italian justice system compared to uk

2005, Court of Arkansas Differing degrees of criminal justice convergence in Italy and Australia. 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. Consequently, the influence of the Parliament on the development of law has increased immeasurably in recent years, with a legislative hyperactivity that brought to a process of statutorification of the common law principles developed throughout the years into detailed statutes of general application, while the influence of judges has correspondingly decreased, limited to administrate the justice at most interpreting the statutes if they let so and leaving the law- making task to the legislative body, more in accordance with the principle of separation of powers and of supremacy of the Parliament. There are rare exceptions: for example, a final discussion of the case is always open to the public. Looking for a flexible role? The role of the precedent in the English and Italian judicial system. Filing of correspondence exchange between legal counsels regarding a possible agreement between parties. 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 . If the case is serious, in particular, they are effectively in charge of the investigation. 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. They are entitled to introduce evidence, submit documents, and question witnesses both for and against their client. The constitutional system provides for the following separation of powers: Parliament is vested with the legislative power. 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. 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. 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. 4 *You can also browse our support articles here >, Boundless. Jointly by fine and imprisonment of up to four years. Disclaimer: This essay has been written by a law student and not by our expert law writers. 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. "It's one of the many failings of Italian justice that it never . 2023 Thomson Reuters. For example, the Italian system is inquisitorial, while the United States system is adversarial. 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. By imprisonment not exceeding four years. 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. After this, the public prosecutor can, if necessary for investigative reasons, order that certain documents are kept confidential and/or not published. The Italian legal system is based on continental civil law. 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). Another well-known specialist court is the High Court of Public Waters, which has jurisdiction over disputes relating to public water issues. The Italian equivalent of 2:1 is actually 100/110 - 104/110 according to Ca' Foscari University's website. The Constitution is: In written form. ., vM \@[Z*%*K3u2q#$)|0\&Wzeg'A Books: The criminal court system has byMarco Gubitosi, Niccol Bertolini Clerici, Andrea Tortora della Corte, Marianna Consiglio, Legance Avvocati Associati. 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. England - 3. Retrieved from https://courses.lumenlearning.com/boundless-politicalscience/chapter/origins-of-american-law/. 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. 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. 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. 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). 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. Rigid: modification requires a complex process of reform unlike the passing of ordinary laws. [7] Dissenting opinions constitute obiter dicta. Across a sample of 13 Italian cities, starting a business can take about a week on average. As a rule, the burden of proof falls on the party making the allegation of fact. Investigations are confidential and therefore any pre-trial inquiries are protected. The court can request a more in-depth examination by the parties on a specific issue or suggest a new investigation. 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). law, the current evolution of the law, developed by the Supreme Judicial Authority taking into account the dynamic requirements of the modern society. Minor criminal offenses and small civil disputes are handled by special magistrate courts tasked with resolving such disputes. The courts of first instance and appeal are located in various districts of Italy. JgJ*cH4w^P. Been appointed as judges of administrative and accounting courts. Parties to a case have significant rights and powers to introduce claims and defences and submit evidence. 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]. Civil hearings are not generally open to the public and the case file is confidential. 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. Copyright 2003 - 2023 - LawTeacher is a trading name of Business Bliss Consultants FZE, a company registered in United Arab Emirates. 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. This is why Knox and Sollecito went through a much more complex and lengthy judicial procedure than Guede. The law-making procedure is divided into the following stages: Introduction of draft law (legislative initiative). hbbd``b`{AcH0l n $XA,/l4HqHIH,HQ@bv&Fk@#nU + However, not all cases are tried through a jury trial. 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). 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. 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. 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. Sexual abuse: these can be closed or partially closed. In most cases, criminal trials are open to the public. 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. Young v. Bristol Airplane co., 1944, Court of Appeal 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. This is a very important legal power. [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 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. 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]. 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. 65, regio decreto n. 12 del 1941. Italian criminal procedure is a difficult concept to grasp for lawyers and citizens in other countries, who are used to adversarial systems. Unless this standard is met, the defendant must be acquitted. 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]. In particular, proposed amendments to the Constitution and other types of constitutional laws (see. 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. There is no conventional jury system compared to some common law systems. 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. There is no specific pre-trial phase, although there are specific precautionary proceedings which provide an independent examination of evidence before trial. 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. 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]. See Young v. Bristol Airplane co., 1944. EU legislation (EU directives and regulations) (see. Prosecutors would first have to notify Ms Knox of her sentence and issue a warrant for . As Italy is an EU member state, the main sources of international law derive from the EU. In addiction, judicial decisions are not binding on the legislature, which so can pass new laws to overrule unpopular court decisions. 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 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. 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. 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. 28 ottobre 1940). Starting a business in Italy can take less time but costs more than the EU average. This may be due to the fact that both legal systems are not solely adversarial or inquisitorial in nature. 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.). 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. Federal: The federal criminal justice system handles crimes committed on federal property or in more than one state. They have jurisdiction over disputes in accordance with the legal provisions determining the appropriate venue for litigation. Do you have a 2:1 degree or higher? "Having been found innocent before, I expected better from the Italian justice system." . Justice. 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. The judiciary of Italy is a system of courts that interpret and apply the law in the Italian Republic. In these cases, the judges role is still much more passive than it would be under the inquisitorial system. 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. The Constitution forms the fundamental law of the Italian legal system. 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. Black people were over 3 times as likely to be arrested as White people - there were 32 arrests for every 1,000 Black people, and 10 arrests for every 1,000 White people. Causes of the 14th Amendment to the US Constitution. hVmo9+KS2$$fI;w1E74pyc8#(A~/8xD$eF HCWVTn:7NeqBw?|c s%iJBF81O040VFyrr2jN~}\C\T M yPZNNW59y>5-t3(Caf&;;:%zjut$azsA39\%|+c5'Fp'( The Italian legal system is not quite different from the United States legal system. These provisions are considered immutable. (2020). by Lucas Taylor Posted on . 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 (. 2023Thomson Reuters. Judges and prosecutors belong to the same civil service sector, and their positions are interchangeable. Summing up, English judgements create law. Congress is heavily involved throughout the process of appointing federal judges such as the selection of candidates and confirmation of candidates. A law degree and a lawyer's licence are essential to be appointed directly as an honorary judge in a lower court (. The sources of law are arranged hierarchically (see. endstream endobj 1355 0 obj <>stream 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. In this case, a second appeal procedure was necessary because of the decision of the Court of Cassation (Corte di Cassazione). 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. Therefore this constant jurisprudence will define what is called the living computer manufacturer whose litigation experience had hitherto been confined mostly to the Italian legal system. Their independence is protected because prosecutors are part of the judiciary, which in Italy is fully separated from the other constitutional powers. A person who wants to obtain protection from a judge must prove the basis of their reasons. Organisations and bodies empowered by a constitutional law (for example, the National Council for Economics and Labour (CNEL)). Worked as a regular university law professor. In addition, the Constitution recognises and protects: Basic and fundamental civil rights, for example: freedom and privacy of correspondence; and. 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 The criminal court structure is similar to the civil system, as follows. 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. %PDF-1.5 % Comparison - Conclusions - Bibliography Contextual background for the comparison The fact that English system is not codified influences, indeed, the task that their Courts have to carry out: not only deciding the case at issue, but also creating and developing new law if necessary. The courts of appeal review the judgments of the courts of first instance. 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 judge plays a more passive role. 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. There is an actual real risk the suspect will flight or danger that the suspect/ accused will commit a serious crime. 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. As aforementioned, Common and Civil law may be referred as the antipodes of the legal system conception. The Constitution adopts a model of equal bicameralism. 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. Retrieved from http://www.picchieassociati.it/ENG/more-details/the-italian-law-system. 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 Constitution states it is the duty of the Republic to remove any obstacles that may limit the equality or freedom of citizens or their effective participation in the political, economic, and social organisation of Italy (Article 3). Civil Law in Italy. 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. There are actually two kinds of binding precedent: Vertical, which binds all the courts from the highest to the lowest (i.e. Elliott, C. and Quinn, F. (2011) English Legal System, London: Longman A further decision on the legitimacy of a case is allowed on appeal to the Court of Cassation which only considers the legality of the proceedings that the lower courts conducted. That a new right has arisen between the parties to the proceedings as a consequence of the verdict. The Italian justice system has again emerged as one of the worst performers in the European Union, with the European Commission's 2015 scoreboard revealing that in Italy it takes civil and commercial cases an average of 600 days to get to court. Approval by the House before which it is first presented. The President is also the commander-in-chief of the Armed Forces and chairs the Superior Council of the Judiciary. Recent reforms appear to be oriented towards a non-adversarial model and the judges have been given the power to issue, on their own initiative, sanctions against the parties. Therefore, the first thing everyone usually recognizes as characterizing the English law system is often wrong: the primary legislative source is not case law, but, at least in theory, the written law. the rights to travel, assemble, profess a faith, and express personal thoughts. 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. 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]. Promulgate laws, decrees, and regulations. 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. Se continui ad utilizzare questo sito noi assumiamo che tu ne sia felice. However, in specific cases and only if necessary to reach a decision, the judge can introduce further evidence at the trial. 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. Copyright 20102023, The Conversation Media Group Ltd, Lecturer in Environmental Art - School of Art and Design. The Common law/Civil law dualism has always been pivotal for any scholar approaching the study of Comparative law. Each jurisdiction has a single criminal justice system, which means In the United States, a defendant taking the stand must take an oath to tell the truth. 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. There were nearly 50,000 such claims compared to 3,500 in . 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). 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). Figures expressed per million people for the same year. Ordinary first instance judges preside over the courts (. The Italian authorities have taken a number of measures to address the inefficiencies and bottlenecks in the functioning of their justice system. 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. Instead, Italy has various tribunali which are located in several districts and several corti dappello which are located in different Italian provinces. 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. 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). (n.d.). The parties are responsible for gathering and filing evidence with the court. At the end of the civil trial, the court can issue one of the following verdicts: That the claim cannot be granted for issues concerning the procedure or the merits of the claim (because the procedure set up by the claimant is not the correct one or the claimant has no legal standing). 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). 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. The government, which is the institutional body vested with executive powers, is supervised by Parliament. 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. Therefore, the Normans, under command of Henry II, wishing to establish a unified legal system that would become common throughout the country, sent out itinerant judges with the task of ensuring a standardized system of law all across the country, issuing uniform decisions based upon a set of common principles which begun to be crystalized in those decisions: these are the first examples of case-law, and that is the beginning of the Common law, a law common to all English people, in England and all over its colonies. 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. 0 For example, out-of-court statements can be introduced by the parties and then evaluated by the court. I was denied admission because I didn't score 90% on the 100th or 100 on the 110th. Both the United States and Italy have an appellate system, they both have a court of appeals. The standard of proof required is "beyond any reasonable doubt." The Italian system instead, following the Roman tradition and the French Codification experience, is entirely based upon the written legislative source.
Explain The Interconnectedness Of Geography Culture And Religion Brainly, Quebec Vaccination Schedule Covid 19, Columbia University To Laguardia, What Happened To Tasha On Dr Jeff, Athens Population 2021, Articles I