In Italy, the six sections of the Cassazione Court (henceforth Criminal Superior Court) - issue approximately 48,000 judgements each year1. This huge number of orders foster the strong discretion the lower courts of first instance and of appeallate courts have in the selection of the types of judgment considered useful for the justification of their decisions. It means that lower courts recall what is usually considered as precedent but “unlike the common law system, civil law system jurisdiction does not adopt a stare decisis principle in adjudication”2. According to Marshall, also if in civil jurisdiction, where lower courts are not bound to adhere to higher courts, judges select precedents to quote because they would strengthen their decisions, so earlier decisions in general become one of the sources of justification of later decisions3. The aim of this paper is to make an empirical description of the modalities by which the lower courts overcome the problems related to the overproduction of case law, keeping tied to a more limited "local justice" that has passed the Superior Court’s scrutiny, in point of law. In this work we analyse the contents of 728 criminal orders on organised crime’s serious offences issued by courts in the four Districts of the Court of Appeal of Sicily, on the basis of and applying those outcomes that had passed the Superior Court’s scrutiny as a corroboration of legitimacy Specifically, the analysis concerns the quotations of judgments by the Superior Court in the texts of these 728 criminal orders. Once identified, these Superior court’s orders were extracted from the database of the Superior Court and used to determine which lower courts had issued their judgments appelated by convicted and/or public prosecutor ‘s office. The third step was the comparison of these 728 judgements with those submitted to the superior criminal court and causing the quotations, to observe if courts of the same or contiguous Sicilian district issued those
Why do you quote me? Citations of superior court orders in sicilian courts
G. GIURA;D. DE FELICE;
2014-01-01
Abstract
In Italy, the six sections of the Cassazione Court (henceforth Criminal Superior Court) - issue approximately 48,000 judgements each year1. This huge number of orders foster the strong discretion the lower courts of first instance and of appeallate courts have in the selection of the types of judgment considered useful for the justification of their decisions. It means that lower courts recall what is usually considered as precedent but “unlike the common law system, civil law system jurisdiction does not adopt a stare decisis principle in adjudication”2. According to Marshall, also if in civil jurisdiction, where lower courts are not bound to adhere to higher courts, judges select precedents to quote because they would strengthen their decisions, so earlier decisions in general become one of the sources of justification of later decisions3. The aim of this paper is to make an empirical description of the modalities by which the lower courts overcome the problems related to the overproduction of case law, keeping tied to a more limited "local justice" that has passed the Superior Court’s scrutiny, in point of law. In this work we analyse the contents of 728 criminal orders on organised crime’s serious offences issued by courts in the four Districts of the Court of Appeal of Sicily, on the basis of and applying those outcomes that had passed the Superior Court’s scrutiny as a corroboration of legitimacy Specifically, the analysis concerns the quotations of judgments by the Superior Court in the texts of these 728 criminal orders. Once identified, these Superior court’s orders were extracted from the database of the Superior Court and used to determine which lower courts had issued their judgments appelated by convicted and/or public prosecutor ‘s office. The third step was the comparison of these 728 judgements with those submitted to the superior criminal court and causing the quotations, to observe if courts of the same or contiguous Sicilian district issued thoseI documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
