of Enforcement Proceedings
in Civil Matters
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.
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. 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.
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 Procedures are complex and outdated and–except in very rare cases (in the domain of patents and trademarks and in some labour disputes)–there are no efficient indirect compulsory measures, such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).
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).
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. 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. 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).
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).
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).
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.
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). 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). 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); through this act enforcement of an obligation to pay a sum of money starts. Unlike the charging order known by the British law 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).
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). 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).
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). 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.
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).
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. 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). 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.
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. 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). Italian law neither employs contempt of court procedures, nor, except in very rare instances, does it make use of the French system of astreintes. 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) 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.
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.
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).
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 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
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.
serious objections can be raised against some other decisions brought against
The case of Di Pede v.
 concerned a petition aiming at demolishing a building erected in breach of the statutory provisions on minimum distances from the boundaries of adjacent properties and at removing four trees for the same reason. The Italy European Courtstated again that the period to be taken into consideration began on the day the summons had been originally served in the declaratory proceedings.
In his dissenting opinion Judge Morenilla persisted in maintaining that in the correct approach, unlike what the majority had done, was to "dissociate" for the purposes of Articles 26 (now Article 35) and 6 Para. 1 of the Convention the declaratory and enforcement phases of civil procedure, which should be regarded as two clearly separated and autonomous stages. "Although enforcement proceedings are a consequence of the judicial decision on the merits", wrote Judge Morenilla, "and although in a number of legal systems, especially those derived from Roman law, it is the courts which have jurisdiction to ensure execution of their own decisions on the merits, one type of proceedings follows the other and each has its own specific legal features. A party in whose favour judgment has been given is free to bring enforcement proceedings or not, to reach a friendly settlement in the case or to wait for an extra–judicial solution which suits him (…). In this case there was an obligation to perform a specific act, which by its very nature requires the assent of the party seeking enforcement, who may ask the court to specify the means of enforcement."
Also in the case of Zappia v. Italy, dealing with damages for breach of a contract of sale relating to a flat under construction, the European Court considered that it did not have to express a view on the difference of opinion as to whether under Italian law enforcement proceedings are autonomous, as, according to the Convention, "determination of a civil right" is made when that right "actually becomes effective." The Court considered that the enforcement proceedings must be regarded as the second stage of the (declaratory) proceedings; once again Judge Morenilla expressed his dissenting view, stressing that the declaratory proceedings had ended with a final judgment which constituted the relevant final decision for the purposes of the six–month limit under Article 26 (now Article 35) of the Convention."
Concluding on this subject, I would like to point out that the Court, taking as a starting point a wrong decision (the one rendered in the Silva Pontes case), which however was at least partially justified by the peculiarities of the case (in which the enforcement proceedings dealt as well with the determination of the sum due), extended this precedent to cases in which a final decision had been rendered more than six months before the application had been submitted to the Court. Of course this does not mean that no violation of Article 6 of the Convention is foreseeable in enforcement proceedings. I just want to stress that the only period to be taken into account is the one which begins after an enforcement procedure has been instituted by the claimant. If a party to the declaratory proceedings which has exceeded the "reasonable time" wants to raise a complaint before the Court in Strasburg for alleged violations of Article 6 of the Convention occurred during that process, he/she has to apply to the Court within six months from the date on which the final decision in the declaratory stage was taken. A subsequent enforcement procedure will by no means be able to "resuscitate" the question of delays in the declaratory proceedings.
 On enforcement proceedings,
see generally Satta, L’Esecuzione Forzata (Torino, UTET, 4th
ed., 1963); Micheli, Esecuzione forzata, Commentario del Codice Civile a cura di a.
Sclaloja e g. BRANCA, Libro Sesto
(Tutela dei Diritti, Art. 2900–2969) 361–541 (Bologna–Roma,
Zanichelli–Foro italiano, 1953); Id.
L’Esecuzione Forzata. Appunti dalle
Lezioni di Diritto Processuale Civile (Editrice Universitaria, Firenze,
1961); Andrioli, Commento al Codice di Procedura Civile (Napoli,
Jovene, 3d ed., 1957); Allorio & Colesanti, Esecuzione forzata (diritto processuale civile),
Digesto Italiano, VI, 724–746 (Torino, UTET, 1960); Carnelutti, Istituzioni del Processo Civile Italiano (Roma, Foro
italiano, 5th ed., 1956); Redenti,
Diritto Processuale Civile
(Milano, Giuffrè, 2d ed. reprint, 1957); Liebman, Le Opposizioni di Merito nel Processo di
Esecuzione, (Roma, Società Editrice del Foro Italiano, 1931); Furno,
Sistematico delle Opposizioni nel Processo Esecutivo (Firenze, Cya,
1942); Tarzia, L’Oggetto del Processo di Espropriazione (Milano, Giuffrè, 1961); Montesano, Esecuzione specifica, Enciclopedia del Diritto, XV (Milano, Giuffrè,
1966), 524; Borre’, Esecuzione
Forzata degli Obblighi di Fare e di Non Fare,
(Napoli, Jovene, 1966); Colesanti, Il Terzo Debitore nel Pignoramento di
Giuffrè, 1967); Verde, Intervento e Prova
del Credito nell’Espropriazione Forzata (Milano, Giuffrè, 1968); Id., Pignoramento in generale, Enciclopedia del Diritto, XV (Milano,
Giuffrè, 1983) 763;
 See generally Proto Pisani, supra note 1 at 774–776.
 Cappelletti & Perillo, supra note 1 at 318.
 On the concept of titolo esecutivo, see Chiovenda, Istituzioni di Diritto Processuale Civile 266–84 (Napoli, Jovene 2d ed. reprint, 1957); Pugliatti, Esecuzione Forzata e Diritto Sostanziale 135 et seq. (Milano, Giuffrè, 1935); Liebman, Le Opposizioni di Merito nel Processo d’Esecuzione 136–66 (Roma, Foro italiano 2nd ed., 1936); Mandrioli, L’Azione Esecutiva. Contributo alla Teoria Unitaria dell’Azione e del Processo 327–388 (Milano, Giuffrè, 1955); Denti, Intorno ai concetti generali del processo di esecuzione, Rivista di Diritto Processuale (part 1) 104–139 (1955).
 An authority to execute must indicate clearly the identities of the debtor and the creditor and call for the unconditional payment of a certain sum, for the delivery of specific property, or for the performance of a precisely defined act: see Costa, Manuale di Diritto Processuale Civile 65–66 (Torino, UTET 2d ed., 1959).
 According to the legal doctrine, in case of appeal to the second instance court the judgment of the appellate court is the instrument on which enforcement proceedings are based, even when the appellate judgment upholds the judgment of the court below: see Cappelletti & Perillo, supra note 1 at 319, note 10.
 For some of the more important of these orders, see Codice di
Procedura Civile, Art. 647 (summary ex parte decrees); Art. 179
(penalties assessed in a civil action); Art. 186-bis, 186-ter and
186-quater (provisional orders issued during the trial stage of an
ordinary procedure); Disposizioni di Attuazione
 However, when enforcement is sought of negotiable instruments, the only document served is a notice to comply, which must set forth the contents of the negotiable instrument (See Royal Decree of Dec. 14, 1933, No. 1669, Art. 63, Para. 3; Royal Decree of Dec. 21, 1933, No. 1736, Art. 55, Para. 3).
 On the nature of the notice to comply, see Liebman, Per la nozione dell’atto di precetto, Foro Italiano (part 1) 489 (1931); Mandrioli, Precetto e inizio dell’esecuzione forzata, Giurisprudenza Italiana (part 1, sec. 2) 825 (1954) and bibliography there cited.
 The notice to comply may also be written in the margin of the copy of a non–negotiable instrument to be enforced that is served on the debtor (see Cappelletti & Perillo, supra note 1 at 322).
 On bankruptcy, see generally Satta, Istituzioni di Diritto Fallimentare (Roma, Foro italiano, 6th ed, 1964); Ferrara, Il Fallimento (Milano, Gíuffrè, 1959); Provinciali, Manuale di Diritto Fallimentare (Milano, Giuffrè 4th ed., 1962).
 See Allorio & Colesanti, Esecuzione Forzata, supra note 1, at 734–735; Proto Pisani, supra note 1 at 786–826.
 Although the question is disputed, it would seem that proceedings in regard to forced liquidation of movable property in the possession of third persons fall within the territorial competence of the court of the place in which the property is located: see Satta, L’esecuzione Forzata, supra note 1, at 67–68; Cappelletti & Perillo, supra note 1 at 324.
 See generally Carnacini, Contributo alla Teoria del Pignoramento (Padova, Cedam, 1936); Calvosa, Struttura del Pignoramento e del Sequestro Conservativo (Milano, Giuffrè, 1953).
 On the "charging order" in British law, see generally the information available in the following web–site:
 The law also grants conditional exemption (impignorabilità relativa, see Codice di Procedura Civile, Art. 515, 516) to such items as farm equipment, which may be liquidated only if sufficient other movables cannot be found.
 The debtor may also avoid, or free himself from, a distraint of his/her assets by depositing a sum of money to take the place of distrained or distrainable property (see Codice di Procedura Civile, Art. 494, Para. 3; Art. 495).
 If the debtor brings a proceeding in opposition to enforcement, the running of the ninety day period is suspended until the contest is decided (see Codice di Procedura Civile, Art. 628).
 See generally Andrioli, Il Concorso dei Creditori nell’Esecuzione Singolare (Roma, Foro italiano, 1937); Garbagnati, Il Concorso di Creditori nella Espropriazione Singolare (Milano, Giuffrè, 1938); Id., Il Concorso Di Creditori Nel Processo Di Espropriazione (Milano, Giuffrè, 1959).
 For an analysis of the different treatment of these intervening creditors, see Garbagnati, Il Concorso di Creditori nella Espropriazione Singolare, supra note 19, at 140–142; Andrioli, Il Concorso, supra note 19, at 14–25; Micheli, Esecuzione Forzata, supra note 1, at 373–376.
 The purchaser or assignee of distrained property acquires whatever right, title, and interest the debtor had in the property. However, there are three important exceptions. First, a bona fide purchaser of movable property acquires good title even if the debtor did not have title. This result is based on the general principle of Italian law that "possession of movable property confers colour of title" (Codice civile, Art. 2919, 2920). Second, the purchaser or assignee takes title free of any sales effectuated after the date of distraint (Codice civile, Art. 2919, 2925). Third, the purchaser or assignee takes free of any pledges, mortgages, or liens, unless he/she has agreed otherwise with the holder of any such interest (Codice di Procedura Civile, Art. 586, Para. 1; Art. 508).
 See generally Tarzia, Espropriazione dei beni indivisi, Novissimo Digesto Italiano 886– 892 VI (Torino, UTET, 1960).
 This type of enforcement is available if the obligee has either a property right or specified types of personal rights, including tenancies and other contractual rights, in the thing claimed: see Cappelletti & Perillo, supra note 1 at 333, note 150.
 See Micheli, Esecuzione Forzata, supra note 1, at 516–517.
 Law No. 899 of 23 December 1986 established that the Prefect was competent to determine the criteria for authorising police assistance in evicting recalcitrant tenants, after consulting a committee including representatives of both tenants and landlords. Section 3 (5 bis) of Law No. 899 of 23 December 1986 also provided for the automatic suspension until 31 December 1987 of forcible evictions of tenants entitled to subsidised housing. A third suspension was introduced by Legislative Decree No. 26 of 8 February 1988, which became Law No. 108 of 8 April 1988. It first covered the period from 8 February 1988 to 30 September 1988 and was subsequently extended from the latter date to 31 December
1988. Afourth suspension was introduced by Legislative Decree No. 551 of 30 December 1988, which became Law No. 61 of 21 February 1989, and covered the period up to 30 April 1989. With the exception of urgent cases, this Law also provided that police assistance in enforcing evictions would only be authorised in gradual stages over a period of forty–eight months from 1 January 1990 and set up a prefectoral committee responsible for deciding which cases required police intervention most urgently. Law No. 61/89 also provided that as from 1 May 1989 requests for police assistance in enforcing orders for possession would be dealt with in order of priority, as determined according to criteria established by the prefects after consultation with statutory prefectoral committees, whose members included the prefect, the mayor and representatives of both tenants and landlords. Among the cases having priority were those in which it was not possible for enforcement to be suspended. In particular, priority was given to landlords urgently requiring premises as accommodation for themselves, their spouse, children or ascendants. Landlords seeking priority treatment were required to make a statutory declaration. As regards evictions in all other cases, provision was made for police assistance to be staggered over a maximum of forty–eight months from 1 January 1990. 29. The system whereby the enforcement of orders for possession was to be staggered was extended by a series of legislative decrees including the following: from 31 December 1993 to 31 December 1995 (Legislative Decree No. 330/93); from 31 December 1995 to 29 February 1996 (Legislative Decree No. 546/95); from 29 February 1996 to 26 April 1996 (Legislative Decree No. 81/96); from 26 April 1996 to 25 June 1996 (Legislative Decree No. 217/96); and from then to 31 December 1996 (Legislative Decree No. 335/96). Law No. 566 of 4 November 1996 ratified a series of legislative decrees that had not been enacted as laws. It provided that police assistance would be staggered until 30 June 1997. That arrangement was extended until 31 January 1998 by Legislative Decree No. 172/1997. In addition, Article 1 bis of that legislative decree added to the prefects’ existing power to lay down general criteria for determining whether police assistance would be made available the power to decide precisely when and how police resources would be allocated in each individual case, without having to deal with requests for police assistance in the chronological order in which they were made by the bailiffs. Consequently, the prefectoral committees would usually only be able to express an opinion on the general criteria to be followed in determining whether police assistance was to be given, not on whether assistance should in fact be given in a particular case. By Legislative Decree No. 7/1998 the date for the resumption of evictions was postponed to 31 October 1998. Ina judgment (No. 321) of 24 July 1998, the Constitutional Court held that Article 1 bis of Legislative Decree No. 172/1997 was contrary to Article 24 of the Italian Constitution guaranteeing inter alia the right of access to a court, as it made the decision regarding the date of enforcement of an order for possession–which is set in advance by the magistrate in accordance with section 56 of Law No. 392/78–subject to review by a prefect. The Constitutional Courtsaid that the role of the prefects should be limited to cooperating–as officers of the court–in the enforcement of judicial orders for possession. The fact that their powers had been enlarged to include individual cases had led to substantial delays in the enforcement of court orders. That was contrary to every individual’s entitlement to have his/her rights decided by a court. The Constitutional Courtstressed that it was unacceptable for court orders to be undermined or affected by administrative decisions. More recently, Legislative Decree No. 375 of 2 November 1998 delayed the resumption of evictions to 28 February 1999. Section 6 of Law No. 431 of 9 December 1998 on the rules governing lease agreements and the vacation of residential premises provides that where an order for possession has already been made and is enforceable when that law comes into force, the landlord and tenant have six months–during which period enforcement of the order is suspended–in which to decide whether to enter into a new lease. Should no agreement be forthcoming within that period, the tenant may, within thirty days thereafter, request a magistrate to set a fresh date for the enforcement of the order. The judge’s decision regarding the date of enforcement incorporates permission for the bailiff to seek police assistance to enforce the order. The date of eviction may be deferred for up to a maximum of eighteen months if the tenant is aged 65 or over, if he/she has five or more dependent children, if he/she is on the list of transferable personnel (liste di mobilità) kept by businesses, if he/she is in receipt of unemployment benefit or low–paid–worker benefit, if he/she has been formally allocated welfare housing, if he/she has purchased a house that is under construction or if he/she owns property in respect of which repossession proceedings are pending. The same rule applies if the tenant or a member of his/her family who has been living with him for at least six months is handicapped or terminally ill.
 See generally Mandrioli, Esecuzione forzata degli obblighi di fare e di non fare, Novissimo Digesto Italiano, VI, 764 (Torino, UTET, 1960).
 Wilful interference with the enforcement of a court order is a criminal offense (see Codice Penale, Art. 388, Para. 1). However, this provision covers only active interference, not mere non–feasance. Non–feasance in carrying out orders in provisional remedies matters may, however, constitute another crime (see Codice Penale, Art. 388, Para. 2).
 See generally Liebman, Le Opposizioni di Merito nel Processo di Esecuzione (Roma, Foro italiano 2d ed., 1936); Furno, Disegno Sistematico delle Opposizioni nel Processo Esecutivo (Firenze, Cya, 1942).
 Article 2929 of the Italian Civil Code provides that sales and assignments that have been made are not undone. However, the party whose property has been sold or assigned has the right to recover damages (see Codice di Procedura Civile, Art. 96, Para. 2).
 See e.g. Julia Costruzioni s.r.l. v. Grimaldi, Corte di cassazione, 8 April 2003, No 5506. Article 111 of the Constitution guarantees the right to review of any sentenze in the Corte di cassazione.
 Carnelutti, Istituzioni, supra note 1, at 102, 103; Andrioli, Commento, supra note 1, at 367–369; Mandrioli, L’opposizione del terzo detentore all’esecuzione per rilascio, Rivista di Diritto Processuale (part 11) 31 (1951).
 Such rules apply as well to the debtor’s spouse, since Art. 622 of the
Italian Code of Civil Procedure–providing for special rules in the case of
objection brought by the debtor’s wife–has been declared unconstitutional by a
decision of the
 See Article 6,
Para. 1, of the European Convention, according to which: "In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ..."
 23 March1994 (application number: 14940/89).
 28 September 1995 (application number: 19133/91).
 Actually the declaratory process lasted in this case only few months,
while the enforcement proceedings lasted many years. For other such cases see
Immobiliare Saffi v.
 26 September 1996 (application number: 15797/89).
 26 September 1996 (application number: 24295/94).