The judge plays a more passive role. South Africa is estimated to have 500,000 rapes per year, Egypt 200,000, China 32,000 and the UK with 85,000 rapes per year. 6 Key Ways the British Legal System Differs From the Rest of the World criminal trials relating to corporate liability, bankruptcy, tax, banking and HSE crimes, as well as crimes against the public administration and market abuse; criminal proceedings against companies charged under Legislative Decree No. This is 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. 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. The decision for the prior case will remain, but from that moment on it is replaced by the fresh issued precedent. This means that they are not subject to external pressure of any kind when they execute their functions. Ogg, J. T. (2012). 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. Common law, instead, is a system in which law is made by judges[2]: there are not written codes to rely on, therefore law is developed directly by the Courts and stated in decisions issued when judges come to adjudicate individual cases, so after the dispute arises. [13] Nomofilachia, from greek and , literally protection of the law. Claimant who starts the proceeding, alleges the disputed facts, and presents the evidence in support of the claim. 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 General Court, which can be summoned by individuals, companies, and national governments to annul decisions taken by the institutions of the EU. In particular, commentators have focused on the central role of the cases prosecutor something poorly understood outside Italys distinctive legal culture. Parties usually refer to previous decisions of the lower courts and the Supreme Court of Cassation in interpreting the law, but they are not directly bound by them. This may be due to the fact that both legal systems are not solely adversarial or inquisitorial in nature. 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. As a rule, the burden of proof falls on the party making the allegation of fact. 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. A panel of three judges hears more serious cases. 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). Filing of correspondence exchange between legal counsels regarding a possible agreement between parties. There are many similar avenues and techniques for identifying the facts and evidence when applying them to both legal systems. In addition, the Italian constitution provides for the legality principle, which means that every case must be prosecuted: there is no judicial discretion. Another well-known specialist court is the High Court of Public Waters, which has jurisdiction over disputes relating to public water issues. No specific reporting restrictions typically apply at any stage preceding or during a civil trial. Precedents, so, in Italy are only persuasive, because, as article 2909 of Italian Civil Code provides, judgements are only binding on (and therefore constitute law among) the parties, their successors or assignees. 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. Starting a business in Italy can take less time but costs more than the EU average. 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]. Retrieved from http://www.picchieassociati.it/ENG/more-details/the-italian-law-system. 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. Under the Constitution, recruitment to the judiciary takes place through a public competitive exam published by the Minister of Justice (Article 106). 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. The Supreme Court of Cassation and the Constitutional Court are both based in Rome. The most relevant are: The Italian Authority on Communications (, The Italian Securities and Exchange Commission (, The Italian Regulatory Authority for Electricity Gas and Water (. These are the substantial assumptions, but obviously the Stare Decisis rule is not absolute. The President is also the commander-in-chief of the Armed Forces and chairs the Superior Council of the Judiciary. There is no jury in Italian civil proceedings. 4I^!Ai-u\xC`@;fN+kXi/Aqe [(K`]7BExDlkp9ERMe;tm'[N- wILUaT1Jc'L;> H+:$\ )HMl=U0(%p$2YqBr mbEx2f$>xl!I(4 Of\Po:}N Tj$0WfEeN F The 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. Ordinary laws, law decrees and legislative decrees. In particular, proposed amendments to the Constitution and other types of constitutional laws (see. 4 Copyright 2003 - 2023 - LawTeacher is a trading name of Business Bliss Consultants FZE, a company registered in United Arab Emirates. Unlike most continental countries,. National security secrets: these can be closed or partially closed. Interrogate the parties or the witnesses on their answers to questions by the parties. Legal Systems in Italy: Overview | Practical Law The United States court system consists of fifty state court systems and a separate system of federal courts (Baum, 2013). The Italian legal system is based on continental civil law. C 6/64 Costa v Enel, ECLI:EU:C:1964:66 [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. Registered office: Creative Tower, Fujairah, PO Box 4422, UAE. hb```, edd```d`1#[sM{& 2023 Thomson Reuters. 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. However, in the University of Torino, a 2:1 (3.5-4.49 on a 5 point scale), translates to 70% - 89% on the 100th and 77-98 on the 110th. Young v. Bristol Airplane co., 1944, Court of Appeal Differences and Similarities: Policing in the US and the UK Amanda Knox and the Tragedy of Italian Justice - The Atlantic After this, the public prosecutor can, if necessary for investigative reasons, order that certain documents are kept confidential and/or not published. 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 (. Se continui ad utilizzare questo sito noi assumiamo che tu ne sia felice. Major Differences Between the US and UK Legal Systems In Italy no such oath exists. 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. In the United States we grant a trial by a jury of one's peers for felony defendants if they request it. Approval by the House before which it is first presented. Carlson Laura, American Business Law For Civil Law Lawyers Significant developments affecting this resource will be described below. [7] Dissenting opinions constitute obiter dicta. The Italian constitution and acts of parliament set out a system whereby criminal prosecutors are fully independent; in particular, they have external independence from all the other constitutional powers. Grossi, S. (2010). 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]. Parties to a case have significant rights and powers to introduce claims and defences and submit evidence. 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. [16] Art. 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. 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. The parties are responsible for introducing evidence about the guilt or innocence of an accused person. 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. 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' . Issue the decision based on the statements made by the parties. The examining committee is appointed by the Superior Council of the Judiciary. 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. endstream endobj 1352 0 obj <>/Metadata 161 0 R/Outlines 266 0 R/PageLabels 1332 0 R/Pages 1336 0 R/StructTreeRoot 267 0 R/Type/Catalog/ViewerPreferences<>>> endobj 1353 0 obj <>/ExtGState<>/Font<>/ProcSet[/PDF/Text]/Properties<>>>>>/Rotate 0/StructParents 0/TrimBox[0.0 0.0 595.276 841.89]/Type/Page>> endobj 1354 0 obj <>stream In particular, the parties can ask the court to: Appoint an expert to examine the state of a particular site/area. the rights to travel, assemble, profess a faith, and express personal thoughts. In most cases, criminal trials are open to the public. 'Reorganizing the System Is the Key': A Bonelli Partner Explains Italy Civil hearings are not generally open to the public and the case file is confidential. Italian criminal law is primarily an adversarial system (as opposed to the inquisitorial 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. They have jurisdiction over disputes in accordance with the legal provisions determining the appropriate venue for litigation. The Italian system instead, following the Roman tradition and the French Codification experience, is entirely based upon the written legislative source. There is an actual real risk the suspect will flight or danger that the suspect/ accused will commit a serious crime. Prosecutors would first have to notify Ms Knox of her sentence and issue a warrant for . The trial of Knox and Sollecito was standard, meaning no special rules were used; on the other hand, Rudy Guedes lawyers decided to use one of the special procedures that are aimed to speed up the criminal process, in this case a giudizio abbreviato or fast-track trial. att. A decision not conforming to case law would therefore reasonably be subject to review. 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. 1351 0 obj <> endobj While it does not mean that prosecutors control the police during the investigation, prosecutors rely on the police and interact with them constantly. 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. There is one Corte Costitutzionale which deals with making sure that any law provision complies with the Constitution and is met accordingly, similar to the Supreme Court of the United States (Grossi, 2010). Therefore, the theoretical distinction between Stare Decisis and Constant Jurisprudence collapses in practice, giving as result two systems that, from opposite starting points, slowly converge each one taking advantage of some positive characteristics of the other realizing two contaminated systems that are better aware of the needs, the wants and the usages of the dynamic and globalized modern society. Decide on the relevance and admissibility of the evidence presented by the parties. In specific cases, the judge can also order the disgorgement of goods or property. In the inquisitorial system which Italy uses, the judge plays a more active role in the proceeding. 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. 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. 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. 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. 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. Organisations and bodies empowered by a constitutional law (for example, the National Council for Economics and Labour (CNEL)). 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. That a new right has arisen between the parties to the proceedings as a consequence of the verdict. EU justice scoreboard finds severe problems in Italy - POLITICO And even if the direction of the investigation is bureaucratic and reactive, prosecutors are still in a position to take very important decisions. Italy 4. The court can only order the relief asked for by the parties, which can include: Specific performance of an act by the losing party. 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. An amendment must be submitted to a popular referendum. 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. 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. 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. Retrieved from https://courses.lumenlearning.com/boundless-politicalscience/chapter/origins-of-american-law/. As the Constitutional Court has stated, this principle is intended to guarantee equality before the law within the penal process. Doing Business in Italy: Challenges & Advantages - Wolters Kluwer According to the principle of the burden of proof (see. 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. Avery, The English Legal System Enter to open, tab to navigate, enter to select, 24 hour Customer Support: +44 345 600 9355. The sources of law are arranged hierarchically (see. They, therefore, have an objective ambit of efficacy, their ruling being applicable to every dispute having the same object, but different subjects. 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 . Federal courts have limited jurisdiction where they can only hear cases when a federal question is raised (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].