[11] Art 1 disp. C 6/64 Costa v Enel, ECLI:EU:C:1964:66 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. The United States court system consists of fifty state court systems and a separate system of federal courts (Baum, 2013). These are the substantial assumptions, but obviously the Stare Decisis rule is not absolute. PDF Judicial System Reform in Italy A Key to Growth In addition, the Italian constitution provides for the legality principle, which means that every case must be prosecuted: there is no judicial discretion. Promulgate laws, decrees, and regulations. Advises investment funds, both Italian and foreign companies, listed and unlisted, as part of their ordinary and extraordinary business activities. Lecturer in Law, City, University of London. American judges are lawyers who have been appointed to the bench and many of them still consider themselves to be lawyers unlike the judges in Italy. 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. British, French and American Systems of Justice Compared 99 enee, we shall focus on the court system in En-gland.6 There are two judicial structures in England - one for civil cases and one for criminal cases. 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. Occupied certain managerial roles in the public administration. The applicable sanctions on a conviction are: Various forms of detention including imprisonment or house detention. Likewise the Appeal Court can exceptionally overcome its pronounces. However, at appellate levels the same judges sometimes sit on both types of courts. HN0~x=(HzkRDQY!z7%Wuxv7k6Z 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. In these cases, the judges role is still much more passive than it would be under the inquisitorial system. 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. 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. Griffith, R. and Tengnah, C., Law and Professional Issues in Nursing, London: Learning Matters, (2010) Send messages to Parliament and dissolve one or both of its houses. Registered office: Creative Tower, Fujairah, PO Box 4422, UAE. In most cases, criminal trials are open to the public. To promulgate the amendment, the majority of voters must approve it in the referendum. 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. Since the very beginning of their development, their differences seemed to be so marked that nobody could even suggest the contrary. 1 Italian Constitution). 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. In the adversarial system in the United States, the judges play a comparably passive role in the proceedings (Grossi, 2010). However, the constitution establishes the Constitutional Court, which examines and decides on the compatibility of laws with the Constitution (Article 134). [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. The examining committee is appointed by the Superior Council of the Judiciary. 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]. 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. Decisions declaring the alleged death of a person or that a person is missing are always subject to publication in the. Ukraine war latest: Boy, 6, cries as sister killed in Russian attack Jointly by fine and imprisonment of up to four years. The criminal court system has Though the Italian system of laws uses civil law while the United States uses common law (Mondials, N.d.). 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. In many ways, it is very different from the system in the United States. Worked as a regular university law professor. 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. Parties to a case have significant rights and powers to introduce claims and defences and submit evidence. For example, the Italian system is inquisitorial, while the United States system is adversarial. Issue the decision based on the statements made by the parties. So, in Italy judges just look at the law and decide the case at stake without being bound by previous decisions, which therefore are only persuasive (in particular the decisions of the Supreme Court of Cassazione). Italian law establishes independent administrative authorities to deal with specific legal areas. The purpose of this paper is therefore to analyze the different role of judicial precedents in each jurisdiction, taking a closer look to their relation to the other legislative sources in those countries, in order to find out what kind of influence they might have in the law development process. Comparing the Italian and US Legal Systems - LawTeacher.net The law is in fact expression of the people sovereignty, exercised by directly electing their representatives in Parliament (art. [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). Italian criminal procedure is a difficult concept to grasp for lawyers and citizens in other countries, who are used to adversarial systems. First published on Thu 24 Jan 2019 00.00 EST The European court of human rights has ordered Italy to pay Amanda Knox 18,400 for police failures to provide her access to a lawyer and a translator. 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). 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. 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. The Italian judicial system consists of a series of courts and a body of judges who are civil servants. Other special courts provided by the Constitution include the: Administrative appeal court, which is the Council of State (. This is a very important legal power. Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not reflect the views of LawTeacher.net. "Having been found innocent before, I expected better from the Italian justice system." . 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. 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]. 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]. 4 The process is not automatic. italian justice system compared to uk Found inside - Page 29here was once an Italian computer manufacturer whose British subsidiary sold an expensive system to a large solicitors' . [10] Moreover, art. Published: 9th Jun 2021. This is because higher courts review the decisions of lower courts. 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. *You can also browse our support articles here >, Boundless. You should not treat any information in this essay as being authoritative. 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). The courts of appeal review the judgments of the courts of first instance. Slow-moving, hugely bloated and sometimes alarmingly politicised, Italy's justice system needs fixing. Moreover, when the facts are exactly the same and there is no possibility for distinguishing, an higher court can overrule the principle established in an earlier decision by a lower court or another court on the same level, even itself, because appears to be clearly wrong (when appears to do so is the wording of the Supreme Court in the Practice Statement of 1966) or so outdated that is no longer applicable for modern times. (N.d.). EU legislation (EU directives and regulations) (see. 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. 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. The selection of judges, therefore, makes the judiciary an independent body where judges are chosen by their merit through an exam. Totals Citation Statistics for Government > Legal system Categories Top Stats 0 No specific reporting restrictions typically apply at any stage preceding or during a civil trial. 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. [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 legal system is based on continental civil law. 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. Legal Systems in Italy: Overview | Practical Law Thus, despite the need of legal certainty was the same, the solution that Romans adopted pointed in the opposite direction: Justinian, Eastern Roman Emperor, commissioned an encyclopedic work, called Corpus Iuris Civilis, which gathered and harmonized all the roman law in one single, complete Code. 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. However, case law often influences a judge's decision on a disputed matter. There are many similar avenues and techniques for identifying the facts and evidence when applying them to both legal systems. Make declarations of war agreed by Parliament. In addiction, judicial decisions are not binding on the legislature, which so can pass new laws to overrule unpopular court decisions. 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. [15] Art. This may be due to the fact that both legal systems are not solely adversarial or inquisitorial in nature. [13] Nomofilachia, from greek and , literally protection of the law. Their independence is protected because prosecutors are part of the judiciary, which in Italy is fully separated from the other constitutional powers. These procedures are only initiated if evidence gathering during the trial may be endangered. England - 3. A person who wants to obtain protection from a judge must prove the basis of their reasons. computer manufacturer whose litigation experience had hitherto been confined mostly to the Italian legal system. The government, which is the institutional body vested with executive powers, is supervised by Parliament. 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. 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. There are rare exceptions: for example, a final discussion of the case is always open to the public. 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). Judges and prosecutors belong to the same civil service sector, and their positions are interchangeable. Retrieved from https://www.britannica.com/place/Italy/Justice. Interrogate the parties or the witnesses on their answers to questions by the parties. 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. See Young v. Bristol Airplane co., 1944. 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]. PDF NAO Briefing: Comparing International Criminal Justice Systems - March 2012 The court can request a more in-depth examination by the parties on a specific issue or suggest a new investigation. Italian Justice System Compared To Us - malcolmmackillop 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). Judges are bound by the law, not by the previous decisions of higher courts. 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. The Constitution forms the fundamental law of the Italian legal system. Civil Law in Italy. 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]. A panel of three judges hears more serious cases. These judges are appointed for life and can only be removed through impeachment and a new judge is appointed when there is a vacancy through impeachment, a judge dies, or a judge resigns (Baum, 2013). Seen that, it is now clear how the main features of these two systems are strictly linked to their historical genesis. by Lucas Taylor Posted on . The President of the Republic is the head of state elected by Parliament in a joint session of its members and represents national unity. Promotion to the rank of appeal court judge or Supreme Court of Cassation judge is based on order of seniority. This means that they are not subject to external pressure of any kind when they execute their functions. 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. For what is our concern, it should be born in mind that supremacy of the Parliament means that the Parliament has the supreme legislative power, and thus supremacy must be given to the result of its work, the statutes. 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. Copyright 2003 - 2023 - LawTeacher is a trading name of Business Bliss Consultants FZE, a company registered in United Arab Emirates. 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). The role of the precedent in the English and Italian judicial system: Between Stare Decisis and Constant Jurisprudence SUMMARY: 1. The parties are responsible for introducing evidence about the guilt or innocence of an accused person. The Court of Justice of the European Union (CJEU) consists of: The European Court of Justice, which can be summoned by national courts to consider annulments and appeals or to obtain preliminary rulings regarding the interpretation of EU law. "It's one of the many failings of Italian justice that it never . Info: 1539 words (6 pages) Essay Avery, The English Legal System 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 were nearly 50,000 such claims compared to 3,500 in . Transmission of the text to the other House for approval in the same form or with amendments. ., vM \@[Z*%*K3u2q#$)|0\&Wzeg'A 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. Retrieved from https://courses.lumenlearning.com/boundless-politicalscience/chapter/origins-of-american-law/. Worked as an honorary judge for at least six years without revocation. 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. Causes of the 14th Amendment to the US Constitution. 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. Italian Justice System Compared To Us 10 min read. 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. 0 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. The role of the precedent in the English and Italian judicial system: Between Stare Decisis and Constant Jurisprudence, SUMMARY: 1. 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. The Italian equivalent of 2:1 is actually 100/110 - 104/110 according to Ca' Foscari University's website.