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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