Notice of freezing and confiscation orders in accordance with the Regulation (UE) 2018/1805

Part 1. Registry requirements

1. What is the procedure to lodge or present these judicial orders in the Land Register? Particularly electronic.

The applicant (e.g. the Financial Police) has to submit the LR application only from a web portal (Openkat) and has to sign it with a digital signature (Cades – p7m). This dossier is forwarded to the LR management software – Gestione Libro Fondiario -. The procedure for submitting documents is fully computerized: also these judicial orders are sent in attachment to the LR application, a pdf document digitally signed.

2. Possibility of registering these orders in the event that who appears as the owner of a property according to the land registry («A») is a different person from the defendant (or person «B») who is issued a freezing or confiscation order against

2.1 Should the judgment be registered even if the owner according to the land register is “A” and the judicial measure is concerning to “B”? Usually the answer is no. One of the most important basic principle is the so called “principio del predecessore tavolare – predecessor in title”: it is not possible to give rise to any form of registration if it is not justified by a title against the one registered as the owner of the right.
However, in 2021 the Financial Police submitted an application with a judicial order against a third party. In this case, the Land Judged established that the judgment can be registered upon a different subject from the defendant, if the freezing order is issued against all the properties in the availability of the defendant (also if not registered in his/her name) (GN 211/2021 Borgo). It’s not necessary to involve neither the owner nor the defendant; a copy of the final decree is notified to the owner.

2.2. Otherwise, should the land register refuse the registration or apply for any type of clarification? Usually, the Land Registrar would reject an application requested not against the owner of the right. A clarification is necessary: according to the Criminal Code, the Criminal Procedure Code and in particular according to the case law, seizures – freezing orders not against the defendant are possible. A preventive seizure/freezing order against a third party is lawful if a strict connection with the crime is proved. This kind of evaluation is in the responsibility of the Public Prosecutor or the Criminal Judge who are entitled to draft the judicial order.
In particular cases, the judicial order does not specify the owner/third party or the immovable properties involved. These details are identified in the Land Registry application filled by the Financial Police, according to the Public Prosecutor instructions.

2.3. If the judicial order freezes an immovable property of a third party, the Land Registrar is not qualified to deliberate on the matter of the order. The third party is entitled to deposit to the Criminal Court a request of re-examination against the judicial order. The Land Registrar is not involved in this procedure. See the previous answer.

3. Type and duration of the registration of these orders

• A freezing order and a confiscation order are considered different; each one of them leads to a different registration or notice.
• A confiscation order can only lead to indefinite registrations.
• A freezing order can only lead to provisional or temporary registrations.
• A freezing order may lead to a provisional or temporary registration or notice and also to registrations for an indefinite period.

Part 2. Registry effects

1. Effects of the freezing order once registered

• A warning to third parties
• Prohibition of disposal: the owner is not allowed to sell, mortgage or carry out any other act of disposal on the property. The order blocks any possible registration.
• It involves the possibility of a forced sale of the property.
• It involves the possibility of auctioning the property.

2. Effects of the confiscation order once registered

The effect is the acquisition of the property by the State

3. What is the registry proceeding and moment in which the opening procedures of freezing or confiscation are applied for registration?

The registration of a freezing or confiscation order starts with the land application sent by the Financial Police that works as the “longa manus” of the Public Prosecutor or the Judge.
The registration moment depends on the stage of the criminal proceeding.

The Italian Criminal Procedure Code establishes different kind of freezing orders. Usually freezing orders are issued by the preliminary investigation Judge, based on P.P. request (sometimes also during the main proceeding). Only the preservation order (sequestro conservativo) is issued exclusively during the main proceeding. Also with reference to confiscation orders, Italian criminal laws (not only the Criminal Procedure Code) set out many types of measures: some of them are strictly connected to the criminal offence; others have a preventive function. Generally a confiscation order is issued as a part of the criminal final judgment.

4. What are the executing authorities of these orders in this national system and what is the role of the land registers?

Compared to the 1st Questionnaire, it is necessary to point out that the freezing of assets (art. 11 of the Legislative Decree n. 109/2007) described in our last answer is a completely different measure from the freezing order established in the Criminal Procedure Code. The Trentino’s Land Registry has dealt with a lot of freezing and confiscation orders but, for the moment, never with a freezing of asset order and never with a European Certificate.

The bodies involved with the execution/registration of a freezing or a confiscation order are the Financial Police and the Public Prosecutor/Criminal Judge.

Part 3. National land registry experience

The freezing of assets issued by Legislative Decree n. 109/2007 (art. 11) has never been applied until now. Judicial orders concerning confiscations are becoming more frequent. All the applications in this matter are filled and submitted by the Financial Police as a longa manus of the Public Prosecutor.

In the past, confiscations were registered as annotations of the judicial order. Now confiscations lead to intavolations of the property right in favour of the State Property Agency. The seizures/freezing orders are registered as annotations of the criminal ordinance, in case of preserved seizure (articles 316-320 of the Criminal Procedure Code). In case of preventive seizure, the annotation concerns the judicial decree (art. 321 of the Criminal Procedure Code).

A critical matter is whenever the order is incomplete without personal details of the defendant or of the owner/third party. In some cases, when the freezing order is issued based only on the economic value of the asset, the judicial order doesn’t specifically identify the immovable properties. The Land Registry application is fundamental to complete the judicial order

Another problematic issue is whenever the applicant-the Financial Police requests a modification of the existing annotation: it involves a general problem concerning the annotations in the Land Registry System that are not supposed to be modified (only cancelled).