Under the Constitution, Italy must agree on conditions of equality with other states and with the necessary limitations of sovereignty to create an order that ensures peace and justice between nations. The judge plays a more passive role. Any of the following can request a referendum within three months of the amendment's publication: One-fifth of the members of a parliamentary house. The Sollecito and Knox case has, however, demonstrated a major problem with the Italian CJS: the criminal process takes far too long to reach a final decision. The role of the precedent in the English and Italian judicial system: Between Stare Decisis and Constant Jurisprudence SUMMARY: 1. The Supreme Court of Cassation and the Constitutional Court are located in Rome. C 6/64 Costa v Enel, ECLI:EU:C:1964:66 [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. 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). [15] Art. r` Thecriminal system is broadly an adversarial system and is governed by the presumption of innocence. 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. 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 court can only order the relief asked for by the parties, which can include: Specific performance of an act by the losing party. Decisions declaring the alleged death of a person or that a person is missing are always subject to publication in the. Looking for a flexible role? Civil liability is based on the principle of the burden of proof. [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. Griffith, R. and Tengnah, C., Law and Professional Issues in Nursing, London: Learning Matters, (2010) It will only apply if the facts of the current case are consistent with those of the decision from which is extracted the precedent. 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 Italian criminal law is primarily an adversarial system (as opposed to the inquisitorial system). 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]. 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 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. Wickham, C. J., & Clark, M. (N.d.). Congress is heavily involved throughout the process of appointing federal judges such as the selection of candidates and confirmation of candidates. Authorise the introduction of bills by the government. Its core principles are codified into a referable system which considers these codes as the primary source of law. A law degree and a lawyer's licence are essential to be appointed directly as an honorary judge in a lower court (. 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 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. 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. Starting a business in Italy can take less time but costs more than the EU average. A person who wants to obtain protection from a judge must prove the basis of their reasons. 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. Conviction, if the accused is proven to be guilty of the alleged offence beyond any reasonable doubt. All rights reserved. The Italian judicial system consists of a series of courts and a body of judges who are civil servants. Defendant who raises any objections and defences to the claimant's claim, and can file counterclaims and evidence. 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). 'Reorganizing the System Is the Key': A Bonelli Partner Explains Italy Rigid: modification requires a complex process of reform unlike the passing of ordinary laws. computer manufacturer whose litigation experience had hitherto been confined mostly to the Italian legal system. The United States court system consists of fifty state court systems and a separate system of federal courts (Baum, 2013). By imprisonment not exceeding four years. In this case, a second appeal procedure was necessary because of the decision of the Court of Cassation (Corte di Cassazione). Black people were over 3 times as likely to be arrested as White people - there were 32 arrests for every 1,000 Black people, and 10 arrests for every 1,000 White people. 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. 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 Do you have a 2:1 degree or higher? The General Court, which can be summoned by individuals, companies, and national governments to annul decisions taken by the institutions of the EU. The United . 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. [16] Art. 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. Retrieved from https://www.britannica.com/place/Italy/Justice. 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. 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 Constituent Assembly, specifically appointed for the task, enacted the Constitution in 1947. 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 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. There were nearly 50,000 such claims compared to 3,500 in . Both the United States and Italy have an appellate system, they both have a court of appeals. Judiciary of Italy - Wikipedia Italian civil procedural law is governed by the dispositive principle (. 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. British, French and American Systems of Justice Compared - JSTOR 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. 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. Claimant who starts the proceeding, alleges the disputed facts, and presents the evidence in support of the claim. 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). 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]. "It's one of the many failings of Italian justice that it never . In the light of Fridays guilty verdict in the case of Amanda Knox and Raffaele Sollecito, the Italian criminal justice system is once again under the magnifying glass. The changes, which need to be enshrined in enabling decrees by the end of 2022, are aimed at speeding up Italy's notoriously slow civil justice system - something that is considered essential . According to the principle of the burden of proof (see. To promulgate the amendment, the majority of voters must approve it in the referendum. Grossi, S. (2010). 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. Common Law Legal Definition. Each jurisdiction has a single criminal justice system, which means Blacks Law Dictionary (5th ed. Wason v Walter (1868), All ER, Legislation: Juvenile Justice in Italy | Oxford Handbook Topics in Criminology and Articles 24, 25, 101 to 104 and 111 of the Constitution, in particular, ensure the autonomy and independence of the judiciary. In the most serious circumstances, the public prosecutor can also ask the judge to issue a decision ordering the precautionary detention of the suspect in prison. The role of the precedent in the English and Italian judicial system: Between Stare Decisis and Constant Jurisprudence, SUMMARY: 1. Published: 9th Jun 2021. 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. They can also help to improve them. Professor Richards Edward, The Importance of Precedent, LSU Law Center. Significant developments affecting this resource will be described below. Major Differences Between the US and UK Legal Systems Appoint the President of the Council of Ministers (also known as the Prime Minister) and, after consultation with the Prime Minister, the remaining government ministers. 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 the U.S., these are cases for state courts almost exclusively. However, the difference between these two countries is less marked than it appears. 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. This is five days faster than the EU average. Retrieved from https://courses.lumenlearning.com/boundless-politicalscience/chapter/origins-of-american-law/. Unlike the United States appointment process, the Italian executive branch does not have any part in selecting judges (Grossi, 2010). For example, they can sanction negligent conduct and delaying tactics. Across a sample of 13 Italian cities, starting a business can take about a week on average. These provisions are considered immutable. [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. Six children were among the dead after a Russian missile attack on Uman; Russian soldiers are likely being placed in improvised cells consisting of holes in the ground as punishment, the UK's MoD . 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. 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). 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. 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). The Italian justice system is often considered one of the most efficient in the world. And even if the direction of the investigation is bureaucratic and reactive, prosecutors are still in a position to take very important decisions. 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). Lawyersitaly. Boundless Political Science. Italian law establishes independent administrative authorities to deal with specific legal areas. Contextual background for the comparison - 2. 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. The judiciary, which is independent, exercises judicial powers. Civil Law in Italy. Hence, it follows that, according to the Stare decisis[4] principle, which governs the English system, whenever a judge comes to adjudicate cases with similar features, s/he must follow the precedent stated in the prior decisions, so that similar facts yield to similar results in order to guarantee an equal treatment for all. For example, out-of-court statements can be introduced by the parties and then evaluated by the court. However, case law often influences a judge's decision on a disputed matter. After this, the public prosecutor can, if necessary for investigative reasons, order that certain documents are kept confidential and/or not published. See Young v. Bristol Airplane co., 1944. The judgment must contain a description of de facto and de jure grounds on which the decision is based. The Civil law system, indeed, entirely relies on the legislative source of law. 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.