Essays

Year LXI, 2019, Single Issue, Page 56

European Sovereignty and
the Fight Against Mafias and Organised Crime*

The growth of organised crime and mafias (the latter representing an interweaving of entrepreneurial, political and criminal interests designed to create a power system parallel to that of the state) can be counted among the most prominent “success stories” of the (almost complete) globalisation of the world economy; it is also an expression of the failure of states and of international cooperation to take adequate preventive and repressive action.

The opportunities opened up, in Europe, by the free movement of people, workers, capital and goods, and also, more broadly, by the digitalisation of the economy, have allowed countless new illegal and criminal activities to spring up. And these, recording huge profits, are undermining the legal economy and influencing political, social and economic life, especially in Italy.

The Europol 2017 report put the number of organised crime groups under investigation in the European Union at around five thousand. Few of these groups are as deep-rooted as the Italian mafias (under 145 investigations coordinated by Eurojust from 2012 to 2016). Seven out of ten of these organisations operate in more than one country. Engaging in activities such as drugs and counterfeiting, according to Transcrime they share an illegal market worth around 110 billion euros, or 1 per cent of the EU’s GDP. Russian-speaking and Turkish mafias have been found to be prominent. Various reports and investigations have also noted an increasing role of Albanian clans in marijuana trafficking and other areas, and also highlighted the growing danger of lesser-known groups such as motorcycle gangs in Northern Europe, and Vietnamese clans operating mainly in Eastern Europe. “No country can consider itself immune.”[1]

Drug trafficking accounts for around a third of all organised criminal activity. Different types of fraud (boosted by the rise of the digital economy), trafficking and exploitation of human beings (for prostitution and modern slavery), and illegal arms trafficking are other main areas.

The huge profits made by criminal organisations allow them to pollute the legal economy, intervening both in the public sector, through the mechanism of corruption (in order to avoid official checks and manipulate public procurement processes), and in the private sector, through money laundering and reinvestment.

As pointed out in the SOCTA 2017 report,[2] digital technology, offering “an unprecedented degree of flexibility”, has enabled practically all organised crime groups to raise their game; in particular, the new modes of communication and social networks have made it easy for them to adapt to changes in society. Furthermore, the world of organised crime is also exploiting “all kinds of technical innovation such as advances in drone technology, automated logistics, and advanced printing technologies.”

To better clarify the level of social penetration of organised crime, an overview of the main criminal organisations present in Europe is provided in the table.[3]

Abbreviations: OC, organised crime; OCG, organised crime group; OCGs, organised crime groups; RSOCGs, Russian-speaking organised crime groups, BKA, Bundeskriminalamt (Federal Criminal Police Office); NCA, National Crime Agency
Source: https://www.ilfattoquotidiano.it/longform/mafia-and-organized-crime-in-europe/map/
 

It shows that mafia-type criminal organisations are to be found in every single European member state, without exception. Their presence has prompted each country, through the work of courageous journalists and law enforcement agencies, to engage in more or less cognizant debates on the issue. This has had the effect opening a broader debate on the topic within the European Parliament.

For at least a decade, the European Parliament has been approving documents[4] designed to make mafia association a specific offence in all member states, as it already is under Italian criminal law,[5] and “to allow unexplained assets to be confiscated, even without a criminal conviction, [...] another cutting-edge “invention” of Italian legislation. But these documents have all remained dead in the water due to the opposition of several member states [...].”[6]

The main reason for the strength of these organisations in Europe is that responsibility for preventing and punishing crime rests entirely with the single member states; therefore, in order to tackle transnational criminal organisations, the European countries have to coordinate their law enforcement agencies and judiciaries. The persistence of this division of competences is the most important advantage held by organised crime rings. Well aware of the large loopholes and discrepancies in the different countries’ criminal and procedural laws, and of the relative effectiveness of their law enforcement responses, they use this knowledge to limit their exposure to the risk of incrimination and protect their accumulated wealth.

The fight against organised crime and mafias demands a global response from the state and society. What is needed is not just a repressive apparatus, but also a series of interventions capable of encouraging the population to resist the “temptation” of mafia wealth, and also to break down the wall of silence and connivance that grows up around it.

To be truly effective, any effort to tackle organised crime must encompass a series of elements that can be grouped under the following headings:

— Legal interventions and criminal proceedings

• Associating with mafias or other criminal rings must be made a crime, so as to be able to target individuals even solely on the basis of presumed membership of such associations;
• Certain investigative practices necessary in order to combat organised crime must be authorised; these include, in particular, phone tapping, environmental tapping, search procedures, delayed arrests,[7] delayed seizures, undercover operations, and controlled and monitored deliveries;
• Measures such as seizure and confiscation of property (even without a definitive conviction) and of assets held by third parties must be adopted;
• Reverse onus provisions should be applied in the case of crimes relating to criminal organisations;
• Protection programmes for witnesses, victims of crime, collaborators of justice, informants and their families must be implemented;
• Aspects of the prison system must be rendered commensurate with the requirements of organised crime, i.e. recourse to the so-called hard prison regime should be envisaged, in order to prevent “bosses” from continuing to exert their influence even during their detention;

— The role of the judiciary and law enforcement agencies

• To avoid to conditioning and corruption, the members of the judiciary (criminal prosecutors) must enjoy independence and autonomy of action with respect to political and government power;
• Judges must be given specialised training on matters relating to organised crime;

— The culture of legality

• Plans to raise public awareness should be implemented;
• Investigative journalists exploring links between politics and members of criminal organisations should be protected from all forms of conditioning;
• Confiscated proceeds should be used for social ends;

— Measures to prevent criminal infiltration of the economy

• Placement under judicial administration of goods and enterprises resulting from or used in organised crime.
   

Fighting Mafias Begins with the States.

As things currently stand, the European Union, as established by the Lisbon Treaty, has indirect jurisdiction over just one aspect of the field of criminal justice. It is responsible for defining the objectives of the approximation and harmonisation that each member state is required to pursue in this field, and for providing support in the form of data sharing and coordination of law enforcement agencies and judiciaries through Europool, Eurojust and the recently established European Public Prosecutor’s Office (EPPO, for the moment, embraced by only a few member states).

Essentially, it is assumed that the member states, which have full sovereignty over criminal law, must make their systems converge: however, convergence, approximation and harmonisation all take time and can be impeded both by resistance stemming from national political debate, and by the strength of deep-rooted legal traditions that tend to reject externally imposed definitions of crimes.

All this results in a very “muddy” picture where small, sudden advances can be made only in response to emergency situations or to the pressure of public opinion. But since, in most countries, the proceeds of criminality of this kind are well disguised as “capital” and promptly reinvested, the level of alarm tends to be low. Consequently, the problem is underestimated or, worse still, not even acknowledged, since organised crime is widely assumed to be a problem that only affects other countries.

In order to appreciate the urgency of the need to overcome the problem of continued national sovereignty over criminal law, it is sufficient to examine just three aspects of it: (i) the definition of “criminal organisation”, (ii) the difficulty of achieving cooperation in investigations, and (iii) the creation of a European Prosecutor.

(i) The need for common definition of the term “criminal organisation” must be addressed as the starting point for achieving effective collaboration between criminal prosecutors in different member states, as such collaboration would otherwise be very difficult to achieve. This is an issue that has been dragging on for at least 40 years, since the founding of the European legal framework, followed later by the introduction of the three-pillar structure of the European Union.

In 2011, a comparative study[8] set out to establish, on the basis of an analysis of 16 elements, the degree of convergence that exists between the different definitions of “criminal organisation” used in the various criminal legal systems. Surprisingly, it emerged that no two countries applied exactly the same definition. “In general, there emerged three approaches to the criminalisation of organised crime, and these stemmed from the member states’ specific legal traditions: civil law, common law or Scandinavian. An analysis of the legal systems of the different the member states confirmed this distinction. The common law countries (Cyprus, Ireland, Malta and the UK) all showed a very similar approach [to organised crime], based on the crime of conspiracy. The Scandinavian countries (Denmark, Finland and Sweden) showed their usual reluctance to resort to the concept of criminal association as a means of tackling organised crime, and in fact Finland was found to be the only one of these countries to have introduced a law of this kind. Instead, in all the civil law countries, the problem is dealt with on the basis of the concept of criminal association.”

(ii) International police cooperation on matters of organised crime is often difficult to achieve. For example, in The Netherlands, Germany and Spain, the law on environmental interception “is based on a particularly strict interpretation of the concept of privacy protection; (…) the real difficulty is that an interception cannot be used, implemented or continued when the individuals conversing stop talking about matters relating to the crime or investigation, and move on to personal matters. (…) Other situations can arise that border on the ridiculous, such as when an authorised interception taking place in a car has to be interrupted simply because a further person gets in, who has not previously been identified (....), because the law in these countries requires that all interlocutors be identified in advance. Further problems arise when dealing with cunning individuals who repeatedly change a car’s licence plates; indeed, if an interception has been authorised for a car with a given licence plate and that is then changed — this happens in Germany in particular — fresh authorisation will need to sought and the previous interception has to be suspended and can no longer be used (…). And this is to say nothing of the problems presented by BlackBerry phones, whose particular software and hardware makes them particularly impenetrable. These devices are used by drug traffickers, and while they can be intercepted in countries such as Venezuela, Columbia, Peru, Argentina, Brazil and sometimes even Mexico, this is not possible in Europe, where even the police lack the professional-technical expertise necessary to intervene on devices of this kind (…). Furthermore, in many European countries (…) the judicial police have to respect strict working hours, with the result that agents in the midst of an investigation have been known to “knock off”, despite there being a clear need, at that particular point in time, for them to continue working.”[9]

(iii) The concept of establishing a European Public Prosecutor’s Office to protect EU finances dates back to the 1990s. The first study project, funded by the European Commission, was named Corpus Juris[10] and it laid the foundations for a debate on the creation of a European criminal justice area. Following intense debate, the Commission finally launched a proposal in 2013. However, the Lisbon Treaty, in Art. 87, did not establish a Prosecutor’s Office; it only created the necessary legal basis. Essentially, it was established that the Council, acting unanimously and after consulting the European Parliament, might take steps in this direction, in accordance with a special legislative procedure. However, after more than three years of negotiations, the Council failed to reach a unanimous agreement on the proposal. At this point, the only option was to have recourse to the enhanced cooperation procedure, which nine member states initially opted to do. This led to the formal notification of the intention to launch an enhanced cooperation to establish a European public prosecutor’s office[11]. However, the final agreement on the regulation actually had the effect of diluting and weakening the few truly innovative points that, introduced by the TFEU and, even before that, envisaged by the Corpus Juris, might have made it truly effective.

The drafters had outlined, for the European Public Prosecutor’s Office, a modus operandi compatible with the current institutional architecture of the EU. Part of the foreword to the Corpus Juris reads thus: “What the Corpus Juris proposes, in essence, is a mixed regime: national and Community elements are combined in such a way that the member states, and not the European Union, may apply the criminal law. In order to protect the financial interests of the European Union, eight offences are laid down in the Corpus Juris, with penalties. With regard to the conduct of investigations, a European Public Prosecutor (EPP) is proposed, this office comprising a Director of European Public Prosecutions (EDPP) and European Delegated Public Prosecutors (EDelPPs) in the member states. The EPP may exercise its powers of investigation throughout the territory of the European Union. The powers of the EPP are therefore mostly devolved to the member states. These powers are identical in all 15 member states of the European Union. During the preparatory phase, judicial control is exercised by an independent and impartial judge, called a ‘judge of freedoms’, to be nominated by each member state. Corpus Juris offences are tried by the national courts.”[12] In the drafters’ view, the most innovative part was the creation and application of a common body of criminal laws relating to the safeguarding of European finances and the fight against organised crime, with the definition of common offences serving to overcome particularisms. On this basis, it was envisaged, the European Prosecutors (EDelPPs) would all be able proceed in the same way and on an equal footing. In reality, however, given that it falls to each member state, through the transposition of Directive (EU) 2017/1371 (the so-called PIF Directive on the fight against fraud to the Union’s financial interests by means of criminal law), to identify and define the crimes coming under the jurisdiction of the EPPO, the latter actually finds itself having to apply non-homogeneous criminal provisions, a situation that can only result in “miminal harmonisation that is undoubtedly detrimental to the EPPO and undermines the uniformity and functioning of the (whole) system.” [13]
 

Criminal Law and National Sovereignty.

The main obstacle to the creation of a body of European criminal law is not, as clearly shown by the European Parliament’s resolution of 25 October 2011 on organised crime in the European Union,[14] the lack of a will to overcome the ineffectiveness of the nation states and tackle the problem of organised crime at European level; instead, it is an obstacle of a legal and institutional nature.

From the legal standpoint, the problem is that criminal law is strictly bound by the principle of the “reserve of law”, which is the constitutional expression of the supremacy of popular sovereignty over authority.

In more detail, in all written constitutions, the exercise of criminal law is subject to the “legal reserve” or “reserve of law” rule, according to which a specific competence can be regulated only by the legislative body and never by an executive body.

This rule should be understood to serve “as a safeguard designed to protect the division of powers, the democratic principle and representation in political-criminal choices” which “presupposes the presence of a representative body that, following a dialectical process that meets certain essential procedural requirements, can legitimately impose restrictions on the primary good that is personal freedom”[15].

“Moreover, it can be said that the reserve, at its most fundamental level, fulfils a key role as the element that enshrines national democratic identity and the entire edifice of the rule of law, and serves as the essential guarantee of the relationship between authority and freedom that, so intimately bound up with popular sovereignty and the democratic principle, can be considered one of the fundamental human rights.” [16]

In more general, and more practical, terms “there is a pressing need to extend democratic procedures beyond state borders”; the aim of balancing the demands of criminal legal systems with the need for the participatory guarantees that underpin the legal reserve concept could be achieved by striving to implement, within the EU’s institutional framework, the principle of the separation of powers, entrusting legislative power and political control of the executive solely to a democratically elected body. This would have the effect, finally, of ensuring that all decisions relating to criminal matters are taken within the context of a political dialogue; it would acknowledge, once and for all, that, as in the past and perhaps even more than in the past, the legitimacy of criminal decision-making power depends on the ability to have a majority, but also, and above all, an opposition with the capacity to speak out, monitor, denounce, propose, amend, and change minds: a force able to advance requests and proposals based on processes of dialectic and reasoning, crucial in the unfolding of the debate concerning political choices and, all the more so, criminal policy choices.” [17]

And this brings us to the institutional obstacle, namely that the current European Union does not have a genuinely democratic representative institution equipped with full legislative and executive powers.

In terms of legislative power, the European Parliament, despite the powers it has acquired over the decades, still does not provide a substantial democratic guarantee. This is because “it completely lacks the power of legislative initiative (the only power that truly expresses the capacity to weigh up the values and interests that deserve protection and regulation at primary level), which currently remains in the hands of the Commission.”[18] Furthermore, many European legislative acts are subject to the so-called co-decision procedure, and “the concept of co-decision itself shows a glaring inconsistency.” After all, “in a democracy, it is only the representatives of the people that can legitimately decide — not “co-decide” — to curtail the fundamental rights of the individual (freedom, personality and dignity) that tend to be the focus of criminal law legislation.” [19]

At the level of the executive branch of power, the European Commission cannot impose its decisions on the citizens directly and autonomously. This is because the EU possesses no “monopoly of force”, or ultimate power of coercion and accordingly Commission decisions are always required, at least, to pass the scrutiny of the democratically elected legislative body.
 

Conclusions.

 The European Union is an institution derived from and founded on international treaties, and as such it lacks the attributes of a state. Accordingly, despite wielding some powers, its strategies to combat organised crime inevitably come up against the obstacle of national sovereignty in criminal matters. What is more, since the European Union has no fully democratic legislative power, able to provide the “legal reserve” guarantee enjoyed by each of the member states, such strategies cannot be “pooled at community level”.

All this leads to the conclusion that there is only one way of creating and implementing European-wide criminal legislation against organised crime: a system that overcomes all the present political and legal obstacles, and can be exercised democratically and legally. The solution is to complete the European integration process by making the “federal leap” towards a European federal state, meaning an institution endowed with coercive power of last resort and controlled by a truly democratic Parliament and by a government that is politically accountable to the same.

* This article is an update of a piece published 10 years ago in Il Federalista, 52, no. 2 (2010), p. 128.

[1] Fatto Quotidiano, United Mafias of Europe, project coordinator Mario Portanova, funded by the European Parliament, https://www.ilfattoquotidiano.it/longform/mafia-and-organized-crime-in-europe/map/.

[2] Europol, SOCTA 2017, https://www.europol.europa.eu/activities-services/main-reports/european-union-serious-and-organised-crime-threat-assessment-2017.

[3] Based on Fatto Quotidiano, United Mafias of Europe, op. cit..

[4] An example is the European Parliament resolution of 25 October 2011 on organised crime in the European Union (rapporteur Sonia Alfano) which was approved by a large majority. For the complete text, see https://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-2011-0459+0+DOC+XML+V0//EN.

[5] European Parliament resolution of 25 October 2011 on organised crime, op. cit.: “14. The European Parliament (…) urges on the Commission to draw up a proposal for a directive to make associating with mafias or other criminal rings a punishable crime in all member states, in order to be able to punish criminal organisations which profit from their very existence, through their ability to intimidate – even without any specific acts of violence or threats – with the aim of committing crimes, influencing the running of the economy, general government, public services and the electoral system.”

[6] Fatto Quotidiano, United Mafias of Europe, op. cit..

[7] Delayed arrest is an investigative tool used by police when, during stalking or wiretapping, they become aware that a minor criminal offence is being committed, but consider it necessary to “let it go” in order to be able to collect further information that may bring to light more serious offences. In Italy, this practice is regulated by Article 98 of the Testo Unico (Consolidated Law) on narcotic substances. At international level, however, the real difficulty is that, in many countries, this is not permitted. Nicola Gratteri, Deputy Prosecutor of Reggio Calabria, illustrating this situation, remarked: “A year and a half ago, a load of a cocaine was about to arrive in Rotterdam, one of Europe’s largest ports. In situations like this, either you already know the number of the container in question or, as in this case, you follow the person you know will go and collect the drugs. The problem was that the investigation had revealed that this individual had two kilos of cocaine at his home. My colleague in Rotterdam said he had no choice but to arrest the person in question, even though this jeopardised the seizure of the container. In the Netherlands, no provision is made for delayed arrest or delayed seizure.” Nicola Gratteri, Come migliorare il contrasto alla ‘Ndrangheta, in Sonia Alfano and Adriano Varrica (editors), “Per un contrasto europeo al crimine organizzato e alle mafie. La risoluzione del Parlamento Europeo e l’impegno dell’Unione Europea”, Milan, Franco Angeli, 2012, p. 228, https://www.giuliocavalli.net/wp-content/uploads/2014/01/Alfano-S.-Varrica-A.-Parlamento-Europeo-contro-le-mafie.pdf.

[8] Francesco Calderoni, La decisione quadro dell’Unione Europea sul contrasto alla criminalità organizzata e il suo impatto sulla legislazione degli Stati membri, in Sonia Alfano and Adriano Varrica (editors), Per un contrasto europeo al crimine organizzato e alle mafie, op.cit., p. 28: “On the basis of existing literature and an analysis of national laws, the following set of 16 aspects was taken into account: 1) associative crimes; 2) aggravating circumstances; 3) criminal liability for mere agreement; 4) number of members of the criminal organisation; 5) group structure; 6) group continuity; 7) number of organised crimes committed; 8) type of organised crimes committed; 9) additional elements; 10) standard penalties for the offences; 11) diversification of penalties; 12) concession of benefits for collaborating with the judicial system; 13) eligibility for benefits; 14) criminal liability of legal entities; 15) penalties for legal entities; 16) rules relating to jurisdiction. The aim of the analysis is to assess current laws on criminal organisations and it therefore focuses on crime generally (rather than more specific laws, such as those concerning membership of drug trafficking rings).”

[9] Anna Maria Maugeri (editor), Stati generali della lotta alle mafie Tavolo XV – “Mafie e Europa”, Diritto penale contemporaneo (2018), pag. 16, https://www.penalecontemporaneo.it/upload/8056-tavolo-xv-mafie-europa.pdf.

[10] M. Delmas-Marty and J.A.E. Vervaele (editors), The Implementation of the Corpus Juris in the Member States: Penal Provisions for the Protection of European Finances, Antwerp, Intersentia, 2000.

[11] See the EU website on the EPPO: https://www.consilium.europa.eu/en/policies/eppo/. Nine states that initially promoted the initiative were subsequently joined by others. The countries currently involved are: Austria, Belgium, Bulgaria, Cyprus, Croatia, Estonia, Finland, France, Germany, Greece, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, the Czech Republic, Romania, Slovakia, Slovenia, Spain.

[12] M. Delmas-Marty and J.A.E. Vervaele (editors), The Implementation of the Corpus Juris in the Member States, op. cit..

[13] Angela Correra, Prime osservazioni sul regolamento che istituisce la procura europea, EUROJUS.IT, 2017 http://rivista.eurojus.it/prime-osservazioni-sul-regolamento-che-istituisce-la-procura-europea/; on the Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘the EPPO’), https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32017R1939&from=EN.

[14] https://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-2011-0459+0+DOC+XML+V0//EN.

[15] Cristiano Cupelli, “Il parlamento europeo ed i limiti di una codecisione in materia penale. Tra modelli di democrazia e crisi della riserva di legge”, Criminalia, 7 (2012), p. 535.

[16] Ibidem.

[17] Ibidem.

[18] Ibidem.

[19] Ibidem.