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The protection of the credit of third parties in the prevention procedure.

In Italy, Legislative Decree no. 159/2011 also called the Anti-Mafia Code (CAM) for several years now has unified the legislation governing the application of asset prevention measures. This legislation - inspired by the teachings of Giovanni Falcone but in some respects also borrowed from bankruptcy legislation - is an important tool used in the repression at all levels of crime, whether common or of mafia or terrorist origin, as well as for all those crimes not necessarily attributable to the phenomenon of organized crime, but which can also be traced back to that concept of social danger - a fundamental prerequisite  for the application of the measures in question – a decisive incident on public and economic order.

With the seizure decree issued pursuant to art. 20 of the Anti-Mafia Code, the Delegated Judge of the Prevention Measures Section - section of the Court specialized precisely for the application of prevention measures - simultaneously appoints the judicial administrator pursuant to art. 35 CAM, which is entrusted with the custody of the assets – homogeneous or heterogeneous – constituting the assets affected by the measure.  It can therefore be real estate, registered and unregistered movable property, current accounts and / or cash and even operating business complexes and / or company shares, or other types of assets.

The Judicial Administrator is a professional – accountant or lawyer – registered in the register of Judicial Administrators held at the Ministry of Justice. In the event that the assets covered by the measure also include companies, the judicial administrator must be appointed among the professionals registered in the appropriate section of the register of judicial administrators expert in the management of companies.

Having made this brief and necessary premise, I will focus on the protection of the credit claimed by third parties against the proposed, that is, the subject affected by the asset prevention measure.  The legislation in question provides for a process of verification of the claims of third parties, as is the case in bankruptcy proceedings. However, the purpose of this examination is clearly different and therefore provides for completely different conditions and evaluation criteria.

In the prevention procedure - during the verification of claims - the concept of good faith of the creditor is the fundamental prerequisite that the court must evaluate for the purpose of admitting the same in the passive state.

Taking into consideration the request for admission to the passive state presented by a credit institution and rejected by the Court of Palermo, with judgment no. 32000/22 of 04.03.02022 filed on 30.08.2022, the Supreme Court considered the grounds of the appeal brought by the credit institution to be well founded, providing in the reasons important clarifications on the evaluation criteria underlying the application of art. 52 of Legislative Decree no. 159/2011 with specific reference to letter a) and b) paragraph of the article in question.

The question concerned the credit claimed by the bank following the granting of a mortgage loan requested by the proposed and in favour of the same disbursed, as well as the negative balance of a current account in the name of a cooperative society although of a non-significant amount.

Well, while the verification of claims in bankruptcy proceedings is limited to ascertaining the actual existence of the claim to be admitted to the passive state, through a careful evaluation of the documentation proving the same, in the prevention procedure the concept of good faith of the creditor takes on a different meaning than the meaning attributed in civil / bankruptcy law, that is, in the absence of awareness of causing damage to other people. It constitutes the first of the conditions suitable for activating the protection of the credit claimed by the third party against the proposed as formulated in the aforementioned art. 52.

The good faith of the creditor in prevention is therefore a preparatory element for the assessment of the admissibility of the claim and for the verification of the existence of the second requirement constituted by the instrumental link.

Specifically, the aforementioned letter b) poses the problem of the instrumentality of the credit to the illicit activity or to that which constitutes its fruit or reuse, except for the demonstration of good faith and unwitting reliance on the part of the creditor.

Relevant is therefore the actuality of the social danger of the proposed, while the Court – despite having stated that the last conduct attributable to the requirement of social danger of the proposed were dating back in time without interruption – considered instrumental a credit that arose after the period directly attributable to the social danger of the proposed. 

The Supreme Court affirms that when the financing constituting the credit of the third party, is disbursed in the presence of an evident and manifest or hidden social danger of the proposed, the judge can make use of a simple presumption of finalization of the financing to the illicit activity of the same.

With reference to the social danger, the creditor's lack of knowledge and knowability of the acts and elements assessed by the judge in the confiscation decree must be duly taken into account by the judge of prevention, since it is not sufficient to report these elements in the confiscation decree, but they must be known and knowable at the time of the conclusion of the contract from which the debtor's obligation originates so that he has the  possibility not only to know them but to contextualize them and evaluate them as acts characterizing the aforementioned and essential assumption of social danger.

The creditor must therefore have the possibility of assessing and linking the acts of negotiation on which his claim is based on the unlawful activity carried out by the proposed person.

It is also necessary to consider that the creditor financial operator follows a standard procedure of practice defined for the type of credit transaction, not having for obvious reasons the possibility of carrying out accurate and penetrating investigations, especially of a criminal nature due to the impossibility of accessing the databases in use by the Judicial Authority.