of Enforcement Proceedings
in Civil Matters
1. Introduction
In this report I would like to outline the basic features of the Italian
system of enforcement proceedings in civil matters, mainly focusing on the role
of the judge in the enforcement of judgements.[1]
The Italian Code of Civil Procedure (Codice di Procedura Civile)
deals with the enforcement proceedings in its third book (Articles 434–632), making
it clear that such procedures are considered by the law not as administrative
proceedings, but as judicial processes, enjoying the same dignity and
prerogatives as the ordinary declaratory proceedings.[2] However, under Italian law, judgments are not the only instruments that
may be enforced through this kind of proceedings. Primarily for this reason,
the Code of Civil Procedure treats an enforcement proceeding (processo
di esecuzione) as a proceeding that is completely
distinct from an ordinary action on the merits.[3]
This action takes place when the defendant does not want to comply with
a court’s decision or with other kinds of orders issued in the framework of
particular authorities to execute. The enforcement proceeding involves not only
the accomplishment of material acts, as it involves as well legal acts and
legal issues. Also for this reason the intervention of a judge is required.
Unfortunately Italian enforcement proceedings are cumbersome, long and
ineffective. Procedures are complex and outdated and–except in very rare cases
(in the domain of patents and trademarks and in some labour disputes)–there are
no efficient indirect compulsory measures, such as the contempt of court, or
the French astreintes, or the German Zwangstrafen. As a result some
years must be necessary in some cases to reach the moment in which the creditor
receives satisfaction, while proceedings are very expensive and often the sale
of debtor’s goods is just enough to pay the lawyers’ fees and the costs of the
procedure.
2. Authorities to Execute
Enforcement proceedings must be based on
judgments or other legal instruments known collectively as titoli esecutivi
(authorities to execute, or enforceable instruments).[4]
According
to Article 474 of the Italian Code of Civil Procedure "Enforcement can be
effected only where there is a valid authority to execute in relation to an
obligation which is certain, the quantum of which has been fixed and which has
fallen due." The following constitute valid authority to execute:
(1)
Judgments and measures to
which the law expressly accords executory effect;
(2)
Promissory notes, as well as
other negotiable instruments to which the law expressly accords executory
effect (e.g. checks);
(3)
Private law instruments
including contracts, deeds, and other private law instruments executed before a
notary, but only as far as pecuniary credits are concerned (e.g.: the price to
be paid for purchasing a real estate).[5]
As
far as judicial authorities to execute are concerned, it must be added that,
until 1st January 1993, Italian judgments were ordinarily
enforceable only if issued on appeal or if no longer subject to appeal.[6] According to the current version of Article 282 of the Italian Code of
Civil Procedure–in force since 1st January 1993–even a decision rendered
at the end of a first degree proceeding has executory effect, save that the
defendant has attacked it and the second instance court has suspended the
executory effect of the first instance decision during the appeal proceeding.
The Italian system provides as well for several court orders, that are
not final judgements: in many of these cases court orders can be used as
enforceable instruments.[7] Also a settlement (conciliazione) concluded in the
course of a civil action and recorded in the protocol (processo verbale) of the case is enforceable as a
judgment (Codice di Procedura Civile, Art. 185, 322).
Enforcement of a negotiable instrument issues
on the original, while a judgment and any other instrument that is enforceable
as a judgment requires the addition of a formula
esecutiva that orders its enforcement (Codice di Procedura Civile,
Art. 475, Para. 1). The formula esecutiva
is inscribed on the instrument
by the court registrar or other custodian of the instrument. It commands the bailiff
and all other competent officials to enforce the instrument, the public prosecutor office to aid such officers, and the police to
render assistance upon request (Codice di Procedura Civile, Art. 475,
Para. 3).
3. Service of the authority to Execute and the Notice to Comply
Save where the law provides otherwise,
enforcement must be preceded by service of the authority to execute and the
notice to comply (Codice di Procedura Civile, Art. 479).[8]
The notice to comply is a formal notice by a
creditor to his/her debtor to the effect that, if the latter does not fulfil
his/her obligation within a given period (not less than ten days), enforcement
proceedings will be initiated (Codice di Procedura Civile, Art. 480,
Para. 1). If delay would be prejudicial, the court may reduce or eliminate this
period (Codice di Procedura Civile, Art. 482).[9]
It is essential to the validity of a notice to
comply that it contain the names of the parties and the date on which the
instrument sought to be enforced was served. The latter requirement is
dispensed with if, as in the case of negotiable instruments, the instrument did
not have to be served. In this case the contents of negotiable instruments must
be set forth in the notice to comply (Codice di Procedura Civile, Art. 480,
Para. 2).[10]
The notice to comply must indicate that the
creditor has his/her residence or elects domicile within the commune in which
the court of enforcement sits (Codice di Procedura Civile, Art. 480,
Para. 3). It must be signed by the creditor or by his/her attorney. It is
served personally upon the debtor pursuant to the same rules that apply to
service of summons (Codice di Procedura Civile, Art. 480, Para. 4). A
notice to comply lapses if enforcement proceedings are not commenced within
ninety days after its service, but if the debtor takes steps to contest the
validity of the notice to comply, the running of the ninety day period is
suspended to permit determination of the contest (Codice di Procedura
Civile, Art. 481).
The reason for the service of a notice to comply is first of all that of
giving the defendant a last chance to comply with his/her obligations. Secondly
it gives the defendant the possibility to object to the notice to comply (Codice
di Procedura Civile, Art. 615) when, for instance, the claimant wants to
enforce a judicial decision or another document to which the law does not (or
not jet) accord executory effect. This kind of objection allows the defendant
to stop any possible action by the plaintiff even prior to the beginning of the
enforcement proceeding, which starts only with the distraint of the debtor’s
property, once the authority to execute and the notice to comply have been
served.
4.
Types of Enforcement
Basically there are three types of Enforcement
proceedings:
(1)
Enforcement of an obligation
to pay a sum of money;
(2)
Specific Enforcement of an
obligation to deliver a movable or immovable property;
(3)
Enforcement of an obligation
to perform (or not to perform) a specific act.
The most relevant of the three ordinary types of enforcement is surely
the Enforcement of an obligation to pay a sum of money, which is carried out
through the distraint and forced liquidation of assets belonging to the debtor.
Bankruptcy
(fallimento, which is regulated in Royal Decree of March 16, 1942, No.
267) and other insolvency proceedings against businessmen and business
enterprises involve the enforcement of obligations through special means. Such
procedures, as well as other special types of enforcement are not discussed in
my report.[11]
5. Enforcement of an
Obligation to Pay a Sum of Money: General Principles
Enforcement of an obligation to pay a sum of
money is obtained through distraint and forced liquidation of assets (espropriazione
forzata).[12] The instrument sought to be enforced is, in effect, conclusive evidence
of the right to the forced liquidation.
Enforcement of an obligation to pay a sum of money
is performed through different ways, according to the kind of the debtor’s
assets the creditor wants to seize. Therefore the Italian Code of Civil
Procedure provides for different rules concerning respectively (just to mention
the most important):
·
Distraint and forced
liquidation of personal estate in possession of the debtor (Codice di
Procedura Civile, Art. 513–542);
·
Distraint and forced
liquidation of personal estate in possession of third parties (Codice di
Procedura Civile, Art. 543–554);
·
Distraint and forced
liquidation of claims (Codice di Procedura Civile, Art. 543–554);
·
Distraint and forced
liquidation of real estate (Codice di Procedura Civile, Art. 555–598);
·
Distraint and forced
liquidation of property in co–ownership (Codice di Procedura Civile,
Art. 599–601);
·
Distraint and forced
liquidation of property owned by third persons (Codice di Procedura Civile,
Art. 602–604);
The same
Code provides for some common provisions which are applicable to any form of
enforcement of an obligation to pay a sum of money (see Codice di Procedura
Civile, Art. 483–512). According to these rules the debtor is heard in an
enforcement action (Codice di Procedura Civile, Art. 485) only to allow
him/her to comment on his/her creditor’s plans for enforcement and to make
alternative proposals. If he/she wishes to object the execution, he/she must
institute a separate proceeding.
After a proceeding to force the liquidation of
the debtor’s assets is commenced with a distraint of the debtor’s property; a
file which will contain all the papers in the proceeding is opened in the
registrar’s office and a judge (giudice dell’esecuzione) is appointed to
supervise the entire proceedings (Codice di Procedura Civile, Art. 484). This judge is a member of
the court of first instance (tribunale) appointed by the president.
Territorial competence in proceedings relating to
personal and real estate is vested in the court of the place in which the
property is located (Codice di Procedura Civile, Art. 26, Para. 1), while territorial
competence in proceedings concerning liquidation of the debtor’s claims is
vested in the court of the place in which the third party (debtor’s debtor)
resides (Codice di Procedura Civile, Art. 26, Para. 2).[13] These rules of
territorial competence may not be modified neither by agreement of the parties
nor by the possible influence of other special rules (Codice di Procedura
Civile, Art. 28).
The judge supervising the enforcement procedure
is not part of an adjudicating panel, but makes his/her rulings independently.
These rulings are normally in the form of orders revocable or subject to
modification by the judge. They are based on either oral motions or written
applications (ricorsi) of one of the parties (Codice di Procedura
Civile, Art. 486). Ordinarily,
the judge’s rulings may be attacked only by instituting a separate proceeding
in the tribunal (giudizio di opposizione).
Distraint and forced liquidation of assets are
carried out in several steps.
·
First, the debtor’s goods
are distrained (Codice di Procedura Civile, Art. 491–497);
·
Second, other creditors may intervene (intervento
dei creditori: Codice di
Procedura Civile, Art. 498–500);
·
Third, the debtor’s assets are liquidated (liquidazione dell’attivo: Codice di Procedura Civile,
Art. 501–508);
·
Fourth, the creditor is
paid, or the proceeds from the liquidation of the debtor’s assets are distributed
amongst the creditors (Codice
di Procedura Civile, Art. 509–512).
Distraint of assets is the necessary first step in forcing liquidation
of property, when it is not already held in pledge (Codice di Procedura
Civile, Art. 491)[14]; through this act enforcement of an obligation to pay a sum of money
starts. Unlike the charging order known by the British law[15] this order is not made by a court, but by a bailiff, who acts at the
creditor’s request. The bailiff orders the debtor to refrain from any act that
would interfere with liquidation of the distrained property (Codice di
Procedura Civile, Art. 492).
Any interference by causing the destruction, deterioration, or removal of distrained
property is a criminal offence (see Art. 334 of the Italian Penal Code).
In addition to securing the creditor’s rights,
distraint serves the purpose of identifying the property to be liquidated. When
movables in the possession of the debtor are distrained, the bailiff must draw
up a protocol describing distrained assets and indicating their value (Codice
di Procedura Civile, Art. 518).
When immovables are distrained, distraint is recorded in the office in which a
register of rights or interests in real estate is kept (Codice di Procedura
Civile, Art. 555).
If
distrained property is in the possession of third persons, they are required to
inform the court of the items in their possession or the amounts they owe to
the debtor (Codice di Procedura Civile, Art. 547).
Certain items of personal property cannot be
distrained. They include religious objects, firearms, and other objects needed
to perform public duties, as well as wedding rings, medals, tools that are
indispensable for the debtor’s trade, beds, suits of clothing and personal
linen, one month’s supply of foodstuffs and fuel, and similar items (Codice
di Procedura Civile, Art. 514).[16]
Distrained property is entrusted to a
custodian. Although the debtor himself may be appointed custodian (Codice di
Procedura Civile, Art. 520,
521, 559, 560), he/she normally may neither use distrained property nor keep
rents, profits, interest, and similar revenues (Codice di Procedura Civile,
Art. 515, 521, 560). Distraint
also covers rents, profits, interest, and other revenues of the distrained
property: see Art. 2912 of the Italian Civil Code (Codice Civile).
The debtor may avoid distraint by paying the
sum due to the bailiff for delivery to the creditor (Codice di Procedura
Civile, Art. 494, Para. 1).
However, since such payment does not constitute recognition of the debt, he/she
is not precluded from bringing an action for restitution of the amount, should
he/she prove that the enforcement procedure was wrongfully instituted (Codice
di Procedura Civile, Art. 494,
Para. 2).[17] If the value of distrained
property exceeds the amount of the debt and costs, the judge, after hearing the
creditor and any creditors who have intervened, may order that part of the
property be released (Codice di Procedura Civile, Art. 496).
The creditor may select the property that is to
be liquidated. He/she may select various types of property and may bring
proceedings in more than one district. However, if he/she selects more property
than necessary to satisfy his/her claim, the debtor may apply to have this
selection restricted (Codice di Procedura Civile, Art. 483). The creditor who requested the distraint must apply for the sale of
attached property within a deadline of ninety days, otherwise the distraint
lapses (Codice di Procedura Civile, Art. 497).[18]
Bailiffs have broad powers to search for movables. They may force open doors and
may call upon the police for aid to overcome resistance or to keep the peace.
They may search the person of the debtor, subject, however, to the guarantees
granted the latter by law and by the Constitution (Codice di Procedura
Civile, Art. 513, Para. 1,
2; on unreasonable searches, see Art. 13 of the Italian Constitution). The
creditor may accompany the bailiff on his/her search. If there is no prejudice
to the creditor, the bailiff should distrain objects selected by the debtor,
but the debtor is not required to reveal the location of his/her assets.
Preference is given to cash, precious objects, and negotiable instruments that
can be liquidated easily (Codice di Procedura Civile, Art. 517).
7. Intervention of Other Creditors
When an enforcement procedure has been
commenced by one creditor, other creditors may intervene (Codice di
Procedura Civile, Art. 499,
Para. 1).[19] When liquidation of immovable property is sought, even creditors whose
rights have not yet fallen due may join the proceedings (Codice di Procedura
Civile, Art. 563, Para. 1).
All creditors who have initiated or joined in the proceedings are equally
treated in the distribution of proceeds, whether or not they have obtained an
authority to execute (see Codice Civile, Art. 2741,
Secured creditors retain their priority rights
no matter at what stage they enter the proceeding (Codice di Procedura
Civile, Art. 528, Para. 2;
Art. 566). The court may not order the sale or distribution of the property
until creditors secured by liens that are officially recorded either have been
served with a notice of the proceeding or have intervened (Codice di
Procedura Civile, Art. 498).
The treatment of unsecured creditors varies,
depending on whether their intervention occurred before or after the hearing
set to determine whether the sale of property is to be authorized (Codice di
Procedura Civile, Art. 525,
Para. 2, 3; Art. 563, Para. 2). If the unsecured creditors intervened before
this hearing, they share equally with other unsecured creditors (Codice di
Procedura Civile, Art. 526,
564). If not, they share in any surplus left after the other creditors have
been satisfied (Codice di Procedura Civile, Art. 528, 565).
Creditors intervene by a written application
indicating the nature and amount of their claims as well as their residence or
elective domicile within the commune in which the court sits (Codice di
Procedura Civile, Art. 499).
If an intervening creditor has an authority to execute he/she may participate in the procedure with the same powers as
the creditor who started the enforcement proceedings. If the claim is not based
on an authority to execute, he/she
merely shares in the distribution of the proceeds.[20]
8. Liquidation of Assets
Normally, the debtor’s distrained property is
sold (vendita forzata). Sometimes, however, property may be
assigned to the creditors in lieu of sale (assegnazione forzata). Distrained property may be sold or
assigned solely on the motion of the creditor who started the enforcement
proceeding or of one of the intervening creditors who possesses an authority to
execute. Unless the property is perishable, a motion to sell or assign it
may not be made until at least ten days after distraint (Codice di Procedura
Civile, Art. 501).
Distrained property is ordinarily sold at
public auction (Codice di Procedura Civile, Art. 534–538, 576–587). In the discretion of the judge, movable
property may be sold through a broker instead (Codice di Procedura Civile,
Art. 532–533). For the sale of
personal property the auction is held by the registrar, or the bailiff, or by a
certified auction institute, chosen by the judge (Codice di Procedura Civile,
Art. 534), or by a public
notary in the case of cars, ships or airplanes (Codice di Procedura Civile,
Art. 534–bis, 534–ter).
Distrained property may be as well offered for sale in several lots. Once the
required sum has been obtained, the sale is discontinued (Codice di
Procedura Civile, Art. 504).
Real estate may be offered to bidders who file bids with the clerk of the court
instead of at a public auction (Codice di Procedura Civile, Art. 570–575). Auction for the sale of
real estate is held by the judge (Codice di Procedura Civile, Art. 581) or by a public notary chosen
by the judge (Codice di Procedura Civile, Art. 591-bis and 591-ter).
Distrained property may also be assigned to the
creditors instead of being sold (Codice di Procedura Civile, Art. 505). Property may be assigned to
discharge the debtor’s obligation to the assignees up to the value of the
assigned property. If the property is worth more than the amount of the debt,
the assignees must pay the balance. The Code specifically requires that gold
and silver objects be assigned if no purchasers have been found willing to pay
the intrinsic value of their metallic content (Codice di Procedura Civile,
Art. 539). A claim which is
fallen due on a third party or a claim that will mature within ninety days may
be assigned to the creditors, subject to collection (Codice di Procedura
Civile, Art. 553, Para. 1).[21]
9. Distribution of the Proceeds
Unless
the debtor’s assets are assigned to the creditors in satisfaction of their
claims, the proceeds of the liquidation must be distributed. The proceeds
include:
(1)
money received upon the sale
or assignment of the debtor’s assets;
(2)
rents, profits, interest,
and other revenues accruing from the debtor’s assets during the period of
distraint; and
(3)
fines or damages paid into
court by the defaulting purchasers or assignees (Codice di Procedura Civile,
Art. 509).
Distribution of the proceeds is made according
to the following steps.
·
Costs and expenses of the
proceeding are paid first.
·
Second, preferred creditors
are paid in the order of their priority.
·
Third, unsecured creditors
who commenced or intervened into the proceeding in due time are paid: They
share equally, in proportion to the amount of their claims, if there are
insufficient funds to satisfy them.
·
Fourth, creditors who
intervened after the hearing set for the authorization of the liquidation of
assets share the balance in proportion to their claims.
·
Finally, any surplus is
returned to the debtor (Codice di Procedura Civile, Art. 510).
If there is any dispute concerning the
distribution of proceeds, the judge hears the controversy as an action on the
merits. In this case distribution of the proceeds is suspended except to the
extent to which it can be effected without prejudicing the rights of the
claimants (Codice di Procedura Civile, Art. 512, Para. 2).
10. Liquidation of Debtor’s Claims and of
Debtor’s Personal Estate in the Possession of Third Persons
Liquidation of claims of the debtor is subject
to special rules. Various welfare and charity payments are exempt, while wages
and salaries may be executed upon only up to the percentage fixed by law for
the particular situation involved; usually wages can be distrained only up to a
fifth of the net sum perceived by the debtor (Codice di Procedura Civile,
Art. 545).
Proceedings for execution upon claims or upon
movables in the possession of third persons are instituted by summoning the
third person or the debtor before the first instance court. By serving the
summons on the person who is in possession of the debtor’s personal estate, the
claimant orders this third person not to dispose of such things in his/her
possession (e.g. by selling, donating or exchanging them). By serving the
summons on the debtor’s debtor, the claimant orders third person not to
discharge his/her debt to the debtor (Codice di Procedura Civile, Art. 543).
If the third person appears in court and admits
either possession of objects belonging to the debtor or that he/she owes or
will owe money to the debtor, the judge orders the assets to be sold or
assigned in the normal way to the creditor (Codice di Procedura Civile,
Art. 552, 553). If the third
person does not appear, or contests the allegation of the creditor, or keeps
silent, the judge, on the motion of the party, gives way to a proceeding on the
merits to determine whether the third person has objects in his/her possession
that belong to the debtor or is indebted to the debtor (Codice di Procedura
Civile, Art. 548). Until
that action is decided, enforcement proceeding is suspended (Codice di Procedura Civile, Art. 549).
11. Liquidation of Real Estate, Property in
Co–Ownership and Property Owned by Third Persons
A number of highly technical rules regulate the
forced liquidation of real estate (Codice di Procedura Civile, Art. 555–598). They relate primarily
to the complexities of the sale of such property.
Special rules also govern forced liquidation of
property owned by the debtor and others as co–owners.[22] Co–owners are enjoined from allowing the debtor to separate his/her
share of the property during the course of the proceeding (Codice di
Procedura Civile, Art. 599, Para.
2). The debtor’s interest is liquidated either
(1)
by partitioning off the
debtor’s share, or
(2)
by sale of his/her undivided
fractional interest, or
(3)
by partition of the whole
property, according to the provisions of the Codice Civile governing the
partition of co-ownership (Codice Civile, Art. 713–736).
The co–owners as well as the parties are
consulted by the judge before he/she reaches his/her decision on the manner of
liquidating the debtor’s interest (Codice di Procedura Civile, Art. 600, 601).
A final group of rules governs liquidation of
property owned by third persons. Such liquidation may occur when the third
party has purchased property subject to a mortgage or other lien or when the
third party acquired property in fraud of his/her transferor’s creditors (Codice
di Procedura Civile, Art. 602). The
main purport of these rules is to put the third person on a par with the debtor
as a party in the levy of execution proceeding (Codice di Procedura Civile,
Art. 603, 604).
12. Specific Enforcement of Judgments Ordering the Delivery of Property
Judgments ordering the delivery of specific
movable property (consegna) or of specific
immovable property (rilascio) may be enforced specifically (Codice di Procedura Civile,
Art. 605–611).[23] Since this type of enforcement is available only to effectuate the
delivery of specific property, it cannot be used to enforce a claim for
unspecified fungible goods or chattels. Thus, it cannot be used to enforce an
obligation for the delivery of two horses, but may be employed to enforce
delivery of the stallion "Sultan." It is generally believed that it
cannot be used to enforce delivery of a person, as in a custody case.[24]
A copy of the instrument to be enforced
(usually a court decision) and a notice to comply must be served on the debtor.
The notice to comply must contain a summary description of the property
involved (Codice di Procedura Civile, Art. 605, Para. 1). If the instrument sought to be enforced sets
a term within which the debtor must make delivery of an object or must vacate
premises, the notice to comply must grant him that amount of time rather than
the usual ten day period (Codice di Procedura Civile, Art. 605, Para. 2).
The proceeding for delivery of property, which is considerably simpler than a
proceeding to obtain a forced liquidation of assets, is conducted mostly by the
bailiff. At the request of the creditor, upon expiration of the period of
warning granted in the notice to comply, the bailiff proceeds with the
enforcement without judicial intervention. The judge is called upon only to
decide any difficulties that may arise. Such difficulties are presented to the
judge by the parties with little formality (Codice di Procedura Civile,
Art. 610).
If delivery of movable property is sought, the
bailiff goes to the place where it is located. The bailiff may search for the
objects using the same powers as he/she has in distraint matters. If the
bailiff finds them, he/she delivers them to the creditor or his/her attorney (Codice
di Procedura Civile, Art. 606).
If transfer of immovable property has been ordered, the bailiff
initiates the enforcement proceeding by giving the debtor at least three days
notice of his/her coming (Codice di Procedura Civile, Art. 608, Para. 1). On the day specified,
the bailiff puts the creditor or his/her agent in possession, delivers the keys
(if any) to him/her, and tells third persons (such as tenants) who are on the
premises to recognize the new possessor (Codice di Procedura Civile, Art. 608, Para. 2). The bailiff may
utilize the police if it is necessary to use force or to prevent a public
disturbance.[25] If there are movables on the premises that are not involved in the
enforcement proceeding, the bailiff takes them in custody, unless the person
ejected removes them immediately (Codice di Procedura Civile, Art. 609).
The costs of enforcement are taxed by the judge
upon the report of the bailiff and are paid in advance by the claimant. The decree
taxing costs constitutes an authority to execute against the debtor (Codice
di Procedura Civile, Art. 611).
13. Enforcement of an Obligation to Perform a Specific Act
A special proceeding is provided for the
enforcement of an obligation to perform (or not to perform) specific acts
(mandatory and restraining orders).[26] Italian law neither employs contempt of court procedures, nor, except
in very rare instances, does it make use of the French system of astreintes.[27] Mandatory orders are enforced specifically
by directing a court appointed substitute to act for the debtor. Specific
enforcement of a restraining order is granted only if it is possible to destroy
what has been built or done in violation of the debtor’s obligation. The
destruction of what has been built or done is ordered only if it will not
prejudice the national economy (Codice Civile, Art. 2933). It is again effectuated by a court appointed
substitute.
A mandatory or restraining order may be issued
to enforce either a property right or a personal right, such as a right arising
from a contract. The prevailing view is that an obligation to perform, or to
refrain from performing, an act may be enforced specifically only if it is
contained in a judgment (Codice di Procedura Civile, Art. 612, Para. 1).
Specific enforcement is granted only if a
substitute can perform the obligation. For example, if a famous artist has
undertaken to paint a portrait, specific enforcement will not be granted. A
proceeding to obtain specific enforcement is again preceded by service of the
judgment and of a notice to comply (Codice di Procedura Civile, Art. 612, Para. 1). The first instance court of the place
where the obligation is to be performed is competent to enforce mandatory or
restraining orders (Codice di Procedura Civile, Art. 26, Para. 3).
The claimant applies to the court to determine
the means of enforcement (Codice di Procedura Civile, Art. 612, Para. 1). The judge appoints
both a bailiff to supervise the enforcement and other persons who are to carry
out the order. The latter, for example, may be construction contractors who may
be charged with the building of a wall or its demolition (Codice di
Procedura Civile, Art. 612,
Para. 2). The bailiff may call upon the police for assistance. Whenever a
difficulty arises, he/she must ask for a ruling from the court (Codice di
Procedura Civile, Art. 613).
The creditor must advance the expenses for
carrying out the court’s orders (Codice di Procedura Civile, Art. 90). From time to time, he/she
may present his/her bill, countersigned by the bailiff, to the court. In this
case the court issues a summary ex parte decree against the debtor for
payment (Codice di Procedura Civile, Art. 614).
A person who appears to be a debtor under an
authority to execute may institute a proceeding in order to raise objections (giudizio
di opposizione)[28] either
·
against the creditor’s right
to enforcement (objection to
enforcement, opposizione
all’esecuzione: Codice di
Procedura Civile, Art. 615–616),
or
·
against particular acts of
enforcement (objection to
particular acts of enforcement,
opposizione agli atti esecutivi: Codice
di Procedura Civile, Art. 617–618).
Both kinds of objections (objection to
enforcement and objection to particular acts of enforcement) constitute
independent proceedings. The competent court in such a proceedings is usually
the same court in which the enforcement proceess is pending, as territorial
competence is normally determined by the place of enforcement (Codice di
Procedura Civile, Art. 27).
A proceeding to oppose an enforcement
(objection to enforcement) may be based on two grounds.
(1)
First, the debtor may deny
the creditor’s right to enforcement. For example, the defendant may assert the
non–existence or discharge of the obligation sought to be enforced, its lack of
maturity or liquidity, or its unenforceability; or he/she may deny that the
type of enforcement sought is available or assert the lack of enforceability of
the judgment.
(2)
Second, proceedings to force
liquidation of assets may be opposed on the ground that the property sought to
be attached is exempt from enforcement.
A proceeding to oppose an execution may be
brought at any time after service of the notice to comply, but before the
enforcement proceeding has been initiated. In that case, it is instituted by a
normal summons, by which the claimant summons the alleged creditor into the
competent court (Codice di Procedura Civile, Art. 615, Para. 1). It may also be initiated after commencement
of the enforcement proceeding by an application to the judge overseeing the
enforcement proceedings. Subject to the discretionary requirement of a bond,
the judge may, on serious grounds, suspend the enforcement proceeding (Codice
di Procedura Civile, Art. 624).
The opposition proceedings unfold as any other
action on the merits. The decision is made in the form of a sentenza (final judgement on the merit). If the decision is in favour of the party who opposed the
enforcement proceeding, enforcement will be denied and most acts taken in the
enforcement proceeding will lapse.[29]
Objection
to particular acts of enforcement may be based on the following grounds,
according to whether the debtor wishes to object to the formal regularity of
(1)
the authority to execute, or
(2)
of the notice to comply, or
(3)
of the service of authority
to execute or of the notice to comply, or
(4)
any further steps in the
enforcement proceeding.
The
debtor may normally raise this kind of objections before the same judge who is
competent in the enforcement proceeding. Such objections are, however, treated
as independent proceedings. As a rule, a proceeding of this nature must be
commenced within five days from the performance, or service of a notice, of the
act which is objected (Codice di Procedura Civile, Art. 617). Sometimes even shorter periods are provided for (see, e.g., Codice di Procedura Civile, Art. 530, Para. 2; Art. 569, Para. 2).
Objections to particular acts of enforcement do
not suspend the enforcement proceeding, but do suspend the running of the
period of effectiveness of notice to comply and of distraint until the
opposition is decided (Codice di Procedura Civile, Art. 481, Para. 2; Art. 497, 628). Objections
to particular acts of enforcement are decided by sentenze (final judgements
on the merits), which,
according to the Code, are subject neither to appeal, nor to review in the Corte di cassazione (Supreme Court of Cassation), nor to other
means of attack (Codice di Procedura Civile, Art. 618, Para. 2 and 3). However, the Corte di cassazione has held that they are reviewable in cassazione by virtue of article 111 of the Constitution.[30]
17. Third Party Objection to Enforcement
Objections to enforcement may also be brought
by third persons who claim ownership of, or other in rem rights in, distrained property (Codice di Procedura
Civile, Art. 619–622).
Third parties who claim to have an in rem
right in distrained property may therefore bring a proceeding to contest
the creditor’s right to force liquidation of that property. Article 619,
Although third party opposition may be brought
against proceedings to liquidate either movables or immovables, in practice, it
is rarely brought against proceedings to liquidate immovables. The third party
initiates an opposition proceeding by an application to the judge in the
enforcement proceeding (Codice di Procedura Civile, Art. 619, Para. 1). Territorial
competence is determined by the place of enforcement (Codice di Procedura
Civile, Art. 27, Para. 1).
If third party opposition is brought after the
movable property has been sold, but before distribution of the proceeds, the
third party can no longer protect his/her interest in that property. He/she may
be compensated only for the value of his/her interest from the amount obtained
in exchange for the goods claimed by him (Codice di Procedura Civile, Art. 620).
The third party is the plaintiff in the
opposition proceeding, while the distraining creditor and the debtor are the
defendants. The third party has a particularly heavy burden of proof. To
prevent fraud or collusion between the debtor and the third party, certain
restrictive rules of evidence apply. Neither testimony nor circumstantial
evidence is admissible to prove the third party’s interest in goods which have
been distrained in the house or place of business of the debtor, unless the
profession or business of the parties makes the existence of the alleged
interest likely. (Codice di Procedura Civile, Art. 621).[32]
18. Enforcement Proceedings and the European Convention on Human Rights
The European Court of Human Rights has dealt so
far with several cases concerning the violation of the European Convention on
Human Rights by enforcement proceedings instituted in Council of Europe’s
members states according to respective national legislations. In my view, the
problem is not whether Article 6,
The question deals rather with admissibility
criteria, according to Article 35,
In the case of Silva
Pontes v. Portugal[34] the European Court of Human Rights said that it
was not for the Court to express a view on the difference of opinion among
legal writers as to whether under Portuguese law enforcement proceedings are
autonomous, as the moment at which there was a "determination" of a
civil right and therefore a final decision within the meaning of Article 26
(now Article 35) had to be ascertained with reference to the Convention and not
on the basis of national law. According to the Court, "The determination
of a right entails deciding not only on the existence of that right, but also
on its scope or the manner in which it may be exercised (…), which would
evidently include the calculation of the amount due."
In that case, dealing with compensation
following a car accident, at the stage of the declaratory proceedings, the
Portuguese first instance court had awarded Mr Silva Pontes damages of 540,000 escudos and, in accordance with
Article 661 Para. 2 of the Portuguese Code of Civil Procedure, reserved for the
subsequent enforcement proceedings the matter of the reimbursement of the
transport costs incurred in order to receive medical treatment after the
accident. The Court of Appeal had dismissed the applicant’s appeal, but the
Supreme Court had awarded him an additional sum, likewise to be determined in
the course of the enforcement proceedings, for damage resulting from his/her
disability. The
In his dissenting opinion Judge Morenilla
correctly remarked that the majority’s approach had, in fact,
"resuscitated" the question of delays in the declaratory proceedings
and was therefore contrary to legal certainty and to the generally recognised
principles of international law.
Even more
serious objections can be raised against some other decisions brought against