We frequently hear about “criminal association”, but the term is often abused, especially journalistically, to mean more people capable of committing a crime.
Indeed, the case is more complex and requires a systematic framework from a jurisprudential point of view.
Starting from the principle, for the configuration of the crime of criminal association the presence of some specific prerequisites relating to the objective element is necessary.
They are defined as “structural elements of the association” the following requirements:
a) Multiple members, a minimum of 3 people
b) The stability of the associative bond between the participants
c) The indeterminacy of the criminal program, in the sense that the associative purpose must be determined in a varied and indeterminate series of crimes. Must be excluded 416 c.p. if the association aims to commit one or more specific crimes (Cass. Pen. Sez. II n. 16339/2013).
The ratio for which the legislator has configured, as an independent crime, the crime of criminal association referred to in art. 416 of the Criminal Code, consists in the danger to public order caused by the associative bond existing between several people linked by the same criminal purpose.
For this reason it explains why the commission of the planned crimes underlying the criminal plan is irrelevant for the existence of the crime of criminal association.
It is, therefore, a dangerous crime whose constituent elements can be found among the conditions indicated above, i.e. point a) the existence of an organizational structure of at least 3 people, even rudimentary, but suitable and adequate to achieve the objectives criminal activities, b) a generally permanent associative bond, c) the indeterminacy of the criminal plan.
The subjective element required is the fraud specific which lies in the awareness of actively participating and contributing to the life of the association; the manifestation of a CD is necessary the affection of societya phrase created by the jurisprudential dictate formed in the succession of various rulings on the topic.
The institution of the general part of the complicity of people in the crime regulated by theart. 110 c.p.according to which every active person who has participated in the same crime is subject to the punishment established for it.
The distinctive criterion of the crime of criminal association, compared to the hypothesis of collaboration of people in the continuous crime, essentially consists in the character that the criminal agreement assumes, which, in the collaboration of people and in the continuous crime, occurs on a merely occasional basis , being directly linked to the commission of one or more well-identified crimes. These, once achieved, exhaust the agreement between the participants, causing the “social alarm” to disappear.
The association, however, is aimed at carrying out a broader criminal program and is characterized by the presence of elements that must necessarily coexist.
It is, in fact, necessary that the associative bond has a basically permanent, or at least stable, nature, therefore that it is destined to last beyond the commission of crimes that may have already been planned.
In competition, however, the agreement is an end in itself, or rather, the realization of one or more crimes which may even be continuous with each other.
Therefore, although the agreement between several subjects to carry out one or more crimes is a common element in the associative and insolvency cases, in the latter case the underlying crime must be carried out, at least in the form of attemptotherwise the participants in the agreement are not punishable under theart. 115, I comma c.p.
Differently, in criminal association, the associative bond that is suitable and adequate to carry out an indefinite series of crimes constitutes in itself a danger to public order, with the failure to commit the planned crimes becoming irrelevant.
In conclusion, therefore, the crime of criminal association does not occur when the complex organizational measures have been put in place for the sole purpose of pursuing the previously identified criminal plan and are not suitable and aimed at the commission of an indeterminate series of crimes.
It is useful to reiterate that, according to solid jurisprudence, for the purposes of establishing the crime of criminal association, proof of the existence of the plan to commit an indeterminate number of crimes is necessary (out of many: Cass. Pen. Sez. VI, n. 9096/2013).
According to the completely consolidated orientation of the jurisprudence of the Court of Cassation, in fact, the distinctive criterion between the crime of criminal association and the complicity of people in the continuing crime must be identified precisely in the character of the criminal agreement, which in the second hypothesis is direct to the commission of one or more specific crimes – even within the same criminal plan – with the implementation of which the agreement ends and any reason for social alarm ceases, whereas in the associative crime it is aimed at the implementation of a broader program criminal, for the commission of an indeterminate series of crimes, with the permanence of an associative bond between the participants, even independently and outside the actual commission of the individual planned crimes (Cass. Pen. Sez. II, n. 933/2012; conf., out of many, Cass. Pen. Sez.V, n. 3340/1999).
In a case dealt with by the writer, there was a situation in which a working group (specifically 4 car sales agents) carried out a series of scams on car documents; all four workers always acted autonomously and the only “associative” element, so to speak, was the identical method of fraud implemented by each of them, since, speaking among colleagues, a belief had been established that that method , although fraudulent, could be a good earning tool. In the present case, the view according to which the four defendants participated in the crime of fraud is more consistent, in the concrete absence of a link, a partnership, a proven agreement with which they committed themselves to associating to carry out more criminal plans.
The mere fact of “working together” cannot presume the existence of the so-called the affection of society in carrying out a variety of different crimes; it is decidedly more likely that the conduct carried out can be traced back to a collaboration of people in a continuing crime, given the temporal prolongation found in scams.
In the case narrated above, the concept of social danger deriving from the establishment of a criminal association was completely missing, since no agreement to commit subsequent and further crimes was the subject of findings; everything stopped at a scam that they had carried out, perhaps in collaboration with each other, with no one having a dominant role, given that the mere fact of being colleagues and carrying out the same repeated scam does not automatically lead to the existence of the crime referred to in the art. 416 cp
Lastly, it should be remembered that a recent ruling by the Supreme Court expressed how social alarm is the decisive point on which to focus on the attribution to the case in concrete terms of the categorization “criminal association” or instead “conspiracy of persons”; the reference sentence says that: «the distinctive element between the crime of criminal association and the complicity of people in the continuing crime can be identified in the character of the criminal agreement which in the conspiracy takes place on a merely occasional and accidental basis, being aimed at the commission of one or more crimes – even in scope of the same criminal plan – with the realization of which the agreement ends e every reason for social alarm ceases while in the associative crime it is aimed at the implementation of a broader criminal program for the commission of an indeterminate series of crimes, with the permanence of an associative bond between the participants, even independently and outside the actual commission of the individual planned crimes» (Cass. Pen. Sez. V n. 1964/2019).
A theme that deserves attention is the ability of associative forms to adapt to new operating methods, especially in a modern context in which crimes evolve, becoming increasingly sophisticated and technological.
This poses new challenges not only to jurisprudential interpretation, but also to the application of the law itself, which risks being obsolete or, at least, insufficient in the face of transnational criminal phenomena, such as the cybercrime or terrorism, which are based on virtual networks and connections rather than on physical and permanent ties.
Lastly, the delicate balance between the need to protect public order and respect for individual guarantees cannot be overlooked.
The sanction of a merely preparatory conduct, such as joining an association, risks compressing the principle of offensiveness, one of the cornerstones of our criminal law.
In this sense, the risk is that of criminalizing situations that are not necessarily dangerous, without there being a concrete and current threat to the community.
Ultimately, criminal association turns out to be a complex institution, the application of which requires a constant balance between prevention and repression, between protection of the community and protection of individual freedoms.
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