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DEFINIZIONE REATI
MURDER: the act of killing one human being with premeditation.
MANSLAUGHTER : omicidio colposo Killing a person without premeditation, which means that the action is carried out without prior intention to cause any harm to that person.
ASSASINATION: To kill a public figure usually suddenly , or a secret attack for political or religious reasons
PERJURY: intentional act of swearing a false or make incomplete or misleading declarations while under oath.
LIBEL: (diffamazione) To write some defamatory statement against someone which wrongly damages that person’s character, reputation or position.
SLANDER : calunnia. To defame a person by making oral statements in order to cause damage to that person’s character, reputation or position.
BLACKMAIL (ricatto) Demand money or another benefit by threatening to make public facts about a person’s private life which the person doesn’t wish made public
STALKING : various types of actions against another person such as repeated physical proximity, nonconsensual communication, verbal or written threats that would cause a reasonable person fear A stalker is a person who intrudes on someone’s private life by obsession or mental instability by preying on or watching that person in disguise for the purpose of making personal or intimate contact
HARASSMENT: (molestia) it’s a crime that consists of repeated and aggressive pressure or intimidation, in order to impose an undesired contact or verbal exchange with another person to the point of causing fear, alarm or distress to the victim
ASSAULT: the act of inflicting or threatening to cause immediate physical harm or unwanted physical contact upon a person
OBSCENITY : an act or statement considered offensive in consideration of present standards of moral or decency
UNLAWFUL ASSEMBLY: meeting of 3 or more persons in secret for the purpose of organizing unlawful activities that disrupt public peace and infuse a sense of fear or imminent danger in others
STEAL CRIME: -BURGLARY furto con scasso : The action of entering a dwelling or building where people live or work with the express intention of stealing something
- ROBBERY rapinathe act of stealing from a person by using force or violence, or intimidating threats. It is no necessary that the criminal harm the owner but the good has to be under his control.
- THEFT : to steal someone’s property or money that is owned by another person, with the intention of permanently depriving the owner of it, but does not involve the use of force.
FORGERY contraffazione : this crime consists in the action of making a copy or imitation of a document, signature, banknote or work of art that cause prejudice to the persons, by making them believe in its authenticity.
BRIBERY: corruzione act of offering a sum of money or something valuable to a public officer or person in a position of authority, in a illegal manner, in order to persuade them to do some favour for you.
EXTORSION: the practice of obtaining something, especially money, through force or threats , or by taking advantage of one’s position in regards to another person
EMBEZZLEMENT appropriazione indebita: action of illegally and intentionally withdrawing or misusing money which has been entrusted to someone by another person, entity or public institution Action of intentionally stealing someone’s property or money which are controlled by the defendant due to a fiduciary relationship between parties and which should be used for the best of the owner, not for the interests of the defendant.
PIRACY: the unauthorized use or reproduction of copyrighted or patented material like a films or music
EUROPA (PAG 26-104)
The Path to Establishing Common Enterprises.
EUROPEAN UNION – Shuman declaration; Churchill speech. The European Union (EU) it was a process, and not something that happened from one day to the next, but gradually, during a long period of years with many changes. - In 1946, at a conference in Zurich University, Winston Churchill declared what many consider the beginning of the post-war idea of the EU. In fact he said that it was necessary to “recreate the European family”. -In May 9 th 1950, Robert Schuman, in what became known as “ Schuman Declaration”, proposed the creation of a common European federation. The first step, for the union of the nations, was the elimination of the old-age opposition of France and Germany. For this, the French government proposed that all the Franco-germany production of coal and steel is placed under a common high authority. Even if the EU is imagined as a single unit, it was composed by three distinct communities. The first was the European community (EC ), before known as the European economic community, established under the 1957 Treaty of Rome. The second community was the European coal and steel community (ECSC) stablished in 1952 under the Treaty of Paris.
TRATTATO DI LISBONA:
The treaty of Lisbon entered into force on 1st^ December 2009 after several years of negotiations. First of all, this treaty wants to realize a more democratic and transparent Europe with a reinforced role of the European Parliament and national parliaments. The European Parliament, directly elected by citizens, has been given new important powers regarding Eu legislation. On the other hand, the national parliaments have new opportunities to be more partecipative in the work of the Eu. Also, one million citizens have the possibility to invite the commission to presents new policy proposals. The Treaty of Lisbon wants to create a more efficient Europe with simplified working procedures and voting methods. The qualified majority voting method was introduced for some new policy areas. Also, a Europe of values, freedom, solidarity and security was created by introducing the Charter of Fundamental Human Rights into primary law. Thanks to Treaty of Lisbon are enforced the old values and created new once. The Treaty also guarantees the freedom of movement of goods, people, service and capital over borders. The treaty also not only put Europe on the global stage, but gives Europe clear voice on the global stage in the relations with partners worldwide.
THE EU INSITUTIONAL FRAMEWORK- treaty of Lisbon TITLE III PROVISIONS ON THE INSTITUTIONS: ART 13: Union shall have an institutional framework which shall aim to promote its values, advance its objectivies, serve its interests, those of its citizens and those of the member states, and ensure the consistency, effectiveness and continuity of its policies and actions Based on art 13 the union’s istitutions are: E parliament; E council; council, E commission; court of justice of the eu; E central bank; the court of auditors These institutions shall practice mutual sincere cooperation
Each istitutions shall act inside the limits of the powers conferred by the Treaties.
Art 14: THE EUROPEAN PARLIAMENT, together the Council , exercise legislative and budgetary fuctions. It exercise the political control and consultation. It shall elect the President of the Commission. It is composed of representatives of the union’s citizens. The members of the parliament shall be elected for 5 years by direct universal suffrage. The e parliament shall elect its president and its officers from among its member
Art 15 : THE EUROPEAN COUNCIL : must define the general political directions and priorities of the union. It shall NOT exercise legislative functions It’s composed of the head of state or Government of the member states, together with the president and the president of the commission.
The President is elected of the E. Council by a qualified majority for two and half years renawable once. The president of the European council shall not hold a national office
Shall meet twice every since months.
Art 16: THE COUNCIL: shall, jointly with the European parliament, exercise legislative and budgetary functions. It’s composed by a representative of each member state at ministerial level.
Art 17: THE COMMISSION: shall promote the general interest of the Union and take appropriate initiatives to that end. It has to guarantee the application of the treaties. Members of the commission shall be chosen from among the nationals of the member states on the basis of a system of equal rotation between the member states.
Art 19 : THE COURT OF JUSTICE of the European Union it’s composed by
- The court of justice
- The general court
- The specialized courts.
It shall ensure the correct interpretation and application of the treaties. Member state shall provide remedies sufficient to ensure effective legal protection on the matters covered by union law
- The court of justice shall consist of one judge from each member state.
- The general court shall include at least one judge per member state
Judges shall be chosen from persons completely independent and who satisfy the conditions ex art 253 and 254 of the TFUE. They shall be elected by common accord of the governments of the membeter states for six years. Duties: The court of justice of EU has the control on actions brought by a member state, an institution or a natural or legal person; Court has to give preliminary rulings, at the request of courts or tribunals of the member state, on the interpretation of union law or the validity of acts adopted by institutions Last, court has to rule in other cases provided for in the treaties
CRIMINAL LAW: THE EAW EUROPEAN ARREST WARRANT
MANDATO DI ARRESTO EUROPEO
The European Arrest Warrant ( EAW ) is an arrest warrant valid throughout all member states of the European Union(EU The European arrest warrant (mandato) is applied in EU since 2002. It is instrument that replaces the slow extradition procedures that existed in Europe before 2002. The EAW can be requested by member state if the offence is on the list of the council frame work decision, where there are 32 types of the offences, such as terrorism, sabotage, trafficking in human beings ecc. The EAW improves and simplifies judical procedures for the purpose of conducting a criminal prosecution or executing a custodial sentence or spell in detention. Once issued by a member state, it requires another member state to arrest and transfer a criminal suspect or sentenced person to the issuing state so that the person can be put on trial or complete a detention period. Member state shall execute an EAW on the base of the principles of mutual recognition (art 6). The EAW shall
prosecution is definitively barred or if the judical authorities of a member state have adopted a decision by which the accused is finally acquitted in respect of the alleged acts. Whether a person has been finally judged for the purposes of art 3 of the FD, is determined by the law of the member state in which judgment was delivered. So a decision which, under the law of a member state which instituted criminal proceedings against a person, doesn’t definitively represent an obstacle to a further prosecution at national level in respect of certain acts cannot constitute a procedural obstacle to the possible opening or continuation of criminal proceedings in respect of the same acts against that person in one of the member state. When, in response to a request for information made by the executing judicial authority, the authority that issued the arrest warrant has expressly stated on the basis of its national law that the earlier judgment delivered under its legal system is not a final judgment covering the acts referred to in the arrest warrant issued by it, the executing judicial authority cannot as a general rule refuse to execute the European arrest warrant.) (*the national court’s questions in actual fact relate more to the concept of “finally judged”. Thus, this case raises the question whether the fact that the Italian investigating authorities had, at the time of the conviction for possession of narcotic drugs (2005), evidence concerning the accused’s participation in a criminal organisation, but did not submit that evidence for consideration by the Tribunale de Catania in order not to jeopardise the smooth running of the investigation, meant that there was already a decision which could be regarded as a final judgment in respect of the acts set out in the arrest warrant. The Court notes that a requested person is considered to have been finally judged in respect of the same acts where, following criminal proceedings, further prosecution is definitively barred or the person is finally acquitted. Whether a person has been ‘finally’ judged is determined by the law of the Member State in which judgment was delivered. Consequently, a decision which, under the law of the Member State which instituted criminal proceedings, does not definitively bar further prosecution at national level in respect of certain acts does not constitute a procedural obstacle to the possible opening or continuation of criminal proceedings in respect of the same acts in one of the Member States of the European Union. When, in response to a request for information made by the executing judicial authority, the authority that issued the arrest warrant has expressly stated on the basis of its national law that the earlier judgment delivered under its legal system is not a final judgment covering the acts referred to in the arrest warrant issued by it, the executing judicial authority cannot as a general rule refuse to execute the European arrest warrant.)
THE ACTIONS TAKEN BY THE COURT OF JUSTICE OF THE
EUROPEAN UNION
The court interprets eu law to ensure it is applied in uniform way in all EU countries, and settles legal disputes between national governments and eu institutions.
It can also be used by individuals, companies or organisations to take action against an eu institution, if they feel it has somehow infringed their rights. The cjeu gives rulings on cases brought before it. Most common types of case are: a. Interpretating the law, when a nation court is in doubt about interpretation or validity of an eu law and needs a clarification. (preliminary ruling) b. Enforcing the law (far rispettare la legge) c. Annulling eu legal when an eu act is believed to violate eu treaties of fundamental rights. d. Ensuring the eu takes action: (garantire che l’ue intervenga) e. Sanctioning eu insitutions: any person or company who is indirectly damaged or harmed by an action or inaction of the eu or its staff, can take action against them thought the court.
Civil law case c184/14 A vs B This was a case where the corte suprema di cassazione of Italy, requested for a preliminary ruling under art 267 TFEU The request concerned the interpretation of art 3 c and d of EC n4/2009. This case is about married couple with tuo minor children that decides to split up. The italian family lives in London, where the 2 children were born and are resident. The spouse A asked to the Italian judge (Tribunale di Milano), to be separated from spouse B, and asked also for hers and their children maintenance and the children’s custody. The italian judge (tribunale di Milano) has declared himself competent to decide about the spouse’s maintenance (on the basis of art 3 of reg no 2201/2003) but not for the children. This because the minor children were born and are residente in London. For this reason the only judge who had the jurisdiction relating to ‘’parental responsibility’’ was the British one. Reg. according to the regolutation ec n. 4/2009 art. 3 lett.C – D. Jurisdiction in matters relating to maintenance obligations — Regulation (EC) No 4/2009 — Article 3(c) and (d) — Matter relating to maintenance in respect of minor children concurrent with the parents’ separation proceedings, brought in a Member State other than that in which the children are habitually resident.
THE STATE OF THE UNION ADDRESS 2018
Remarks by High Representative/Vice-President Federica Mogherini at the press conference on the 2018 State of the Union - a new "Africa-Europe Alliance for sustainable investment and jobs"
Federica Mogherini, high representative of the union for foreign affair and security policy made a speech where she espressed her views on the scope of EU cooperation in 2019. In this speech, she talked about the necessity to change the point of view: not to work ‘’for’’ Africa, ma work ‘’with’’ Africa, building a partnership of equals. She said the relationship is changed: not anymore a ‘’donor-recipient’’ kind of relationship, based on humanitariam helps, but a political partnership, and in the last couple of years, a economic partnership, between European union and Africa. The launch of ‘’africa- europe alliance for sustainable investment and jobs, is the new step.
No one may be removed, expelled or extradited to a state where there is a serious risk that he or she would be subjected to the death penaly, torture, or other inhuman or degrading treatment or punishment
ART 24 THE RIGHTS OF THE CHILD Children shall have the right to the protection and care necessary for their well.being. they can freely express their opinions. Those opinions are taken into consideration on matters that concern them according to their age and maturity
In all actions relating to children the child’s best interests must be a primary consideration
Every child shall have the right to maintain a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests
CHAPERT VI, JUSTICE ART 47: RIGHT TO AN EFFECTIVE REMEDY AND TO A FAIR TRIAL Everyone who has their rights and freedoms violated, guaranteed by the law of UE, has the right to an effective remedy before a tribunal in accordance with the conditions required in this art Everyone has the right to have a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented Legal assistance shall be made available to those without sufficient resources when that assistance is necessary to guarantee effective access to justice.
EUROPEAN CONVENTION ON HUMAN RIGHTS
Art 6 RIGHT TO A FAIR TRIAL: (as the art 3 also says) this is a provision which protects the right to a fair trial. In criminal law cases it protecrts the right to a public hearing in front of a independent and impartizial tribunal in a reasonable time; the presumption of innocence; other minimum rights for those charged in a criminal case (Like adeguate time to preprare their defence etc)
- In the determination of his civil rights and obligations or of any criminal charge against him, everyone has the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
- Everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law.
- Everyone charged with a criminal offence has the following minimum rights: (a) to be informed quickly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and the facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient resources to pay, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
THE EUROPEAN COURT OF HUMAN RIGHTS ECHR
Grand chamber, strasburgo, 4 novembre 2014 Case law n 29217/!2 TARAKHEL VS SWITZERLAND The convention of the protection of human rights and fundamental freedoms. The case is about a couple, Mr tarakhel and his wife, who left Afghanistan, with their six minor children, and arrived in Italy, once they were subjected to the EURODAC identification procure, they were transferred to the CARA (reception centre for asylum seekers) in Bari (Puglia), where, according to applicants, living conditions were poor and inappropriate. Soon applicants left CARA without permission and travelled to Austria. Austrian authorities requested their transfer to Italy, but the family went to Switzerland, where they asked for political asylum. They told to the federal migration office that living condition in Italy were difficult and it would be impossibile to find work there However, FMO rejected the applicants asylum application and made an order for their removal to Italy. But the applicants appealed against their removal from Switzerland to the federal administrative court, WHICH WAS rejected 2 times, and finally appeald to the European court of human rights (CEDU) A suspension of their removal was granted. In applicants opinion, there were the violations of art 3 and 8, alleged mainly that if they were returned to Italy they would be exposed to inhuman and degrading treatment because there was the risk of being left without accommodation or being accommodated in inhuman and degrading conditions. Also under art 13 and 3 of convention, applicants stated that the swiss authorities had not given sufficient consideration to their personal circumstances and had not taken into account their situation as a family.
The court decided to examine the case, and first said that the state participating in the Dublin system must respect the fundamental human rights always. The receiving country can’t force an asylum seeker to return in his country, when this represents a real risk of being subjected to treatment contrary to the provisions in the receiving country.
Concerning the situation of the Italian reception arrangements there is a number of failings, for example about the living conditions in the available facilities. The court had stressed the efforts undertaken by Italy to improve reception conditions for asylum seekers and noted some problems about legal aid, care and psychological assistance and the preservation of family unity during transfers. Accordingly, the view of the court, the possibility that a significant number of asylum seekers may be left without
remained in an EU Member State beyond the permitted duration of their stay without the appropriate visa (typically 90 days or six months), or of their visa and / or residence permit.
- MIGRANT SMUGGLING (traffic di migrant) procurement for the purpose of obtaining, directly or indirectly, a financial benefit, by way of the illegal entry of a person into a State that the person is not a national or permanent resident of.
- RISK OF ABSCONDING (DI FUGA) the likelihood, based on objective criteria, that an individual subject to transfer procedure may disappear
- BURDER OF PROOF (onere della prova) : duty of the applicant, during a regufee status determination procedures, to estabilish their case, to produce evidence that they have a well founded fear of persecution
- TEMPORARY PROTECTION : exceptional procedure to provide, in the event of a mass influx of displaced persons from non-EU countries, non-permanent solace to avoid the collapse of the efficient operation of the asylum system.
- EXPULSION : removal of a non-EU national subject to expulsion decision based on a serious and present threat to public order or to national security and safety
- PRIMA FACIE REFUGEE : person recognized as a refugee, by a State or UNHCR, on the basis of objective criteria related to the circumstances in their country of origin, which justify a presumption that they meet the criteria of the applicable refugee definition.
EUROPEAN AGENDA ON MIGRATION: four pillars: 1: trackling the drivers of irregular migration 2: stronger border management 3: protection and asylum 4: legal migration and integration
CHAPTER IV- COMMON LAW PAG 137-
CHAPTER IV – COMMON LAW
INTRODUCTION
The common law SYSTEM IS DISTINGUISHED BETWEEN:
Public law branch has to do with administration of the law of the state. It deals with conflicts between citizens and the state in areas such as immigration, health, defence etc. Private law : deals with relationships between legal persons and includes family law, contract law and property law.
But most important distinction is between:
Criminal law has to do with human behavior that the state considers potentially punishable. This behavior is called ‘’crime’’, such as murder, manslaughter, assassination, embezzlement, theft, robbery, burglary etc. And they are punished by the state, who prosecutes the offender.
Civil law : concerns relationships between private persons, rights and duties of individuals, organizatons and associations, compensation and injunction.
There’s a possibility that fields of the law intertwining. For example: road accident: accident may lead to both a criminal prosecution and a civil action for compensation of damages done to a person who was entering a freeway or crossing a bridge against traffic. The martin case deals with both a civil action and a criminal prosecution against the defendant, mr Anthony martin, by the crown and a victim of a sho wound
Substantive law : is the set of laws that regulates people’s right and responsibilities and duties Procedural law : consists in the set of procedures that ensure a fair and equal application of due process of fundamental justice. Determines how a case is administred by the courts
THE LEGISLATIVE:
the UK parliament, located in westminister, has 2 chambers: house of lords and the house of commons. They sit separately and are based on different principle. Both houses make laws, make scrutiny and debate on current issues In general, decision taken in one house have to also be approved by the other. In this way the two chamber system acts as a checks and balances system for benefit of both house
- House of common : is an elected body of members. In the UK each of the electoral areas of divisions of the kingdom are called constituencies. Each constituency elects one member to a parliament or assembly. The party with the largest numbers of member in the house of commons gets to form the government. Members debate on the big political issues of the day and make proposals for new laws. In addiction, The commons alone is responsible for makin decisions on financials bills such as proposed new taxes Lord can consider this bills but cannot block or amend them. It’s responsible for providing money to the government through the approval of bills in tax matters.
- House of lords : is the second chamber of uk parliament. its members are mostly appointed with a minory elected (in replacing of the hereditary peers)
precedent according to their position in the hierarchy. The courts must follow precedent of the court above it so precedent has a vertical effect on the Courts below. The Supreme Court is bound by its own previous decisions so president has horizontal effect. Part of the case which operates as binding precedent is the ratio Decidendi. The ratio is the principle on which the judge based his decision in the case. Both criminal and civil courts in England and wales primarily hear evidence and aim to determine what exactly happened in a case In general, lowers courts decide matters of fact; upper courts deal with points of law. In England, in a simple civil actions, for example family matters, are normally heard in either the magistrates courts or the county courts.
LOWER COURTS: A. MADIGSTRATES COURT: deal with they are also a key part of the criminal justice system. many civil simple cases such as family matters, liquor licensing and betting and gaming, but Judge have different titles depending on their experience, training and level. -There are stipendiary magistrate, who are full time paid magistrate who is qualified as a lawyer and sit alone with more complex cases -or a panel of three lay magistrates (justices of the peace), supported by a legally qualified court. These 3 magistrates are elected by the Crown from the local community, and are unpaid and have no legal qualification, but they could have subsistence, travel and loss of earings allowance. There is no jury in the magistrates court. Magistrates cannot order sentences of imprisonment that is superior at 6 months or fines exceeding 5000£.
B. COUNTY COURT: deals with civil matters: first instance for complex civil cases such as contract disputes, compensation claims, banckrupty cases, consumer complaints about faulty goods or services and divorce or adoption issues. Also they deal with family matters appeals from the magistrates courts. In this courts sit stipendiary judge, circuit judge, who have been qualified for 10 years, and recorders, part time judges with 10 years standing as a barrister or solicitor. Usually there is no jury, so normally the judge considers both law and fact.
C. TRIBUNALS : The system of courts in the United Kingdom.71 is supplemented by a substantial number of tribunals, set up by Acts of Parliament They decide rights and obligations of private citizens toward each other and towards a government department or public authority relating to the areas they cover, such as immigration, social security, child support, pensions, tax and lands. Thought a less forma procedure, a panel of 3 judges tries to resolve disputers without the need for legal representation. The chairperson is normally the only legally qualified member. The other two are lay representatives who usually
have special expertise in the area governed by the tribunal, gained from practical experience There tribunals are inferior to the courts and can refer to decisions of higher courts before making their decision
SENIORS COURT
A. THE HIGHT COURT OF JUSTICE deal with the most complex civil cases, such as the adminsitration of estates and actions for the recovery of land. It is composed of three division:
- The Queen’s bench : deals with of the contract law and personal injury, general negligence cases, libel and slander, but it also has responsibility as a supervisory court. its main work is to hear claims for personaly injury, begligence, defamation, non payment debts…
- the Chancery division : takes care of the following areas such as disputes regarding business and property; competition; patents claims; intellectual property claims; trust claims etc.. The Head of this division is the Chancellor
- and The Family division: deals with all matrimonial matters, such as divorce, family homes and Domestic violence. It is competent for child abduction, probate and hears all cases relating to children’s welfare. It has exlusive jurisdiction in cases related to wardship. Judges of high court are elected by Queen following the recommendations of the Prime Minister.
B. THE CROWN COURT deals with more serious criminal cases such as murder, rape or robbery, and deals with appeals and cases transferred from magistrate’s courts. The Trials are heard by a judge and jury composed by 12 people. For jury are selected members of the public. For serious offence means that an offence for which a person of full capacity and not previously convicted that the law punishes with at least 5 years of imprisonment.
C. COURT OF APPEAL : is the highest court within the senior courts, sits in London and consist of two division:
I. the civil division: hears appeals from certain tribunals, county courts England and Wales and 3 division of the High Court. II. the criminal division: hears appeals from the Crown Court.
The court of appeal can reverse a decision of the lower court with binding decisions.
D. SUPREME COURT: is the final court of appeal in the UK. This Court also has an important role in the development of UK law. It hears appeals that are of general public importance. It focuses on the most important public and constitutional case. the supreme court decisions are binding on all court below, but not on itself. The new supreme court is a UK body legally separated from the England and wales courts
or ‘’legal question’’ which is the object of the dispute before the court. So the essential ruling on law in a case is the ratio decidendi, and the rest of the judgment is considered ‘’obiter dicta’’
STARE DECISIS the main characteristic of the common law legal system is the doctrine of binding judicial precedent: it is a judgment made by a the court/judge which is published in reports to be used in the future for decisions in similar cases. Is also known as ‘ ’stare decisis’’ and established that the judges are under a legal obligation to follow the precedent issued by an upper court. In other words: the judge has to decide a similar case by the application of the same principles previously established by the courts. Precedent judgments are cited as authority in decisions made in new cases if the facts are similar and if the legal principles representend in the judgment serve as precedent. Therefore (pertanto), the judge plays a central role in the common law legal system as a type of law- maker for the specific case, because if it doesn’t exist any legislation or precedent for a case that the judge has to decide, he has the power to make law by pronouncing a new rule to solve that particular case. In the common law legal systems the courts are organized in a hierarchical structure
- The Supreme Court –
- Court of Appeal –
- (^) the High Court –
- The Crown Court –
- The magistrates courts –
- County courts –
- Tribunals.
In the English legal system only the Superior Court ( The Supreme Court – Court of Appeal – the High Court - The Crown Court ) can create binding (vincolante) precedent; it can only be created in appeal cases, not at first instance. The courts must follow precedent according to their hierarchical position, rule is: a court is bound to follow any precedent decided by a court above in the hierarchy, this is the vertical effect. And it has also a horizontal effect: The court of appeal is also bound by its own previous decision.
Part of the case which operates as binding precedent is the ratio Decidendi. The ratio is the principle on which the judge based his decision in the case. It’s the legal question that characterizes one case from another. Common-law judges analyze the facts of the case carefully usually at the beginning of their judgments.
CASO DI MARTIN PAG 180-
CRIMINAL CASE LAW
The case we are going to examine deals with the concept of self-defence and the fine line between murder and manslaughter
ANTHONY MARTIN VS R CASE
Tony Martin is a farmer, who shot dead a young burglar in his home and injuried another. His defense isn’t qualified as self-defence to murder. In fact, the jury decided that he had used an unreasonable force in the circumstances, and he was convicted of murder. The verdict caused a public protest and the case attracted much publicity and sympathy from the public, also because Mr. Martin, like Mr. Newbery, was sued for damages in a civil action by the intruder who survived.
On appeal, the consequences for Mr. Martin were softened. In fact his solicitor instructed a consultant psychiatrist but it is found that is was not suffering from depression and no evidence of mental illness at the time of the alleged offence. After mr martin’s trial and conviction, the new defence team instructed another psychiatrist consultant. The doctor this time found that mr martin’s mental characteristics at the time of the killing, brought him to perceived a much greater danger to his physical safety then average person. Mr martin honestly thought that he was in an extremely perilous situation and he needed to take immediate defensive action to counter the attack he was under.
SENTENCE The court admitted that Martin was suffering from a personality disorder. Martin’s conviction for murder was quashed and was substituted by a conviction for voluntary manslaughter. He killed with the topic means rea of murder, malice aforethought, but the presence of mitigation circumstances reduced his liability from murder to manslaughter. In the Martin case, a discussion developed about the need to reform the law. The subject of the discussion is if a defendant should be convicted of murder if he was acting in self-defences but used excessive force in self-defence. A defendant should be regarded as being guilty of manslaughter and not murder
CIVIL CASE LAW + CASO NEWBERY PAG 215/
Civil case law Legal action and objectives. In civil law, as opposed to criminal law, proceedings are initiated by private citizens. The objective of a civil legal action is to establish rights against another person or group of persons. In civil law trials, it is the claimant (ricorrente) instead of the prosecutor who ‘ sues’(citare in giudizio) the defendant. In the UK, the case will be heard in the relevant court, usually the County Court or the High Court, based on the kind of case and the amount or nature of the loss or harm being done and claimed. It is claimant’s duty to prove that the events took place in the manner in which they did, in other words: he has the burden of proof. The decision needs to be made in favour of the party ‘whose claim is most likely to be true’. On the contrary, in a criminal case, the burden of proof is the responsibility of the prosecution. If the case is proved successfully for the claimant, the court will issue a particular order (also known as direction), depending on both the nature of the case and the claim(s) made by the injured party. In these circumstances, the court may order the
