Under stare decisis, a single case that has been decided upon is binding law to the same extent as a statute or regulation in common law systems. Grossi, S. (2010). Figures expressed per million people for the same year. Thecriminal system is broadly an adversarial system and is governed by the presumption of innocence. Transmission of the text to the other House for approval in the same form or with amendments. Civil liability is based on the principle of the burden of proof. 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. The jury system is seen as an integral part of the legal system, even though only 1% of criminal cases go before a jury; among the general public in the UK, juries are more trusted than judges, magistrates or government ministers, and the right to a jury trial is seen as more important even than the right to political protest. hVmo9+KS2$$fI;w1E74pyc8#(A~/8xD$eF HCWVTn:7NeqBw?|c s%iJBF81O040VFyrr2jN~}\C\T M yPZNNW59y>5-t3(Caf&;;:%zjut$azsA39\%|+c5'Fp'( 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. Before this occurrence, in fact, each part of England had different local rules, an unpleasant situation which rendered very complex the relations between traders due to the halo of uncertainty surrounding the law which was to be applied. There is no jury in Italian civil proceedings. 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. Likewise the Appeal Court can exceptionally overcome its pronounces. 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. Ordinary first instance judges preside over the courts (. 28 ottobre 1940) -Constitutional Reform Act, 2005 The Civil law system, indeed, entirely relies on the legislative source of law. Justice. Generally there are no provisions making the decisions of higher courts binding on lower courts, except: When reviewing an appeal judgment, the Supreme Court of Cassation can return the file to the Court of Appeal, imposing a specific principle of law to resolve the dispute. The Italian system instead, following the Roman tradition and the French Codification experience, is entirely based upon the written legislative source. This does not mean that in Italy investigations are routinely conducted and structured like in England, because the police consider prosecutors as their superiors during the investigation. Courts in Italy are divided into their specialties which include civil courts, criminal courts, and administrative courts. 1351 0 obj <> endobj 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. A jury is present only in the court of assizes (. 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. Do you have a 2:1 degree or higher? In particular, commentators have focused on the central role of the cases prosecutor something poorly understood outside Italys distinctive legal culture. ;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 Enter to open, tab to navigate, enter to select, 24 hour Customer Support: +44 345 600 9355. 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 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. byMarco Gubitosi, Niccol Bertolini Clerici, Andrea Tortora della Corte, Marianna Consiglio, Legance Avvocati Associati. The result of this although partial analysis, is the evidence of how the distinctions between the two systems have blurred, as a consequence of a trend of change registered from both sides, the one taking inspiration from the other, towards a common point of coincidence, a commixture more fitting the modern globalization reality. They can also help to improve them. View examples of our professional work here. Investigations are confidential and therefore any pre-trial inquiries are protected. 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. Ethical and social relations, for example, the rights to: Political rights, for example, the right to vote and to be elected. There are actually two kinds of binding precedent: Vertical, which binds all the courts from the highest to the lowest (i.e. 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]. 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. Occupied certain managerial roles in the public administration. The government, which is the institutional body vested with executive powers, is supervised by Parliament. Since the very beginning of their development, their differences seemed to be so marked that nobody could even suggest the contrary. Decide on preliminary questions of ritual or merit raised by the parties or noted. 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]. The parties are responsible for introducing evidence about the guilt or innocence of an accused person. Italian civil procedural law is governed by the dispositive principle (. 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). Causes of the 14th Amendment to the US Constitution. This differs from the United States where the second-highest form of law are the statutes which are laws enacted by legislatures and then the third would be executive orders (Baum, 2013). endstream endobj startxref 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. 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). 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. 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. computer manufacturer whose litigation experience had hitherto been confined mostly to the Italian legal system. 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 (. 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. They rarely do so because the Cassazione is the court of last instance and thus parties can appeal any kind of decision even slightly divergent from what is the interpretation of the law made by the Court itself with its precedents. However, in specific cases and only if necessary to reach a decision, the judge can introduce further evidence at the trial. Published: 9th Jun 2021. Send messages to Parliament and dissolve one or both of its houses. The applicable sanctions on a conviction are: Various forms of detention including imprisonment or house detention. The role of the precedent in the English and Italian judicial system: Between Stare Decisis and Constant Jurisprudence, SUMMARY: 1. In the adversarial system in the United States, the judges play a comparably passive role in the proceedings (Grossi, 2010). 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. No referendum is required to amend laws approved on the second round of voting by a two-thirds majority of the members of each parliamentary house (super majority). The courts of appeal review the judgments of the courts of first instance. 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. For example, they can sanction negligent conduct and delaying tactics. hbbd``b`{AcH0l n $XA,/l4HqHIH,HQ@bv&Fk@#nU + In Italy, the court of last resort is the Corte di Cassazione which resides in Rome (Grossi, 2010). 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. [11] Art 1 disp. Costituzione della Repubblica Italiana, [Gazzetta Ufficiale 27 dicembre 1947, n. 298]. All judicial decision had to be taken in accordance with the law in the code, which became the primary source of law. Regio Decreto n. 12 del 1941. In many ways, it is very different from the system in the United States. Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not reflect the views of LawTeacher.net. Consequently, a lower court may not rule against the higher, even if it feels that the precedent is unjust; it may only express the hope that a higher court will reform the rule in question, issuing an only-persuasive dissenting opinion which might encourage the claimant to appeal the forced decision, in order to let the higher court overturn it, setting a new precedent of higher authority. In the specific cases provided for by the law, request further investigations (expert examination of the facts, witness clarification requests and information from public bodies). 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. 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. Retrieved from http://www.picchieassociati.it/ENG/more-details/the-italian-law-system. To promulgate the amendment, the majority of voters must approve it in the referendum. ., vM \@[Z*%*K3u2q#$)|0\&Wzeg'A [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).
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