ITALY Law and Practice Contributed by: Giorgio Vagnoni, Alessio Di Pietro, Alessandra Mosca and Cesare Placanica, LAWP Studio legale e tributario
• Preventative seizure ( sequestro preventivo ) (Arti - cle 321 of the Italian Code of Criminal Procedure) – this aims to prevent the offender (or other third party) maintaining access to assets related to the offence and aggravating or prolonging the relevant consequences (or facilitating the commission of additional ones). It may be requested even dur - ing the preliminary investigation phase, with court approval, and may concern any other asset subject to confiscation (see 1.5 Proprietary Claims Against Property ). • Probationary seizure ( sequestro probatorio ) (Article 253 of the Italian Code of Criminal Procedure) – this is ordered in relation to the assets involved in the offence (including its proceeds) to avoid their concealment or destruction and ensure their avail - ability as evidence in court. Civil Proceedings Civil proceedings also provide different types of rem - edies to freeze assets involved in fraud claims, which are detailed as follows: • Conservative seizure ( sequestro conservativo ) (Arti - cle 2905 of the ICC and Article 671 of the Italian Code of Civil Proceedings (ICCP)) – this is request - ed on movable or immovable assets owned by the debtor, where there is a risk that the latter will dissipate said assets, affecting the creditors’ rights. It may also target assets owned by third parties acquired fraudulently or in bad faith, or assets held by third parties subject to claw-back remedies. • Judicial seizure ( sequestro giudiziario ) (Article 760 No 2 of the ICCP) – this is requested on books, records, documents and other means from which evidence is purported to be derived, so as to pre - serve existing evidence to be used in court. Enforcement and Sanctions To ensure the effectiveness of the freezing order, pro - visions governing the enforcement of seizures may require that third parties are made aware of the exist - ence of the freezing order (see 5. Enforcement ) – for instance, through publicity in the relevant public reg - istries (in the case of immovable assets, vehicles and other registered assets) or through foreclosure and delivery of notices to third parties having posses -
sion of other assets (eg, notice to the bank holding accounts in the name of the offender). Following these fulfilments, third parties are prevented from purchasing and/or disposing of any of the assets targeted by the conservative measure. Serious consequences are imposed on the defend - ant and/or other parties who do not comply with the court’s seizure orders. This constitutes a crime sanc - tioned with imprisonment up to one year and a mon - etary fine (Article 388 of the Italian Criminal Code). Cross-Undertaking in Damages Pursuant to Article 669-undecies of the ICCP, with the order granting or confirming a provisional meas - ure, a court may attribute – to the party that made the request – the posting of a bond ( cauzione ) to the claimant to secure compensation for any loss the defendant might suffer as a result of improper provi - sional measures being requested, based on the out - come of the merits. If the bond is not provided, the provisional measure becomes ineffective. In a civil proceeding, the court may order inspections of places, belongings and persons. Failing to comply with said order may result in a financial penalty. Dis - closure orders cannot force the recipient to violate professional or state secrets (Article 118 of the ICCP). Furthermore, a defendant may be required by the judi - cial officer to disclose their assets during enforcement proceedings and forced expropriation (see 5. Enforce- ment ). In the event that the debtor does not fulfil the order of further disclosure of assets imposed by the judicial authority, or makes a false statement, they may be sanctioned with imprisonment of two months to two years and a monetary fine. The claimant may also obtain a disclosure of the debtor’s assets through research in public databas - es, tax registries, archives of financial relationships, 2. Procedures and Trials 2.1 Disclosure of Defendants’ Assets Civil Proceedings
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