An extract from The Asset Tracing and Recovery Review, 8th Edition
Seizure and evidencei Securing assets and proceedsCivil remedies
To prevent the dissipation of assets by the suspects in a fraud (as in any other circumstances where there is a material risk of dissipation), Italian law provides for conservative seizure, which can be requested by the claimant and ordered by the court on the suspects' assets even at the pretrial stage.
In terms of procedure, a seizure order can be issued ex parte where knowledge by the target could prejudice the successful execution of the order; in such cases, a hearing is subsequently fixed within a maximum of 15 days, at which the target is entitled to raise his or her defence and the order is subject to confirmation, amendment or revocation by the court. Otherwise, the court decides on an application for conservative seizure after a hearing at which all relevant parties are entitled to make their representations.
The subject of the seizure order can be movable goods or real estate or rights existing towards third persons. The order is not usually issued in relation to specific assets to be seized but with the indication of a maximum amount to be subject to seizure, with the consequence that the claimant will have to trace the assets on which to carry out the enforcement of the order.
As far as the substantive requirements for conservative seizure are concerned, they are represented by the fumus boni iuris and periculum in mora. The first is prima facie evidence of the existence of the right that the seizure order is aimed at protecting; the second is the serious and concrete risk that delay could compromise the satisfaction of the right.
Conservative seizure is instrumental to a full trial on the merits, aimed at assessing the existence of the right claimed, after which a sentence could then be enforced by targeting the assets subject to conservative seizure. However, conservative seizure can also be granted during the trial stage and after a judgment on the merits, on condition that the aforementioned requirements are fulfilled.Criminal remedies
The following interim measures are provided for by the Italian criminal system:
- preventive seizure, which is the measure typically aimed at freezing the proceeds of crime (and the instrumentalities of crime) in view of a future confiscation (following the issue of the final conviction sentence);
- evidentiary seizure, which is the measure typically aimed at collecting the evidence necessary to prove the commission of a certain crime; and
- conservative seizure, which is the measure typically aimed at protecting and restoring the assets of the state, or of the victim of a crime, by freezing the assets of the defendant to prevent their dissipation (in substantive analogy with the conservative seizure provided for civil purposes).
Preventive seizure and conservative seizure can only be ordered by a judge or court, on application by the public prosecutor and, in the case of conservative seizure, also by the victim or civil party.
There are specific provisions for the practical modalities of execution of preventive seizure in relation to targeted assets. In particular, preventive seizure is executed:
- on movable goods and assets, according to the civil procedure for garnishment;
- on real estate and registered movable goods, through the entry of the seizure in the relevant registers;
- on the assets of a company or enterprise, through the entry of the seizure in the register of enterprises and, where necessary, through appointing a special receiver; and
- on shares and quotas of companies, through the entry of the seizure in the company's books and in the register of enterprises.
The taking of evidence (interrogatories, testimonies, technical expertise, etc.) is carried out within the trial and is governed by the court mainly on request of the parties. With regard to documentary evidence, the parties may produce all the documents that, from their perspective, prove the grounds of their claim. With regard to oral evidence, by contrast, a previous court authorisation is required.
With a few exceptions, the court can freely evaluate any evidence at its discretion, but has to provide the reasons for the evaluation in the written grounds of the judgment. The decision of the court has to be based on the evidence submitted by the parties and, in addition, on the facts not specifically challenged and on the factual notions of common knowledge.
Where a defendant fails to respond to a writ of summons within the deadlines stipulated by the law, a default of appearance is declared by the competent court. This does not mean an automatic adjudication of the case in favour of the claimant, but simply that the decision of the court will be based only on the evidence provided by the claimant (with no objections from the defendant).
Unlike in criminal proceedings, defendants in civil proceedings do not have a right to silence. If the formal interrogatory of a defendant has been requested by the claimant and granted by the court, in relation to a detailed list of relevant circumstances, and the defendant does not attend or refuses to answer without justified grounds, the court, having evaluated all the other evidence, can consider the claimant's account of the relevant circumstances confirmed.Criminal proceedings
With respect to the taking of evidence in a criminal trial, a crucial role is played by the oral evidence given by public prosecutor and defence witnesses before the court. In this regard, the main theoretical principle governing the taking of evidence is that of a fair trial, provided for by Article 111 of the Constitution, according to which the trial must establish parity between the positions of the prosecution and the defence before an impartial judge with third-party status, it must be of a reasonable duration and, in that context, the defendant must have the possibility of defending and examining the prosecution witnesses who have made statements against him or her. Documentary evidence also has to be authorised by the court.