RESOURCE MATERIAL SERIES No. 58

EFFECTIVE METHODS TO COMBAT TRANSNATIONALORGANIZED CRIME IN CRIMINAL JUSTICE PROCESSESFranco Roberti *I. A COMMON DEFINITION FOR“ORGANIZED CRIME”
A study on the phenomenon of organizedcrime aimed to a common understanding without claiming to be exhaustive - must
start from a definition of the concept oforganized crime. Such a concept, indeed,
logically precedes the explanation of thesituation relevant to the various types ofillicit activity, an explanation which I will
make with respect to the Italianexperience, given that any single activity
necessarily implies the existence of anorganisational structure.
An example can be made with regard to
the international trafficking of drugs andto the laundering of the money thereof, i.e.
criminal activities which need to be carriedout in an associated way. By saying that, I
do not intend to establish an equation
between the monopoly of drugs trade andthe spread of organized crime. Such an
idea would be unfounded. Although drugs
have provided - and still provide - criminalorganisations with extraordinary
possibility for enrichment, they arecertainly not their one and only source ofprofit and, maybe, neither the mostimportant one. On the contrary, the mostdeveloped criminal associations
increasingly tend to direct and diversify
their interests towards equally profitableillicit activities which they consider to beless risky because they are morally
regarded as less disgusting or because they
* Deputy Prosecutor, Direzione Nazionale Antimafia(National Anti-Mafia Bureau), Office of theProsecutor General, Italy

112

are subjected to less heavy penalties andless investigation or because it is moredifficult to find them since the finding
would require the victims’ co-operation
which is not easy to obtain (extortion,
control of public works’ contracts,
exploitation of prostitution, smuggling,
frauds, trafficking of human beings,
gambling, etc.).
According to the European Union
Situation Report on organized crimedelivered in Brussels on November 6 th,
1998, “Organized crime groups are known
to be exploring and exploiting new areas ofcrime with a vigour not unlike that oflegitimate business exploring andexploiting new commercial markets.
Currently the trend in organized crime
activity includes increased involvement inthose criminal activities that generate highprofits and at the same time lower risks toinvolved criminals in terms of lower
detection rates by law enforcement - partly
due to the complexity and costs of long term
investigations - and/or imposed penalties.
Crimes that present relatively low risks toorganized crime are the smuggling andtrafficking of human beings, and othereconomic crimes including frauds andecological crimes. Economic crimes are
therefore expected to remain on the increase
both in volume and magnitude”.
This manifest remark should suffice todestroy the argument - supported by the
advocates of liberalization and legalizationof drugs - according to which these would
be useful to combat organized crime since
this latter would be deprived of a source ofenrichment. On the contrary, it is clear

116TH INTERNATIONAL TRAINING COURSE
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that, should the drug trafficking proceeds
run out, the other illicit activities would
carry on and be strengthened. Moreover,within a free market of drugs, criminalorganisations currently managing it in amonopolistic system, would debar
competition through such well-known
discouraging methods as threats andviolence, as they already do in formally licit
economic sectors. For these reasons, we
can no longer apply an international
approach to fight organized crimeconsidering the main types of criminal
activities without attempting to define theconcept of transnational organized crime.
This need is mostly felt in Italy where
Cosa Nostra and the other Mafia-type
associations - unlike the other criminalorganisations - tend to be mixed in thesociety by means of apparently lawful
business undertakings and apparently licit
investments which necessarily require thecontrol of the territory and of any licit andillicit activity carried out herein.
While the Mafia economy is taking
increasingly developed and dangerous
forms, the awareness that the developmentof criminal economy has a dreadful andirreversible impact on the legal economy
has hardly spread: an impact which
corrupts the financial and banking circuits,
distort the markets’ trend, and - resorting
to instruments which are alien to the lawful
entrepreneurial world - feeds the black
economy and steals money to the tax
revenue.
What is worse, the criminal economy
brings about a kind of sharing of interests
which seems to make the border between
the criminal world and the society fade,establishing a steady collusive network of
relations other than the traditional one
linking criminals and the victims of theoffence.

The breaking of the border between the“attacker” and the “victim” clearly appears,
for instance, with respect to the unlawful
relations between organized crime andenterprises obtaining public works’contracts; these unlawful relations were
found following to various inquiries which
led to know that, in many cases, the legal
enterprises themselves asked the Mafia
groups for funds to expand their markets.
The Mafia is focussing its interests on
the public works’ contracts which require due to the afore-mentioned reasons - a close
control of the territory, yet at the same time
it would tend to act within the integrated
criminal system more frequently as a
“network” and less frequently as astructure linked to the territory: such anargument may appear as contradictory, at
a superficial analysis. Actually, these twothings are not incompatible, but they
represent two complementary andindissolubly linked aspects of the Mafia
action.
Mafia organisations will increasingly act
on a transnational scale, in agreement orin competition with other international
criminal organisations, namely with the
new Mafias which have been operating alsoin Italy for a long time. Yet theirestablishment on the territory will still be
the requirement for the control of themarkets and, thus, for their existence as
steady criminal structures.
Italian law four types of organized crime
can be identified as a result of the whole
set of criminal rules, both substantive andprocedural ones:(i)

Association for the purposes ofcommitting offences (simple
organized crime conspiracy article 416 penal code);1(ii)

Association for the purposes of113

RESOURCE MATERIAL SERIES No. 58
terrorism or subversion(subversive organized crime article 270-bis penal code);2(iii) Mafia-type association (Mafia-typeorganized crime art. 416-bis penalcode);3(iv)

Association for the purposes ofillicit trafficking of narcotic or
psychotropic substances (Art. 74 of
Presidential Decree N.o 309/
1990).4

The differences between membership ofa Mafia-type organisation and simple
criminal conspiracy are summed up below.

1Art. 416 penal code (association for the purposesof commiting of fences)“1. When three or more persons form anassociation for the purpose of committing morethan one offence, whoever promotes, establishes,
manages, organises the assoiation shall be liable,
for that only, to imprisonment for a term of
between three and seven years.
2. For the simple fact of taking part to theassociation, the penalty of the imprisonment
shall be a term of between one and five years.
3. The bosses shall be liable to the same
imprisonment settled for the promoters.
4. If the associates are armed, the shall be for aterm of between five and fifteen years
5. Sntence shall be increased if the organisationconsists of ten or more.
2 article 270-bis penal code (association for the
purposes of terrorism or subversion)“1. Whoever promotes, establishies, organises ormanages associations for the purposes ofcommitting acts of violence aimed to thesubversion of the democratic order shall be liable
to imprisonment fot a term of between seven andfifteen years.
2. For the simple fact of taking part in theassociation, the penalty of the imprisonment
shall be for a term of between four and eight
years.

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3

Art. 416 - bis penal code (membership of a Mafiatype organisation)
1. Persons belonging to a Mafia-type organisationof three or more persons shall be liable toimprisonment for a term of between three andsix years.
2. Persons who further the activities of or manage
the organisation shall be liable to imprisonment
for a term of between four and nine years for that
offence alone.
3. A Mafia-type organisation is an organisation
whose members use the power of intimidation
deriving from the bonds of membership and theatmosphere of coercion and conspiracy of silence
that it engenders to commit offences, to acquire
direct or indirect control of economic activities,
licences, authorisations, public procurement
contracts and services or to obtain unjustified
profits or advantages for itself or others, or toprevent or obstruct the free exercise of the rightto vote, or to procure votes for itself or others at
elections.
4. If the organisation is armed, members shallbe liable to imprisonment for a term of between
four and ten years in the circumstances describedin the first subsection and between five andfifteen years in the circumstances described in
the second subsection.
5. The organisation shall be deemed to be armed
if its members have access to weapons or
explosives for the purposes of furthering the aimsof the organisation, even if hidden or stored.
6. If the economic activities which the members
intend to acquire or maintain control over are
financed in whole or in part by the proceeds ofcrime, the penalties set out above shall be
increased by between a third and a half.
7. In the event of a conviction, articles which wereused or intended to be used to commit the offence
and the proceeds thereof shall be forfeited.
8. The provisions of this section are also
applicable to the Camorra and any otherorganisations, whatever their names, that makeuse of the power of intimidation deriving fromthe bonds of membership to pursue goals typicalof Mafia-type organisations.”

116TH INTERNATIONAL TRAINING COURSE
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While simple conspiracy only requires
the creation of a stable organisation,
however rudimentary, for the purposes ofcommitting an indeterminate number ofoffences, membership of a Mafia-typeorganisation additionally requires theorganisation to have acquired a genuine
capacity for intimidation in their area. The
members of the organisation must also
exploit this power to coerce third parties
4

Art. 76 of Presidental Decree N.o 309/ 1990
(association for the purposes of illicit trafficking of
narcotic or psychotropic substances)
1. When three or more persons from anassociation for the purposes of committing morethan one offence under section 73, whoever
promotes, establishes, manages, organises orfinances the association shall be liable toimprisonment for a term of not less than twenty
years for this offence alone.
2. Any persons taking part in the activities of theorganisations hall be liable to imprisonment fora term of not less than ten year.
3. The sentence shall be increased if theorganisation consists of ten or more members or
if any of the members are addicted to narcotic or
psychotropic substances.
4. If the organisation is armed, in thecircumstances described in subsections 1 and 3
above, the sentence may not be less than twentyfour years’ imprisonment and twelve years’
imprisonment in the case in subsection two
above. The organisation shall be deemed to bearmed if its members have access to weapons or
explosives, even if hidden or stored.
5. The sentence shall be increased in thecircumstances specified in section 80(1)(e).
6. If the organisation has been established tocommit offences under subsection 5 of section 73,
the first and second subsections of Section 416
of the Criminal Code shall apply.
7. The penalties provided for by subsections 1 to
6 shall be reduced by a half to two thirds if theperson in question has acted effectively to obtainevidence concerning the offence of has deprived
the organisation of vital resources for thecommission of offences.

with whom the organisation enters into
relations and oblige them to enter into a
conspiracy of silence.
Intimidation may take various forms,
from simply exploiting an atmosphere of
intimidation already created by thecriminal organisation to committing fresh
acts of violence or making threats thatreinforce the previously acquired capacity
for intimidation.
The “Mafia method” (or rather, the whole
gamut of instruments on which it is based)is therefore identified under criminal law
by means of three characteristics (“powers
of intimidation deriving from the bonds ofthe organisation”, “coercion” and“conspiracy of silence”) and all three are
essential and necessary aspects of thisconspiracy offence.
In terms of aims, whereas a simple
conspiracy aims to commit acts defined as
criminal offences in law, a Mafia conspiracy
can also be organized with the aim ofobtaining direct or indirect control of
economic activities, authorisations, public
procurement contracts and services or
profits or other unjustified advantages forthe organisation or others or to prevent or
obstruct the free exercise of the right to voteor to procure votes for itself or others at
elections.
The aim of committing crimes, while
inherent in Mafia-type organisations andan aspect of their structure since theorganisations are characterised by the useof violence, is not, however, the final andsole aim of the organisation. In fact, theindividual offences committed, such as“settling accounts” or acts against
representatives of public institutions, arepart of a broader strategy that seeks toacquire, increase and consolidate economic
power as part of an entrepreneurial visionthat makes no distinction between the115

RESOURCE MATERIAL SERIES No. 58
proceeds of criminal activities andlegitimate profit and considers
intimidation and violence to be normal
tools of its trade.
This is why Mafia-type organisationsattempt to acquire control of significant
areas of legitimate activity as well as
criminal activities, such as drugs or arms
trafficking. It is important to stress thatthe legitimate activities are not conductedsimply as a consequence of and a front for
criminal activities. They are a natural
outlet for criminal activities in the context
of the Mafia mind-set. Crime is therefore
a means to acquire economic and politicalpower and it leads to an overall logic ofcontinually expanding into areas oflegitimate power.
This has all been clearly recognised by
the legislature, which has defined theoffence of membership of a Mafia-typeorganisation in such a way that, even if aseries of offences have not been committed,
it is still an offence for the organisation tointend to exploit Mafia methods to acquirea monopoly position, for electoral orpolitical gains or to obtain an unjustified
advantage.
The term organized crime was first usedin Italy in the mid ‘70s when, upon theoutbreak of kidnappings for ransom andthe onset of terrorism, laws were amended
as a result of the increasing awareness ofthe difference between offences committed
by individuals and “organized” offences.
Then, the distinction was based on two
main features: the number of people
involved and the steady and skilled natureof the organized criminal activity comparedwith the contingent and accidental natureof individual crime.
A couple of decades after those first
analysis, criminal geography hascompletely changed. Individual crime

116

hardly exists. The organisation forcefully
broke in the criminal world and by now any
criminal activity has its own structured
shape ranging from the exploitation of
prostitution to the illegal immigration,
trafficking of arms, illegal waste disposal,
industrial or financial espionage, computeroffences.
This updated notion of organized crime
includes those criminal associations whoseorganisational structure is not only aimed
at implementing the group’s criminal plan,but it further reflects a global purpose
which goes beyond the criminal activity
and aims to achieve more power. In thisrespect, their common basis is founded
upon the business logic of profit-gaining,of enrichment and of the illegal markets
with the resulting (firm-like) highly
developed organization. In this respect, theMafia type conspiracy is regarded as
prejudicial to the economic public policy.
It is known that the operational featuresof today’s organized crime - Mafia type or
not - have developed as a result of the
globalization of both legal and illegal
markets and of the abatement of frontiers
according to a pattern based upon two
guidelines:
(i)

(ii)

the first one includes the increasei n a s s e t a n d c a p i t a l i n t e rexchanges due to the developmentof computer science and themobility of offenders on territories;
the second one marked byinterconnections among criminal
aggregates which in the past wereseparated and unrelated.

Such a reality leads analysts to refer toan integrated criminal systemcharacterised by a transnational natureand by its heterogeneous elements.

116TH INTERNATIONAL TRAINING COURSE
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The transnationality of organized crime
is a feature other than its internationality.
By the latter term, in fact, we mean thefact of a criminal group operating not only
on the territory of the country where it
arose and performing its activity alsoabroad. The former, instead, refers to the
co-operation established by criminal groups
among themselves so as to manage somecriminal markets more profitably.
The international scientific community
proposed various patterns to achieve adefinition of the organized crime notion
which may be agreed upon and accepted.
A phrase was used, for instance - more asociological than a legal one andexceedingly restrictive - identifying
organized crime “ as the group of people
steadily devoted to the commission of
offences against property or of offences
affecting the economy and provided with acomplex organisation in which costs,
profits, re-uses, investments are planned ina manager-like prospective so as to allow
these groups to achieve advantages within
the illegal market” (World conference ofministries of justice on internationalorganized crime, 1995).
By the way, I believe it is meaningful toremark that, at a European level, a
discussion is still under way on this issue,
i.e. the definition of a common notion oforganized crime and the resulting
identification of the behaviours expressedby it - an issue being indeed crucial withrespect to the path towards the
harmonisation of E.U. rules.
In fact, along with Mafia-type
criminality and often intertwined with thislatter, two more types of criminal activity
work on a large scale, spread out in nearly
all Member States, whose organisation ispossibly more efficient than the Mafia’sitself and also more capable to interact withgovernmental sectors and to affect the legal

economy: i.e. political - governmental
corruption and the illegal lobbying. Thereis a widespread opinion that the entangled
mingling of licit affairs, illicit affairs andcriminal affairs is the fully-fledged element
distorting the legal economy.
The first need highlighted by the Action
Plan against organized crime, adopted by
the European Council on April 28th 1997 i.e. to make membership of a criminalorganisation prosecutable in the legal
system of each Member State - wassatisfied by the adoption of a Joint Action(December 21st 1998) thanks to the efforts
made by the High Level Group establishedwithin the Council General Secretariat toprovide technical support with regard to
the implementation of the Plan’s politicalcontents. The Joint Action provides adefinition of criminal organisation andcompels Member State to make it acriminal offence to participate in thecriminal organisation ensuring that one orboth of the types of conduct are punishable,
i.e. the Italian-like pattern of participationand the common law “conspiracy” pattern.
According to the European Union
situation report on organized crime,
presented in Brussels on November 6 th
1998, the term “organized crime” stands for“a wide range of phenomena with manydifferentiations in types of activities,
markets, people involved, crimes
committed, levels of organisations and otheraspects”. This make it difficult, if not
impossible - according to the Report - todepart from a definition of organized crimethat is commonly accepted and covering all
its relevant manifestations.
The economic aspect, and generally thedrive to accrue resources by any means, isthe key aim, not to say the only one, which
explains the strategic and tactical choices
made by any kind of criminal organisation.
Yet the possibility to make profits is not

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enough by itself; it needs to be supported
by a favourable environmental situation
which can be defined a governmental andeconomic - financial vulnerability.
Economic and financial vulnerability islinked to low competitiveness andefficiency. Governmental vulnerability
arises when the country’s economic
competitiveness and development are notensured by the institutions andgovernment bodies responsible for thesafeguard of citizens’ rights, the settlementof disputes and, in general, the compliancewith laws.
In this respect, criminality paves theway for imposing its own non-economic andillegal instruments in the sectors of
production and exchanges. Thus, theenvironmental vulnerability becomes arequirement to establish and spread out
various criminal activities.
The illegal economy is on the increase,meaning by that all the exchanges andproductions whose relations are disciplined
by rules other than - and often opposed to the institutional ones. The illegal economy
due to the organized crime is made up by
those illegal exchanges where either of thetwo players belongs to a criminalorganisation. The illegal economy can takevarious aspects and concern both the“trading” and the “financial” part of thesystem: for instance, drugs manufacturing
and trade, illicit trafficking of goods andpeople, loan-sharking, unauthorised credit,
money laundering.
The action of the organized crime insome sectors of trading and financial
economy results in the increasing
distortion of the economic milieu and,inevitably, of the society and public life as
well. A wicked situation is thus started:the environmental vulnerability helps the
distortion caused by the organized crime

118

which in turn further impairs theenvironmental context.
In the light of the economic analysis, theequation “economic development = legality”
proved to be out-of-date and erroneous
since the ratio is to be definitively reversed:
there can be no economic development
without legality. Criminality, indeed,
prevents the development of a healthyb u s i n e s s a n d i n v e s t m e n t a c t i v i t y.
Conversely, where private and public
investments are not supported by a legal
background, the risk is high for the flow ofresources to be ineffective and to even feed
the activities carried out by a spreading
criminality. The economic principle has
recently stressed the key role played by
security and trust with a view to the growth
and the good operation of the market
economy regarded as a set of rules andprocesses allowing an efficient productionand exchange of resources within adeveloped and democratic society.
Transactors’ security and trust are based
upon the belief that there exist complex
standards ensured and monitored bygovernmental institutions (the judicial one
mainly) which guide the behaviours, settle
the conflicts of interest, and sanction unfair
conducts. A threat to the ordinary
development of economy is posed by thequantity, but mainly the quality of the illicit
and criminal actions committed in thisfield. Indeed, the rejection by single
individuals or complex organisations of therules of legal economy implies two different
layers of dangerousness: the mere
infringement of laws; the replacement oflegal processes by other illegal rules andprocesses which wrongdoers provide toautonomously sanction if they are notcomplied with.
Unfortunately, to explain (micro andmacro) criminal phenomena, thesociological-criminological approach has

116TH INTERNATIONAL TRAINING COURSE
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always prevailed over the economic
approach (or at least it was useful to makeit prevail), the former basically connecting
the deviating behaviour to psychological or
physiological features so as to blame either
the single individual or the society.
The economic analysis of crime, instead,takes account of individual tendencies andexplains that anyone can commit a wrong
on the basis of a reasonable cost-benefit
assessment. The person who infringes thelaw expects a clear benefit out of his action.
The offence (think of corruption, forinstance) turns to be almost physiologicaland related not to genetic anomalies,
personal or environmental situations, but
to a range of variables outlining theopportunities and the ties upon which one
decides to commit licit or illicit actions,according to convenience. These variables
can be grouped in two main sets
respectively connected to:
(i)
(ii)

efficiency of governmental
institutions, namely justice;efficiency and equity with regard
to the production and allotment of
resources and market
transparency.

Governmental institutions therefore
have the responsibility to ensure citizens
the competitiveness of goods and services
markets, the transparency of capital andemployment, the efficiency of criminal
jurisdiction in the fight against the offences
pertaining to the economic organized crime
and to the public administration, theefficiency of civil jurisdiction, the safeguardof rights and the settlement of disputes
with special reference to company andbankruptcy law. Consequently the legal
system’s inefficiency is a cause of denial ofjustice, but it also hampers thedevelopment and poses considerable
problems with a view to the European
integration.

II. DRUG TRAFFICKING: MAIN
PLAYERS AND ROUTESThe considerable availability of data on
drugs trafficking allows the developmentof a complex discussion which makes it
easier to understand the profitability ofdrugs production and trade and, as a result,
the reasons for its spreading and steadyincrease. From 1980 to 1996, seizures of
opiates have increased five times as muchwhilst the seizures of cocaine ten times asmuch (Data are drawn from the report of
the International Narcotic Control Board INCB - of the United Nations and they referto 1996).
Experts generally believe that seizures
affect 10% of the trafficking at best,
meaning that in fifteen years the
production, the trafficking and, supposedly,
the abuse have increased proportionally.
Three widespread types of drugs can be
identified: cannabis, cocaine, heroin.
A. Cannabis
Mexico is the leading source country
with 7000 tons of marijuana per year
followed by the USA (3000 tons per year;
huge quantities of the most valued quality- the sensimilla - are produced in
California), Canada, Colombia and otherminor countries. It is also grown in many
African countries with a massive
concentration in Morocco.
The retail cost of “soft” drugs in Italy
ranges from 7 - 10,000 Lire per gram ofmarijuana to 12 - 15,000 for some goodquality hashish. It can be reasonably
inferred that the wholesale cost is about
two million lire per kilo in the
Mediterranean market. Thus, theinvestment’s return is low: about 9 times
the initial investment.
Morocco is a major supplier of cannabis
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RESOURCE MATERIAL SERIES No. 58
another source country. Albania isdeveloping into a major source country ofherbal cannabis for Hellas and Italy.
Smuggling takes place in lorries, vans andcampers and by sea in trawlers and yachts.
Central and Eastern Europe is a transit
region for cannabis destined for theMember States due, to a certain extent, tothe use of the Balkan routes for cannabis
trafficking from Turkey.
Over 90% of cannabis resin seized in
Spain in 1997 originated from Morocco andmost was in transit to other Member
States. Groups from various Member
States have set up bases in Spain tofacilitate trafficking towards theircountries and in 1997 the Spanish
authorities identified criminal groups fromthe United Kingdom, Germany, Italy,
France, the Netherlands, Belgium,
Sweden, Denmark, and Austria operating
within Spain.
B. Cocaine:
Main producers are Peru, Bolivia,
Colombia (main producer of cocaine
destined for the Member States; here thenational plans to reduce the cocacultivation have not been very successful),Brazil and Ecuador covering 90% of theworld exportation.
In Italy, recent data on the organisations
involved in the international drugs
trafficking show substantial returns, about
611 times its purchase value. This is also
due to the processing of the pure substanceallowing to triple the quantity of the goods(failing to comply with such a limit, theproduct’s yield would decrease). Fivehundred kilos of leaves are needed to obtain
one kilo of cocaine.
To the traditional routes used for the
trafficking of these drugs (such as that of
the Caribbean: Bahamas - Caribs - Florida;
the European route through the120

Netherlands) many others have been addedin progress of time towards Europe: Brazil,
Argentina, Venezuela, Morocco, Tunisia,
Algeria, Ghana, Nigeria.
The trend is to traffic small quantities
rather than many-ton cargos although thisdid not result in a decrease of the cocaine
seized. The transit role of Central andEastern Europe is increasing. Colombian
groups co-ordinate and monitor the arrivalof cocaine in the region and the subsequenttransport overland to the European Union.
This has led to the tendency to either“bypass” ports in the Member States or to
use them only for transit purposes with aview to unloading the drugs in ports within
Central and Eastern Europe. These ports
often lack qualified staff and technicalequipment to carry out assessments on the
cargo. Analysis shows that increasingly
non-existent Central and Eastern
European companies are registered asconsignee of the cargo.
The Iberian peninsula is also a gateway
for the transport of cocaine to the Member
States. In terms of quantity most cocaine
is smuggled by sea although planes are themost frequently used means of transport.
There is a major difference, largely due tohistoric and linguistic ties, between the roleof the southern part of the European Unionand its Nordic Member States in respectof cocaine trafficking. Whereas the amountof cocaine seized in 1997 in the Iberian
Peninsula was 21,581 kilos, the total
quantity in Denmark, Sweden and Finland
was only 92 kilos.
C. Heroin
Opium production has increased in the“Golden Triangle” (Myanmar, Laos andThailand) and in the “Golden Crescent”(Afghanistan, Pakistan, Iran) as well as in
Lebanon and Mexico. To the traditionalroutes (Bangkok - USA - Europe - Oceania;
Hong Kong, Nigeria, Turkey, Greece, Italy

116TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS- the so-called “Balkan route” i.e. former
Yugoslavia and Albania) others have to be
added: the Baltic route made up by someEastern Europe countries; the Africanroute for the transit of heroin flows
originated from Asia and directed toEurope and northern America.
The profitability is exceedingly high:about 1700 times its initial value. One kilo
of pure substance produces up to 15 kilos
made up by 50 mg doses which are sold in
Italy between 30,000 and 50,000 Lire.
About 80% of all heroin seized in theEuropean Union originates from SouthWest Asia. Afghanistan is one of the world’s
leading opium-producing countries with anestimated volume of 1265 tons in 1997
resulting in 134 tons of heroin. Opium
production in Colombia is some 66 tons
resulting in 6 tons of heroin.
Morphine base is transported fromAfghanistan via Iran to Turkey forprocessing into heroin which is thensmuggled - by sea and overland - into theMember States increasingly throughAlbanian traffickers putting a great dealof emphasis on Austria as a country of entry
into the European Union.
D. Synthetic Drugs
As to synthetic drugs, their abuse has
increased faster than any other drug andthe European Union is one of the world’s
major production regions of amphetamineand ecstasy type stimulants, with largescale production being controlled bycriminal groups.
Most amphetamine seized in theMember States originates from theNetherlands, Belgium, the United
Kingdom and Germany whilst the Czech
Republic, Poland, Bulgaria and the Baltic
States are major source countries fromoutside the European Union. Productionin Central and Eastern Europe is partly

destined for the European Union, withGermany often being used as a transit
country in particular for the northern
Member States.
Long-term strategic alliances between
criminal organisations create a bridge to
new markets, undermine the position ofcompetitive groups and reduce the costs forinvestment, as well as the risks. Also theyguarantee a constant supply of criminal
goods to those who already have access tothe market. Some alliances such as theones between Colombia criminal groups
and the Italian Mafia, and between the
Italian Mafia and Russian groups, havebeen known for years. However, more
recently a Colombian-Russian strategic
alliance was identified. Colombia groups
have forged links with Russian groups
which supply military equipment including
AK-47 assault rifles and shoulder-fired
missiles in exchange for cocaine which isallegedly transported to Russia and to
Member States.
One characteristic of the higher echelonsof organized crime, including those
involved in international organized drugtrafficking, is the level of sophistication
used. Criminal groups have developed, andto a large extent depend on, expertise incomputer technology, financial techniques,money laundering activities and otherforms of economic crime and they havegained a prominent position throughmaintaining a sophisticated high-techglobal communication and logistics
network, whilst at the same time making
use of legal and financial experts.
As it results from the findings ofinvestigations, the use of experts by thesmuggling organisations is also prominent.
Trafficking of cocaine towards theEuropean Union is dominated by a small
number of criminal groups from Colombia,
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RESOURCE MATERIAL SERIES No. 58
the increased production of cocaine in the
country itself, are expanding theiractivities. In cases of the trafficking oflarge amounts of drugs the groups operate
in a temporary “joint venture” construction.
This enables them to set up logistic andtransport facilities, to spread the risk andto guarantee an appropriate infrastructure
for large-scale cocaine distribution. The
groups have created a network of cells inseveral Member States which are closelyinter-linked and engaged in the
distribution of cocaine once the drug hasentered the European Union. The cells
maintain firm links with indigenous groups
who are engaged in the further
distribution.
The splintering of traditional large scalegroups and the use of “sub-contractors” notwithstanding the spreading of the risk
- means a certain loss of control and coupledwith more people being involved makesorganized crime groups more vulnerable tolaw enforcement activity.
Transportation of drugs has always
proved to be a problem to organized crimegroups. Routes are ever changing recently
and the cessation of the Yugoslav civil wars
has allowed increased activity along the
traditional “Balkan route”. The close
proximity of places of production ofsynthetic drugs to the consumer markets
eases distribution problems. This allows
organized crime to limit investments inresources needed to set up complex routes.
There is an emerging trend of “subcontractors”, in which criminal groups
hand over part of their activities to otherswith a view to spreading the risks.
Independent groups offer their services toany criminal group. Others who own a fleetof ships offer transport facilities,
irrespective of the type of drug and countryof origin or destination.

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Organized crime in the countries of theformer Soviet Union (the so-called Russian
Mafia) is constituted by a myriad ofcriminal groups (over 8000) of different
origins and not always linked among them.
It is characterised by the urge to prevailover the countries of the Eastern Europe(Bulgaria, Hungary, Czeck Republic andPoland). Some recent investigations, yet,
led to the existence of a body standing
above the small groups.
The criminal organisations of the former
Soviet Union have huge finances mainly
acquired by means of the “privatizations”
followed to the change in the domestic
political scenario. Currently, the so-called
Russian Mafia controls over 50% of thebanks of the former Soviet Union (thethirty bankers murdered in the latest years
are a clear symptom). Criminal actionscommitted in Italy by citizens of the former
Soviet Union - which have been found attrial - are characterised by (information
source: Mafia Investigations Bureau,
November 1998):(i)availability of outstanding
finances;(ii) seeming lack of contacts with
Italian criminal organisations;(iii) average young age of people
involved.
Links between traditional Mafia typecriminal associations and the Russian
Mafia were found. Namely, with reference
to purchases on the black market, membersof the ‘Ndrangheta and Camorra and Mafia
gangs purchased exceeding quantities ofroubles turned into a different currency on
the international markets with a view to
re-investing them in the purchase of realestate and companies in Russia.
Turkish criminal groups have engaged
Central and Eastern Europe groups in the
trafficking of heroin towards the European

116TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Union, Cape Verdians in intra-EU
trafficking and domestic groups in the
distribution at wholesale or street level.
Turkish organized crime remains an active
force in the trafficking of heroin throughout
most of the European Union and has been
identified as operating in twelve Member
States. The groups have developed strong
relationships with indigenous criminal
networks and the distribution of heroin isoften achieved through local groups. Thisvariance illustrates the ability of Turkish
criminals to adapt to local circumstancesand requirements.
The proximity to traditional opium
source countries (Iran, Pakistan,
Afghanistan) and the bridge position
between the Christian Western world andthe Islamic East marked the role played
by Turkey in progress of time as a transit
country in the heroin trafficking directed
to Europe (to Germany, Holland, France,
Austria, Belgium, the United Kingdom,
Sweden, and Italy as well).
The so-called Turkish Mafia has no
pyramid-like structure. It is constituted
by several criminal groups, each with ahigh number of associates belonging to a
family-based structure. Some “families”
are made up by persons of Kurdish ethnic
groups (Turkish, mostly Iranian, Iraqi and
Syrian) and are also involved in the drugs
trafficking whose proceeds are mainly used
for the so-called Kurdish cause, that is theliberation of Kurdistan. Prosecutor ’s
Offices in several towns, mainly inn o r t h e r n I t a l y, c o n d u c t e d m a n yinvestigations which stressed the unsteady
operational links between the Turkish
Mafia and Italian Mafia type criminalorganisations among which the ones
named “Cosa Nostra” and “Camorra”.
A special focus must be placed on thevarious Slav ethnic groups scatteredthroughout the national territory andresponsible for the distribution of heroin
originated from Turkey and Eastern Asiaand helped by an extensive availability offellow countrymen illegally immigrated.
The trend of this new threat can also beassessed through a compared analysis of
the experiences in other European
countries: actually, in Germany, Austria,
Slovenia, Hungary and Romania thesituation seemingly outlines some patterns
which can be found in northern Italy since
the storage of the heroin directed to central
Europe in Hungarian, Romanian,
Bulgarian and Slovack cities is managed
by Albanians in close connection with
Turkish people and fellow-citizens
responsible for the trafficking also in thedestination site.
In this respect, Albanians originatedfrom Kosovo manage and control the
Balkan route, on behalf of the Turkish yet
increasingly autonomously, in all steps ofthe trafficking. Albanian Kosovarorganisations play an ever-growing role inthe distribution of drugs in Italy,
Switzerland, Germany and in the UnitedStates. They are also becoming establishedin London where about 6000 of them canbe found. It is a successful criminal
network which has recently prevailed overany other criminal form by peacefully
settling along with indigenous traditionalgroups step by step, and assisting them onan equal basis.
Although these criminals adopt a
predator-like approach - since they are
simultaneously involved in drugs
trafficking, burglaries and prostitution the primitive and unusual nature of theirattitude makes them dangerous,
unforeseeable and aggressive. Moreover,
the religious factor amounts to an
unprecedented uniting element among
Albanian associations and between thema n d t h e Tu r k i s h o n e s , t h i s l a t t e r

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RESOURCE MATERIAL SERIES No. 58
strategically controlling the interests
connected to heroin.
On the one hand, the drugs trafficking
is fed by the spreading of the Indian hemp
cultivation in Albania yet, on the other
hand, the strong links with other criminal
entities in the Balkan area and in Middle
East make it increasingly dangerous.
Bulgaria is a punctual example. Thiscountry has attracted internationaltraffickers of heroin and arms who benefit
from a mild legislation brought about by arecessive economic situation.
The recent upheavals in the former
Yugoslavia also contributed to bring aboutchanges in the heroin routes and in thelabour used by smugglers. A frequently
used route departs from Sofia to Skopje(MKD), hence it carries on towards Tirana.
From Albania, the drugs reach Italy
through the fast motorboats also used in
the cigarette smuggling which cross the
Adriatic sea in a few hours and with low
risks.
With a view to assessing the skills of the
Albanian criminal organisation and theircapability to establish connections with
Apulian organisations operating inMontenegro, it is important to consider anagreement reached by them. According tothis agreement, Albanian ships carrying
illegal immigrants and women destined toprostitution, as well as marijuana andarms, dock along the Apulian coast southof Brindisi in order to avoid interferencewith the cigarette smugglers who exploit
the area north of Brindisi for ships comingfrom Montenegro and to avoid thestrengthening of police controls and theresulting damage to the detriment of that
trafficking.
Albanian organisations also traffic inhome-made marijuana. In southern
Albania, indeed, the cannabis indica

124

cultivation is a mass phenomenon and it is
not subjected to any control. Greenhouses
have been arranged where Indian hemp
ripens remarkably so obtaining a very highactive principle. This production achieved
an “epidemic” size, to quote the words usedby the Prosecutor General of Albania in asurvey on the situation.
Some investigations led to findtrafficking of Albanian marijuana directedto Holland in exchange for cocaine meant
for the Italian market. A few years ago thiscircuit had a low impact, yet today the typeand volume of the illicit trafficking
involving single individuals and Albaniancriminal groups (drugs and arms
trafficking, exploitation of prostitution,
kidnappings for ransom, thefts androbberies, smuggling of tobaccos processedabroad, forgeries) allow us to affirm that
the Albanian organized crime can be
included among the prominent criminal
phenomena, also due to its international
connections with partner organisations
operating in Italy.
In Italy, the Colombian cartels of Caliand Medellin - which have the availabilityof appreciable financial resources - havelogistical centres which carry out drugs
businesses with Italian organisations andattempt to implement the ultimate stepsof refining on our territory.
With a view to a comprehensive analysisof this phenomenon, two levels of drugs
trafficking must be distinguished. When
big quantities are at stake, the Colombian
cartels usually perform a drugs collecting
function also in other source countries
dealing with the management until therequesting market. The Mafia families
based on those territories ensure theperformance of business operations.
The cocaine shipments basically takeplace by sea, along routes used for a long

116TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
time: some of them reach the United States,
Canada and part of northern Europe,
namely Belgium and the Netherlands,
hence the goods are distributed in the restof Europe. Other shipments originate fromharbours in Venezuela mainly directed toSpain, which is the preferred country due
to the linguistic and cultural proximity andto the existence of well-rooted criminalbases where significant quantities are
stored while persons living there provide
to ship them overland.
As to lower quantities, the Mafia
families are not interested in the mediation
because of the commercial travellers - i.e.
Colombian citizens belonging to structuresother than the cartels - who ensure an
immediate supply. In such cases, small
quantities are transported from theoriginating countries to Italy by plane andthere is an increasing use of Nigerian
persons as couriers; these persons arearranging real structures located in Italy
and connected to their accomplices basedin Latin-American countries.

criminal organisations originating fromother countries or that they were lowprofile players in a pushing activity selfmanaged or controlled by local traffickers.
Then a reversal of trend was recorded andother African people were increasingly
arrested because Nigerians - who had
developed their importance and theirbusiness volume - had started to use themas couriers in their place so as to lead thecontrols astray.
The impact of this new criminality on
drugs trafficking was the focus of aworrisome discussion held in Abuja(Nigeria) from 18 to 22 May 1992 during
the meeting of the representatives of theAfrican drugs services (HONLEA) who
were aware that the inadequate law
enforcement system of local police forces
had a negative impact on the international
community.

In some cases, subject to the principlesof the micro-market, cocaine is barteredwith heroin or arms depending on theneeds of consumers. With regard to theactivities carried out by the Nigerian
criminality in the drugs field, theirorganisational framework and theirspreading in Italy lead us to affirm that
Nigerians have no hierarchical structure,
yet they amount to a set of groups madeup by cells connected among them.

Nigerian organisations are mainly madeup of persons of Ibo or Yoruba ethnic groups
and they are involved in the heroin andcocaine trafficking; their wide scope
extends to various countries: consumer
countries such as Germany, Spain,
Portugal, Belgium, Romania, United
Kingdom, Austria, the USA, Croatia,
Slovenia, Czech Republic, Hungary,
Ukraine, Poland and Russia; source
countries (Pakistan and Thailand) ortransit countries (Turkey, India andBrazil). In Italy, the areas mostly affected
are Naples, the coasts of Campania and thearea around Rome.

On an international scale, only in themid ‘80s’ did Nigeria show the firstalarming forms of organized crime. Since
the first arrest - which goes back to 1987 the interception of Nigerian couriers
carrying drugs consignments has been
dramatically increasing up to 1990.
Consequently, Police forces were convincedthat they worked as low-cost labour for

Another foreign organisation active in
Italy - although with a different degree of
integration with domestic crime - is the
Chinese one. The Triads, operating into
the Chinese settlements in Tuscany and
Lombardia, control the illegal immigrationand some economic activities such as
restaurants, leather and textiles
processing. Chinese communities are

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RESOURCE MATERIAL SERIES No. 58
family-based organisations and therefore
they prove to be resistant to external
infiltration and dominated by the law ofsilence so much so that any possible control
by the police is hardly feasible.
Data relevant to immigration show thatin Italy the Chinese community is mainly
constituted by citizens of the People’s
Republic, whilst Taiwanese and citizens ofHong Kong and Macao can be hardly found.
Yet their limited number must not lead tounder-evaluate their dangerousness due tothe fact that some of the strongest “Triads”
are based in Hong Kong, Taiwan andMacao. A kind of expertise in theinternational drugs trafficking by citizens
of Hong Kong has been repeatedly
reported, here the Triads have a strong
presence. Reportedly, these organisations
are connected to the “Golden Triangle” andhave a growing influence in the southernChinese provinces. In the Member States,
Chinese ethnic groups are involved in the
production of ecstasy and in the drugs
trafficking towards the south east of Asia.
In the light of the aforesaid, there exist
grounds to affirm the co-operation and/or
the existence of business relations between
them and the Chinese criminal groups in
Italy. The action of the traditional criminalorganisations (Mafia, Camorra,‘Ndrangheta, Apulian crime) is limited - asto the distribution in Italy - to big
quantities upon the importation as
mediators in the import-export activity.
In the most recent years, the mediationrole played by Italian criminal groups inrespect of the drugs trafficking favoured a
sharp increase in the relations with similar
foreign organisations skilled in the
production and distribution of drugs andin the laundering of illicit proceeds. This
was also brought about by theintercontinental scope of arms and drugs
markets: the need to transfer outstanding

126

sums of money abroad in settlement of theillicit consignments. In many foreigncountries, significant communities of
migrants have been keeping close
relationships with the originating families
in progress of time which gave momentum
to the management of the various Mafia
interests.
Investigation conducted as of 1991
identified and affected some company-likestructured organisations, mainly fromCalabria, which had the availability of the
primary supply channels and skilfully led- together with the producing Colombian
cartels and the mediation of other Mafia
groups - the import, transport, clearance
through Customs and distribution by
exploiting an extensive network ofcomplicity while carrying out skilledtransactions to launder the proceeds
through the banks.
Recent inquiries conducted by theDistrict Antimafia Prosecutor’s Office in
Naples found that the Camorra groups
which traffic the drugs are the same as
those which traffic trade mark-forgedclothes (the so-called “magliari”) by meansof the same distribution channels,
especially towards Germany and theEastern European countries.
Apulia is the natural destination for thesea traffic originating from the Balkans
and the Middle East and can be regarded
as a meeting point of the Mafias due to its
traditional willingness to provide criminal
services to the benefit of non-regional andnon-national Mafia organisations - itfrequently was a reference point for illicit
trades among Serbia, Albania, Macedonia
and Montenegro aimed at by-passing theembargo ordered to the detriment ofSerbia.
The Apulian coasts, the core function
performed in respect of the routes of the

116TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
trafficking of drugs and arms originatedfrom Eastern Europe, the mediation
between the Italian and the Albanian crime- which by now have established interactive
and systematic contacts - led to a fastdevelopment of the Apulian crime
according to a pattern which include
gangster-like and Mafia features.
Mafia’s estimated all-embracing
capability throughout our territory
undoubtedly delayed a full awareness ofthe problem related to the infiltration in
Italy by foreign criminal groups (Slavs,
Turks, Colombians, Nigerians). Actally, inthe originating areas, the traditional Mafia
organisations still keep a full control of theterritory and there is no room for others,
save for co-operative and subordinate roles.
Yet in northern Italy, namely in
Lombardia and Piedmont - major centres
for illegal activities on a national andinternational scale, mainly in respect of thedrugs trafficking and the resulting
laundering of the proceeds - the integrated
criminal pattern I was referring to isasserting itself. A pattern in which thevarious Mafia groupings peacefully sharecommon interests and prefer economic
interests to the traditional control of theterritory and lay the foundations to hostnon-national organisations.
At first the Slav, Turk, Colombian and
Nigerian logistical centres was aimed at an
operational agreement with the Italiangroups for the drugs trafficking, yet by now
it represents the embryo of a more rationaland systematic penetration into the Italianillegal market. The strong criminal
repression implemented in the latest years
to the detriment of Sicilian and Calabrianorganisations - this latter detaining anearly monopolistic power on the drugs
trafficking - left unexpected room to foreigngroups which in the past were restricted
in a subordinate position. The overall

outline is therefore exceedingly unstable.
The competitiveness to conquer new spaces
brings about steady unrest among criminalgroups resulting in uninterrupted clashes,slaughters and new alliances.
III. INSTRUMENTS AND
COUNTER-MESURESThe seriousness of the criminal
phenomenon of the international drugtrafficking poses the priority need for aneffective unitary international strategy
divided into five areas of action alreadyclearly indicated by the Convention ofVienna of 1998 as supplementary andindispensable:(i)action against the production
sources and the first rings of theorganized crime chain running thistrafficking;(ii) fight to the smuggling of the socalled “precursors”, i.e. those
substances needed in the chemical
processes to manufacture drugs;(iii) a c t i o n a g a i n s t r e t a i l e r
consumption;(iv) i n t e r n a t i o n a l m u t u a l l e g a l
assistance(v) fight to the money laundering of
the drug trafficking proceeds.
In Italy the debate on the drug problem
is hot, namely with reference to thetreatment of the consumer (swinging from
repression to rehabilitation) and to thepossible amendments of the current legal
system. Italy is one of the leading countries
in the pursuit of such unitary international
strategy which is unfortunately a long way
from being implemented notwithstanding
the efforts and the steady contacts among
judges, prosecutors and judicial personnel.
I will focus my discussion on the criminal
repressive system regarding the offencesof drug manufacturing and trafficking and127

RESOURCE MATERIAL SERIES No. 58
I will leave out the current regulation of
the consumer treatment. Following to arepealing referendum held in 1993, drug
possession for personal use is no longer acriminal offence, it is a wrong punished byadministrative sanctions applied by theprefect (suspension of driving licence, oflicence to carry firearms, of passport, etc.).
Notwithstanding the repeal of 1993 which partly resumes the principle ofdifferentiated strategy which characterised
the old law of 1975 based upon the
distinction between trafficker, petty pusher
and consumer - the current legislation
mainly referring to the D.P.R. no. 309/90
has strongly repressive features. The baseprinciple in force after the referendum of
1993 is the following: irrespective of thequantity, drug possession for the purposesof pushing is a criminal offence whilst drug
possession for personal use is anadministrative wrong.
Criminal repression of drugs can bedivided into two major crime categories:
(i)
(ii)

the offences of drugs
manufacturing and trade;the offences of assistance orincitement to drugs use.

The system is made up by two criminal
categories distinguished by the individual
nature (article 73 D.P.R. 309/90) or theconspiracy nature (art. 74 D.P.R. 309/90)
of the criminal conducts. Each of these subgroups provides for different sanctions
based upon the nature of the controlled
substance depending on whether it is aheavy drug or a soft drug (thisdifferentiation had been previously
identified by the law-maker in appropriate
tables attached to the law which can beamended or supplemented in progress oftime). Sanctions punishing the conducts
pertaining to the heavy drugs are
considerably more severe.

128

Within the individual category, two typesof criminal conducts can be listed:
(i)

(ii)

the activity of drugs
manufacturing and trade without
governmental authorisation;
the same activity performed
having obtained the governmental
authorisation but infringing its
provisions.

The core rule set out under article 73
DPR 309/90 covers the individual conducts
liable to criminal sanctions under a single
provision. They pertain to alternative
criminal model situations and thus toautonomous offences possibly committed incomplicity and possibly linked bycontinuation (the pursuit of the same
criminal design). The law provides for thefollowing unlawful conducts:
(i)
(ii)

growing
production, manufacturing,extraction, refining(iii) offer or placement on sale (themere affirmation to be able toprocure drugs is punished)(iv) giving or sale (as to the former, aconsignment for free is punished)(v) distribution(vi) trade(vii) procuring to others (mediation)(viii) import and export(ix) passing or shipping in transit(x) possession, not for personal use ofcourse (material availability).
Such sanctionative provision
operates as a common element
within the repressive system.

In applying this law, a special problem
is posed by a common behaviour that is thegroup use of drugs. Prevailing court
decisions held, in such cases, the complicityof all participants in the action ofpossessing the drugs purchased by eitherof them. Recently, yet, court decisions have

116TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
held that the personal use of the quantityof drug consumed by each of them amounts
to a mere administrative wrong save forthe criminal liability of the person who
procured the drugs for the common orgroup consumption.
Article 74 of DPR 309/90 sanctions theconspiracy for the purposes of drugtrafficking. Within the framework of thevaried approach arranged by the Italian
law-maker in order to adjust penalties tothe various degrees of seriousness of theoffences involved, the conspiracy ranks at
the highest level (promoters are liable to aterm of imprisonment not less than twenty
years; participants are liable to a term of
imprisonment not less than ten years).

(v)

person who works for the purposeof laundering illicit proceeds witha stable position within theorganisation;
participant (generic membership).

Sanctions do not take into account thetype of drugs involved in the trafficking
operated by the criminal organisation andtherefore it is the same with respect to both“heavy” drugs and “soft” ones. An
extenuating circumstance is merely
provided for in the - unlikely - case thatthe association is directed to commit“unimportant” actions. Special
aggravating circumstances are provided
when:
(i)

Such sanction was made mandatory for
Member States by the Convention ofVienna of 1988, it covers any kind of
conspiracy and is meant to repress any
form of intervention and participation in
the drug trafficking. It proved to beparticularly effective with regard to therepression of the drugs production andtrade, mainly to the detriment of criminalorganisations operating at international
level and it is frequently combined to othercrimes such as the Mafia type conspiracy
set out under article 416 bis of the Italian
Criminal Code.
Within this association the following
roles can be distinguished:(i)promoter (initiates the criminal
association);(ii) e s t a b l i s h e r o r f o u n d e r(participates in the setting up);(iii) arranger (co-ordinates the activityof associates and ensures theoperation of the structure);(iv) backer (invests capitals in thecriminal association); this role isconsidered similar to theinvestment counsel and to thethe association is made up by 10
or more persons;(ii) p e r s o n s a b u s i n g d r u g s o r
psychotropic substances
participate in it;(iii) availability of arms;(iv) adulterated or dangerously cut
drugs are involved in the illegal
trafficking.
A special extenuating circumstancebears significance rewarding the one who
made efforts to avoid that the criminal
action results in further consequences or
to provide evidence of the offence. This
provision is meant to encourage the person
to repent after the commission of theoffence and it can be applied to the conducts
listed under article 73 as well as to theconspiracy under article 74. According to
the law-maker’s intent, such extenuating
circumstance is directed to obtain a greater
effectiveness in the repression of theactivities connected to the drug trafficking
and assumes that a considerable reductionof penalty may favour a helpful cooperation so undermining the structure of
the criminal organisation which is difficult
to attack from outside.

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Implementation practices relevant to theoffence of conspiracy for the purposes ofdrugs trafficking posed a significant
problem in the identification of the court
having local jurisdiction. The choice madeby the law-maker to connect the local
jurisdiction on uninterrupted offences(such as the conspiracy ones) to the location
where the commission of the offence wasinitiated seemingly creates problems withregard to the association offences. In suchcases the identification of the jurisdiction
is no easy task due to the operational
structure - which is not always restricted
to a limited territory, but it frequently
branches across various territories - anddue to the “open” nature of theseassociations, always ready to receive newcontributions and memberships.
In the search of ways to reduce the riskof different interpretation by judges, court
decisions have seemingly disregarded the
traditional standpoint according to which
the commission of the conspiracy offence
initiated when the agreement among theparticipants was reached, the achievementof the association purpose being
unnecessary.
By now, court decisions have steadily
held to favour the location of where theestablished structure is deeply rooted - thesite where each offence committed inpursuance of the association’s criminal
design being unimportant - and the location
where the association’s strengthening anddevelopment was achieved. Thesearguments are certainly valid with regard
to the Mafia type conspiracy - which isstrongly linked to the territory - but they
are hardly useful with regard to theconspiracy set out under article 74 of DPR
309/90. Here the decisions of the courts
vary significantly.
On this point, it is worth considering a
judgement recently pronounced by the130

Italian Supreme Court with reference to aprominent organisation involved in drugs
and arms trafficking at international level
whose leaders always met in different
countries to arrange their criminal
strategy, neither location prevailing over
the others as main site for the association’s
activities. The Supreme Court held theprinciple according to which - where acriminal organisation is made up by
various groups operating on a wide
domestic and foreign territory whose
connections to achieve the association’s
purposes are not related to the territory the main rule providing “the location where
the commission was initiated” and if
necessary the one referring to the “deeply
rooted activity” shall be disregarded.
Instead the supplementary rules set out
under article 9 of the Italian Code of
Criminal Procedure shall be considered(the ultimate site where part of the action
occurred, the defendant’s residence ordomicile, the venue of the prosecutor’s
office which initiated the investigation).
IV. UNDERCOVER OPERATIONS IN
RESPECT OF DRUGS AND ARMS
TRAFFICKING AND MONEY
LAUNDERING
Along with the substantive criminal
legislation, the law-maker also provided a
set of procedural provisions on drugs
offences capable to enhance theeffectiveness of prevention and repressionof the illicit activities connected to thedrugs trafficking. Such provisions concern
the investigative activity of law
enforcement forces, namely the law
enforcement national services (State
Police, Carabinieri, Guardia di Finanza,
Mafia Investigations Bureau) responsible
for carrying out co-ordinated inquiries onorganized crime.
Article 97 of DPR 309/90 introduces in
our legal system the undercover agent so

116TH INTERNATIONAL TRAINING COURSE
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allowing law enforcement forces to secretly
infiltrate inside the illicit circuit and also
provides the possibility of a simulated
drugs purchase in order to obtain evidence
as to the drugs offences without being liable
to criminal sanctions. This provision waslater extended -in 1992- to include
investigations on money laundering andthe result was a new legal excuse in respectof the undercover agent to facilitate thefinding at trial of money laundering and of
the re-investment of illicit capitals; with aview to this, the undercover agent favours,
if needed, the replacement and re-use ofmoney or other illicitly obtained goods or
benefits and is involved in the sale of arms,
ammunitions and explosives also in thecapacity of middleman.
The execution of such activities shall be
immediately reported to the competentprosecutor who - by way of a groundeddecision - is entitled to postpone the seizureof the money, property or other benefits orof the arms, ammunitions and explosives
as long as the investigation is completed
also issuing orders to keep them, if needed.
For the same investigative and evidential
purposes, article 98 of DPR 309/90 provides
the possibility to delay or forbear suchactions as the apprehension, arrest or
seizure so as to facilitate the identificationof the drugs trafficking main units. The
lawmaker took account of the great
obstacles faced in the investigations aimed
at finding this type of offences andidentifying their authors.
An active role of the law enforcement
forces has been cautiously provided in
respect of the functioning of specificoperations on matter of drugs and arms
trafficking and money laundering with aview to acuire evidence. In substance, law
enforcement officers are allowed not tointerfere with the traffickers cleaiming tobe purchasers, until the illicit transaction
has been materially executed.

This situation cannot be included in thescope of the undercover agent although thisbehaviour - which is not liable topunishment - has some common featureswith it. After lots of uncertainties, Italian
court decisions adapted to this matter thegeneral principles adopted on the issue ofthe undercover agent. Under the former
principles on the agent provocateur, theundercover agent’s exception of criminal
liability would require that he should not
go so far as to causally contribute by his
behaviour to the commission of thecriminal action which should not be causedby him and should be conceived andexecuted by the will of the trafficker or thelaunderer.
The role played by the undercover agent,yet, cannot be limited to an activity ofcontrol, surveillance and restraint of theillicit action of others; it must necessarily
involve the infiltration in a criminalorganisation, the enticement to sell and, if
necessary for the purposes of the successful
operation, in a range of other illicit
activities aimed at gaining the trust of thecriminal organisation and closely
connected to the trafficking for which theinfiltration is allowed. Therefore, thepurchase of drugs and arms as well as theuse of forged cover documents or the
carrying of unlawful arms cannot bepunished.
Because the introduction into theunlawful drugs and arms market and thecontact with the people involved imply
many risks - in terms of the agent’s possible
involvement and of his safety - the law
provides for a range of precautionary
requirements. The lack of either of theserequirements results in the loss of the legal
excuse.
First of all, agents are required to behighly and specifically trained. The
undercover investigation shall concern

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offences listed by the law. In case of
concurrence of crimes, of course, theoperation can legitimately take placeprovided that the offences which are beingcommitted include a violation of law on
drugs, arms or money laundering.
In respect of money laundering
operations, the responsible officers areallowed to receive and replace money, goods
or other benefits originated from Mafia
crimes as well as to act in such a way as tohamper the identification of their origin or
as to allow their use.
The power to order the delay in theexecution of apprehensions, arrests or
seizures falls into the jurisdiction of theprosecutor who co-ordinates the inquiries
and who authorized the undercover
operation. This provision can be applied
to the drugs and arms trafficking as wellas to the action against money laundering.
In urgent cases, this decision can be takenby the police officers involved who shallgive immediate notice, also by phone, to theprosecutor - who can validate the decisionor take different measures - and send him
a grounded report within 48 hours. In
respect of drugs, similar notice shall be sent
to the Direzione Centrale Servizi Antidroga(National Drugs Services Bureau) which is
responsible for the co-ordination ofoperations with police bodies from othercountries interested in the trafficking.
The two notices have different purposes.
The information sent to the prosecutor
ensures an immediate control on theoperation and can result in the adoption ofdifferent measures, if any, also in
connection with other prosecutors. In fact,
the prosecutor responsible for thesupervision on the operation shall givenotice to his partners of the measures
adopted by him, in respect of the in-coming
and transit sites on the domestic territoryand of the site where the operation is132

expected to be carried out so that they may
be able to control and take action in theirturn.
The information sent to the National
Drugs Services Bureau allows the adoptionof co-ordination measures among theactivities of the various bodies responsible
for control and investigation. These
activities are absolutely necessary, above
all in case of transnational controlled
delivery operations. The controlled
delivery was introduced in international
legislation by article 11 of the UN
Convention on drugs trafficking adopted in
Vienna on 20 December 1988, ratified in
Italy in 19905.
The judicial acts which can be delayed
are rigorously indicated by the law andinclude the apprehension, the arrest, theseizure of the corpus delicti and of thethings pertaining to the offence. The
reason for this postponement lies in theneed to acquire significant evidence or to
identify and apprehend the authors of theoffence. The reference to the need andsignificance of evidence highlights the
exceptional nature of this provision, whichshall be applied only when any otherinvestigative activity already carried out
proved to be unsuccessful or insufficient.
Moreover, the law allows police officers
to forbear or delay judicial acts falling into
their own jurisdiction other than the
5With regard to the exact notion of “controlled
delivery”, reference must be made to the definition
included in the Convention of Vienna (art. 1 G)
where it is indicated that the expression means “thetechnique of allowing illicit or suspect consignmentsof narcotic drugs, psychotropic substances to passout of, through or into the territory of one or morecountries, with the knowledge and under thesupervision of their competent authorities, with aview to identifying persons involved in thecommission of offences”

116TH INTERNATIONAL TRAINING COURSE
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apprehension and the arrest - i.e. searches- provided that immediate notice be sent
to the prosecutor. This power is also vested
in the Customs authorities that play amajor role in the control of theinternational illicit trafficking at frontiers,
ports and airports.
While the execution of such measures asapprehensions, arrests or seizures canmerely be delayed, in the cases listed above
the “forbearance” is also provided for. The
difference is explained by the fact that
judicial acts are necessary procedural
activities which can only be delayed, whilst
some police or customs acts can be forborne
without prejudice to the procedure.
Article 99 of DPR 309/90 regulates thesearch and apprehension of ships andaircrafts suspected to be used in drugs
trafficking. Under this rule, the Italianwarship or patrol boat crossing in
territorial waters or on the high seas adomestic ship (even a pleasure craft)suspected to carry drugs is allowed to stopit, visit and search its cargo, apprehend andlead it to an Italian harbour or to the closest
foreign harbour where a consular authority
can be found. The same powers can be
exercised on board non-national ships interritorial waters and, in compliance with
the international law regulation, also
outside the territorial waters. The
provision concerns aircrafts as well. The
reason for this significant enhancement of
the controlling powers vested in the law
enforcement forces lies in the fact that Italy
imports drugs and that vessels andaircrafts are the most frequently usedmeans of transport in this illicit trafficking.
Article 103 of DPR 309/90 extends to theGuardia di Finanza the power to control
and inspect in the premises subjected tocustoms control, a power which at first was
only vested in the customs authority;
moreover, it entrusts any law enforcement

force with outstanding powers to control,
inspect and search with respect to theactivities for the prevention and repressionof illicit drug trafficking also outside thecustoms areas. These provisions
undoubtedly increase the powers vested in
the law enforcement forces as to theprevention activity aimed at the detectionof drugs quantities.
Along with these specific provisions,with regard to the drugs offences – and tothe other organized crime offences alike the rules contained in the code of criminal
procedure provide more extensive
limitations as to the admissibility and theduration of telephone or computer tappingand electronic surveillance; it also provides
longer time-limits in the conduct of pretrial investigations and in the enforcementof precautionary measures on the person,
if compared with other offences.
In respect of procedural instruments,
moreover, it is worth noting the provisions
directed to enhance the prosecutor ’s
investigating powers. The Italian legal
system entrusts the prosecutor withautonomous investigative powers
combined to those of law enforcement in
the search of the report of offence as wellas the power to direct law enforcement
forces in the investigations. A special
propelling activity as to the intelligenceand investigations in the field of the fightagainst international drugs trafficking is
performed by the Procura Nazionale
Antimafia (National Antimafia Bureau).
Starting from information on the arrestof Italian citizens in foreign countries on
account of drugs offences, this Bureau
acquires any possible information relevantto the investigations under way in theforeign countries where the arrests havebeen made in order to take the appropriate
steps to propel and co-ordinate theinquiries in Italy on the persons arrested

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RESOURCE MATERIAL SERIES No. 58
and on the criminal organisations they
belong to, if any. In this respect, the Bureau
acquires the records originated in theforeign authority on the basis of which
reports had been made.

established by the Council of the European
Union through the Joint Action of 29 June
1998 in order to promote the judicial cooperation among Member States
V. CORRECTIONAL MEASURESOn the basis of these records, theNational Antimafia Bureau first makes asurvey of the overall information available
so as to obtain a comprehensive outline of
the facts and then possibly undertakes topropel and co-ordinate the investigation in
Italy. Investigations are specially initiatedto find out:(i)whether the person is currently incustody or has been released;(ii) which is the prosecuting foreign
judicial authority or law
enforcement office;(iii) which is the object and the stageof the relevant proceedings;(iv) whether there exist documents
already obtained as to the facts;(v) whether some features can bedetected being directly or
indirectly connected to money
laundering;(vi) any useful datum on the person
arrested.
Information obtained are entered into
the databank of the National Antimafia
Bureau and a control is simultaneously
made to find whether the reported persons
can already be found in the judicial records
previously entered into the computer
system so as to obtain a comprehensive
outline pertaining to each person.
This undertaking is bound to beenhanced since the Direzione Nazionale
Antimafia - which plays a leading role inthe co-ordination of investigations andprosecutions in the Italian proceduralsystem - has been identified by the Ministryof Justice as the central point of contact
within the European Judicial Network

134

Subject to the sacred rights of the person
who is in custody, the Italian experience
shows the importance of the legislation
relevant to the correctional field with aview to the fight against organized crime.
In the last decade, this system has
undergone multi-functional changes, adistinction has been made between
ordinary in-mates and in-mates linked toorganized crime and, within them, between
those who cut such ties (possibly cooperating with justice) and those who still
keep them.
Briefly, the Italian correctional system
is currently based upon three principles
corresponding to the three purposes of thesentence: punishment, re-education,
benefits. This multi-faceted system allows
a strategic approach in view of the needsin the fight against organized crime basedon a standard implying theindividualisation of the sentence dependingon the specific personal conditions of inmates.
It is necessary to prevent the mostdangerous people from keeping on directing
and managing the illicit activities also fromthe jail by way of contacts with the outside
criminal environment. In this respect, in
1992 - following to the Mafia massacres - arule was introduced into the Italiancorrectional system - Article 41 bis of thePenitentiary Law - aimed at efficiently
marking the differentiation among inmates referred to above.

116TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
A class of special in-mates wasintroduced, in respect of whom the law
allows to discontinue the ordinary
standards of treatment (periodical talks
with relatives, “social” activities inside thejail, contacts with other in-mates) due toserious public order and safety reasons
allegedly connectable to a close link
between those in-mates and the criminalorganisations they belong to.
Yet, the enforcement of this separate
treatment - which has a six-month durationand can be extended - is not left to thediscretion of the Correctional department
and therefore requires a necessary
computer-based co-ordination between the
Ministry of Justice and the prosecutors sothat the measures enforcing the special
correctional regime be adopted on groundsof established and adequately justified
reasons.
One of the typical traits of a Mafia typeconspiracy is the persistence of theassociation bonds even under custody.
Indeed, the subject under custody still
keeps the role played within theorganisation. This factual element was
unanimously and indisputably reported byany co-operating witness and highlightsthat - failing a clear choice to opt out of theconspiracy - the in-mate’s decision-making
power on the organisation’s action remains
unchanged. Moreover, when some of thein-mate’s tasks are temporarily assigned
to a person who is free to move, this isanyhow insignificant since the in-mate isconstantly informed of what happens
outside the prison and can fully andactively resume his role whenever he isallowed to by external conditions.
Indeed, it is proved that these links havean operational nature and, vis-à-vis theheads of the criminal association who arein custody, they constitute a necessary
requirement to keep the control over theillicit activities and, often, to preserve thecriminal structure itself. To the memberof the Camorra organisation, keeping
contacts with the outside criminal world isa rule which has no exceptions, a rule
applied on the occasion of meetings atrecreation times as well as during the talks
with relatives; they also use other in-mates’
talks with a view to a faster exchange of
information from the inside to the outsideof the prison.
Providing the grounds for the initial
proposal to apply the special detention
regime is undoubtedly simpler thanproviding the grounds to extend it: this isbecause, for the purposes of the first
application of the special custodial regime,
an adequate indication of the charges,
precautionary measures and convictions
imposed is sufficient since these measures
usually mention the role played by the inmate which shows his present social
dangerousness and the one he could
possibly exert inside the prison. For the
purposes of the special regime
effectiveness, it shall be restricted to thefollowing categories of in-mates:(i)heads, arrangers, promoters,
heads of the organisations set out
under article 416 bis of the Italian
Criminal Code and article 74 of
DPR 309/90;(ii) principals, arrangers, financiers in
respect of murders, massacres, etc.
committed by the use of theassociation bond;(iii) arrangers of the offences set out
under article 630 Criminal Code,aggravated extortion;(vi) authors of the above-mentioned
crimes when such a role is played
uninterruptedly and in a
professional way;(v) l i a s o n m e m b e r s w i t hgovernmental corrupted areas,
masonry, subversive or terrorist

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RESOURCE MATERIAL SERIES No. 58(vi)organisations, with foreign
military or political groupings
involved in subversive or terrorist
activities;
subjects involved in theinternational laundering of illicit
proceeds at high-ranking levels or
playing prominent roles.

The grounds provided to justify therequests and opinions on the extension of
the regimes already applied shallundoubtedly be stricter because the more
the need for the persistence of the special
custody regime is stressed, the stricter the
grounds accompanying such a request.
In these cases, in addition to theelements listed above, other different
elements shall also be indicated notdepending on the former. Mention shallbe made about these latter, an indication
which shall not be comprehensive yet
useful as an explanation. Namely, thefollowing criteria shall be stressed:(i)carrying on of the criminal
activities, the control of thet e r r i t o r y, t h e o p e r a t i o n a lconnections by the organisation
the subject belongs to (which canbe inferred from police
investigations);(ii) presence of prominent fugitives
belonging to the said organisation,with the resulting danger of
exchange of messages andinformation between theassociated members inside theprison and those outside;(iii) persistence of leading roles, or
anyhow outstanding roles, within
the organisations also following tothe onset of custody (which can beinferred from co-operating
witnesses’ statements, from theleading role played and/or
acknowledged at trials in courts);

136

(iv)

carrying on of supporting activity
also inside the prison which can beinferred from new affiliation
ceremonies, promotions, etc (asresulting from co-operating
witnesses’ statements, electronic
surveillance even inside prisons,and so on);(v) established activity of tamperingof evidence or attempts;(vi) any pending criminal proceedings
versus the in-mate and, if this is
the case, the court venues dealing
with them so as to verify thepossibility of transfer from acorrectional institution to anotherwith the consequent possibility tohave contacts with other in-matesin custody in other places or withthe external environment;(vii) the occurrence of facts outside theprison (Mafia murders or
massacres, kidnappings forransom, tampering of evidence,etc) from which it can be inferred,
also on the basis of circumstantial
evidence, that they were orderedby in-mates.
These elements, of course, shall notalways bear a real evidential worth - sincein this case we would be faced with thefinding of criminal events - the mere proofs,
even simple ones, are sufficient andadequate to ground administrative
measures.
In-mates still linked to organized crime- yet not subjected to any special custody
regime - receive a correctional treatment
whose function is to severely punish by
restricting personal freedom, compared tothe one envisaged for ordinary in-mates,
whose function is to re-educate and sociallyrehabilitate them.
Finally, an exception to this strict regime
is only provided in respect of in-mates that

116TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
co-operate with justice, a circumstance that- by itself - shows that the previous links
with the criminal organisations have been
overcome. Prisoner witnesses benefit froma rewarding treatment mainly constituted
by “softer” prisons and by non-custodial
punishments which are usually granted toordinary in-mates (external employment,
reward leaves, placement under thesupervision of a social worker, probation).
The worsening of the correctional regime
in respect of the hard-liners, and thesimultaneous extension of the ordinary
benefit regime to co-operating witnesses,
produced remarkable positive effects withregard to the safety and order inside andoutside prisons (prohibition to the exercise
of power by the most dangerous in-mates
inside prison and in the external criminal
environment) and with regard to theinvestigative and procedural aspects(increased co-operation with justice).
Furthermore, a special extenuating
circumstance (reduction by a half to twothirds of the penalty) bears significancerewarding the one who made efforts toavoid that the criminal action results infurther consequences or to provide evidenceof the offence. This provision is meant toencourage the person to repent after thecommission of the offence and it can beapplied to the conducts to a Mafia-typeorganization or expressive of organizedcrime. According to the law-maker’s intent,such extenuating circumstance is directed
to obtain a greater effectiveness in the
repression of serious offences and assumes
that a considerable reduction of penalty
may favour a helpful co-operation soundermining the structure of the criminalorganisation which is difficult to attackfrom outside.

VI. THE IMMUNITY SYSTEM AND
THE WITNESS PROTECTION
PROGRAMME
The matter of co-operating witness isreputedly exposed to tension and diverse
assessments. Some of them are connectedto the protection system and, in thisrespect, there is concern that it mightcollapse due to the significant number ofsubjects protected. Other ones can be
related to the procedural aspects of thestatements made by these subjects and,namely, to the nature of the checks thatshall corroborate them and to theiroutcome, in case they are made during thestage of pre-trial investigations and cannot
be verified during the examination at trial.
Witnesses who co-operate with justiceconstitute a necessary and irreplaceable
tool in respect of organized crime
proceedings. Their contribution has been
precious with a view to the knowledge ofthe deep Mafia world and mainly to thefinal conviction of countless organizedcrime members.
In Italy, the use of the statements madeby a co-operating co-defendant at trial goesback to thirty years ago, yet only in 1991
was the need to arrange a protection
programme for these persons - as well as
for non-criminal witnesses - regulated bya legislation at the very same time when
the procedural system was reformed on thewake of the adversary system in force incommon law.
The new procedure, indeed, stressed theneed for a serious protection and assistanceprogramme in respect of co-operating
witnesses considering that the basic
principle at its foundations is that evidence
is formed in a contentious proceeding
between opposing parties. Thus, theaccusing statements made during the pretrial investigations have no evidential
value if they are not confirmed at trial.

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RESOURCE MATERIAL SERIES No. 58
Hence, the need to protect and assist those
who make significant statements for the
purposes of the investigation and thefollowing trial in result of which they - andtheir relatives as well - are exposed to aserious and present danger of violence orthreats aimed at preventing them from
witnessing at trial or compelling them towithdraw the charges.
The responsibility to subject a person(and his family members) to the protection
programme - and to keep them as long as
it is necessary and possible - is vested by
the law in a range of bodies and authorities
including the Chief Prosecutors or the
Head of the Police (who have the power torecommend and propose); the National
Commission of the Ministry of the Interiors
which adopts the measures related to thespecial protection programme; the National
Protection Service which deals with thespecial programs decided by theCommission and manages the material
execution of the programme by its own
branches - the Protection Operational
Units - throughout the domestic territory.
Prior to any recognition of the cooperating witness status, the statements
are deeply analysed (or at least they shouldbe) and immediately subjected to a firstcheck including the interactive comparison
between the judicial information and theoverall data owned by the police forces andthe National Antimafia Prosecutor. Thissystem has been in force for a decade (thelaw on co-operating witnesses goes back to1991) and I could talk for many hours ofcountless experiences I made. Yet, I believe
it is more useful to draw some lessons withreference to the most urgent problems
relevant to this system which is going tobe dramatically amended very soon.
Sensibility and legality shall be always
applied in respect of the system’s
implementation practice on the basis of138

four chief guidelines: 1) personal safety of
the co-operating witness; 2) psychologicalsafety of the co-operating witness; 3)
security of investigations; 4) third-party
position in the management of thecollaboration, which is essential to prevent
an instance where the police may suggest
the answers to the suspect (principle ofseparation between protection andinvestigative agencies).
The physical safety of the one who
declares to be willing to co-operate withjustice shall be safeguarded, as a rule, byrestricting the person in suitablecorrectional institutions purposely
identified and equipped by the Correctional
Department; non-correctional institutions
should only be used in those cases where
this is absolutely impossible and there exist
serious, urgent and grounded safety
reasons.
In conditions of “differentiated” custodyin jail, the co-operating witness shall be
granted the best possible conditions toensure the psychological safety necessary
to carry on the co-operation. In thisframework, the safeguard and assistance also on an economic level - of the family
are essential, although exceeding requests- compared to the objectives and limits ofthe protection -shall not be granted.
The certainty of the investigations may
actually originate from these two
requirements since the gathering ofstatements and the necessary checks will
be possibly carried out in due course,
resulting in a positive evaluation of thecollaboration’s truthfulness and reliability,
which is the necessary requirement for theapplication of the special protection
programme. Such an approach, finally,
implies a total third-party position in the
management of the co-operating witness
and separates the protection responsibility
from the investigation responsibility right116TH INTERNATIONAL TRAINING COURSE
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from the beginning, to the benefit of either
one and of a correct exercise of jurisdiction.
The reform of the legislation on cooperating witnesses’ protection andpunishment - which is going to be passedby the Italian Parliament - introduces
significant amendments without radicallychanging the major role played by cooperating witnesses in the fight againstorganized crime and aims at a moresensible protection system, on the basis of
the said guidelines, and of operational
needs felt by the practice for a long time.
In short, the new legislation is founded
upon the following further principles:(i)security of the co-operating
witness;(ii) guarantee for the accused;(iii) truthfulness of evidence;(iv) separation between the protection
and the benefit;(v) different treatment for witnesses
in respect of subjects originatingfrom the criminal milieu.
The first aspect radically affected by thebill involves the admission to protection.
This is limited to subjects making
statements on terrorist or Mafia offences.
The new law outlines the quality aspect of
the co-operation more precisely than it doesin the current legislation.
The co-operation shall be marked by its
significant importance in respect of thestage of pre-trial investigations and thetrial stage. The concept of significant
importance is linked to the inner featuresof the statements made, which shall be
reliable and comprehensive. For the
purposes of the assessment of the dangers
run by the person, the law-maker also
indicated such standards, as the worth ofthe collaboration and the intimidation
capacity at local level of the criminal groups
accused.

From this point of view, a kind of “twoway” protection measure is introduced.
The special protection system is basicallygranted in those cases where thestatements made are indispensable forinvestigations on the functioning,strategies and branches of Mafia type orterrorist-subversive criminalorganisations, as well as on theirequipment and properties.
In other cases, reinforced common
measures are applied which ensure the cooperating witnesses’ safety and provide, if
necessary, to support them although they
do not amount to a real “life style” as in
the case of the special protection
programme. The latter is linked to its
original nature of exceptional legal
protection tool which, in addition to the cooperating witness protection, promotes his
prospective social rehabilitation by meansof a set of administrative and financial
measures.
The “reinforced” common ordinary
measures should consist of temporary
safeguard services in respect of the cooperating witness and the family members.
They are not disciplined in detail by thebill since it is understood that this function
might be accomplished by a later
regulation. This regulation shall beabsolutely necessary if we consider that thecrisis of the current system was indeed
brought about by the malfunctioning of theordinary protection measures which
determined the remarkable increase in thenumber of special protection programs.
The entry into force of the new legislation
should allow a stricter selection ofcollaborations and the special programme(whose implementation starts a complex
mechanism) would only be applied to cases
which cannot be dealt with differently.
The second aspect, dramatically affectedby the bill, is the procedural and beneficial

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RESOURCE MATERIAL SERIES No. 58
treatment of co-operating witnesses. The
bill is based on the principle according towhich the entitlement to the special
protection programme does not
automatically bring about the granting ofpunishment benefits - as it occurs today which instead shall be linked to the
conduct.
In the past years, the admission to thespecial programme and the granting of thebenefits were marked by a nearly
automatic cause and effect relation. This
trend may bring about a malfunction in thelegal safeguard mechanism due to two
factors. The first one includes thesubmission of proposals for admission into
the protection programme aimed at
obtaining non custodial punishments
which, in respect of co-operating witnesses,
are granted in derogation to the current
provisions on the limits of sentence; thesecond one includes the increasing
difficulty in the surveillance of the cooperating defendants admitted to the said
non-custodial measures, as a result of the
camouflage mechanisms adopted to protect
them (today the system does not even allow
the prosecutor or the judge to knowwhether the co-operating witness has had
contacts with other co-operating witnesses,
when the protection takes place outsideprisons).
The bill is aimed at diminishing suchrisks by clearly separating the admission
to the protection programme from thebenefits. This latter can be granted after
service of at least one-fourth of the sentence
imposed or after 10 years in case of life
imprisonment. This provision favours thelargely felt need that the liability forserious offences should not be annulled dueto the collaboration and the need to grant
benefits exclusively to those subjects whose
collaboration is validated by judgements.

140

The new law also subordinates thepossible withdrawal of pre-trial custody injail to the lack of current connections with
the Mafia or terrorist organisation, to thecompliance with the engagements madeupon the subscription of the special
protection programme and to thesignificance of the co-operation. The bill
purposely provides that the co-operating
witness shall undertake not to makestatements relevant to the facts covered in
the proceedings where he has co-operated
to bodies other than the judicial authority,
the police forces and his own defence
counsel and not to meet or contact otherpeople who co-operate or are involved incrime.
The stricter admission to non-custodial
punishment is counterbalanced by theprovision under which co-operating
witnesses in custody shall be restricted inadequate units inside the correctional
institutions depending on different
approaches which may favour the social
rehabilitation. This differentiated regimeof custody in jail shall be arranged so as tohamper the statements agreed upon bymore co-operating witnesses or suggested
by external people. Such a solution - if it
is approved - would result in the balooningof the number of co-operating witnesses
subjected to pre-trial custody in jail andthus would require the arrangement ofadequate equipment.
Under the condition of a “differentiated”
custody in jail, the best possible conditions
to ensure the statements’ truthfulness shallbe guaranteed. In this respect, an adequate
provision exists under which the in-mate
is not allowed to have investigative talks
with police bodies - at least until the recordof the co-operation is drawn up - andneither is he allowed to meet other cooperating witnesses and receive or send
mail outside, save for purposes connected
to protection needs. The withdrawal of the

116TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
pre-trial custody in jail or the replacementby house arrests shall be possibly granted
only after a first instance judgement andonly after the significant importance of thecollaboration has been found by thejudgement. In any case, the co-operating
witness shall serve at least one third of thesentence in jail.
One more innovation introduced by thebill is the identification and acquisition ofproperties illicitly obtained by co-operating
witnesses. Co-operating witnesses shalldeclare in the record - which shall be drawn
within six months from its beginning - all
the properties owned or managed, evenindirectly, and shall undertake, upon theadmission to the protection system, to handover the money and transfer the assets
illicitly obtained, even if they own them
indirectly.
The reform which is going to be passed
also regulates the destination of properties
transferred by co-operating witnesses or
anyhow forfeited. For the sake ofaccountability, the regulation on theforfeiture of Mafia members’ properties was
also extended to properties forfeited to cooperating witnesses with no reductions or
exclusions. A quota of the properties seized
and forfeited - identified by separate interministerial decrees - shall be destined tothe implementation of special preventive
measures as well as to a Solidarity Fundfor the victims of offences.
The bill also focused on the complex issueof the social rehabilitation of protected
people. In this respect, some interministerial shall be purposely issued andthey will indicate ways to keep the
employment or the transfer to other venue,
specific measures for the assistance andsocial rehabilitation of minors andwitnesses included in the programme.

The current system does not separate
the position of persons originating from thecriminal world and the position of those
who do not belong to that world and are
merely victims, witnesses or persons
informed about criminal facts. This
deficiency heavily contributes to refrainfrom collaboration, mainly in those social
contexts where the law of silence has amajor impact.
Needless to say, major progress in thefight against organized crime might beobtained by attacking the settlement ofcriminal groups on the territory. In thisrespect, a significant approach would imply
encouraging citizens to report intimidation
exerted by delinquent groups to the law
enforcement authorities, mainly thosegroups involved in extortion and drugs
trafficking also by means of an economic
support, as I will mention later withreference to the Solidarity Fund for theVictims of Extortion and Usury.
The reform of the system provides that
protection measures to the benefit ofwitnesses be applied even in cases when
their statements do not amount tosignificant importance and are not referred
to terrorist or Mafia offences provided thatthey expose the person making thestatement to a serious and present danger.
The National Commission - which is the
body responsible for the admission toprotection programs - shall ensure
witnesses such economic support as toguarantee an adequate way of life. The
Commission shall also favour the
rehabilitation of these persons into theeconomic system by indicating ways andnecessary funds.
A special provision deals with remotehearings with co-operating witnesses
through audio-visual equipment (the socalled video conference), which is regulatedby the recent law no. 11 of 7 January 1998.

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The text extends the use of thevideoconference to all depositions by cooperating witnesses on the presumption
that, being a tool directed to protect thewitness, it shall be increasingly used in
respect of people exposed to exceptionallyserious danger.
Finally, amendments to the code of
criminal procedure are envisaged withreference to the defence counsel’s
incompatibility. Specifically a rule will
provide the incompatibility of a common
defence for more defendants who madestatements concerning the liability of
another defendant in the same criminal
proceedings or in other connected
proceeding. These provisions are clearly
intended to ensure the truthfulness ofstatements and to avoid undue influence
by a common defence counsel - as it occurs
sometimes.
Under the legislation in force - and also
under the provisions contained in the billcurrently under consideration by the
Parliament - the National Antimafia
Prosecutor has the responsibility to express
opinions as to the admission of a person to
the protection programme, as to thediscontinuance or modification.
The large number of co-operating
witnesses - and their family members protected, the range of measuresconcerning them, as well as the exceptional
confidentiality of the matter, led the
National Antimafia Prosecutor to establish
a Department equipped with a computer
system so as to list and easily retrieve all
the records relevant to a subject. Upon
expressing the opinion, he acquires all thepossible information on the criminal facts
referred by the person, the reliability
judgement issued by prosecutors as to thestatements, as well as the path followedby the co-operating witness after theadmission to the protection programme.

142

My Bureau is also involved in ananalysis aimed at detecting the mostcommon violations of the programme rules
and identifying the “sanctions” which shallbe proposed to the Ministerial Commission
upon expressing the opinion so as to avoid
inequalities. The establishment of the
Department is therefore aimed at pursuingthis target.
VII. TECHNICAL INVESTIGATIONS- ELECTRONIC MONITORING
Co-operating witnesses remain afundamental tool in the fight againstorganized crime, as it was recognised byprosecutors and law enforcement officersof E.U. Member States during a meeting
recently held in Rome upon the initiativeof the ministries of Justice and Interiors.
Yet, on the one hand, it is absolutely
necessary to identify adequate checks forthe statements and, on the other hand,prosecutors are fully aware that thecorroboration can be also obtained bytechnical investigations and that this lattercan provide, by themselves, evidence ofguilt in respect of serious offences.
General complaints arise due to theinsufficient tools in the availability ofprosecutors and police forces, tools which
are necessary to carry out this type ofinvestigation. For instance, this occurs in
respect of wiretapping operations, due tothe communication companies’ inability to
execute all the requests made by the
judicial authorities. In this sector, theNational Antimafia Bureau performs a
regulating function establishing priorities
more connected to the urgency of requests
than to the chronological order - for thisreason, dangerous fugitives have been
recently apprehended and authors ofheinous crimes have been discovered
immediately after the fact.

116TH INTERNATIONAL TRAINING COURSE
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The shortage of equipment for expert
technical operations led the district
prosecutor offices to turn to privatecompanies (acting as advisors) which own
such equipment resulting in a dramaticincrease of expenses. The issue oftechnology yet affects a more general
problem. Today technology provides thecriminal world with a wide range of tools
in respect of communications, of the
movement of money flows, of money
laundering as well as in respect ofpaedophilia (ex. Internet). Technologicalprogress cannot be arrested, of course, yet
it takes licit or illicit forms depending on
the uses.
Yet, while criminal groups - assisted byexperts in various sectors - are always
ready to use new technologies for theircriminal purposes, the State cannot
promptly identify the technical tools tofight the misuse of new developments,
which is quite discouraging. Hence, theidea that the Ministry of Justice might set
up a technical and scientific pool withhighly qualified bodies capable to foresee
the technological developments in therelevant fields and arrange the adequate“defences”.
One of the most serious and urgent
problems we are faced with concerns
telephone interceptions. A widespread
investigative tool is the wiretapping ofinternational calls from unidentified phone
numbers in Italy to a foreign identified
phone number or to a whole district abroad,i.e. to foreign phone numbers identified by
the first figures which are the same in thewhole number (so-called re-routing).
Wiretapping operations are carried out by
Italian phone companies which act as
carriers of communications originated in
Italy to foreign countries.
On the matter of interception, the E.U.
Convention on mutual assistance signed by

the fifteen Member States on 29 May which has obviously not been ratified by
Italy yet - contains a rule (art. 20) on whose
heading is the “Interception of
telecommunications without the technicalassistance of another Member State” which
provides that “where thetelecommunication address of the subject
specified in the interception order is being
used on the territory of another Member
State”, the intercepting Member State shallinform the other Member State before
executing it (save for the case in which it
is not aware that the intercepted person isabroad; in this case it shall inform the otherState as soon as he knows it). The rule
has apparently been conceived with regard
to satellite interceptions and of electronic
surveillance in cars, yet it might be applied
to the re-routing as well.
If we agree that the Convention does
indeed regulate the case of re-routing, we
support the argument according to which irrespective of the ratification - this kindof interception does not fall into thedomestic jurisdiction. Then the point is toestimate the risk that re-routinginterceptions may not be used and thepossibility to immediately turn to the legal
assistance. Secondly, to assess whether thelegal assistance should be provided by wayof rogatory letters or by the far simpler
form indicated by the European
Convention, yet to be ratified. The
Convention, of course, only concerns the
EU countries and thus the rogatory letterswould still be necessary in respect of therest of the world.
No doubt exists as to the value to be
attached to the privacy which affects thearea of the person’s character. Yet, thesafeguard of privacy shall becounterbalanced by the safeguard of theeffectiveness and confidentiality ofinvestigations and the protection of thecommunity from crime. I can quote an

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example relevant to the situation in Italy
where the two opposing needs clash inrespect of the debate on the apparently
opposed needs to relieve the correctional
system by decreasing the number of inmates, without waiving to the principle ofthe sentence enforceability, on the one
hand, and the heavy demand of securityby the society, on the other hand.
Needles to say, a multi-function
correctional system which requires benefits
for good behaviour in-mates is
indispensable. Controls are needed which,for obvious reasons, cannot be exerted
directly, but through electronic means. Yet
this is not enough. A deterrent is alsoneeded to punish those who escapecontrols: for instance, an increase of thesentence and the ban to obtain otherbenefits.
This form of electronic monitoring is no
violation of the in-mate’s privacy. This
assessment would be erroneous. Actuallyanyone should not feel free in a cellaccommodating eight persons, yet would
rather stay at his own place wearing adevice which neither intercepts one’s voice
nor “sees” what one is doing but only
monitors one’s movements.
The home-detention bracelet, whichallows to remotely monitor a person
subjected to correctional regime, is a very
simple instrument: a transmitter, inserted
in a box as big as a cigarette packet, isfastened to the in-mate’s ankle by a plastic
band. The device sends signals to acomputer connected to a phone line. If thein-mates leaves the surveillance area, an
alarm received by the monitoring centre
immediately goes off. The same if the“virtual prisoner” tries to tear off the plastic
band. The system works thanks to a oneyear battery. The costs amount to an
average 10,000 lire a day and in the UnitedStates, for instance, they are supported by144

the in-mates themselves who choose toafford their conditional release.
In all countries where the “electronicmonitoring” has already been tested, its use
has been restricted to final convicts. As apoint in fact, this measure is deemed s too“harmful” to be applied to pre-trial custodyin jail, that is in respect of a person forwhom the presumption of innocence still
exists.
In Italy the monitoring through homedetention bracelet should be tested in awhile since it has already been approvedby the Ministry of Justice. The project
should be referred to two categories ofsentence enforcement:
(i)

(ii)

as an alternative to short
sentences restricting personal
freedom (today in Italy in respectof terms of imprisonment less than
three years, it is already possible
to challenge the warrant of arrestand benefit from house arrest
pending alternative measures);in the late stage of execution before
the release from jail (for up to six
months).

The sanction consists in the restrictionof the freedom of movement; the convict is
assigned to his/her own abode and isallowed to leave it only at certain times
fixed by the decision agreed with the body
responsible for the execution.
When the terms set by the execution
programme are not complied with or themonitoring system has been dodged,
sanctions shall be adopted the most seriousof which being the withdrawal of thebenefit and the re-enforcement of thecustodial sentence. o be entitled to benefit
from this new way to serve the sentence,the convict shall:

116TH INTERNATIONAL TRAINING COURSE
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(i)
(ii)

express his/her consent;
have an accommodation equippedwith a fixed phone line;(iii) obtain the agreement of any adults
who live with him/her;(iv) be included in a working, training
or voluntary activity keeping him/
her busy for at least 50% of his/hertime;(v) be subjected to a social service
programme covering various needs(ex. regular controls for drugs or
alcohol abuse);(vi) c o n t r i b u t e t o t h e e x e c u t i o nexpenses to a daily percentage
extent.
Once the principle according to which
the house-detention bracelet does notundermine the privacy at all - and that it
is to be preferred to the pre-trail custodyin jail - is accepted, this tool might beapplied also as a non-custodial
precautionary measure to subjects underhouse arrests. This solution would allow
to pursue a two-fold objective: to thin out
prisons and, at the same time, ensure astricter control on the execution of housearrests which - as it occurs in Italy - isentrusted to the occasional control by thepolice forces spread out on the territory andis too easily exposed to be avoided.
VIII. ECONOMIC ORGANIZEDCRIME AND MEASURES ON
PROPERTY
A general forward on the relationshipbetween entrepreneurs and crime isnecessary. It is useful to stress that therelationship between organized crime andthe crisis of legal enterprise is a three-stage
process. In the first stage, the enterpriseis in difficulty when the crime works as anegative external (or environmental) factor,
systematically destroying profits throughextortion and through serious distortionsof competitive mechanisms, resulting informs of unfair competition, which may go
through the illicit financing and thecorruption. Faced with such distorting
instruments, the entrepreneurs’ attitude isconflicting or passive. However it is notcollaborative.
In the second stage, the legal enterprise- already on the wane or in liquidity crisis- is definitively undermined when its
corporate finance policies undergo theaction of criminal financiers (usury).
Under this point of view, usury exerted bycriminal organisations to the detriment ofenterprises allows to clearly perceive thedistinction between usury credit and legal
credit. This latter is conceived so as tomaximise the probability for the return ofthe credit whilst the usury contract isconceived in order to minimise such aprobability, so as to take possession of theguarantee or to re-negotiate the credit at
higher rates.
In the third stage, criminality brings
about the enterprise insolvency when it
alters the structure of ownership andcontrols and becomes an inner factor ofcrisis. This phenomenon is usually based
upon the interaction between concealed
criminal owners and straw executives orentrepreneurs and it can follow two paths
leading from the criminal intervention to
the crisis.
On the one hand, the contaminatedenterprise may be more vulnerable since
its target is not oriented to maximise
profits, yet it is altered and exploited inorder to conceal and re-introduce flows ofillicit liquidity into the legal system (money
laundering). On the other hand, thecontaminated enterprise can be profitoriented yet its vulnerability grows because
its activity can be discontinued due to apreventive or repressive intervention bycourts. In this case, the straw
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have a co-operative or collusive attitude to
the benefit of the real criminal owners.
For a correct construction of the overall
framework which can be drawn frominvestigations conducted in Italy, it isnecessary to make some previous remarks
relevant to understand the mutual
convenience of a relationship where boththe subject apparently alien to the criminalorganisation, and the organisation itself,
take advantages from the mutualinteraction, specific advantages which theywould not acquire otherwise.
The three subjects listed above (theMafia, politics, the enterprise) sharecommon criminal interests where thefeatures and the power of either of themprovide the alliance with more benefits
than their individual action would havepermitted. The existence of real business
committees constituted by politicians,
entrepreneurs, owners of engineering
offices and representatives of Mafia
organisations has been found, a kind of
mutual contract bound to be perpetuatedin progress of time and aimed at exercising
the power and acquiring huge illicit
proceeds.
Basically, through the help of criminalgroups, those politicians secured forthemselves the control on elections
throughout a wide area and in respect ofan extremely high number of votes whilst,
through the enterprises, they obtained anuninterrupted flow of funds for personalneeds and for the expenses of the politicalmachinery. The Mafia group in turnobtained:(i)

146

significant funds from enterprises(not only as percentages on
procurements, but also in terms of
the agreement in the managementof sub-contracts and theestablishment of slush funds,

which is the core of the common
business system between theenterprise and the criminal group);(ii) the subsequent, systematic controlof the domestic economic activities,
the possibility to offer jobs andmarginal quota of corporate profits
and, thus, a wide social consensus
up to the open legitimisation;(iii) through the politicians, thenecessary governmental covers
were secured, namely in terms ofpolice forces, as well as the possible
intervention on judicial processes,
if any.
F i n a l l y, d u e t o t h i s a g r e e m e n t ,entrepreneurs steadily acquired asignificant quota of the government
contracts market, distorting themechanism of competition and obtained:(i)the security of building sites
scattered on the territory;(ii) no litigation with trade unions;(iii) t o o l s t o e s t a b l i s h s l u s haccountancy whose target was not
tax evasion, yet the availability of
unaccounted funds to pay
kickbacks to politicians and Mafia
members involved and, in somecases, to afford transactions in
Italy and abroad.
In this context, extortion and usury to
the detriment of entrepreneurs
undoubtedly constitute the most worrisomedevelopment of the criminal emergency
because thanks to them a vital part of theeconomy, that is the minor and mediumsized business concern, risks to be wipedout.
The integration of these two offences canbe found in the Law no. 44 of 23 February
1999 containing provisions on thesolidarity fund for the victims of extortionand usury. In the light of the relationshipbetween the enterprise and the criminalorganisation, it can be easily understood116TH INTERNATIONAL TRAINING COURSE
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the importance of disrupting the collusive
relation between the victim of the extortionand the usurer from the beginning, at its
initial stage.
This objective is pursued by the law bymeans of provisions aimed at showing
victims that it is more convenient cooperating with justice than yielding toblackmail and thus:
(i)

(ii)

on the one hand, to encourage thevictim to report the illicit pressuresby ensuring the anonymity in the
pre-trial investigation stage andproviding adequate financial
support;on the other hand, to fix strict andclear terms with regard to theaccess to the allotments and to thematerial destination of these funds
to entrepreneurial activities so as
to, at least, hamper any criminal
manoeuvre.

Yet, there is a manifest need for a coordination among bodies responsible for
implementing the law in order to make it
apt to the preventive and repressive action.
For this reason, the law contains someprovisions aimed at the speediness andconfidentiality of the administrative
procedures involving the allotment of funds
to the benefit of the victim.
These provisions, in fact, compel all thebodies and subjects performing somefunctions within the procedures to abideby the classified information in order toensure their confidentiality and alsoprescribes that similar caution shall be
used also in the transmission of documents
and in the notices sent to the persons
involved.
Another rule provides the suspension of
the time limit fixed to submit theapplication for the allotment of funds incase the prosecutor - due to the existenceof a present and material danger ofretaliation acts - orders adequate measures
to ensure that the identity of the person
who declares to be a victim of extortion
shall be kept confidential. Article 416- bisco. 7 penal code prescribes that:”In the event of a conviction, articles
which were used or intended to be used
to commit the offence and the proceeds
thereof shall be forfeited”.
Furthermore, another basic instrument
to counteract the accumulation of illicit
profits is the provision - airticle 12 - sexiesof the Law N. 356 of 1992 - that extend
compulsory forfeiture of properties owned
by convicts on charges of Mafia crimes,
which turn out disproportionate incomparison with the legal income of theowner and this one cannot justify.
The list of offences which - when they
are found - constitute the requirement for
the enforcement of forfeiture includes all
the conspiracy offences or those offences
marked by a Mafia character and most of
the offences considered as instrumental toorganized crime. In particular, I refer tothe Mafia type conspiracy (article 416 bisof the Italian Criminal Code), the offences
committed exploiting the conditions set out
under article 416 bis Criminal Code or inorder to favour the activity of Mafia typeassociations, the conspiracy offences
specifically dealing with drugs production
and trafficking, extortion, kidnapping for
ransom, usury, aggravated smuggling,
fraudulent transfer of valuables, handlingstolen property, money laundering and reuse of illicit capitals.
Finally, the Law No 646 of 13 September
1982 applies to person suspected to belong
to a Mafia-type organization compulsory
forfeiture of its goods, which turn out
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legal income and cannot be justified (socalled patrimonial measures of prevention).
According to the Italian jurisprudence,
there is in such cases a sharing of theburden of roof : the prosecution has to firstprove that the assets are effectively owned
directly or indirectly by the convicted or thesuspect (who usually use figureheads or
straw men), and than that the assets are
disproportionate to the income of theconvicted or suspect. The convicted orsuspect thereafter must prove the lawful
origin of the assets.
The regulation on the management andutilisation of properties forfeited to Mafia
members, introduced by Law no. 109/96,
is based upon the distinction between
personal movable property owned by thedangerous subject (bound to be paid),
immovable property and businesses.
Immovable property forfeited - when they
are included in the State’s assets, that iswhen they are not sold - shall be destinedfor aims relevant to justice, public order,
safety in case of hazards, schools and they
are likely to be destined to theMunicipalities for institutional or social
aims.
Businesses can be leased to public or
private companies or to workers’ cooperatives where there exist foundedpossibilities to carry on or resume theproductive activity. Sums of money
obtained from sales or leases shall go to afund established at the prefetture (local
governmental authorities) and they shallbe used for public interest activities among
which one of the most important is theintervention in schools for education
courses focusing on legality, culturalactivities and entrepreneurial activities for
unemployed young people.
The political significance of this new law
is very clear in that it assigns a “visible”
function in the fight against organized148

crime not only to forfeiture, but mostimportantly to the specific destination ofproperties forfeited. The EU Commission,
through a Group of experts purposely
established at the General Directorate for
Justice and Home Affairs, started an indepth analysis on the issue of therelationship between organized crime andgovernment contracts.
In compliance with the objectives set by
the Action Plan of 1997 - namely, by
Recommendations 6 and 7 aimed at
reducing the risk of penetration byorganized crime into government
procurement contracts, public works and,thus , into the community legal economy the works intend to favour an increasing
integration among existing legal systems
in Member States on this matter and thecentralisation and circulation of
information pertaining to businesses
competing among the various governments
in EU countries.
Special focus is placed on the need toharmonise the rules establishing the terms
to admit to or exclude businesses fromtenders and to favour the circulation of
information within any State and among
Member States. The Directive n.93/37/
EEC - confirming the contents of Directive
89/440/EEC - establishes that theparticipation in tenders can be ruled out
in respect of any entrepreneur who is insuch situations as bankruptcy, winding-up,s u s p e n s i o n o f a c t i v i t y, l i t i g a t i o n ,composition with creditors or other similar
situation; in respect of any entrepreneur
versus whom either of the said procedures
has been initiated; any entrepreneur who
has been convicted with final judgement
on account of any offence affecting his/her
professional ethics; who has committed aserious professional error found by anymeans of evidence produced by theadministration granting the contract, who
has not complied with obligations relevant

116TH INTERNATIONAL TRAINING COURSE
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to the payment of duties and taxes; who
was guilty of false declarations in providing
information which may be requested by theadministration granting the contract.
The Group shall provide the Commission
any useful information to establish new
standards to be introduced as amendments
to the existing Directives and shall also
identify joint guidelines for action within
the Third Pillar (collection and exchange
of information among the different
authorities, possible complementarymeasures in the judicial field, in the market
sector, etc.). Significant differences among
the various legislation still exist. And thepolitical will to counteract the phenomenonof criminal infiltration into public contracts
does not seem to be strong.
A crucial issue in the path towards the
harmonisation of community rules still
remains on the background: the definitionof a common concept of “organized crime”
and the resulting identification of the
conducts expressed by it. The question isstill open because the European
Commission is apparently oriented to
specify in its prospective Directives theillicit conducts “manifesting organizedcrime” which should be the common
platform of standards to exclude businesses
from public tenders in Member States.
The issue under consideration concerns
all government contracts; yet, althoughmany cases of criminal infiltration into
government contracts for services, thisphenomenon mainly affects the public
works sector which - since it has always
been a milestone within the development
policies in our country - is the traditional
enrichment source for Mafia type criminalorganisation and the main channel in thesystem of parties’ illicit financing.
A watchdog authority on public works
has been working also in Italy for sometime. The National Antimafia Prosecutor
has already contacted this Authority toacquire - for the purposes of co-ordinationand investigative impulse - information oncontracting and sub-contracting
businesses, on bids of tender and on theawarding procedures, with specific mention
as to the reasons why competitors havebeen excluded.
IX. THE BANKING AND FINANCIAL
CIRCUIT AND THE SEIZURE OFILLICIT CAPITALS
The volume of criminal proceeds
transferred yearly on the economic andfinancial circuits has not been precisely
estimated yet. To give an idea, theInternational Monetary Fund estimated in
1996 the yearly income of criminalorganisations at 500 billion dollars of which
at least 400 billion are supposed to beoriginated from the drugs trafficking. Yet
this is likely to be an underestimate since
it takes account of the turnover connectedto the drugs trafficking only. To theseproceeds, those originated from othertrafficking directly run by organized crimeshould be added (arms, tobacco smuggling,
noble metals and clothes and, recently,
harmful or radioactive waste trafficking)as well as those originated from theirreinvestment in other illicit activities inturn resulting in huge proceeds (such as
usury and unauthorised financing andcredit whose turnover is an estimated
10,000 billion Italian lire).
The overall figure leads to estimate a
global turnover equal to about 1000 billion
dollars per year. The EU Report reads:
Criminal activities run by organizedcrime generate an immense amountof money, a significant part of whichneeds to be laundered in order to be
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their own income. The International
Monetary Fund (IMF) has estimatedthat about 2% of the global economy
involves drug trafficking. Even
though drug trafficking certainly
ranks amongst the most lucrative
criminal activities, it gives an idea
about the fact that the sum of allcrime related money is an importantpart of the overall economy.
The Action Plan against organizedcrime, adopted by the European Council on
28 April 1997, provides interesting binding
indications to Member States among
which:(i)the urgent need to tackle the issueof money laundering on theInternet and through theelectronic payment instruments(the digital cash which risks tomake the existing money out-ofdate) and the new technologies;
moreover, the need to require
electronic transfers to mention thedetails of the payer and the payee;(ii) the need to link investigations onmoney laundering to those on tax
evasion and frauds: the channels
whereby money escaped fromdomestic tax and currency
authorities is laundered often
proved to be particularly apt toshelter and provide anonymity to
the criminal proceeds to beconcealed;(iii) the need to enlarge the scope ofsubjects falling into the scope ofmoney laundering provisions also
increasing Europol’s investigative
function in this field;(iv) the need to enforce new rules
allowing to forfeit illicit proceeds
also in case of the criminal’s death(it is the origin of Mafia property
which makes it dangerous andcontaminating to the economy,

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(v)

(vi)

irrespective of the owner);
the need to enlarge the scope ofsubjects falling into the scope ofmoney laundering also to thenegligent conduct of the agent (yetthis hypothesis was firmly rejectedby the EU Parliament in its
resolution of 1997);
the expectation to extend the duty
to report “suspicious” transactions- with the relevant sanctions incase of non-compliance - toprofessions other than thefinancial brokerage.

Among the countries which took thehard line against money laundering, Italy
has progressively adjusted its own legal
system to the EU directives starting fromthe Law no. 197/91 regulating themechanism of the report of suspicioustransactions. The new legislation and the
new effort in the international co-operation
are expected to strengthen the criminal
repression against money laundering andthe use of illicitly obtained properties.
Therefore it should be easier to obtain thenecessary evidence to attain a number oftrials, convictions and forfeitures
proportionate to the magnitude of thecriminal phenomenon6.
There exist many surveys and reform
proposals on the issue. Under this point ofview, a significant reform - recommended
by the Community - is expected to
introduce a fresh institution into our legal
system: the criminal and administrative
liability of companies for offences
committed by its own corporate bodies.
The following legislative decree no. 153/
97, issued to supplement the enforcementof the EEC Directive no. 308/91, radicallychanged the law no. 197/91. In particular,
it provided more confidentiality guarantees
to safeguard brokers bound to report thetransactions deemed as “suspicious” on the

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6In Italy, the criminalization of the laundering ofproceed of crime is embodie in the following
provision.

Article 648-bis penal code (Money Laundering)Except in cases of participation in the [predicate]offence, any person substituting or transferringmoney, goods or assets obtained by means ofintentional criminal offences, or any person seeking
to conceal the fact that the said money, goods or
assets are the proceeds of such offences, shall be
liable to imprisonment of 4 to 12 years and to afine of LIT 2 to LIT 30 million.
The penalty shal be increased when the offence iscommitted in the course of a professional activity.
The penalty shall be decreased if the money, goods
or assets are the proceeds of a criminal offence forwhich the penalty is imprisonment of up to 5 years.
The final paragraph of article 648 shall apply.
Article 648-ter penal code (Use of money, goods or
assets of unlawful origin)
Except in cases of paricipation in the [predicate]offence and in the cases provided for in articles 648
and 648-bis, any person using for economic or
financial activities money, goods or assets obteinedby means of a criminal offence, shall be liable toimprisonment of 4 to 12 years and to a fine of LIT 2
to LIT 30 million.
The penalty shall be increased when the offence iscommitted in the course of a professional acrivity.
The penalty shall be decreased pursuant toparagraph 2 of article 648.
The final paragraph of article 648 shall apply.
Article 12-quinquies Decree-law n.306/1992(fraudolent transfer of valuables)
Any person fraudulently transferring to otherpersons the ownership or availability of money,
goods or other assets with a view to avoiding
compliance with the provisions of the law
concerning the prevention of smuggling andoffences against property, or to facilitate committing
any of the offences referred to in articles 648, 648bis and 648-tar of the Penal Code, shall be liable toimprisonment of 2 to 6 years, unless the offence ismore serious.

basis of the standards identified by the
Bank of Italy as of 1993; it assigned the
Ufficio Italiano Cambi (Italian Exchange
Bureau) the role of an “anti-money
laundering agency” responsible to receive
the suspicious transactions reports and toanalyse and process them - also by meansof the accounts and deposits register
provided for by the Law no. 423/91; canimmediatly order the suspension i thetransaction and informs the Currency
Police Special Unit of the Guardia diFinanza.
It also established the duty to inform the
National Antimafia Prosecutor - in relation
to the specific functions of co-ordinationand impulse vested on him by article 371
bis of the Italian Code of Criminal
Procedure - as to the reports resulting to
be linked to organized crime.
To enforce this provision, the Suspicious
Transactions Department was establishedat the National Antimafia Bureau,
constituted by three prosecutors, in orderto analyse and deal with this information.
The activity performed by this Department
involves various aspects: the analysis andfocus on the main interpretation issues
resulting from the legislation in force;steady and systematic contacts withgovernmental bodies involved in the sameactivity (Italian Exchange Bureau,
Antimafia Investigations Office, Currency
Police Special Unit) identified by this law;
analysis of information received; focus andarrangement of operational patterns apt tomake the action against money laundering
uniform and effective. In case that suspect
turn out to be grounded, all informationcollected and processed are reported to thecompetent Prosecutor for the pre-trail
investigation.
Awaiting to verify the effectiveness of the
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banking system - especially in somesouthern regions - is still one of the most
preferred channels for money laundering
operations, often intertwined to usury andunauthorised financing and credit
operations. In these areas, evenirrespective of any inner complicity, banks
are often used in criminal actions wheremoney laundering and unauthorised credit
are mutually strengthened, due to theheavy demand of unauthorised credit
brought about by the malfunctioning ofcredit institutions themselves.
I already said that the management of
the payment system and credit - also dueto the recent technological developments
within the globalisation of economic
relations - is particularly exposed to money
laundering irrespective of the operators’
awareness. Moreover, the control of thebrokers is perfectly inserted into thecriminal logic including the control ofterritory and of the economic activities
carried out therein even - and maybe above
all - through information owned by banks.
This information allow criminalorganisations to maximise profits byattacking without any risk the mostprofitable economic subjects (by way of
extortion or usury financing or the two
alike, depending on the case).
There exist one more fundamental
aspect in the counteracting approach which
we must focus on. The Directive of 1991
was enforced by EU Member States invarious degrees and it led illicit capitals
towards forms of non financial money
laundering, therefore the current
suspicious transactions report regime
affects only some of the flows of dirty
money. And maybe neither the mostsignificant one.
The quantity of reports is on theincrease. Yet this is no positive factor since
the issue is the quality of reported

152

transactions, that is we still wonder how
effective they are in terms of usefulness of
information collected. The situation is
uninterruptedly developing because money
launderers are increasingly skilled andthey always seek new concealing
techniques capable to dodge investigations
and because the only border to thepossibilities of money laundering is theinventiveness of money launderers.
The need to address a non-criminal
financial or credit broker to perform
activities which do not seem suspicious anddo not draw the attention of the monitoring
authorities urges the money launderer toaccomplish layering operations before
inserting the money into the legal circuit.
Hence, the need already called for by theEuropean Council to urge EU governments- probably through a new Directive - togenerally extend the duty to reportsuspicious transactions to persons andcompanies operating outside the financial
sector.
A first response is the new legislative
decree no. 374 of 25 September 1999 whichmarks one more step forward towards thetotal enforcement of the Directive 308/91/
EEC on the prevention of the use of thefinancial system for the purposes of thelaundering of criminal proceeds. Many
investigations were conducted in the latest
years on persons and companies operating
outside the financial sector and many cases
mainly concern gambling house, valuable
items outlets, that is economic subjects
who, out of convenience, accept to shield
the launderer by concealing the origin of
the dirty money behind their apparently
licit activity.
The legislative decree no. 374/1999
affects this sector, yet the duties imposedby the new legislation are not the same forall the subjects involved. The law-makertook account of the nature of the activities

116TH INTERNATIONAL TRAINING COURSE
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involved and distinguished two
professional categories to which theconfidentiality duty, set out under article
3 bis of Law no. 197/91, and the sanctions
provided for by the same law in case of noncompliance shall be extended.
The first category is supposed to include
the most exposed activities and pinpoints
the subjects compelled to identify, register,and report the suspicious transactions:those involved in debt recovery on behalfof third parties; guardians and carriers ofcash and securities or valuables throughspecial watchmen; carriers of cash,
securities or valuables without special
watchmen (road haulage of items on behalfof third parties); estate brokerage agencies;
dealers in gold; managers of gamblinghouses.
The same duties are imposed upon thefinancial activities agencies listed underarticle 3 of the new legislative decree. They
are financial brokers whose activity inrespect of the public is restricted to thesubjects registered in a list set up at the
Italian Exchange Bureau. The reporting
duty was extended to the financial
promoters, that is to the subjects used by
the authorised financial brokers for offpremises offers. In this case, reports ofsuspicious transactions shall be sent by thepromoter to the broker for whom he acts
who will forward the report to the Italian
Exchange Bureau.
The second category includes subjects
compelled to identify and registercustomers accomplishing transactions
worth of over 20 million lire: dealers in
antiques, auction houses or art galleries
managers, manufacturers of and dealers
in valuables, craftsmen manufacturing
valuables. This regulation, still, does notextend the reporting duty to independent
professionals and audit companies, twocategories which should be dealt with by

the next European Directive.
In this respect, EU bodies had alreadyfocused their attention on independent
professionals and, namely, on legal
professionals (lawyers, notaries,
accountants and audits). In particular, thepossibility had been verified to separate theactivity providing legal advice, legal
defence and court representation fromother trade activities - such as the estate
brokerage - related to the same professional
subjects.
A useful suggestion in order to preventthat these professions be exploited formoney laundering purposes is included in
the Action Plan against organized crime
which provides the enforcement of
measures aimed at safeguarding some
professions exposed to criminal influence,for instance by way of codes of conduct.
With regard to auditing companies, in
Italy, the increased need for a regulation
which impose the duty to report suspicioustransactions is due to the fact that - while
under the previous law the board ofauditors were also responsible for auditingof listed companies - pursuant to thelegislative decree no. 58/98 such activity is
exclusively vested in audit companies.
X. EUROPEAN MONETARY UNION
AND MONEY LAUNDERING IN THE
AGE OF INTERNET
The onset of the European Monetary
Union might have a multi-faceted impact
on monetary and financial flows linked tothe development illegal and criminal
economic activities. This impact brings
about unprecedented issues relevant toeconomic policy and then to criminal policy.
For instance, one of the effects that the
EMU (Economic and Monetary Union)
should bring about, through different

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channels, is the reduction in thetransactions costs which hamper thedevelopment of illegal economy. If a
reduction of the transactions costs should
be welcomed, with a view to thedevelopment of legal economy, it must be
considered that, lacking adequate
measures, it would also favour the illicit
economy.

everywhere in the EU or easily exchanged
when the European currency will circulate
in the international markets.
There are also concerns of thepossibilities offered in the next future bymodern technologies such as the Internet
and electronic banking cards, even though
up to now investigations give no evidence
related to these issues.”

The National Antimafia Bureau,
together with the “Bocconi” university in
Milan, undertook a survey on theforeseeable impact that the entry into forceof the single currency - both in the stage of
conversion of domestic currencies and in
the following one of intra-community andextra-community circulation of Euro - will
have on money laundering strategies also
taking into account the different levels of
surveillance still existing, notwithstanding
the uniform community standards, among
the eleven EMU countries, in particular
due to the different tax and bank secrecy
regulations.

As a result, Member States have two setsof objectives: a) identification of special
monetary, banking and financial channels
which by EMU might decrease thetransactions costs for the illegal economy;b) implementing adequate measures toregulate and monitor the system of
payments and the banking industry to findbalanced solutions in the relation between
the defence of the system from the criminal
economy distortions and the boost to theefficiency and the development of legal
markets.

The target of the DNA - Bocconi survey
is to build analysis patterns allowing to
identify the conditions in which - in respectof the monetary, banking, financial andcomputer science sectors - the EMU might
increase the possibilities for money
laundering and, thus, the criminalorganisations’ capacity to corrupt markets
and the legal economy. In this respect, theE.U. Report remarks:“Several esteemed experts are debatingthat the next introduction of Euro as asingle EU currency can provide further good
opportunities for money laundering, for thefundamental reason that there will be noneed to change the money earned from one
currency into another, when it is moved
within other Member States. The futureEuro bills with the denomination of 100,
200 and 500 could be an attractive option
to the US dollar and can be spent

154

Monetary aspects must be separated
from banking and financial ones. On themonetary level, the Euro is seemingly
bound to become a significant reserve
currency in international exchanges, both
legal and illegal ones. A recent survey
presented at the last meeting of the Italian
Economists’ Association analysed theeffects that might be brought about if theEuro becomes the currency used to settle
the exchanges made in order to laundercash originated from illegal markets.
This analysis results in interesting
indications for domestic law-makers.
Basically, the more effective the legislation
against illegal and criminal activities
generating profits is, the more the pressure
on the monetary, banking and financial
markets increases. The more thelaundering techniques use cash, the morethis pressure affects the demand of Euro,
mainly in big denominations.

116TH INTERNATIONAL TRAINING COURSE
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Wi t h t h e s i n g l e c u r r e n c y a n dincreasingly integrated banking andfinancial markets, we must notoverestimate the effectiveness of monetarymeasures against money laundering suchas the limits to the issue of Euro in big
denominations. The demand for money
laundering might be simply affected by areplacement so favouring camouflaging
and laundering techniques deemed as safer
through banking and financial channels.
Turning to the credit and financial
aspects, the EMU will expectedly result in
an increasing integration of the agents’
activities and the European markets.
Illegal and criminal capital flows might
benefit from this integration. The
simultaneous existence of integrated credit
and financing markets, with the incomplete
harmonisation of the regulation andsurveillance schemes, favours the illegal
financial flows.
Interesting remarks can be found in the
Final Report of the project “Euroshore.
Protecting the EU financial system from the
exploitation of financial centres andoffshore facilities by organized crime”
financed in 1998 by the E. U. Commission’s
Falcone Programme published on 25
February 2000. They can be summarised
as follows: the distinction between offshore
and onshore is losing many of its
conventional meanings, i.e. opacity andtransparency.
Some offshore jurisdictions movetowards the adoption of better criminal
laws and better forms of international cooperation resulting in an acceptable levelof transparency (Group 1: European
financial centres and offshore jurisdictions;Group 2: Economies in transition).
(i)others (Group 3: offshore
jurisdictions outside the EU) keep
all the opacity features of theirregulation systems which createdthe commonly perceived
correspondence between theconcept of offshore and the opacity
one. Meanwhile, onshore countries
which have a long-standing
tradition of financial centres andare located in Europe havetransparency levels equal to or
lower than those of the countries
officially defined as “offshore”
centres.
(ii) association agreements work:countries which applied to enter
the EU are amending theircriminal legislation andintroducing financial regulations
directed to an increasedtransparency.
(iii) t h e p o l i t i c a l a n d e c o n o m i c
proximity works: the closer theoffshore jurisdictions are to the EU
and the less they stray away fromthe accountability standards fixedby the international communityand by the EU ones.
(iv) the European financial systemshould become more transparent
before asking the same to othercountries. In particular, in respectof company law - which has a major
importance to the transparency of
any financial system - EU Member
States have opacity problems,
although less than other countries,
and they had better solve them
before asking other countries to doit.
(v) company law exerts a chain effecton the opacity of other sectors of
regulation: financial law andbanking law. If company law - dueto efficiency reasons - tends
towards anonymity, it carries thetwo other sectors of regulation with
it resulting in the inevitable failureof investigative and judicial cooperation in respect of criminal

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organisations which exploit thiscompany anonymity as a shield.
The said differences in the regulationsof “strict” countries - the moreindustrialised and thus stronger countries,
yet for this reason more exposed to criminal
aggression - and “lax” countries - thetraditional tax havens and, more generally,
those countries having weak economic
structures and lacking resources to spend
on the international markets - results inthe frustration of the action against money
laundering.
The choice between strict and lax policies
depends on a range of structural factors
being difficult to overcome in the medium
and in the long run; yet a stricter attitude,at least at the European level, willundoubtedly allow and maybe impose
stricter domestic policies. On the contrary,a low level in common rules might evendrive potentially strict domestic systems
towards lax attitudes.
In other words, the competition in
regulation shall be fully considered by theEuropean anti-money laundering front
since a two-fold order of rules would widen
the gap and so contribute to strengthen thetransnational criminal organisations who
would be left free to exploit diversities towiden their scope and frustrate the efforts
made by the most strict countries.
The solution to this issue willundoubtedly imply long-range efforts andit needs to be applied on an internationaland global scale as in the current
community prospective. In view of theintroduction of the single currency, the EU
Commission warned with concern thatcounteracting measures implemented by
the European Union - albeit strict - will beeasily jeopardised within the globalisationof markets by the legislative voids still
existing in too many EU countries.

156

The special European Council, held on
15 and 16 October 1999 in Tampere
regarding the implementation of an areaof freedom, security and justice within theEuropean Union re-launched the specificaction against money laundering definedin the final document as “the very heart”
of organized crime and urged the adoptionof a new anti money laundering directive
which may promote the balance between
the system’s global defence from thedistortion of organized crime (money
laundering, corruption, Eurocounterfeiting) and the safeguard of therights of persons and economic operators.
At this point, two specifications arenecessary:
The concept of e-money goes back to thelate ‘60s with the first electronic funds
transfers (EFT) initially developed to allow
the transfer of deposits stored by banks inthe central bank and later extended toinclude transactions of significant unitaryamount. Yet, while substantial transfersof conventional currency were developing,through the electronic networks run bytelecommunication companies and by
outstanding holdings, the very concept ofe-money (or e-cash) has been changing,unrelated to the traditional deposits.
Currently, the means of payment named
e-money can be identified with the so-called“virtual money” which requires somenecessary conditions: it is generated andtransformed by computers; it is notdependent on the currency forms controlled
by governments and on bank deposits, it isalien to the current monetary aggregates;
it is not regulated by the watch-dog
authority monitoring the financial
markets; it can take various forms, of which
only some are offered by banks.
When I talk about the “new financial
subjects originated from Internet”, I referto the trading on line phenomenon and to116TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
the asset management, both dramaticallyon the increase on Internet. Trading online means the possibility to deal insecurities, mainly shares, but also bonds
or similar instruments, on the Internet
which offers customers the possibility tointeract with a dealing broker (and throughthis person with the market) exclusively
using the Web so disregarding any form
implying further interactions with thebroker to complete the execution of theorder. This phenomenon might be simply
regarded as a development in the
distribution process of a product - thesecurities - which banks and stock
brokerage companies have always offered.
Actually, analysing such markets as the US
one - which have seen the development of
the trading on line for a few years - it canbe proved that we are not faced with a mere
appendix of traditional dealing ways. Thisphenomenon, instead, is likely to radicallychange markets’ organisation and brokers’
and investors’ behaviours, to bring about
the onset of a new type of brokers marked
by “low costs and efficient and adjustable
service” but mainly by anonymity.
As to the Italian experience, decades ofoperators by now are able to offer tradingon line services - with all the possible
options listed above - which haveincreasingly spread in a few months.
According to estimates on the overallmarket, the commissions amount to about150-200 billion lire for the year 2000 andthe number of on line investors in Italy isestimated to reach over 300.000 in three
years.
As all the sectors within the financial
brokerage, asset management also started
to exploit the possibilities offered by theInternet and first appeared in Italy in 1999.
The most varied services are offered on the
Web ranging from the presentation of one’s
own products with the relevant costs to thepossibility to subscribe funds quota andmanage switches from one fund to theother, and the management of the“education” unit which is a kind of financial
primary school where basic information,
researches on financial markets and helps
for the planning of one’s own savings canbe found.
As to these issues, the European
Commission submitted proposals for
directives to the EU Parliament speciallyaimed at:
(i)

(ii)

ensuring the financial
accountability of non-banking
institutions which issue e-money
without hampering thedevelopment of the e-money within
the Community;
ensuring a high standard ofsafeguard of general interest
targets, such as the protection ofminors and of the human dignity,
the protection of the consumer andof public health.

Yet we still have a long way to walktowards a legislation which cannot but beco-ordinated at international level in a field
which was correctly defined as “no one’sland”. Meanwhile, investigations led tofind - not simply suppose - many cases
where the Web has been exploited bycriminals for such heinous uses, as thevideotape e-commerce for paedophiles
between Russia and Italy recently
discovered in Naples, which shows theexistence of an international trafficking ofminors who are the victims in these
disgusting tortures until they die. These
problems are faced in the draft Convention
on Cyber-crime adopted by the European
Committee on Crime Problems (CDPC) of
the Council of Europe on 2 Octover 2000.7

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XI. INTERNATIONAL COOPERATION
The theme of judicial co-operation withregard to transnational crime refers firstly
to structures and secondly to criminal caseand evidence. Further, the preconditions
for effective judicial co-operetion are
knowledge of the fact and coordination of
investigation, that are both ensured in
I t a l y, i n c o n f o r m i t y w i t h t h e
Recommendation n.2 of the Action Plan of
1997, by the National Antimafia Prosecutor
Bureau, central point of contact within theEuropean Judicial Network established by
the EU Council in order to promote thejudicial co-operation among Member
States.
The criminal judicial co-operation at
European level against organized crimemade significant efforts and marked amilestone with the Action Plan adopted by
the European Council on 28 April 1997.
Among the Recommendations contained in
Chapter VI of the Plan - entirely dealing
with the issue of the relationship between
organized crime and money - I believe it isworth mentioning the ones from 26 to 30
focusing on the various types of connections
among criminality, capital accumulations
and economic circuits, with specialreference to the issues of money
laundering, corruption, tax frauds and theso-called “forfeiture of worth”.

7

The most meaningful topics of the EC Draft
Convention are: 1) measures to be taken at thenational level abaut offences against theconfidentiality, integrity and availability ofcomputer data and system; 2) principle of corporate
liability for those criminal offences committed fortheir benefit by any natural person; 3) binding
principles relating to international co-operation(extradition; mutual assistance, also regarding
provisional measures and coercive and investigative
powers).

158

The first need highlighted - that is tomake membership of a criminalorganisation a criminal offence in the legal
system of any Member State - was satisfied
by the adoption of the Joint Action of 21
December 1998 which provides a definitionof criminal organisation and compels
Member State to make it a criminal offence
to participate in the criminal organisation
ensuring that one or both of the types ofconduct are punishable, i.e. the Italianlike pattern of participation and thecommon law “conspiracy” pattern.
The Plan was further implemented by
the Joint Action of 3 December 1998 on
money laundering, detection, seizure andconfiscation of criminal proceeds whichaims at eliminating or at least reducing thereservations which can be opposed to theConvention of Strasbourg of 1990 on money
laundering and confiscation. The
Convention compels to introduce indomestic legal systems the “confiscation ofworth”, that is confiscation throughpayment of a sum of money corresponding
to the worth of the price, of the product, orof the proceeds of a crime (this institution
has already been introduced in our legal
system - art. 735 bis code of criminal
procedure - when the Convention ofStrasbourg was ratified in 1993, yet it isrestricted to provide assistance in relation
to the execution of foreign confiscation
measures).
I still have to mention the Joint Action
adopted by the Council of the European
Union on 22 April 1996 which entrusts theliason officers with functions directed tofavour and accelerate any form of judicial
co-operation in criminal matters and, if
necessary, in civil matters with a view toincrease speediness and effectivenessnamely through direct contacts with thecompetent services and with the judicial
authorities of the destination State.

116TH INTERNATIONAL TRAINING COURSE
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On the wake of the Convention ofStrasbourg, we have to welcome the draft
Convention of the United Nations againstorganized crime which is going to beapproved and signed next December in
Italy and focuses on the issue of the fightagainst money laundering, speciallyfollowing to the liberalisation of financial
and trade movements after the opening to
the Eastern European countries.

My opinion on the actual possibility thatthe international community may
adequately and soon succeed incounteracting such criminal phenomena isthat such a possibility does exist provided
that governments are aware of the need ofan effective and loyal co-operation, leaving
aside the ambiguities and hypocrisies
which marked the choices and policies in
too many countries.

Moreover, the UN General Assembly
called a Special Session (New York, 9-11
June 1998) on the fight against drugs at
global level which was attended by nearly
all the countries in the world.
Notwithstanding the divergences
expressed during the works, they resulted
in three Resolutions. The first one contains
a declaration of political commitment, thesecond one concerns the guidelines with aview to the decrease of drugs demand, thethird one involves measures to strengthen
the international co-operation to counteract
the illicit trafficking, the criminal
phenomena which support them and thelaundering of criminal proceeds. Thislatter provision pays special heed to thecontrol of precursors and the necessaryinternational co-operation in thedestruction of the illicit sources of natural
drugs.

In conclusion, transnational organizedcrime is a serious threat for the economy
and the security of the international
community. But - as used to say myunforgettable colleague and master
Giovanni Falcone, victim of Mafia in 1992
- Mafia and other similar criminalorganizations are human phenomenon and,like any human phenomenon, they had
beginning and they will have an end.
Therefore it’s up to us, members of law
enforcement, to the international cooperation, but also to the worthy leaguesof citizens who exercise the social contral
against crme, the responsibility to support,
and if possible accelerate, this process
toward a civil society’s development inlegality and in peace.

Following to these Resolutions, on 6
October 1998 the European Parliament
approved the Recommendation A4-0211/98
on the policies that Member States are
urged to implement in the fight against
drugs. In brief, the United Nations are also
accepting the idea that the economy is the
new frontier of the fight against
transnational organized crime and that a
successful action against drugs trafficking
and money laundering requires the coordination of domestic legislation and shallbe connected to the development of
payment means at international levels.

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