The law-making procedure is divided into the following stages: Introduction of draft law (legislative initiative). Transmission of the text to the other House for approval in the same form or with amendments. %%EOF Been appointed as judges of administrative and accounting courts. Specifically, the Constitution recognises, grants and protects: The dignity of the person as an individual and in social groups. 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. All rights reserved. The criminal court structure is similar to the civil system, as follows. Attended a stage or training course in court. In Italy, there is nothing similar to the Federal courts in the United States. 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. The constitutional system provides for the following separation of powers: Parliament is vested with the legislative power. See Young v. Bristol Airplane co., 1944. 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 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. 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]. 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). 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). 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. The judges are represented by the Consiglio Superiore della Magistratura which is a body chaired by the President of the Republic and includes the public prosecutor of Corte di Cassazione, and university law professors and attorneys with fifteen years of experience (Grossi, 2010). City, University of London provides funding as a founding partner of The Conversation UK. 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. When the Supreme Court of Cassation decides that a certain court has jurisdiction over a disputed matter. The main source of law in Italy is the Italian Constitution followed by the constitutional laws which happen to be the same for the United States where the United States Constitution is the highest form of law (Lawyersitaly, 2020). In particular, proposed amendments to the Constitution and other types of constitutional laws (see. In common law jurisdictions, almost every case that brings a bona fide disagreement on the law is dealt with in a written opinion. The context around the case is obviously very complicated, but from a legal point of view it is simply wrong to say (as some have) that it was artificially pushed along by an obsessive, tyrannical prosecutor. The parties are responsible for gathering and filing evidence with the court. Italian criminal trials: Lost in transition? [7] Dissenting opinions constitute obiter dicta. Take a look at some weird laws from around the world! An amendment must be submitted to a popular referendum. 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. 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. However, at appellate levels the same judges sometimes sit on both types of courts. 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 (. 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). I was denied admission because I didn't score 90% on the 100th or 100 on the 110th. [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. 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 Constitution forms the fundamental law of the Italian legal system. Pasticcio giudiziario a Milano, i legali di Palazzo Marino perdono in tribunale contro il Comune - IL GIORNO, Elenco delegati aste giudiziarie, partono i corsi per l'iscrizione - NT+ Diritto, Falsi avvocati o vigilantes, le truffe pi diffuse in Toscana - Toscana Media News, Per il terzo anno consecutivo Paolini fra gli Studi Legali dellAnno secondo il Sole24Ore, Studio Paolini nuovamente selezionato fra gli Studi Legali dellAnno secondo il Sole 24 Ore, Voucher 3i per Startup Innovative Cosa finanzia e come richiederlo, Studio Paolini fra gli Studi Legali dellAnno secondo il Sole 24 Ore, Il marchio online e limportanza del domain name. More serious crimes and civil cases in both countries are then subject to a three-court hierarchy. Claimant who starts the proceeding, alleges the disputed facts, and presents the evidence in support of the claim. The judiciary, which is independent, exercises judicial powers. 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. Judges are bound by the law, not by the previous decisions of higher courts. 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 Constitution is: In written form. 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. According to case law, for the standard of proof to be met, the court must find that it is reasonably likely that the alleged facts happened or that it is more likely than not compared to other facts alleged during the trial. View examples of our professional work here. The Italian law is based on Roman law in regards to civil law and the codes of the kingdom of Sardinia, one of Italys 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.). CISG Scope of Application Exclusions and Effects. 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). 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 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. BAME communities make up 14% of the UK population, but represent 25% . 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. A decision not conforming to case law would therefore reasonably be subject to review. However, press must comply with the relevant legal provisions generally governing reporting and privacy rights. Italy 4. Ogg, J. T. (2012). 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. The government, which is the institutional body vested with executive powers, is supervised by Parliament. Promotion to the rank of appeal court judge or Supreme Court of Cassation judge is based on order of seniority. However, case law often influences a judge's decision on a disputed matter. However, the difference between these two countries is less marked than it appears. The defendant (accused person) who, through their counsel, presents the defence version of the facts and evidence. ;vfm4u s(Jm ` *X^=sV9TSFoMcYBW+ [G{H{#R/AAG#&/$(jiwzjjDr7}BGT*rDC0?~`n;NUj\~wSSt| ghofQ-~b8 -M0y:j_c+135FiYzXP+8XLABEJdDfgrK3,}qsL$>ZEQF\,^}$J3"D*zCde~I'KorztmZ!C=rlG(EFYsoY%z5'pKp_/"e7@ y R SAB C3 [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). Congress is heavily involved throughout the process of appointing federal judges such as the selection of candidates and confirmation of candidates. 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. Likewise the Appeal Court can exceptionally overcome its pronounces. Parties to a case have significant rights and powers to introduce claims and defences and submit evidence. 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. McFarlane v Tayside Health Board [2000], House of Lords 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 Italian legal system is not quite different from the United States legal system. 231/2001, as well as with the organisation and management models provided by the same law. 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. The Constitutional Court rules on issues concerning the Italian constitution and the legitimacy of laws (see. Federal courts have limited jurisdiction where they can only hear cases when a federal question is raised (Baum, 2013). 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). Relevance and necessity are two of the main criteria used to determine whether evidence should be excluded. The Italian justice system is often considered one of the most efficient in the world. However, in specific cases and only if necessary to reach a decision, the judge can introduce further evidence at the trial. They have jurisdiction over the disputes in accordance with territorial jurisdiction rules. Apple James G., A Primer on the Civil-Law System, and Deyling Robert P. , Chief, Interjudicial Affairs Office Federal Judicial Center, Judicial Fellow, Administrative Office of the U.S. Courts, 19941995 0 Copyright 20102023, The Conversation Media Group Ltd, Lecturer in Environmental Art - School of Art and Design. Totals Citation Statistics for Government > Legal system Categories Top Stats 0 As Italy is an EU member state, the main sources of international law derive from the EU. Italian civil procedural law is governed by the dispositive principle (. Slow-moving, hugely bloated and sometimes alarmingly politicised, Italy's justice system needs fixing. Another well-known specialist court is the High Court of Public Waters, which has jurisdiction over disputes relating to public water issues. Its core principles are codified into a referable system which considers these codes as the primary source of law. 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. Codice di Procedura Civile, (Regio Decreto 28 ottobre 1940, n. 1443 in G.U. The process is not automatic. 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. They are entitled to introduce evidence, submit documents, and question witnesses both for and against their client. 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. law, the current evolution of the law, developed by the Supreme Judicial Authority taking into account the dynamic requirements of the modern society. In addition, the Constitution recognises and protects: Basic and fundamental civil rights, for example: freedom and privacy of correspondence; and. In particular, commentators have focused on the central role of the cases prosecutor something poorly understood outside Italys distinctive legal culture. 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. Has advised institutional investors on criminal law issues, in M&A transactions and in extraordinary transactions in general, including debt restructuring. The law is in fact expression of the people sovereignty, exercised by directly electing their representatives in Parliament (art. Authorise the introduction of bills by the government. In the adversarial system in the United States, the judges play a comparably passive role in the proceedings (Grossi, 2010). 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 It provides the legal basis for the administration of public authorities. Both the United States and Italy have an appellate system, they both have a court of appeals. 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. 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. Courts in Italy are divided into their specialties which include civil courts, criminal courts, and administrative courts. 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. Courts can also act as courts of second instance to hear appeals from the lower courts. 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. There were nearly 50,000 such claims compared to 3,500 in 2003. The trial is the pivotal stage in the litigation process, particularly as its main function is to hear the parties evidence and resolve the dispute. The Constituent Assembly, specifically appointed for the task, enacted the Constitution in 1947. 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. 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). 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]. According to reliable statistics, about the 70% of the world finds itself under a legal system identified in Civil Law or Common Law (around 44% of the States are under Civil law, around 27% are under Common law), so anyone who wants to truly dive into the study of matter must almost inevitably deal with at least one of those systems. 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. Legislative powers are vested in the Italian Parliament, in compliance with the Constitution, and under the constraints of EU legislation and international obligations. 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. However, it must always be stressed that the theoretical difference between Stare Decisis and Constant Jurisprudence, although in practice may lead to same results, remains significant: regarding cases with similar features,39 English lower Courts cant do anything but applying the binding precedent given by the Supreme Court, while Italian Courts can deliberately avoid it and decide the case for themselves. 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. Abstract In the United States the prosecutor bridges the gap between the police and the courts by exercising independent judgment concerning the need to . This is because higher courts review the decisions of lower courts. 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. 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. In specific cases, the judge can also order the disgorgement of goods or property. Judges and prosecutors belong to the same civil service sector, and their positions are interchangeable. 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. 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. 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. (2020). [13] Nomofilachia, from greek and , literally protection of the law. 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. For example, they can sanction negligent conduct and delaying tactics. Thecriminal system is broadly an adversarial system and is governed by the presumption of innocence. The court can request a more in-depth examination by the parties on a specific issue or suggest a new investigation. [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. 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' . 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 role of President has a direct impact on the political life of the country and it is not a purely ceremonial position. Prosecutors would first have to notify Ms Knox of her sentence and issue a warrant for . To promulgate the amendment, the majority of voters must approve it in the referendum. Precedents so are all those decisions that are binding for future judges called to adjudicate similar cases, and that therefore become law themselves: the case-law. Mason v State. Interrogate the parties or the witnesses on their answers to questions by the parties. 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. 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. Justice system > Punishment > Capital punishment (last execution year) : Year of last use. It is fully consistent with the inductive method of reasoning typical of common law systems: proceeding from the specific case to develop a rule of general application. Retrieved from https://www.britannica.com/place/Italy/Justice. Young v. Bristol Airplane co., 1944, Court of Appeal Defendant who raises any objections and defences to the claimant's claim, and can file counterclaims and evidence. HN0~x=(HzkRDQY!z7%Wuxv7k6Z The judges in Italy of first instance courts are appointed by public examination which requires a law degree. 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). Other special courts provided by the Constitution include the: Administrative appeal court, which is the Council of State (. 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.

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