The inquisitorial system
The inquisitorial system was pioneered by the Roman Catholic Church in the medieval era, where the church used this system in its religious courts for prosecution of offenders and to reform the former system which was ecclesiastical. This system argued that one had to be caught in the act of committing a crime for him or her to be tried and a formal accusation was to be made by a witness of which people feared because the punishment for wrong accusations was very severe.
Under the inquisitorial system, an ecclesiastical court summoned and interrogated witnesses chosen randomly, and if the testimonies given convicted an individual of an offense, then he would be interrogated and given a verdict. The judge is in total control including investigating all facts of the case whether it favors both sides or not, but also either of them can appeal the judge’s decision. The intention of the judge is to collect facts, incriminating or exculpatory not to convict the defendant. It is used in countries with civil legal systems, which trace their origin to Roman law but other countries also use it for summary hearings like America.however, the inquisitorial system is used in matters of “criminal procedures and not for substantive law”.
Around the 16th century, the Roman Catholic Church had emerged as the only influential church in West and Central Europe. The pope created a system of tribunals, with the then placed cardinals and other church officials, to operate them. They later developed into the Roman inquisition courts. This system was slowly adapted in England although the adversarial system continued applying for criminal cases. In the 19th century, many of the legal systems had changed and the inquisitorial system became more integrated into the European legal systems.
The adversarial system
The system is dominant in countries with common law systems; in particular, England which is the origin of common law in the Middle Ages and it passed it on British Empire’s former colonies. In medieval times, the adversarial system was the main legal system all over Europe, although at the beginning of the 12th century, the pope changed the system by introducing the inquisitorial procedure which meant that an ecclesiastical judge did not need an accusation to be filed but instead the court was to investigate and also interrogate witnesses and if there was substantial evidence, then the accused would be summoned for trial. The clergy started using this system, and the pope established tribunals to be run by the “Supreme Sacred Congregation of the Universal Inquisition.” The inquisitors acted in the name of the pope, hence the name the’ Papal Inquisition.” In addition, the system though applied to the baptized Christians was used to convict heretics who were wrongdoers’ ageists of the canon law. Later, the method spread out to Europe and France who adopted it in their lay courts. However, in England, the secular courts continued practicing the old system, although the ecclesiastical courts adopted the new system because common law had already become the dominant system.
“The Italian court system is formulated on Roman laws and the Napoleonic statute.” It is composed of both the inquisitorial and adversarial systems. Since the roman rule, it is the inquisitorial system that was being used but for the sake of handling the Maxi trial a trial against the Mafia in the years 1986-1987 changes were made, and the adversarial was integrated it the judicial system. This happened because the system has the feature of a plea bargain which reduces charges for the defendant if he pleads guilty or gives evidence to assist the judges to prosecute other criminals. Informants like Tomaso Buscetta made use of this system and assisted the authorities by giving information about the operations of the mafia that enabled the arrest of many members of the group. This lead to a lot of controversies because some people claimed it was not good for the justice system of Italy.
Under the adversarial system, the common law is created by the judges through precedential decisions made in court and tribunals. The adversarial system requires the jury to be neutral in examining evidence forwarded without getting involved, investigating witnesses and finding facts. It is traced back to medieval times when it was known as trial by combat; which was a way of settling disputes then. In cases where there were no witnesses, the two sides would fight and the winner proclaimed the winner of the case. The system which gradually disappeared in the 16th century was used by the Roman Empire before they came up with the inquisition system.
When describing this system, the focus is mainly on the three important elements, that is, the prosecution, defense and the court, although the first two dominate more in the system than the third. In this system, the accused is not questioned by the judge unless he so wishes to, although he is subjected to closer examination and can be convicted for perjury. A courtroom under this system is mainly like a battlefield because it emphasizes winning at all costs. It’s a battle between the advocates representing their parties. All evidence is allowed and it is the duty of the jury to ascertain the likelihood of the evidence. Rules of evidence are established on the basis of objections of the adversaries, although the judge may decide to remove any evidence he deems irrelevant. Furthermore, one had to be caught in the act or accused by a witness in order to be prosecuted. The other option was trial by combat which was not fair at all. Due to this inefficiency, some changes had to be done and the Catholic Church is the most influential and powerful then came up with a solution.
Differences between the two systems
There are various differences between the inquisitional and the adversarial systems. Scholars of the law argue that the differences appear in the way the cases are reviewed but the question remains whether the results are any different because mostly the results are similar hence it adds up as a matter of national pride. The inquisition proponents claim that the system is suited to social change and is also cheap for public protection, while adversarial system proponents argue the system protects a person’s rights. Further, whereas the adversarial system is mainly based on common law, the inquisitional system foundation is on civil law.
A major difference is the plea of the bargain; under the adversarial system, if a criminal defendant admits he has committed a crime; he can be allowed a plea of a bargain, which means a lesser charge and also saves the government time and expenses for the jury. The case goes on to the sentencing stage though the accused ought to have allocution of the offense because a sham affirmation cannot be established. The procedure was brought up in Italy for counterterrorism purposes and for use in the maxi trial against the mafia so that the defendants would provide information to the magistrates, though this has been challenged as a compromise to Italian justice.
In inquisitorial, the defendant has just provided yet another fact that is included in the evidence and the case remains intact This protects the defendant in case he was threatened to admit or his attorney is inexperienced especially if the defendant is poor. Its proponents argue that the power of the judges has already been limited by the assessors hence no injustice can occur.
Another difference occurs in making the final decision to convict or not. In the inquisitorial system, the final decision is made by many professionals and also lay assessors are involved, no defendant or prosecution is allowed to question the assessors to prevent biases. The judges vote after them that way they don’t also influence their decision. There has to be a two-thirds majority to convict a criminal. However, supporters of the adversarial system argue that their system is better because it allows agreeable resolution of conflicts by unearthing and pre-trial judgments in which uncontested evidence is relied upon and not used in the proceedings.
Legal experts also argue that the inquisitorial systems are too formal and don’t interact with the average person. They claim lawyers involved in adversarial cases have a good idea of the issues at hand because they have ample time to come up with the truth in the courtrooms and they are fully prepared through reviewing the evidence before presenting it in court making the defendant aware of what is happening. It is believed that trial by one’s age group is better than any inquisitor from the state; in particular, this is allowed in the United States.
The adversarial system is accused of failure in resolving procedural matters, for example, technological advances, taxation, finance and others. This happens when evidence produced is not understood due to inexperience or lack of knowledge and this would lead to unfair judgment. In the inquisitional system, the judge would have in previous instances had such technical cases hence would use his experience to handle the current case and hence, less manipulation or confusion would occur. Moreover, the justification is written down, so in case of newfound evidence, then it can be revised unlike in the other system no one knows what was said therefore appeal is to be made on the basis that the contest was not fair.
The other difference is in the rules of evidence; the adversarial system assumes that the evidence has to be given to laymen instead of jurists this makes it stricter, though there is some flexibility often in lower tribunals or where small claims are involved. The accused in the adversarial system is not supposed to testify and is also not given a chance to check the government’s trial. Contrarily, in the inquisitional system, the defendant is allowed before testifying. The inquisitorial system doesn’t shield the accused like the adversarial system, although defendants are not assumed guilty until proven otherwise. The inquisitional system doesn’t engage “arbitrary rules of evidence”, that is, prosecutors also don’t win convictions for political gains like their counterparts.
Italy is a parliamentary, democratic and multiparty nation. It has a president and a prime minister and its government is composed of the executive, legislature and judiciary arms. Judicially is the subject of discussion in this essay, in concern to the mafia Italy’s biggest organized crime group whose origin is the Sicily island. The group has been Italy’s biggest problem for centuries.
The mafia is an underground society that developed in ancient Italy as a result of Italy’s invasion by other states. These groups had a common code of operation. It emerged as the most famous form of organized crime in Italy, which developed initially as groups of families against the invaders and exploiters of Italy. Sicily being an island was in a very strategic position for invasion by other states. However, in the 19th century the European system collapsed and the island went into total anarchy.
Landowners found their way to leadership known as ‘capos’, in which they exploited farmers and exercised their power violently while the victims just suffered in silence. This lead to the beginning of the mafia whose, activities then were based around the booming export industry of citrus. The market was very vulnerable to extortion and this group took advantage. It forced landowners to employ them hence get a good chance to exploit them. The group turned to criminal acts such as robbery, kidnapping, intimidating, witnesses, drugs and arms trafficking, violence, radioactive materials peddling and, loan sharking, banditry and murder, which were common activities. The island later developed into a global hub for drug trafficking even up to date.
However, there is no evidence to show that there was some form of hierarchical organization with the mafia, until the 18th century when they adopted a common structure of authority. Only men were allowed as members, although nowadays women are legible into the clique. The members are known as Mafioso and there are rituals for initiation which characterize the Sicilian’s traditions, Catholic practices, military and religious orders. They also have Ten Commandments and more so a code of silence that prevents betrayal to the authorities otherwise the punishment is death for the person and the relatives. There are six known groups of the Mafia; Sicilians, Naples, Calabria Camorra, Stida and Sacra.
The Sicilian mafia is the oldest mafia group and its history goes back to the 19th century. This group uses the term ‘cosa nostra’ to refer to the members. They have a code of honor and have a hierarchical form of authority. This group is the most known to the world because of its spread to the united states It is also famous for assassinating high profile people like politicians, judges and the police.
The Naples mafia originated in the 19th century when it formed a prison gang from which inmates were released and were used to run the group’s enterprises in Naples They recently held a policeman hostage for he was trying to arrest one of their leaders. They are known for crimes such as cigarette and drug dealing, and counterfeit deals.
The Calabria group is also called the ‘ndrangheta’ they also came up in the 19th century when some Sicilians were evicted from Sicily and they settled in Calabria. Currently the Calabria Mafia are almost 6000 and they maintain strong links since they are blood and marriage kins. Another group is the Puglia mafia also referred to as the Sacra Corona Unita’, implying sanctified unified people. They originated from a prison gang and settled in Puglia region where they made a livelihood by collecting landing right money from other mafia gangs.
The Mafia entered the building trades slowly and bought their way in government; they meddled in politics and bullied voters to support their candidate. They had their people in government to escape prosecution. The Sicilian mafia was aggressive, it assaulted and assassinated government officials who harassed them and had influence with lawyers, financiers and professionals. The mafia is invisible because not much of its existence can be easily seen but it still survives from century to the next This is because of the Sicilian social factors like unemployment lack of competent law enforcement authorities, the secretiveness of the, people, and also citizens tend to believe in the organization than the government. The lawyers who make laws in parliament used to be in the mafia hence makes laws favoring the group. The mafia is still strong it has even spread to other countries like the United States. In Italy it controls the economy of the nation from banking, hotels, and industries to transport.
It is Italy’s biggest enterprise until now it engages in illegal activities and uses that revenue to start legal businesses the four main groups of the mafia together have got a company with sales turnover of 130 billion Euros and profits of about 70 billion Euros. Its existence in this century has been achieved due to the corrupt nature of the Italian government and the world community at large.
Salvatore Riina was a very powerful Mafioso and a leader of the Sicilian mafia, he was also known as ‘the beast’ because he was very violent, fearless and he had killed forty people and ordered the murder of hundreds of others. In the 1980’s he led his group to war against their fellow Mafioso this led to the death of many and the killing of two prosecutors like Carlo Alberto who was anti-mafia. This caused public mayhem and there was a major crackdown of the mafia and many of them were arrested including Riina who later escaped and became a fugitive.
The operations of the mafia have been underestimated by the world despite all the criminal activities this group has done, and it was only in 1982 that being a member was pronounced a crime by itself because of complaints made by Communist politician Piola Torre who was later killed for that. This led the Sicilian magistrates to intervene and they launched the first trial on history for the mafia. Among the 474 accused, 360 were found guilty.
The trial known as the Maxi trial took place in a bunker that was specifically designed for that. After proper planning it started in 1986 and the presiding judge was Alfonso Giordano and two other assistants to takeover in case something happened to him. It was a tiring trial because some of the defendants were rude, others pretended to be insane during trial and others did not talk at all. Tomasso Buscetta, a Mafioso who had been arrested in Brazil, decided to confess for he had nothing to lose since he had lost relatives and fellow Mafioso members and found it the only means avenge for them.
As usual, there is always controversy to such matters and in this case, some people said that the defendants were being framed by the judges. The pope argued that the trial did not make any sense since there were more abortions taking place than the number of people the mafia murdered forgetting that those were other crimes that the group engaged in. The Sicilian writer Leonardo said that “There is nothing better for getting ahead in the magistrates than taking part in mafia trials.” Though, other people said the information given by the defendants could be wrong because they were criminals hence would lie to suit their needs.
The trial ended after two years and 306 defendants were convicted, 114 were acquitted. Some of those acquitted were murdered by the mafia immediately while some of those convicted sought appeal and were later acquitted by the new judge in charge, Corrado Carnvella, as he was paid by the mafias. Magistrates, Falcone and Borsellino, took over the case in 1992 and turned many appeals down and reversed those that had been passed by the corrupt judge. Due to this, the mafia decided to revenge under the leadership of Riina by assassinating Falcone’s wife. Later, the two judges were killed in bomb attacks, which led to anarchy in Italy. A crackdown of the mafia was done and Riina was captured. He claimed to have never heard of the mafia before nor knew he was the most wanted person in Italy for many years. This weakened the group to a great extent. Although, it is impossible to determine whether the trial was a success, at least it weakened the mafia if not destroying it completely.
In conclusion, the inquisitorial system’s major feature is that the magistrates investigated both sides involved and the proceedings are written down with no plea of bargain system. While in the adversarial system there was the plea of the bargain, the judge listens to the facts presented in court by the advocates representing both parties and the final decision is given by the jury after discussion. The inquisitorial system is focused on the public interest than the individual person as it is in the other system. Both judicial systems are used in the world and achieve similar results using different means so again it ends up being a matter of national prestige. It is recognized that the mafia is an organization that will take Italy a lot of time to destroy, but at least a step was taken with the maxi trial in which the adversarial system was used to get evidence. The nation should also have reforms on their government because it has provided good conditions for the mafia to flourish.
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