ITALY Law and Practice Contributed by: Giorgio Vagnoni, Alessio Di Pietro, Alessandra Mosca and Cesare Placanica, LAWP Studio legale e tributario
Enforcement depends on the type of sanction that has been imposed by a judgment – in particular, those listed here. • Custodial measures: custodial sentences are enforced through a detention order issued by a public prosecutor. For custodial sentences requiring detention for a period of less than three years, the detention order is issued together with a suspension decree, allowing the offender to benefit from milder sanctions (ie, house arrest, surveillance, etc). A person convicted by deten - tion may also request the conditional suspension of the sanction if its duration does not exceed two years and if the convicted person has not already been sentenced by a custodial measure. For fraud claims, the conditional suspension lasts for five years, during which the offender is subject to pro - bation. At the end of the suspension, the crime is extinguished. • Monetary measures: in addition to or as an alterna - tive to custodial measures, enforcement may also involve the payment of monetary fines proportion - ate to the committed offence. Any failure to pay will result in an automatic conversion into detention. • Ancillary sanctions: courts may also impose ancil - lary sanctions, which may have a serious impact on the convicted party from a personal, professional and reputational point of view (ie, a travel ban and disqualification from holding public office, or the executive offices of legal entities). Sanctions will also remain on the criminal record of the offender. Enforcement of Civil Decisions and Expropriation of Assets Before starting enforcement, the claimant must obtain an enforceable order (ie, judgments, injunctions, and other orders issued by the court) to be served to the debtor, together with a writ of execution, requir - ing obligations to be performed. Following receipt of notice, the debtor has ten days to fulfil their obligation under the order – failing which, enforcement proce - dures can follow. During enforcement, the claimant is supported by a judicial officer who carries out all the relevant enforce - ment activities by using a wide range of powers, including resorting to law enforcement officials.
The most sought-after enforcement procedure in fraud claims – and, more generally, in monetary claims – is the expropriation of assets. Expropriation is initiated with a foreclosure (see 2.1 Disclosure of Defendants’ Assets ), which takes the following different forms (that can also be accumu - lated) depending on the targeted assets: • movable assets or money in the possession of the debtor; • movable assets or money of the debtor in the pos - session of third parties; and • immovable assets. For movable assets, foreclosures consist of an injunction addressed to the debtor whereby they are warned not to dispose of any of the foreclosed assets (together with their proceeds). A custodian may also be appointed to protect the assets throughout the expropriation process. When the debtor’s movable assets or money are held by third parties (eg, money in bank accounts, investment accounts, salaries and wages due from an employer), a notice is addressed to the third par - ties whereby they are warned not to transfer, dispose of and/or return any of those assets. They are also required to declare the exact amount of any assets/ money owed and in their possession. For immovable assets, foreclosure is enforced through filing and registration in the relevant land registry, so that the existence of the lien can be opposed by any third party. Once assets have been frozen through foreclosure, the final steps of the enforcement process are aimed at ensuring that the assets are sold or assigned. The sale of assets may take place by auction or with - out auction, as well as in the presence of interven - ing creditors. The distribution of the proceeds or the assignment of the assets is carried out following the implementation of a distribution plan. 5.2 Enforcement of Foreign Judgments No response has been provided in this jurisdiction.
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