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

Related Conduct

• Organizing and directing other persons

Case n. 7472/15 R.N. G.I.P. - Glauco II

UNODC No.:
ITAh014

Fact Summary

The current proceedings emerged as the follow-up of the work developed and findings reached in the so-called Glauco Operation (Case n. 10341/15 R.N. G.I.P.- SHERLOC Case Law Database ID ITAh013), carried out by the same Public Prosecutor Office. The organized criminal group therein identified remains fully operative at a transnational level. It holds cells in places/locations of reference. Its members are attributed specific roles in order to allow the smooth accomplishment of the criminal plan: first, illegal entry of migrants in Italy; second, their transit to final destinations – usually in the North of EU – where migrants join their families or close friends. Migrants pay high prices for the “services” of the criminal network.
The investigation was much based on phone tapping and surveillance operations.  The declarations of migrants (including in the context of other proceedings) were also very important. The Criminal Police and Public Prosecutor heard several migrants. Migrants’ photo-identification of the suspects was used as evidence. The Criminal Police carried out verification diligences (including searches) in order to confirm information available through the different sources. As a result, and in addition to the above, the following chain of events and methodology was ascertained:
  • The typical modus operandiof the organised criminal group lies on certain main features. Notably: (i) migrants are illegally introduced in Italy; (ii) migrants are strongly advised to avoid the standard identification procedures, including photographs; (iii) before the conclusion of identification and reception procedures, migrants are assisted in moving towards the North of Italy and, from there, to the North of the E.U., thus precluding the application of national and EU laws on immigration. This major effort to avoid the control of authorities upon arrival relates to the fact that – according to EU law - the administrative procedure aimed at obtaining a residence permit and or refugee status shall be finalised where it is initiated. If migrants are photo identified in Italy, the mentioned administrative procedure is triggered, while migrants usually wish to settle in Nordic countries, either because of more advantageous social benefits therein in place or to join relatives or friends.
  • The smuggling ventures towards Italy are organised in different stages. Migrants are firstly collected and assembled in Libya. G.E. (high rank within the organised criminal group) and his associates receive the migrants that – in some instances – have travelled for months in order to reach Libya. They are kept usually in Zuwhara (Libya), where G.A. has control over houses in which he can accommodate the migrants until the day of departure. Migrants are usually monitored under the threat of weapons.
  • Migrants following the so-called terrestrial route (from several African countries towards Libya) are submitted to aggravated violence (including kidnapping) during the trip, of which G.E. and his associates are aware and accomplices. Migrants must pay smugglers for this trip, and are sometimes held and forced to work as a form of payment. G.E. attributes a number to each ‘client’ in order to better organise the work of the organised criminal group as well as to manage those that have already paid. These records unveils that the organised criminal group manages hundreds of millions of USD just in respect of ‘African smuggling’. To such values must be added the amounts paid in the EU.
  • The migrants are then embarked into all the more precarious boats, usually in direction to Italy. Relying on the Operation Mare Nostrum, smugglers abandon these boats – often in very precarious conditions – in international waters, after launching a request for help to authorities. This part of the smuggling venture (i.e., by sea) is also subject to payment.
  • Once in Italian soil, migrants are again ‘recruited’ by members of the organized criminal group operating in Italy, with the promise of facilitating their further movements, always upon payment. Migrants are demanded different amounts: first, to reach Rome (Italy) or Milan (Italy); second, to go from there to their final destination (Switzerland, Germany, France, United Kingdom, Norway). The trip to Rome or Milan usually occurs by public bus or private vehicles (driven by members or associates of the organized criminal group). The bus is currently a popular and preferred means for smugglers insofar as there is no need to exhibit an identification document in order to buy the ticket or travel. Furthermore, buses are often not subject to search and control operations by authorities (as, e.g., trains and private vehicles). The ‘prices’ vary. Usually migrants are requested 200-400 Euro for one or two days of accommodation in Sicily (Italy) plus the ticket to the North of Italy. Then, they have to pay 1000-2000 Euro to continue the trip towards their final destination. The real ‘price’ will, however, vary according to the economic power of the migrant, which will also determine the ‘quality’ and extent of the ‘services’ provided by the organized criminal group (e.g., for the proper ‘price’, the migrant may be accompanied and accommodated until the final destination).
  • To this effect, the ”agreement” with the migrant to continue relying on the organized criminal group after entry in Italy is crucial. Sometimes, the “agreement” is reached by telephone. The organized criminal group assists the migrant in escaping the reception centre/structure and provides the necessary logistical support (e.g., accommodation) until the trip to the North of Italy. Different methodologies are used to ‘attract clients’: (i) collaboration of migrants living in the reception centres/structures; (ii) contacts through relatives, whereby the later contact the smugglers and these ask for the phone number of the potential ‘client’ in order to formalise details; (iii) direct engagement, whereby smugglers go to the points of entry of migrants and carefully ‘advert’ the available services. Again, all services are dependent on payment.
  • Payments are usually done in advance, without which no ‘service’ will be made available by the organized criminal group. Payments take place through different systems, legal and otherwise: (i) directly in cash; (ii) ‘Hawala’ banking system (based on trust, this modality of payment requires neither the movement of cash by the sender and receiver nor formal registration, thus escaping the scrutiny of authorities and anti-laundry regulations); (iii) through financial services providers that allow a quick and smooth movement of cash, such as Western Union, MoneyGram, and, in Italy, Postpay.
  • The organized criminal group also procures false documents so as to allow migrants to continue their travelling abroad undetected by authorities. There is likewise reference to sham marriages as a means of procuring and or enabling illegal entry, transit and stay.
  • G.E., M.M.Y. (in North Africa) and G.A. (in Italy) are at this stage identified as the main leaders of the organized criminal group, directing operations and or men. However, evidence was gathered showing the essential contribution of all suspects to the smuggling of migrants and related offences carried out by the organized criminal group. They had precise yet varied roles within the organized criminal group, e.g. migrants’ receiver and or collector, driver, hawalar.
  • The investigation individualized several specific episodes/businesses, mostly in relation to the disembarkment of hundreds of migrants in 2014 and 2015 in Sicily.
 
The organised criminal group remains operative. Investigations are on-going with the purpose of identifying the remaining members and associates. The organised criminal group is responsible for smuggling tens of thousands of migrants, in often-inhuman conditions.
 
Legal Findings:
The Public Prosecutor argued for the existence of strong evidence 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 operates mostly in Central Africa (Eritrea, Ethiopia, Sudan), Maghreb countries (especially Libya), Italy and the North of Europe (Scandinavian countries, the Netherlands, United Kingdom and Germany). 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 concluded for the existence of evidence upholding the individual responsibility of all suspects for (i) criminal conspiracy dedicated to the smuggling of migrants and (ii) procuring and or enabling the illegal entry, transit and stay of migrants into Italy (and from there to other EU countries).
 
He 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, (v) transnational character of the organised criminal group, and (vi) the use of weapons in public.
 
The Public Prosecutor finally highlighted the underlying precautionary requirements: (i) risk of escape, enhanced by the suspects‘ membership in a transnational organised criminal group; (ii) risk of recidivism, for the active role of the suspects in an extremely organised and well-established organised criminal group as well as the expected amelioration on seas and weather condition, which are likely to prompt additional smuggling ventures; (iii) risk of tempering with evidence, including by threatening migrants and or their families.
 
Against this background, 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 (three or more) 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 (that would indeed be incongruent vis-à-vis the illegality of the conduct pursued). Accordingly, the proof of the associative bond must be sought in different historical elements of the life of the criminal network. For instance, the means available, modus operandi, systematic relations/contacts with the members, repetition of criminal conduct (main activity and related offences), social alarm caused, impact on the State where the crime occurs. The requisite of non-determination of the criminal programme refers to the number, modalities and objectives of the specific criminal conduct envisaged. That is, the fact that the criminal network is dedicated to the specific activity of smuggling migrants is not incompatible with the requisite of indeterminacy of the criminal programme. Naturally, in order to have a criminal conspiracy, it is necessary that the criminal association be adequate to achieve the aimed criminal result.
 
The indicators 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 locations in Libya controlled by the smugglers, (ii) availability of different means of transport to carry out the diverse phases of the travel, (iii) engagement of several men with specific roles (e.g. recruiters, drivers, ship crews, landlords, brokers) abiding by rigorous codes of conduct, (iv) systematic exposure of the life and safety of migrants to serious risks given the conditions of the trip, (v) diversified and sophisticated means of communication, (vi) attempts of dissipating traces and deceiving authorities, (vii) structured methodology regarding payments; (viii) availability of a robust network for enabling illegal transit and stay (e.g. accommodation, clothing, transportation abroad, false and or tempered passports), (ix) regular character of the activities, (x) submission of migrants to repeated instances of violence, humiliation and even slavery, (xi) assistance provided in escaping reception centres and registration procedures, (xii) durability and systematic character of relations and contacts between smugglers. 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 associative bond emerges, for instance, when (i) the person gives such an exclusive or expert contribution to the criminal network that another person could not do the same, or (ii) the person has access to and uses means exclusive to the criminal network in such a manner that unveils his or her deep knowledge and involvement therein. In relation to the specific organised criminal group at stake in the proceedings, the Prosecutor also notes the existence of a strong hierarchical structure, absence of other sources of income, precedents in respect of some of the suspects.
The reasoning of the Public Prosecutor mirrors 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. It is indeed interesting to note that the Public Prosecutor expressly invoked Article 2 (a) UNTOC when elaborating on the concept of organised criminal group, and Article 3 (2) UNTOC when expounding of the transnational nature of an organised criminal group. On this latter aspect, it is clarified that whereas the transnational character of the organised criminal group has been established, it will be immediately recognised the transnational nature of all serious crimes in which commission the organised criminal group was involved.
 
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 partially communicated through social media tools (Viber, Skype, Tango, Facebook, etc). Intercepting these communications might be 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 and MoneyGram. It is mentioned in the Order of Precautionary Detention that cooperation with these financial service providers allowed gathering important evidence, namely regarding the movement of cash. This cooperation amounts to a remarkable example of best practice translated into effective collaboration between private actors and investigative authorities.
Conversely, the use of illegal and or untraceable financial service providers (e.g. Hawala) may jeopardise or at least delay investigations.  Again, also in this realm, there appears to be a need for developing synergies aimed at preventing criminals from taking advantage of less formalised financial intermediaries.
 
Importantly, the investigation shows the importance of international cooperation. Indeed, it was the effective cooperation between police forces in different countries that allowed, in some instances, the identification of suspects.
 
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:
2015-04-10

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

Libya

Tunisia

Mauritania

Investigation

Involved Agencies

• Criminal Police
• State Police
• Public Prosecutor Office

Details

• electronic or other forms of surveillance

International Cooperation

Measures

• International law enforcement cooperation (including INTERPOL)
Outline:
International cooperation between police forces of Italy and Sweden in order to identify suspect and gather its identity data.
 

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. The Judge for Preliminary Investigations confirmed the precautionary measure. Six members of the organised criminal group were detained. Three remained at large. Investigations into the activities of the organised criminal group continued, leading to the order of precautionary detention herein under analysis.
 
 

Migrants

Migrant:
At least, 5377 smuggled migrants. Several nationalities, including Sudan, Ethiopia, Eritrea, Libya.

Defendants / Respondents in the first instance

Defendant:
M.M.Y.
Gender:
Male
Nationality:
Eritrean
Age:
34
Born:
1981
Defendant:
G.E.
Gender:
Male
Nationality:
Ethiopian
Defendant:
G.A.
Gender:
Male
Nationality:
Eritrean
Age:
40
Born:
1975
Defendant:
M.M.
Gender:
Male
Nationality:
Eritrean
Age:
47
Born:
1967
Defendant:
G.M.
Gender:
Male
Nationality:
Eritrean
Age:
40
Born:
1974
Defendant:
Y.A.
Gender:
Male
Nationality:
Eritrean
Age:
26
Born:
1989
Defendant:
G.N.
Gender:
Male
Nationality:
Eritrean
Age:
36
Born:
1979
Defendant:
T.H.
Gender:
Male
Nationality:
Eritrean
Age:
41
Born:
1974
Defendant:
K.G.N.
Gender:
Male
Nationality:
Eritrean
Age:
31
Born:
1984
Defendant:
E.A.
Gender:
Male
Nationality:
Eritrean
Age:
34
Born:
1981
Defendant:
I.O.M.
Gender:
Male
Nationality:
Eritrean
Age:
29
Born:
1995
Defendant:
G.Y.
Gender:
Male
Nationality:
Eritrean
Age:
28
Born:
1988
Defendant:
N.F
Gender:
Male
Nationality:
Eritrean
Age:
61
Born:
1954
Defendant:
B.T.
Gender:
Male
Nationality:
Eritrean
Age:
28
Born:
1986
Defendant:
R.Y.
Gender:
Male
Nationality:
Eritrean
Age:
29
Born:
1986
Defendant:
T.A.S.
Gender:
Male
Nationality:
Ivorian
Age:
25
Born:
1990
Defendant:
E.M.
Gender:
Male
Nationality:
Ghanaian
Age:
44
Born:
1968
Defendant:
D.I.
Gender:
Male
Nationality:
Guinean
Age:
29
Born:
1981
Defendant:
A.Y.
Gender:
Male
Nationality:
Eritrean
Age:
23
Born:
1991
Defendant:
H.M.
Gender:
Male
Nationality:
Eritrean
Age:
22
Born:
1992
Defendant:
T.A.
Gender:
Male
Nationality:
Eritrean
Age:
26
Born:
1989
Defendant:
A.E.
Gender:
Male
Nationality:
Eritrean
Age:
21
Born:
1993
Defendant:
H.M.M.
Gender:
Male
Nationality:
Eritrean
Age:
23
Born:
1981
Defendant:
M.O.M.
Gender:
Male
Nationality:
Eritrean
Age:
19
Born:
1995

Charges / Claims / Decisions

Defendant:
M.M.Y.
Statute:
Criminal Code Article 416 (1), (2), (3), and (6) Criminal Code (and Article 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, and Article 4 Law 146/2006) Procuring or enabling irregular migration
Defendant:
G.E.
Defendant:
G.A.
Defendant:
M.M.
Defendant:
G.M.
Defendant:
Y.A.
Defendant:
G.N.
Defendant:
T.H.
Defendant:
K.G.N.
Defendant:
E.A.
Defendant:
I.O.M.
Defendant:
G.Y.
Defendant:
N.F
Defendant:
B.T.
Defendant:
R.Y.
Defendant:
T.A.S.
Defendant:
E.M.
Defendant:
D.I.
Defendant:
A.Y.
Defendant:
H.M.
Defendant:
T.A.
Defendant:
A.E.
Defendant:
H.M.M.
Defendant:
M.O.M.

Court

Tribunale di Palermo

Sources / Citations

Proc. N. 1874/2015 /DDA
Proc. N. 7132/15 R.G.N.R.
Proc. N. 7472/15 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.
10 April 2015



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