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).