Participation in an organized criminal group

Offences

• Agreement to commit a serious crime (conspiracy)
• Participation in criminal activities of organized criminal group
• Organizing, directing, aiding, abetting, facilitating or counselling the commission of a crime involving an organized criminal group

Degree of Involvement

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

Keywords

• Overt act in furtherance of agreement
• conspiracy
• criminal association
• organizing/directing commission of (serious) crime

Smuggling of migrants

Offences

• Enabling illegal entry
• Producing a fraudulent travel or identity document in connection with migrant smuggling
• Procuring, providing or possessing a fraudulent travel or identity document in connection with migrant smuggling
• Enabling illegal stay

Aggravations

• Endangering lives or safety of smuggled migrants
• Inhuman or degrading treatment

Case n. 10341/15 R.N. G.I.P. - Glauco I

UNODC No.:
ITAh013

Fact Summary

This order for precautionary detention derives from a complex investigation that followed the tragic events of 3 October 2013. Specifically, a boat with migrants in provenance from Libya (and directed to Sicily, Italy) capsized, resulting in the death of at least 366 people. As per migrant’s reports, there would have been as many as 500 people in the boat. The migrants were mostly from Eritrea. The ship was clearly overloaded vis-à-vis its conditions of navigability. The survivors were sent to the reception centre of Lampedusa (Italy).
Several migrants were heard preliminarily upon their arrival to Lampedusa by the State police and, later on, by the Criminal Police and Public Prosecutor. Migrants were likewise required to proceed to photo identification of the suspects. Phone tapping and surveillance operations also took place. In addition to the above, the following chain of events was ascertained:
  • Migrants were contacted  by (or themselves contacted) the suspect G.E., with the purpose that the latter procured their illegal entry by sea into Italy.
  • On 25 October 2013, a group of migrants - who had also been rescued off the coast of Italy - was directed to the reception centre of Lampedusa. One of the new arrivals (M.E.M., Somali, subject to separate criminal proceedings) was aggressed by app. 15 of the migrants already settled at the centre. The situation appeared to escalate into a lynching attempt but was controlled by the prompt intervention of authorities. M.E.M. was identified as the leader of an armed group – likely composed of Somali militiamen – responsible for the kidnapping of several migrants in July 2013, in the Sahara desert, when they were in course of the journey from their home countries to Libya. Migrants were taken under the threat of weapons to a house in Sheba (Libya) where they were prevented from leaving. The group of armed men carried out several acts of aggravated violence towards the migrants. The organised criminal group requested 3300 USD to release the migrants. Relatives of the migrants paid the ransom to M.E.M.’s associates, or via Money Transfer through codes supplied by the kidnappers.
  • The migrants were then directed in groups of app. 20-30 people to other locations, often Tripoli (Libya), where they were delivered to the suspect G.E.. In the trip from Sheba to Tripoli, migrants changed several times means of transportation. G.E. had organised in Libya a “collection camp” where up to 600 persons were held and to whom 1600 euro per person were demanded for the trip to Lampedusa.
  • After approximately one month, the migrants were transported to a large boat off the coast of Libya, in which they travelled to Lampedusa and that sank on 3 October 2013.
  • The suspect M.J. was identified as a high leader of this organised criminal group. Direct evidence is available on his and G.E. involvement in the preparation and organisation, with a profitable purpose, of several trips (including, and similar to, the one culminating in the tragedy of 3 October 2013), dating as early as 2006/2007. Both suspects were also in the position of instructing others, collecting and disseminating information related to the criminal activities.
  • The participation of all suspects in organising, procuring and enabling the illegal entry, transit and or stay of migrants in Italy, for profitable purposes, was further determined in respect of a number of specific episodes/criminal acts. In this context, some of the suspects (together with individuals not yet identified) inter alia organised and or assisted the escape of migrants from the reception centres, provided logistical support (tickets, clothing, temporary accommodation) and arranged their travel to the North of Italy and or other European countries. The suspects operating in Italy to enable the illegal transit and stay of irregular migrants were paid via: (i) Western Union, (ii) direct cash delivery by relatives of migrants, (iii) post payment systems.
  • In respect of activities aimed at procuring the illegal entry in other EU countries, circumstantial evidence points to the purchase of several plane tickets, notably with low-cost companies such as Ryanair and Easyjet. Other times, the travel would be arranged via private transportation through the suspects’ associates. Furthermore, it was asserted that the organised criminal group procured and or produced false passports as well as engaged in the practice of supplying valid passports (after being tempered, namely by changing the picture) belonging to a third party so as to allow trips out with Italy. The migrants were then required to send back the passport to the involved suspects.
  • The organised criminal group in order to procure illegal entry and enable illegal stay in Italy, under the institute of family reunification, also resorted to sham marriages. The respective “price” would be app.7500 USD-10000 USD.
  • The members of the organised criminal group had a structured, systematic and well-organised network of communications, resorting e.g. to satellite phones, mobile phones (generally registered under false names), Skype, Viber, Tango, and Facebook.
 
Legal Findings:
Against this background, the Public Prosecutor argued for the existence of strong evidentiary indicia on the suspects’ membership in a transnational organised criminal group dedicated to the smuggling of migrants, in order to obtain a financial or other material benefit.  This organised criminal group would operate (at least) in Eritrea, Sudan, Maghreb countries and Italy. The members of the organised criminal group would also be involved in related offences (e.g. inhuman and degrading treatment as per conditions the migrants were submitted to during the crossing of the Channel of Sicily, and crimes against the public order as per production and procurement of false documents).

 

The Public Prosecutor determined the precautionary detention of the suspects. For details on the legal reasoning applied, see infra under “Commentary”.

Commentary and Significant Features

The decision invokes the innovative yet consolidated case-law on the exercise of jurisdiction on the high seas, on grounds of the doctrine of autore mediato. Specifically, for the lawful exercise of the 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. In respect of criminal conspiracy, the jurisdiction of the State will extend to all co-perpetrators (even if abroad) as long as any act of participation in the common criminal plan - by any of the associates - occurs in Italy. It is irrelevant that such participative act is not per se illicit. Hence, the Italian jurisdiction is triggered, preventing an impunity gap and giving inter alia effect to Article 5 of the United Nations Convention against Transnational Organized Crime (UNTOC).
 
The reasoning of the Public Prosecutor unveils the elements considered when assessing both the membership in an organised criminal group dedicated to the smuggling of migrants and the participation in a criminal conspiracy (associazione a delinquere) with the same purpose. Specifically, in order for a criminal group to qualify as associazione a delinquere it is necessary: (i) a bond between the members of (in principle) permanent character or, at least, stable and aimed to continue beyond the commission of specific criminal acts/ventures; (ii) undetermined nature of the criminal programme, and; (iii) existence of a certain level of organisation that, even though minimal, is adequate to pursuing the criminal objectives settled. In line with the mainstream jurisprudence, there is no need for formal agreements. The requisite of non-determination of the criminal programme refers to the number, modalities and objectives of the specific criminal conduct envisaged. The indicia resorted to in order to demonstrate the existence of an organised criminal group, acting upon a well structured plan, dedicated to the smuggling of migrants in order to obtain a financial or other material benefit is also in line with previous jurisprudence: (i) concentration of migrants in hidden location in the Libyan city of departure, (ii) availability of several and different means of transport to carry out the diverse phases of the travel, (iv) engagement of several men with specific roles (e.g. recruiters, drivers, ship crews, landlords) abiding by rigorous codes of conduct, (v) systematic exposure of the life and safety of migrants to serious risks given the conditions of the trip, (vi) diversified and sophisticated means of communication, (vii) attempts of dissipating traces and deceiving authorities, (viii) structured methodology regarding payments; (ix) availability of a robust network for enabling illegal transit and stay (e.g. accommodation, clothing, transportation abroad, false and or doctored passports), (x) regular character of the activities, that lead the suspects and their associates to refer to it often as “work”. The different phases and steps of the criminal activity must be read in a systemic manner, otherwise one would be fractioning a complex but single and indivisible criminal reality aimed precisely at precluding the jurisdiction of the country of arrival of migrants. It is the intrinsic bond between the subject and the organised criminal group that will prompt the qualitative leap from “involvement in an organised criminal group” to “participation in a criminal conspiracy”. The decision of the Public Prosecutor integrates a cluster of robust Italian case-law that has been expounding on the actus reus and mens rea of participation in (i) an organised criminal group and (ii) criminal conspiracy, thus further enhancing the effectiveness of Article 5 UNTOC.
 
The Prosecutor highlights the difference between smuggling of migrants and trafficking in human beings, though noting that both are often interlinked. A victim of the former might later become a victim of the latter, notably to pay for impending debts related to the smuggling venture. Accordingly, it is crucial to understand the criminal conduct in all its different phases so as to be able to correctly qualify it in legal terms and prosecute it. The Prosecutor stresses the irrelevance of victims’ consent in both crime-types as well as the fallacious distinction between “innocent victims” and “guilty victims”.
 
The outcome of phone tapping interventions was crucial for the determination of the facts and the establishment of the evidentiary framework. Importantly, communications originating from, or destined to, a foreign phone number were also intercepted: technique of so-called “istradamento”. The caption is possible whenever communications flow through Italian phone centrals. Italian courts clarified that this procedure does not contravene the rules on rogatory letters given that all relevant activity of interception, reception and registration takes place in the territory of Italy. Since the interception of communications through and from a certain foreign number will implicate the caption of communications of all other phone numbers with the same three initial digits, the jurisprudence clarified that a judicial authorisation allowing the interception of a certain phone number covers the unavoidable interception of those incidentally affected communications. Besides the content of such communications, the regularity and frequency thereof between the suspects and other associates is per se indicative of the organised level of the criminal association that intertwines all of them.
 
The suspects communicated much through social media tools (Viber, Skype, Tango, Facebook, etc). As noted by the Prosecutor, intercepting these communications is extremely difficult. Thus, this seems to remain an area for improvement. Specifically, it sheds light on the importance of devising the technical tools as well as achieving the necessary private-public consensus and the favourable legal framework so as to facilitate inquires into criminal conduct developed through these means.
 
Payments were often done through Western Union. It is mentioned by the Order of Precautionary Detention that cooperation with this financial service provider allowed the gathering of important evidence. This cooperation amounts to a remarkable example of best practice translated into effective collaboration between private actors and investigative authorities.
 
The Public Prosecutor stressed the existence of aggravating circumstances given (i) the intent of obtaining a financial or other material benefit, (ii) that more than five people were smuggled, (iii) that more than 3 people were engaged in the criminal act, (iv) the danger to the life and safety of migrants, (iv) the inhuman treatment migrants were subjected to.
 
The Public Prosecutor finally highlighted the underlying precautionary requirements: (i) risk of escape, enhanced by the suspects‘ membership in a transnational organised criminal group whose main purpose is to facilitate the escape of individuals abroad; (ii) risk of recidivism, for the active role of the suspects in an extremely organised and well-established organised criminal group; (iii) risk of tempering with evidence, including by threatening migrants and or their families.
 
The order of precautionary detention was issued also against suspects, the whereabouts of whom are not determined (investigations in this respect are in course). Yet, this is a measure of caution were these suspects to be found in the Italian territory.
 
NOTE: As per Italian national law, the purpose of obtaining a financial or other material element is not a constitutive element of the crime but rather an aggravating circumstance (see SHERLOC Database on Legislation - Italy).
Sentence Date:
2014-05-30
Author:
Tribunale di Palermo

Cross Cutting

Liability

... for

• completed offence

... based on

• criminal intention

... as involves

• principal offender(s)
• organiser/director

Application of the Convention

Details

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

Involved Countries

Eritrea

Sudan

Italy

Morocco

Algeria

Tunisia

Libya

Mauritania

Investigation

Involved Agencies

• Criminal Police
• Public Prosecutor Office
• State Police

Details

• electronic or other forms of surveillance

Procedural Information

Legal System:
Civil Law
Type of Proceeding:
Criminal
 
Following the tragedy of 3 October 2013, the State police preliminarily heard migrants. At least eight migrants were later heard as well by the Criminal Police and the Public Prosecutor. Phone tapping and surveillance operations were triggered. Following the proof gathered through this complex investigation, and the precautionary needs related to the suspects, the order of precautionary detention was issued on 30 May 2014. It was therein determined the necessary follow-up (including information to the legal counsel of the suspects) so that the hearing for the confirmation of precautionary detention could take place in due time.
 
 

Migrants

Migrant:
At least 366. Mostly Eritrean.

Defendants / Respondents in the first instance

Defendant:
W.T.
Gender:
Male
Nationality:
Eritrean
Age:
24
Born:
1990
Defendant:
W.S.
Gender:
Male
Nationality:
Eritrean
Age:
26
Born:
1988
Defendant:
S.M.
Gender:
Male
Nationality:
Eritrean
Age:
24
Born:
1990
Defendant:
A.Y.
Gender:
Male
Nationality:
Eritrean
Age:
23
Born:
1990
Defendant:
M.M.
Gender:
Male
Nationality:
Eritrean
Age:
47
Born:
1967
Defendant:
A.S.
Gender:
Male
Nationality:
Eritrean
Age:
31
Born:
1983
Defendant:
A.W.N.
Gender:
Male
Nationality:
Eritrean
Age:
29
Born:
1984
Defendant:
G.E.
Gender:
Male
Nationality:
Ethiopian
Age:
47
Defendant:
M.J.
Gender:
Male
Nationality:
Eritrean
Age:
47
Born:
1967

Charges / Claims / Decisions

Defendant:
W.T.
Statute:
Criminal Code Article 416 (1), (2), (3), and (6) Criminal Code (and 4 Law 146/2006) Criminal conspiracy
Statute:
Decree Law 286/1998 Article 12, (3), a), b), c), d), e), (3bis), (3ter), b) (and Article 81 Criminal Code) Procuring or enabling irregular migration
Defendant:
W.S.
Defendant:
S.M.
Defendant:
A.Y.
Defendant:
M.M.
Defendant:
A.S.
Defendant:
A.W.N.
Defendant:
G.E.
Defendant:
M.J.

Sources / Citations

Proc. n. 8095/14 R.G.N.R.
Proc. n. 10341/15 R.G. G.I.P.
Procura della Repubblica presso il Tribunale di Palermo, Direzione Distrettuale Antimafia
Decreto di fermo disposto dal P.M. - Art. 384 c.p.p.
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