Case Law Database

Participation in an organized criminal group


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


• conspiracy
• criminal association

Smuggling of migrants


• Enabling illegal entry


• Endangering lives or safety of smuggled migrants

N. 13/13 Reg. Gen. Corte di Assise di Catania

Fact Summary

On 30 August 2013, the Air Coastal Guard detected a ship off the coat of Sicily (Italy), presumably transporting irregular migrants, and towing a smaller boat. In time, the two ships separated, with the smaller navigating towards Italy and the larger one in the opposite direction. On the morning of 31 August, la Guardia di Finanza intercepted the smaller boat, having on board 110 foreigners, all men, all Egyptians, except for one Syrian. At least five migrants were heard by the criminal police, as suspects in the contravvenzione of irregular immigration. It resulted that migrants paid between 3000 and 3500 Euro for the trip. They were taken by bus to Alessandria (Egypt) where they stayed in a house in the countryside. After some days, they were transferred to the seaside, wherefrom, in small groups, they boarded inflatables. Following a one day trip, they again transferred to a large boat that towed a smaller one. After 24 hours of navigation, the migrants were passed to this latter ship, where there were four crew men. It was there that the migrants were rescued from by Italian authorities. The larger boat left towards Egypt. During the travel, the smugglers deprived the migrants of their money, mobile phones, and other possessions, mis-treated and threatened them. From the statement of the migrants as well as another accused resulted that:
  • the defendant had held a position of control in the smaller boat, giving instructions, making sure order was maintained, and driving it;
  • the actual leader was on board of the larger vessel that travelled back to Egypt;
  • both the defendant and his partners (minors) had taken such positions in exchange for not paying their “tickets” (app. 2500 Euro).
Legal findings:
The Court concluded for the responsibility of the defendant in procuring illegal entry into Italy through a transnational organised criminal group. The Court considered there to be aggravating circumstances given (i) the intent of obtaining a financial or other material benefit, (ii) more than five people were smuggled, (iii) more than 3 people were engaged in the criminal act, (iv) the life and safety of migrants was endangered. The Court also refused the application of attenuating circumstances as it saw no sign of regret nor evidence contradicting its understanding of the events.
Against this background, the Court convicted the defendant for procuring illegal entry into Italy through an organised criminal group. However, it absolved him of
the offence of criminal conspiracy, as it could not conclude for the existence of the necessary intrinsic associative bondage rather than an occasional, non-indispensable participation in a criminal act of the organised criminal group.The accused was thus convicted of aggravated procurement of illegal entry.

For further details see infra under “Commentary”.

Commentary and Significant Features

This decision highlights the contours of the actus reus and mens rea of participation in an organised criminal group and criminal conspiracy thus enhancing the effectiveness of Article 5 UNTOC. It underlined the importance of the intrinsic link between the subject and the organised criminal group. The indispensability of the subject to the activities of the organised criminal group is a crucial element to determine the level of involvement – and responsibility – of the suspect. In other words, this is a preponderant element that allows the qualitative leap from involvement of an organised criminal group to criminal conspiracy to occur.
The intent of obtaining financial or other material benefit is an aggravating circumstance applicable even when the benefit is indirect (in casu, access to Italy without paying the travelling fee).
The ruling also relevantly supports the use of pre-trial statements in court as long as principles of due process are safeguarded. In this manner, the absence of witnesses – a common situation given the specificities and dynamics of the crime-type at stake – can be, at least tentatively, balanced. This approach appears to entail several advantages to the administration of justice.
In this respect, it is worth noting that the Defence contested the admissibility as evidence of statements given to the Criminal Police outwith the context of the incidente probatorio (and thus the guarantees of exercise of the contradictory, as per Article 512 Code Criminal Procedure). The Court dismissed the argument highlighting that, on the basis of both national jurisprudence and the case-law of the European Court of Human Rights, the non-occurrence of opportunities of contradictory does not automatically preclude pre-trial statements. Such statements may still be accepted as long as: (i) the witnesses are truly unavailable to present themselves in session, (ii) this unavailability was not objectively predictable at the time of the statements or, if it was, the Prosecutor diligently requested their hearing within the incidente probatorio, (iii) the conviction cannot be based, on a determinant manner, on such statements. This is to say, the admissibility of such statements may not unbalance principles of due process and, consequently, the rights of the accused. In casu, the Court noted that indeed the responsibility of the accused had been asserted independently of such statements, which only had a corroborating effect.
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:

Cross-Cutting Issues


... for

• completed offence

... based on

• criminal intention

... as involves

• principal offender(s)



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

Involved Countries



Investigation Procedure

Involved Agencies

• Criminal Police
• Public Prosecutor Office

Confiscation and Seizure

Seized Property

Ships used in the smuggling venture

Legal Basis

National law (executive jurisdiction), Protocol against the Smuggling of Migrants by Land, Sea and Air (article 8) and its implementing legislation.

Procedural Information

Legal System:
Civil Law
Type of Proceeding:
By order of immediate trial dated 30 October 2013, the defendant was called to attend a hearing on 17 January 2014. In this hearing the Court nominated an Arab interpreter and translator, who assisted the accused through the whole duration of proceedings. Throughout 2014, several court hearings took place where the main subject was the admissibility as evidence of pre-trial statements given by migrants outwith the institute of incidente probatorio. For further details, see infra under “Commentary”.


110 smuggled migrants: 38 children and 72 adults.
All Egyptian, with the exception of one Syrian.
At least five 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


The Defence contested the admissibility as evidence of statements given to the Criminal Police outwith the context of the incidente probatorio (and thus the guarantees of exercise of the contradictory, as per Article 512 Code Criminal Procedure). For further details, see infra under “Commentary”. 

Charges / Claims / Decisions

Criminal conspiracy (associazione a delinquere)
Criminal CodeArticle 416 (6)
Procuring or enabling irregular migration
Decree Law 286/1998Article 12 (1) (3) (a), (b) e (d), 3-bis and 3-ter
Term of Imprisonment:
6 years 8 Months
Fine / Payment to State:
2650000  Euro 
Other sanctions:
Inhibition from public office and expulsion from Italy after execution of the sentence.


Corte di Assise di Catania

Sources / Citations

Sentenza in prima istanza - Corte di Assise di Catania
N. 12336/13 Reg. Gen. N.R.
N. 9573/13 Reg. Gen. G.I.P.
N. 13/13 Reg. Gen. C. Ass.