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 (Nota) in electronic format filling the so-called UNIMOD, the specific application also available online. The freezing order must be presented at the counter (the electronic transmission of judicial documents has not been yet implemented).

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.

•  Should the judgment be registered even if the owner according to the land register is “A” and the judicial measure is concerning to “B”? 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.
• Otherwise, should the land register refuse the registration or apply for any type of clarification? The Italian registration system does not oblige the registrar to check the transmission chain.
• And if we consider in this registry owner (“A”) has other legal guarantees in our legal system: The judgment should indicate that there is a relationship between A and B.

 3 Type and duration of the registration of these orders

A freezing order and a confiscation order are different; each one of them leads to a different effect:

• A confiscation order can only lead to indefinite 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. Any possible registration after the registration of the order will be ineffective.
• 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?

It is necessary to point out that the freezing of assets (art. 11 of the Legislative Decree n. 109/2007) is a completely different measure from the freezing order established in the Criminal Procedure Code. 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.