The Prosecution underlined the peculiarity of this investigation. Specifically, it refers to an innovative modus operandi, whereby the organised criminal group systematically resorts to powerful speedboats to facilitate the illegal entry of relatively well-off Nord Africans in Italy. In this manner, irregular migrants do not need to endure the highly precarious conditions of vessels usually used in smuggling ventures. Furthermore, through this approach, the vessels will hardly be overcrowded. This line of activity is thus somehow seamless vis-à-vis the usual circumstances of migrant smuggling episodes, whereby desperate individuals risk their lives’ in inhumane conditions.
In addition, this modus operandi is particularly threatening to national security, Indeed, by providing much saver and shorter trips (not longer than three and a half hours), itbecomes highly appealing to several individuals, including criminals wanted by Tunisian law-enforcement agencies and suspects of involvement in terrorism, notably related to the Islamic jihad. The operations of the organised criminal group present links with France and Belgium which raises additional concerns given the presence – in these countries – of several individuals allegedly linked to violent extremism with the potential of converging in terrorist practices. Thus, the fear exists that other potential extremist jihadists could resort to this safer and more difficult to monitor modus operandito reach their desired destinations to, for instance, carry out new terrorist attacks.
A further element revealing the enhanced dangerous nature of this organised criminal group relates to the high fees paid/profits obtained, which prompts the multiplication of resources and activities. Furthermore, the existence of a collaborator (Defendant 11) possessing a residence permit in Italy makes it very easy for him to promote money-laundering initiatives that may delay and or deceive authorities.
Despite the privileged position of the ‘clients’ of this organised criminal group, illegal entry in Italy is still necessary because (i) migrants originate from countries (e.g. Tunisia) the circumstances of which would not easily trigger the asylum framework or the need for international protection (ii) migrants often do wish to proceed to other countries rather than Italy, with illegal entry thus avoiding screening and registration procedures which prevent the submission/continuation of asylum claims in other countries.
Because smugglers – under the specifics of this modus oprandi – do not wish to trigger the rescue by national authorities, it is much more difficult to monitor and ‘keep an eye’ on smugglers, smuggled migrants and smuggling activities.
Even though the intense migration crisis has led to the availability of important resources to be applied to the fight against migrant smuggling, the fact remains that smugglers have organised themselves (and their criminal groups) as proper enterprises, supplying specific services upon demand, in exchange of an appealing fee/profit. Thus, while law-enforcement agents perfect their capabilities and responses to criminality, smugglers – with their impressive flexibility – find the necessary ways to circumvent new achievements in the fight against migrant smuggling.
The Prosecutor highlights the difference between smuggling of migrants and trafficking in persons, though noting that both are often interlinked. Smugglers usually take the role of an effective travel agency, ensuring the arrival at the desired destination, with no interest for the future of the client thereafter. There is a transaction, for an established price; the transaction, however, occurs on an illegal basis. In the context of human trafficking, there usually is not any such agreement between the trafficked and the traffickers. In addition, the future of victims once arrived to the destination is critical for the involved criminals given that their profit will most often be related to the exploitation of victims thereupon. Migrant smuggling occurs through the territory of more than one country while human trafficking may occur in the territory of a single State. The routes in both crime types are often the same. A victim of migrant smuggling might easily become a trafficking victim, 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. Confusions in terminology used in the media should also be addressed as soon and effectively as possible.
It is important to note that the crime of migrant smuggling is not “absorbed” by the more serious offence of trafficking in human beings given the difference in protected juridical assets. While the prohibition of migrant smuggling aims first and foremost to protect the public order, the proscription of trafficking in persons intends to protect the freedom of persons. This notwithstanding, it is critical to clarify the circumstances and role of victims. In both crime-types, their consent is always irrelevant from the viewpoint of the individual criminal responsibility of the perpetrator and does not jeopardise the position of the victim in the procedure or his or her rights throughout.
The Public Prosecutor expounds on the required elements for asserting the participation in an organised criminal group (associazione a delinquere): (i) three or more persons dedicated to the pursuance of the criminal plan; (ii)a bond between the members of permanent character or, at least, stable and aimed to continue beyond the commission of specific criminal acts/ventures; (iii) undetermined nature of the criminal programme, and; (iv) 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 or hierarchical relations. The requisite of non-determination of the criminal programme refers to the number, modalities and objectives of the specific criminal conduct envisaged (Cassazione penale sez. II, 17 gennaio 2013 n. 16339). Thus, the fact that an organised criminal group dedicates itself to a specific branch of activity does not undermine the said requisite. It is enough that the members of the organised criminal group have agreed on a generic criminal plan, without detailed all specifics thereof (affectio societatis sceleris: e.g. Cass., sez. 1, 23.6.1988, Olivieri; Sez. V del 2002-2003, Platania, cit.; Sez. VI, sent. 14 12.1999, Campenella, Rv. 216657).
Specifically regarding an associazione a delinquere dedicated to the smuggling of migrants, it is important to note that, as per settled Italian jurisprudence, the participation in the organised criminal group may be established on the basis of participation in a single criminal act as long as the role developed or contribution given are such as not to have been possible to be given or performed by any other person (Cass. Sez. I, sent. n. 41098 del 15/07/2011, Racariu e altro; Cass. Sez. III, sent. n. 43822 del 16/10/2008, Romeo ed altri; Cass. Sez. V sent. n. 2838 del 09/12/2002, Platania, Rv. 224916).
It was the concerted action of all the members – aware of each other’s role and contribution – that allowed the smuggling of migrants into Italy. In casu, there are a number of factors that demonstrate the existence of a stable, fully operational and organised criminal group, acting upon a well structured plan, in order to obtain a financial or other material benefit, with significant (potential) risks to the society: (i) constant provision of means of transportation, (ii) specific and threatening modus operandi, (iii) engagement of several men with specific roles (e.g. skipper, clients’ recruiters, passeurs, etc) coordinating systematically among themselves, (iv) dimension of impact of the criminal activity on the territory of Italy, (v) social alarm caused by the proscribed conduct, (vi) regular character of the activities, (vii) fact that some associates possess residence permit in Italy as well as Tunisian nationality, thus facilitating their movement between both countries so as to expedite the smuggling ventures, forge contacts and ‘galvanise’ clients (current or future), (viii) continuation of smuggling venture to other countries, logistical support and capabilities (e.g. accommodation in Italy).
The aggravating circumstance enshrined in Article 4 of Law 146/2006 came about in the context of the implementation of the United Nations Convention against Transnational Organised Crime (UNTOC) and the Protocol against the Smuggling of Migrants by Land, Sea and Air supplementing the UNTOC. Also the notions of ‘transnational crime’ and ‘organised criminal group’ were introduced by Law 146/2006, in execution of UNTOC. The purpose of UNTOC is to promote cooperation to prevent and combat transnational organized crime more effectively (Article 1). This overall purpose is pursued through three main lines of action: (i) international judicial cooperation; (ii) adoption of some generally accepted penal notions such as ‘transnational crime’ and ‘organised criminal group’, (iii) obligation of criminalising membership in an organised criminal group.
The Italian law incorporated Article 3(2) UNTOC, which includes the criteria to determine the transnational nature of an organised criminal group: (i) perpetration in more than one State, (ii) perpetration in one State but whereby a substantial part thereof, its planning, direction or control takes place in another State, (iii) perpetration in one State but involving an organised criminal group that engages in criminal activities in more than one State, (iv) perpetration in one State but producing substantial effects in another State. Elements (i), (ii) and (iv) focus on objective aspects of the crime while element (iii) relates to an extrinsic circumstance, i.e. the complex modus operandi of the organised criminal group involved. Accordingly, for classifying a crime as ‘transnational’ it is enough that the organised criminal group be active in more than one State even if the specific criminal act under scrutiny might itself only be related to a single State. Aware of the fluidity and complexity of the phenomenon of transnational criminality, it is likely the Legislator intended to draw an ample enough definition so as to make the law – and its application – robustly effective.
As far as the definition of ‘organised criminal group’ is concerned, Article 2 (a) UNTOC defines it as ”a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit”. In turn, ‘structured group’ is “a group that is not randomly formed for the immediate commission of an offence and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure” (Article 2(c) UNTOC).
As opposed to the ‘associazione a delinquere’ (Article 416 Criminal Code), the ‘organised criminal group’ does not require a plan oriented to the commission of a plurality of crimes nor does it entail a purpose of continuity. This notwithstanding, it will be necessary to prove that the members of the organised criminal group involved in the perpetration of the crime at least knew of the contribution of the said criminal group to the commission of the crime.
The difference between the organised criminal group (in the ample terms above explained) and the mere association of people with the purpose of committing a crime lies precisely on the fact that the latter may engage on fortuitous, improvised or occasional criminality. Instead, the ‘organised criminal group’ requires criminal organisation and planning.
In the instant case – as highlighted supra – the characteristics of the association at stake fulfil the requirements of an associazione a delinquereand, thus, the more ample definition of ‘organised criminal group’. As a matter of fact, the evidence unveiled the criminal acts were carried out in two continents (Africa and Europe), involving at least Tunisia, Italy, France and Belgium. The evidence further shows the existence of a structured criminal plan intended to the commission of a plurality of instances of migrant smuggling (in addition to the perpetration of several such crimes), continuity of the organisation, assignment of different and complementary roles. In light of the above, the aggravating circumstance enshrined in in Article 4 of Law 146/2006 is of clear application in casu.
The knowledge and intent of all members to participate in the criminal plan is also evident, notably in view of the specific roles attributed to each individual. Furthermore, it is obvious each member was well aware of the functions assigned to other associates, namely in view of the coordination efforts they engaged in
It is important to note that the responsible for the crime are not only the ones materially mastering the vessel that ultimately permitted the illegal entry of irregular migrants in Italy but also those that successively carry out activities of assistance and logistical support aimed at ensuring the success of the operation, e.g. concealment of migrants from authorities, orientation of migrants towards the location of destination (cfr. Sez. 1, Sentenza n. 37277 del 23/04/2015 Ud. (dep. 15/09/2015 ) Rv. 264564).
Police surveillance operations re the defendants were essential to investigations. 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 “instradamento”. The caption is possible whenever communications flow through Italian phone centrals.
The decision invokes the innovative yet consolidated case-law on the exercise of jurisdiction. 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 the instant case, the simple disembarkation of irregular migrants in Italy suffices to trigger the jurisdiction of Italian courts.
In respect of participation in an associazione a delinquere, 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 Public Prosecutor highlighted the underlying precautionary requirements:
- rRsk of escape, enhanced by the suspects‘ (i) membership in a transnational organised criminal group whose main purpose is to facilitate the escape of individuals abroad, (ii) declared desire to move to countries in the North of Europe, (iii) behaviours mirroring the concern of eluding authorities and easily escaping their reach, e.g. use of pre-paid phones and constant change of phone numbers;
- Risk of recidivism, for the active role of the suspects in an extremely structured and well-established organised criminal group coupled with the coming improvement of weather and sea conditions in Summer;
- Risk of tempering with evidence, including by threatening migrants and or their families.
Against this background, the Public Prosecution ordered the precautionary detention of the defendants.
The Prosecution further stressed the importance of confiscating a number of assets upon which the organised criminal group heavily relied so as to carry out its outlawed activities. Article 12 (4) Decree Law 286/1998 makes mandatory the confiscation of means of transport used in smuggling ventures, even if they belong to third parties. In such circumstances, these third parties are to be recognised the right to oppose confiscation – and have the property returned – if they prove not have been involved in the commission of the crime and not to have lacked due diligence in preventing the use of their property for illegal purposes (cfr. Cass. Sez. 1, Sentenza n. 1927 del 09/12/2004 Cc. (dep. 21/01/2005 ) Rv. 230904). From the operations of personal surveillance carried out by the Criminal Police as well as the outcome of radiolocation efforts, nine means of transport - two vessels and seven automobiles - were inidividualised as having been instrumental in the smuggling ventures. Their confiscation was therefore ordered by the Prosecution.
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