Issues in Comparative Criminal Justice

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Introduction

Administering justice is often a very complicated task in some cases. Many nations have over time developed different ways of ensuring that they have a better way of compensating the victims of crime and punishing the perpetrators. Italy is considered the motherland of criminology since its justice system has been developed since the 18th century. During that time, the classical and positivist approaches provided opposing explanations of how crime was committed or the behaviour of criminals. Crime in Italy grew alongside these advances in justice system. Mafia was born- an organized secret group that carried out criminal activities. The groups emerged as regional enterprises but sooner were all over Italy. Mafia has been terrorizing people and engaging is serious crimes, and using a chain of friends and family members to protect themselves from the law.

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Changing the Code of Criminalization

In 1988, a critical change was made in the code of the process of criminalization by the Italian parliament. The reason for this move was the reality that the new code asserted to initiate an adversarial arrangement that would be founded on the Anglo-America form into a nation that had previously used the inquisitorial system. The judges presiding over a trial would have reduced roles in producing the relevant evidence. Rather this responsibility would be the duty of the parties. The previously inquisitorial model, the judges at a trial were allowed to use any of the information that was collected during the investigatory stage. The involved parties would call their witnesses to the stand to offer a testimony, even if they had already given their statements during investigation to the police earlier on3. The defendant would then have to react to the allegations accordingly and cross examine the witnesses as well as offer contradicting statements to those given by the witnesses.

The inquisitorial Model

This system is aimed at seeking justice and consists of more than two parties. Often, the parties involved are entangled in a conflict in as far as the issue of gathering information is concerned. In addition, the parties do not always agree on a single mode of presenting evidence. Furthermore, their give contrasting arguments and views in the presence of either a jury, or a judge. The trial judge/jury that is presiding does not have any knowledge of the litigation until the case is presented by the two parties for ruling. In this model, the presiding judge supervises the collection of the information rather than being a passive recipient.

The judge leads the information search by questioning the witness(s) and defendant. The parties’ lawyers in the case assume very passive roles as they only guide the inquiry. The trial judge asks the two parties in the case all the applicable questions. Attorney’s questioning for certain clarifications is hence very brief. The main reason for the inquisitorial model is to get the truths just as in adversarial system, which when implemented puts the two parties at hit. The parties confront each other with facts, and it is usually expected that the truth will be revealed. Inquisitorial model is more sedative as it questions those that are most acquainted with dispute.

The Adversarial Model

This model of seeking the truth as administering justice is by allowing the parties involved to joust until some truth comes out. It also allows the parties to present their differing claims as facts and the judge plays the role of balancing the contest without being actively involved in the disputation. This is in opposition to inquisitorial where the judge seeks to solve the deficiencies of the dispute on both sides. The judge then offers a ruling on the disputed points of process. He/she may question the parties to clarify the presented evidence by the witnesses, but otherwise does not actively take part in the whole process. As the trial is concluded, the judge or very rarely the jury delivers their verdict. This model tends to emphasise more on human rights and more so in as far as the accused is concerned. On the other hand, the main focus of the inquisitorial model is the need to discover the truth and not the human rights of an individual who is being accused of committing a crime.

Inquisitorial System Changed Into Adversarial System

In the UK, the ecclesiastical courts started demanding that the defendants and witnesses give their statement under an oath, which was administered, by a judge who would in-turn question the witnesses. This system was very famous form 13th to 16th century as the Star Chamber court constantly used this approach. Sooner, the Star Chamber was dropped for being repugnant to the main liberty and slowly the UK moved to adopt adversarial model.

Following the early advancement in governance like the French revolution, the justice system saw some critical changes. The model was very good and it spread all over Europe very fast and to Africa, Asia and the Latin America. It is believed that the inquisitorial is more used than the other adversary model. Nonetheless, some nations like Italy have adopted a blend of the two models in their courts systems. There are variations in the inquisitorial systems formation to nation. Most of them offer a full review of the said cases incase an appeal is made. In the event of a civil trial, regardless of the systems employed, the defendants and the respondents could be summoned to give their testimony13.

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The inquisitorial system needs to be changed and adopt the adversarial system, as it brings out the truth in a better way. References of criminal law courts and processes are codified, which begun long ago, as there are various codes in use today. The criminal code emphasized mostly on the control of crimes and providing detrimental outcomes to the civil offenders. The law has survived many changes in the legal structure due to the strong structure and the liberal foundation principles.

It has been indicated that the code of criminal process was implemented forcefully from 1989 and this year formed the turning point in the Italian systems. This procedural code formed the beginning of the adversarial laws from the inquisitorial system, traditionally a French innovation, and though there was a lot of resistance that met the changed process, the new model was advantageous as it opened the way for cross examination of the defendant and the plaintiff. The parties now usually do the cross examination, carry out private defence investigation and determine the sentence the accused gets.

In Italy, the system adopted is a blend of the two. The criminal system in Italy hence portrays mixed feature ranging from exclusively inquisitorial to adversarial model. For instance, during the trial that are of continent context, the victims are in most cases allowed to play an active role in that they can be represented by a lawyer who will act not differently from a prosecutor or a defence lawyer.

Another important feature in the trial process is that the trial is used to determine the guilt of the defendant and subsequently impose a sentence if the defendant is found guilty, a sharp contrast with what happens in the US and England. A trail is only limited to determining the guiltiness of the defendant and sentencing is done during a different session which could have dissimilar evidential rules. In Italy, under a similar code, the trial determines the guiltiness of the defendant and passes a sentence accordingly.

The code never planned to introduce a neutral character of common law, identified as the jury In Italy. The common people participate in a jury in Italy for a serious crime only. For instance, treason, kidnapping and murder. Even in such instances, these lay people sit among judges for them to make decisions. This mixed panel model is common in France and Germany. Criminal trials in Italy are done before professional judges and there is no participation of the lay people.

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There are three major aspects indicating that Italian trail system has moved towards the adversarial system than any other. First, there was reduced influence of the data collected during the process of investigation. All the information gathered in continental trial systems by the police or the parties are filed in a ‘dossier’. Whereas almost all the restrictions in the US now permit the victims to be present during the hearing of which is very important during trials. The dossier contains all reports from the law enforcement investigations, statements from witnesses, reports from experts and other material. Italian code has attempted to limit the influence of dossier at trails by creating a trail model that requires producing a new presentation of all the appropriate evidence against the defendant. Judges are, however, restricted from accessing the dossier. This makes it appropriate for the parties to call their witnesses who are familiar with the evidence as required. Italian code requires that first; the prosecutor presents before the court the underlying evidence against the defendant then followed by the other parties including the claimant. The party calling the witness conduct the initial questioning and not the judge with the other party given allowance to cross examine as well. The presiding judge may question only to clarify evidence.

Reasons for Changing the Code towards Adversarial Model

Both the inquisitorial and adversarial models have advantages that are unique. The main purpose of the processes is to obtain the truth. By pitting the parties, each can direct the way the debate goes and evidence cannot make the decision biased since the judge in the current system is not allowed to access the dossier. It has also been found that adversarial system ranks higher on the probability of presenting all the evidence for the said case. There are also very high chances that the defendant and the victim will have equal and fair chance of voicing out their cases. In Italy, the inclination towards adversarial, though most of the time a blended system is used, has been influenced by cultural values. The benefit that adversarial has is that the parties enjoy greater control of the case, nonetheless, the result in Italian system could not be so accurate since most cases have often applied a blended system meaning that they enjoy both inquisitorial and adversarial features.

Adversarial system is, however, likely to fulfil the main aim of a justice. In every country, the idea of using that criminal law is to stop, prevent crime that infringes the interests of the public or the state and deterrence is that primary feature of the criminal code. Measures for some types of punitive forms is also basic to the criminal law, sounding serious warning to those who may want to engage in criminal activities and in some cases, restitution to the victims and their immediate relatives may be incorporated in the statute.

Adversarial model is believed to effectively achieve the five important goals of the criminal justice system that have been identified in law enforcement as effected by restitution, rehabilitation and punishment.

The Background of Italy Mafias and Organized Crimes

Organized crime is very difficult to comprehend by any average person. It is very pervasive, dangerous and diverse. Furthermore, it is an international problem that is intimately connected to concepts of global terrorism. The major fear about mafia organizations is that they are rooted in families and friends’ connections by people who strongly regard themselves as upright and law abiding. It is believed that Clodius is the man behind the emergence of mafia organizations. He was very prominent in the 59-50 BCE in the olden days of the Roman Empire. When talking about organized crime, one can easily jump to some groups connected to organized crime like the Italian mafia. Italian mafia has gained a reputation all over tem world and it’s almost synonymous with what people conceive as organized crime.

The Italian mafia came to be very popular again in the 1800s and it was organized by a group of opposition fighters. These powers strengthened and increased over time in that today there are many groups carrying out felonious activities which are now referred to as organized crime. Even as late as the 1990’s (specifically 1992) these groups were very active in eliminating the law enforcers by using terrorist activities including bombing and cold blood tactics. These groups grew to enter the United States in 1900s as the IOC numbers were exposed illegally. Many of them were identified as belonging to Sicilian Mafiosi and many of the members of these mafia groups were involved in the formation of the La Cosa Nostra also famously referred to as the American mafia. The emergence of the mafia is very unique and its growth even to become international threat was strongly supported by the social and cultural retrograde situation in Italy by then most notable is the phenomenon of clientelism. In essence, it has been a tradition that the social and cultural system is the major feature that builds every situation and is a major contributor to the regularities in character. In the realm world where information is usually incomplete, beliefs often become the major determinant factors of the expectations concerning certain agents and hence they influence the agent with the response being best revealed via the face.

Though there have been strong stereotyping of the mafia to organized crime, there are certainly bigger components which simply indicate that society that is retarded. It is only over the past decade the law has actually developed very fast in a way that is likely to effectively deal with the criminal gangs. From 1982 to 1992, there were about 1,114 laws introduced concerning organized crime particularly targeting mafia groups whether directly or indirectly.

The first Italian law to deal with such crimes was the Rognoni-la Torre which obtained its name from Virginio Rognoni and Torre who were Christian Minister and communist chief respectively, their leaders were killed in 1982. Any organization that carried out activities that are meant to intimidate, silence people and commit felony consequentially is considered to be mafia type. The population is required to refuse collaborating with the law enforcers. The anti-mafia law took measures like confiscating the possession obtained by illicit means. The alto commissario was done away with in 1992 having been rendered useless. Other several laws followed this step including some forces like Anti-mafia Investigative Administration and the Superprocura.

Conclusion

The reasons for a criminal procedure are: Retribution – criminals like mafias deserve to undergo suffering equivalent to that which they cause to the victims:

  • Deterrence – sentence passed following the assessment of the evidence presented by parties in a case.
  • Incapacitation – to keep criminal away from the community of innocent people and thus protecting them (innocent people) from the misconduct.
  • Rehabilitation – this is designed to help in reforming the criminal who is believed to be able to change and become a useful member of the society
  • Restitution – the aim is to repair the damage or pain inflicted by the criminal, via a state authority.
  • Criminal Liability – legal responsibility or obligation that comes as a result of committing felony against the state or to the society as a whole. However, still there is no stringent Italian legal style, inquisitorial or adversarial, that has sufficiently dealt with mafia. Hence combating mafia is inadequate and there is lack of a plan that can be termed concrete for crimes of such magnitude and gravity.

Reference List

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