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.
Online at www.predialonline.mj.pt – using a digital certificate available for professionals – notaries, solicitors and lawyers.
Personally (in person or by means of a representative), or by regular mail, at any Land Registry Offices.
Usually it is presented by the court, himself, or by regular mail, who sends the information by post.
In Portugal courts can issue digital certificates of their decisions – Ordinance 209/2017 dated 13/07
Law 45/2011 of 24/06 established the rules for the administration of assets recovered, seized or lost in favour of the state, aiming at their good management.
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 -The situation described will lead to a provisional registry.
The registration of acquisition or constitution of encumbrances depends on the prior registration of the assets in the name of the person who transfers or encumbers them – Enchained transmission principle.
2.2 – Before the conclusion of any registry in respect of which doubts have arisen, the registrar should ask for clarification.
2.3 – This procedural issue depends on the judge decision.
However as regard the registry, any guarantee inscriptions that might exist, will be kept in force unless the respective tittle holder (for example the mortgagee) has been heard in the procedure.
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 freezing order may lead to a provisional or temporary registration or notice and also to registrations for an indefinite period.
- A confiscation 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
Once registered, here is a warning to third parties.
The owner can sell the property but it will not be opposable towards the court order.
It involves the possibility of a forced sale of the property.
2. Effects of the confiscation order once registered
Once the confiscation means the acquisition in favour of the State, the property can be conveyed in the same circumstances as any other property owned by the State (private domain).
3. What is the registry proceeding and moment in which the opening procedures of freezing or confiscation are applied for registration?
As regards the confiscation some doctrine states that the opening of the proceeding might be registered, (similar to the opening procedure of a claim), but it is not yet legally determined.
The Portuguese LR is governed by numerus clausus and principle of legality and the opening of the procedure of the freezing procedure is not established as a fact to be registered, only the freezing itself when it has already been ordered by the court.
4. What are the executing authorities of these orders in this national system and what is the role of the land registers?
This kind of registries are mandatory and they are promoted by:
- The Public Prosecutor Office;
- The court
- Asset Recovery Office – created by Law 30/2017
(In May of 2017 it was created The “Asset Recovery Office” with the task of carrying out investigations similar to those of the criminal police. Its mission is to proceed with the identification, location and seizure of assets, goods or products related to crimes, both domestically and internationally, to ensure cooperation with the asset recovery offices created by other States and to carry out other attributions that are legally attributed to it.
The “Asset Recovery Office” carries out the financial or asset investigation by order of the Public Prosecutor Office:
The seizure of assets is carried out by this Office under the terms of the Code of Criminal Procedure.)
The registered owner of the asset has to be heard (or intervene) in court so that the freezing or confiscating order becomes effective against his assets, thus respecting the enchained transmission principle.
The Registrar has to comply with the Land Registry Principles and Rules, in the same way as he does with any other entry.
Part 3. National land registry experience
There is a regular use of these judicial orders, but not frequently.
The confiscation first was applicable mainly to drug trafficking, but it has been extended to several other types of crimes such as crimes against the integrity of the financial sector or money laundering; crimes against human dignity, such as terrorism and human trafficking; crimes against the integrity of the public administration, such as active and passive corruption.
Thus, in case of conviction due to the practice of one of the crimes above mentioned, there may occur confiscation
