Mafia-type organizations (Article 416-bis)

Mafia-type organizations (Article 416-bis)

As I explained above, when we talk about ensuring free elections in the democratic electoral system of the Italian state, it is closely linked to criminal organizations by adapting to the social, political development of the country. With the law n.646 / 1982 updated with the legislative decree n.356 / 1992 through article 11 of this decree, I enrich the criminal legislation with two legal provisions, respectively, commentary 416-bis and 416-ter.

This aspect was completed without legislative intervention in 1992: precisely with two separate laws, law n.361 / 1957, respectively in the elections of the Chamber of Deputies or the Chamber of the Senate, and the Presidential decree n. 750/1960 for municipal elections (both of these laws are in force today), these two laws punish anyone who, to keep to himself or someone else advantages for the electoral vote or abstention, offers, promises money, or something else necessary for one or more voters or for agreements between them “, or” anyone who uses violence or intimidation against a voter to force a voter to vote for a candidate or who uses any illegal means to reduce voter freedom, puts pressure on them to move their vote to go to a particular candidate.

In the third paragraph of Article 416-bis, precisely in the part where the activity of a mafia-type criminal organization is defined when those individuals who are part of this group are subject to the rules for committing direct or indirect criminal offenses in obstructing or violating the development of free elections. So, this provision also applies to those entities who, indirectly through “wild” mafia methods, control the elections in exchange for money or promises to receive concessions, authorizations, payments. Until 1982 to prosecute mafia crime, prosecution institutions were based on Article 416 of the Italian criminal code (criminal organizations). Still, this norm soon proved ineffective in the face of the mafia phenomenon, thus interfering with Article 416-bis.

The objective of mafia organizations is to commit a crime by taking and controlling economic activities, such as concessions, authorizations or tenders, and public services, and through these actions to extract profits and advantages for themselves and others, to limit the freedom of the right to exercise free voting or to secure votes for oneself and others during elections.

The most talked-about case in this regard is the case of Giulio Andreotti, who, around 1998/1999, was accused in Palermo of mafia collaboration, Article 416, paragraphs 4, 5 of the Italian Criminal Code. In the first instance trial, on October 23, 1999, he was acquitted because the fact did not exist, while the Court of Appeals, on May 2, 2003, separated the trial from the facts and events for which the former prime minister was accused years ago. The 1980s and later, and decide by acknowledging that Andreotti had committed the crime of mafia collaboration, with one of the largest mafias in the world (such as the Cosa Nostra), for which he had committed before the 1980s, and which had already passed into prescription.

It was precisely because the former prime minister had helped the mafia group called Cosa Nostra to defend and advance their goals, precisely through his influence and power in power and government, thus cooperating in further strengthening this group mafioso.
As for the facts that occurred after the 1980s, Andreotti was acquitted by the Court of Appeal in Palermo. The court synthesizes the defendant’s relationship with the mafia specifically in a few words: “….. authentic, stable and friendly of the defendant with the mafia until the 1980s”. On October 15, 2004, the Court of Cassation (Supreme Court) of Italy dismissed all charges against Julio Andreotti, arguing that both leaders were statute-barred.

The characteristics of this provision are the agreement or the existence of a relationship that has all the elements to stay long even after the completion of some criminal offenses programmed by the organization. This stability of the organization’s connection gives their crimes a typical nature of a permanent criminal offense. The criminal punishment of the criminal organization is done for the sole reason of the realization of the illegal agreement or for the simple fact of being a member of the mafia organization.Mafia-type organizations (Article 416-bis)

Object: According to legal doctrine, the best protected is public order when it is violated by direct or indirect criminal groups in disrupting the legal, social and electoral system guaranteed by the Italian constitution and European conventions ratified by this state. For this reason, they are punished only for being part of an organization that has these goals in its program, regardless of whether or not their dreams are realized. This means that the punishment provided in this provision is sufficient simply for being part of this grouping because it creates panic and disorder in the ordinary course of a democratic society.

Active subject: The active subject of electoral crime can be anyone, but doctrine and jurisprudence can not include persons with mental disabilities and minors (persons under 18 years of age).

Subjective element: For guilt to exist, it is necessary not only the will to be a member of a criminal group but also the awareness to commit a series of crimes. We are dealing with eventual intent.
Aggravating circumstances – The criminal code provides for two aggravating circumstances: the first is when possessing or using a weapon or explosive for which a sentence of imprisonment of five to ten years is provided. When dealing with a criminal group with ten or more members, the penalty increases up to 1/3.Mafia-type organizations (Article 416-bis)