In the Italian legal context, the associative offense entails the formation of an association, an organization composed of at least three individuals who come together to create a stable structure with a legally distinct personality from the individual participants. This association must be capable of pursuing a specific and pre-defined criminal program.
Associative offenses, prominently featuring Article 416 of the Italian Penal Code, constitute a category of multi-subject or necessary-concourse crimes.
Essential Requirements for Associative Offense
To establish an associative offense, it is crucial not only to have a minimum number of participants (at least three people) but also to establish a stable and enduring connection with the aim of executing a criminal program.
It is important to underline that the penalty applies to each participatory action, regardless of whether the crimes planned by the association are actually committed.
On the other hand, mere participation in the criminal organization does not automatically entail responsibility for crimes committed by other members.
A legally relevant association requires a stable organization, even if rudimentary, designed to persist over time and suitable to achieve the criminal objectives established at its inception.
Association for Criminal Conspiracy under Article 416 of the Italian Penal Code
Article 416 of the Italian Penal Code penalizes those who promote, establish, or organize an association with the intent to commit a series of crimes. Even mere participation in the association constitutes an offense.
For the offense of criminal conspiracy, the presence of a structural organization, even if minimal, of individuals and resources functional to the commission of an indeterminate series of crimes is necessary. It is important that individual participants are aware of being part of a lasting association and are willing to contribute to the execution of the common criminal program.
Essential Elements of Criminal Conspiracy
Criminal conspiracy is characterized by:
- Tendency Toward Permanent Associative Bond: There exists a lasting connection between the members of the association, aimed at the implementation of a criminal program.
- Indeterminacy of the Criminal Plan: The criminal plan may encompass a wide range of crimes without specific limitation.
- Organizational Structure: Even if minimal, it must be suitable and adequate to achieve criminal objectives.
To establish the offense of criminal conspiracy, specific intent (dolus) is required, which implies awareness of active participation in the association and a willingness to be part of it.
In summary, criminal conspiracy under Article 416 of the Italian Penal Code is a crime of danger, based on a stable associative bond, an indeterminate criminal plan, and an adequate organizational structure.
Mafia-Type Association under Article 416-bis of the Italian Penal Code
Article 416-bis of the Italian Penal Code, introduced by Law 646/1982, extends liability to conduct outside of the criminal conspiracy of Article 416, which may be legal or not directly related to the commission of crimes.
Mafia-type association may not be aimed at committing specific crimes, but legitimate activities can become illicit due to the association itself.
Elements of Mafia-Type Association
Mafia-type association is characterized by:
- Broad Scope: It is not limited to the commission of specific crimes but may also include activities such as infiltration into politics, public administration, and the economy.
- Protection of Public Order: It punishes criminal organizations, such as mafia-like groups, that threaten democratic order and economic freedom.
Mafia-type association can involve various conducts, including participation, promotion, direction, and organization. What distinguishes this association is the “mafia method” used to carry out the criminal program.
The Mafia Method
The “mafia method” consists of:
Intimidation Force: The association uses an intimidating force to coerce victims into psychological submissiveness, regardless of the actual commission of violent acts or threats.
Subjugation and Omertà: Victims undergo psychological subjugation and a condition of omertà due to the intimidation exercised by the association.
The required subjective element for mafia-type association is the specific intent (dolus) to want to be part of the association, with awareness of its purposes and the intimidating means used. It is necessary to make a significant contribution to the association and its goals.
Association for Drug Trafficking under Article 74 of DPR 309/90
Article 74 of the Presidential Decree no. 309/1990 (Unified Text on Narcotics) punishes the promotion, establishment, direction, organization, financing, and participation in an association aimed at the illicit trafficking of narcotics.
This offense aims to protect both public health and public order.
The association for drug trafficking involves multiple individuals collaborating to gain profits from drug trafficking. It is essential for all individuals to be aware of operating within an organization and contributing to the common goal of profiting from the drug trade.
A true organizational structure is not required; rather, the convergence of significantly integrated behaviors within a context of stable and continuous availability is sufficient.
In the association for drug trafficking, roles include the promoter, founder, organizer, financier, and leader, each with specific functions within the association.
The offense requires specific intent (dolus), implying awareness and willingness to actively participate in the permanent and stable execution of the criminal program. The associative bond can be based on the relationship between the drug supplier and the drug dealers, provided all contribute to the common purpose of drug trafficking.
In conclusion, association for delinquency concerning narcotics is a complex offense involving the formation of an organization aimed at the illicit drug trade, with well-defined objective and subjective requirements. Its punishment aims to protect public health and public order.