The property (i.e. an absolute reservation of use) of your own body and everything acquired through it without violating other people’s property is a rule that cannot be denied without incurring a performative contradiction ( Hoppe, 72 et seq. following a hint of Rothbard 1982a, 32 note 6 )¹ and also a criterion which minimizes conflicts for allocation of the scarce natural resources available to meet the needs felt by each one (Rothbard 1978, 33 et seq.) . It follows that the voluntary (and only voluntary) circulation of individual ownership’s titles of these scarce natural resources, including the bulk of said circulation, the-free-market, characterized by the exchange², maximizes the opportunity of the individual to increase, by the use of said resources, the satisfaction of his needs³. It does so also through the prices’ formation, which―by definition―records the spontaneous adhesion of all the participants in each “transaction”, and through the incentive to a continuous discovery of new products and production processes ( von Mises 1949, 229 et seq.; Rothbard 1962, 233 et seq.; Colombatto 2014b, 17 et seq.; etc.).

The actual satisfaction to the fullest possible extent of individual needs demands, of course, not only the availability of resources that the individual sees fit, but also their technical suitability for such satisfaction, the knowledge of which can, however, also be acquired through the said voluntary circulation of property titles (in particular: technical knowledge), whose efficiency is therefore given a priori⁴.

The voluntary circulation in speech (which from now on―for simplicity―I will call also market) can be prevented by a violent (in the sense that the will of others is disregarded) intervention:

a) of the government (in the broadest sense), which legitimizes itself on the basis of the law system founding it and which steps in not only in the various forms of binary (taxation⁵, public spending etc.) and triangular (price controls, production etc.) intervention widely examined by Rothbard (1962, 875 et seq.) , but also through the repression of behaviors which in themselves have nothing to do with the circulation of goods, but whose repression entails a violent dispossession to the detriment of the agent (for example, fines and imprisonment for opinion crimes etc.^5bis)^5ter;

b) of individuals through behaviors which the same law system that grounds the government bans and therefore qualifies illegal reconnecting to them several consequences.

This study is aimed at evaluating the adequacy of some of these latter provisions (and their conceivable variants) to prevent and, if necessary, to minimize the effects of interferences sub b), taking into account the reliance that private individuals may place on them (certainty of the rules), their abstract greater or lesser suitability for preventing and, if necessary, minimizing the effects of other people’s illicit interferences, the rules concerning their application.

Now, the same definition of the system meeting the needs above adhered to entails that wrongful interferences by privates (to say nothing of those sub a), as well as the cost involved to prevent or minimize their effects, cannot be considered as its inefficiencies or failures (more than the sins of the individual can be considered defects of an ethic order: Eabrasu, 8 et seq. ), but rather violent curtailments of its extension induced ab externo⁶. And given the assumptions, the best that the Institutional context could do to counter them, would be once again to allow the free circulation of resources and the market to operate through the use or non-use of part of the same available resources in preventing or repairing such wrongful interferences (for example, buying safes to prevent theft and/or insuring the event of thefts, buying security services etc.: cf. already de Molinari, X; Tandy, 62 et seq.; Rothbard, 1978, 268 et seq.; Hoppe, 119 et seq.; and then, for a justification of justice’s entrepreneurship, Smith, 409 et seq. ): free circulation of resources and market defend (i.e. keep rolling and repair) themselves, if the inviolability of property acquired without violating that of others―which we were speaking of sub 1.1―is raised to the only legal rule (thereby exhausting the institutional context, which then does not need public apparatuses, taxation etc.) (Hoppe, 97 et seq.) .

All the above already puts a parameter for the evaluations of law provisions that will be tested, and of the alternatives which will be envisaged, i.e. the greater or lesser distance between the results we may conceive of and those which would have occurred lacking any interference to be countered, that is the undisturbed realization of anybody’s plan, voluntarily acting through available resources (Cordato, 69) .

Lacking, although only between individuals, that utmost simplification of the rules that has been envisaged in the previous §1, it would be at least necessary that the identification, prevention and prosecution of unlawful interferences of individuals (§1.1, lett. b) was an at least constant in time, univocally formulated, consonantly and uniformly applied object of rules, notwithstanding their whimsical design by the government. Only under these conditions the acting man, that is who pursues the satisfaction of his needs, is enabled to do it, that means knowing what resources he may use to satisfy himself or at least what a surrogate (of resources or need’s satisfaction) he will be reasonably able to attain.

And instead, lacking for instance in our legal system provisions on compensation for violation of possession per se (i.e., regardless of ownership), it is frequently adjudged that the damaged holder is entitled to compensation, without having to prove that he also owns (or that he already compensated the owner)⁷, although sometimes it has been stated the opposite⁸.

The consequence is that this uncertainty limits the usefulness of exploiting resources in others’ property: the good’s utility for the potential lessee, renter, tenant, or bailee will be decreased from having to take into account the potential negative outcome of litigation resulting from a third party hypothetically and unlawfully damaging or destructing said good, while he will remain liable toward the owner; and even if the owner does not care for the good, its use will actually result less fruitful than it could have been if the rule of damages recoverability by the holder had been spelled out.

The need for certainty is equally strong in the face of that statements that, pretending to allot “the burden of proof,” smuggle the rewriting of the rules.

The problem is simple: if, in a lawsuit, Tom wants something from Dick, which facts have to emerge for pronouncing in favour of Tom? Evidently those required by law (we name them constitutive), which law at the same time, however, provides that if other facts emerge too (which we name impeditive, modificative, extinctive i.e. summarizing-preclusive), then Tom is wrong.

Now, if in deciding the court also requires, under penalty of stating against Tom, the demonstration of the opposite of (i.e. a fact incompatible with) a preclusive fact, in addition to the demonstration of the constitutive facts, it is said that the court is ill distributing the burden of proof, displacing it from Dick on Tom, as if it was a “simple” misgovernment of the proceedings. And it is therefrom inferred (e.g. art. 370, §1 of the new Brazilian code of civil procedure, definitively approved by the Brazilian Senate on 17.12.2014 and waiting for enactment) that, without prejudice of the general rule, the court might, however, deviate from it due to reasons of substantial justice, taking into account the peculiarities of the specific case.

Thus, however, the rules are rewritten when the game is already ended, because Tom, who relied on the acquisition of a right with related conditions he got evidence of, may then see his right denied by failing to prove the opposite of a fact he had no reason to look for when acquiring the right. For instance, a worker who does not print the invoices loaded into the computer system is liable for damages accrued to the employer if, according to the general rule set out in art. 1218 c.c., it does not emerge that, absent any negligence from him, it has been impossible to print them⁹; yet, the damages resulting from the defective layout of “Mickey Mouse” would have been denied to another employer (had he requested them) if, at the time of the decision, it did not result that the employee who loaded the presses had not been diligent¹⁰ (however, the employer should have been warned of the possibility of this outcome in advance, in order to assess, by comparing costs and benefits, whether and how much to intensify controls on the diligence of employees).

Therefore, even here (as in the case sub 2.2) higher costs (absolute and relative to other economic agents) will be determined from the unforeseen loss of resources; or else, from their deliberate and precautionary destination to cover the risk of a sudden alteration of the most reliable meaning of the law’s wording; and in each case (legal costs) from the need to predict as many imaginable solutions possible and to achieve some stabilization of one of them.

Outside the yet existing cases of continuous regulatory changes, as I said sub 2.1 the uncertainty of protection against others’ undue interference might be significantly limited, notwithstanding the flawed formulation and the misunderstandings of the rules’ meaning, by imposing on anybody appointed to apply the laws to stick to whichever meaning of them at least by some continuity (misera servitus est, ubi jus est vagum aut incertum, remembered for example Coke, XII, 49, 53, 56 ).

It has always been rejoined that the centuries are full of failed attempts in this direction: to remember some of them, from Justinian’s prohibition to gloss and construe the Corpus iuris (“ne verbositas eorum [interpreters] aliquid legibus nostris adferat ex confusione dedecus”¹¹), turning instead to him for any doubt¹², to the common law’s principle of stare decisis, to the establishment of the Cassation as the guardian of the laws etc.; and the “weak thought” even today is pleased to highlight how the optimistic forecasts of the Enlightenment have proved delusions.

However, it is undeniable that every step in this direction may reduce, a lot or a little, in any case without cost, the induced inefficiencies. And to those who wish to recognize a cost in the mortification of the judge’s creativity in interpretation or in the risks of laws’ sclerosis, it would not be hard to replicate that changes cautiously introduced by statute, or even in the process of interpretation, but only by a majority or by the top members of the judicial power, in order to bind all the others, are envisaged the most appropriate to the task¹³.

After a drastic reduction in the number of members of the Supreme Court (half-a-score at most), to facilitate as much as possible a convergence of views, and after a subsequent reduction of their tasks, allowing the same court to accept only those appeals it thinks showing a question of law of particular importance¹⁴, it would thus be definitely worth:

a) to draw inspiration from the saisine pour avis provided for under art. L441-1 et seq. of the French code on the judiciary organization, to introduce the possibility, in case of enactment of a new provision, not only for the judges called to interpret the same (as in France), but also for individuals, to request the binding (unlike in France) opinion of the Court, in order to avoid that this opinion arrives only after many years (i.e., in an appeal of the decision of a lower court that has solved years after a lawsuit, in turn arisen years after the new statute) at the cost of upsetting arrangements based on a later disproven construction;

b) to introduce, as already foreseen in Brazil for the only Federal Supreme Court (and thus only for constitutional matters)¹⁵ and newly enacted for all the civil courts¹⁶, the constraint of any judicial body to the predominant orientation of the higher grade bodies and, lacking such an orientation, to its own orientation already formed or that may be introduced and modified with a qualified majority of its members;

c) to introduce coordinating rules for the event of a conflict between binding orientations of equal grade bodies;

d) to introduce, in the wake of the German model-proceedings on disputes concerning the public offering of securities, recently revived and generalized in the new Brazilian code of civil procedure¹⁷, the remittal to an higher judiciary body of the decisions on questions of law which are common to a plurality of proceedings in progress, with the temporary suspension of the same and the subsequent constraint to the decision of the higher body;

e) to provide that any change of binding orientations applies only to events that occurred subsequently.

Naturally, it can always happen that the so introduced constraints are then not in fact respected by some judges; in any case, it will not be a lottery anymore, rather only wrongs to be prevented or remedied (infra, §5).

If, as previously mentioned (§1), (free) market, i.e. efficiency, is given through undisturbed realization of one’s plans, voluntarily acting through available resources, efficiency (i.e. market) suggests to counter others’ wrongful interferences by measures (penalties) capable of preventing them or, in case of failure, at least (and better, too) of quickly restoring―as far as possible―the necessary conditions for the realization of those plans.

As was also indicated (§1.2), this prevention can be implemented (as well as trying to train¹⁸ thereto, that “the lights accompany freedom,” as Beccaria, 157 hoped) also by technical means that would impede the unwanted event: it has been said of safes to make theft more difficult, but we can also consider controls for access to any place, that would intercept weapons and anything else one can imagine as well as an endless array of other measures for the prevention of the most various offenses.

On the one hand, however, this measures cannot guarantee the result sought and, on the other hand, they incur costs that not everyone is willing to, or capable of bearing. Thus, again as part of the prevention, a role of paramount importance is played by the threat of a penalty predictably likely to deter the abovementioned interferences (a function which can be defined as “generic prevention”) and to prevent further interferences by those who have already committed one in the past (a function which can be defined as “prevention of reiteration”)¹⁹.

However, since experience shows that no penalty has an absolute deterrent effect, and also that deterrence is enhanced only if the penalties are actually applied when necessary (Beccaria, 96 et seq.; Benson, 53) , it is necessary to provide for the event that prevention does not succeed: including, as just mentioned, the application of the sanction, but also, as mentioned above, prompt restoration―to the maximum possible extent―of necessary conditions for the realization of the plans altered by unlawful interferences.

Now, if both of these requirements are essential, it is convenient that they coincide or at least that they are harmonized, not only to save utterances of rules (which would be a modest saving), but above all to prevent them from interfering with each other, weakening the one (penalty) or the other (restoration).

We must then first ask whether and to what extent, the compulsion to prompt restoration of the necessary conditions for the realization of the plans altered by others’ unlawful interference can also perform a function of prevention, generic and of reiteration, because, to the same extent, the problem just put at issue could find immediate solution as restoration would suffice.

To answer the question just asked we first need to ask ourselves what this restoration consists or could consists of. Current law provisions, both in the historically younger sector of public prosecution and in the first-born civil (or privates’) order, entitle the person offended by a crime or harmed by another’s even merely civil wrong (as the breach of an obligation by law or contract or as a tort) that the author of such a behavior, and sometimes even a third party, accountable together with the author, at their expenses and as far as possible in kind, bring about the situation that would have been produced in the absence of the offense, if this did consist in an omission or restore the previous situation should the offense consist in its alteration²⁰.

In case of total or partial impossibility of such a restitution in kind and anyway against its delay, it is provided for the injured person to receive the market price of the goods’ lost portion (inclusive of the possibility of using its own or others’ body) and/or not acquired as a result of the offense; and for the goods for whose use a market price cannot be found or is not considered appropriate²¹, such as certain aspects of its own physical integrity, the absence of mental suffering, and so on, monetary compensation fixed by the court by way of equity (so-called non-pecuniary and moral damage) is granted²².

This system of “civil restauration”, however, is first of all very little deterrent, because it results essentially in the possibility for anyone intending to commit an offense, to compulsorily “acquire” others’ goods and then proceed as in any ordinary transaction (Hoppe, 114) .

Furthermore, the few elements of deterrence although present (for example, the uncertainty on the use of the damaged or destroyed asset pursued by the victim, which may be very costly to make possible anew, or even damages provided for in case of just negligent behavior) are strongly reduced by a number of additional provisions which exclude, inter alia, in the event of just negligent breach of an obligation, the recoverability of damages which were not foreseeable at the time the obligation arose (art. 1225 c.c., art. 74 of the Vienna convention on the international sale of goods, art. 7.7.4 of the Unidroit Principles, etc.²³); that exclude the restoration of the status quo antea, if it would be too burdensome for the offender (art. 2058.2 c.c., §251.2 German c.c., art. 10:104 PETL etc.); limiting to the cases specifically provided for by statutes the recoverability of so-called “non-pecuniary” damages (art. 2059 c.c.)²⁴, and so on.

Nor is an effective redress ensured. In fact, as it has been made clear since Condillac (53 et seq. , unfairly criticized by Bastiat, 101 et seq.²⁵) and then (without even quoting him: Rothbard 1995, I, 410 et seq. ) by the marginalists at the end of the 800²⁶, after about 21 centuries of Aristotelian fallacy, voluntary exchange entails an opposite inequality in (subjective) utility assessment for both parties which makes it possible²⁷: the market price, for him who pays, has an utility by definition lower than the purchased asset (should the utility be even equal, the buyer would have no reason to buy), while for him who receives it has an utility greater than what is sold (should this have an even equal utility, the seller would have no reason to sell)²⁸.

On the contrary, in case of a wrong, while the wrongdoer, as long as the wrong is intentional, fully achieves his profit even paying the market price (otherwise it would not have brought himself committing the offense) (Hoppe, 114) , the injured person must settle for the market price, even if the retention or acquisition, as appropriate, of (part of) the lost assets is more useful to him than that price, which in fact he did not previously want to realize and which cannot always be used to repurchase the lost assets (however after a lapse, also very important, of time, certainly not compensated by the surrogates, such as interest etc.)²⁹.

Ultimately, market price compensation while does not discourage wrongdoers, but rewards among them the ones who willfully violate the rights of others and does not disincentive enough, as we have already said, other wrongs causing harm, often penalizes the victim of the offense.

Prevention, and restoration would be unquestionably enhanced if the framework just outlined was instead modified providing for unconditioned restoration of the status quo antea of the harmed:

-in kind and at the expense of the offended, as far as possible;

-or, at the option of the aggrieved party, in cash equivalent;

-and always in cash equivalent to the extent not possible in kind in any event;

-increasing the cash equivalent of the market price of whatever subtracted (in a broad sense³⁰) to the harmed, to compensate him for any definitively lost utility (also due to the mere lapse of time) and thus preventing the expropriation of this greater utility to the benefit of the intentional tortfeasor;

-setting minima high enough to compensate for loss (always in the broadest sense) of assets for which no market price is detected;

-with unlimited recovery of all kinds of costs (to be quantified as above) incurred by the injured person to recover compensation³¹.

A more accurate compensation for the damage actually borne would be so certainly achieved, and this would already by itself raise the prevention’s level against committing and reiterating offenses, given the undoubted greater deterrence (Benson, 234 et seq.) .

The level of prevention, of which it has just been said, is however much higher today, due to the universal provision of (further) sanctions, both pecuniary (for the benefit of the injured person or public authority) and of other kind; among the latter (particularly suitable for the prevention of reiteration) stand out the custodial ones and, with less and less spread, the bodily and capital ones.

One must then ask, first, whether this increased level of prevention, always expedient exactly to prevent wrongdoings, does not itself represent, in whole or in part, an unnecessary interference in the operation of the market.

The answer, however, is negative. There is (obviously) never an interference in the market if the allocation of liability is previously accepted by a person capable of discernment and without fraud or violence (contractual liability); nor can there be one, lacking a contractual relationship between a wrongdoer and a damaged, where on the one hand the increased level of prevention is rather intended to maintain the latter’s utilities, acquired originally or just through the market, and, on the other hand, the impact of that higher level on the determinations of the potential tortfeasor occurs only in terms of opportunity cost i.e. of not demonstrated (through the market), nor measurable, and then intersubjectively comparable³² preferences, and therefore is a matter of mere speculation on the subjective utility of one or another possible determination, which stresses at most the importance that, in the entire subject matter, assumes verifying the expected effectiveness of all prevention tools further than compensation.

The problem is instead different, that is that currently widely adopted law provisions concerning restoration and sanctions negate the voluntariness of the circulation of property titles and then interfere in the market, in contractual matter, overriding the will of the parties and, in non-contractual matter, giving rise to coercive transfers.

In particular, in the context of contractual relations, the provision of nullity or even an easing of “punitive” covenants alters the circulation of goods decided by the contracting parties, as it happens in many countries, including Italy, even in the case of willful default³³; or also, as it happens as well, with the provision of nullity of the waiver-of-liability clauses, at least for certain cases of gross negligence or intentional non-performance³⁴.

Nor is it necessary to spend ourselves on more or less secular justifications for such provisions: from the protection of the weaker contracting party to the safeguarding of the reciprocity of exchanges. If the market is free, the contractor is never weak; and if, without fraud or violence, a mentally capable person accepts the risk of restoration and penalties also in case of his future impossibility of performance, this is the effect of his own assessments, like many others the outcome of which he does not reckon undoing (like a wrong investment etc.) (Epstein, 2008) .

In non-contractual matters, then, there is a sheer expropriation when liability is imposed on anybody who did not cause any detriment with his behavior; there is instead sheer expropriation of the damaged when, in spite of a damaging behavior, the liability of the damaging legal entity is restricted to its assets³⁵ or the liability of the tortfeasor is excluded lacking (at least) fault.

In other words, it is true what argued Rothbard (1982b, 377 et seq., 387 et seq.) , despite disagreements occurred even in the area of his Austro-libertarian school³⁶, that is that free market entails, in the field of torts liability, the necessity and sufficiency of a causal link between conduct and damage to the third party property³⁷.

Thus, for example and always unless otherwise agreed³⁸, it is consistent with the protection of property to hold the manufacturer liable of defective products for damages to third parties and things determined by their normal use, without bothering to investigate whether he was aware or not of the knowable defect, as it is now currently enshrined virtually everywhere?³⁹.

It is actually him who, with Epstein’s words (1973, 177 et seq.) , created the dangerous conditions which result in damage to others’ property, given that defective products are a statistically significant outcome of the manufacturing process and the insertion on the market of a percentage of them must be put into account in spite of all pre-tests.

On the other hand, it does not matter who is the owner of the product at the time of the injury because mere ownership does not affect obviously, per se, ownership of another; nor matters who used the defective product in a way not even potentially dangerous (a problem of concurrence of causes would emerge otherwise), unless he was aware of the defect: in which case the creation of hazardous conditions, more specific than the simple manufacture and insertion on the market, would lead back the cause of the injury (and therefore liability) exclusively to his behavior⁴⁰.

And for the same reason (creating more specific hazardous conditions⁴¹ or even causing a direct and intentional injury of another’s property) acts of intentional sabotage of production performed by employees cannot be ascribed to the product’s manufacturer, nor can be ascribed to employers in general behaviors of employees directly injurious to third parties⁴², by the mere fact that the offense was “occasioned” by work⁴³.

Within these limits one could say that offence’s sanctions higher than the mere restoration/relief of other’s injured property do not interfere with, but rather preserve the market: provided however that said further sanctions do not affect, as it was feared at the end of the previous §3.1, the right of the harmed to the aforesaid restoration/relief. And, as suggested by Rothbard (1982a, 85 et seq. ; in the same sense Hoppe, 113 ), this is possible only if not only said restoration/relief, but also these additional sanctions come anyway available to the damaged, because otherwise―as it happens to a large extent since justice too has been subtracted to privates―the harmed must to yield to, for instance, the imprisonment of the offender, the confiscation of his goods in pro of the Sovereign of the past and of today’s totalitarian democracy (with the words of von Hayek, 58, 103 ) etc.: “Justice that takes possession of bankrupts’ property to rob their creditors,” to use the words of Voltaire (27) .

One could argue that interests of third parties would remain compromised from the point of view both of generic prevention, as potential offenders should have to deal only with the harmed (whose pardon they could trust to obtain in various ways), and (above all) of the reiteration’s prevention, because certain sanctions, such as typically imprisonment (but also death or amputation of limbs for thieves, robbers, etc.), make it impossible (at least temporarily) that reiteration which their pardon instead would make possible.

Nonetheless, it remains to be proved that the (un)predictable reaction of the directly injured party would not be as much deterrent as the duty to apply the sanction imposed on government officials, who are much less motivated, while an effective brake to the possibility of a waiver, in whole or partial enforcement of the sanction by the harmed would certainly be introduced by the consideration that, if an offense’s reiteration was made possible by such a waiver, the injured party himself could be held liable along with the author, having contributed to cause the harmful event (by creating the danger conditions associated with the author’s act).

Leaving aside most of the so-called crimes against the “public hands” and the like, according to Rothbard’s vision (1982b, 409 et seq.) all the conditions for criminal law integrally collapsing into private law would thereby occur^44,45. Moreover, if the contract is seen just as a means of circulation of property’s titles and not of impermissible constraints of the contracting parties’ will⁴⁶, the contractual injury (non-performance) boils down to the torts one as in any case of infringement of another’s property (that, in this case, the latter is conferred by the contract is obviously irrelevant): so it is not clear, for example, why a theft should receive additional criminal sanction and a total non-performance of a contract (maybe at remuneration already received) should not.

The just evoked Rothbardian solution, capable to favor the market’s conservation, allows in any case to measure its greater or lesser distance from other current solutions. And anyone, being him a lawyer or not, knows how abysmal is this distance starting with the most serious offenses like murder: in those fewer and fewer law systems that punish it with death, the damaged person(s), regardless of the concrete circumstances and of his will, is deprived of a possible source of productive resources to be primarily allocated to compensate him; and the same goes for the other current solution of imprisoning the guilty, not matched by any duty of forced labor with devolution to the damaged party of its result net of a portion of the overall costs for supporting the sanctioning system (public or, preferably, private) and keeping the guilty alive (Rothbard 1978, 107 et seq.; 1982a, 86 et seq.) .

And one could continue with the plethoric provisions, to the benefit of the public hand, of seizure of the crime price, of the instruments used to perpetrate it, of the profit derived, of the fines; in some countries, with the devolution to the State of penalties owed for non-compliance of judicial civil orders⁴⁷ or even with the criminal punishment of such non-compliance⁴⁸; etc.

The explained requirement of a disposable right of the injured party to a sanction higher than a merely compensatory one is, for instance, satisfied by the so-called punitive damages with a declared deterrence function, in their broadest meaning of pecuniary transfers to the injured person in excess of the suffered damage.

Such rewards were already provided for, as recently reminded by the United States Supreme Court, by “legal codes from ancient times through the Middle Ages”, which “called for multiple damages for certain especially harmful acts”; and since the eighteenth century these rewards have then been generalized by English and American judicature, with no pre-defined quantitative constraints, essentially for intentional or grossly negligent torts⁴⁹ (the mentioned rewards have also been variously regulated by statute, with regard to the different cases or classes of cases)⁵⁰.

The availability of the sanctions to the injured party, leaving any decision to the agreement of the parties, reduces the trouble in determining the quantum of such damages, which is instead increased in Anglo-Saxon world by the greater uncontrollability of judgments due to the jury system⁵¹. In Italy there is no problem because some echo of this powerful tool in the prevention of wrongs occurs only in some cases (almost only in the field of intellectual property⁵², under the pressure of European directive n. 48/2004)⁵³, while the judiciary insists on denying the enforcement to foreign judgments which grant them, due to their contrast to the internal public policy which would admit only the patrimonial restoration of the damaged person⁵⁴.

It seems however reasonable to connect also the limit of the sanctions which are higher than the restoration, to the damage inflicted on the victim: this was precisely done, with respect to the punitive damages, in the Exxon case, which refers to the absolute equivalent of the damage according to the libertarian concise rule of “two teeth for a tooth” (Rothbard 1982a, 88) . In more general terms, if robbing the injuring party of his rights to the same degree in which himself has deprived the victim is added to the restoration (Rothbard 1982a, 88 et seq.; Hoppe 113 et seq.) , we might even get to the death penalty (plus damages) for the murder and so on and anyway we reach a non-arbitrary basis for the quantification of the sanction.

It remains to be determined the extension of imprisonment that the injured person may esteem needed to be applied to exempt himself from liability for failure of the prevention of reiteration, according to what said in §3.4. Even on this regard, one might think to quantify in monetary terms the greater sanction, to convert it (always, of course, at the option of the injured party) in forced labor also chosen by the damaged, with the devolution to the injured party, up to the final amount, of the portion of the revenues which exceed the expenses for the offender’s subsistence ( Rothbard 1978, 107 et seq.; 1982a, 86 et seq.; wide discussion in Benson, 297 et seq. ).

With reference to the deterrence, however, the solution may result insufficient if the harm caused is severe for the injured but the double of the equivalent, instead, negligible or however easily bearable by the offender. This is an argument often put forward against any monetary ceiling on punitive damages, which would prevent threatening (and if necessary sanctioning) adequately who has a “deep pocket”. In reality, however, the parameter of the harm suffered by the victim may work here too very well, provided its evaluation as a percentage of his assets to be applied then, as a sanction, to the assets of the offender⁵⁵.

It is then questionable that, according to a universal practice, the quantum of any sanction, at least additional to compensation, must necessarily decrease with the decrease of the subjective profile of the offense, which sees in scale intention, negligence and mere creation of hazardous conditions.

If the parameter is the protection of property, which the market is based on (supra, §1) and regarding which any utility’s intersubjective assessment, which may lead us to allow impunity for hazardous, although socially useful, activities, is impossible (supra, §3.3), the mentioned subjective profile is not conclusive, because will only makes the harm almost certain ex ante, which however ex post occurs the same way under the other assumptions.

We can certainly imagine with a certain basis that the level of sanctions required for the deterrence of malicious behavior may be higher than that sufficient for the others; but a latter’s over-deterrence certainly does not affect in a negative way the deterrence of the former.

In a world in which the criminal justice system, not many centuries after its inception, is still structured in terms of afflictive sanctions in prevention of, and in response to, the aggression of the “public good”, it is historically consequent the universal entrusting of this sector to the activity of public officials, as well as the provision of a right to silence of the accused, overcompensated by more invasive means of ascertaining the truth (since on the one hand, by definition, the “public good” is worth more of the “private” and, on the other hand, said pubic officials are ab origine without any direct knowledge of the facts, which must therefore necessarily obtain by the spontaneous or forced cooperation of others).

We can see in general, between the common law’s and civil law’s systems, a decreasing level of coercion of the parties to tell the truth and, more generally, to disclose their hole cards, which, in the context of the latters, is undoubtedly affected by a guarantee-oriented bias in privates’ favor, well-established (and rightly so) even in the formers, in front of an investigation conducted lacking an offense to privates, but which, precisely for this reason, has no rationale in the field of pretended offenses between privates here investigated, none of whom is entitled to be guaranteed more than the other.

In other words, why the alleged murderer or thief must be guaranteed “not to be compelled to testify against himself or to confess guilt” (as stated in art. 15.3g of the UN International covenant on civil and political rights and also in other constitutions―for example in the V amendment of USA constitution⁵⁶―as well as implicitly, according to the ECtHR, also in art. 6 ECHR which requires a fair trial)? Is that in order to protect him from an “improper compulsion by the authorities, thus contributing to avoid judicial errors”⁵⁷? There would be no “improper compulsion” or “risk of error” (but only potential benefits in terms of effectiveness and speed in the application of sanctions) if an additional sanction was provided for in case of having kept silent or having lied about circumstances relevant to the investigation of the offense, to be applied only in the event of a conviction. Besides this, the victim or anyway the damaged by the crime have commonly to witness, to tell the truth, to undergo the penalty for perjury regardless of the outcome of the investigation: an unequal treatment really striking, that remains concealed behind the statist bias of the “public” function of justice that, having paid the eccentric and guarantee-oriented tribute of the right granted only to the charged to remain silent or to lie, does not tolerate resistance from anyone else, even if it was the victim; intervenes discretionally, as provided by law (especially in the countries of common law), and at any rate de facto, with the more invasive investigative tools (inspections, searches, seizures of material evidence, wiretaps, etc.), generally without granting a say to the victim; spills on all members of society the relative costs and gets by us to the point of denying the refund of those paid by the accused or defendant acquitted⁵⁸.

The picture is somewhat more mixed in civil matters. We can start from the model of rule 26 of the US federal rules of civil procedure (FRCP) and of part 31 of the English rules of civil procedure (CPR), which enshrine from the outset of a civil lawsuit the duty of each party to communicate (disclose) to the others data and means of evidence in her possession relating to the respective claims and defenses, including―but only for the CPR [rule 31.6 (b) (i), (iii)]―to her counterproductive instruments; and certain exceptions to disclosure, in the Ame- rican version, for cases in which action is taken against a public authority⁵⁹ have to be appreciated. There is, however, no general duty of truthfulness of any statement and sanctions are only possible, at the discretion of the judge⁶⁰: this, as we saw, undermines their deterrence and does not guarantee the impartiality of the judge⁶¹.

However, this is something better than current provisions in the old continent, which generally entrust to the judge’s discretion, and even only in certain cases, the imposition of a duty to tell the truth on pain of sanctions, as in case of Swiss or German law which, while requiring the parties to state completely and truly the facts of the case (§138.1 ZPO; art. 160.1a Swiss c.p.c.)⁶², leave unpunished (or almost: art.191.2 Swiss c.p.c.) its infringement even in answering an, though ad hoc, examination, unless the court itself, in its discretion, decides that it has to be conducted under oath or however on pain of criminal punishment (§452.1 ZPO and §154 StGB; art. 192 and 306 Swiss c.p.c. and c.p.). Not to say that the Italian law system, like its French forebear, imposes criminal penalties on the parties only in exceptional cases in which swearing has been ordered, punishing furthermore the party’s perjury with less than half of the penalty for the false witness (art. 371.1 and 372 c.p.; art. 434-17 and 434-13 of French c.p.; amplius, Tavormina 2013b ).

Except for witnesses who may almost everywhere be forced, and also under threat of various sanctions, to appear before the judge or the parties’ lawyers and who may also be imposed other very serious sanctions in the event of an omission, incompleteness or falsity of the statement (still Tavormina 2013b ), the differences between the two models are emphasized in order to other tools available to private individuals to obtain evidence of the unlawful activity and the facts relevant to determine and acquire a compensation, which tools are, however, weaker, and sometimes by far, than those reserved to the public prosecution in criminal proceeding.

For example, even in England-Wales and the United States wiretapping communications between third parties is not allowed⁶³ (but only, as everywhere, the record of every communication addressed, at least even, to him⁶⁴); there is however a wide range of investigative tools, available by coercion, either directly or indirectly (i.e. on pain of criminal penalties), including inspections of persons and things, even with forced taking of evidentiary material and so on through the classic tools of the subpoena in the United States (FRCP rules 34, 35 and 45) and the interim remedies in England-Wales (CPR part 25).

More stringent requirements and much more limited enforceability feature instead analogous tools offered by the legal systems of civil law. By way of example, in Germany the court may order to a party or to a third party to exhibit a document only if the party making the request is thereto entitled under substantive law⁶⁵ or whether the counterparty has already thereto referred as evidence in the trial (§§422, 423 and 429). In Italy this is not necessary but, at least in theory (because the judiciary is sometimes more lax), it is needed not only that the court consider “necessary” the acquisition of the document (art. 210.1 c.p.c.)⁶⁶, but in addition that the interested party supplies the “specific indication” of the document and “offers… evidence that the counterparty or the third party possesses it” (art. 94 disp. att. c.p.c.). After that, having overcome all these obstacles and ordered the party to exhibit the document, should he not comply therewith, in Germany at least the judge may at his discretion regard the applicant’s submissions about the nature and content of the document itself as confirmed (§425 ZPO), while in Italy he only may infer “arguments of proof” from this (art. 118.2 and 210.1 c.p.c.), i.e. elements thereto not sufficient alone.

Also in this area, however, as in that of punitive damages (supra, §3.5), the European Union did lay down, primarily by Directive 2004/48/EC, faithfully implemented in the member countries (see for instance in Italy art. 121bis, 127, 129 and 130 of the industrial property code), a privileged regime in favor of the holders of intellectual property rights, providing in general terms that “member States shall provide for the measures, procedures and remedies” [“effective, proportionate and dissuasive”] “necessary to ensure the enforcement of intellectual property rights” (art. 3), including the order that “evidence be produced by the counterparty,” including “banking, financial or business documents that are detained by the counterparty” (art. 6), and that anyone found involved in the violation, or listed by this one as involved in, provides information thereupon (art. 8)⁶⁷. And if we leave aside the fact that intellectual property is indeed averse to the market (Boldrin-Levine), the prohibition of any discrimination, based (inter alia) on “property” (inclusive obviously of its qualitative configuration), in the enjoyment of the rights and freedoms guaranteed by the ECHR and the Charter of Fundamental Rights of the European Union (art. 14 ECHR and art. 21.1 of the Charter), should impose the extension of said “effective, proportionate and dissuasive” measures to the reaction against any type of offense⁶⁸ or, alternatively, lead the EU Court to invalidate the aforementioned directive by contrast to the European Treaties (art. 1.3 and 6.1 of the TEU) or (when the process of EU accession to the ECHR will have been completed) lead the European Court of Human Rights to declare the violation of the ECHR by the European Union: with an obvious superiority of the first option (market friendly) on the second one.

Including into them arbitrary or otherwise eccentric law provisions’ readings as opposed to those already outlined at the time of the facts denounced as illegal (which readings, in countries such as Italy, Brazil and similar, assume quantitative dimensions of an outright interpretive anarchy), the judicial abuses are primary cause of the already mentioned uncertainty of law (supra, §2), concurrent cause of wrongs consisting in sanctioning nonexistent ones and perpetuating cause of the consequences of unduly non-sanctioned wrongs.

There would be more than enough to subdue the judges who make mistakes to the same penalties for the offenses which they are called upon to judge. Still, on the subject, probably due to earlier suggestions (ancient and less ancient) on the sacredness of the State and, gone past (or aside) those, as a consequence of other governmental branches having found themselves hostage of “the device of judicial review and interpretation” which, as said Nock (1935, 143) , “is a process whereby anything may be made to mean anything,” the judges have come to be a little everywhere, but immeasurably in Italy (i.e. just where is felt the strongest need of the opposite solution), in a regime of practical impunity.

Indeed, a regime of absolute impunity is still in force in the countries of common law⁶⁹, despite their history is certainly not devoid of even criminal behaviors: just remember the bribes taken and the alterations of the records made by 14 out of 16 judges charged before the parliament held at Westminster in the beginning of the year 1290 and the briberies confessed by the Lord Chancellor of England, Francis Bacon, in 1621⁷⁰. Such a system spares however at least the (at least initial) distribution of damage on all citizens, leaving it entirely burdening the unlucky victims of judicial abuse.

On the contrary, in the countries of civil law the “evolution” of the rules led almost anywhere to the transition from the rule of compensatory damages to the benefit of the damaged litigant, typical of the Gaius’ judex qui litem suam fecerit (Ist. 4:52), “confiscated” in various successive regimes in history (Lambertini, §3) and occasionally revived over the centuries (for example, but only for denial of justice, in title XXV of the already mentioned ordinance of Louis XIV on civil trials of 1667⁷¹), to the direct and exclusive responsibility of the State with its, more or less potential, later recovery against the judge. The exception is Spain, which provides for both, expressly limiting the State’s liability to cases of willful misconduct or gross negligence (obviously by the judge)-art. 296 of the ley orgánica del poder judicial of 1985-and instead placing no limits to proceed directly against the judge (art. 411 et seq. LOPJ), although the judiciary has then exceedingly narrowed the scope of the provision⁷².

In such a different system, the common feature is given by the (at least initial) taxation of all countrymen against damages arising from bad justice, with the consequent, inherent waste of resources should the damages even be recovered from the liable judge. There are however considerable differences as for the extent of liability and recovery against the responsible: in Germany, §839.2 of the civil code makes the judge responsible for willful misconduct or gross negligence (but suing only the State, pursuant to art. 34 of the Constitution, recourse reserved against the judge) as well as for denial of justice, only if they amount to a crime⁷³; however, §339 of the penal code provides for the crime of “forcing the law” in favor or against one party, for which the assumption of the risk (recklessness) of a breach of law is considered sufficient⁷⁴. Art. 2.1 of Italian law n. 117/1988, instead, allows the injured party suing the State in any case of willful misconduct or gross negligence of the judge, but the following paragraph 2 makes marginal such cases⁷⁵; art. 13.1, which also provides that “anyone who has suffered damage as a result of an act that constitutes an offense by the judge in the exercise of his functions may claim compensation from the magistrate and the State. In this case, civil action for damages and its bringing even against the State as civil responsible are governed by the ordinary rules”, is still “interpreted” (Nock 1935, 143) as preventing a direct action against the judge⁷⁶ and, on the other hand, has very limited scope for the absence, in our system, of a penal statutory provision as extensive as the German one; last but not least, the State (mandatory: art. 7.1) recourse against the judge “cannot exceed a sum equal to one-third of annuity’s salary”, except in case of intentional misconduct (art. 8.3)⁷⁷.

The framework described in the previous §5.1, so far as it is relevant here, did undergo some variation of a certain importance in the European context due to the enforcement of the ECHR and the EU Treaties.

Obviously the influenced matter is limited to that pertaining to the above-mentioned international conventions which, grossly speaking, concerns essentially procedural guarantees provided for by the ECHR (European Court restates constantly that it is not its task, to no effect, surveying the justice of national denounced decisions) and the Union’s own issues (freedom of movement, competition, consumer protection under pretext of leveling the field, etc.) as regards the Treaties.

In both the above mentioned areas, European Court and the Court of Justice affirmed the State’s liability for bad justice against its residents, which was certainly an innovation for the United Kingdom. Said liability, on the other hand, has not been extended directly to the judge, thereby leaving member States free to charge him with it or burdening the subjects therewith, but always as warrantor and hence with the related waste.

Within these limits, however, both Courts have rightly refused that unorthodox decisions can be justified with a supposed freedom of law’s interpretation, at least in front of a manifest violation not only of the text, but also of the interpretation given to it by themselves Courts: thus reducing at least a bit the ambit within which each word of the law can signify anything.

The (ab)used argument to exclude the direct personal liability of the judge towards the victim of any kind of violation of his duties is that it is a necessary evil for preserving his independence⁷⁸; but the argument does not hold water because it is obvious that subjecting the judge to the judgment of other his colleagues as much independent cannot, by itself, undermine his independence on pain of contradiction (if independence characterizes the judgment, it works both when he is judging and when is judged). And if the “fear” of being misjudged can cause him “judging otherwise than him dictate science and conscience”⁷⁹, it is consistent requiring by him the same faith he requires by his adjudged.

Nor can we say, with some frantic supporters of this Richterspruchprivileg, that this would be justified by the peculiarities of the task of the judge, who necessarily has to give wrong (if only partially) at least to one of the litigants and therefore is exposed with certainty, at the very least, to the complaints of one party: in fact, such a position is common to the members of tender committees, competition committees (formal and informal), arbitration panels⁸⁰ etc., to none of which such a privilege is granted.

Besides, the reported arguments support better an absolute judicial impunity, such as that which exists formally in the countries of common law and substantially in Italy, rather than a necessary interposition of the State between the claim of the injured and the judge liability’s pronouncement.

And indeed, requiring that the judicial abuse is first stated in a case between the victim and the State, to impose or authorize this then to seek recourse in another lawsuit against the author, entails:

-identity of the alleged risks for the independence of the judge, who knows to be nevertheless exposed to a recourse’s claim by the State;

-passing on the countrymen the costs of one lawsuit more;

-these ones advancing the costs of any award;

-a sort of taxation for such compensation at the discretion of the administrative authority, if the recourse’s claim against the author of the abuse is optional;

-greater uncertainty in applying the sanction and thus a decreased suitability to generic and reiteration’s prevention, due to the possible divergence of the outcome of the recourse’s lawsuit with respect to the prior decision to establish liability (which would furthermore result in the striking emergence of a further judicial error and the final passing on the fellow countrymen of the damage caused by the author of the abuse, contrary to the law provision).

It comes, as always, at root, to the failures induced by State’s monopoly of the jurisdiction and, in criminal field, even of judicial action. Entrusting this latter (or even just sentencing and enforcing judgments) to a monopolistic operator is the most reliable way to place its costs and efficiency out of control. Optimal solution would be therefore to eliminate the State and to leave the task to a voluntary regulation between parties; failing such solution, at least free competition should be granted and the settlement with private arbitrators should be allowed in any case⁸¹.

Besides, the authoritative public regulation presents defects of variable severity already in the design of the instrument for the application of the sanctions. If the latter must be fast, a reduction of the time for establishing the offense would be needed; and then it should:

a) be allowed, on the mere allegation of non-performance by the person entitled, the direct intervention of the enforcement officer for the execution of a civil obligation (and accessories fixed by law or contract) that results from a document with adequate guarantees of authenticity, subject to the possibility for the compelled person to submit to a judge any of his reasons, upon, where appropriate, invalidation or suspension of the execution acts already carried out depending only on the greater or lesser foundation of his defenses;

b) be provided for the rest, regardless of any requirement of urgency, a preliminary judicial examination of the advanced claim, opening the way, without further delay, to the enforcement of the ensuing order (at least for any penalty not exceeding the deprivation of liberty) where no serious contestation emerge (on the model of the French civil référé deprived of the urgency: art. 808 et seq. French c.p.c.), without prejudice of any subsequent deepening on motion of the interested party;

c) all at the risk of those who claim the performance and/or the penalty, whose undue (total or partial) enforcement should represent in itself an offense, even if provisionally allowed by the judge.

Now, the solution sub a) is widely adopted, but with significant impairments. For example, in Italy you may start enforcement proceedings to get what is due under public act (art. 474, n. 3 c.p.c.) or even just a private contract authenticated by a public official or even bills of exchange, checks etc. with unauthenticated subscription, but then only if the obligation due is a sum of money (art. 474, n. 2 c.p.c.). It does not suffice, however, even the public act if all the conditions of the obligation do not emerge from the same act, without reference to other source⁸²: and it is not clear why⁸³. You cannot get, in case of apparent merits of the opposition, the annulment of the execution acts which have already been carried out⁸⁴, while the mere stay of execution is entrusted to the existence of not better specified “serious reasons”, which (looking at things on the other side) could therefore identify themselves even in the burdensomeness of performance required, legitimizing the protraction of a maybe even blatantly illegal behavior.

Even in Germany the court’s powers in enforcement challenging’s proceedings are largely discretionary, even if explicitly extended to the annulment of measures already taken (as well as in France: art. L121-2 c.p.c. on enforcement and L213-6 code of judicial organization) and influenced by the challenge’s chances of success (§§769 and 795 ZPO).

The solution sub b) is instead virtually unknown everywhere, due to the bias, by now encrusted often in the wording and always in the interpretation of international conventions and constitutions, according to which no sanction, much less criminal, may be applied unless by virtue of a full judicial inquiry, and not only of a high probability, that all the related requirements are met: a protective position, certainly, but of what? Of a factual present situation, silent by itself on the events which produced it and certainly not deserving protection against an high probability that it arose illegally.

Of course the counterbalance of the unconditional responsibility of anyone (applicant, adjudicator, etc.) who erred in moving for or allowing the sanction’s enforcement is needed, where it is subsequently verified that there was no offense.

And instead, the imposed model is that of a prior full verification with all the necessary time; of an anticipation limited to civil sector and exceptional cases, with all the associated margin of discretion of the judges; of more or less marked impunity not only of the latters, but also of the applicant and of other possible co-authors for penalties abusively imposed (as well as denied)⁸⁵. The damage to be assessed as consequence of the lapse of time increases thus dramatically; various harmed are, more or less randomly, discriminated; the effects of injuries temporarily disregarded are perpetuated (and in addition new ones are made legal).

Obviously, the faults induced by the monopoly of jurisdiction (§6.1) added to a model of the type described above (§6.2) vary quantitatively in function of the total request to the officials who administer justice (which in turn depends on the rate of legality of the social body and the ease of access to the courts), in function of the resources that the government decides to dedicate thereto and in function of the personal commitment of individual employees, lacking any lawful incentive other than modest career prospects, for the proper and efficient performance of their duties i.e. in function of their duty’s sense or ethic rate.

In the most advanced countries the time needed to obtain an ordinary enforceable decision are relatively low (still never lower than a few years), with variations due to the choice between the attribution of immediate enforceability to a first decision, or to that which intervenes at the end of an eventual appeal. Thus, in countries of common law a certain trend towards limiting ways and grounds of an appeal makes all decisions enforceable, except the automatic stay of death penalty in the USA [rule 38(a) of the FRCrP)] and the possibility for the appellant to obtain release on bail or a stay of execution [English rules 68.8 CrPR and 52.7 CPR; US rules 38(b) FRCrP and 8 FRAP]. In contrast, in countries of civil law, the execution of criminal sentences is always automatically stayed as a result of the appeal (§449 German StPO; art. 708.1 French c.p.p.; art. 141 and 988.1 Spanish LECr; art. 650.1 Italian c.p.p.), while for civil judgments, some jurisdictions do provide for a stay, without prejudice to the possibility to obtain from the court an order for immediate enforcement (§704 German ZPO and art. 539 French c.p.c.), and others provide for an immediate enforcement, allowing the court to order a stay (art. 527.3 Spanish LEC and 282-283 Italian c.p.c.).

All of these behavioral, technical, financial and regulatory constraints sufficiently explain certain trends emerging from official statistics, although the latters’ credibility should be thoroughly verified, both because the method of data collection is generally not exposed in all its details, and because certain results collide with the common experience.

In this regard, it is enough limiting oneself to examine the 2010 data made available by the CEPEJ, i.e. the Commission established by the Council of Europe for evaluating the effectiveness of the European judicial system (thus excluding the United States), to verify that the most reduced business volumes are, in order, those of England-Wales and Germany (4/5 times more than the former), substantially equivalent for the criminal and civil sector; France follows, more or less at par with Germany for the criminal field, but with a surplus of the civil one on the criminal of about 70%; and finally, more or less at par between them, Spain and Italy with a surplus on France of about 75% in the criminal and of about 45% in civil area ( CEPEJ, 200 and 175: 2010 data for 100,000 residents, new proceedings and only for the first instance)⁸⁶.

The reported data certainly reflect the decreasing rate of legality found in the different geographical areas, but also the growing activism of the PP which the prosecution is reserved to and, in the civil sector, the cost of access to justice, decreasing for the individual (who then exploits it), and instead passed in part on the community, through general taxation, and for the rest assumed by those who most need to speed up and instead see a continuous extension of the proceedings’ time. In fact, with disbursements in favor of the State which the private is called to for accessing to civil justice, England-Wales covers 33.4% of the costs for the judging activity (CEPEJ, 77) ; Germany covers an unspecified, but more than 50%, percentage thereof ( CEPEJ 77 in relation to 30); France nothing (CEPEJ, 79) ; Italy 10.7% (CEPEJ, 77) and Spain still less ( CEPEJ, 77 in relation to 30 ⁸⁷).

The results in terms of the length of the proceedings are those that can be expected: the data collected by the CEPEJ are particularly poor with regard to criminal trials; for example, we learn that the duration of a procedure of first instance for burglary is 174 days in England-Wales⁸⁸, 278 days in France and 826 in Spain. From other sources we learn that the average length of criminal proceedings before a court of first instance was 6.6 months (200 days) in Germany in 2012⁸⁹ and 358 days in Italy in 2012-2013⁹⁰.

For civil cases before the courts of first instance (which should also incorporate the judges of peace and similar, with very simple affairs), the times for the year 2010, reported by CEPEJ, have been 184 days for Germany, 279 for France, 289 for Spain and 493 for Italy (CEPEJ, 184) ⁹¹, while in England-Wales comes to 56 weeks (392 days), although only for disputes with a value exceeding £ 10,000 (excluding thus the lower courts)⁹². The Italian (as well as Spanish) data raise some doubts, not only because from the findings of the Permanent Observatory on the exercise of jurisdiction of the CNF emerges a life of trials before civilian courts of 3.1 years in 2012⁹³, but also because it suffices to consult, on any of the available websites, judgments filed in the courts of Milan and Rome to verify, by comparing the initial year of the proceedings, which can be deduced from the number of general role therein reported, with the year of filing of the decision, that the duration is practically never less than 2 years and often reaches 4/5 years; and because, regarding sentences passed by the Court of human rights for slowness of judicial proceedings, Italy beats Spain 50 (41 civil and 9 penal)―0, beats France 50―2, beats Germany 50―18 (2010: CEPEJ, 172) .

It must only be added that the (almost) free access to civil justice, which characterizes France, Italy and Spain, is not univocally related to an increased workload which might justify the longer duration of proceedings, as the French case shows. Thus, there are certainly concurring reasons of organization and commitment of the players. In addition, the combination of (relative) speed of the proceedings in first instance and immediate enforceability of the decisions that conclude them certainly creates, in England-Wales, a more favorable environment for the holders of the infringed rights⁹⁴; and the selection between these made in France and Germany, due to the non-automaticity of the enforcement of the decisions of first instance, allows to take greater account of the doubts that certain decisions raise and the related delays are to some extent offset from a significant reduction in duration of the second instance (0.99 years in France and 0.56 years in Germany⁹⁵ vs. 3.4 years in Italy: CEPEJ, 169 and table 16 ).