Facts
In the enforcement proceedings initiated by B. Inc. against A.A., the Enforcement Office of Lugano had seized various assets belonging to the debtor, including several real estate properties. However, these assets had already been subject to criminal seizure in the context of criminal proceedings against A.A., with a view to the execution of an equivalent compensation in favor of the State pursuant to Art. 71 para. 3 of the Swiss Criminal Code (CP).
B. Inc. had requested the realization of the seized assets and the provisional distribution of the proceeds relating to two of the properties already realized. However, the Enforcement Office had refused to follow up on these requests due to the criminal seizure.
Upholding an appeal by B. Inc., the Enforcement and Bankruptcy Chamber of the Court of Appeal of the Canton of Ticino had ordered the Enforcement Office of Lugano to proceed with the realization of the seized assets and the provisional distribution of the proceeds among the participating creditors.
Addressed with a civil law appeal, the Federal Tribunal partially upheld A.A.'s appeal, revoking the order for the provisional distribution of the proceeds.
Considerations
The Federal Tribunal first clarified that the criminal seizure ordered pursuant to Art. 71 para. 3 CP, being a precautionary measure aimed at securing the potential future compensation claim of the State, does not confer any preferential right to the State in the context of enforcement proceedings. Consequently, the realization of the seized assets must take place in accordance with the provisions of the Federal Act on Debt Enforcement and Bankruptcy (LEF), without the State being able to claim a right of diversion with respect to the other creditors.
However, the Federal Tribunal held that, if the assets subject to criminal seizure are subsequently seized…