Italians modified laws to create a specific anti-mafia system
Faculty of Jurisprudence of the University of Palermo, Island of Sicily, Italy, ancient Magna Graecia! It is a Thursday, early June, almost three in the afternoon, and the expositions on the mafia phenomenon and the descriptions of the legal institutions created to deal with Cosa Nostra are already nearing their end.
Almost 40 hours listening to teachers, prosecutors, judges, police officers and researchers – visiting banks, courts and the courtroom – provide an idea of what the mafia is, where it comes from, how it acts and what has been done to make it reach to the end.
Looking at the column of tributes to the judges who were killed, victims of attacks, I pick up the cup of coffee and remember that this is the sixth time I've come here. Next to me, the professor who has been researching the mafia phenomenon for a long time and who is our host today. He observes me and asks: – are you thoughtful, Ney?
I smile and joke: – tired… exhibitions every day in the morning and afternoon…. and there is Sicilian wine at night.
He laughs!
But the wandering gaze upon the names of Giovanni Falcone and Paolo Borselino has another reason for being: my thoughts are on how to use the Italian experience of fighting organized crime to deal with the Brazilian criminal phenomenon. How can we reduce violence in Brazil based on this Sicilian attitude?
We live in a country where people kill, imprison and die in frightening numbers! How to think in the context of a country that has large criminal organizations, sees the power of the State absent in several areas at a time when corruption is spreading?
Vicenzo Militello understands me and shares my concerns. He knows that one cannot simply import a model for a structurally and culturally diverse reality. He is well aware that the important methodology of comparative criminal law does not produce good results by simply copying solutions.
I place the coffee cup on the counter and smile.
Thinking about humanity's experiences helps us understand who we are and where we are going.
One more sip of coffee and I ask the professor again the question I asked in 2011, the year in which I started dealing with the mafia phenomenon right here, in this building: – what percentage of stores and businesses still pay their regular installments to Cosa today? Nostra?
According to him, around 70% of Sicilian businesses still pay the mafia, although most of them occasionally. Obedience is still part of Sicilians' daily lives. Even with all the legislative changes and all the police efforts, the mafia still exists, it still controls territories, it is still strong.
Although we are no longer living in the time of attacks and seeing car bombs, explosions and homicides on the roads and in the streets, it cannot be said that the mafia has disappeared. It is no coincidence that it derives from the Arabic expression “mafia” and means “that which does not exist”.
In 2011 it was said that 92% paid regular installments and that movements such as “addiopizzo” were an important construction. They continue to be important! Socially, resisting the seduction and oppression of the mafia is the most important thing, but it is necessary to have a State and a Police to count on!
Do we have this in Brazil? I don't believe it! The phenomenon of militias derives from police corruption, therefore, it does not seem reasonable to believe in their own actions in pursuit of this objective.
The Italians modified their laws to create a specific anti-mafia system. An autonomous legal system was created, in
parallel to the general model, in an authentic imposition of criminal law on the enemy.
If the 'Ndrangheta, the Camorra, the Cosa Nostra and the Sacra Corona Unita deny the State and try to position themselves as its substitute, then the enemies of legitimacy cannot receive the same treatment as those who deviate, but continue to recognize the State itself .
The Italians created a parallel legal system for dealing with the mafia phenomenon. Much tougher, more comprehensive and with the clear objective of criminalizing the entire area of activity of the mafia-type organization.
The choice of a criminal activity as delegitimizing the State to the point of justifying a specific penal system is the ready and finished exercise of the author's criminal law, imposed to punish the enemy. It is clearly established to exclusively address what most attacks organized society.
Is it appropriate to create a parallel criminal legal system in Brazil for militias and criminal organizations involved in drug trafficking and bank robberies?
Some changes in Italian law are relevant. Participation in a mafia-type criminal association is a different crime from the previous one because here the aim is to punish those who associate with mafia organizations more severely. More than that, it is not necessary to prove the desire to commit future crimes, but only the desire to adhere to the mafia method.
Italians explain that they chose this crime for the sole reason that it was almost impossible to prove adherence to a criminal program and, for this reason, mafia bosses always ended up unpunished. In other words, the evidentiary difficulty generated the need to classify a parallel crime.
In the same way, the external competition of crimes was allowed, which gave rise to the possibility of criminalizing the act of those who minimally assist the mafia-type criminal organization, even committing a neutral act.
The aggravating factor of mafia facilitation was also created, by which anyone who commits a crime to facilitate the operations of Cosa Nostra or Camora or any of the organizations is punished more seriously.
This trio of modifications to the openly anti-mafia legal system was carried out after analyzing mafia acts that escaped judicial punishment due to lack of evidence, thus classifying any and all participation or contact with these activities.
Procedural measures were also modified so that the unavailability and confiscation of assets, as well as personal limitations on individuals accused of mafia crimes, were simplified.
It has reached the point where the blocking and loss of assets are allowed when the lawful origin of the assets cannot be proven, reversing the burden of proof.
There is also life imprisonment and the impossibility of unrecorded contact with anyone inside prison: a harsh prison system!
Anti-mafia judges and anti-mafia prosecutors are specific and specialists in this exact subject, in a fight and in a work that cannot be confused with other activities in the general legal system.
Nothing more authorial and positioned in the legal system than that! Elected an enemy and acting as an enemy, the conduct carried out by that chosen author began to be criminalized: the mafioso!
Does the Sicilian mafioso – the “man of honor of Cosa Nostra” equate to the Rio de Janeiro militiaman? Can we compare the Cosa Nostra member to the PCC member? Are Friends of Friends and Family of the North organizations like Camora or Sacra Corona Unita?
There is a lot of research to be done, legal comparisons, sociological analyses, results visualizations... a lot to know, understand and think about before simply believing that the import will yield results.
There has not yet been absolute success because the mafia exists and is strong!
I finish my coffee and return to the room for the last of the exhibitions! Vicenzo accompanies me and we are already thinking about our seventh date, so we can keep thinking!
—–
Ney Bello He is a judge at the Federal Regional Court of the 1st Region, professor at the University of Brasília (UnB), post-doctorate in Law and member of the Academia Maranhense de Letras.
Article originally published on Legal Consultant Magazine
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