Sequestration

SEQUESTRATION. - It is a precautionary measure by virtue of which either a disputed thing is entrusted to a third party (sequestrator) to keep it until the dispute is resolved, or a corpus delicti is preserved for the purposes of justice, or any economic asset is taken as security for the satisfaction of an obligation. It may be judicial or conventional, depending on whether it is ordered in a trial or agreed upon between the parties. A subspecies of judicial sequestration is conservatory sequestration, which may be civil or criminal: the former is ordered by the judge as security for an obligation; the latter concerns the things that serve to establish the truth in criminal proceedings.

It is called sequestration of a person when its subject is a human person. This too can be carried out, as a precautionary measure to protect goods and interests guaranteed by law or, as is commonly understood, to signify the capture of a hostage for ransom.

The justifying reason for these preventive measures lies in the expediency of forestalling in good time the prejudice of the parties or of the public good. They are precautionary measures which, as in general any conservatory measure, tend to secure a state of fact or of law existing provisionally, that is, while awaiting a definitive ruling in the controversy (judgment of declaration or of condemnation, executory measure, final determination of the disputed rights between the parties).

Sequestration, as a precautionary institution, finds application in the most varied fields of law, from substantive civil law to procedural civil law, from substantive criminal law to procedural criminal law.

I. LAWFULNESS AND UNLAWFULNESS OF SEQUESTRATION

In the light of natural law alone, conventional or judicial sequestration is lawful and honest, because it is based either on a right over the thing and on the necessity of avoiding a prejudice through a delayed and untimely measure, or it is the expression of a free agreement, or it is a requirement of the free administration of justice on the part of the public authority, when the latter has the right to ascertain the facts and punish the guilty in the common interest. The sequestrator has the obligation to preserve the sequestered object as if it were his own and is liable for its loss or deterioration on account of fault on his part. Moreover, he must hold the sequestered object at the disposal of the parties, if the sequestration is conventional; at the disposal of the judge, if the sequestration is judicial. Sequestration of the person is not lawful, unless justified by the interest of personal safety and liberty, and constitutes a grave sin against justice, inasmuch as it is injurious to personal liberty; normally it is considered a grave crime also in positive legal systems.

II. SEQUESTRATION IN CANON LAW

For sequestration in the field of the law of things (corresponding to substantive civil law), there are no particular provisions in the CIC, since the legislator in this field refers back to the civil law of the individual nations (can. 1529).

In the field of procedural law, however, there is the actio de rei sequestratione, which is the right to ask the judge for the sequestration of a disputed thing and the deposit of its fruits with a third party, who is called the sequestrator (sequestre). This action belongs to one who has a right either of ownership or of possession or of usufruct over a thing possessed by another, when there is reason to fear harm to his own interests if sequestration of the thing itself is not carried out (cann. 1672 § 1, 1673). Sequestration may also be requested by the judge ex officio, when the public good requires it (can. 1672 § 3). It can never be decreed if the damage that is feared can be remedied in another way (can. 1674). The actio sequestrataria is equated with the inhibition of the exercise of a right (actio inhibitoris), which has the purpose of suspending the use of a right, whenever harm to the other party could result from it, until the dispute is settled. This intervention too may be requested by the parties or promoted ex officio in accordance with can. 1672 §§ 1-3. By violating the inhibition, the other party commits an attentatum, against which the actio nullitatis or vescisoria is available (can. 1851).

In the field of criminal law, the crime of sequestration of a person is in some way taken into account in the configuration of abduction (v.).

III. SEQUESTRATION IN ITALIAN LAW

Sequestration, as provided for by the Italian legal system, is a legal institution of broad scope, which finds applications in substantive civil law, procedural civil law, substantive criminal law, procedural criminal law, constitutional law, and administrative law, with the consequence that the qualifications to be attributed to this legal term, and its scope, are diverse.

In substantive and procedural civil law, sequestration is of various kinds:

1. Conservatory sequestration

It is granted over the movable and immovable property of the debtor and over the sums and things owed to him, when the creditor has a founded fear of losing the security for his credit (art. 671 of the Code of Civil Procedure and arts. 2905-2906 of the Civil Code). It may be requested by anyone who is a creditor. For conservatory sequestration to be granted, two conditions must concur: first of all, that there be a founded fear of losing the securities for one's credit: fear of removals, suspicious sales, dilapidations, or even in general the possible existence of a loss. Some laws also took into consideration the suspicion of the debtor's flight (art. 924, repealed, of the Code of Civil Procedure of 1913), whose personal arrest the intermediate law permitted. This institution, generally abandoned by modern legal systems, is kept in force by German and Austrian law. The second condition for obtaining conservatory sequestration consists in the possible existence of a right (fumus boni iuris). It is on this requirement that the merely summary examination by the judge will principally turn, the judge ruling "having taken, where necessary, summary information" (art. 672, paragraph 4). Once authorization is obtained, the execution of the sequestration takes place at the risk and peril of the private applicant. It is therefore in the case of abandonment, or if in the validation proceedings the sequestration is declared ineffective as having been recognized without cause (art. 683 of the Code of Civil Procedure), that the very delicate question of liability for damages arises (art. 674 of the Code of Civil Procedure).

The object of conservatory sequestration may be either immovable or movable property. Conservatory sequestration over immovable property is carried out by transcription of the judge's order at the office of the immovable property registers of the place where the property is situated (art. 679 of the Code of Civil Procedure). If the sequestration has movable property as its object, these are distrained and kept in the registry of the pretura or in a place of public deposit, or are entrusted to a custodian (sequestrator). In such case the rules established for distraint at the debtor's premises or at those of a third-party debtor of the debtor apply (art. 678, paragraph 1).

Conservatory sequestration is called judicial if authorized by the judicial authority over movable or immovable property, businesses and other universitates of property, when their ownership or possession is in dispute and it is appropriate to provide for their custody or their temporary management (art. 670 of the Code of Civil Procedure).

2. Special sequestration

It is that ordered by the judge over the sums or things that the debtor has offered or in any case placed at the creditor's disposal for his liberation, when the obligation or the manner of payment or delivery or the suitability of the thing offered is in dispute (art. 687 of the Code of Civil Procedure). These are special cases of judicial sequestration. Sequestration may also occur with regard to property located at the premises of third parties (arts. 677 and 678 of the Code of Civil Procedure). It should be noted that no privilege arises from the sequestration in favor of the sequestrator. It generally benefits all creditors and leaves unprejudiced any rights of preference belonging to them, but a substantive-law effect of capital importance derives from it, namely that of art. 2906 of the Civil Code. The Code of Civil Procedure places the regulation of sequestration among the summary measures (arts. 670-87).

As to the procedure, it should be observed that sequestration may be requested in the principal action (sequestration prior to the cause, as the Code says) or also incidentally, that is, in the course of the cause, while the merits are pending. In the two cases, save for certain particularities concerning the introduction of the application for sequestration, the procedure is identical. It consists of two stages: authorization and validation of the sequestration carried out. The sequestration may also be revoked, if the debtor so requests and provides suitable security (for the amount of the credit that gave rise to the sequestration) in proportion to the value of the things sequestered.

3. Conventional sequestration

This sequestration escapes the procedural matter, being a true contract (art. 1798 ff. of the Italian Civil Code). By it the parties agree that a disputed thing be deposited or delivered to a third party who binds himself to restore it, once the dispute is ended, to the one to whom it shall be declared that it must belong.

4. As mentioned above, sequestration is also taken into consideration by substantive and procedural criminal law, but with a meaning and for purposes entirely different from those considered thus far. In particular, the penal code punishes in art. 605 the so-called sequestration of a person. This offense consists in depriving an individual of his personal liberty; liberty in the physical sense and therefore not to be confused with the deprivation of psychic liberty, which constitutes the legal object of the offenses provided for in arts. 610-15 of the Italian Penal Code.

5. Procedural criminal law provides for and regulates criminal judicial sequestration. This consists in a measure of real coercion, limiting the availability of a thing, for the purpose of securing to the criminal trial the corpus delicti or any other thing useful to the discovery of the truth (arts. 222, 226, 337 ff. of the Code of Criminal Procedure). This sequestration must not be confused with the conservatory sequestration of movables as security for civil obligations arising from criminal liability (art. 189 of the Italian Penal Code; art. 617 of the Code of Criminal Procedure).

(photograph by Felici)

In administrative law the series of applications of sequestration is very broad: for example, the sequestration of sums owed to the State (arts. 69, 70 of Royal Decree no. 2440 of 18 Nov. 1923 and subsequent amendments on the administration of the patrimony and on the general accounting of the State); sequestration in executions for patrimonial credits of the State (arts. 16-20 of the Consolidated Text no. 639 of 14 Apr. 1910 for the collection of patrimonial revenues); recourse to the Council of State in its judicial capacity against sequestrations of temporality (art. 27 of the Consolidated Text no. 1054 of 26 June 1924 and subsequent amendments on the Council of State); sequestration by administrative procedure of objects used in contraventions of the revenue police (art. 376 of Law no. 2248 of 20 March 1865, annex F, on public works); conservatory sequestration as security for obligations arising from the liability of administrators of public bodies (art. 264 of the Consolidated Text no. 383 of 3 March 1934 and subsequent amendments of the Communal and Provincial Law; art. 29 of Law no. 6972 of 17 July 1890 and subsequent amendments on public institutions of assistance and charity; the Consolidated Text no. 874 of 5 June 1941 of the laws concerning the sequestration, garnishment and assignment of the salaries, wages and pensions of employees of public administrations, amended by Legislative Decree no. 103 of 6 Feb. 1946).

Francesco Ercolani