I. The Ini­ti­at­ive and its Con­text

Between 1998 and 2001, the City of Palermo, his­tor­ic­ally char­ac­ter­ized by both the pres­ence of mafia crimes and by an in­tense and dif­fer­en­ti­ated ac­tion to fight these crimes, de­veloped a "Joint European Pro­ject to Counter Or­gan­ised Crime". The Max Planck In­sti­tute for For­eign and In­ter­na­tion­al Crim­in­al Law (Freiburg im Bre­is­gau), with its re­search­ers and in-house pub­lish­ing cap­ab­il­it­ies, made an im­port­ant con­tri­bu­tion to this ini­ti­at­ive. Nu­mer­ous Itali­an, Ger­man and Span­ish law en­force­ment, aca­dem­ic and ad­min­is­trat­ive in­sti­tu­tions also par­ti­cip­ated. In par­tic­u­lar, 11 in­sti­tu­tions of the three Mem­ber States of the EU of­fi­cially took part in the Pro­ject: in Italy, be­sides the Palermo City Coun­cil, the De­part­ment of Crim­in­al Law and Crim­in­o­logy of the Uni­versity of Palermo, the Tribunal of Palermo, the Palermo Pub­lic Pro­sec­utor's Of­fice, the In­ter­na­tion­al In­sti­tute of High­er Stud­ies in Crim­in­al Sci­ences (Siracusa); in Ger­many, be­sides the Max Planck In­sti­tute for For­eign and In­ter­na­tion­al Crim­in­al Law, the Staat­san­waltschaft beim Ober­landes­gericht of Frank­furt am Main, the Gen­er­al­staat­san­waltschaft of Stut­tgart, the Freiburg im Bre­is­gau City Coun­cil; in Spain, the Uni­versity Pablo de Olavide of Seville, the In­sti­tuto Europeo de Es­paña of Mad­rid and sev­er­al judges of the Tribunal Su­premo de Es­paña. All of the above, with­in their spe­cif­ic fields of ex­pert­ise and com­pet­ence, share the goal of fight­ing the spread of all forms of or­gan­ized crime. In par­tic­u­lar, in re­cent years the City of Palermo has pro­moted all ne­ces­sary sci­entif­ic and cul­tur­al activ­it­ies that, mak­ing use of the City's ex­per­i­ence, can help it par­ti­cip­ate in the in­ter­na­tion­al dis­cus­sion of oth­er, sim­il­ar ex­amples of ini­ti­at­ives against vari­ous forms of or­gan­ized crime. Such activ­it­ies have con­trib­uted to the im­ple­ment­a­tion of the pro­gramme and guidelines of the former may­or of the city, Mr. Le­oluca Or­lando, aimed for a long time at en­han­cing the cul­tur­al factor, namely the role of train­ing and edu­ca­tion in en­sur­ing a more ef­fect­ive re­sponse to the mafia. Since 1998, this in­teg­rated ap­proach to the prob­lem has in­spired im­port­ant feed­back and sup­port in the European Uni­on Fal­cone Pro­gramme in whose frame­work European in­sti­tu­tions have fostered stud­ies, ex­changes, train­ing activ­it­ies and oth­er forms of co­oper­a­tion in­volving people re­spons­ible at vari­ous levels in the fight against or­gan­ized crime.

II. Ob­ject­ives and Meth­od

The Joint European Pro­ject de­veloped by the City of Palermo has pur­sued the main goal of im­prov­ing pro­fes­sion­al skills and know-how in coun­ter­ing or­gan­ized crime, also through the pre­par­a­tion of draft laws at the European level. In or­der to achieve this goal, the Joint European Pro­ject has ad­op­ted a meth­od­o­logy which is both com­par­at­ive, as to the leg­al sys­tems covered, and in­teg­rat­ive, as to the pro­fes­sion­al ex­per­i­ences in­volved. Two phases of the Pro­ject have been char­ac­ter­ized by this ap­proach: the first phase aimed at col­lect­ing and com­par­ing data in vari­ous do­mest­ic leg­al sys­tems, and the second at draft­ing for har­mon­iz­ing laws at the European level. This ex­change first took place between Italy, Ger­many and Spain, coun­tries which, on dif­fer­ent oc­ca­sions and at dif­fer­ent mo­ments, had already provided for a spe­cif­ic set of laws against or­gan­ized crime in their na­tion­al leg­al sys­tems. Mean­while, the ana­lys­is pre­pared by the re­search­ers was aug­men­ted by the ex­per­i­ences of civil ser­vants in the sec­tor of law en­force­ment and loc­al ad­min­is­tra­tion. The ap­proach was based on the be­lief that a phe­nomen­on as com­plex as or­gan­ized crime can be com­bated ad­equately only if the ne­ces­sary re­pres­sion of crim­in­al con­duct is matched by a frame of pre­vent­ive ac­tions aimed at over­com­ing the so­cial, cul­tur­al and eco­nom­ic factors fa­cil­it­at­ing its spread.

III. Con­tents

1. The European Basis

The gen­er­al frame­work of the Pro­ject was es­tab­lished by the "European Ac­tion Plan to Com­bat Or­gan­ized Crime", ap­proved by the EU in 1997, which provided for nu­mer­ous ini­ti­at­ives in this field. The Joint European Pro­ject first of all checked wheth­er the Itali­an, Ger­man and Span­ish leg­al sys­tems sat­is­fy the pro­vi­sions of the Ac­tion Plan and com­ply with the fur­ther de­vel­op­ments of the European com­mit­ment in the field. At the same time the pos­sib­il­it­ies were ana­lysed of con­cret­ising the goal upon which these European doc­u­ments are based: the har­mon­iz­a­tion of the crim­in­al sys­tems of the Mem­ber States. On this basis, the Pro­ject draf­ted sev­er­al rules at the European level, fo­cus­ing on some sig­ni­fic­ant sec­tors already in­dic­ated in the above men­tioned Ac­tion Plan.

2.The Phases of the Pro­ject

2.1 Col­lec­tion and Com­par­is­on of Data (1998-1999)

The com­par­at­ive ana­lys­is dur­ing the first phase fo­cused on the fol­low­ing them­at­ic areas:

  • the European com­mit­ment to coun­ter­ing or­gan­ized crime, with par­tic­u­lar at­ten­tion to the leg­al basis for har­mon­iz­ing crim­in­al sys­tems;
  • the forms of or­gan­ized crime in the three EU Mem­ber States in­cluded in the Pro­ject: a so­ci­olo­gic­al and crim­in­o­lo­gic­al ana­lys­is;
  • crim­in­al as­so­ci­ation as a spe­cif­ic of­fence to coun­ter­ing or­gan­ized crime: norm­at­ive rel­ev­ance, struc­tur­al char­ac­ter­ist­ics, fields of activ­ity, forms of par­ti­cip­a­tion and com­pli­city;
  • in­filt­ra­tion of crime in­to polit­ics, pro­fes­sions and law en­force­ment: phe­nomen­o­logy and con­trast­ing strategies;
  • il­li­cit in­come and law en­force­ment in­stru­ments: money laun­der­ing, as­sets in­vest­ig­a­tions and con­fis­ca­tion of il­li­cit goods;
  • gov­ern­ment wit­nesses and le­gis­la­tion re­gard­ing their priv­ileged status;
  • pro­ced­ur­al in­stru­ments to com­bat or­gan­ized crime;
  • the re­ac­tion of civil so­ci­ety and pre­ven­tion by loc­al agen­cies.

The vari­ous top­ics were ana­lysed by re­search­ers from dif­fer­ent coun­tries, also in light of the ex­change of opin­ions and ex­per­i­ences that took place at two meet­ings at­ten­ded by Itali­an, Ger­man and Span­ish judges, pro­sec­utors and loc­al ad­min­is­trat­ors.

These work­shops were held in Feb­ru­ary 1999 (Palermo) and Septem­ber 1999 (Freiburg im Bre­is­gau). The meet­ings were or­gan­ized in such a way as to pro­mote the best pos­sible ex­change of dif­fer­ent view­points. In pre­par­a­tion for the first meet­ing, the re­search units draf­ted texts con­tain­ing ques­tions and sug­ges­tions for the judges and pro­sec­utors. On this basis, the lat­ter de­livered their lec­tures dur­ing the first work­shop and then dis­cussed them with the par­ti­cip­at­ing re­search­ers, to­geth­er with oth­er ex­perts called upon to com­ple­ment the dis­cus­sion. Then, in con­sid­er­a­tion of the com­ment­ar­ies and the sug­ges­tions that emerged dur­ing the first meet­ing, each re­search unit pre­pared a re­port to be dis­cussed dur­ing the second meet­ing. This was or­gan­ized the oth­er way round, i.e., re­search­ers' re­ports were crit­ic­ally com­men­ted upon by the judges and pro­sec­utors, who con­sidered also the in­terests of the com­par­at­ive in­quiry un­der a prac­ti­tion­ers' point of view. The res­ults of the re­search car­ried out in phase I of the Pro­ject were col­lec­ted in two volumes and pub­lished in 2000 in Itali­an and Ger­man un­der the titles "Il crimine or­ganizzato come fenomeno transnazionale" and "Or­gan­is­ierte Krimin­al­ität als transna­tionales Phäno­men" in the series "In­ter­d­iszip­linäre Un­ter­suchun­gen aus Stra­frecht und Krim­in­o­lo­gie" of the Max Planck In­sti­tute for For­eign and In­ter­na­tion­al Crim­in­al Law in Freiburg im Bre­is­gau. Law-Pub­lish­er Gi­uf­frè (Mil­ano) was en­trus­ted with the dis­tri­bu­tion in Italy.

2.2 Pro­pos­i­tion of European Mod­el-Norms (2000-2001)

The ana­lys­is car­ried out in the first part of the Pro­ject was sup­ple­men­ted by re­search fo­cus­ing on a Europe-wide crim­in­al policy per­spect­ive. A new re­search unit con­sist­ing of Itali­an, Ger­man and Span­ish schol­ars and judges stud­ied the pos­sib­il­ity of draft­ing some com­mon pro­vi­sions at the European level to es­tab­lish a leg­al basis for a more ef­fect­ive fight against or­gan­ized crime. In a pre­par­at­ory meet­ing held in Palermo in Decem­ber 1999, the par­ti­cipants agreed to fo­cus at­ten­tion in the second phase on the fol­low­ing top­ics:

  • par­ti­cip­a­tion in a crim­in­al or­gan­iz­a­tion as a European mod­el crim­in­al of­fence;
  • a European mod­el crim­in­al sanc­tion of "ex­ten­ded con­fis­ca­tion" against or­gan­ized crime;
  • European mod­el laws on the use of tech­nic­al means for in­ter­cep­tion of com­mu­nic­a­tions;
  • European mod­el laws on the status of gov­ern­ment wit­nesses.

Pro­pos­als put for­ward on these top­ics were dis­cussed from a com­par­at­ive per­spect­ive dur­ing a third work­shop at­ten­ded by re­search­ers, judges and pro­sec­utors, held in Mad­rid in June 2000. Al­though dur­ing the meet­ing crit­ic­al po­s­i­tions emerged, the view pre­vailed in fa­vour of the pro­pos­i­tion of a re­stric­ted nuc­le­us of ba­sic norms to be ad­op­ted at the European level for fight­ing or­gan­ized crime more fairly and ef­fect­ively. These norm­at­ive pro­pos­als in their Eng­lish, Ger­man, Itali­an and Span­ish ver­sions and the ex­plan­at­ory re­ports re­vised after the com­ment­ar­ies of the Mad­rid work­shop, have now been pub­lished in a third volume un­der the title "To­wards a European Crim­in­al Law Against Or­gan­ised Crime" also in the series "In­ter­d­iszip­linäre Un­ter­suchun­gen aus Stra­frecht und Krim­in­o­lo­gie" of the Max Planck In­sti­tute for For­eign and In­ter­na­tion­al Crim­in­al Law in Freiburg im Bre­is­gau. This volume also con­tains sum­mar­ies of se­lec­ted con­tri­bu­tions already pub­lished in the above-men­tioned Itali­an and Ger­man books.

IV. Per­spect­ives of the Pro­pos­als Sub­mit­ted by the Joint European Pro­ject to Counter Or­gan­ized Crime

With these pro­pos­als, the Pro­ject has im­ple­men­ted its planned activ­ity also in the second phase. Its main res­ults - pa­pers and law pro­pos­als - are now sub­mit­ted to the cur­rent dis­cus­sion on or­gan­ized crime at the supra­na­tion­al level. The in­ten­tion is to bring about a nar­rowly fo­cused but hope­fully sig­ni­fic­ant con­tri­bu­tion to a broad ex­change on the is­sues that formed the core sub­ject of the UN Con­fer­ence in Palermo in Decem­ber 2000 and in the im­ple­ment­a­tion of the re­lated Con­ven­tion against Transna­tion­al Or­gan­ized Crime.
As re­gards the trans­lat­ab­il­ity of the law, the fi­nal pro­pos­als can be sug­ges­tions for the ad­op­tion of a "frame­work de­cision" with­in the in­stru­ments now avail­able to the European Uni­on to im­ple­ment co­oper­a­tion in the law en­force­ment arena. In this man­ner, the tra­di­tion­al European goal of "har­mon­iz­ing the Mem­ber States' rules and reg­u­la­tions" can be achieved with an in­nov­at­ive res­ult – at least with re­gard to or­gan­ized crime, ter­ror­ism, drug traf­fick­ing and the ad­op­tion of European "min­im­al rules as to the con­stitutive ele­ments of crimes and sanc­tions" (so the Am­s­ter­dam Treaty of European Uni­on, art. 31 let­ter e). The widely ex­pec­ted birth of a European nuc­le­us of crim­in­al law may not be all too far away.

Fund­ing

The pro­ject was sup­por­ted by the Fal­cone Pro­gramme of the European Uni­on and by the City of Palermo.