SEQUESTRO. – It is a precautionary measure whereby either a disputed thing is entrusted to a third party (the sequestrator) for safekeeping until the dispute has been resolved, or the 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 judicial proceedings or agreed upon by the parties. A subtype of judicial s. is conservatory s., which may be civil or criminal: the former is ordered by the judge as security for an obligation; the latter concerns things serving to establish the truth in criminal proceedings.
It is called s. of a person when its object is a human being. This too may be carried out as a precautionary measure to protect assets and interests guaranteed by law, or, in the commonly understood sense, to signify the capture of a hostage for purposes of blackmail.
The justification for these preventive measures lies in the advisability of forestalling injury to the parties or to the public interest. They are precautionary measures which, like any preservative measure in general, seek to safeguard a provisionally existing state of fact or of law, that is, pending a definitive ruling in the dispute (a declaratory or condemnatory judgment, an enforcement order, or the final determination of the disputed rights between the parties).
S., as a precautionary institution, is applied in the
most diverse fields of law, from substantive civil law to civil procedural law, and from substantive criminal law to criminal procedural law.
I. LAWFULNESS AND UNLAWFULNESS OF SEIZURE — Considered solely in the light of natural law, a contractual or judicial seizure is lawful and honest, because it is based either on a right over the thing and on the necessity of avoiding harm through a delayed and untimely measure, or it is an expression of a freely concluded agreement, or it is required by the public authority’s free administration of justice, when the latter has the right to establish the facts and punish the guilty in the common interest. The custodian has the obligation to preserve the seized object as though it were his own and is liable for its loss or deterioration insofar as this is attributable to his fault. Moreover, he must keep the seized object at the disposal of the parties if the s. is contractual, and of the judge if the s. is judicial. The seizure of a person is not lawful unless justified by the interests of personal safety and freedom, and constitutes a grave sin against justice insofar as it violates personal freedom; it is normally also regarded as a serious offence under positive law.
II. SEIZURE IN CANON LAW
With regard to seizure in the sphere of the law of things (corresponding to substantive civil law), the CIC contains no specific provisions, the legislator referring in this area to the civil law of the individual nations (can. 1529).In the sphere of procedural law, there is instead the actio de rei sequestratione, which is the right to ask the judge for the seizure of a disputed thing and the deposit of its fruits with a third party, who is called the sequestrator (sequestre). This action belongs to anyone who has a right of ownership, possession, or usufruct over a thing possessed by another, when there is reason to fear prejudice to his interests unless the thing itself is seized (cann. 1672 § 1, 1673). Seizure may also be requested by the judge ex officio, when the public good so requires (can. 1672 § 3). It may never be decreed if the harm feared can be remedied in another way (can. 1674). The prohibition against exercising a right (actio inhibitoris), whose purpose is to suspend the use of a right where this could cause harm to the other party, until the dispute has been settled, is equated with the actio sequestratario. This intervention too may be requested by the parties or initiated ex officio in accordance with can. 1672 §§ 1–3. By violating the prohibition, the other party commits an attentate, against which the actio nullitatis or vescisoria lies (can. 1851).
In the sphere of criminal law, the offence of seizure of a person is considered to some extent in the configuration of abduction (v.).
III. S. IN ITALIAN LAW. — S., as provided for by the Italian legal system, is a legal institution of broad scope, finding applications in substantive civil law, civil procedural law, substantive criminal law, criminal procedural law, constitutional law, and administrative law, with the consequence that different qualifications must be attributed to this legal term, as well as different dimensions to the institution itself.
In substantive and procedural civil law, s. is of various kinds:
1. Conservatory s. — This is granted over the debtor’s movable and immovable property and over sums and things owed to the debtor, when the creditor has well-founded fear of losing the security for his claim (art. 671 Code of Civil Procedure and arts. 2905–2906 Civil Code). It may be requested by anyone who is a creditor. For conservatory s. to be granted, two conditions must be met: first, there must be a well-founded fear of losing the security for the claim—fear of concealment, suspicious sales, dissipation, or, more generally, the possible existence of damage. Certain laws also took into consideration the suspicion that the debtor might flee (art. 924, repealed, Code of Civil Procedure of 1913), for which the intermediate law permitted personal arrest. This institution, generally abandoned by modern legal systems, remains in force under German and Austrian law. The second condition for obtaining conservatory s. consists in the possible existence of a right (fumus boni iuris). It is chiefly on this requirement that the judge’s investigation, which is merely summary, will proceed; the judge acts «having taken, where necessary, summary information» (art. 672, paragraph 4). Once authorization has been obtained, execution of the s. takes place at the risk and peril of the private applicant. Thus, in the event of abandonment, or if, in the validation proceedings, the s. is declared ineffective because it is found to have been granted without cause (art. 683 Code of Civil Procedure), the highly delicate question of liability for damages arises (art. 674 Code of Civil Procedure).
The object of conservatory s. may consist of either immovable or movable property. Conservatory s. over immovable property is executed by transcribing the judge’s order at the land-registry office of the place where the property is situated (art. 679 Code of Civil Procedure). If the s. concerns movable property, the property is seized and kept in the registry of the praetor’s court, in a place of public deposit, or entrusted to a custodian (sequestrator). In this case, the rules established for seizure from the debtor or from the third party who is the debtor of the debtor apply (art. 678, paragraph 1).
Conservatory s. is called judicial when authorized by the judicial authority over movable or immovable property, businesses, and other universalities of property, when ownership or possession thereof is disputed and it is appropriate to provide for their custody or temporary management (art. 670 Code of Civil Procedure).
2. Special s. — This is that ordered by the judge over sums or things that the debtor has offered or otherwise placed at the creditor’s disposal for the purpose of discharging the debt, when the obligation or the manner of payment or delivery, or the suitability of the thing offered, is disputed (art. 687 Code of Civil Procedure). These are special cases of judicial s. S. may also concern property held by third parties (arts. 677 and 678 Code of Civil Procedure). It should be noted that s. creates no privilege in favor of the sequestrant. It generally benefits all creditors and leaves unaffected any rights of priority belonging to them, but it produces an effect in substantive law of capital importance, namely that provided for in art. 2906 Civil Code. The Code of Civil Procedure places the regulation of s. among summary measures (arts. 670–687).
As regards the procedure, it should be observed that s. may be requested as the principal relief (s. preceding the action, as the Code puts it) or also by way of an incidental application, that is, during the proceedings, while the merits are pending. In both cases, subject to certain particularities concerning the introduction of the application for s., the procedure is identical. It consists of two stages: authorization and validation of the s. already effected. S. may also be revoked if the debtor so requests and provides adequate security (in the amount of the claim that gave rise to the s.), proportionate to the value of the property seized.
3. Conventional s. — This s. falls outside procedural matters, since it is a genuine contract (art. 1798 ff. Italian Civil Code). By it, the parties agree that a disputed thing be deposited with or delivered to a third party, who undertakes, once the dispute has ended, to return it to the person whom it is declared to belong to.
4. As mentioned above, s. is also considered 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 what is known as s. of a person in art. 605. 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. 610–615 Italian Penal Code.
5. Criminal procedural law provides for and regulates criminal judicial s. This consists in a measure of real coercion, restricting the availability of a thing in order to secure for the criminal proceedings the corpus delicti or any other thing useful for discovering the truth (arts. 222, 226, 337 ff. Code of Criminal Procedure). This s. must not be confused with conservatory s. of movable property as security for civil obligations arising from criminal liability (art. 189 Italian Penal Code; art. 617 Code of Criminal Procedure).
(phot. Felici)