired by the President of the Republic and includes the public prosecutor of Corte di Cassazione, and university law professors and attorneys with fifteen years of experience (Grossi, 2010). Occupied certain managerial roles in the public administration. Lecturer in Law, City, University of London. In this case, a second appeal procedure was necessary because of the decision of the Court of Cassation (Corte di Cassazione). 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. 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. Elliott, C. and Quinn, F. (2011) English Legal System, London: Longman 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. 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. Retrieved from https://www.lawyersitaly.eu/civil-law-in-italy, Mondials. Wickham, C. J., & Clark, M. (N.d.). The applicable sanctions on a conviction are: Various forms of detention including imprisonment or house detention. [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. These provisions are considered immutable. The Italian parliament on Thursday approved reform of the criminal justice system, and has also given the initial green light for changes to the civil side. There is no conventional jury system compared to some common law systems. For example, they can sanction negligent conduct and delaying tactics. A public prosecutor who conducts the related investigations to assess the potential liability of the suspect. 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. Ordinary first instance judges preside over the courts (. 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. Worked as an honorary judge for at least six years without revocation. HN0~x=(HzkRDQY!z7%Wuxv7k6Z 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. Retrieved from http://www.picchieassociati.it/ENG/more-details/the-italian-law-system. 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. Justice system > Punishment > Capital punishment (last execution year) : Year of last use. As Italy is an EU member state, the main sources of international law derive from the EU. [4] From Latin maxim stare decisis et quieta non muovere, literally let the decision stand and dont unsettle what is. Causes of the 14th Amendment to the US Constitution. 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). [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 defendant (accused person) who, through their counsel, presents the defence version of the facts and evidence. Unless this standard is met, the defendant must be acquitted. Ogg, J. T. (2012). 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. 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 . [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 Italian judicial system consists of a series of courts and a body of judges who are civil servants. 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. 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. for the Italian justice system this is not, however, a victory . The role of the precedent in the English and Italian judicial system: Between Stare Decisis and Constant Jurisprudence, SUMMARY: 1. The Constituent Assembly, specifically appointed for the task, enacted the Constitution in 1947. Civil Law in Italy. These are certainly important problems but they cannot be addressed without a clear understanding of how the Italian criminal justice system is set up to function. However, 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. In contrast, civil law decisions usually do not consist of explanatory opinions. JgJ*cH4w^P. Their independence is protected because prosecutors are part of the judiciary, which in Italy is fully separated from the other constitutional powers. Been appointed as judges of administrative and accounting courts. The President is also the commander-in-chief of the Armed Forces and chairs the Superior Council of the Judiciary. Wason v Walter (1868), All ER, Legislation: All rights reserved. Published: 9th Jun 2021. Thecriminal system is broadly an adversarial system and is governed by the presumption of innocence. A jury is present only in the court of assizes (. 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. Retrieved from https://courses.lumenlearning.com/boundless-politicalscience/chapter/origins-of-american-law/. The law-making procedure is divided into the following stages: Introduction of draft law (legislative initiative). Has advised institutional investors on criminal law issues, in M&A transactions and in extraordinary transactions in general, including debt restructuring. The Constitution adopts a model of equal bicameralism. If a party believes that law is unconstitutional or breaches any part of the Constitution, the party can file a motion before Corte Costitutzionale through the judge of the pending proceeding where the issue is raised (Grossi, 2010). 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 Italian legal system is based on rules set in place by the Italian Civil Code which define the powers in the state and the main Italian rules of law. Totals Citation Statistics for Government > Legal system Categories Top Stats 0 Books: Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not reflect the views of LawTeacher.net. In criminal trials, legal counsel represent, assist, and defend their clients. 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 As aforementioned, Common and Civil law may be referred as the antipodes of the legal system conception. A Comparative Analysis Between Italian Civil Proceedings and American Civil Proceedings Before Federal Courts. The Supreme Court of Cassation and the Constitutional Court are located in Rome. The sources of law are arranged hierarchically (see. In addition, the Constitution recognises and protects: Basic and fundamental civil rights, for example: freedom and privacy of correspondence; and. Italian law establishes independent administrative authorities to deal with specific legal areas. Boundless Political Science. More serious crimes and civil cases in both countries are then subject to a three-court hierarchy. 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]. The burden of proof falls on the public prosecutor. If you are the original writer of this essay and no longer wish to have your work published on LawTeacher.net then please: Our academic writing and marking services can help you! The process is not automatic. 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). In the United States, a defendant taking the stand must take an oath to tell the truth. In most cases, criminal trials are open to the public. These procedures are only initiated if evidence gathering during the trial may be endangered. Italian civil procedural law is governed by the dispositive principle (. hVmo9+KS2$$fI;w1E74pyc8#(A~/8xD$eF HCWVTn:7NeqBw?|c s%iJBF81O040VFyrr2jN~}\C\T M yPZNNW59y>5-t3(Caf&;;:%zjut$azsA39\%|+c5'Fp'( The Constitution states that the legislative function must be exercised jointly by the two Houses of Parliament (. For example, out-of-court statements can be introduced by the parties and then evaluated by the court. 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. 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. 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. Starting a business in Italy can take less time but costs more than the EU average. Foreign scrutiny of the case has so far been unflattering to the Italian legal system (and Italy in general), not helped by the seemingly endless twists and turns of a case that has been running for close to seven years. If they are fundamentally distinct, the judge will be entitled to hold that the precedent has no applicability in the instant case, according the distinguishing rule, and will issue a new decision which will become a new binding precedent[8]. London Street Tramways Co. Ldt v. London County Council, 1898 As we have seen above, in Italy the Constant Jurisprudence doctrine combined with the Nomofilactic function of the Supreme Court consent to reach almost the same results of the English Stare Decisis principle, aiming to satisfy the needs of equality of treatment and predictability of the decisions without giving up the characteristic of legal certainty typical of a code-centric legal system, but being at the same time flexible and capable to easily adapt the general written rules to the varying and unforeseen conditions of society without turning to the very slow parliamentary law-making process[17]. Griffith, R. and Tengnah, C., Law and Professional Issues in Nursing, London: Learning Matters, (2010) The Constituent Assembly, specifically appointed for the task, enacted the Constitution in 1947. 2023Thomson Reuters. The courts are located in various districts of Italy. 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. hb```, edd```d`1#[sM{& 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). 1376 0 obj <>stream The judges in Italy of first instance courts are appointed by public examination which requires a law degree. Investigations are confidential and therefore any pre-trial inquiries are protected. 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 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 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 Italian justice system is often considered one of the most efficient in the world. 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.). 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. They have jurisdiction over disputes in accordance with the legal provisions determining the appropriate venue for litigation. 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). There is no specific pre-trial phase, although there are specific precautionary proceedings which provide an independent examination of evidence before trial. 384 Codice di Procedura Civile, (Regio Decreto 28 ottobre 1940, n. 1443 in G.U. 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.). Under stare decisis, a single case that has been decided upon is binding law to the same extent as a statute or regulation in common law systems. 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. Other special courts provided by the Constitution include the: Administrative appeal court, which is the Council of State (. McFarlane v Tayside Health Board [2000], House of Lords [15] Art. This should also help clarify some of the questions posed by non-academic writers and journalists during the Kercher case: prosecutors were not abusing their power, they were in fact asserting their legally defined central role in the justice system. This is a very important legal power. 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. 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. 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. 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. These include measures to reduce case inflow (e.g., by increasing court fees, creating appeal barriers, and changing lawyers' fee Under the Constitution, recruitment to the judiciary takes place through a public competitive exam published by the Minister of Justice (Article 106). The method of bringing prosecutions under the U.S. criminal justice system is compared and contrasted with prosecutorial procedures in England; differences between the two are emphasized. In the most serious circumstances, the public prosecutor can also ask the judge to issue a decision ordering the precautionary detention of the suspect in prison.
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