Legality and struggle against organised crime: Legality and struggle against organised crime: Confiscation and social re-use of criminal assets

Transcription

1 Legality and struggle against organised crime: Confiscation and social re-use of criminal assets Organised crime is no longer only an economic parasite, but in the current phase of crisis it is becoming also an unfair competitor, and one of the phenomena that hinder economic recovery. It is one of the forces that risks sinking the hope for the European integration process. Such a transnational phenomenon needs a response from civil society and institutions which is equally international. For this reason we propose the practice of confiscation and social re-use of confiscated assets, developed and implemented in Italy, as a possible model of fighting organised crime and the mafias by taking away what they have accumulated with illicit activities. Legality and struggle against organised crime: Confiscation and social re-use of criminal assets by Lorenzo Bodrero, Enrico Incisa, Andrea Sartori and Alessandro Valera

2 European Alternatives would like to thank: Everyone who took part to the citizens consultations around Europe, the speakers and moderators of regional and transnational consultations, the contributors to this pamphlet and all the volunteers and activists who made People Power Participation possible. Flare Network, without which this pamphlet would not have been possible Our partners Toxic Europe, Asociatia Pro Democratia, Europe Direct Centras and Kennedy Talbot. Delyan Benev for the graphic design of this pamphlet. This project has received part financing from the European Commission s Europe for Citizens Programme. Printed in Italy for European Alternatives in November 2011 European Alternatives is a civil society organisation devoted to exploring and promoting transnational politics and culture by means of campaigns, conferences, publications, artistic projects, and TRANSEUROPA Festival. We believe that today democratic participation, social equality, and cultural innovation are undermined by the nation-states in Europe, and that transnational forms of collectivity must be fostered to promote these values. With offices in four European countries and a network of activists and local groups stretching to over twelve, the organisation is unique in being at once a breeding ground for new ideas and proposals for politics and culture at a European level and in being a political and cultural actor with a truly transeuropean activity, staff and support base. To find out more about European Alternatives, check out our multi-lingual website: or follow us on social networks: To become a member of our European Alternatives, go to You are free to copy, distribute or display this pamphlet. You must give the original author credit. You may not use this work for commercial purposes. You may not alter, transform, or build upon this work. For any other information you can write to info@euroalter.com , European Alternatives 15

3 Since the entry of the Treaty of Lisbon into force, it is possible in the Union to use a new democratic instrument: the Proposal for a directive of popular initiative, also called European Citizens Initiative (ECI). It is based on the collection of at least one million signatures from EU citizens in support of a proposal; it is not a law to be submitted to a legislative body (European Parliament or Council) once the signatures have been collected, but an address that the citizens submit to the body that proposes EU directives: the European Commission, that in turn will be compelled to formulate a bill for the legislator. The ECI will entry into force in April A proposal for a directive of popular initiative might create a highprofile critical point for the subsequent negotiation, which would take place through co-decision between the European Parliament and the Council of the Ministers of Internal Affairs, thus building a mechanism of social evidence and popular participation in matters that would otherwise be reserved to technicians and destined to a mark-down negotiation between States. Since this would represent one of the first initiatives using this instrument, and due to the fact that the matter is extraordinarily important from cultural, social and political points of view, such a process might also have great relevance in the re-launch of the process of European integration as a precious instrument to confer substance to the general interest of the citizens, as opposed to the particular interests of lobbies, especially criminal lobbies. Roberto Forte Foreword It is urgent to develop policies and practices to fight crime beyond national borders, as organised crime has been for years a transnational phenomenon. Organised crime is no longer only an economic parasite, but in the current phase of crisis it is becoming also an unfair competitor, and one of the phenomena that hinder economic recovery. It is one of the forces that risks sinking the hope for the European integration process. This is why we are convinced that taking action against illegal economy and its perpetrators is in the interest of civil society, of the institutions, and it should become of interest to all responsible economic actors. The strategy for repression of the criminal phenomenon must take a qualitative leap and support the process of control and repression of crimes through a coordinated action to control national and transnational flows of capital. Only by hitting the core of criminal organisations, that is, their wealth, will it be possible to effectively try and clean our economies and societies. Italy is a country that unfortunately boasts a long history of criminal phenomena, deeply rooted in its territory, its economy and its politics. At the same time, Italy also boasts a unique experience 14 3

4 in developing effective systems to fight organised crime-systems that were developed thanks to the sacrifice of many brave actors. The most outstanding example is the Law 109/1996, that provides a mechanism of confiscation of property from criminal organisations and for the re-use of such assets for social purposes, by means of the reassignment to public administrations or to associations, NGOs, etc. Therefore, the law offers answers on three levels: 1. On the judiciary level, helping to dismantle the criminal organisations and depriving them of their economic power. 2. On the economic level, removing elements of unfair competition and pollution of economy. 3. On the social level, returning to society, in a fair and legal way, the economic resources subtracted by organised crime. This is not only important on the local or national level. In a world where the economy is fully transnational, and where the criminal organisations themselves act exactly like transnational businesses, the extension of confiscation and re-use to the whole EU would strike a devastating blow to the whole body of the illegal economy. This is why my organisation has joined the People Power Participation project to act transnationally on this issue. Roberto Forte, Executive Director, FLARE Freedom Legality and Rights in Europe Our common actions The European Commission is presenting its own bill on confiscation, but the upcoming Directive is likely to be weak in two points: it will not compel the Member States to use confiscation as an instrument to undermine the wealth of criminal organisations, limiting the provisions to a desirable, but insufficient harmonisation of national legislation in the matter. Even worse, it will not include the social re-use of confiscated assets as an outcome of confiscation, which is instead the provision that gives the highest social value to the whole system of recovery, confiscation and reassignment of criminal wealth. The actions that we can bring into play to support the confiscation and social re-use of criminal assets are of two types. First, the European citizens must be made aware of the characteristics, size and impact of the phenomenon of organised crime on the economy and society, at all levels. This can be done by means of diffused awareness-raising campaigns addressed to the common citizens and the institutions alike, in order to raise awareness of the importance of fighting crime. Second, the European common legislation as well as the national laws should come to include confiscation and re-use; and the EU law itself offers us the instrument to use for this purpose. 4 13

5 crime knows no borders. Ms Malmström also added how important it would be to start working on the model of confiscation and social re-use of criminal assets, a model in place in Italy for over 15 years now and that has shown itself to be a very efficient approach for involving civil society in the fight against organised crime. Confiscation and social re-use of criminal assets The Stockholm Programme states that: An internal security strategy should be developed in order to further improve security in the Union and thus protect the lives and safety of European citizens and tackle organised crime, terrorism and other threats The results on a brainstorming held in Otranto, Italy as part of the PPP project during Otranto Legality Experience 2011 Many Europeans are aware that the damage that organised crime has on society it is as devastating as that of terrorism. Organised crime is often entangled with local and national politics and it hinders the economic and social development of several states as well as of Europe as a whole. As a trans-national phenomenon, it also jeopardises the development of international business and political relations. Achieving a climate of legality and respect for the rule of law is an indispensable requirement not only for personal security, but also for social development. With networks of organised crime assuming more and more a trans-european dimension, actions to fight local and transnational mafias are needed to (re)establish the rule of law at every level of social, economic and political life. Criminal organisations from within and without the EU have taken up the opportunities arising from the Single Market and a borderless Schengen area. The anti-mafia movement, as well as the work 12 5

6 by the police and judiciary forces, has been less effective in maximising the benefits of a united Europe to respond to the expanding tentacles of the mafias. This pamphlet will present one concrete countermeasure that could be adopted throughout Europe to fight organised crime in a more effective way. Confiscation of goods and properties illicitly acquired by organised crime groups is a tool used by several countries, but not everywhere in Europe. Even more important, the re-use of such assets for social purposes has not yet become a widespread practice. If such a practice were adopted, it would be a powerful instrument for both fighting crime and raising awareness, and it would give the criminal wealth back to society. This would demonstrate that crime steals resources from the society itself, but that it can be stopped and those resources reinvested in the society. Making these assets public property to be used for social purposes, as the Italian law legislates, could be proposed as a model for other EU member-states. What is confiscation? Confiscation as a tool in the fight against organised crime had initially been conceived within the EU boundaries as a useful measure in the struggle against drug trafficking. Once the great offensive potential of this measure against criminal wealth was realised, it was quickly extended to nondrug related crimes, especially to criminal proceeds. Cooperative Valle del Marro, Italy on confiscated land Contemporary criminal organisations are indeed nothing but illegal enterprises whose goal is by 52 picchio On Flickr group. In 1995, Don Luigi Ciotti and his association Libera launched a campaign in Italy that managed to collect 1 million signatures necessary for a citizen-led referendum. The outcome was that a law was passed that imposed the obligation for all mafia goods confiscated by the state to be re-invested or re-used for social purposes. Local institutions other than public bodies were therefore given legal property over those good to be used for non-for-profit causes. In January 2011, MEP Rita Borsellino questioned Cecilia Malmström, Commissioner for Home Affairs, on the urgent need to improve the fight against mafias on a continental level. Ms Malmström said she would work with Viviane Reding, Commissioner for Justice, on the issue of confiscating mafia assets. Ms Malmström said this is not just an Italian problem but a European one, because organised 11 6

7 10 dom, security and justice in the European Union 7 was released, the return of confiscated assets as compensation to identifiable victims or for public benefit purposes has been stressed as a priority. The same priority has been confirmed by the Stockholm Programme. This legal procedure consists of the power of the state to confiscate goods and properties belonging to criminal bosses, their relatives and clans. It is not limited to the confiscation of the proceeds of crime, or of an equivalent amount. Generally speaking, this type of confiscation presumes there is somebody who has been found guilty of serious crimes, as a form of indemnification to the victim, or to the State. In Italy, the mere fact of belonging to a criminal organisation like the mafia, or others, is a criminal offence, so the confiscation can take place even if no specific crime is charged to the recipient. Moreover, the confiscation of assets in Italy can happen independently of the outcome of a trial, that is, under certain conditions it is possible even if the recipients have not been sentenced. This is also intended to deprive people belonging, or with a substantiated suspect of belonging, to criminal clans, of the possibility to pollute evidence or to hamper the trials in any fashion; and however, it pursues the aim of depriving criminal organisations of the riches illicitly accumulated. When these assets were not directly subtracted to an identifiable victim but have been acquired by illicit means, the society and local communities can be said to be the victims. As specified above, this also applies when the crime in itself cannot be identified, aside from being the act of an organised crime 7 Council and Commission Action Plan implementing the Hague Programme on strengthening freedom, security and justice in the European Union (2005/C 198/01) the multiplication of capital: so what better threat to their profits than a legal instrument that through a juridical order results in the final deprivation of property? Confiscation of criminal proceeds has a twofold value: it reduces the risks of financial destabilisation and corruption while working as a deterrent to crime by making it no longer remunerative. Beyond being a sanction, the confiscation of criminal assets is also a preventive tool which shows potential offenders that they will not be allowed to enjoy their illicit wealth. The journey towards a common confiscation law Cooperative Lavoro e non solo, Sicily on confiscated land For over a decade the EU has considered the fostering and implementation of confiscation. The EU Action Plan to combat organised crime of April 1997 states: «The European Council stresses the importance for each Member State of having well developed and wide ranging legislation in the field of confiscation of the proceeds from crime» 1. Three years later the Millennium Strategy reiterated this by stating as fundamental «that concrete steps are taken to trace, freeze, seize and confiscate the proceeds of crime» 2. After those first declarations, concrete steps have been made to introduce the confiscation of criminal assets at European level. With Council Action Plan, Political Guideline No Council Strategy on the Prevention and Control of Organised Crime: a Strategy for the Beginning of the New Millennium (EU), 3 May 2000, O.J. (C 124) 7

8 8 the 2001 Framework Decision on Money Laundering, the Identification, Tracing, Freezing, Seizing and Confiscation of the Instruments of and the Proceeds from Crime 3 member states are obliged to introduce systems of value confiscation, meaning the confiscation of a sum of money corresponding to the value of the criminal gain: instead of confiscating the specific assets derived from crime, States are required to merely confiscate a sum of money equal to the value of these assets, thereby facilitating the process. Where the confiscation of money is not feasible the claim may be realised on any property available. Furthermore, member states are required to ensure that all requests from other member states relating to asset identification, tracing, freezing and confiscation, are processed with the same priority as is given to such measures in purely domestic proceedings. The 2003 Framework Decision on Mutual Recognition of Orders Freezing Property or Evidence 4 by Daded2 on Flickr extends the mutual recognition to pre-trial orders thus accelerating the execution of freezing orders between member states. The 2006 Council Decision on the Application of the Principle of Mutual Recognition to Confiscation Orders 5 applies the principle of mutual recognition to confiscation orders. This is intended to strengthen 3 Council Framework Decision on Confiscation of Crime- Related Proceeds, Instrumentalities and Property (EU), 26 June 2001, (2001/500/JHA) 4 Council Framework Decision on Mutual Recognition of Orders Freezing Property or Evidence (EU), 22 July 2003, (2003/577/JHA) 5 Council Framework Decision on Confiscation of Crime- Related Proceeds, Instrumentalities and Property (EU), 24 February 2005, (2005/212/JHA) cooperation between member-states by enabling judicial decisions to be executed immediately obviating the need for the decision to be reviewed by the requested State. A 2007 Council s decision 6 obliges member states to designate at least one national Asset Recovery Office (ARO) and to ensure effective and simplified cooperation among them. The AROs are to share best practices, fostering the improvement of the confiscation procedure all over Europe. Whether the ARO is established as administrative, law enforcement or judicial body is up to the discretion of the member states. As of today, not all Member States of the European Union have established AROs and those that exist are equipped with varying powers, structures and practices. The main legal instruments used by the European Union are the above-mentioned framework decisions, which are to be adopted unanimously by the member states and which are used to approximate the laws and regulations of the nations. Framework decisions are binding for the member states in terms of the result to be achieved but they leave national authorities the choice on which forms and methods to use. The downside of this system is that huge differences persist and some member states might only do the absolute minimum in order to comply with the European framework thus affecting the efficiency of Europe as a whole entity sided against organised crime. Social re-use of confiscated assets Since the Council and Commission Action Plan of June 2005 implementing the Hague Programme on strengthening free- 6 Council Framework Decision concerning Cooperation between Asset Recovery Offices of the Member States in the Field of Tracing and Identification of Proceeds from, or other Property related to, Crime, 6 December 2007, (2007/845/JHA) 9