Saturday, July 13, 2013

Prescription and statute of limitation. General differences between Italy and U.S.. The case of private Berlusconi.

Prescription and statute of limitation. General differences  between Italy and U.S..
The case of private Berlusconi. 



The recent events involving the Italian former prime minister Silvio Berlusconi and weather or not he could be found guilty by the Corte di Cassazione revolve on one particular juridical topic: prescription. I thought it could be matter of comparative- law discussion.

What is prescription?

In the broadest sense of the word, we can say that prescription denotes the acquisition or extinction of rights by laps of time. Facing this juridical institution we may need to examine some clarifications.

Prescription and limitation

In the field of prescription there are differences in the use of terminology and the definition that are mostly used: prescription itself and limitation. And they can be applied to both civil and criminal law.
The former is often found, although not exclusively, in the civil law context, while the latter is the generally accepted term in common law jurisdictions.
Generally speaking, the fundamental distinction to be made between prescription and limitation appears to depend on whether the issue is if the claimant’s right to bring an action has been barred or if the right in the object has been altered by a duration in another’s possession. Limitation focuses on the action or claim while prescription refers to the impact of the effluxion of time on the underlying right to ownership (in civil cases). Both terms lead to similar objects, the possible extinction of a claim or a right, but prescription appears to be wider because it allows for the possibility of the acquisition of rights (for a deeper and more complete analysis, take a look at this link - although it is about Jersey, it will give you a general academic approach to the issue).
Prescription is a term first found in the Roman Law, and it could- and still can - be acquisitive or extinctive. If it is acquisitive it allows to acquire title to an object or property after a specified period of time; if it is “extinctive” it extinguishes the right of the previous owner or possessor. Thus, the effect of acquisitive prescription is to create a new right.

So we have said that prescription\limitation is the acquisition\extinction of one's right by the passing of time. But can this period of time be interrupted?
In the U.S. legal system there is an institution known as tolling,while in the Italian system we have both interruption and suspension of the prescription period.
The difference between these two types of “interruption” reflects the substantial difference between prescription and limitation in the two legal systems.
We can say that, in the U.S., a statute of limitation (i.e. the enactment that sets the maximum time after an event that legal proceedings based on that event may be initiated ) is a way of determining if a legal action can still be taken. Certain types of legal actions must be started (commenced) within a certain specified period of time.
The Italian criminal law is quite peculiar in this regard, because criminal lawsuits and trials must be ended, rather than started, within such a time limit.For criminal cases, this means that the public prosecutor must prosecute within some time limit. The time limit varies increases with seriousness of the alleged crime. When a time limit is suspended, it does not run (like hitting “stop” on a watch) . When a time limit is interrupted, it is restarted (like hitting reset).
As you can easily imagine, this allows to avoid a guilty sentence by delaying the trial enough for the time limit to expire.
In the U.S. legal system, when the statute of limitations is tolled, it basically means that it is paused or "stops running." With the statute of limitations, the plaintiff\ prosecutor has a limited period of time to commence the action. If they don't commence the action within the period of time, they can't bring it in the future. When the statute of limitations is tolled, the plaintiff\prosecutor will basically get an extension to the period of time they have to start the case.
Certain conditions will toll a statute of limitation, like when the plaintiff is a minor or the person is not physically present in the state that has the jurisdiction.

Going back to the top of the post, in Italy we are having a huge political debate, because the Italian Supreme Court decided to anticipate the hearing of mr. Berlusconi trial on the 30th of july in order to avoid the prescription of the charges (the crime he is proceed against will fall under prescription in september).
Giving the juridical infos above provided, you can easily deduct that in the U.S. this would not have represented a problem, since once the action has been started within the right time, it cannot be barred by prescription in the future. And that maybe, in the U.S., the former prime minister's private judicial events would not thwart nor condition the political life of the country in such a delicate time.



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