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Criminal association: definition, penalty and how to defend yourself

In all cases in which a criminal conspiracy charge arises, our lawyers specialise in defending the accused.

Thanks to a good, high-profile, international and constantly updated team, the ILA law firm has among its core skills precisely the defence of criminal conspiracy cases.

Definition of criminal conspiracy

The charge of criminal conspiracy (under Article 416 of the Criminal Code) arises when three or more persons associate for the purpose of committing several crimes.
This criminal offence is aimed at protecting public order and its rationale is to be found in the circumstance that the criminal organisation in itself creates social alarm, regardless of the consequent commission of crimes.

For this reason, therefore, in order for the offence in question to take shape, it is sufficient that there is a stable associative agreement and a programme of delinquency aimed at committing a plurality of criminal acts.

Pursuant to Article 416 of the Criminal Code, even the mere fact of participating in the association can constitute the offence, although in this case the penalty is lighter than for those who promote, constitute or organise the association.

On the other hand, with regard to the minimum number of participants required for the existence of this offence, it is not clear whether this includes persons who are not of sound mind; on this point, however, the doctrine is in agreement that the number of participants also includes persons who be of unsound mind or have disability.

Obviously, the rule represents a derogation from Article 115 of the criminal code, which provides for the non-punishability of the mere agreement to commit a crime, if it is not subsequently committed. This anticipation of criminal relevance, in this particular circumstance, is due to the seriousness of the danger in which public order is placed, therefore, a serious assessment of the concrete suitability of the association is required.It is knowledge of the agreement itself to commit the crime, the crime itself does not have to be successful or occur.

In relation to the subjective element, then, as is well known, specific intent is required, and therefore the will and consciousness of taking part in a criminal association intended to commit an indeterminate series of offences.

Finally, in order to better understand this offence, in addition to outlining its main features, it is useful to specify two important distinctions concerning it: the first between criminal conspiracy and the hypothesis of conspiracy to commit a continuing offence, and the second between Article 416 and 416 bis of the Criminal Code.

As regards the first question put forward, it should be pointed out that the distinguishing criterion of the offence of criminal conspiracy from the hypothesis of concurrence of persons in a continuing offence consists in the character that the criminal agreement assumes: in the concurrence of persons and in the continuing offence, it takes place on a merely occasional basis, being directly linked to the commission of one or more well-identified offences which, once committed, exhaust the agreement between the co-conspirators, thus eliminating ‘social alarm’; association, on the other hand, is aimed at carrying out a broader criminal programme and is characterised by the presence of elements that must necessarily coexist (it is necessary that the association bond be of a permanent nature and that it is intended to last beyond the commission of the crimes that have already been planned).

The boundary, however, between criminal association and the offence referred to in Article 416 bis of the criminal code is represented by the use of the so-called ‘mafia method’. Mafia-type conspiracy, in fact, originates as a specification and differentiation from criminal conspiracy and, in addition to providing for much more serious penalties, differs in three respects:

1) The mafia method, i.e., the strength of the associative bond and the victims’ bod or code of silence

2) The intended purpose, i.e., to commit crimes, to directly or indirectly acquire control or management of economic activities, contracts and public services, to make unjust profits, to prevent the free exercise of voting in elections

3) The subjective element, i.e. the specific intent, for which the will to commit a crime is not enough, but it is necessary that the perpetrators are aware and conscious of contributing by their conduct to reinforce the power of the mafia.

Certainly in this area, the seriousness and competence of the defence are fundamental, and these, as is well known, are skills that our team of professionals is able to offer.

Enforcement of penalties for the crime of criminal conspiracy

Persons who promote, constitute or organise the association are punished, for the predicate offence alone, with imprisonment of three to seven years. For the mere fact of participating in the association, the punishment is imprisonment from one to five years. Leaders are subject to the same penalty as promoters. If associates go around armed in public streets, the penalty is imprisonment for a term of five to fifteen years. The penalty is increased if the number of associates is ten or more.

In order for the offence to be committed, as has been explained above, at least three persons are required, so we must speak of a crime with a necessary concurrence in its own right; according to constant orientation, however, the number of participants must be assessed in an objective sense. Generally speaking, the criminal law distinguishes between several persons: the promoter, i.e. the person who initially encouraged the association, the instigator, the person who determines the birth of the association, and the organiser, the person who regulates its activities.

By ‘leaders’, on the other hand, according to a constant orientation, are meant those persons with hierarchically superior functions within the associative structure and permanently incorporated in it. They are therefore different from the promoters, constitutors and organisers who may also be outsiders to the association.

A higher penalty is provided for in respect of such persons than for those who merely participate in the association without playing any defined ‘role’.

In this regard, the Supreme Court has specified that: “the conduct of participating in an association to commit offences, in order to be punishable, cannot be exhausted in a positive manifestation of the individual’s willingness to join the association that has already been formed, requiring instead the provision, by the individual, of an effective contribution, which may be even minimal and of any form and content, as long as it is intended to provide effectiveness for the maintenance of the structure or the pursuit of its purposes”. (Court of Cassation 26-1-2005, no. 2350). And again that ‘where the contribution made is limited to episodic assistance to an individual associate, a hypothesis of personal aiding and abetting is configured instead of participation’ (Court of Cassation 7-2-2005, no. 4252).

In this context, however, whatever the charges brought by the prosecution, the staff of International Lawyers Associates can provide unparalleled specialised legal defence in criminal conspiracy.

In case of reduction to or maintenance in slavery or servitude, trafficking in persons, organ trafficking, purchase and sale of slaves human trafficking and illegal migration

If the association is aimed at committing any of the offences referred to in Articles 600 (Reduction to or maintenance in slavery or servitude), 601 (Trafficking in persons), 601-bis (Trafficking in organs removed from a living person) and 602 (Purchase and sale of slaves), as well as Article 12, paragraph 3-bis of the Consolidated Text of the provisions concerning the discipline of immigration and rules on the condition of foreigners, imprisonment from five to fifteen years in the cases provided for in the first paragraph and from four to nine years in the cases provided for in the second paragraph.

In this regard, Article 4 of Law no. 228 of 11.8.2003, on Measures against trafficking in persons, added a sixth paragraph to Article 416 of the Criminal Code, as a result of which the figure of criminal association aimed at committing offences relating to trafficking in human beings and enslavement into slavery was introduced.

In this case, it is unquestionable that it is a special aggravating circumstance with special effect: this implies that such provision may be subject to a balancing judgment pursuant to Article 69 of the Criminal Code, with the consequent possibility of deeming any other mitigating circumstance to be prevalent or equivalent.

The above-mentioned law, moreover, extended the scope of the case in question also to thehypothesis of clandestine immigration, with the last amendment to that effect being Article 2 of Law no. 236 of 11 December 2016.

In all these cases we are dealing with special hypotheses of criminal association or organised criminal gangs, which are distinguished by the much harsher punitive treatment, as well as by the conditions of the victim and the peculiar type of fine offences.

When harm to a child is involved

“If the association is aimed at committing such offences to the detriment of a minor under the age of eighteen years, 609-quater, 609-quinquies, 609-octies, imprisonment from four to eight years shall apply in the cases provided for in the first paragraph and imprisonment from two to six years in the cases provided for in the second paragraph”.

This paragraph was added in 2012 following Italy’s ratification of the Lanzarote Convention for the Protection of Children against Sexual Exploitation.

Our country, with the insertion of this provision, has fulfilled its obligation to make the criminal protection of minors more effective by tightening the sanctioning response connected precisely to the associative-criminal phenomena aimed precisely at the sexual exploitation of children; this phenomenon, in fact, especially if carried out in a systematic form, represents an important income for organised crime.

Lawyers experienced in criminal conspiracy defence

In conclusion, therefore, it is good to identify the precise terms in which the ingredients of the offence alleged are offence examined and how questions are proving criminal liability are established.
In this context, the staff of International Lawyers Associates is able to provide a valid considered and first rate defence through the use of a team of professionals, coordinated by the criminal lawyer Alexandro Maria Tirelli, who has unparalleled experience in the field.