LA ENSEÑANZA SUPERIOR

Previous chapters have emphasised that the distinctive feature of organised crime is its organisational structure, which denotes some characteristic features, rather than any particular criminal activity. The following compo- nents represent the common denominator of organised criminal groups; a structured organisation (either hierarchical or flexible) consisting of persons who co-operate for a prolonged or indefinite length of time, the pursuit of profit making, and the use of violence, intimidation and corruption.

The more complex organised crime becomes, the more difficult it is to find a definition which is agreed upon by the law enforcement community, academics, the media, and “supergrasses”, who have often improved our understanding of organised crime, though only from a specific and partial perspective. Moreover, since organised crime today is simultaneously a domestic and an international problem, one which often raises similar threats in different regions, it is important for each country to seek its own solutions for its own problems while co-operating with other countries in tackling the more general problem of the transnational dimension of organised crime.

Substantive criminal law has adapted to the changes brought about by organised crime in different ways. The countries most seriously threatened by organised crime have reacted by refining their legislation. In recent decades, the main innovations in criminal legislation against organised crime have concerned participation in the activities of criminal organisations and the confiscation of assets acquired by means of criminal activity.

A recent trend that has substantially modified criminal legislation is “Participation in Organised Criminal Associations”, which in many countries corresponds to the crime of “conspiracy”. A conspiracy is the formation of a combination of two or more persons on a continuing basis for the purpose of committing an indefinite number of unlawful or criminal acts through the common use of all necessary means to pursue a criminal course of action. To be found guilty of criminal conspiracy, a defendant must be permanently aware of his/her membership of that conspiracy, and s/he must be constantly ready to implement its pre-established plans. Owing to the characteristics of mafia culture, conspiracy has always been difficult to prove at trial. In view of these difficulties, in 1982 Italy enacted a law providing for a new offence. Three kinds of association crime are envisaged in Italy, and they are used to counteract organised crime and its entrepreneurial dimension. Two of them are closely interrelated: common association crime and drug-trafficking association crime. The third offence is more specific and is known as

mafia-type association crime. An association is mafia-type when its members

systematically exploit a situation of environmental intimidation and the widespread condition of duress deriving therefrom, not only in order to commit crimes but also to acquire control of economic activities, or at any

rate to gain unlawful advantages.1Penalties are harsh: a minimum of four years’ imprisonment, which in particularly aggravating circumstances is increased to fifteen years for ordinary members and twenty-two years for bosses and managers. Moreover, each specific crime committed within the association is to be punished separately. A mafia-type association may be simultaneously a drug-trafficking one, in which case, under the Italian law, the two association incriminations may occur and be applied together, and

an increased penalty is applied.2

Born of an emergency situation, this law has proved highly effective in combatting organised crime in Italy. Given the previous difficulty of gather- ing sufficient evidence of crimes committed by members of a criminal organisation, the new offence enables the court to convict a person upon sole proof of his/her membership of a certain type of organisation. The crime of “membership of an organised crime association” is based on the assumption that members of criminal organisations commit crimes; an assumption that has made it possible to prosecute top bosses for this crime alone, on the basis 1 Italian criminal code, article 416bis (Mafia-type unlawful association):

“Any person participating in a Mafia-type unlawful association including three or

more persons shall be liable to imprisonment for 3 to 6 years.

Those persons promoting, directing or organising the said association shall be liable, for this sole offence, to imprisonment for 4 to 9 years.

Mafia-type unlawful association is said to exist when the participants take advantage of the intimidating power of the association and of the resulting condition of submission and silence to commit criminal offences, to manage, at all levels, control, either directly or indirectly, of economic activities, concessions, authorisations, public contracts and services, or to obtain unlawful profits or advantages for themselves or for others, or with a view to preventing or limiting the freedom to vote, or to get votes for themselves or for others on the occasion of an election.

Should the association be of the armed type, the punishment shall be imprisonment for 4 to 10 years pursuant to paragraph 1 and imprisonment for 5 to 15 years pursuant to paragraph 2.

An association is said to be of the armed type when the participants have firearms or explosives at their disposal, even if hidden or deposited elsewhere, to achieve the objectives of the said association.

If the economic activities of which the participants in the said association aim to achieve or maintain the control are funded, totally or partially, by the price, the product or the proceeds of criminal offences, the punishments referred to in the above paragraphs shall be increased by one-third to one-half.

The offender shall always be liable to confiscation of the items that were used or meant to be used to commit the offence and of the items that represent the price, the product or the proceeds of such offence or the use thereof.

The provisions of this article shall also apply to the Camorra and to any other association, whatever its local title, seeking to achieve objectives that correspond to those of Mafia-type unlawful association by taking advantage of the intimidating power of the association.”

2 G. Turone, “Mafia-type criminality: The special features of Italian criminal law and procedure to combat it”, paper presented at the Council of Europe Multilateral Seminar

of evidence provided by turncoats. The law has proved its potential in a long series of trials which have concluded with the conviction and sentencing of top-ranking mafia leaders.

The Italian example of 1982 follows, albeit with numerous differences, the American law set out in the legislation of the 1970s. Although judicial interpretations of the United States Constitution have prevented the Congress from prohibiting mere membership of an organised crime group, the Rack- eteer Influenced and Corrupt Organisations Statute, commonly known as RICO (18 USCA § 1961), makes it an offence for a person to participate in the affairs of an enterprise involved in racketeering.

“Racketeering activity” is defined in § 1961 (1) as:

(A) any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion or dealing in narcotic or rather dangerous drugs, which is chargeable under state law and punishable by imprisonment for more than one year;

(B) any act which is indictable under any of the following provisions of title 18 United States Code:

– section 201 (relating to bribery), – section 224 (relating to sports bribery),

– sections 471, 472 and 473 (relating to counterfeiting),

– section 659 ( relating to theft from interstate shipment) if the act indictable under section 659 is felonious,

– section 664 (relating to embezzlement from pension and welfare funds),

– sections 891-894 (relating to extortion of credit transactions), – section 1084 (relating to the transmission of gambling information), – section 1341 (relating to mail fraud),

– section 1343 (relating to wire fraud),

– section 1503 (relating to obstruction of justice),

– section 1510 (relating to obstruction of criminal investigations), – section 1511 (relating to the obstruction of State or local law enforce-

ment),

– section 1951 (relating to interference with commerce, robbery, or extortion),

– section 1952 (relating to racketeering),

– section 1953 (relating to interstate transportation of wagering para- phernalia),

– section 1994 (relating to unlawful welfare fund payments),

– section 1955 (relating to the prohibition of illegal gambling busi- nesses),

– sections 2312 and 2313 (relating to interstate transportation of stolen motor vehicles),

– sections 2314 and 2315 (relating to interstate transportation of stolen property),

– section 2320 (relating to trafficking in certain motor vehicles or motor vehicle parts),

– sections 2421-24 (relating to white slave trafficking);

(C) any act which is indictable under title 29, United States Code, section 186 (dealing with restrictions on payments and loans to labour organisa- tions) or section 5012 (c) (relating to embezzlement from union funds) or

(D) any offence involving bankruptcy fraud, fraud in the sale of security, or the felonious manufacture, importation, receiving, concealment, buying, selling, or otherwise dealing in narcotic or other dangerous drugs, pun- ishable under any law of the United States.

The RICO statute allows prosecutors to link separate offences together, enabling successful indictment with the imposition of triple damages, as well as long terms of imprisonment. The RICO Act, part of the 1970 Organised Crime Control Act, created the most important substantive and procedural legal instrument in the history of organised crime control. It was explicitly targeted at organised crime, and especially designed to counter its infiltration of legitimate business. Introducing the concept of enterprise racketeering changed the way in which organised crime investigations were conceived and conducted, since RICO made it a crime to infiltrate, participate in, or conduct the affairs of an enterprise engaged in racketeering. An enterprise is defined as any “association in fact” comprised of two or more people. In US versus

Turkette,3the US Supreme Court ruled that an enterprise could be a wholly

illegitimate group. This prompted a wave of prosecutions against individuals for participating in criminal syndicates like Cosa Nostra. Since they have only to prove an “association in fact” in an organised crime case, prosecutors are provided with an excellent opportunity to introduce extensive evidence, complete with charts and tables of organisations which depict the structure of an organised crime family.

RICO requires the government to prove that a defendant has conducted or participated in the affairs of an enterprise through “a pattern of racketeering activity”, which is defined as at least two racketeering acts committed within ten years of each other. The term “racketeering activity” (also called a “RICO predicate”) is given detailed definition in the RICO statute, and it encom- passes virtually all serious criminal activity prohibited by either state or federal law, such as murder, robbery, drug dealing, fraud, and other serious crimes listed in the statute. Thus, in a RICO trial, the defendant may find himself charged with a variety of different crimes allegedly committed at different times and places. The prosecution need only prove that the

3 452 United States 576 (1981). Prior to Turkette, it was plausible to argue that RICO required proof of racketeer infiltration of a legitimate business, union, or governmental organisation. After Turkette, RICO could be used to prosecute any ongoing criminal group.

defendant committed all these crimes in furtherance of his/her participation in the affairs of the enterprise.

RICO also provides for extremely severe sentences: twenty years on each RICO violation and twenty further years for a RICO conspiracy. In addition, RICO provides for large fines and the forfeiture of property (broadly defined to include businesses, offices, jobs, personal property, cars, boats, planes and real estate) acquired out of the proceeds of racketeering activity.

Another RICO criminal provision has proved of great importance, since it gives the federal government the right to sue civilly for wide-ranging injunctions to prevent a RICO offence from continuing. RICO’s civil focus is future-oriented and preventive, rather than punitive. In fact, a judge may issue whatever injunction or other remedial order necessary to prevent further racketeering by the defendants. This topic will be analysed in greater detail below.

Moreover, the Continuing Criminal Enterprise statute (CCE) is directed only against persons engaged in large-scale drug dealing and requires, inter

alia, that the defendant commit at least three violations of the drug laws while

acting as a manager or organiser of five or more people. The United States also has a statute which prohibits general criminal conspiracies and a separate statute which prohibits drug-related ones.

The USA have taken another important step forward in the fight against organised crime by introducing the Violent Crime Control and Law Enforce- ment Act of 1994. This act introduces new and stiffer provisions for violent drug-trafficking crimes committed by street gangs, increasing the maximum prison sentence by up to ten years, under certain circumstances, for federal drug or violent offences committed by members of a street gang. The Act defines a “criminal street gang” as an “ongoing” group or association of five or more persons which has as one of its primary purposes either:

– the commission of a federal drug offence, punishable by at least five years in jail, or

– the commission of a federal violent offence.

In addition, members must have engaged within the previous five years in a “continuing series” of such offences, and the gang’s activities must affect interstate or foreign commerce.

Other countries without experience of the extensive organised crime groups active in Italy and the USA for so many years have hesitated to follow the Italian and American example, convinced that the category of ‘conspiracy crime’ suffices to deal with the new types of organised crime. Moreover, many countries punish organised crime according to their own particular perception of the problem.

According to the definition used by the German Bundeskriminalamt (BKA), for example, “organised crime is the planned commission of criminal

offences, determined by the pursuit of profit and power, which individually or as a whole, are of considerable importance, whenever more than two

persons involved collaborate for a prolonged or indefinite period of time, each with own appointed tasks

– by using commercial or business-like structures, or

– by using violence or other means suitable for intimidation, or

– by exerting influence on politics, the media, public administration, judicial

authorities or the economy”.4

This BKA definition provides a benchmark for determination of whether a criminal group ranks as “organised crime”. The definition has both its advantages and disadvantages. While it has the advantage of focusing on various forms of organised business crime, it does not specify what is to be deemed “of considerable importance”, nor does it differentiate between various categories of organised crime.

With some exceptions, one notes emerging consensus among different legislations with regard to organised crime activities. A review of the legis- lation of a number of countries with different cultural backgrounds shows that certain offences are repeatedly cited as exemplifying organised crime activities: illicit narcotics trafficking, gang robbery, receiving stolen goods, trading in illicit firearms, blackmail, management and procuring of prostitu- tion and illicit gaming (Germany); distribution of illegal drugs, kidnapping for profit, extortion, fraud, loan sharking and counterfeiting of public money or securities (Italy); dangerous drugs, offences against the person, larceny, forgery and corruption (Jamaica). Statutory law in England and Wales considers the following to be criminal activities: various forms of fraud, false accounting, handling of stolen property, drug trafficking, forgery, living off the earnings of prostitution, and various forms of assault, while according to English and Welsh Common Law the following are criminal activities:

murder, manslaughter, kidnapping and false imprisonment.5

North America

Canada has long debated the introduction of organised crime as a criminal

offence. The country consequently does not envisage the specific offence of

4 Arbeitsgruppe Justiz/Polizei des BKA, May 1990: “Organisierte Kriminalität ist die

von Gewinn- oder Machtstreben bestimmte planmäßige Begehung von Straftaten, die einzeln, oder in ihrer Gesamtheit von erheblicher Bedeutung sind, wenn mehr als zwei Beteiligte auf längere oder unbestimmte Dauer arbeitstailig unter Verwendung gewerblicher oder geschäftsähnlicher Structuren,

a. unter Anwendung von Gewalt oder anderer zur Einschüchterung geeigneter Mittel,

oder

b. unter Einflußnahme auf Politik, Medien, öffentliche Verwaltung, Justiz und

Wirtschaftzusammenwirken.”

5 E.U. Savona, “Enhancing national capabilities”, in E.U. Savona and P. Williams, Five

Papers prepared for the Crime Prevention and Criminal Justice Branch, United

membership of a criminal organisation, although art. 462.3 of the criminal code introduces the concept of “enterprise crime offence”, which covers a series of crimes, such as bribery, fraud, corruption, betting, murder, theft, robbery, extortion, forgery, counterfeiting, money laundering, as well as possession of property obtained as a result of drug offences.

As already mentioned, the USA has legal provisions covering numerous instances of conspiracy, as well as crimes committed in furtherance of a criminal enterprise.

Central/South America

Article 210 of the criminal code of Argentina criminalises organised crime as follows: the members of a criminal association comprising three or more persons and created for the commission of crimes will be sentenced to 3 to 10 years’ imprisonment merely for membership of the association. The minimum penalty prescribed for the organisers and chiefs of a criminal organisation is 5 years.

Legislation in Chile does not define the concept of ‘mafia’ but - in articles 292 and following of the criminal code - it does sanction the crime of illicit association.

Western Europe

The Danish penal code contains a provision (art. 114) which makes mere membership of or participation in certain illegal organisations punishable. This legislation, however, only applies in the case of crimes against the constitution and against the highest authorities of the state.

There are several legal provisions in France which allow for the suppres- sion of criminal organisations. Articles 265 to 268 of the penal code crimi- nalise associations established or planned with a view to the commission of crimes against persons or assets, as well as any of the following offences: aggravated theft, destruction by means of explosive substances, extortion with force, violence or intimidation. The penalty is imprisonment for up to ten years, plus a fine. The commission of certain crimes by an organised group is an aggravating circumstance which incurs a stiffer penalty. Theft by an organised criminal group (art. 384 of the penal code), for example, is considered an aggravating circumstance. ‘Organised criminal group’ is de- fined by article 385 of the penal code as any criminal group established with a view to committing one or more aggravated thefts characterised by the preparation and the possession of material means to be used in the theft. The penalty provided for the crime is imprisonment for ten to twenty years.

Germany punishes the same crime, although the law does not cover

passive membership. The offence is defined as the formation of a group whose goals are the commission of offences, participation in the group, soliciting for it, or providing it with support.

Article 287 of the criminal code of Portugal criminalises “associaçones criminosas”. A person founding a group, an organisation or an association for the purpose of committing crimes is subject to punishment by imprison- ment amounting to between six months and six years. The same penalty applies to the persons who become members of such groups, organisations or associations, or to those who provide them with help, particularly in the