THE
FIGHT AGAINST ORGANISED CRIME IN THE
COMMON APPROACH?
EUROPEAN UNION:
TOWARDS A
Francesca Greco
Abstract
During the last years, the fight against organised crime has become a priority for the European
Union. The awareness of the necessity to contrast this transnational phenomenon, however, has not
been followed by an appropriate answer at the European level due to member States’ prime interest
to protect their sovereignty. Indeed, the new instruments posed at the disposal of the European
Union by the Lisbon Treaty are, nowadays, barely exploited.
In the field of substantial criminal law, the 2008 Framework Decision reaches a disappointing
definition of the concept of organised crime. It is possible to assess that today member States
conduct the fight against these criminal groups following mainly their national legislations. Being
aware of this failure, the European Union should acknowledge the opportunity introduced by the
Lisbon Treaty and draft a directive able to achieve the purposes set by its policy against organised
crime.
Differently, the European Union’s action has been more successful, for what concerns the
harmonization of the provisions on confiscation, considering the introduction of a specific directive
in 2014. Only after the implementation’s deadline, it will be possible to verify the real achievements
reached by this act.
Furthermore, exploring the investigative measures to tackle organised crime, the Lisbon Treaty
provides, in article 86 TFEU, the legal basis for the potential establishment of a European Public
Prosecutor’s Office, with the possibility to include transnational organised crime in its competence.
Even if the recent debate on the EPPO takes into consideration only a limited function of this
institution, restricted to the protection of the European Union’s financial interests, nonetheless, it
would play a role in the fight against organised crime, considering the link existing between
criminal organisations and European frauds.
For suggestions, comments and information: cescagreco@libero.it
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THE FIGHT AGAINST ORGANISED CRIME IN THE EUROPEAN UNION: TOWARDS
A COMMON APPROACH?............................................................................................................. 1
ABSTRACT ........................................................................................................................................ 1
I. INTRODUCTION .............................................................................................................................. 4
II. THE PROBLEMATIC DEFINITION OF THE CONCEPT OF ‘ORGANISED CRIME’: BOUNDARIES AND
PECULIAR FEATURES ......................................................................................................................... 4
II.1 A miscellaneous scenario within the European context ........................................................ 5
II.2 Reactions to the claims for harmonization in the sector of organised crime ........................ 6
a) The Joint Action on making it a criminal offence to participate in a criminal organization in
the member States of the European Union (98/733/JHA)............................................................ 7
b) The United Nations Convention against Transnational Organized Crime (2000): an
important incentive ...................................................................................................................... 7
c) The Framework Decision on the Fight Against Organized Crime (2008/841/GAI): a
disappointing definition ............................................................................................................... 9
II.3 The wishful introduction of Mafia-type criminal organizations ......................................... 14
III. THE IMPLEMENTATION OF AN EFFECTIVE SANCTION IN ORDER TO FIGHT ORGANISED CRIME:
THE CONFISCATION OF PROCEEDS FROM CRIME ........................................................................... 16
III.1 The necessity to confiscate organised crime’s incomes ..................................................... 16
III.2 The characteristics of the confiscation according to the European Union’s Directive
2014/42/EU ................................................................................................................................ 18
III.3 The disposal of confiscated assets: the importance of the social destination .................... 21
IV. THE COMMON INVESTIGATIVE ACTION AGAINST ORGANISED CRIME ......................................... 22
IV.1 The EPPO’s role in the fight against organised crime ...................................................... 23
V. CONCLUSIONS ............................................................................................................................ 27
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I. Introduction
In the last few years, European States witnessed the development of the phenomenon of organised
crime in the whole European Union’s territory. The growth of criminal organisations was strictly
connected to their changing nature, which was capable to adapt to mutable circumstances. Indeed,
they could expand their ‘business’ and their criminal activities easily, through the exploitation of
the European common area, free from boundaries, taking advantage of the differences among
national legislations. Criminal organisations started behaving as a sort of entrepreneurs, settling
their activities in other member States’ territory.
This silent transformation was followed, after several years, by the European States’ awareness of
the necessity to defeat this transnational phenomenon adopting a shared strategy able to ensure
freedom, security and justice in the common space. Nowadays, it is possible to assess that the fight
against organised crime constitutes a priority for all European countries, taking into account the size
and the power reached by criminal organisations at the European level.
These considerations led to the European Union’s call for the settlement of minimum rules,
applicable by all member States, starting from the necessity to agree upon a common definition of
‘organised crime’ in order to identify a precise phenomenon. The same exigency brought the
European Union to approve a directive concerning confiscation, in order to harmonize national
legislations in that field. Finally, the European legislator faced the issue of cooperation among
member States’ competent authorities, proposing to centralize the investigations at the supranational
level.
The scope of this paper is to illustrate the strategy undertaken by the European Union in the
abovementioned matters, highlighting successes and criticalities, in the firm belief that greater
efforts are needed in order to achieve the purposes set by the European Union to eradicate organised
crime from the European scenario.
II. The problematic definition of the concept of ‘organised crime’: boundaries and peculiar
features
Finding a common definition of ‘organised crime’ turned out to be problematic. The troubles
derived from the difficulty to identify precise boundaries of a changing phenomenon, able to
assume different shapes and to refer to a sheer amount of activities that change and adapt to the
environment in which criminal organisations operate. Moreover, States needed to take into
consideration all the peculiarities of organized crime.
4
The achievement of this challenge demonstrated to have a greater impact on the creation of a space
of freedom, security and justice. Indeed, the absence of a common and shared definition undermines
the whole process of harmonization, needed in order to tackle these criminal organisations. For this
reason, the resolution of this problem has preliminary nature compared to the final aim of the
European Union, namely to eradicate, once for all, the phenomenon of organised crime from the
territory of member States.
II.1 A miscellaneous scenario within the European context
The origin of the difficulty to find a common definition needs to be contextualized in the European
panorama. Indeed, it is indispensable to observe that member States, belonging to different judicial
systems, handle this subject matter in very diverse, if not opposite, ways. Within the context of the
European Union, usually, three macro areas can be identified, each one portraying a different
judicial tradition: the common law, the civil law and the Scandinavian.
Legislations of common law States consider the crime of conspiracy, consisting in «the agreement
to commit a crime»1. These countries similarly believe that the conspiracy crime is sufficient to deal
with the membership of a criminal organization, without feeling the necessity to introduce a more
specific provision. This derives also from the fact that the phenomenon of organised crime had not a
great evolution in these countries, differently from others, for instance, Italy and the United States,
which faced the presence of complex criminal organizations, such as the Mafia.
The civil law approach, instead, is based on the provision concerning the association de
malfaiteurs, which was originally included in the Criminal Code of France in 1810 (articles 265268)2. The concept of an association or organization is essential for civil law States in order to
punish specifically the participation in groups having criminal purposes3. However, even within a
same approach it is possible to individuate different trends. Some States introduced a more specific
criminal organization offence, taking into account particular types of criminal organisations, such as
Mafia-type, in order to better address this issue in criminal law ( for example, Italy (article 416-bis
of the Penal Code).
Differently, Scandinavian States showed a clear skepticism towards the introduction of a precise
criminal organization offence. Indeed, this approach has traditionally rejected the idea of punishing
specifically these crimes. Scandinavian States, instead, ensure the punishment of groups or
F. CALDERONI, La decisione quadro dell’unione europea sul contrasto alla criminalità organizzata e il suo impatto
sulla legislazione degli stati membri, 27 in S. ALFANO E A. VARRICA (edited by), Per un contrasto europeo al crimine
organizzato e alle mafie, Milano, 2012; S. ALEO and G. PICA, Diritto Penale. Parte speciale I, Padova, 2012, 121.
2
F. CALDERONI, Organized Crime Legislation in the European Union. Harmonization and Approximation of Criminal
Law, National Legislation and the EU Framework Decision on the Fight Against Organized Crime, Heidelberg, 2010,
58; S. ALEO, Sistema penale e criminalità organizzata. Le figure delittuose associative, Milano, 2009, 68.
3
F. CALDERONI, A definition that does not work: the impact of the EU framework decision on the fight against
organised crime, in Common Market Law Review, 2012, 1378.
1
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organization applying the discipline of aggravating circumstances and the general provisions on
complicity4. The reason of this behavior lies on the fact that these countries start experiencing crossborder organised crime only in more recent years. Indeed, historically, the presence of criminal
organizations in these countries has always been very low, such as the degree of violence among
them and the scale of infiltration in the legal economy.
At this point, it is clear that the large variety of legislations present in Europe faces the matter of
organised crime in very different ways. Each State sets the measures that it believes more
appropriate to contrast the phenomenon. This, of course, depends mostly on the degree of organised
crime each country experienced through years.
Nonetheless, the reality has changed and, nowadays, organised crime, taking advantage of the
freedoms recognized by European Treaties, started using economic and financial resources
connected to the global market, infiltrating in the whole European, borderless, society5. The
transnational nature of organised crime showed the expansion of this phenomenon throughout the
European Union’s member States, finding States unprepared to contrast this international criminal
cooperation6. The aforementioned approaches, indeed, became insufficient and inadequate to face
such criminal phenomena having transnational dimension, which required the adoption of a
European and international point of view, able to integrate with member States’ fundamental values
and principles.
II.2 Reactions to the claims for harmonization in the sector of organised crime
The process of harmonization encountered difficulties in combining the different legal traditions.
However, the European and the international community made few efforts in order to perform this
delicate task. In particular, three international legal instruments tried to fulfill this onerous task: The
Join Action on making it a criminal offence to participate in a criminal organization in the member
States of the European Union (98/733/JHA) of 1998 (hereinafter: Joint Action), the United Nations
Convention against Transnational Organized Crime of 2000 (hereinafter: Palermo Convention) and
the Framework Decision on the Fight against Organized Crime of 2008 (2008/841/GAI)
(hereinafter: Framework Decision).
4
F. CALDERONI, A definition that does not work, op. cit., 1378; F. CALDERONI, La decisione quadro, op. cit., 27.
For a deep analysis with several data see Europol, SOCTA 2013 EU Serious and Organised Crime Threat Assessment,
2013 (hereinafter: Europol, SOCTA 2013).
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An important consideration is made by G. O. W. MUELLER, Transnational Crime: Definitions and Concepts, in P.
WILLIAMS and D. VLASSIS (edited by), Combating Transnational Crime. Concepts, Activities and Responses, New
York, 2001, where the author states at 13: «It must be noted that the term ‘transnational crime’ did not have a judicial
meaning then, and it does not have one now. It is a criminological term, under which may be lumped what is variously
and differently defined in the penal codes of states, but with the common attribute of transcending the jurisdiction of
any given state». The term transnational crime refers to a large amount of very different criminal activities. For a deep
analysis with several data see Europol, SOCTA 2013 EU Serious and Organised Crime Threat Assessment, 2013.
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a) The Joint Action on making it a criminal offence to participate in a criminal
organization in the member States of the European Union (98/733/JHA)
The Joint Action provided the first definition of organised crime in international law. It regulated
this subject matter until the entry into force of the Framework Decision on the fight against
organized crime in 2008, which replaced it, as it turned out to be unsatisfactory and insufficient for
the following reasons7.
On one side, the definition of organised crime introduced was broad and vague, almost matching
the mere participation in a crime8. Indeed, the characteristic elements provided were three: first, the
participation of at least three people; second, the establishment over a period of time; third, the
condition of concert between its members’ actions. This extremely generic definition did not
consider the peculiarities of organised crime. Indeed, it could include the commission of numerous
crimes by at least three people with a simple degree of organization. Moreover, in order to be
qualified as a criminal organization, the group’s purpose had to be the commission of crimes. This
leads to a first problematic consideration. Indeed, the quantitative threshold set by the Joint Action
could not guarantee an effective harmonization as States envisage very different penalties’ levels.
For these reasons, the Joint Action was widely criticized.
On the other side, the Joint Action adopted a double model offence of participation in a criminal
organization influenced by the civil law associative crimes and common law conspiracy model9.
This solution allowed to conciliate different traditions and to obtain a unanimous consensus,
sacrificing the achievement of the creation of common basis to fight organised crime.
b) The United Nations Convention against Transnational Organized Crime (2000): an
important incentive
The United Nations played an important role in the fight against organised crime, recognizing the
transnational nature of the phenomenon and adopting an ad hoc treaty with the aim to lay the
foundations of a common strategy shared by the international community as a whole10. The Palermo
Convention is significant as it influenced the subsequent developments of the European measures
against organised crime11.
Article 1(1) of the Joint Action. See U. GUERINI (edited by), Il Diritto Penale dell’Unione Europea. La normativa, la
dottrina, la giurisprudenza europea in materia penale e la cooperazione giudiziaria, Torino, 2008, 167-169.
8
F. CALDERONI, Organized Crime Legislation in the European Union, op. cit., 27.
9
Article 2(1) of the Joint Action.
10
United Nations Office on Drugs and Crime, Legislative Guides for The Implementation of the United Nations
Convention Against Transnational Organized Crime and the Protocol Thereto, New York, 2004 (hereinafter: UN
Legislative Guides for the implementation of the Palermo Convention), at xvii-xviii.
11
United Nations Convention against Transnational Organized Crime, General Assembly Resolution 55/25 of 15
November 2000 (hereinafter: Palermo Convention). U. GUERINI (edited by), Il Diritto Penale, op. cit., 169. It is
important to bear in mind that the European Union itself is a party to the treaty since 29 April 2004. See Council of the
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The Palermo Convention had the primary objective to strengthen international cooperation in the
law enforcement related to organised crime12. As a consequence, the drafters did not concentrate
excessively on the issue of the definition of organised crime, which was left aside.
First, after defining in Article 313 of the Palermo Convention when an offence is transnational, the
treaty offers a definition of organised crime, which recalls the vague definition included in the Join
Action. It explains the concept of ‘structured group’ in a negative way excluding randomly formed
groups. As the joint Action, the only positive elements required by this article, namely a certain
period of time and the concert among members, are extremely vague and unclear. Differently, it
excludes «groups that do not seek to obtain any “financial or other material benefit”»14. Moreover,
following the Joint Action, it applies again a quantitative criterion in order to define ‘serious crime’.
In this sense, it is possible to refer to the same criticisms made previously, also considering the
much more diverse sanctioning regimes among the 147 parties to the Palermo Convention.
Furthermore, for the criminal responsibility, the Palermo Convention followed again the double
model approach adopted by the Joint Action. This choice allowed States to apply the provisions of
the Palermo Convention without introducing a new unfamiliar notion in their national legislation15.
Indeed, article 5 of the Palermo Convention specifies that State parties can refer, alternatively or
cumulatively, to the two different modes of liability reflecting the civil law and the common law
models.
In conclusion, the Palermo Convention did not solve the problems that affected to the Joint Action,
preferring to follow its structure with few improvements. Indeed, the Palermo Convention enshrined
a compromise between States belonging to different legal traditions. At the origin, there is the
shared necessity to fight organised crime through the settlement of a common and universal line of
attack, strengthening judicial cooperation and harmonizing legislations the legislative instrument.
This affirmation is solidly grounded on the belief that it is indispensable to plan a common action,
considering the repression of organised crime a paramount priority of the international community.
European Union, Decision on the conclusion, on behalf of the European Community, of the United Nations Convention
Against Transnational Organised Crime (2004/579/EC), OJ L 261, 6.8.2004, p. 69–69, 29 April 2004.
12
Palermo Convention, article 1 which states: «The purpose of this Convention is to promote cooperation to prevent
and combat transnational organized crime more effectively».
13
Palermo Convention, article 3 which states: «[…] an offence is transnational in nature if: (a) It is committed in more
than one State; (b) It is committed in one State but a substantial part of its preparation, planning, direction or control
takes place in another State; (c) It is committed in one State but involves an organized criminal group that engages in
criminal activities in more than one State; or (d) It is committed in one State but has substantial effects in another
State».
14
UN Legislative Guides for the implementation of the Palermo Convention, 13, §26.
15
Ibidem 22, §15; A. CENTONZE, Contiguità Mafiose e Contiguità Criminali, Milano, 2013, 227-229.
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c) The Framework Decision on the Fight Against Organized Crime (2008/841/GAI): a
disappointing definition
Three events led to the introduction, within the context of the European Union, of the Framework
Decision on the Fight against Organized Crime (2008/841/GAI) (hereinafter: Framework Decision).
First, the Treaty of Amsterdam introduced the instrument of framework decision as a proper mean
to approximate criminal law in the European Union. Second, the Palermo Convention bounded, at
the international level, State parties to criminalize the involvement in an organised criminal group.
Third, the drafting of the Framework Decision on combating terrorism of 13 June 2002
(2002/475/JHA), which uses the definition of ‘criminal organisation’ provided in the Joint Action
of 1998 to define ‘terrorist group’16. In particular, the entry into force of the Palermo Convention
required member States to amend the Joint Action in order to guarantee the compatibility between
the European Union’s law and the international treaty17. Given the criticalities of the Joint Action,
highly expectations accompanied the introduction of a new, high quality measure. The arrangement
of the Framework Decision was guided by the ambition to reach a high level of harmonization and
approximation within the European Union18. As further assessed, the Framework Decision has been
highly criticized as it did not reach its major scope, namely trying to overcome the national
differences through a specific discipline. Indeed, the high conformity of domestic legislation with
the provisions of the Framework Decision, rather than being the result of a successful
approximation, derives from its extreme vagueness and broadness19.
Article 1 of the Framework Decision defines the concepts of ‘criminal organisation’ and ‘structured
group’ in a very similar way to the Palermo Convention, even though it maintains the Joint Action’s
expression of ‘criminal organization’ and not the Palermo Convention’s ‘organised criminal
groups’20. The positive elements, which identify a criminal organization and its modus operandi, are
16
F. CALDERONI, Organized Crime Legislation in the European Union, op. cit., 35-36. See also Communication from
the Commission to the Council and the European Parliament on measures to be taken to combat terrorism and other
forms of serious crime, in particular to improve exchanges of information, COM(2004)221 final, 29 March 2004, 5-6.
Indeed, instruments provided to contrast organised crime were used also to fight terrorism.
17
V. MITSILEGAS, The Council Framework Decision on the Fight Against Organised Crime: what can be done to
strengthen EU legislation in the field?, Brussels, 2011, 11. See also V. MITSILEGAS, The third wave of third pillar law:
which direction for EU criminal justice?, in European Law Review, 2009, 523 ss., 527-529.
18
A. DAMATO, P. DE PASQUALE and N. PARISI, Argomenti di Diritto Penale Europeo, Torino, 2014, 207 ss.; N.
PIACENTE, La Decisione Quadro 2008/841/GAI del Consiglio del 24 Ottobre 2008 relativa alla lotta contro la
criminalità organizzata, 90 ss., in L. DE MATTEIS et al., Diritto penale sostanziale e processuale dell’Unione Europea.
Il diritto penale e la procedura penale negli strumenti legislativi dell’Unione Europea, Padova, 2011.
19
F. CALDERONI, A definition that does not work, op. cit., 1366.
20
Framework Decision, article 1 which states: «For the purposes of this Framework Decision: 1. ‘criminal
organisation’ means a structured association, established over a period of time, of more than two persons acting in
concert with a view to committing offences which are punishable by deprivation of liberty or a detention order of a
maximum of at least four years or a more serious penalty, to obtain, directly or indirectly, a financial or other material
benefit; 2. ‘structured association’ means an association that is not randomly formed for the immediate commission of
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not mentioned, while, the features included in the definition are really broad as, for example, the
clause which requires the group to be «established over a period of time»21, without specifying this
term.
The Framework Decision also maintains the quantitative criterion to define serious crimes («[…]
offences which are punishable by deprivation of liberty or a detention order of a maximum of at
least four years […]») without overcoming all criticisms already mentioned in relation to the
previous instruments22. Indeed, the different sanctioning policies of European member States should
have again alerted the European legislator about disparities among the penalties provided for by
law. In this sense, States consider different offences within the threshold provided by the
Framework Decision. Moreover, they might decide to raise or reduce national penalties with the
purpose of including, or excluding, some offences in the definition of organised crime23. The
alternative opportunity to provide a list of crimes recognized emblematic of organised crime was
taken into consideration during the negotiations of the Palermo Convention. After the discussion,
the option of drafting a list of typical crimes was rejected as States thought that a list of crimes
could easily become obsolete, bearing in mind the flexibility of organised crime which is able to
change and adapt to the development of the society. Therefore, a list would have been too rigid.
Moreover, States disagreed about the introduction of certain offences in the list (such as terrorism),
showing that the content of the list was no pacifically and universally recognized24.
It is clear how the Framework Decision could not overcome the difficulties showed by the previous
measures. Its action was able to correct only some minor issues of the Joint Action, in line with the
provisions of the Palermo Convention. Indeed, the Council seemed to be negligent in considering
the suggestions given by the other European institutions which expressed their concerns about the
possible failure of the Framework Decision25. Two episodes can show this attitude.
First, the European Parliament supported the idea of the necessity of restricting the sphere of
applicability of the concept of criminal organization. In its Legislative Resolution of 26 October
2005, it suggested to modify the definition of structured group in order to better distinguish criminal
organizations from groups of co-criminals26. The Council, though, disregarded this advice.
an offence, nor does it need to have formally defined roles for its members, continuity of its membership, or a developed
structure».
21
Calderoni criticizes this clause as «[…] it focuses on the group’s potential to last and continue its criminal activities
for a significant or undetermined period». See F. CALDERONI, A definition that does not work, op. cit., 1372.
22
Article 1 of the joint Action.
23
F. CALDERONI, A definition that does not work, op. cit., 1373, 1380. In particular, see Map 1 at 1381.
24
Ibidem, 1374.
25
F. CALDERONI, Organized Crime Legislation in the European Union, op. cit., 37.
26
European Parliament legislative resolution on the proposal for a Council Framework Decision on the fight against
organised crime, P6_TA(2005)0405, OJ C272 E/428, 9.11.2006, amendment 10-Article 1(2). The Parliament proposed
10
Second, it is worth to underline how the Commission’s proposal for a Framework Decision on the
fight against organised crime tried to adopt an innovative point of view. The Commission, indeed,
suggested a single model offence, instead of the double one characterizing the previous legal
instruments, rejecting the conspiracy model offence. Unfortunately, the Council did not support this
‘revolutionary’ single approach and it adhered, again, to the double model offence. Indeed, article 2
of the Framework Decision considers both the civil law and common law models, following the
previous approaches.
Few efforts turned out to be successful from a certain perspective. An outstanding progress made by
the Framework Decision is the settlement of a minimum sanction, requiring a penalty of the
maximum term of, at least, between two and five years27. Indeed, both the Joint Action and the
Palermo Convention did not require any specific sanctions. Another improvement derives from the
rejection of the unclear division between ‘criminal activities’ and ‘other activities’ present both in
the Joint Action and in the Palermo Convention. Instead, the Framework Decision considers only
the conducts of individuals actively participating to the criminal activities of the organization.
Article 2(a) of the Framework Decision lists other non-criminal conducts (i.e. «[…] the provision of
information or material means, the recruitment of new members and all forms of financing of its
activities […]») that need to be criminalized as they constitute a fundamental support to the group’s
activities.
The hard work made to overcome different legal traditions brought to a necessary compromise,
needed in order to obtain a widespread consensus. Such political support was essential in order to
guarantee the implementation of the Framework Decision and, accordingly, a stronger cooperation
in the fight against organised crime. Indeed, to adopt a framework decision under the third Pillar
unanimity was required. However, the preservation of the double model offence, even if necessary
for some aspects, made impossible to achieve a high level of harmonization among the European
States.
Furthermore, the aim of the Framework Decision to introduce a specific offence for the
participation in a criminal organization, distinguishing it from simple groups/association of cocriminals, needed to be balanced with the necessity to avoid a too strict notion of organised crime,
which would exclude some types of criminal groups. The conclusion is that the Framework
Decision ends up to contradict itself28 and to leave great discretional space to the national legislator
to amend the article requiring that the association is structured when it is not randomly formed in order to commit one
or more crimes deriving from one or more acts and underlining that a hierarchical structure is not needed.
27
Framework Decision, article 3(1).
28
In the word of V. MITSILEGAS, The Council Framework Decision, op. cit., 14-15: «[…] The result of this effort is a
seemingly contradictory definition of a criminal organisation: on the one hand, criminalisation requires participation
11
in the interpretation and implementation of the Framework Decision’s provisions, which appear to
be vague and ambiguous. The consequences are rather predictable.
Despite all the concerns about the respect of the principle of legality29, possible different readings,
allowed by the vagueness of dispositions, can undermine the process of harmonization, as the result
can be the acceptance of very diverse approaches, in contrast with the main objective of the
Framework Decision. The definition provided by the Framework Decision is capable of including
several different phenomena that show common basis, but, beyond that, are different from the
notion of organised crime, strictly interpreted. It will be possible to include groups that do not
present a certain degree of danger, which justifies an European action, or the mere participation in a
crime by more than two offenders30.
The result is that member States’ compliance with the Framework Decision derives from the
extensive range of the European provisions. This demonstrates, in Calderoni’s words, that «[…]
legal traditions have prevailed over international and European legal measures»31.
In order to overcome the aforementioned issues, the European legislator, nowadays, has new
instruments at its disposal that, differently from framework decisions, enjoy a certain binding force.
The entry into force of the Lisbon Treaty established a specific legal basis for the harmonization of
in a structured association established over a period of time (structure and duration being the distinguishing features of
the organised crime offences); on the other hand, in case the above requirements prove to be too narrow, a ‘structured
association’ does not really have to be that structured: it does not have to have formally defined roles for its members,
continuity of its membership, or a developed structure. As regards duration, it is enough for such an association not to
be randomly formed for the immediate commission of an offence […]».
29
F. CALDERONI, A definition that does not work, op. cit., 1366, 1372. In particular, the principle of legality is provided
under article 49 of the European Union Charter of Fundamental rights, 2000/C 364/01, 18 December 2000 and under
article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Council of Europe, Rome,
4 November 1950. A corollary of the principle of legality is the clarity of the criminal disposition, which bound the
legislator to draft criminal disposition whose content is determinate and clear. This concern was at the base of the
European Parliament’s opinion, addressed to the drafters of the Framework Decision, to change the wording related to
the structure of the group in the following way: «‘Structured association’ means an association that is not randomly
formed for the immediate commission of one or more acts giving rise to a number of different, or a series of, offences
and that does not need to have formally defined roles for its members, continuity of its membership or a hierarchical
structure». European Parliament legislative resolution on the proposal for a Council Framework Decision on the fight
against organised crime, P6_TA(2005)0405, OJ C272 E/428, 9.11.2006, amendment 10- article 1(2).
30
For example, see E. SYMEONIDOU-KASTANIDOU, Towards a New Definition of Organised Crime, in European Union,
in European Journal of Crime, Criminal Law and Criminal Justice, 2007, 83 ss., 96 ss. Moreover, at 102 the author
says: «[…] unlike common gangs, organised crime does not merely use its infrastructure to commit crimes in order to
obtain material benefits, but it also uses the proceeds of its criminal activities in order to strengthen its infrastructure investing huge amounts of money and using state-of-the-art technological means - so as to achieve power at a political
level and (or) to intervene in the licit market». C. FIJNAUT and L. PAOLI, Organised Crime in Europe: Concepts,
Patterns and Control Policies in the European Union and Beyond, Dordrecht, 2004, 41.
31
F. CALDERONI, A definition that does not work, op. cit., 1387: «[…] This signals that legal traditions have prevailed
over international and European legal measures. Overall, the analysis substantiated the trompe l’oleil nature of the
FD: its provisions are so broad that all the significantly diverging national legislation of the EU member States are
formally in compliance with them». Member States’ compliance with the Framework Decision is summed up in Map 2,
at 1387 of the same article. Moreover, the author conducted an in-depth analysis of the compliance of different member
States at 1378 ss.
12
criminal provisions relating to transnational serious crime, introducing directives32. These lasts
represent, in the new contest of the European Union, the ordinary sources of law for the
harmonization process in criminal matters, overcoming the issues related to the deficit of democracy
of the third pillar’s instruments33.
A future directive on organised crime is recommended. It will be necessary to identify the peculiar
characteristics of the phenomenon, which several studies acknowledge as: continuity, violence,
enterprise and immunity34. Indeed, definitely, organised groups present a stable and continuous
organization which aims to perform a criminal plan. A peculiarity, of course, is the use of force in
order to intimidate and threaten both the population/victims and the other criminal groups.
Moreover, the whole amount of activities of the criminal groups represents a mean needed to
achieve the organization’s main objectives, namely to gain profits and power through the «[…]
production and/or exchange of illegal goods and/or services in illegal markets»35.
In conclusion, the Framework Decision has been highly criticized by both relevant authors and by
institutions. The European Parliament, with the adoption of the Resolution on organized crime in
the European Union of 25 October 2011, recognized the «[…] extremely limited impact on the
legislative systems of the member States of Framework Decision 2008/841/JHA on organised crime,
which has not made any significant improvement to national laws or to operational cooperation to
counter organised crime […]»36. It also requested the Commission for a new proposal «[…] which
contains a more concrete definition of organised crime and better identifies the key features of the
phenomenon, focusing in particular on the key concept of organisation and also taking into account
new types of organised crime […]». Moreover, the Council specifically invited the Commission to
elaborate «[…] study of the abolition of the current dual approach (which criminalises both
membership and conspiracy) and the identification of a range of typical offences which, regardless
of the maximum sentence permitted in the legal system of member States, could be deemed to
constitute such a criminal offence […]».
32
TFEU, article 83.
C. GRANDI, Le « qualità » della norma penale correlate al procedimento formativo nazionale e a quello europeo,
392, in G. GRASSO, L. PICOTTI and R. SICURELLA (a cura di), L’evoluzione del diritto penale nei settori d’interesse
europeo alla luce del Trattato di Lisbona, Milano, 2011. With regard to the framework decisions, the previous
discipline attributed to the Council a primary function in the adoption of these instruments, leaving to the European
Parliament a mere advisory role. Differently, directives, which need to be implemented by national legislators, are
adopted, according to article 83 TFEU, following the ordinary legislative measure, therefore complying, to a greater
extent, with the principle of legality.
34
These four elements are individuated as the characteristics identifying organised crime in F. CALDERONI, Organized
Crime Legislation in the European Union, op. cit., 42.
35
F. CALDERONI, Organized Crime Legislation in the European Union, op. cit., 42.
36
European Parliament, Resolution of 25 October 2011 on organised crime in the European Union (2010/2309(INI)),
2013/C 131 E/08, 25 October 2011 (hereinafter: Resolution of 25.10.11 on organised crime in the EU), §7.
33
13
Rather than suggesting new and effective solutions, the Council has always preferred to rely on the
choices made by the previous international instruments. Therefore, in the light of the provisions of
the Lisbon Treaty and according to the recent European Parliament’s resolution, a new measure is
desirable, if States want to persevere in this battle in a more efficient way. In this sense, the
introduction of a directive providing a more precise definition of organised crime, able to consider
the peculiar features of this phenomenon, could be a turning point in the European strategy against
organised crime.
II.3 The wishful introduction of Mafia-type criminal organizations
Mafia-type criminal organisations present their own peculiarities, diverging, for some aspects, from
ordinary organised crime. Within Mafia-type groups, it is not possible to generalize referring only
to the Mafia, as there are several subspecies, which share a common basis, even if they deviate from
the model of the Sicilian Mafia. For example, in Italy, the main groups, Mafia, Camorra,
‘Ndrangheta and Sacra Corona Unita present some differences in the structure or in the way to
operate, but still they are ascribable to the same maxi-area of Mafia-type organizations37.
The European Parliament suggested to consider the participation in organised crime as an
aggravating circumstance when «[…] (c) the criminal organisation is of the mafia type, i.e. it makes
use of the intimidation inherent in bonds of association and of the power over others and code of
silence which arise from that intimidation for the purposes of committing offences, acquiring
directly or indirectly the power to manage or control economic activities, licences, authorisations,
public contracts and services, gaining unjust enrichment or advantage for itself or others, impeding
or obstructing the free exercise of the right to vote, or procuring votes for its members or for others
in elections»38. From this statement, it is possible to recognize, as peculiar features of Mafia-type
organization, two elements, which are commonly used to refer to this phenomenon: the use of
intimidation and the code of silence39. First, ordinary organised crime shows a stable organization
created in furtherance of the commission of criminal activities. Additionally to this, Mafia-type
groups use the power of intimidation in order to create, around them, a favorable environment for
the execution of the offences. Second, the code of silent, the so-called omertà, is fundamental.
Omertà stands for a «systematical refusal to cooperate with justice […] caused by the fear of action
37
For a recent analysis of the Italian Mafia-type organizations see Europol, Threat Assessment. Italian Organised
Crime, The Hague, 2013 (EDOC#667574 v8), 3.
38
European Parliament legislative resolution on the proposal for a Council Framework Decision on the fight against
organised crime, New article 3(2b)-Amendment 16. These proposals were not adopted by the Council.
39
E. SYMEONIDOU-KASTANIDOU, Towards a New Definition, op. cit., 99.
14
linked to the mafia threat»40. Moreover, Mafia-type organizations exercise an overall control over a
specific territory. They maintain the legal order over their own region, acting as legitimate and valid
organizations, through the use of force and threats, performing State-like functions. They claim
sovereignty over a certain territory41. This power is well recognized by the social environment as
enterprises, subject to the coercive methods of the groups, pay regularly to these the so-called pizzo,
which is a «una tantum tax»42.
Mafia-type organizations are generally divided into autonomous subunits based upon a really tight
bond. The entrance of new adherents in the Mafia-type organization is subject to a precise ritual
ceremony, which is a warning to understand that the mafia membership is a «life-long pact»43. Once
an individual becomes part of the association, the only way to step out is to die. The Italian judge
Giovanni Falcone affirmed that the entrance into Cosa Nostra «[…] commits a man for all his life.
Becoming a member of the mafia is equivalent to being converted to a religion. You never stop
being a priest; nor being a mafioso»44.
Through years, the phenomenon of Mafia-type organizations ceased to be mere Italian, as it
trespasses the national borders and penetrated into other member States. The Duisburg massacre
was an example45. The European States became aware, not only of the presence of organised crime
throughout the European Union, but they also acknowledged the existence of a much deep-rooted
phenomenon in their own territories. Indeed, Europol recognized that «Mafia-type Italian organised
crime is a clear and present threat to the European Union (EU). The basis of the power of the
Italian Mafias resides in their control and exploitation of the territory and of the community»46.
The threat posed by Mafia-type organizations to the interests of the European Union is connected
with all the illicit activities they exercise, such as drug trafficking, corruption, money laundering,
trafficking of waste and counterfeiting of products, throughout the territory of the European Union.
40
V. MITSILEGAS, From National to Global, from Empirical to Legal: The Ambivalent Concept of Transnational
Organized Crime, 58, in M. E. BEARE (ed.), Critical Reflections on Transnational Organized Crime, Money
Laundering, and Corruption, Toronto, 2003.
41
L. PAOLI, The paradoxes of organized crime, in Crime, Law and Social Change, 2002, 51 ss., 73.
42
Ibidem, 74.
43
Ibidem, 76.
44
J. DICKIE, Cosa nostra. A history of the Sicilian Mafia, New York, 2004, 32.
45
See, for example, EUROPOL, Threat Assessment Italian Organised Crime, The Hague, June 2013 (EDOC#667574 v8)
where, talking about the Calabrian ‘Ndrangheta, it states: «[…] An example of the violent nature of this group outside of
Italy was the ‘Duisburg massacre’ in Germany on 15/08/2007, when six Calabrians were murdered in front of a
pizzeria in the town. That violent outburst of an old blood feud between two powerful Clans from San Luca, the PelleVottari and the Nirta-Strangio, marked a decisive turning point in international police cooperation against the Italian
mafia. A German-Italian Task Force (Deutsch-Italienische Task Force – DITF) was established and, with the
indispensable support of other European police forces, succeeded in identifying and arresting the murderers and their
accomplices. The investigation also highlighted the extent of the infiltration of the ‘Ndrangheta in Germany and across
Europe».
46
Europol, Threat Assessment. Italian Organised Crime, 3.
15
Mafia-type organizations’ income highlights the alarming nature of this phenomenon, which
derives, also, from the capacity of these entities to behave as a sovereign power.
In conclusion, the European legislator needs to specifically contrast Mafia-type organizations;
otherwise, the mere reference to organised crime would minimize the real strength of this
phenomenon.
III. The implementation of an effective sanction in order to fight organised crime: the
confiscation of proceeds from crime
III.1 The necessity to confiscate organised crime’s incomes
The necessity to find efficient sanctions in order to contrast organised crime is essential in order to
attribute full meaning to the European Union’s action in this field. Last years’ policy concentrated
on attacking organised crime’s assets, rather than only considering measures against members of
criminal organizations47. Indeed, organised crime exploits the globalised market and, nowadays,
represents one of its major players48. The measures undertaken by the European Union considered
the changing reality of this phenomenon which operates with an ultimate aim, namely the profit 49.
The implementation of criminal activities may be considered a mean in order to gain proceeds,
which are, then, used to strengthen the organization itself and to pursue criminal activities, such as
money laundering and corruption. In this sense, the presence of an organised structure cannot be
underestimated, meaning that an efficient strategy against organised crime should target the main
entity. Indeed, single members of the criminal organizations are replaceable, while the weakening
of the main structure can cause major damages to its same existence. The profits deriving from the
activities of organised crime are necessary in order to keep the structure alive and productive.
These considerations led to the awareness of the necessity to follow organised crime’s incomes in
order to repress its criminal activities and prevent the commission of further ones. Following,
normal criminal investigations started to be associated to financial ones, developing the so-called
«integrated financial investigations»50. Recalling the famous, as well as still valid, words of the
R. FORTE, L’importanza della confisca dei patrimoni criminali e il ruolo della società civile: il riutilizzo per scopi
sociali dei beni confiscati, 123 ss., in S. ALFANO e A. VARRICA (edited by), Per un contrasto europeo, op. cit.
48
A. TRICARICO, Globalizzazione, economie illegali e crimine organizzato, 127 ss., in S. ALFANO e A. VARRICA (edited
by), Per un contrasto europeo, op. cit.; R. RAZZANTE, I. BORRELLO and L. LA ROCCA, La necessità, op. cit., 5.
49
G. STESSENS, Money Laundering: A New International Law Enforcement Model, Cambridge, 2004, 7 ss.; A.
BALSAMO, Il “codice antimafia” e la proposta di direttiva europea sulla confisca: quali prospettive per le misure
patrimoniali nel contesto europeo?, in Diritto Penale Internazionale, 2012; F. RUGGIERI, La direttiva 2014/42/UE in
tema di sequestro e confisca. Presentazione a prima lettura, in Osservatorio Europa, 27 August 2014, available at
http://www.camerepenali.it/news/5853/Una-prima-lettura--della-Direttiva-201442UE-in-tema-di-sequestro-econfisca.html.
50
R. GOLOBINEK, Financial Investigations and Confiscation of Proceeds from Crime, Strasbourg, 2006, 7.
47
16
Italian judge Giovanni Falcone, «the real Achille’s heel of Mafia-types organizations is constituted
by the traces that the big handlings of moneys leave behind (author’s translation)»51.
Considering the undisputable scope of organised crime to gain profit, allowing confiscation of
criminal assets represents an efficient sanction in order to weaken the criminal organizations’
activities52. Indeed, several effects derive from confiscation of criminal incomes. First of all, the
necessity to take away the material benefits of an illegal activity descends from the principle that a
crime cannot bring advantage to anyone53. This is the rationale behind the fact that criminals cannot
enjoy anymore the property of an object obtained through the commission of a crime. Furthermore,
it ensures that criminal organizations will not use the proceeds to perpetrate other criminal
activities. Then, the ultimate scope of confiscation is to prevent the commission of other offences54.
The possible confiscation of criminal proceeds follows a long path. It starts with investigations,
whose aim is to identify and locate the criminal organization’s assets. This phase requires several
efforts as organised crime usually finds ways to hide the proceeds, also using third persons. Then,
the competent authorities can emanate temporary measures, such as seizure and freezing, in order to
ensure the availability of the property for the future confiscation. This last usually intervenes after
the conviction of the accused person and the judge’s final decision to confiscate the proceeds
identified. Then, the confiscated assets are at the States’ disposal and they can use them in several
ways.
The European Union’s policy aimed to harmonize national legislations, in particular with regard to
the aforementioned aspects. The European Parliament and the Council drafted a Directive on the
freezing and confiscation of instrumentalities and proceeds of crime in the European Union on 3
April 2014 (hereinafter: 2014 Directive)55. The legal basis of the 2014 Directive can be referred to
articles 82(2) and 83(2) TFEU which allowed the European Union competent institutions to set
minimum rules in order to improve the cooperation in specific fields, such as transnational
organised crime. The 2014 Directive provided the fundamental rules of a common strategy,
acknowledging the confiscation of criminal proceeds as an efficient tool in the fight against
organised.
51
G. FALCONE and G. TURONE, Tecniche di indagine in materia di mafia, in AA.VV. Riflessioni ed esperienze sul
fenomeno mafioso, a cura del C.S.M., Roma, 1983, 46. See also E. VENAFRO, L’impresa del crimine. Il crimine
nell’impresa, Torino, 2012, 124.
52
See M. CASTELLANETA, Introduzione a ‘Confisca, Blocco e Sequestro degli strumenti e Proventi di reato’, 427 ss., in
G. CARELLA et al., Codice di diritto penale e processuale penale dell’Unione Europea, Torino, 2009.
53
This principle recalls the fundamental idea of justice that ‘crime should not pay’. See R. GOLOBINEK, Financial
Investigations, op. cit., 9; G. STESSENS, Money Laundering, op. cit., 51.
54
R. GOLOBINEK, Financial Investigations, op. cit., 9; N. KAYE, Freezing and Confiscation of Criminal Proceeds, in
Revue Internationale de Droit Pénal, 2006, 323 ss.
55
Council of the European Union and European Parliament, Directive on the freezing and confiscation of
instrumentalities and proceeds of crime in the European Union (2014/42/EU), OJ L 127/39, 3 April 2014 (hereinafter:
2014 Directive).
17
III.2 The characteristics of the confiscation according to the European Union’s
Directive 2014/42/EU
Confiscation can be mainly of three types, depending on the object subject to the measure: first,
objects used to perpetrate the crimes, the so called instrumentalities of crime; second, the result of
the crime itself; third, the proceeds deriving from a crime56. Moreover, it is possible to consider
other two types of confiscation: the object confiscation and the value confiscation. The former
operates through a transfer of property from the individual to the State, while the latter one imposes
to the convicted person an obligation to pay a sum of money.
The object confiscation is an efficient system when comes to the instrumentalities of crimes, but it
can show some limitations when dealing with the proceeds of a crime. Indeed, many times the
fructum sceleris has been already consumed or cannot be found anymore57. For this reason, the
2014 Directive allows both the direct confiscation and the value confiscation. In particular, §14 of
the 2014 Directive provides the possibility to decide that the value confiscation could be a
subsidiary or alternative measure to the direct one58. In this sense, it leaves States free to choose
between the two chances, considering that the value confiscation is a subsidiary sanction and it is
applicable in any situation characterized by the impossibility to confiscate directly the real profit
originated from a crime.
Analyzing in particular the confiscation of proceeds, the 2014 Directive defines the proceeds as
«[…] any economic advantage derived directly or indirectly from a criminal offence […]»59. These
include any property «[…] whether corporeal or incorporeal, movable or immovable, and legal
documents or instruments evidencing title or interest in such property»60 or any instrumentalities
used or useful to perpetrate crimes61. The confiscation of proceeds from crime is considered an
efficient tool that national competent authorities can use within the context of the fight against
organised crime. It should have a restorative function, being able to re-establish the status quo
G. STESSENS, Money Laundering, op. cit., 30. See also A. BALSAMO, Il “codice antimafia”, op. cit., 2-3; A. M.
MAUGERI,
I
modelli
di
sanzione
patrimoniale
nel
diritto
comparato,
available
at
http://progettoinnocenti.it/dati/2101documenti%20csm.pdf.
57
G. STESSENS, Money Laundering, op. cit., 33, where the author refers to a sentence of an American judge who stated:
«A racketeer who dissipates the profits […] on wine, women and song has profited from organised crime to the same
extent as if he had put the money in his bank account».
58
2014 Directive, §14. A. M. MAUGERI, La direttiva 2014/42/UE, op. cit., 7.
59
2014 Directive, article 2(1). BASEL INSTITUTE ON GOVERNANCE, The need for new EU legislation allowing the assets
confiscated from criminal organisations to be used for civil society and in particular for social purposes, Brussels,
2012, 15 ss., available at https://www.baselgovernance.org/publications/383.
60
2014 Directive, §11 and article 2(2). A. M. MAUGERI, La confisca allargata: dalla lotta alla mafia alla lotta
all’evasione fiscale?, in Diritto Penale Contemporaneo, 2014, 191 ss., 16.
61
2014 Directive, article 2(3). For a deeper analysis, see A. M. MAUGERI, La direttiva 2014/42/UE, op. cit., 10 ss.
56
18
ante62. Therefore, the necessity to confiscate organised crime’s properties aims to implement the
fundamental principle that nobody should benefit from the commission of a crime.
Article 5 of the 2014 Directive envisages the extended confiscation needed to tackle the numerous
activities of organised crime. This type of measure satisfies the necessity to spread confiscation
beyond a specific object related to a crime, considering, instead, other properties that the Court
believes to be proceeds deriving from criminal activities. In this case, the judge does not have to
verify the existence of a causal link between the object and a certain crime, but he can extend the
confiscation to all the objects he believes as originating from a criminal activity. According to the
2014 Directive, the extensive confiscation shall be implemented at least in relation to serious
offences listed in the text, such as the crime of participation to a criminal organization provided
under the Framework Decision of 200863.
The standard of proof in order to authorize an extended confiscation requires the judge to be «[…]
satisfied that the property in question is derived from criminal conduct […]»64. The judicial
authority’s choice to issue an order of extended confiscation can derive from a simple balance of
probabilities that the property originates from a criminal activity rather than from other ones, if
States allow it. The 2014 Directive acknowledges that the judge can be convinced of the criminal
origin of the property as it results disproportionate respect to the person’s incomes65. Therefore, the
disproportion between the property and the person’s incomes is considered a specific fact upon
which the decision of the judge can be grounded, therefore respecting the right to property
recognized in article 17 of the Charter of fundamental Rights of the European Union 66. The judge
shall evaluate comparing the apparent economic situation with single objects belonging to the
accused’s belongings, not the whole generality of assets67. Only the properties found
disproportionate, within a delimitate temporal context, can be, then, subject to confiscation.
In conclusion, the wording of §21 of the 2014 Directive does not require a full scrutiny leading to a
full convincement of the judge establishing a direct link between the property and the criminal
62
G. STESSENS, Money Laundering, op. cit., 51.
2014 Directive, article 3(2)(b) and §19. See also A. M. MAUGERI, L’actio in rem assurge a modello di “confisca
europea” nel rispetto delle garanzie CEDU?, in Diritto Penale Contemporaneo, 2013, 252 ss., 254; A. M. MAUGERI,
La direttiva 2014/42/UE, op. cit., 3-4, 23.
64
2014 Directive, §21. A. M. MAUGERI, La confisca allargata, op. cit., 38.
65
A. M. MAUGERI, La confisca allargata, op. cit., 3, 22.
66
Charter of Fundamental Rights of the European Union, OJ C 364, 18 December 2000, article 17. A. M. MAUGERI, La
confisca allargata, op. cit., 23.A. M. MAUGERI, L’actio in rem, op. cit., 263 ss.
67
A. M. MAUGERI, La direttiva 2014/42/UE, op. cit., 28.
63
19
activity. Nevertheless, in order to guarantee the protection of fundamental rights, the 2014 Directive
expressly requires the Court’s decision to be based on «specific facts»68.
A debate opened around the possibility to allow confiscation even before a final judgment, the socalled non-conviction based confiscation.69 Differently from the conviction-based confiscation,
which aims at sanctioning the person who committed a crime, this is a measure against property.
After discussing the possibility to allow both of these models, the European legislator adopted a
single way. Article 1 of the 2014 Directive clearly provides confiscations «[…] subject to a final
conviction for a criminal offence […]» and the same is affirmed in article 4(1) of the 2014
Directive. However, the 2014 Directive introduces the possibility to proceed with the confiscation,
despite a conviction, when the underlying conduct and the illicit origin of the property have been
verified, but peculiar circumstances occur. Indeed, article 4(2) of the 2014 Directive considers cases
where it is impossible to continue the proceeding due to the fact that the suspect is ill or absconded.
Often individuals participating in organised crime’s activities become fugitive in order to escape
from justice. In those specific cases, there is the chance to confiscate proceeds if the criminal
proceeding has started against a suspect or accused, considering the confiscation as a sort of actio in
rem70. The Court shall, also, be convinced of the fact that if the proceeding had continued, the
suspect or accused would have been declared guilty and convicted71.
Article 6 of the 2014 Directive allows States to confiscate properties belonging to third parties in
mala fides, ensuring protection to third parties in good faith. Indeed, often cases in which the
accused transfers properties to other person in order to avoid confiscation. The mala fides has to be
based on «[…] concrete facts and circumstances […]», such as, alternatively, the acquisition for
free or the low amount of money paid respect to the market value of the object72.
In conclusion, the 2014 Directive provides minimum rules that the European Union’s member
States have to apply in order to make the confiscation of organised crime’s assets more efficient.
The cornerstone of the whole Directive is the principle of mutual recognition of national decisions
68
2014 Directive, article 5(1) which states: «[…] where a court, on the basis of the circumstances of the case, including
the specific facts and available evidence, such as that the value of the property is disproportionate to the lawful income
of the convicted person, is satisfied that the property in question is derived from criminal conduct».
69
A. M. MAUGERI, L’actio in rem, op. cit., 256, 270 ss. In particular, the amendment proposed by the Committee LIBE
aimed to make the actio in rem (non-conviction based confiscation) as the predominant European model of
confiscation. The final text of the 2014 Directive, though, reduced the role of the actio in rem.
70
A. M. MAUGERI, L’actio in rem, op. cit., 270 ss. See also R. FORTE, L’importanza della confisca dei patrimoni
criminali e il ruolo della società civile: il riutilizzo per scopi sociali dei beni confiscati, 123 ss., in S. ALFANO e A.
VARRICA (edited by), Per un contrasto europeo, op. cit.,124, where the author acknowledges the advantages coming
from the direct confiscation of assets with an actio in rem. Indeed, this particular procedure requires a lower standard of
proof and it allows confiscation despite a conviction.
71
2014 Directive, article 4(2). A. M. MAUGERI, L’actio in rem, op. cit., 270.
72
2014 Directive, article 6(1). A. M. Maugeri, La direttiva 2014/42/UE, op. cit., 19.
20
concerning confiscation. The only case in which States can renounce to confiscate is provided by
the «hardship clause»73. Otherwise, in the situations described in the 2014 Directive, States shall
order the confiscation and this order is binding.
III.3 The disposal of confiscated assets: the importance of the social destination
The efficient collocation of confiscated properties has a crucial impact on organised crime’s wealth
and on the social community. It seems shameful that the 2014 Directive does not deal specifically
with the destination of confiscated assets, while an indication in this direction was included in
article 14 of the Palermo Convention («Disposal of confiscated proceeds of crime or property»),
which considered the returning of confiscated assets as a priority in order to compensate the victims
of the criminal activities or to give back those properties to their owners.
The 2014 Directive presents an incomplete and unsatisfactory discipline for what concerns the
disposal of confiscated assets. Actually, this shows a contrast with the widespread consensus and
awareness of the importance of the social destination of confiscated properties 74. There is only a
weak reference to the issue, enshrined in article 10(3) of the 2014 Directive, requiring States to
«[…] consider taking measures allowing confiscated property to be used for a public interest or
social purposes». The 2014 Directive invites States to evaluate the opportunity to allocate the
confiscated assets to public and social employments, but it does not require this social re-use
imperatively. In any case, §35 of the 2014 Directive sets a priority destination of the confiscated
property «[…] for law enforcement and crime prevention projects, as well as for other projects of
public interest and social utility. […]».
The importance of returning the economic resources subtracted by criminal organizations to civil
society is strictly linked to the acquisition of a social consensus on the measure of confiscation of
criminal assets and to sustain the development of a culture of legality. For example, in Italy,
confiscating the Mafia properties and giving them back to the civil society represents much more
than simply implementing a sanction75. It demonstrates the presence of the State in a territory
exposed to the power of organised crime. Therefore, this is a concrete signal that something is
changing in the area. The social reuse of confiscated assets is a measure that should be provided at
the European level as mandatory for all member States. Indeed, this disposal results in two
consequences: the first one is the subtraction of the property to organised crime, causing its lost of
power; the second one is the help that can give to entrepreneurial activities existing in the society
2014 Directive, §18. See also A. M. MAUGERI, L’actio in rem, op. cit., 291-292.
The necessity to destinate the confiscated organised crime’s assets to the public and social society was underlined
also in the Resolution of 25.10.11 on organised crime in the EU, §D, §9.
75
J. VAN DIJK, Transnational organised crime, civil society and victim empowerment, 99 ss., in R. LETSCHERT and J.
VAN D IJK (edited by), The new faces of victimhood, globalisation, transnational crimes and victim rights, Dordrecht,
2011.
73
74
21
and to the growth of public awareness in relation to the possibility to eradicate organised crime
from the territory.
IV. The common investigative action against organised crime
The action of the European Union focused also on the improvement of cooperation among States in
order to effectively contrast this serious phenomenon. States became aware that the characteristics
of modern crime, serious, organised and, especially, transnational, rendered inadequate the single
isolated reaction. Many investigative difficulties arose from the evolution of organised crime, which
started to exercise its activity in different temporal and spatial situations. In this context, national
lines of attacks demonstrated their insufficiency in relation to a wider phenomenon, if not properly
coordinated. The internationalization of organised crime, due to the globalization of the market,
required States, which are the principal actors of the European panorama, to find common strategies
in order to eradicate this phenomenon. Therefore, the settlement of different forms of collaboration
characterized the last years.
The European Union developed important strategies with regard to international law enforcement
cooperation. Indeed, the creation of European institutions, such as Europol and Eurojust, played a
major role in enhancing the cooperation among member States committed to contrast the activities
of organised crime. Europol has a fundamental responsibility in assisting the competent national
authorities into the investigations concerning transnational organised crime76. It became a central
point for coordinating the single member States’ actions in a more efficient way in order to fight
this phenomenon. On the other side, Eurojust is the European body empowered with the task to
assist, improve and facilitate the judicial cooperation in the investigations and prosecutions between
the competent national authorities in the European Union against serious and transnational crimes77.
One of the most discussed topics in the current European law system concerns the institution of a
European Public Prosecutor’s Office able to conduct criminal investigations within the European
Union’s territory. Indeed, always more frequently national prosecutors deal with conducts,
constituting one single offence, which have developed in more than one State. The European
institutions became quickly aware of the inadequacy of the mere judicial cooperation in the fight
against organised crime, based on specific legal instruments, such as international rogatory,
exchange of information and extradition. Indeed, the growth of organised crime and its today’s
indisputable presence in the international sphere are the consequences of the criminal organizations’
76
H. BRADY, The EU and the fight against organised crime, London, 2007, 17.
G. DE AMICIS, Il “rafforzamento” di Eurojust nella prospettiva del pubblico ministero europeo, 283 ss., 284, in T.
RAFARACI (edited by), La cooperazione di polizia e giudiziaria in materia penale nell’Unione Europea dopo il Trattato
di Lisbona, Milano, 2011.
77
22
capacity to take advantage of the asymmetries present in different national legislations78. Organised
crime benefits from the exploitation of these differences. Inter-States cooperation does not
overcome this problem, even if it helps States’ law enforcement activities. This concern brought to
the idea of creating a supranational autonomous investigative body, the European Public
Prosecutor’s Office, composed by a General Prosecutor, settled in Brussels and other European
Prosecutors present in each member States’ capitals79.
IV.1 The EPPO’s role in the fight against organised crime
The entry into force of the Lisbon Treaty in 2009 that the European Union made concrete the
prospective to establish a European Public Prosecutor’s Office (hereinafter: EPPO). The Lisbon
Treaty provided the possibility, through the adoption of a specific regulation, to settle a centralized
supranational investigating authority, able to exercise prosecutorial powers in order to protect, in
particular, the financial interests of the European Union. The European Prosecutor shall exercise its
functions enjoying a full independence both from member State and from other European
institutions. The EPPO would enjoy deep investigative powers within the whole European Union’s
territory, the so-called espace juridique européenne (single legal area), and it would be capable to
operate in front of the competent national jurisdictions80. The EPPO, differently from Eurojust and
Europol, does not require the active mediation of the national authorities to carry out the
investigations.
The legal basis for the creation of the EPPO is article 86 TFEU. This article, though, does not
directly define the exact boundaries of the EPPO’s competence, but it relies upon the redaction of a
regulation, directly binding upon States. This act will constitute the corpus of law applicable by the
EPPO. Leaving aside the enormous debate existing in relation to several aspects of the future
establishment of the EPPO, as, for example, the competence and the rules applicable, it is possible
to analyze the role attributed to this potential Prosecution in the fight against organised crime.
Apparently, from a quick reading of article 86 TFEU, the institution of the EPPO concerns only
financial frauds related to the European Union’s funds, which a specific regulation will delineate.
78
R. SICURELLA, Il diritto penale applicabile dalla Procura Europea: diritto penale sovrannazionale o diritto nazionale
‘armonizzato’? Le questioni in gioco, 7 ss., 18, in G. GRASSO et al. (a cura di), Le sfide dell’attuazione Le sfide
dell’attuazione di una Procura Europea: definizioni di regole comuni e loro impatto sugli ordinamenti interni, Milano,
2013. For example, see the speech of S. ALFANO, The action of the European Parliament, 268, in HERCULE II 20072013 – Seminar funded by Olaf, Roma, 25th, 26th, 27th March 2014.
79
L. PICOTTI, Le basi giuridiche per l’introduzione di norme penali comuni relative ai reati oggetto della competenza
della Procura Europea, 65-67, footnote 2, in G. GRASSO et al. (a cura di), Le sfide dell’attuazione, op. cit.; S. MOCCIA
(edited by), Ambito e prospettive di uno spazio giuridico-penale europeo, Napoli, 2004; M. DELMAS-MARTY e J. A. E.
VERVAELE (a cura di), L’attuazione del Corpus Juris negli Stati membri, available at
http://ec.europa.eu/anti_fraud/documents/fwk-green-paper-corpus/corpus_juris_it.pdf.
80
R. SICURELLA, Il diritto penale, op. cit., 8; L. HAMRAN and E. SZABOVA, European Public Prosecutor’s Office – Cui
Bono?, in New Journal of European Criminal Law, 2013, 40 ss.; R. E. KOSTORIS, Le investigazioni del Pubblico
Ministero Europeo, 389 ss., 392-393 in G. GRASSO et al. (a cura di), Le sfide dell’attuazione, op. cit.
23
Indeed, article 86(1) TFEU attributes the possibility to the Council to create this new Office «in
order to combat crimes affecting the financial interests of the Union […]». The European Union
enjoys this competence regardless of the presence of particular features of the offences that injured
the financial interests. Indeed, both articles 325 TFEU and 86 TFEU, which consider these crimes,
do not require the elements of gravity or transnationality. In this case, differently from organised
crime, a common action at the European level is required as the importance of these interests for the
European Union is indisputable.
Notwithstanding the primacy of the abovementioned competence, the European legislator confers
an additional power to the European Council. This last is able to extend, ab origine or in a second
moment, pursuant to article 86(4) TFEU, the European Public Prosecutor’s competence, through
decisions adopted through a procedure described in the article81. It is required the unanimity of the
European Council and the consent of the European Parliament; moreover, the article recognizes an
advisory function to the Commission which needs to be consulted. In this way, the European
Council can attribute to the European Public Prosecutor the powers needed to contrast, not only
crimes against the financial interests of the European Union, but also facts which qualify as «[…]
serious crime having a cross-border dimension […]»82.
The generic formula of article 86(4) TFEU clearly calls back to the wording of article 83(1) TFEU,
which deals with the sphere of competence in criminal matters of the European Union 83. The
collocation of article 86 TFEU inside the Treaty, within chapter 4 («judicial cooperation in criminal
matters»), which is included in title V of the TFEU, named «area of freedom, security and justice»
demonstrates the wider project set behind the creation of this body84. Therefore, the EPPO amounts
to an organ, whose establishment is merely possible, and not mandatory, which is involved in the
largest political project, supported by the European Union, concerning the creation of an «area of
freedom, security and justice», according to the TFEU85. The creation of this body, presenting a
wide competence, represents the major challenge for the achievement of a, hopefully, successful
81
TFEU, article 86(4); G. GRASSO, Il trattato di Lisbona, op. cit., 2343; R. SICURELLA, Il diritto penale, op. cit., 34 ss.
TFEU, article 86(4). See G. GRASSO, Il trattato di Lisbona, op. cit., 2343 where the author underlines that this
extension of the European Public Prosecutor’s competence to contrast, not only financial crimes, but also «serious
crime having a cross-border dimension», was already provided by the Draft Treaty establishing a Constitution for
Europe, but, then, abolished during the travaux prèparatoire of the European Constitution.
83
M. PELLISSERO, Competenza della procura europea e scelte di incriminazione: oltre la tutela degli interessi
finanziari, 110 ss., 119, in G. GRASSO et al. (a cura di), Le sfide dell’attuazione, op. cit.; A. BALSAMO, Le regole di
procedura della Procura Europea tra disciplina delle indagini e formazione della prova, 419 ss., in G. GRASSO et al. (a
cura di), Le sfide dell’attuazione, op. cit.
84
Article 83(1) TFEU attributes a direct competence to the European Union «[…] in the areas of particularly serious
crime with a cross-border dimension […]», such as, for example, organised crime. The ratio behind this attribution is
connected to the particularly gravity of these offences and their transnational nature.
85
TFEU, article 61.
82
24
European criminal policy aimed to contrast serious forms of crime in the European Union’s
territory.
In this sense, how the fight against organised crime can find its way within the EPPO’s action
becomes clearer. Indeed, organised crime is able to belong to the European Prosecutor’s
competence if two alternative criteria are fulfilled: in particular, if offences related to organised
crime injure the financial interests of the European Union, or if organised crimes present a
transnational nature86. The mere fact that organised crime, nowadays, mostly presents this crossborders nature, as it is able to commit offences involving a high number of States, shows the
necessity, as well as the legal possibility, to fall within the European Public Prosecutor’s
competence. The prospect of the aforementioned extension remains, at the moment, hypothetical as
the recent Commission’s proposal for a Council regulation takes into account only financial crimes
against the European Union’s funds87. Therefore, the possibility to extend the EPPO’s competence
is clearly excluded ab origine by the Commission’s proposal for a Council regulation, leaving to the
European Union, in particular to the European Council, the chance to exploit this opportunity later
on.
Even if the European Council’s unanimous decision entailing the extension pursuant to article 86(4)
TFEU would not step in few years, still the establishment of a European Public Prosecutor charged
with the task to prosecute only offences against the financial interests of the European Union would
have some repercussion on the fight against organised crime. Indeed, the permanent and unmovable
objective of organised crime is to make profit, using any mean and method available. This is the
main, constant and undeniable obsession of criminal organizations.
The direct result of this assessment is that criminal organizations infiltrate where money is
available. In this case, in particular, the reference goes to the European Union’s funds allocated in
several branches throughout the whole member States’ territory. For example, the Italian financial
police authority, Guardia di Finanza, together with the Direzione Nazionale Antimafia (National
Antimafia Directorate), elaborated a specific software capable to trace the assets of individuals
linked with organised crime: the so called «Molecola Project»88. The creation of this database
intended to improve and facilitate the economic and financial investigations in order to contrast
organised crime. The Italian authorities, thanks also to this new software, found out that several
86
M. PELLISSERO, Competenza della procura europea, op. cit., 120.
Proposal for a Council Regulation, Explanatory Memorandum, 11, §21.
88
A brief explanation of this software is available in the Guardia di Finanza’s website at http://newgdf.gdf.gov.it/areariservata/corsi-speciali/corsi-speciali-hercule-ii/contenuti-del-corso/27-gennaio-2011/molecola-coge-inglese.pdf/view.
This software creates a database where data belonging to several individuals are inserted and cross-checked. For an
analysis see U. SIRICO, La Guardia di Finanza e le attività di prevenzione e repressione delle organizzazioni criminali,
in Rivista di Criminologia, Vittimologia e Sicurezza, 2009-2010, 23 ss., 36 ss.
87
25
enterprises, operating in different sectors, were related to organised crime 89. Moreover, they could
assess the existence of a specific illegal ‘business’ whose scope is to unlawfully obtain national, but
also European funds. Indeed, since years, the major representatives of the Italian political and
judiciary bodies have expressed their concerns related to the possible use of Europeans funds by
organised crime90.
More recently, the European Union became well aware of this ‘business’, or, better, fraud,
involving funds, composed of European resources, distributed to member States. Undoubtedly, the
involvement of organised crime in this illegal activity is undeniable. The employment of those
finances involves a large amount of money, as they consist in something like 145 billion euro per
year, which are transferred from the European Union’s budget to different member States91. The
investigation on frauds concerning the European Union’s budget showed the presence of a clear link
between European funds and organised crime92. For example, the Olaf’s investigations of 375 cases
in 2009-2010 brought, as a result, that 10% of these cases were related to organised crime, but «
[…] their financial impact accounts for more than 40% of the analyzed EU fraud cases»93.
Organised crime employs illegal ways in order to obtain European funds, defrauding the European
Union’s budget. Afterward, it re-uses this money to pursue criminal activities.
Therefore, the establishment of a European Public Prosecutor with a competence restricted only to
crimes against the European Union’s budget still would be important, for some aspects, in the fight
against organised crime. Indeed, the chances to deal with frauds committed by individuals or
enterprises related to criminal organizations are extremely high. The successful operations
disclosing the organised crime’s chains of action, chasing money, can challenge and weaken the
criminal organizations’ powers, which are connected to these economic and financial resources.
Therefore, the creation of the EPPO limited to article 86(1) TFEU is desirable in order to make a
step forward in the fight against organised crime in the European Union, even if with a narrow
scope. Of course, the implementation of the extensive clause according to article 86(4) TFEU would
allow the European Prosecutor to carry out its investigations and its function in a wider way, which
would result to be more complete in order to ensure the fulfillment of the objectives constituting its
89
See S. SCREPANTI, Le proiezioni economiche della criminalità organizzata: lineamenti generali, strumenti normativi
e tecniche investigative di contrasto, esperienze operative, in Rivista della Guardia di Finanza, 2012, 825 ss.
90
These concerns were expressed during a Conference held in Rome in 2010 at the Corte dei Conti (the Italian’s
financial judiciary organ).
91
B. WEILER, European funds and their use by organised crime, 2012, 2, available at
http://www.europarl.europa.eu/document/activities/cont/201212/20121204ATT57269/20121204ATT57269EN.pdf.
92
See the really interesting Study requested by the European Parliament’s Committee on Budgetary Control:
PRICEWATERHOUSECOOPERS (Belgium and Netherlands), How does organised crime misuse EU funds?, Brussels,
2011, 33 ss.
93
B. WEILER, European funds, op. cit., 4.
26
raison d'être. The organ would be able to contrast the whole activities performed by criminal
organizations, which have different nature. For example, it would be competent for the offences
related to illegal immigration, which is an alarming phenomenon in Europe 94. As human trafficking
is both a serious transnational crime and, usually, implicates an organization behind, it would fall
within article 86(4) TFEU. The implementation of this opportunity, given by the TFEU, is, indeed,
pleasing and it would be coherent with the last years European Union’s policy to eradicate, once for
all, the phenomenon of organised crime from its territory.
In order to undertake efficient investigations, a solution would be to settle a European legislation of
procedural criminal law that the EPPO would apply within its competence. Moreover, the drafting
of European rules would create more homogeneity between different member States, as the powers
and the investigations undertaken by the EPPO’s prosecutors would follow the same discipline and,
therefore, would present the same features. Otherwise, it is possible to understand easily the
difficulties arising from situations in which, for example, the EPPO will have to present the results
of an investigation conducted in a specific State to a bench of another State, having a different
criminal procedural legislation. Or, even worse, it would be possible to find a scenario where
organised crime concentrates its activities in the less efficient areas from the point of view of
investigations.
In conclusion, it is clear how asymmetries between measures and legislations of different member
States do not support the creation of a common approach at the European level. As it happens for
substantial criminal law, also the different criminal procedure rules facilitate the expansion of
organised crime’s activities.
The convergence of procedural rules governing criminal proceedings would be an additional, and
fundamental, step in order to admit the final acceptance of a criminal competence of the European
Union. This would allow to fight together a common enemy and, finally, to eradicate it from the
European territory.
V. Conclusions
The analysis of the major issues related to the fight against organised crime in the European Union
shows, on one side, the improvements made during these past years; on the other side, several
problems frustrate the European Union’s strategy to build a common approach to tackle this
phenomenon.
For a deeper analysis on this thematic see A. LUCIFORA, I reati connessi all’immigrazione irregolare quale futuro
ambito di competenza del pubblico ministero europeo, 167 ss., in G. GRASSO et al. (a cura di), Le sfide dell’attuazione,
op. cit.
94
27
Definitely, last years’ policy tried to overcome the peculiarities belonging to each different legal
tradition of the member States and to define the leading principles and the guidelines of a common
strategy. The greatest victory obtained by the European Union is the awareness that the only
effective plan of action to contrast this serious phenomenon is a common European approach.
Indeed, the transnational nature of organised crime requires States to engage in a strong cooperation
with the other member States in order to combat a phenomenon that is common to all of them.
However, the legislative measures adopted show several critical aspects that prevent the
achievement of their final scope. For what concerns the substantial provisions on organised crime,
the introduction of the 2008 Framework Decision does not reach the expected harmonization;
moreover, it does not provide a complete and clear definition of what organised crime is. Therefore,
as the Commission has ignored the calls for a new directive made by the European Parliament, it is
possible to assess that the fight against this phenomenon remains regulated primarily by national
legislations.
Differently, the European Union’s action resulted to be more successful for what concerns
confiscation, as it was possible to reach a common base, enshrined in the 2014 Directive. Only after
the expiration of the implementation’s term, it will be possible to assess the real and concrete
achievements reached by this measure.
Finally, for what concerns the investigative measures to tackle organised crime, the entry into force
of the Lisbon Treaty provides, in article 86 TFEU, the legal basis for the potential establishment of
a European Prosecution, with the possibility to include transnational organised crime in its
competence. Even if States would establish the EPPO only to protect the financial interests of the
European Union, it would still have a role in the fight against organised crime, if the recent links
between criminal organizations and European frauds are considered. Until member States will not
undertake such step forward, the cooperation will be implemented through the channel usually
undertaken (Europol, Eurojust, bilateral cooperation, etc.).
In conclusion, while European States are not able to reach an efficient agreement to individuate a
common strategy, organised crime still perpetrate its criminal activities, growing and gaining much
more power. Therefore, the European Union needs to exploit the means provided under the Lisbon
Treaty as the fight against organised crime represents, nowadays, one of the major challenges and
absolutely a priority of the European and international community as a whole.
28