“Associative offenses” constitute a category of crimes where the incriminated action involves the formation and involvement in a criminal association. In general, these crimes involve at least three individuals coming together to create a stable organization, distinctively recognizable from the personality of individual participants, with the aim of pursuing a specific and pre-established criminal program.
Plurisubjective Offenses
Associative crimes are considered part of a broader category of plurisubjective offenses or offenses requiring necessary concurrence. To configure such crimes, the presence of multiple perpetrators is essential, with a minimum number of participants (usually three or more), and a stable and continuous connection to carry out a criminal program.
Distinction between Association and Committed Offenses
It is important to emphasize that the crime of criminal association is punished independently of the actual commission of the crimes outlined in the criminal program of the association. In other words, the creation and involvement in a criminal association constitute a separate offense, regardless of the success or failure in implementing the planned crimes.
Key Elements of the Criminal Association Offense
The crime of criminal association requires the presence of a stable organizational structure, even if rudimentary, intended to endure over time and adequate to achieve the established criminal objectives at the time of its formation. Key elements include:
1. Stable Associative Bond
The creation of a stable and continuous associative bond among members, with the purpose of realizing a criminal program.
2. Indeterminacy of the Criminal Plan
The presence of an indeterminate criminal plan, encompassing an indefinite number of offenses, without the need to specify each violation in advance.
3. Organizational Structure
The existence of an organizational structure, even if minimal, capable of realizing the criminal objectives.
Criminal Association – Art. 416 of the Italian Penal Code (C.P.)
Objective Element
Article 416 of the Italian Penal Code punishes those who promote, establish, or organize an association for the purpose of committing multiple crimes. Even mere participation in such an association constitutes a crime.
Associative Offenses and Subsequent Crimes
The associative offense is separately prosecuted from the subsequent commission of the planned crimes. These subsequent crimes concur with the crime of criminal association, and if they are not committed, the crime of criminal association remains valid.
Subjective Element
The required subjective element is “specific intent,” meaning the awareness of actively participating in the criminal association and contributing to its criminal program. A clear intention to be part of the association is necessary.
Mafia Association – Art. 416 bis of the Italian Penal Code (C.P.)
Objective Element
Article 416 bis was introduced in the Italian Penal Code to extend the criminal liability to actions that do not fall under the criminal association defined in Article 416 c.p. This offense applies to mafia organizations, even if their activities are legal or not explicitly aimed at committing crimes.
Mafia Method
Mafia organizations follow a “mafia method,” which includes the use of intimidation for criminal purposes, forcing people into omertà (code of silence) and subjugation.
Subjective Element
The required subjective element is the willingness to be part of the mafia association with an understanding of its criminal purposes and the intimidating means used. Active contribution to the association is necessary for legal responsibility.
Association Aimed at Drug Trafficking – Art. 74 of Presidential Decree 309/90 (D.P.R.)
Objective Element
Article 74 of Presidential Decree No. 309/1990 punishes the promotion, establishment, direction, organization, financing, and participation in an association aimed at the illicit trafficking of narcotics. This offense aims to protect public health and public order.
Roles within the Association
Within this association, there are various roles, including promoters, founders, organizers, financiers, and leaders. Each role contributes to the realization of criminal objectives.
Subjective Element
The required subjective element is “specific intent” to actively participate in the realization of the criminal program and awareness of the association’s purposes. Significant contribution to the association is necessary for legal responsibility.
Associative offenses constitute a category of crimes in which criminal association is at the core of the incriminated action. These crimes are characterized by the presence of multiple participants, a stable and continuous bond, and the will to pursue a criminal program. Awareness and active participation in the association are key elements for the application of these offenses, regardless of the actual commission of the crimes outlined.
