An appropriate definition of the concept of ‘organised crime’ is crucial not only for substantive criminal law, but also and above all for criminal procedure and penitentiary law. In an attempt to counter the activities of criminal networks, state legal systems often react at the level of criminal procedure. It is not rare that the occurrence of a ‘criminal emergency’ triggers the issuance of special legislation which derogates from ordinary rules governing the conduct of investigations, the law of evidence in trial, and the imposition of restrictive measures before (and after) the final judgment. For several decades now, the expression ‘organised crime’ has frequently been at the basis of these departures from the ordinary model. Italian criminal procedure sets forth a special regime (the so-called ‘double track’) curtailing fundamental rights and originally applicable to criminal proceedings where allegations of mafia-related crimes were raised. However, this double track has gradually also been applied to other forms of criminal association, such as drug-related crimes, sex crimes and organised crime in general. This contribution examines the circumstances which gave rise to the need for a differentiated set of measures to tackle the most alarming forms of organised crime and the main provisions making up the complex mosaic of the Italian ‘double-track’ procedural system. The legislation will be considered in constant relation to the specific characteristics of the crimes it was conceived for - unlawful mafia-type association - in order to investigate the rationale serving to justify it. The analysis will focus on the different ways in which procedural (and penitentiary) law determines the range of application of derogating measures, highlighting the pros and cons of the distinct options.

The Notion of Organised Crime as a Justification for Special Rules of Criminal Procedure: The Derogations from the Ordinary Model and their Rationale

Stefania Carnevale
2017

Abstract

An appropriate definition of the concept of ‘organised crime’ is crucial not only for substantive criminal law, but also and above all for criminal procedure and penitentiary law. In an attempt to counter the activities of criminal networks, state legal systems often react at the level of criminal procedure. It is not rare that the occurrence of a ‘criminal emergency’ triggers the issuance of special legislation which derogates from ordinary rules governing the conduct of investigations, the law of evidence in trial, and the imposition of restrictive measures before (and after) the final judgment. For several decades now, the expression ‘organised crime’ has frequently been at the basis of these departures from the ordinary model. Italian criminal procedure sets forth a special regime (the so-called ‘double track’) curtailing fundamental rights and originally applicable to criminal proceedings where allegations of mafia-related crimes were raised. However, this double track has gradually also been applied to other forms of criminal association, such as drug-related crimes, sex crimes and organised crime in general. This contribution examines the circumstances which gave rise to the need for a differentiated set of measures to tackle the most alarming forms of organised crime and the main provisions making up the complex mosaic of the Italian ‘double-track’ procedural system. The legislation will be considered in constant relation to the specific characteristics of the crimes it was conceived for - unlawful mafia-type association - in order to investigate the rationale serving to justify it. The analysis will focus on the different ways in which procedural (and penitentiary) law determines the range of application of derogating measures, highlighting the pros and cons of the distinct options.
978-1-50990-470-9
978-1-50990-472-3
978-1-50990-471-6
Organised crime, Criminal procedure
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Utilizza questo identificativo per citare o creare un link a questo documento: https://hdl.handle.net/11392/2383673
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