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 standard of proof required is "beyond any reasonable doubt." The most relevant sources of international law are: Ordinary judges and honorary judges, who form the judiciary, administer judicial power. However, the constitution establishes the Constitutional Court, which examines and decides on the compatibility of laws with the Constitution (Article 134). Parkinson v St. James and Seacroft University Hospital NHS Trust [2001], All ER Rees v Darlington Memorial Hospital NHS Trust [2002], House of Lords There is no jury in Italian civil proceedings. In the United States, a defendant taking the stand must take an oath to tell the truth. Parts of the original text have been amended or repealed several times by constitutional laws passed by a special procedure of the Italian Parliament (, Under the Constitution, Italy is a representative democracy in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 (. They have jurisdiction over the disputes in accordance with territorial jurisdiction rules. 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. Investigations are confidential and therefore any pre-trial inquiries are protected. Conviction, if the accused is proven to be guilty of the alleged offence beyond any reasonable doubt. A jury is present only in the court of assizes (. Parties to a case have significant rights and powers to introduce claims and defences and submit evidence. Their independence is protected because prosecutors are part of the judiciary, which in Italy is fully separated from the other constitutional powers. Defendant who raises any objections and defences to the claimant's claim, and can file counterclaims and evidence. As a rule, the burden of proof falls on the party making the allegation of fact. 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. 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). 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. Significant developments affecting this resource will be described below. The Italian equivalent of 2:1 is actually 100/110 - 104/110 according to Ca' Foscari University's website. The most relevant are: The Italian Authority on Communications (, The Italian Securities and Exchange Commission (, The Italian Regulatory Authority for Electricity Gas and Water (. Thus, while theory distinguishes them, in practice both systems aim to assure the equality of treatment with a system of precedents which are binding by reason of authority according to the English Stare Decisis doctrine, and by authority of reason according to the Italian Constant Jurisprudence doctrine. 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. Italian criminal law is primarily an adversarial system (as opposed to the inquisitorial system). Seen that, it is now clear how the main features of these two systems are strictly linked to their historical genesis. Disclaimer: This essay has been written by a law student and not by our expert law writers. 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. Has advised institutional investors on criminal law issues, in M&A transactions and in extraordinary transactions in general, including debt restructuring. 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. 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. 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. Knox and Sollecito have therefore not been tried twice for the same crime, because in Italy, all these decisions are legally speaking part of the same continuous criminal process. 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 means that they are not subject to external pressure of any kind when they execute their functions. View examples of our professional work here. [9] Civil code, Penal Code, Administrative code etc. The constitutional system provides for the following separation of powers: Parliament is vested with the legislative power. 0 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). Starting a business in Italy can take less time but costs more than the EU average. 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. 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. Occupied certain managerial roles in the public administration. 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). 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]. Ethical and social relations, for example, the rights to: Political rights, for example, the right to vote and to be elected. BAME communities make up 14% of the UK population, but represent 25% . They have jurisdiction over disputes in accordance with the legal provisions determining the appropriate venue for litigation. [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). hVmo9+KS2$$fI;w1E74pyc8#(A~/8xD$eF HCWVTn:7NeqBw?|c s%iJBF81O040VFyrr2jN~}\C\T M yPZNNW59y>5-t3(Caf&;;:%zjut$azsA39\%|+c5'Fp'( The burden of proof falls on the public prosecutor. 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. 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. This is a very important legal power. Thecriminal system is broadly an adversarial system and is governed by the presumption of innocence. Beetween Stare Decisis and Constant Jurisprudence. 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 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. City, University of London provides funding as a founding partner of The Conversation UK. This is something that individuals who are facing a trial can freely opt for. Worked as an honorary judge for at least six years without revocation. Make declarations of war agreed by Parliament. Ratify international treaties that Parliament has approved in advance. The Supreme Court of Cassation and the Constitutional Court are both based in Rome. 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. Common Law Legal Definition. Articles: 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. 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. Another well-known specialist court is the High Court of Public Waters, which has jurisdiction over disputes relating to public water issues. In addition, the Italian constitution provides for the legality principle, which means that every case must be prosecuted: there is no judicial discretion. Avery, The English Legal System 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. Elliott, C. and Quinn, F. (2011) English Legal System, London: Longman The Constitution is: In written form. the scoreboard cannot be seen as a definitive comparison of EU judicial systems. 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 role of President has a direct impact on the political life of the country and it is not a purely ceremonial position. 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. 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. Blacks Law Dictionary (5th ed. The judge plays a more passive role. Other special courts provided by the Constitution include the: Administrative appeal court, which is the Council of State (. In the United States we grant a trial by a jury of one's peers for felony defendants if they request it. In most cases, criminal trials are open to the public. 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. 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. 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. 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. 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). 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. And even if the direction of the investigation is bureaucratic and reactive, prosecutors are still in a position to take very important decisions. In addiction, judicial decisions are not binding on the legislature, which so can pass new laws to overrule unpopular court decisions. [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. England 3. 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. However, case law often influences a judge's decision on a disputed matter. 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. 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. C 6/64 Costa v Enel, ECLI:EU:C:1964:66 The general provisions of the Italian Civil Code set out the hierarchy of domestic sources of law in the following order: Constitutional law and laws of constitutional reform. There is no conventional jury system compared to some common law systems. I was denied admission because I didn't score 90% on the 100th or 100 on the 110th. Totals Citation Statistics for Government > Legal system Categories Top Stats 0 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. These procedures are only initiated if evidence gathering during the trial may be endangered. 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. Sexual abuse: these can be closed or partially closed. 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. 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. This is why Knox and Sollecito went through a much more complex and lengthy judicial procedure than Guede. the rights to travel, assemble, profess a faith, and express personal thoughts. Examination of certain persons as witnesses. McFarlane v Tayside Health Board [2000], House of Lords The law is in fact expression of the people sovereignty, exercised by directly electing their representatives in Parliament (art. 2023Thomson Reuters. *You can also browse our support articles here >, Boundless. Articles 24, 25, 101 to 104 and 111 of the Constitution, in particular, ensure the autonomy and independence of the judiciary. 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. During the preliminary investigations, the public prosecutor and the defence lawyer can request to gather necessary and essential evidence by an evidentiary hearing (. 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 (. [3] Even though it should be more accurate to describe it as an uncodified Constitution rather than an unwritten one, seen that these principles might be considered as stemming from several important documents of English history such as the Magna Charta and the Bill of Rights. It will only apply if the facts of the current case are consistent with those of the decision from which is extracted the precedent. 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. See Young v. Bristol Airplane co., 1944. 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. 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. If the case is serious, in particular, they are effectively in charge of the investigation. Comparison Conclusions Bibliography. A person who wants to obtain protection from a judge must prove the basis of their reasons. Some prohibitions exist in pre-determined cases, such as: Use of witness testimony to prove the existence of a contract. In the U.S., these are cases for state courts almost exclusively. There are actually two kinds of binding precedent: Vertical, which binds all the courts from the highest to the lowest (i.e. 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. 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. However, in specific cases and only if necessary to reach a decision, the judge can introduce further evidence at the trial. 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 President is also the commander-in-chief of the Armed Forces and chairs the Superior Council of the Judiciary. In particular, commentators have focused on the central role of the cases prosecutor something poorly understood outside Italys distinctive legal culture. The judgment must contain a description of de facto and de jure grounds on which the decision is based. All rights reserved. Justice. The Italian legal system is not quite different from the United States legal system. Lawyersitaly. Precautionary measures apply to those cases in which: There is a real and actual danger that the gathering or the authenticity of evidence could be compromised. [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. 1376 0 obj <>stream 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. 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. In contrast, civil law decisions usually do not consist of explanatory opinions. [4] From Latin maxim stare decisis et quieta non muovere, literally let the decision stand and dont unsettle what is. The process is not automatic. [13] Nomofilachia, from greek and , literally protection of the law. The most significant rights and powers are attributed to the parties in a case (a public prosecutor on one side and a defence lawyer on the other). Looking for a flexible role? 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. Lecturer in Law, City, University of London. Chairman of the supervisory boards of national and international companies, including listed companies and public law agencies. In these cases, the judges role is still much more passive than it would be under the inquisitorial system. There were nearly 50,000 such claims compared to 3,500 in . As Italy is an EU member state, the main sources of international law derive from the EU. All rights reserved. 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). Interrogate the parties or the witnesses on their answers to questions by the parties. A panel of three judges hears more serious cases. The Constituent Assembly, specifically appointed for the task, enacted the Constitution in 1947. 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 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. Italian criminal trials: Lost in transition? Though the Italian system of laws uses civil law while the United States uses common law (Mondials, N.d.). The federal courts and the majority of the state court systems are organized into trial courts (The United States district courts in the federal system), intermediate appellate courts, and a Supreme Court. Each jurisdiction has a single criminal justice system, which means The decision for the prior case will remain, but from that moment on it is replaced by the fresh issued precedent. CISG Scope of Application Exclusions and Effects. Courts in Italy are divided into their specialties which include civil courts, criminal courts, and administrative courts. Black and Latinx Americans make up 39% of the US population, but represent 59% of those in US prisons. The criminal court system has [2] The common law is judicially created law that is developed on a case by case basis, wrote Chief Justice Hannah of the Supreme Court of Arkansas in Mason v State. (N.d.). 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.). 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]. The United . The Constitution forms the fundamental law of the Italian legal system. The role of the precedent in the English and Italian judicial system. The Italian legislature focuses on regulating the relevance and efficiency of evidence presented by the parties to the court rather than on imposing exclusionary rules of evidence before the court. The examining committee is appointed by the Superior Council of the Judiciary. [16] Art. Italian civil procedural law is governed by the dispositive principle (. Codice Civile, (Regio Decreto 16 marzo 1942, n. 262). A decision not conforming to case law would therefore reasonably be subject to review. 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. It can also obtain additional evidence. But under Italy's justice system, the supreme court is unlikely to hear the case until April or May 2015. Figures expressed per million people for the same year. Promulgation by the President of the Republic, who has the power to refer bills back to Parliament for reconsideration. [11] Art 1 disp. Its core principles are codified into a referable system which considers these codes as the primary source of law. endstream endobj startxref 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. Decide on the relevance and admissibility of the evidence presented by the parties. [5] The English Courts Hierarchy: Supreme Court Court of Appeal High Court and Crown Court subordinated courts such as Magistrates and County Courts. byMarco Gubitosi, Niccol Bertolini Clerici, Andrea Tortora della Corte, Marianna Consiglio, Legance Avvocati Associati. Another 46 million euros was paid out to . 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. In 1962, in accordance with the 1956 reform, a national social service was set up. There were nearly 50,000 such claims compared to 3,500 in 2003. Italian criminal procedure is a difficult concept to grasp for lawyers and citizens in other countries, who are used to adversarial systems. Differences between legal systems are not anymore seen as obstacles but as inspiring models to aim if anyone wants to achieve a decent level of integration that a modern, interconnected world as ours requires. Legislative powers are vested in the Italian Parliament, in compliance with the Constitution, and under the constraints of EU legislation and international obligations. The Italian authorities have taken a number of measures to address the inefficiencies and bottlenecks in the functioning of their justice system. 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. The judicial system is unified, with every court being part of the national network. The Civil law system, indeed, entirely relies on the legislative source of law. Send messages to Parliament and dissolve one or both of its houses. The Supreme Court of Cassation and the Constitutional Court are located in Rome. 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). Take a look at some weird laws from around the world! In particular, the parties can ask the court to: Appoint an expert to examine the state of a particular site/area. There are two main exceptions to the normal legislative procedure: In general, the judiciary has no power to control legislative and executive actions. 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].