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2023 | OriginalPaper | Chapter

The Re-use of Assets Confiscated from Organized Crime: How to Make the Informal Formal

Author : Maria Vittoria Ferroni

Published in: Urban Informality

Publisher: Springer International Publishing

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Abstract

The purpose of this contribution is to study the potential of a particular model of informality that allows the transformation of assets resulting from illegal activities (assets confiscated from mafias) into common assets treated by the community and the public administration (particularly the Municipality) for the pursuit of the general interest. The typology which we will focus on in this contribution is that of real estate which, in addition to being part of the State’s assets, can be transferred to the Municipalities (as well as Regions and Provinces) which will decide whether to administer them directly or confer their management, through a free concession, to third sector subjects. Lastly, the aforementioned assets can be temporarily assigned directly to third sector entities by the National Agency for assets seized and confiscated from organized crime. Since the procedure leading to the final confiscation of the property has an average duration of ten years, informality in this sense is linked to the ways in which citizen groups or third-sector subjects are involved in the social reuse of the property taken away from crime to return it to the same social fabric from which it was taken.

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previous chapter The Legal Value of Informality for the General Interest: The Example of Cities

next chapter The Role of “Intangible Factors” for Local Development: Policy Implications and Preliminary Indicators for Evaluation

The verb confiscate derives from the Latin for “national treasury” and is defined as “by the State, the temporary or definitive requisition (by the State) of goods that have been used to commit a crime or are the result of a crime or other offense” (Italian Dictionary, Garzanti) and confiscation as a “security measure consisting in the invocation to the State of things used to commit a crime or originating from it” (L'Etimologico della lingua italiana, Zanichelli).

Arena states (p. 183) that “all public goods can become common goods thanks to the fact that, when active citizens take care of a public good, a community is created around that good, a bit like the pearl that forms around the grain of sand. And it is in the course of this process that a public good (i.e., theirs) is transformed into a “community good” (i.e., ours).” It is a third category of goods. Alongside public goods “for which only the administration is responsible, private goods for which only private owners are responsible and finally public goods for which administrations and citizens are responsible on the basis of a collaboration agreement for the care of the asset. The latter are common goods since the responsibility for their care is common (public and private)” (p. 186).

A list of assets confiscated from the mafia, a mapping, a way of re-use and monitoring can be found on the website www.confiscatibene.it (created by Libera. Associations, names and numbers against the mafia). More institutional information can be found on the website of the National Agency for the administration and destination of assets seized and confiscated from organized crime (the assets assigned through non-definitive confiscation, the tenders issued by local authorities, the bidding notices of the auctions, the information on assets subject to the confiscation procedure): www.openregio.anbsc.it.

Law adopted after the assassination of judge La Torre and general Dalla Chiesa. This law also introduced article 416 bis in the criminal code with the aim of regulating the crime of mafia-type association.

See Law 31 May 1965, no. 575, Provisions against mafia-type criminal organizations, including foreign criminals.

Article 1 of Law no. 575 of 1965 provided, as a prerequisite for carrying out the patrimonial investigations aimed at the seizure and confiscation order, the need to evaluate some concrete manifestation of mafia activity. See also Constitutional Court, sentence no. 117 of 1980 in www.cortecostituzionale.it, according to which the judgment of dangerousness must be based on an objective assessment of the facts, leading to the belief that it is likely to be linked to an illegal activity.

See art. 12 sexies of the legislative decree 8 June 1992, no. 306, according to which for the hypothesis of very serious crimes, the confiscation of money, goods or other utilities of which the convict cannot justify the origin and of which, even through an intermediary natural or legal person, appears to be the owner or has access, for any reason, to disproportionate amounts in comparison to their income, declared for the purposes of income tax or for their economic activity.

The role of the Libera. Associazioni, nomi e numeri contro le mafie association, chaired by Don Luigi Ciotti since 1995 who proposed the popular initiative law, was important.

Guidelines for the administration aimed at the destination of seized and confiscated properties (approved pursuant to Article 112, paragraph 4, letter d) of the CAM), in www.benisequestraticonfiscati.it, p. 2.

Shared administration is based on the idea that a positive collaboration between citizens and the public administration can allow a solution of problems of general interest in a more effective way than an administration model in which there is no sharing of projects between the administration and citizens, but rather a hierarchical separation of roles (Salati, 2019, p. 17).

The issue of the unity of a single national database for antimafia documentation is also linked to the profile of the protection of personal data, subject matter attributed to the exclusive legislative competence of the State pursuant to Article 117, paragraph 2, letter l) of the Constitution and therefore accessible to all data (for example the personal data of the recipient of the confiscation). Moreover, the Constitutional Court had already had the opportunity to affirm the importance of the unity of the action and the functions carried out by the ANBSC: “its competence,” in fact, “is not limited from a territorial point of view, being called to carry out tasks relating to assets seized and confiscated from organized crime, in support of the judicial authority, throughout the national territory.” Thus, “the sphere of action of the various offices is not limited to the relative regional area but may concern assets and subjects located throughout the national territory” (sentence no. 159 of 2014; in the same sense, sentence no. 34 of 2012).

Arena, G. (2020). I custodi della bellezza. Prendersi cura dei beni comuni. Un patto per l’Italia fra cittadini e istituzioni. Touring Club Italiano.

De Benedetto, M. (2017). Rigenerazione e riuso dei beni confiscati: regole e simboli della legalità. In F. Di Lascio & F. Giglioni (a cura di), La rigenerazione di beni e spazi urbani. Contributo al diritto delle città (pp. 329–354). il Mulino.

Giannone, T. (2013). Dal Bene confiscato al bene comune. Ecra.

Giglioni, F. (2018). Le città come ordinamento giuridico. Istituzioni del federalismo, 1, 29–74.

Giglioni, F., & Nervi, A. (2019). Gli accordi delle pubbliche amministrazioni. In P. Perlingieri (Ed.), Trattato di diritto civile del consiglio nazionale del notariato. Edizioni scientifiche italiane.

Gullo, N. (2017). Emergenza criminale e diritto amministrativo. Editoriale scientifica.

Mazzamuto, M. (2013). Gestione e destinazione dei beni sequestrati e confiscati tra giurisdizione e amministrazione. Giurisprudenza italiana, 2, 477–492.

Salati, C. (2019). Beni confiscati alle mafie come beni comuni. L’amministrazione condivisa quale scenario di rigenerazione. www.labsus.org

Transparency International. (2015). Legislation meets practice: National and European perspectives in confiscation and forfeiture of assets. Comparative Report.

Title: The Re-use of Assets Confiscated from Organized Crime: How to Make the Informal Formal
Author: Maria Vittoria Ferroni
Publisher: Springer International Publishing
Book: Urban Informality
Print ISBN: 978-3-031-29826-4

Electronic ISBN: 978-3-031-29827-1

Copyright Year: 2023
DOI: https://doi.org/10.1007/978-3-031-29827-1_6

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