The defendant was deemed to be a member of a transnational organised criminal group (composed mostly of Somali, Sudanese and Libyan individuals)dedicated to the smuggling of migrants and trafficking in persons. In order to achieve these goals, the organised criminal group further engaged in a series of connected and ‘auxiliary’ crimes, namely kidnapping with the purpose of extortion and homicide. The activities of this criminal group occurred mostly in Libya (city of Kufrà) and Italy.
The defendant’s role within the said organised criminal group was that of – being armed - monitoring and keeping surveillance over migrants that had been kidnapped and maintained in a slavery-like situation, in a structure known as Hudeyfà (Libya). In so doing, he committed a series of offences against the physical and psychological integrity of migrants.
Specifically, upon reaching Libya from their respective countries of origin, the migrants would be coercively detained in Hudeifà. All their possessions were taken by the smugglers. The smugglers would then demand their families for a ransom for their release (up to 5250 USD) and or the fee deemed appropriate for continuation of the journey to Italy. The payments would then occur via the Hawala method. Some migrants declared that the defendant would request the ransom added of 250 USD, which he would directly usurp. Sometimes, the smugglers would torture the migrants and make their families hear their screams over the phone. Once the payments were received, the migrants would either be abandoned in Libya or sold to other smugglers that would facilitate the journey to Italy. Movements between sites occurred by truck or bus.
During the kidnapping period, water and food lacked. The migrants were abused and mistreated. This would happen including when they asked for more water or food. Some, evidenced by marks of torture on their bodies. At least three migrants presented lesions and scars in the abdomen and back consistent with torture imposed via electric cables. Others, declared to have been beaten up with a rubber stick.
On 26 May 2017, 307 individuals (including the defendant) were rescued from a vessel*, close to the Libyan coast, by a tugboat. On 27 May 2017, these persons arrived to the port of Lampedusa (Italy) on board of a ship of the Coast Guard that had recovered the said individuals from the tugboat. They were then transferred to the Hotspot of Lampedusa for screening and photograph taking. Following the appropriate assessment, it emerged the 307 migrants did not fulfil the legal requirements to enter and stay in Italy. They were thus irregular migrants. Most migrants were minors.
Upon questioning, five migrants declared to have been kidnapped in Kufrà and confirmed the role of the defendant in the context of the organised criminal group that had arranged for their journey to Italy. They further declared that, once in Lampedusa, the defendant had threatened some of them not to give incriminating declarations against him. To others, he had asked for forgiveness. The migrants remained afraid and intimidated.
Some migrants declared that deaths had occurred amongst the kidnapped migrants, either due to disease or as a result of torture and mi-treatment. Likewise, some migrants stated to have been told that, before their arrival to the ‘safe house’, few migrants had managed to escape. However, they had been recaptured and killed in front of the other migrants.
In establishing the fact, authorities relied muchon testimonial evidence (notably declarations of several smuggled migrants in Lampedusa) and identification of the defendant via photographs. Documentary evidence – notably, photographs of torture marks – taken by the police with the assistance of medical staff was of much importance. These photographs were complemented with expert medical reports.
Investigations continued re other alleged members of the organised criminal group. At least one migrant declared that it was planned for other members of the organised criminal group to travel to Europe, from Nigeria, attempting to pass as smuggled migrants.
Legal Findings:
Against this background, the Public Prosecutor argued for the existence of strong indicia on the defendant’s membership in a transnational organised criminal group dedicated to the smuggling of migrants (associazione a delinquere). The defendant was thus indicted for migrant smuggling, membership in an organised criminal group, trafficking in persons, and kidnapping with the purpose of extortion.
The Prosecution noted the existence of a number of aggravating circumstances. Notably:
- Re membership in an organised criminal group: (i) having carried out the criminal conduct through an organised criminal group operating in more than one State, (ii) more than ten individuals having been involved in the perpetration of the crime;
- Re migrant smuggling: (i) having participated in the smuggling of five or more persons, (ii) having committed the crime in three or more individuals, (iii) purpose of obtaining a financial or other material benefit with the proscribed conduct, (iv) endangering the life or safety of migrants, (v) submitting migrant to degrading or inhuman treatment.
For details on the legal reasoning applied, see infra under “Commentary”.
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* Note: In this analysis, the UNODC uses the term “vessel” with the meaning it entails for the purposes of the Protocol against the Smuggling by Migrants by Land, Sea and Air, that is “any type of water craft, including non- displacement craft and seaplanes, used or capable of being used as a means of transportation on water, except a warship, naval auxiliary or other vessel owned or operated by a Government and used, for the time being, only on government non-commercial service” (Article 3 (d)). Accordingly, it comprises unseaworthy ships and boats in precarious conditions.
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The Prosecutor recalled the doctrine of “convergence of multiple”, meaning that in assessing the evidence, elements/declarations raised or gathered a posteriori may play a role as long as in their specificity, convergence and independence they still point to the same suspect and circumstances. It was stressed that there are no indicia that the migrants agreed on the content of their declarations with the purpose of unfairly jeopardising the suspect. In the instant case, there remains no doubt re the genuineness of the statements of migrants, confirmed – months later – by the defendant himself.
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: (i) specific and threatening modus operandi, including kidnapping, (ii) payment of fees into determined accounts, (iii) use of fire arms, (iv) systematic beatings and attacks against the physical integrity of migrants, creating a condition of submission typical of trafficking in persons and slavery, (v) constant humiliation, (vi) selling/delivery of migrants to other criminal groups, (vii) systematic and regular character of activities (extending for several months in time). Likewise, only in the context of an organised criminal group can be explained the (a) constant provision of means of transportation, (b) engagement of several men with specific roles (surveillance, truck drivers, personnel to master the vessel, etc), (c) standardised codes of conduct between the participants. This organised criminal group operated through the route most popular amongst the poorest African migrants. Through its modus operandi, the criminal group enabled an actual and extremely profitable modern network of trafficking in persons.
The role of the defendant was one of critical support to the overall and systematic unlawful activities of the organised criminal group rather than one of simple assistance in transporting smuggled migrant in a specific instance. The defendant was fully aware thereof.
With regard to the crime of trafficking in persons, it is important to note that ithe expression “to sell” (Article 601 Criminal Code) does not require the reduction of the victim to the condition of slave. Rather, the intention of the Legislator was that of demanding dolo specifico– that is, specific intent – regardless of whether the envisaged result actually comes to effect or comes to effect in respect of the person(s) initially targeted.
It remains no doubt that Italian courts hold jurisdiction in the instant case. Specifically, for the lawful exercise of jurisdiction, it is necessary that the action or omission that constitutes the criminal conduct take 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 associazione a delinquere (organised criminal group), 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 various phases and steps of the criminal activity must be read in conjunction, 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. In the instant case, the arrival of the smuggled migrants to Italian territory suffices per se to trigger the jurisdiction of the State.
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.
The normative definition of ‘transnational crime’ describes the intertwinement between the organised criminal group and the proscribed conduct. It relies on the flexible notions of ‘involvement’ and one being ‘implicated’. Conversely, Article 4 Law 146/2006 configures the aggravating circumstance that applies when the organised criminal group ‘contributes’ to the offence. The term ‘contribute’ is stricter and more demanding. Specifically, one ‘contributes’ to a crime when he or she ‘cooperates’, ‘collaborates’, ‘participates’ or ‘intervenes’ in the realisation of one of the constituent elements of the offence.
In light of the above, it is submitted that in casu there persists a transnational organised criminal group dedicated to criminal activities in more than one State. The aggravating circumstance enshrined in Article 4 Law 146/2006 thus applies.
The Public Prosecutor highlighted the underlying precautionary requirements:
Against this background, the Public Prosecution ordered the precautionary detention of the defendant. Accordingly, it delegated to the Criminal Police of Agrigento the execution of this order.
This case illustrates the intricate connections between migrant smuggling and other crimes, especially trafficking in human beings. Sometimes, these other crimes configure opportunities for further profit (like in the instant case). Other times, such crimes (e.g., money laundering) are extremely useful – if not necessary – in eluding authorities and thus smoothly continuing with migrant smuggling activities. Certainly, this will be all more so the case, the more robust and well established the organised criminal group/smugglers are and the higher the profits resulting from smuggling ventures are.
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).