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