According to Article 321 of the Code of Criminal Procedure, when there is the danger that the free availability of a thing – money, goods, real estate properties - pertaining to the offence could aggravate or extend the consequences of the offence or facilitate the commission of other offences, the judge having jurisdiction to rule on the merits, upon request of the public prosecutor, shall order by reasoned decree that said thing be seized. Prior to the initiation of criminal proceedings, seizure shall be ordered by the judge for preliminary investigations.
The judge may also order the seizure of any property that may be confiscated.
Moreover, during criminal proceedings relating to certain offences, the judge shall order the seizure of any property that may be confiscated.
Seizure shall immediately be revoked upon request of the public prosecutor or the person concerned when the outlined conditions of applicability are not met, also as the result of subsequent events. During the preliminary investigations, the public prosecutor shall rule by reasoned decree served on all those entitled to lodge an appeal.
When the person concerned requests that seizure be revoked, the public prosecutor who holds that such a request is to be even partially turned down, shall send it to the judge and shall submit his/her specific requests and the elements on which his/her reasoning is grounded. The request shall be transmitted no later than the day following the day on which it was filed with the judge’s clerk.
During the preliminary investigations, when it is not possible to wait for the judge’s decision, because of the situation of urgency, seizure shall be ordered by the public prosecutor by reasoned decree. In the same cases, prior to the intervention of the public prosecutor, seizure shall be carried out by judicial police officers who, within 48 hours from seizure, shall transmit their written report to the public prosecutor of the place where the seizure was carried out. The public prosecutor who does not order that the property seized be returned, shall ask the judge to confirm the seizure and to issue the decree thereof within 48 hours from seizure, when the seizure was ordered by the public prosecutor, or from receipt of the written report, when the seizure was carried out by the judicial police on their own motion.
Seizure shall lapse when the set time limits are not complied with or when the judge does not issue the confirmation order within ten days from receipt of the request. A copy of the order shall be immediately served on the person whose property has been seized.
Freezing is also possible within the proceedings aimed to adopt a non-conviction-based confiscation.
In this regard, it is worth pointing out that in Italy there is the National Agency for the administration and destination of assets seized and confiscated from organized crime (established by Legislative Decree no. n. 4/2010, converted, with amendments, into l. n. 50/2010, subsequently implemented in the legislative decree n. 159/2011, so-called Anti-Mafia Code). The Agency is an entity with legal personality under public law, with organizational and accounting autonomy, and is placed under the supervision of the Minister of the Interior. The structure has its headquarters in Rome and secondary offices in Reggio Calabria, Palermo, Milan and Naples.
The main purpose of the Agency is to provide for the administration and destination of the assets seized and confiscated from organized crime, following the definitive confiscation, as well as to assist the judicial administrator, under the direction of the judicial authority, during the seizure.
The Agency is able to ensure a dynamic administration of confiscated assets aimed at streamlining and speeding up the destination phase of the same, overcoming the shortcomings and inefficiencies of the previous management methodology. Indeed, through close collaboration with the Judicial Authority, the Agency provides valid support for planning the destination of the assets, already during the judicial phase.
Generally talking, the administration and destination of assets is accompanied by constant monitoring to ensure their effective social reuse.
One of the main functions related to the management of the seized assets is that of the custody of the assets themselves.
The things seized are entrusted to the registry or the secretariat for custody.
When this is not possible or not appropriate, the Judicial Authority arranges for the custody to take place in a different place, determining the manner and appointing another suitable custodian.
Upon delivery, the custodian is warned of the obligation to keep and present things at every request of the Judicial Authority, as well as of the penalties provided for by the criminal law for those who transgress the duties of custody.
In the hypothesis of things that can be altered, the Judicial Authority orders, according to the actual case, their alienation or destruction.