17 Dec aggravating factor of transnationality

John Falcone in 1992, at the first meeting of the Commission on Crime Prevention and Criminal Justice at the United Nations, he hoped for the introduction of supranational legislation aimed at combating forms of organized crime. The achieved awareness of the problem has, therefore, determined the international community to promote new tools to combat organized crime: thus was born, in December of 2000, also thanks to the contribution provided by Italy, the c.d.. Palermo Convention, transposed into national law only six years later by law no. 146/2006. With the law n. 146/2006 the legislator has ratified and implemented in Italy the contractual provisions of the Palermo Convention, introducing in the articles 3 e 4, respectively, the notion of transnational crime and the aggravating circumstance of transnationality. The article 3 of the aforementioned law anchors the qualification of the transnational crime to the concurrence of three distinct parameters:

• The first parameter is related to the seriousness of the offence: it must be a crime punishable by a penalty of no less than a maximum of four years' imprisonment.
• The second parameter foresees the involvement of an organized criminal group
• The third parameter concerns, alternatively: a) the commission of the offense in more than one State; b) the commission of the crime in a State, but with a substantial part of its preparation, planning, management or control in another state; c) the commission of the crime in a State, but the implication in it of an organized criminal group engaged in criminal activity in more than one State, or d) the commission of the crime in a State, with production of substantial effects in another State.

This is, therefore, not already of an autonomous hypothesis of crime, but of a transversal qualification applicable to any criminal case responding to the characteristics dictated by art. 32. While harbinger of significant effects in terms of substantive and procedural discipline - such as, by way of example only, the applicability of particular administrative sanctions to a specific extent, mandatory confiscation also for equivalent pursuant to art. 11 of the same legislation, the extension of the investigative powers of the Public Prosecutor within the term and for the purposes referred to in art. 430 of the code of procedure - the definition of "transnational crime" dictated by the article 3 of the law 146/2006 does not foresee, however, no penalty in terms of aggravation of the sentence.Unlike, the next article 4, limited solely to "crimes punished with a prison sentence of not less than a maximum of four years in the commission of which an organized criminal group engaged in criminal activities in more than one State has given its contribution", introduces an aggravating circumstance with a special effect which provides for a significant increase in sentence (one third to one half), not subject to the judgment of balancing with extenuating circumstances other than those provided for by the articles 98 e 114 the Penal Code. Deserving of an aggravation of the sentence, then, it was considered not the transnational crime itself, but rather a single hypothesis of transnational crime, the one dictated by letter c) of the previous article 34. In other words, the aggravating circumstance may be applied, if and only if, the crime to which it refers has a transnational character, while, on the contrary, not every transnational crime may fall within the scope of application of the aforementioned aggravating circumstance (remaining excluded, indeed, the transnational crimes referred to in letters a,b e d dell’art. 3). Since the first practical applications of the law 146/2006, as to be expected, there was no lack of interpretative contrasts. The main, in jurisprudence, it was about compatibility, o meno, of the aggravating circumstance of transnationality with crimes of association in general. The majority orientation within the Regulatory Court, limiting itself to relying on the literal wording of the law (which establishes the applicability of the aggravating circumstance to each offence, without any exclusions, provided that it is punished with a sentence exceeding four years' imprisonment) considered the tout court applicability of the aggravating circumstance to the associative structures, requiring the operation of the association in more than one State as the only prerequisite. A minority orientation (constituted, to be honest, from a single isolated pronunciation, the Dalti judgment, Cass. 1937/2010 sez. V), on the contrary, he supported its ontological and conceptual incompatibility on the reflection that, not being able to hypothesize the existence of a criminal group that contributes to the existence of itself (the criminal association), the aggravating circumstance could only be applied to crimes aimed at association. The interpretative contrast was faced by the Court of Cassation in its most authoritative composition, and resolved by the following principle of law: "the special aggravating circumstance of art. 4 of the law 16 March 2006 n. 146, is applicable to the crime of association, provided that the transnational organized criminal group does not coincide with the association itself" (sentence "Adami" Cass. Sez. And. n. 18374 of the 31.1.2013). The conclusion reached by the United Sections is inspired by a twofold argument: on the one hand, the generic textual reference of the provision to any crime would lead to the belief that the causal contribution of a transnational organized group can be explained in relation to any criminal expression, and therefore also of the associative one; on the other side, one would reach the same conclusion having regard to the inspirational lines of the Palermo Convention, certainly oriented towards extending the protection of national legal systems to criminal associations of a transnational level. The entire motivational system drawn up by the United Sections was developed around a preliminary, essential, clarification about the correct identification of “organized criminal group” and the relative distinction with the criminal association benefiting from the contribution offered by the group. The thesis supported by the already mentioned Cassation Dalti, oriented in favor of the ontological incompatibility between the aggravating circumstance and the crimes of association, would resent, indeed, according to the United Sections, of a real basic misunderstanding where it erroneously identifies, or in any case overlaps, criminal association with the organized criminal group, in order to thus arrive at excluding the configurability of the aggravating circumstance in crimes of association. “The regulatory formulation of the aggravating circumstance, indeed, in the part in which it evokes the causal contribution, makes it clear", the United Sections clarify, “what an indefeasible presupposition of its application is the lack of identification between the two associative realities, requesting, in fact, that criminal association and organized criminal group present themselves as different entities or organizational realities". "The Locution"make contribution” postulate, indeed, “otherness” or diversity among the subjects involved, that is, between the acting subject (the organized group) and multi-subjective reality benefiting from the causal contribution". In this sense, and to simplify, the United Sections believe that "organized criminal group" and criminal association are two distinct entities, not overlapping even minimally, and that for this reason the aggravating circumstance of transnationality is applicable to cases of association only when the contribution required by the law is provided by an organized criminal group (different from the criminal association precisely) operating in more than one state. This interpretative approach, albeit certainly consistent with the objective pursued by the Palermo Convention, wake up today, however, many doubts. And this is not so much about the relationship between crimes of association and the aggravating circumstance of transnationality, but rather with respect to the configurability of the aggravating circumstance itself in crimes other than criminal association e, especially, in the crimes for the purpose of the same association The framework of absolute interpretative uncertainty that arose following the Sect. And. 18374/2013 in fact, it immediately determined a new inevitable contrast. In other words, one wonders: the concept of otherness between the criminal association and the organized criminal group, cardinal principle of the teaching of the Adami United Sections, is to be considered the exclusive prerogative of associative cases, or vice versa, constitutes a general principle that is also valid when the aggravating circumstance includes crimes resulting from criminal conspiracy? And for effect, the aggravating circumstance in crimes for the purpose of the association can be considered configurable when the organized criminal group is itself the criminal association? In jurisprudence there is a numerical majority orientation oriented towards the applicability of the aggravating circumstance to crimes aimed at association even in the case of identification between criminal association and organized criminal group in which it is noted that, the omitted extension, in the judgment of the United Sections, of the principle of otherness between the two multi-subjective realities with respect to the case of crimes for the purpose of association would suggest that, in the latter case, the maximum consensus wanted to affirm an implicit opposite principle of law. If it holds, after all, that it would be completely paradoxical to extend the principle of otherness also to crimes aimed at conspiracy to commit a crime given that, thus reasoning, only the associates could benefit from the "cover" deriving from the overlap between an organized criminal group and a criminal association, while, on the contrary, subjects who are not part of the association but competitors with the associates with respect to a crime aimed at the association would be, against all reasonableness, punished more severely. A second minority and less recent branch of jurisprudence relying mainly on the literal interpretation provided by the United Sections in relation to the normative expression "make your own contribution” reported in the art. 4, deems it necessary, for the purposes of the applicability of the aggravating circumstance in question to the crimes for the purpose of the association, that the otherness between the organized criminal group and the criminal association is ascertained. The question appears to be far from marginal. If you think, eg, to a criminal association dedicated to the importation into Italy of large quantities of narcotic substances from any foreign country: if the criminal association, as often happens, has a consolidated articulation in the foreign State, and therefore does not require any contribution for the purpose of importing illicit substances into Italy, it will be possible to configure the aforementioned aggravating circumstance to the individual import cases committed by the members, even if the latter have not benefited from contributions other than that provided by the associative bond? By adhering to the aforementioned majority orientation, the members, while not being punishable more severely for having extended the structure of the criminal association beyond national borders (missing you there, with respect to the crime of association, the contribution of an "external" organized criminal group), in any case, they would deserve an aggravation of the sentence for having carried out the individual importation behaviors having benefited from the contribution offered by the criminal association in which they themselves participate. It would be possible, indeed, only in the latter case, and contrary to what happens in the case of crimes of association, identify the "organized criminal group" mentioned in art. 4 in the criminal conspiracy itself. From the opposite side, embracing the minority orientation aimed at extending the principle of otherness between the two multi-subjective realities even if the aggravating circumstance includes crimes for the purpose of association, in the absence of an “external” organized criminal group (other than criminal association), it will not be possible to determine the aggravation of the sentence or of the transnational criminal association, nor of related crimes. If the first interpretative solution seems to openly contrast with the principle of law offered by the Adami United Sections, the second solution certainly seems to attribute continuity to the interpretation of the maximum consensus, although failing (apparently) to overcome the perplexities raised by the proponents of the opposing thesis. It certainly cannot be denied that the current conflict has been made even more difficult to resolve due to a literal and systematic interpretation, that offered by the United Sections, which has aroused strong perplexities in doctrine. The main dogmatic tension emerging close to the enunciation of the principle of law affirmed by the United Sections concerns the notion of "contribution” requested by the organized criminal group: broadly contradictory it appears, indeed, the passage in which the Judges observe that, in the presence of the contribution of a transnational group, the aggravating circumstance pursuant to art. 4 would apply to the association”regardless of the circumstance that the contribution offered by the organized criminal group engaged in more than one State yields, then, that same group participates or competes in the common crime of association”. The principle, in fact, stands in evident contrast with the requirement of otherness between association and organized criminal group given that, thus reasoning, the participation or competition of the group (more precisely: of its members) in the common association would cause the existence of a single crime of association, and therefore the disappearance of the otherness between the two structures. On the verge, cannot omit to point out that more remain, fundamental, uncertainties generated by the pronunciation of the word: what it means that the “group” has to make a contribution? It is necessary that the contribution is provided even by only a single member of the group or the involvement of more than one person or the entire group is required? He notes that this contribution must concern the ordinary criminal activity of the group or can also be of a different nature? All questions that, At the state, remain unanswered. It certainly cannot fail to stand out, Furthermore, the paradoxical outcome deriving from the sentence in question: the direct consequence of the principle of otherness between the structures entails, indeed, the possibility of applying a more severe penalty to an Italian criminal association assisted by a transnational group, compared to what could be attributed to a single Italian association operating beyond national borders, perhaps equipped with a large and complex structure and with operational bases in various foreign countries, although in this last case the negative penalty value is much higher. For last, certainly the most serious of shortcomings, it seems to be the lack of clarification about the scope, universal or exclusive, of the principle of the otherness between an organized criminal group and a criminal association: decisive gap in generating today's, unsolved, jurisprudential conflict. What seems certain, however, is that the principle of law adopted by the United Sections, strongly restricting the scope of application of the aggravating circumstance in question with respect to the associative cases, determines a serious deviation of the internal legislation from the purpose of the contractual instrument. Dutiful, however, acknowledge that, albeit harshly criticized in the doctrinal context, the pronouncement of the United Sections 18374/2013 it turns out, to date, not only unsurpassed but not even ever questioned by the subsequent jurisprudence of legitimacy: following the pronunciation of the word, indeed, criminal conspiracies operating in more than one state are not (more) recognized as aggravated pursuant to art. 4 l. 146/2006, unless of course the ascertainment of an "external" organized criminal group that has causally contributed to the establishment or permanence of the association itself. It seems quite clear that the obscure literal formulation of the art. 4 of the law n. 146/2006 makes a legislative intervention indispensable, aimed at precisely delimiting the boundaries of the law and definitively overcoming all the inconsistencies generated by the current textual formulation35. Anyway, awaiting the necessary legislative intervention, today it seems reasonable to state that – consistently with the legal reasoning underlying the principle of law adopted by the United Sections 18374/13, with the literal wording of the rule, and with the intention of the legislator - the only interpretative solution suitable for ensuring the uniform application of the law is that aimed at configuring the applicability of the aggravating circumstance of transnationality to crimes aimed at criminal association only when the organized criminal group that contribute to the commission of the crime does not coincide (in no way) with the criminal association itself, or, however with competitors in the offense. So far as, on the contrary, the configurability of the aggravating circumstance in the end crimes of the criminal conspiracy in the presence of coincidence was considered (or overlap) between the criminal association (or, However, among the competitors in the crime) and the organized crime group, it seems essential, in compliance with the uniform interpretation of the law and systematic consistency, fully overcome the principle of law expressed by the United Sections, so as to exclude, based on the current formulation of the standard, the compatibility between the crime of criminal association and the aggravating circumstance of transnationality.