Mafia association: how many years of sentence and legal defence
On the subject of mafia association, ILA’s international team can boast long experience in the field, studded with complex cases of global significance.
In fact, the staff consists of lawyers specialised in mafia-type association, who are particularly experienced in all current legislation on the subject and its updates.
Mafia-type association: the penalties in each case
Anyone who – pursuant to Article 416 bis of the Criminal Code – is part of a mafia-type association consisting of three or more persons shall be punished by imprisonment for a period of between seven and twelve years. Those who promote, direct or organise the association are punished with imprisonment of nine to fourteen years.
This article was introduced into our legal system, precisely among the offences against public order, with the 1982 “Rognoni -La Torre” Law in order to extend punishability also to conduct that does not fall within the scope of criminal association pursuant to Article 416 of the Criminal Code, because it is lawful in itself or because it is not characterised by the will to carry out individual criminal offences. The provision under review is a rule that came into being in the early 1980s in a climate of emergency; at that time, it was thought that a tough and unscrupulous approach was needed to tackle the Mafia.
In general, participation in the mafia association refers to a phenomenon of organised crime given the plurality of active players. Indeed, it is an associative crime that refers to ‘an agreement’ that is ‘directed towards the implementation of a broader criminal programme, which precedes and contains the agreements concerning the carrying out of individual crimes and which persists after the carrying out of each of them’.
Pursuant to Article 416 bis of the Criminal Code, a promoter is to be understood as the person who initially instigated the association, a breeder is to be understood as the person who, together with the promoter, determined the birth of the association, and an organiser is to be understood as the person who regulated its activity.
As for the mere ‘participant’, on the other hand, he is the one who makes his contribution available on a permanent basis. He must be included in the association’s structure in a way that he is always available.
What is the difference between mafia and criminal conspiracy?
On this topic, one of the main questions many people ask is: ‘What is the difference between mafia and criminal conspiracy?’.Well, the answer to this question is by no means straight forward and allows us to fully understand the reason for the introduction of this specific type of crime into our legal system.
Mafia-type association, in fact, was created as a specification and differentiation from criminal association and, in addition to providing for much more serious penalties, it differs in three regards:
1) The mafia method, i.e. the strength of the associative bond and the victims’ condition of secrecy,
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 mafia power.
In this context, the staff of International Lawyers Associates is able to provide an unparalleled defence. In fact, the ILA associated law firm boasts the collaboration of lawyers who are experts in mafia association, highly experienced professionals who have gained their experience by participating in the most delicate trials. These are lawyers who, without seeking media resonance, not even in the case of maxi-trials, have supported the defence of individuals accused of some of the most serious crimes in our legal system.
What constitutes a mafia-type association
An association is of the mafia type – when those who are part of it make use of the intimidating force of the association bond and of the condition of subjugation and code of silence deriving therefrom to commit offences, to directly or indirectly acquire the management or control of economic activities, concessions, authorisations, contracts and public services or to obtain unjust profits or advantages for themselves or others, or in order to prevent or hinder the free exercise of the vote or to procure votes for themselves or others during electoral consultations. The rigging of elections and voter fraud.
The provision in question therefore expressly identifies intimidation and subjugation as the main elements of the offence. In this regard, the prevailing case law holds that the ‘force of intimidation’ must be understood in the sense that: “the association has as its plan the use of force of intimidation to achieve its aims, therefore, it is not considered necessary for the association to actually resort to intimidating acts. Therefore, there is not necessarily a need to resort to acts of threat, but there must be a penetrating and perceptible halo of intimidating and overpowering presence, the result of a lifestyle consolidated over time”.
In this sense, the condition of subjugation and code of silence is the direct consequence of the actual manifestation of the intimidating force of the association bond. In these terms, subjugation consists in a state of psychological submission or subjection that is manifested in the potential victims of the association, and is in no way to be referred to the individual associates, assuming a relationship of subjection between them and the leaders. Omertà (code of silence), on the other hand, constitutes a typical element of the offence and is directly related to the intimidation force of the mafia-type association. This, in fact, consists in the refusal to cooperate with the organs of the State and may derive from the fear of harm to one’s person, so that there is a widespread conviction that cooperating with the judicial authorities will not prevent serious harmful retaliation.
In any case, it is necessary to specify how the lawyer’s duty is to defend everyone, victims, and alleged perpetrators. The criminal lawyer must be able to ensure that the trial is conducted in accordance with the law and that guilt is established at the end of a ‘fair trial’ without intrusion by the media and, above all, without any kind of sensationalism.
It is the policy of the criminal law firm International Lawyers Associates to accept any kind of defence, demonstrating a particular competence for all those ‘mafia-style’ crimes that are so controversial today.
If an association is armed
Our legal system provides for certain aggravating circumstances, for this type of offence, that allow the judge, if challenged, to increase the sentence even considerably; among these is the armed connotation of the association.
If the association is armed, in fact, the punishment of imprisonment from nine to fifteen years in the cases provided for in the first paragraph and from twelve to twenty-four years in the cases provided for in the second paragraph applies.
The association is considered armed when the participants have the availability, for the achievement of the purpose of the association, of weapons or explosive materials, even if concealed or kept in a storage place. If the economic activities of which the members intend to take or maintain control are financed in whole or in part with the price, product, or profit of crimes, the penalties established in the previous paragraphs shall be increased by between one third and one half.
In general, offences related to organised crime are subject to very severe penalties: prison terms of 12 to 18 years and the penalty, as illustrated above, isincreased if the offence is committed with weapons or is financed by illicit profits.
In this regard, the aggravating circumstance of the availability of weapons, referred to in Article 416-bis, paragraphs 4 and 5, of the Criminal Code, can be imposed on participants who are aware of their possession by the criminal syndicate or who, through negligence, are unaware of it. (Criminal Cassation, Sec. VI, Judgment No. 32373 of 19 July 2019).
The person who assumes the defence in the light of the aforementioned challenge must try to find the best way to protect his client; a way that in these cases is most often represented by an effective technical defence.
The legislator for this criminal hypothesis has provided that in addition to imprisonment, the judge must also impose the accessory penalty of confiscation of assets constituting profits or proceeds of mafia offences. These assets become the property of the State, which generally reuses them for social purposes, creating associations or cooperatives to help mafia victims.
In respect of the convicted person, therefore, it is always mandatory to confiscate the things that served or were destined to commit the offence and the things that are the price, the product, the profit, or that constitute its use.
Asset confiscation orders issued by the Judicial Authority against persons under investigation for offences related to the mafia organisation have always come up against an often insurmountable obstacle: the diversity of application of criminal measures between EU Member States, which made such measures unenforceable. It has often been the case that a measure issued by the Italian authority was not executed because in the destination State, where the assets to be subjected to the measure were located, that measure was not enforceable due to different legislation.
As of today, however, thanks to Regulation 2018/1805 (directly applicable, unlike directives, which require ratification by the Member States), an important extension of the scope of the Italian preventive measures has been implemented, bringing them to the European level.
This is, therefore, one more reason to rely on the lawyers specialising in mafia-type associations at International Lawyers Associates, who are constantly updated on all the national and international legislation relating to the crime under Article 416 bis of the Italian Criminal Code.
Intimidating force of the association bond
The provisions of this article also apply to the Camorra, the ‘ndrangheta and other associations, however locally denominated, including foreign ones, which, making use of the intimidating force of the associative bond, pursue aims corresponding to those of mafia-type or organised criminal gangs.
With regard to the different types of mafia-type associations, the prevailing case law holds that, in order to prove the existence of a mafia-type association, it is necessary to demonstrate the existence of a force of intimidation accumulated through the perpetration of violent crimes capable of generating fear; such violent actions do not necessarily have to be contextual to the conduct of participation, as they may pre-exist the same. Moreover, the most important fact is that for ethnic-based mafias, the intimidation force of the group does not necessarily have to be directed towards the subjugation of the population of a territory, but can also be functional to the control and subjugation of a restricted group of people belonging to the same community.
Of course, in this field, seriousness and competence of defence are fundamental, and these, as is well known, are skills that our team of professionals is able to offer, thanks to a staff of lawyers experienced in mafia association.