Case Law Database

Participation in an organized criminal group

Offences

• Participation in criminal activities of organized criminal group
• Agreement to commit a serious crime (conspiracy)

Degree of Involvement

• Knowledge of aim or activities of the organized criminal group or its intention to commit the crimes in question
• Overt act in furtherance of agreement

Keywords

• criminal association
• Overt act in furtherance of agreement
• conspiracy

Smuggling of migrants

Offences

• Enabling illegal entry

Mode

• sea

Aggravations

• Endangering lives or safety of smuggled migrants

N. 21804/2013/DDA - Order of precautionary detention

Fact Summary

On 15 October 2013, the Italian Navy rescued 211 migrants (mostly of Syrian nationality) from international waters. On 3 November 2013, 29 migrants coming from Libya (26 Palestinians, two Syrians and one Eritrean) were also rescued in the same terms. The migrants were led to the reception centre of Molo Favorolo (Italy). At this stage, some of the migrants arrived on 15 October to the reception centre (six in particular) rebelled against one of the new arrivals. After inquiry by the authorities, it was explained that the target of their rage was the suspect. He had been identified as the smuggler to whom migrants had paid for the trip to Italy. It emerged as follows:
  • The suspect is within the higher ranks of an organised criminal group in Libya, which deals with smuggling of migrants into Italy. In his operations, he was assisted by several men armed with machine guns. He was contacted by the migrants via phone, then giving them instructions on the modalities of payment (around 1600-2000 USD). The migrants were then kept in hiding, under the surveillance of armed men. They were fed only bread and water.
  • On the day of the trip, when migrants were to pass from the smaller boat to the larger vessel, the suspect - together with six or seven other armed men - deprived the migrants of all their possessions (money, passports, mobile phones, etc).
In addition to giving statements, the migrants proceeded to the photo identification of the suspect. The authorities were able to confirm the phone numbers referred by the migrants as pertaining to the suspect.
 
Legal findings:
The Prosecutor stressed the existence of aggravating circumstances given (i) the intent of obtaining a financial or other material benefit, and (ii) the transnational character of the operations of the organised criminal group. The precautionary requirements were also highlighted; notably: (a) risk of recidivism, (b) risk of escape, (c) risk of tempering with evidence.
 
Against this background, the Public Prosecutor of Palermo concluded for the existence of strong indicia of the suspect’s responsibility in: (i) procuring the illegal entry of migrants in Italy, in the context of a transnational and well-structured organised criminal group; (ii) participating in a criminal conspiracy to that purpose. He ordered the precautionary detention of the suspect.
For further details see infra under “Commentary”.

Commentary and Significant Features

The decision presents possible indicators of involvement of an organised criminal group and or existence of a criminal conspiracy. In particular, it is noted the transnational character of the organised criminal group and its intent of obtaining a financial or other material benefit. Criminal conspiracy is evidenced inter alia by the engagement in the commission of multiple acts of smuggling of migrants and the instrumentalisation of Italian authorities in the attempt to preclude the jurisdiction of the State and, at the same time, meet the criminal aim of the conduct.This reasoning is in line with a cluster of robust Italian case-law that has been expounding on the actus reus and mens rea of membership in an organised criminal group, thus further enhancing the effectiveness of Article 5 UNTOC. Conversely, as per settled Italian jurisprudence, the participation in a criminal conspiracy may be established on grounds of participation in a single criminal act as long as the role developed or contribution given are such that they could not have been given or performed by any other person.
 
The decision also invokes the innovative yet consolidated case-law on the exercise of jurisdiction on the high seas, on the basis of the doctrine of autore mediato. It is held that for the lawful exercise of Italian jurisdiction, it is necessary that the action or omission that constitutes the criminal conduct takes place, in whole or in part, in the territory of Italy (Article 6 Criminal Code).  The jurisdiction will equally be established if the natural result of the conduct occurs in Italian territory. Once authorities are aware of the precarious conditions migrants’ are travelling in, they are under the national and international obligation to take action and attempt to rescue the endangered migrants. In this sense, authorities act under a state of necessity (in order to prevent a greater harm, i.e. the death of migrants). The organised criminal group thus instrumentalises authorities so as to ensure the ultimate goal of the criminal plan will occur in Italian soil. Accordingly, the Italian jurisdiction is triggered, preventing an impunity gap and giving inter alia effect to Article 5 UNTOC.
 
This decision is deferent to the rights of smuggled migrants. Migrants’ statements were taken in the presence of an interpreter and legal counsel because they were suspects in the related offence (contravvenzione) of illegal immigration. With regard to migrants’ statements, the Prosecutor recalled the doctrine of “convergence of multiple”, meaning that - in assessing the evidence - elements raised or gathered a posteriori may play a role as long as in their specificity, convergence and independence they still point to the same suspect and circumstances. In this manner, several dilatory expedients might be avoided.
 
NOTE: As per Italian national law, the purpose of obtaining a financial or other material benefit is not a constitutive element of the crime but rather an aggravating circumstance (see SHERLOC Database on Legislation - Italy).
Sentence Date:
2013-11-07

Cross-Cutting Issues

Liability

... for

• completed offence

... based on

• criminal intention

... as involves

• principal offender(s)

Offending

Details

• involved an organized criminal group (Article 2(a) CTOC)
• occurred across one (or more) international borders (transnationally)

Involved Countries

Libya

Italy

Investigation Procedure

Involved Agencies

• Criminal Police
• Public Prosecutor Office

Procedural Information

Legal System:
Civil Law
Type of Proceeding:
Criminal
 
Following investigations, the Pubic Prosecutor of Palermo determined the precautionary detention of the suspect, as per decision under analysis.
 
 

Migrants

Migrant:
230 smuggled migrants.
Mostly Syrian, at least 26 Palestinians, two Syrians, and one Eritrean.
At least six of the smuggled migrants were heard as suspects in the context of Article 10-bis Decree Law 286/1998 (refusal of entry to irregular migrants)

Defendants / Respondents in the first instance

Defendant:
A.I.H.A.
Gender:
Male
Nationality:
Lebanese
Age:
46
Born:
1966

Charges / Claims / Decisions

Defendant:
A.I.H.A.
Charge:
Criminal conspiracy (associazione a delinquere)
Statute:
Criminal CodeArticle 416 (1), (2), (3) and (6) (in connection to Article 4 Law 146/2006)
Charge:
Procuring or enabling irregular migration
Statute:
Decree Law 286/1998Article 12 (1) (3) (a), (b) e (d), 3bis and 3ter (in connection with Article 81 and 110 Criminal Code)

Court

Court of Palermo (Public Prosecutor with the)

Sources / Citations

N.  21804/2013/DDA  R.G. notizie di reato - mod. 21

Procura della Repubblica presso il Tribunale di Palermo
Direzione Distrettuale Antimafia