italian justice system compared to uk
In most cases, criminal trials are open to the public. The judiciary, which is independent, exercises judicial powers. Take a look at some weird laws from around the world! [4] From Latin maxim stare decisis et quieta non muovere, literally let the decision stand and dont unsettle what is. 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. 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. Lawyersitaly. Consequently, a lower court may not rule against the higher, even if it feels that the precedent is unjust; it may only express the hope that a higher court will reform the rule in question, issuing an only-persuasive dissenting opinion which might encourage the claimant to appeal the forced decision, in order to let the higher court overturn it, setting a new precedent of higher authority. hVmo9+KS2$$fI;w1E74pyc8#(A~/8xD$eF HCWVTn:7NeqBw?|c s%iJBF81O040VFyrr2jN~}\C\T M yPZNNW59y>5-t3(Caf&;;:%zjut$azsA39\%|+c5'Fp'( Italian Justice System Compared To Us 10 min read. The most relevant sources of international law are: Ordinary judges and honorary judges, who form the judiciary, administer judicial power. 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. Although this is a very short summary, it should help clarify why during the investigation the prosecutor becomes the key figure, and why prosecutors have so much influence over political decisions about responses to crime in Italy. For example, the Italian system is inquisitorial, while the United States system is adversarial. 1979) It provides the legal basis for the administration of public authorities. 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! Utilizziamo i cookie per essere sicuri che tu possa avere la migliore esperienza sul nostro sito. 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. %PDF-1.5 % 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 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). Summing up, English judgements create law. London Street Tramways Co. Ldt v. London County Council, 1898 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. Blacks Law Dictionary (5th ed. In a critical report last year, the Council of Europe's top official for human rights,. Looking for a flexible role? For example, the enterprises courts were instituted by law decree in 2012 within every court (. hb```, edd```d`1#[sM{& 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. The court, if summoned, cannot declare its incompetency. Worked as a regular university law professor. The Common law/Civil law dualism has always been pivotal for any scholar approaching the study of Comparative law. 1376 0 obj <>stream 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. Though the Italian system of laws uses civil law while the United States uses common law (Mondials, N.d.). 4 When the Supreme Court of Cassation decides that a certain court has jurisdiction over a disputed matter. This is what happened in this case, where the Court of Appeal was told to review all the evidence and issue a verdict on the basis of a logical and legal evaluation of the facts; that is exactly what the court did in the run-up to Fridays verdict. 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). 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. However, at appellate levels the same judges sometimes sit on both types of courts. 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 role of the precedent in the English and Italian judicial system: Between Stare Decisis and Constant Jurisprudence, SUMMARY: 1. for the Italian justice system this is not, however, a victory . N:0b kb}z|4v_7?AJD Totals Citation Statistics for Government > Legal system Categories Top Stats 0 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). They have jurisdiction over the disputes in accordance with territorial jurisdiction rules. Italian criminal procedure is a difficult concept to grasp for lawyers and citizens in other countries, who are used to adversarial systems. Wason v Walter (1868), All ER, Legislation: See Young v. Bristol Airplane co., 1944. The United States court system consists of fifty state court systems and a separate system of federal courts (Baum, 2013). In specific cases, the judge can also order the disgorgement of goods or property. Occupied certain managerial roles in the public administration. 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. 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. 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 (. 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). Filing of correspondence exchange between legal counsels regarding a possible agreement between parties. In the United States we grant a trial by a jury of one's peers for felony defendants if they request it. There is an actual real risk the suspect will flight or danger that the suspect/ accused will commit a serious crime. 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 (. The law is in fact expression of the people sovereignty, exercised by directly electing their representatives in Parliament (art. 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. Large numbers of rapes go unreported. 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. the rights to travel, assemble, profess a faith, and express personal thoughts. Parties to a case have significant rights and powers to introduce claims and defences and submit evidence. Sexual abuse: these can be closed or partially closed. Civil hearings are not generally open to the public and the case file is confidential. Rigid: modification requires a complex process of reform unlike the passing of ordinary laws. Italian civil procedural law is governed by the dispositive principle (. Jointly by fine and imprisonment of up to four years. 231/2001, as well as with the organisation and management models provided by the same law. Copyright 2003 - 2023 - LawTeacher is a trading name of Business Bliss Consultants FZE, a company registered in United Arab Emirates. 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. 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 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. The court can request a more in-depth examination by the parties on a specific issue or suggest a new investigation. 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. 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. In Italy, judges are public officials and, since they exercise one of the sovereign powers of the State, only Italian citizens are eligible for judgeship. Been appointed as judges of administrative and accounting courts. The Italian justice system is often considered one of the most efficient in the world. Eventually, a decision of a lower court can be reversed in appeal; here the case is still open and the decision has not become a precedent yet. 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. endstream endobj startxref Do you have a 2:1 degree or higher? 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. In the United States, a defendant taking the stand must take an oath to tell the truth. Civil law proceeds, with a deductive method of reasoning, from abstraction (codes[1] contain general principles which apply to every case that could possibly be brought before the court) to factually specific scenarios, in which judges apply the principles stemmed from the code to the concrete dispute. 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. 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. The executive only possesses the emergency power to declare a state of emergency under the laws on civil protection (see. In Italy, procedural justice is part of the concept of justice: a decision is legally acceptable so long as it results from patterns of official activity that provide protection to the defendants rights and an opportunity to find the truth. 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]. An amendment must be submitted to a popular referendum. The decision for the prior case will remain, but from that moment on it is replaced by the fresh issued precedent. However, press must comply with the relevant legal provisions generally governing reporting and privacy rights. 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. 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. 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. 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. The Constituent Assembly, specifically appointed for the task, enacted the Constitution in 1947. In 1962, in accordance with the 1956 reform, a national social service was set up. The burden of proof falls on the public prosecutor. It can also obtain additional evidence. 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. Young v. Bristol Airplane co., 1944, Court of Appeal 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. The role of the precedent in the English and Italian judicial system. 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. Each jurisdiction has a single criminal justice system, which means As the Constitutional Court has stated, this principle is intended to guarantee equality before the law within the penal process. JgJ*cH4w^P. Tetley William, Mixed jurisdictions: common law vs civil law (codified and uncodified) (Part I) Q.C. There are actually two kinds of binding precedent: Vertical, which binds all the courts from the highest to the lowest (i.e. A panel of three judges hears more serious cases. The judge plays a more passive role. The Italian civil judicial system is neither purely adversarial nor purely inquisitorial. 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. 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. In particular, commentators have focused on the central role of the cases prosecutor something poorly understood outside Italys distinctive legal culture. In Italy, the court of last resort is the Corte di Cassazione which resides in Rome (Grossi, 2010). 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 . The constitutional system provides for the following separation of powers: Parliament is vested with the legislative power. That a new right has arisen between the parties to the proceedings as a consequence of the verdict. Costituzione della Repubblica Italiana, [Gazzetta Ufficiale 27 dicembre 1947, n. 298]. Their independence is protected because prosecutors are part of the judiciary, which in Italy is fully separated from the other constitutional powers. jessica sainsbury frankopan,
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