For example, the Italian system is inquisitorial, while the United States system is adversarial. Significant developments affecting this resource will be described below. If you are the original writer of this essay and no longer wish to have your work published on LawTeacher.net then please: Our academic writing and marking services can help you! Decisions declaring the alleged death of a person or that a person is missing are always subject to publication in the. Ordinary laws, law decrees and legislative decrees. 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. 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. [4] From Latin maxim stare decisis et quieta non muovere, literally let the decision stand and dont unsettle what is. 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. During the preliminary investigations, the public prosecutor and the defence lawyer can request to gather necessary and essential evidence by an evidentiary hearing (. 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). 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]. For example, they can sanction negligent conduct and delaying tactics. Prosecutors would first have to notify Ms Knox of her sentence and issue a warrant for . They have jurisdiction over disputes in accordance with the legal provisions determining the appropriate venue for litigation. hVmo9+KS2$$fI;w1E74pyc8#(A~/8xD$eF HCWVTn:7NeqBw?|c s%iJBF81O040VFyrr2jN~}\C\T M yPZNNW59y>5-t3(Caf&;;:%zjut$azsA39\%|+c5'Fp'( Abstract In the United States the prosecutor bridges the gap between the police and the courts by exercising independent judgment concerning the need to . 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]. Contextual background for the comparison 2. [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. 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. The Constituent Assembly, specifically appointed for the task, enacted the Constitution in 1947. All judicial decision had to be taken in accordance with the law in the code, which became the primary source of law. (N.d.). 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 states that the legislative function must be exercised jointly by the two Houses of Parliament (. It will only apply if the facts of the current case are consistent with those of the decision from which is extracted the precedent. 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. Courts in Italy are divided into their specialties which include civil courts, criminal courts, and administrative courts. (g7J$&r^3*;v|d) *A,l ii @!P2Yx KD-KGHBFcFLY+3C04#DQ5"a j8 *2I1H8l 0;.2j 1AS Xxy&s7?4q2~^fasT$fdyKD`^DP @1,`S/47CY'%@ &d`G The Supreme Court of Cassation and the Constitutional Court are located in Rome. And even if the direction of the investigation is bureaucratic and reactive, prosecutors are still in a position to take very important decisions. They are entitled to introduce evidence, submit documents, and question witnesses both for and against their client. 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 Constitution is rigid (as opposed to a flexible constitution), since modifying it involves a more complex process of reform than that needed for amending ordinary laws. 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]. See Young v. Bristol Airplane co., 1944. Been appointed as judges of administrative and accounting courts. Some prohibitions exist in pre-determined cases, such as: Use of witness testimony to prove the existence of a contract. Claimant who starts the proceeding, alleges the disputed facts, and presents the evidence in support of the claim. The Italian law is based on Roman law in regards to civil law and the codes of the kingdom of Sardinia, one of Italy's 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.). At the end of the criminal trial, the court can pronounce a judgment of: declaration of extinguishment of the offence. 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. The law is in fact expression of the people sovereignty, exercised by directly electing their representatives in Parliament (art. Italy ranks 58th for overall ease of doing business and 98th for starting a business, out of 190 economies. In specific cases, the judge can also order the disgorgement of goods or property. 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. Disclaimer: This essay has been written by a law student and not by our expert law writers. Occupied certain managerial roles in the public administration. Under the Constitution, recruitment to the judiciary takes place through a public competitive exam published by the Minister of Justice (Article 106). As the Constitutional Court has stated, this principle is intended to guarantee equality before the law within the penal process. 65, regio decreto n. 12 del 1941. 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. England - 3. London Street Tramways Co. Ldt v. London County Council, 1898 The law-making procedure is divided into the following stages: Introduction of draft law (legislative initiative). 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. To promulgate the amendment, the majority of voters must approve it in the referendum. In contrast, civil law decisions usually do not consist of explanatory opinions. Take a look at some weird laws from around the world! 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. Judges are bound by the law, not by the previous decisions of higher courts. The court of appeal reviews the judgments delivered by the courts of first instance. Advises investment funds, both Italian and foreign companies, listed and unlisted, as part of their ordinary and extraordinary business activities. For example, out-of-court statements can be introduced by the parties and then evaluated by the court. 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). ., vM \@[Z*%*K3u2q#$)|0\&Wzeg'A Ordinary first instance judges preside over the courts (. Another well-known specialist court is the High Court of Public Waters, which has jurisdiction over disputes relating to public water issues. The judgment must contain a description of de facto and de jure grounds on which the decision is based. 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. Copyright 20102023, The Conversation Media Group Ltd, Lecturer in Environmental Art - School of Art and Design. 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. However, in specific cases and only if necessary to reach a decision, the judge can introduce further evidence at the trial. Looking for a flexible role? 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 . The President is also the commander-in-chief of the Armed Forces and chairs the Superior Council of the Judiciary. Italy - 4. 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. Likewise the Appeal Court can exceptionally overcome its pronounces. The courts are not only involved in the court proceedings but are also involved in the investigation which means that the prosecutor and the judge work together when finding out the facts of the case. Boundless Political Science. law, the current evolution of the law, developed by the Supreme Judicial Authority taking into account the dynamic requirements of the modern society. There is no jury in Italian civil proceedings. England 3. 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 Italian judicial system consists of a series of courts and a body of judges who are civil servants. In addiction, judicial decisions are not binding on the legislature, which so can pass new laws to overrule unpopular court decisions. I was denied admission because I didn't score 90% on the 100th or 100 on the 110th. Facts and evidence are gathered by both the defense and prosecutor and judged by a jury which is a group of regular citizens that are instructed by the judge to make a judgment based on the laws, evidence, and facts that the judge will then make a verdict. In the U.S., these are cases for state courts almost exclusively. C 6/64 Costa v Enel, ECLI:EU:C:1964:66 4 Across a sample of 13 Italian cities, starting a business can take about a week on average. Organisations and bodies empowered by a constitutional law (for example, the National Council for Economics and Labour (CNEL)). 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). 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. The government, which is the institutional body vested with executive powers, is supervised by Parliament. They have jurisdiction over the disputes in accordance with territorial jurisdiction rules. 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. Wickham, C. J., & Clark, M. (N.d.). Since the very beginning of their development, their differences seemed to be so marked that nobody could even suggest the contrary. You should not treat any information in this essay as being authoritative.
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