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European Anti-Fraud Office (OLAF)

Direzione Nazionale Antimafia (DNA)

Signature in Rome of a co-operation protocol between
the Italian National Anti-Mafia Directorate (DNA) and
the European Anti-Fraud Office (OLAF)

On 17 February 2000, Mr. Pierluigi VIGNA, the National Anti-Mafia Prosecutor in Italy, and Mr. Per Brix KNUDSEN, Director of the European Anti-Fraud Office (OLAF), signed in Rome at the National Anti-Mafia Directorate a cooperation protocol between these two bodies.
This protocol establishes, in the light of Article 280 of the Treaty on European Union, regular cooperation between the DNA and OLAF aimed at more effective action against illegal activities which take place in economic and financial areas. This action will be centred principally for the DNA on the prevention and suppression of organized crime in all its forms, including those where it harms the European Communities' financial interests, and for OLAF on combating frauds and other irregularities harmful to the general budget of the European Communities, including where they are the work of organized networks. ‘In a spirit of mutual confidence to allow the pooling of our respective expertise, information, experience and know-how, - Mr. KNUDSEN stated -, the DNA and OLAF will communicate to one another information and data for the purposes of the prevention, investigation and detection and the follow up action required to combat illegal activities as well as for the purposes of identifying and recovering the profits resulting from these same activities’.

Mr. VIGNA, recognizing the close cooperation which already exists between the DNA and OLAF which allowed different international organised criminal networks to be uncovered, in particular in cigarette smuggling with the arrest by the DNA of several criminals, recalled that this protocol will allow the DNA to strengthen its institutional action by better cooperation at European level. He expressed his particular satisfaction at the fact that it provides for the possibility of OLAF and the DNA also to cooperate in organizing specialised training activities on themes of joint interest in relation to the fight against illegal activities in the economic and financial areas. ‘At the request of the DNA - emphasized Mr. VIGNA - the European Commission may finance specialised training initiatives. Thanks to this protocol, the European Commission will be able to look at the possibility of financing specialist training initiatives’.

The fight against fraud and protection of the Communities’ financial interests represent major priorities for the European Commission presided by Mr. Romano PRODI. They cover activities concerning the detection and follow up of frauds in the areas of customs, misappropriation of subsidies and tax fraud in so far as the Community budget is affected. These activities represent the main task of the European Anti-Fraud Office, an independent body in its investigative functions established on 28 April 1999. OLAF took over on 1 June 1999 all the tasks carried out by the former Commission Task Force for the Coordination of Fraud Prevention (UCLAF).

It is to be noted that in certain sectors where there are particularly lucrative sources of illicit gain, specialist task groups for specific products such as cigarettes, alcohol or olive oil have shown that close cooperation between the Member States and effective coordination at Community level can be extremely useful for bringing to light large scale smuggling. The signature of this protocol is in line with the European Commission’s strategy to respond by means of OLAF to international criminal activity.

The most recent EC anti-fraud report is accessible on the Internet under the following address:
Contact : Alessandro BUTTICÉ - +32 (02) 29.65425


International affairs department

Functions and structure of the National Anti-Mafia Bureau

Towards the end of 1991 Decree Act No 367/91 brought about a far-reaching reorganisation of the Public Prosecutor’s Office in Italy in an attempt to counter the increasing activities of Mafia-type organised crime. The aim was to improve coordination of preliminary inquiries regarding certain particularly serious offences typically committed by Mafia-type organisations. These are offences, attempted or committed, under sections 416a (membership of a Mafia-type organisation)1 and 630 (kidnapping for ransom or reward)2 of the Criminal Code, or under section 74 of Presidential Decree No 309 of 9 October 1990 (association for the purposes of illicit trafficking of narcotic or psychotropic substances),3 and are all committed by exploiting the power of intimidation and the atmosphere of coercion and the conspiracy of silence that derive from bonds of membership of the Mafia-type organisation, as well as offences committed to further the activities of Mafia-type organisations.

As part of the new strategy to combat organised crime, the National Anti-Mafia Bureau, from a legal point of view, coordinates investigations centrally with a view to combating organised crime adequately by organising evidence thoroughly and effectively.

The Bureau’s State Prosecutor performs this function throughout the country or delegates its power to the twenty judges attached to the National Anti-Mafia Bureau.

The 1991 reform made a substantial contribution to the reorganisation of the Public Prosecutor’s Office by establishing, under the 164 Public Prosecutors at the courts (whose powers are restricted to a limited territory), twenty-six District Anti-Mafia Prosecutors with powers to investigate the abovementioned offences over a far larger area, namely that of the Court of Appeal, where each has an office.

In relation to “Mafia offences” the State Anti-Mafia Prosecutor’s Office, possibly in conjunction with the judges assigned to the National Anti-Mafia Bureau, plays a lead role with regard to the District Prosecutors. It aims to coordinate investigations effectively and to ensure that the police investigation departments are involved in the operations and that the investigations are conducted promptly and thoroughly.

To fulfil these duties, the Bureau must, of course, have detailed knowledge of all aspects of Mafia-type organisations and, to coordinate investigations and combat crime, it must be able to assist with the process of obtaining and analysing information concerning organised crime.

All the judges assigned to the National Anti-Mafia Bureau are highly experienced professionals and must pass a rigorous selection process, but detailed knowledge is also and above all stored in a data base which holds information from investigative legal sources (e.g. crime reports sent to the judicial authorities, measures taken to effect arrests, convictions, informants’ statements etc.) suitably analysed and organised to make it certainly more reliable than normal information from the police.

The State Anti-Mafia Prosecutor’s Office can make use of the Anti-Mafia Investigation Office, a multi-force unit with national powers that provides intelligence concerning anti-Mafia investigations, as well as the Central and Inter-Provincial Departments of all the various police forces (carabinieri, police, Guardia di Finanza) involved in the fight against organised crime.

To coordinate investigations and proceedings (between the various district prosecutors involved in inter-related investigations) the State Anti-Mafia Prosecutor’s Office may issue specific instructions, convene the district prosecutors to settle disagreements that have arisen during the conduct of the investigations and make coordination effective. In exceptional cases, to avoid unnecessary lack of action on investigations and ensure that investigations are coordinated, it can also arrange for the arrogation of investigations, assigning them to a judge from the National Anti-Mafia Bureau.

The State Anti-Mafia Prosecutor’s Office also has the power and duty to ensure the effectiveness, continuity and promptness of legal action. Whenever it is necessary to lend impetus to investigations that have not been pursued or have not yet been launched for some reason, or to deal with specific contingent investigative or case requirements during the trial phase, it can second officers from the National Bureau or other Prosecutor’s Offices to deal with “Mafia-offence” proceedings that are particularly complex or require specific professional skills.

The National Anti Mafia Bureau is well aware that major organised crime can only be combated effectively by close and intelligent international cooperation, particularly from a judicial point of view, and has recently set up a special department whose main task it is to examine and develop new and closer relationships between the National Anti-Mafia Bureau and judiciaries abroad involved in the fight against organised crime and to prepare draft agreements on, among other things, reciprocal and prompt exchanges of information, news and data concerning organised crime between the judicial authorities concerned.

The structure of the National Anti-Mafia Bureau consists of the International Affairs Department, plus six other departments. Three deal with “traditional Mafia organisations” (Mafia, Camorra, Ndranghta/Sacra Corona Unita, which originated in Sicily, Campania, Calabria and Apulia respectively), one concentrates on “new Mafias (such the Albanian, Chinese and Russian Mafias), one is concerned with analysis and documentation (apart from preparing the case-files for trials, it also monitors legislative developments in relation to organised crime and reports on legal verdicts and legal expert opinions on the subject), while the sixth concentrates on technical and information support. This department is responsible for managing the data base and identifying the best technology to use (in the telecommunications field, for example) in the fight against organised crime. It also studies technological developments with a view to advising the authorities which instruments to acquire at the correct time to counter the use of new technologies by criminal organisations. Within the National Anti-Mafia Bureau several services have also been set up: one reports on suspicious financial operations, another is responsible for preventive measures in relation to assets and a third with kidnapping for ransom or reward.

It should be remembered that the National Anti-Mafia Bureau is a division of Public Prosecutor’s Office, based at the Court of Cassation in Rome.

Like all other judges working for the Public Prosecutor, the judges who make up the National Anti-Mafia Bureau enjoy certain constitutional guarantees: they are only answerable to the law (Article 10(2) of the Constitution), they are autonomous and independent from any other State authority (Article 104(1)) and cannot be dismissed (Article 107(1)).

Pointers for a study of the offence of membership of a Mafia-type organisation

Membership of a Mafia-type organisation is an offence under section 416a of the Criminal Code. It was introduced by section 1 of Act No 646 of 13 September 1982, with the last part of the third subsection (concerning the aim of procuring votes at elections) being added by Act No 356 of 7 August 1992. Its study is particularly deserving of attention and this is the main area of activity of the National Anti-Mafia Bureau.

The offence of membership of a Mafia-type organisation has been added to the offence of criminal conspiracy, provided for under section 416 of the Criminal Code which applies “when three or more persons conspire to commit offences”.

The differences between membership of a Mafia-type organisation and simple criminal conspiracy are summed up below.

While simple conspiracy only requires the creation of a stable organisation, however rudimentary, for the purposes of committing an indeterminate number of offences, membership of a Mafia-type organisation additionally requires the organisation to have acquired a genuine capacity for intimidation in their area. The members of the organisation must also exploit this power to coerce third parties with whom the organisation enters into relations and oblige them to enter into a conspiracy of silence.

Intimidation may take various forms, from simply exploiting an atmosphere of intimidation already created by the criminal organisation to committing fresh acts of violence or making threats that reinforce the previously acquired capacity for intimidation.

The Mafia method (or rather, the whole gamut of instruments on which it is based) is therefore identified under criminal law by means of three characteristics (“powers of intimidation deriving from the bonds of the organisation”, “coercion” and “conspiracy of silence”) and all three are essential and necessary aspects of this conspiracy offence.

In terms of aims, whereas a simple conspiracy aims to commit acts defined as criminal offences in law, a Mafia conspiracy can also be organised with the aim of obtaining direct or indirect control of economic activities, authorisations, public procurement contracts and services or profits or other unjustified advantages for the organisation or others or to prevent or obstruct the free exercise of the right to vote or to procure votes for itself or others at elections.

The aim of committing crimes, while inherent in Mafia-type organisations and an aspect of their structure since the organisations are characterised by the use of violence, is not, however, the final and sole aim of the organisation. In fact, the individual offences committed, such as “settling accounts” or acts against representatives of public institutions, are part of a broader strategy that seeks to acquire, increase and consolidate economic power as part of an entrepreneurial vision that makes no distinction between the proceeds of criminal activities and legitimate profit and considers intimidation and violence to be normal tools of its trade.

This is why Mafia-type organisations attempt to acquire control of significant areas of legitimate activity as well as criminal activities, such as drugs or arms trafficking. It is important to stress that the legitimate activities are not conducted simply as a consequence of and a front for criminal activities. They are a natural outlet for criminal activities in the context of the Mafia mind-set. Crime is therefore a means to acquire economic and political power and it leads to an overall logic of continually expanding into areas of legitimate power.

This has all been clearly recognised by the legislature, which has defined the offence of membership of a Mafia-type organisation in such a way that, even if a series of offences have not been committed, it is still an offence for the organisation to intend to exploit Mafia methods to acquire a monopoly position, for electoral or political gains or to obtain an unjustified advantage.

In relation to international law, it is worthwhile recalling a judgment reached by the Court of Cassation on 31 July 1993:

The principles upheld in the judgment are as follows:

“To determine whether conspiracy offences fall under Italian jurisdiction it is necessary to establish where the organisation operates from, entirely or in part, while it is of secondary importance where the individual offences were committed as part of the criminal plan, unless the number and gravity of the offences reveal the place of operation of the criminal design. It follows that the involvement of a person in a criminal organisation with links and operations in various parts of the world assumes importance before the law, if one or more of these centres are in Italy, since, if they are, the offence must be considered to be entirely punishable under Italian law by the Italian authorities. This can be inferred from section 6 of the Criminal Code, which interprets and defines the interest of the State in punishing those who have in some way committed an unlawful criminal act, attributing a greater value to an aspect of an act committed in the country by some member of the organisation so that the application of the criminal legislation may be extended to all members and the criminal activity in its entirety, wherever it has been carried out.”

1 The text of section 416a of the Criminal Code reads as follows:

416a. (membership of a Mafia-type organisation). Persons belonging to a Mafia-type organisation of three or more persons shall be liable to imprisonment for a term of between three and six years.

Persons who further the activities of or manage the organisation shall be liable to imprisonment for a term of between four and nine years for that offence alone.

A Mafia-type organisation is an organisation whose members use the power of intimidation deriving from the bonds of membership and the atmosphere of coercion and conspiracy of silence that it engenders to commit offences, to acquire direct or indirect control of economic activities, licences, authorisations, public procurement contracts and services or to obtain unjustified profits or advantages for itself or others, or to prevent or obstruct the free exercise of the right to vote, or to procure votes for itself or others at elections.

If the organisation is armed, members shall be liable to imprisonment for a term of between four and ten years in the circumstances described in the first subsection and between five and fifteen years in the circumstances described in the second subsection.

The organisation shall be deemed to be armed if its members have access to weapons or explosives for the purposes of furthering the aims of the organisation, even if hidden or stored.

If the economic activities which the members intend to acquire or maintain control over are financed in whole or in part by the proceeds of crime, the penalties set out above shall be increased by between a third and a half.

In the event of a conviction, articles which were used or intended to be used to commit the offence and the proceeds thereof shall be forfeit.

The provisions of this section are also applicable to the Camorra and any other organisations, whatever their names, that make use of the power of intimidation deriving from the bonds of membership to pursue goals typical of Mafia-type organisations.”

2 The full text of section 630 of the Criminal Code reads as follows:

630. (kidnapping for ransom or reward). Persons abducting a person with the intention of obtaining for themselves or others an unjustified reward in the form of the price for the release of the person shall be liable to imprisonment for a term of between twenty-five and thirty years.

If the abduction results in the death of the victim, the perpetrator shall be liable to imprisonment for a term of thirty years.

Any perpetrator causing the death of the kidnapped person shall be imprisoned for life.

If any of the perpetrators disassociate themselves from the others and act in such a manner as to bring about the release of the victim without a price being paid, they shall be liable to the sentence provided for under section 605. If, however, the kidnapped person dies as a consequence of the kidnapping after regaining his or her freedom, the term of imprisonment shall be between six and fifteen years.

If any of the perpetrators disassociate themselves from the others and act in such a manner, other than that referred to in the previous subsection, as to prevent the criminal offence having further consequences or give genuine assistance to the police or the legal authorities in the course of their inquiries that enables the other offenders to be identified or apprehended, the sentence of life imprisonment shall be commuted to imprisonment for a term of between twelve and twenty years, while the other penalties shall be reduced by between one third and two thirds.

If there are mitigating circumstances, the sentence in the second subsection shall be commuted to a term of imprisonment of between twenty and twenty-four years, with the sentence under the third subsection being reduced to a term of between twenty-four and thirty years’ imprisonment. If there is a combination of mitigating circumstances, the minimum sentence may not be less than imprisonment for a term of ten years in the situation described in the second subsection and fifteen years in that described in the third subsection.

The limits on penalties in the previous subsection may be exceeded if the mitigating circumstances relate to subsection five of this section.”

3 Section 74 of Presidential Decree No 309 [1990] (association for the purposes of illicit trafficking of narcotic or psychotropic substances) reads as follows:

“1. When three or more persons form an association for the purposes of committing more than one offence under section 73, whoever promotes, establishes, manages, organises or finances the association shall be liable to imprisonment for a term of not less than twenty years for this offence alone.

2. Any persons taking part in the activities of the organisation shall be liable to imprisonment for a term of not less than ten years.

3.The sentence shall be increased if the organisation consists of ten or more members or if any of the members are addicted to narcotic or psychotropic substances.

4. If the organisation is armed, in the circumstances described in subsections 1 and 3 above, the sentence may not be less than twenty-four years’ imprisonment and twelve years’ imprisonment in the case in subsection two above. The organisation shall be deemed to be armed if its members have access to weapons or explosives, even if hidden or stored.

5. The sentence shall be increased in the circumstances specified in section 80(1)(e).

6. If the organisation has been established to commit offences under subsection 5 of section 73, the first and second subsections of Section 416 of the Criminal Code shall apply.

7. The penalties provided for by subsections 1 to 6 shall be reduced by a half to two thirds if the person in question has acted effectively to obtain evidence concerning the offence or has deprived the organisation of vital resources for the commission of offences.

8. Where legislation refers to the offence provided for by section 75 of Act No 685 of 22 December 1975, repealed by section 38(1) of Act No 162 of 26 June 1990, the reference shall be taken to be to this section.”

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