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Criminal Association and Drug Trafficking

Definition of Associative Offenses

Associative Offenses in General:

In broad terms, associative offenses pertain to criminal actions involving an association, namely, a group composed of at least three individuals who come together to form a stable structure. This structure must possess a legal personality distinct from that of the individual participants and be capable of executing a specific and predetermined criminal program.

Associative offenses, of which the provision penalized by Article 416 of the Italian Penal Code stands as the most emblematic and structural example, fall within the broader category of “plurisubjective offenses” or “offenses of necessary concurrence.”

For the integration of these offenses, it is essential not only that multiple active subjects are present (at least three individuals, depending on the case) but also the existence of a stable and enduring bond aimed at realizing a criminal program.

It should be emphasized that the offense punishes the adherence to a criminal association, regardless of the actual commission of the crimes envisaged by the criminal program.

Criminal Association Pursuant to Article 416 C.P.:

Article 416 of the Italian Penal Code penalizes those who promote, establish, or organize an association with the aim of committing multiple crimes, and even mere participation in the association constitutes an offense.

The objective element of this offense requires the presence of an organizational structure, even if minimal, composed of individuals and resources, aimed at carrying out an indeterminate series of crimes. It is essential for individual members to be aware that they are part of a lasting alliance and are willing to operate to carry out the common criminal program.

The offense of criminal association distinguishes itself by separately incriminating the creation of the association from the crimes that may be subsequently committed in accordance with the criminal pact. Such eventual crimes concur with the offense of criminal association and, if not committed, still leave the offense provided for in Article 416 of the Italian Penal Code configured.

The rationale behind this offense lies in the danger to public order stemming from the associational bond among individuals sharing a common criminal purpose. This explains why the offense of criminal association does not require the actual commission of the crimes envisaged by the criminal plan.

Mafia Association Pursuant to Article 416 bis C.P.:

Article 416 bis was introduced into the Italian Penal Code by Law 646/1982 (“Rognoni-La Torre”) to extend the scope of punishable conduct beyond that covered by Article 416, whether legal in themselves or unrelated to the intention to commit specific crimes.

A mafia-type association may have as its purpose the execution of lawful activities, which become illegal solely due to their commission by the association itself.

Article 416 bis is characterized by its broad objective, not limited to the generic commission of multiple offenses but also encompassing activities aimed at infiltrating criminal organizations into politics, public administration, and the economy.

The protected legal interest is public order, threatened by the presence of criminal organizations, such as mafia organizations, dedicated to the commission of a wide range of offenses against democratic order and economic freedom.

The objective element of this offense involves participation, promotion, direction, and organization. An association may be deemed mafia when characterized by the “mafia method” used to realize the criminal program.

Association Aimed at Drug Trafficking Pursuant to Article 74 DPR 309/90:

Article 74 of the Presidential Decree No. 309 of 1990, known as the “Consolidated Law on Narcotic Drugs,” provides for the punishment of promoting, establishing, directing, organizing, financing, and participating in an association aimed at the illegal trafficking of narcotics.

This offense has a multifaceted nature, as it aims to protect both public health and public order.

The objective element involves the union of multiple individuals operating to profit from drug trafficking and the bond that ties the importer-buyer responsible for supplying the market through a network of small-scale dealers. It is essential that all individuals involved are aware of operating within an organization where their actions contribute to the common goal of profiting from the drug trade.

For this offense, a full-fledged organization is not required, but the convergence of significantly integrated conduct in a context of stable and continuous availability is sufficient, constituting a reliable reference point for the drug trafficking project.

Roles and Subjective Element:

In associations aimed at drug trafficking, specific roles can be identified among members: promoter, founder, organizer, financier, and leader. Each of these roles serves a different function within the association’s structure.

The required subjective element is specific intent, implying awareness of actively participating in the stable and permanent realization of the criminal program. Members of the association must be aware of the association’s objectives and the intimidating means employed. Furthermore, they must actively contribute to the life of the association and the achievement of its goals.