Mafia mould also for criminal associations where there is omertà and intimidation

Article 416 bis onmafia-type association can be applied to criminal associations other than the mafia that have similar characteristics and modus operandi, characterised by intimidation and omertà. Consequently, the conviction on the basis of this article complies with the Convention and does not violate the principle of legality and peremptory nature of criminal law even if the perimeter of application is widened thanks to a new interpretation affirmed by national courts. This was established by the European Court of Human Rights that, in a decision made public on 2 October, in the case Casamonica v. Italy (no. 21670/24) rejected the appeal of one of the members of the criminal group, active in the vicinity of Rome.

The appellant, who was also convicted at all levels of the trial for violation of Article 416-bis, argued that the conviction was contrary to Article 7 of the Convention according to which 'No one may be convicted of an act or omission which, at the time it was committed, did not constitute an offence under national or international law' (nulla poena sine lege). In his view, the placing of new criminal groups ('new small mafias') within the scope of Article 416-bis was contrary to Article 7 as the domestic rule was to be applied only to the mafia understood in the traditional sense, in particular taking into account the territorial aspect.

A thesis rejected by Strasbourg. It is true,' the Court states, 'that the widening of the scope of Article 416-bis had developed in case law after the events, but it cannot be argued that a new interpretation of the scope of the offence was not reasonably foreseeable and consistent with the essence of the offence. Therefore, theconviction based on the circumstance that the clan had been classified as a mafia-type criminal structure, albeit small and operating in territories other than those traditionally linked to the mafia, is compatible with the Convention. Having reconstructed the legal framework and practice of Italian jurisprudence, the Court found that Article 416-bis(8) itself already includes criminal organisations other than the Mafia because it explicitly refers to 'other organisations'. Thus, what counts is not the formal name but the existence of typical elements provided for by the rule and, therefore, the modus operandi of the clan and the purpose of the organisation.

The Court of Cassation applied Article 416-bis to the so-called new mafias only from 2020, i.e. after the commission of the acts for which the appellant had been convicted, but this, for Strasbourg, is not sufficient in itself to call into question the foreseeability of the unlawfulness and conviction. The national courts, on the other hand, have applied the criteria set out in Article 416-bis(3), which apply to criminal organisations that, although different from the mafia in historical and geographical terms, are identical in terms of strategy and mode of action. Not only that. The Court states that the national courts have established in an individualised manner the presence of all the constituent elements of the offence, in line with Article 7 of the Convention.

A new interpretation of the scope of an existing offence may also be considered foreseeable, as long as it is reasonable in the light of domestic law and consistent with the essence of the offence. This was the case here, with the consequence that the European Court declared the appeal inadmissible.