SEQUESTRO. - It is a precautionary measure by which either a disputed object is entrusted to a third party (sequestratario) for safekeeping 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 by a court or agreed upon by the parties. A subspecies of judicial sequestration is conservatory sequestration, which may be civil or criminal: the former is ordered by a judge to secure an obligation; the latter concerns objects used to establish the truth in criminal proceedings.
It is called personal sequestration when its subject is a human person. This too may be implemented as a precautionary measure to protect assets and interests guaranteed by law, or, as commonly understood, to signify the taking of a hostage for ransom.
The justification for these preventive measures lies in the need to avert prejudice to the parties or to the public interest in good time. They are precautionary measures which, like any other conservatory provision, aim to preserve a provisional factual or legal situation until a final ruling is issued in the dispute (a declaratory or condemnatory judgment, an enforcement order, or the final determination of the parties' disputed rights).
Sequestration, as a precautionary institution, finds application in the most varied fields of law, from substantive civil law to civil procedure, from substantive criminal law to criminal procedure.
I. LAWFULNESS AND UNLAWFULNESS OF SEQUESTRATION
Considered solely in the light of natural law, conventional or judicial sequestration is lawful and proper, since it is based either on a right over the thing and the need to avoid prejudice through delayed or untimely action, or it is an expression of a free agreement between the parties, or it is a requirement of the public authority's free administration of justice when it has the right to ascertain facts and punish the guilty in the common interest. The sequestratario is obliged to preserve the sequestered object as if it were his own and is liable for its loss or deterioration through his own fault. Moreover, he must hold the sequestered object at the disposal of the parties if the sequestration is conventional, or of the judge if it is judicial. Personal sequestration is not lawful unless justified by the need to protect personal safety and freedom, and it constitutes a grave sin against justice inasmuch as it violates personal freedom; it is normally regarded as a serious crime even under positive law.II. SEQUESTRATION IN CANON LAW
With regard to sequestration in the field of property law (corresponding to substantive civil law), the Code of Canon Law contains no special provisions, the legislator in this area referring 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 petition the judge for the sequestration of a disputed object and for the deposit of its fruits with a third party, known as the sequester. This action is available to anyone who has a right of ownership, possession, or usufruct over an object held by another, when there is a risk of prejudice to his interests if the object is not sequestered (can. 1672 § 1, 1673). Sequestration may also be ordered ex officio by the judge when required by the public good (can. 1672 § 3). It may never be decreed if the feared harm can be averted in another way (can. 1674). The sequestration action is equivalent to the prohibition of the exercise of a right (actio inibitoria), which aims to suspend the exercise of a right when it may cause harm to the other party until the dispute is resolved. This intervention too may be requested by the parties or initiated ex officio in accordance with can. 1672 §§ 1–3. If the prohibition is violated, the other party commits an act of contempt, against which the actio nullitatis or rescissoria is available (can. 1851).
In the field of criminal law, the crime of personal sequestration is considered in the form of abduction (v.).
III. SEQUESTRATION IN ITALIAN LAW
Sequestration, as envisaged by the Italian legal system, is a legal institution of broad scope, finding application in substantive civil law, civil procedure, substantive criminal law, criminal procedure, constitutional law, and administrative law, with the consequence that the various qualifications and scope of this legal term differ according to the field in which it is applied.In substantive and formal civil law, sequestration takes several forms:
1. Conservatory sequestration
This may be granted over the debtor’s movable and immovable property and over sums or objects owed to him when the creditor has good reason to fear the loss of his security (arts. 671 of the Code of Civil Procedure and arts. 2905–2906 of the Civil Code). It may be sought by a creditor. Two conditions must be met for conservatory sequestration to be granted: first, there must be a well-founded fear of losing the security for the claim—fear of misappropriation, suspicious sales, dissipation, or generally the possibility of damage. Some laws also took into account the suspicion of the debtor’s flight (art. 924, repealed 1913 Code of Civil Procedure), for which intermediate law allowed personal arrest. This institution, generally abandoned by modern legal systems, is still maintained in German and Austrian law. The second condition for obtaining conservatory sequestration is the plausible existence of a right (fumus boni iuris). It is on this requirement that the judge’s summary investigation will focus, conducted “after taking such summary evidence as may be necessary” (art. 672, para. 4). Once authorization is obtained, the execution of the sequestration is at the risk and peril of the private applicant. Therefore, if the sequestration is later abandoned or declared ineffective in the validation proceedings because it is found to lack cause (art. 683 of the Code of Civil Procedure), the highly delicate issue of liability for damages arises (art. 674 of the Code of Civil Procedure).Objects of conservatory sequestration may include both immovable and movable property. Conservatory sequestration over immovable property is effected by recording the judge’s order in the land registry office of the place where the property is located (art. 679 of the Code of Civil Procedure). If the sequestration concerns movable property, the objects are inventoried and kept in the court’s custody or in a public depository, or entrusted to a custodian (sequestratario). In such cases, the rules governing seizure from the debtor or from a third-party debtor apply (art. 678, para. 1).
Conservatory sequestration is said to be judicial when authorized by the judicial authority over movable or immovable property, businesses, and other universality of goods, when their ownership or possession is in dispute and it is expedient to provide for their custody or temporary management (art. 670 of the Code of Civil Procedure).
2. **Special Sequestration** — This is the sequestration ordered by a judge over sums or goods that the debtor has offered or otherwise made available to the creditor for their release, when the obligation or manner of payment or delivery, or the suitability of the offered item, is in dispute (art. 687 Cod. proc. civ.). These are special cases of judicial sequestration. Sequestration may also apply to goods held by third parties (art. 677 and 678 Cod. proc. civ.). It should be noted that no privilege arises from this sequestration in favor of the sequestrator. It generally benefits all creditors and does not prejudice any preferential rights they may have. However, it does produce a significant substantive legal effect, namely that provided for in art. 2906 Cod. civ. The Code of Civil Procedure regulates the sequestration among summary measures (art. 670–87).
As for procedure, it should be observed that sequestration may be requested as a principal action (sequestration prior to the lawsuit, as the Code states) or incidentally, that is, during the course of a pending lawsuit. In both cases, aside from certain particularities regarding the introduction of the sequestration request, the procedure is identical. It consists of two stages: authorization and confirmation of the sequestration. The sequestration may also be revoked if the debtor requests it and provides adequate security (for the amount of the debt that gave rise to the sequestration) proportional to the value of the sequestered goods.
3. **Conventional Sequestration** — This sequestration falls outside the realm of procedural law, as it is a genuine contract (art. 1798 et seq. Cod. civ. ital.). By it, the parties agree that a disputed item be deposited or delivered to a third party, who undertakes to return it, once the dispute is resolved, to the person to whom it is declared to belong.
4. As noted above, sequestration is also considered in substantive and formal criminal law, but with a meaning and for purposes entirely different from those so far discussed. In particular, the Penal Code punishes in art. 605 what is known as **personal sequestration**. This offense consists in depriving an individual of their personal liberty; liberty in a physical sense, and thus not to be confused with the deprivation of psychological freedom, which constitutes the legal object of the offenses set out in arts. 610–15 Cod. pen. II.
5. Criminal procedural law provides for and regulates **judicial sequestration in criminal matters**. This consists in a measure of real coercion, limiting the availability of an item, for the purpose of securing to the criminal process the corpus delicti or any other item useful for discovering the truth (art. 222, 226, 337 et seq. Cod. proc. pen.). This sequestration must not be confused with the conservatory sequestration of movables to secure civil obligations arising from criminal liability (art. 189 Cod. pen. it.; art. 617 Cod. proc. pen.).