Il processo per le sanzioni civili: dalla tutela del singolo alla tutela della collettività, la deterrenza dei meccanismi sanzionatori tra Private Enforcement ed efficienza del processo

Il processo per le sanzioni civili: dalla tutela del singolo alla tutela della collettività, la deterrenza dei meccanismi sanzionatori tra Private Enforcement ed efficienza del processo

Dicembre 2019
978-88-6105-495-0

Legislative Decree no. 7 of 2016 transformed a small number of crimes into a new institution, the so called “civil offences”, which are characterized by a hybrid essence. On one hand, they are constructed as public offences, given that the revenue from the sanction becomes government revenue; on the other hand, they are stroked by civil sanctions and prosecuted in civil trial. This study examines civil offences and civil pecuniary sanctions’ regulation, assessing the specific procedure introduced to implement the latter.  
The absence of a public body with the task of taking care of the public interests protected by the new offenses, similar to the public prosecutor provided under the criminal system that previously governed the same unlawful conducts, appears a first critical issue. One reason is that the private party is always required to introduce the compensation trial, given that the compensatory sentence is a precondition for the sanctioning sentence. Therefore, the analysed process becomes a tool of private enforcement: the legislator tries to use private citizens to achieve the protection of multi-subjective relevance interests. They are called to bear the efforts and costs, both in the introductory phase of the judgement and in the subsequent ones, to prosecute conducts that were previously a matter of public offices. 
This mechanism is assessed as a “hybridization” of the civil trial. While normally the latter concerns only private interests of the parties, the new legislation uses the civil trial to protect public interests, those of preventing and prosecuting unlawful conducts, detrimental to the general security. In this sense, the function of civil trials is transformed into a neutral one. 
A comparable use of private enforcement and hybridization is identified in the jurisdictional techniques for protecting environment, consumers and competition, that represent a concrete manifestation of those super-individual interests increasingly protected by our legislator.  
The risk underlying the trend of involving private individuals in public goals is the excess of deterrence: pretending to make the civil process more efficient, in the name of fair trail guaranteed by Art. 111 of the Constitution, the fundamental right of acting and resisting in trial can be illegitimately sacrificed.