In memory of Giovanni Falcone

On the 23rd of May 1992 Judge Giovanni Falcone was killed in the Capaci massacre together with his wife Francesca Morvillo and the police escort agents Vito Schifani, Rocco Dicillo and Antonio Montinaro. About 500kg of TNT positioned on the A29 motorway at the junction between Isola delle Femmine and Capaci were blown up when the car passed.

The terrible attack was directed to eliminate one of the best servants of the State, the one who had hit the mafia hard in the framework of the maxiprocess of Palermo, and continued to represent a danger because of his pioneering investigative ability and his tireless determination in contrasting the mafia phenomenon.

In the Judiciary, the responsibilities of Cosa Nostra were confirmed with the convictions of prominent mafia bosses and the material executors of the criminal organization. However, 28 years after that massacre, some unresolved issues still remain. There was, in fact, a broader convergence in the elimination of Giovanni Falcone, first, and of Paolo Borsellino, later. Professor Nando dalla Chiesa called it a two-stage massacre, because there was a link between the massacre of Capaci on 23rd of May 1992 and the massacre of Via d’Amelio on 19th of July of the same year.

The judges had certainly been targeted by Cosa Nostra for some time, given their investigative efforts in the anti-mafia pool that led to the maxiprocess established in 1986 and strongly wanted by the two. On that occasion, also thanks to the statements of the justice collaborator Tommaso Buscetta, it was possible to identify the unitary and vertical structure of Cosa Nostra, which Falcone had already perceived during Rosario Spatola’s trial. Falcone himself, in the book-interview “Cose di Cosa Nostra” realized by Marcelle Padovani, affirmed that Buscetta had succeeded in giving them a fundamental key of the criminal organization code. The maxiprocess ended in first degree on the 16th of December 1987, with an interminable list of convictions: in total, there were 346 convictions – among which, 19 life imprisonment and 2665 years of prison altogether. The accusatory system also held up in second degree, although with some mitigation.

By the time the trial reached the Supreme Court, Giovanni Falcone was part of the Ministry of Justice as Director of Criminal Affairs, with the task of coordinating the fight against organized crime at the national level. Falcone urged the former Minister of Justice, Claudio Martelli, to introduce the rotation of the Court of Cassation chambers in order to avoid contamination. The choice of the judges for the Maxiprocess was made by drawing, to avoid the actions of the president of the first section, Corrado Carnevale, also known as the ”sentence-killer”. In fact, in his career, he ordered the invalidation of numerous mafia sentences thus facilitating the release of mafia criminals.

The trial ended on the 20th Jof anuary 1992 with an unprecedented sentence. All the convictions were confirmed and the attenuations sanctioned on appeal were removed.

The vengeance of Cosa Nostra was expected, but what worried the mafia and their network of relationships was mainly what Falcone and Borsellino could still accomplish.

Falcone’s legacy

Judge Falcone, during his time at the Ministry of Justice, promoted since the beginning of 1991 the creation of structures that today are fundamental in the fight against mafia-type organized crime in Italy and that are internationally envied. Taking advantage of the experience of the anti-mafia pool in Palermo, conceived by Rocco Chinnici and then put into practice by Antonino Caponnetto with the aim of centralizing the investigations on the mafia, Falcone proposed the setting up of the national coordinating centre for investigation and exchange of information related to the mafia phenomenon.
Thus, the National Anti-Mafia Directorate (DNA) was created, with the purpose of horizontal investigative coordination and simplifying the communication between the District Anti-Mafia Directorates (DDA). The Anti-Mafia Investigative Direction (DIA), composed of police forces is a proper operative pole in charge of judicial investigation activities, was added to these bodies.
Falcone’s vision went beyond the national borders. In fact, he was convinced that the fight against the mafia had to be pursued with cooperation at a global level. He was the promoter of an international conference for organizing a multilateral approach in the fight against organized crime. There was a need for adequate legislation to tackle the mafia phenomenon that was now affecting institutions and societies worldwide. Falcone’s idea then became reality with the international conference in Naples in 1994 and the subsequent adoption of the Palermo Convention on transnational organised crime in 2000.
At a national level, however, Falcone’s initiatives as Director of Criminal Affairs were also criticized within the judiciary itself, as there was fear of an excessive centralization of powers which, in reality, never occured. The figure of the National Anti-mafia Prosecutor was introduced and soon Giovanni Falcone became the ideal candidate. This perspective upset many and above all the mafia and the corrupt economical and institutional circles. They would have had to face the most competent judge in the fight against the mafia as the new Super-Prosecutor and this time not only from the offices of Palermo, but on a national scale. This frightened Cosa Nostra, just as it frightened them the fact that after the Capaci massacre, it could have been Paolo Borsellino, Falcone’s ”twin” to hold that position. That is the convergence of interests that led to the elimination of the two judges in the so-called ” two-stage massacre”.
During the period at the Ministry, Falcone had conceived a series of instruments to combat the mafia which included, in addition to the Super Prosecutor’s Office, also: a new regulation on collaborators of justice; the institution of hard prison for mafia bosses – among which the structures of Pianosa and Asinara and the obligation for banks and financial institutions to report suspicious operations concerning money laundering.

We often hear about the ”Falcone Method” to underline his capacity for investigation. In fact, we remember his intuition to ”follow the money”. That means that it’s necessary to follow the financial flows to understand the strategies of economic expansion of the mafia in Italy and beyond the border, through judicial investigations and preventive investigations. Falcone was innovative because he did not remain anchored to the codes, but understood the need to develop another type of competences.

But he went even further. To understand the mafia, it is not sufficient to follow the money. Falcone underlined also that the mafia is a phenomenon of power. The mafia is part of a social system and relies on more or less aware alliances. It controls the territory through the use of violence and carries out illicit activities, feeding this system and reinforcing itself with the money it circulates in the economy.

There were those who claimed already in the 80’s that the mafia should be sought in the circuits of high finance in international centres like London, Zurich and Frankfurt – and Falcone answered that the head was located in Palermo. Because the mafia evolves while remaining itself.

It was Falcone who then introduced the idea of the external collaboration in the Mafia association. The magistrate was deeply convinced that without the connivance of professional figures and without the help of the so-called “small and big singers”, the mafia would not be able to achieve its goals. This concept was also expressed by Professor Nando dalla Chiesa in the book written with Pino Arlacchi “La palude e la città” that ”the strength of the mafia is outside the mafia” (1987). Therefore, he underlined the necessity to focus on external support to the mafia, because that’s what allows it to be victorious.
To counter the mafia phenomenon, it is necessary to study it carefully, and Falcone understood that it was necessary to learn to think and reason like them, to get into their logic of action and analyze their behaviour.

The criticisms and difficulties

Today he is recognized and remembered as one of the highest symbols of the fight against the mafia, but during his life Giovanni Falcone was subject to attacks of all kinds. There was a part of society, press and even the judiciary that criticized him harshly. Among the various epithets that were given to him was that of ”sheriff judge”; he was then, according to the occasion, accused of being a friend of this or that political party; and after the failed attack of the Addaura against him, it was even claimed that he had organized it alone to obtain visibility.

What indirectly struck him was also the controversy that arose from Leonardo Sciascia’s article on the “Antimafia professionals” of ’87, which had as its explicit objective Paolo Borsellino and his designation as Prosecutor of the Republic of Marsala for merit instead of the classic criterion of seniority of service. There was controversy about the fact that ”nothing is worth more, in Sicily, to make a career in the judiciary, than taking part in mafia-type trials”. The detractors of Giovanni Falcone and Paolo Borsellino took the chance and felt even more legitimated in their attacks on the two judges.

In that context of envy, calumny and discredit, Giovanni Falcone’s professional career was also affected. When Antonino Caponnetto retired for health reasons, Falcone was seen as his natural successor as head of the Investigation Office in Palermo, but the Superior Council of the Magistracy (CSM) preferred Antonino Meli (14 votes for Meli, 10 for Falcone and 5 abstained), an older colleague but without the slightest experience in mafia trials. The consequence was the progressive dismantling of the anti-mafia pool.

As her friend and colleague Alessandra Camassa and his colleague at the time of the anti-mafia pool Leonardo Guarnotta remember in the documentary “Uomini Soli” in 2012, every time Falcone applied for a position – for which he was obviously the best possible candidate – he was always rejected. He could have been recognized for what he had shown in the fight against the mafia and instead he was never promoted. Immediately after his rejection as head of the Investigation Office, Domenico Sica was preferred as High Commissioner for the fight against the mafia and in 1990 he did not obtain the position of advisor to the CSM. Falcone then decided to go to Rome to the Ministry of Justice to do what he no longer felt he could do in Palermo.

“Their ideas walk on our legs”

At a conference on the occasion of the thirtieth anniversary of the maxiprocesso of Palermo, the former magistrate Leonardo Guarnotta claimed that what Falcone and Borsellino left us is ”a heritage rich in teachings, gestures and words, behaviors, memory”. The testimony of their sacrifice and commitment gives us courage. Their lives have been characterized by important victories and burning defeats, but they have not surrendered to difficulties and have always been promoters of change. They were the highest servants of the state and they did it for the sake of legality.

Giovanni Falcone taught us that the mafia must be studied, understood and finally fought. There is a need for professional rigour. You can’t tackle real crime professionals with amateurs. The best and most competent people must fill the positions of responsibility, otherwise this fight will never be won.

Their teachings concern all of us. The legacy they have left us is our cultural heritage.

“I just wanted to understand what Mafia is”. A conversation with criminologist and criminal law expert Prof. Dr. Frank Neubacher M.A.

Universities and institutes are empty, TVs, newspapers and social media only talk about one topic: COVID-19. The fact that meetings and events are currently limited does not stop a renowned professor at the University of Cologne from talking to his students. This is not the first time that Prof. Dr. Frank Neubacher M.A. has encountered obstacles in the research topic “organised crime”. The holder of the Chair of Criminology and Criminal Law and Director of the Institute of Criminology answered in writing form to the questions raised by mafianeindanke and provided new insights into the challenges he encountered during his research on “Mafia in Germany”.

mafianeindanke: In your essay “Mafia und Kriminologie in Deutschland” (Mafia and criminology in Germany), published in 2014, you write: “I have never understood why German criminology – in contrast to other countries – is so insistently silent on the subject of the Mafia and why it leaves the phenomenon […] to loquacious journalists and secretive detectives”. Has your opinion changed?

Prof. Dr. Frank Neubacher: This is still my opinion, because the situation has not changed. My essay was supposed to be a wake-up call, but it remained unanswered. As a scientist you must practice self-criticism – on the research itself – when such “blind spots” appear. Science simply lacks a very important voice in the public discourse.

MND: Is the search for material on organised crime (OC) and especially on Mafia in Germany successful? Are the authorities, in particular the Bundeskriminalamt (Federal Criminal Police Office), helpful or open to collaborations when it comes to the release of information?

F.N: The authorities give their usual publications, especially the annual report “Organized Crime” of the BKA. This document contains the most important key data on the proceedings the BKA is currently dealing with on an average of 70 pages. Italian OC groups make up only a small part of the material. Moreover, it only deals with those cases that have become known. When talking about Mafia it’s important to discover what lays underneath the surface, hidden from the authorities. Material that the police have prepared for the public – as in the case of the annual reports – is gladly published and it is freely available to everyone on the Internet. Beyond that, however, the BKA is very reticent, especially when it comes to Mafia or, as the office says, “serious organised crime”. They are not willing to open up concerning these topics. That is why it is so difficult to judge how well the police are positioned in the fight against crime. And maybe that’s one reason for their discretion.

MND: Have you ever had a negative experience or – better said – has your research ever stumbled because the flow of information was restricted?

F.N: In 2008, on the first anniversary of the Duisburg Massacre, the press quoted from a secret BKA report that had been “leaked”. Consequently, I asked the president of the BKA access to said document for scientific purposes. I even repeated this request, but in vain. Although parts of the report had already been circulating to the public, the BKA insisted on privacy and, in my opinion, wasted a good opportunity to cooperate with the scientific community.

MND: Is it necessary to demand financial aid from the state for academic work, especially on Mafia in Germany?

F.N: State funding for the promotion of science is in principle a good thing if science itself can decide on the distribution of these funds and thus also on the topics of research. After all, we already have such a system with the “Deutsche Forschungsgemeinschaft” (German Researchers Foundation DFG). When it comes to the issue of the mafia, however, I do not believe that money is the problem, but – as we say in science – the “access to the field” is the real issue. How do I find direct access to the phenomenon? Are participating observations conceivable? Probably not, because the practical and ethical problems are obvious! And how do I approach interview partners or a subject who’s been interrogated for example about protection against racketing? How can I know the reasons why potential interviewee participate or do not participate? How reliable is such information? And am I possibly putting someone in danger?

MND: As a criminologist, why did you feel that the topic of mafia was important in Germany and why did you decide to deal with it?

F.N: 2007’s Duisburg Massacre was a turning point. After that, the question was there for everyone to see: why aren’t we dealing with the issue? My interest for the topic has its roots in the 90s and it has to do first of all with the fact that I have always felt connected to Italy and simply wanted to understand what mafia is. Before the internet changed all our lives (not for the worse!), I brought books from Italy, whatever I could get. I understood then that I was reporting in Germany about what was going on in Italy. In 2006, for example, I wrote a review of the book “Gomorra” by Roberto Saviano for a German journal, when the book was not yet available in the German translation. The significance and impact of this work was immediately clear to me.

MND: Do you think that people are by nature easily susceptible to Mafia influences?

F.N: This is a difficult question, which, because of my uncertainty and because it exceeds my scientific expertise, I will only answer briefly. Humans are in principle capable of the highest and the lowest. But yes, some are vulnerable because they want to take the easy way – not questioning anything and following an “authority”. Ultimately, corruption starts on a small scale. We can see it in our own behaviour when we agree to break our principles for a small advantage. The worst part is that we convince ourselves it is the right thing to do.

MND: Have you ever been involved with a mafioso or have you ever met one?

F.N: Not that I know of! In 2003 I travelled to Sicily. The Mafia seemed very close to me there, especially in Palermo. On the local radio you could hear, for example in the bar in the morning, news of shootings, arrests, investigations. But at the same time, I knew that the situation must have been worse 10, 20 years before. Besides, the anti-mafia movement was much more visible. And in many situations, I was just a tourist and so taken by the beauty of the island and the people there that I didn’t even think about the Mafia.

MND: You deal with mafia and OC in your lectures. What feedback do you receive from your students? Do they show interest, or do they perceive it as a “foreign problem”?

F.N: The students are very curious and ask a lot of questions, and that is good, because curiosity is the beginning of all kind of science. More than with other topics, however, where students are eager to discuss, they are more reticent to express their opinions on Mafia. My impression is that they feel that their “knowledge” comes mainly from movies about the topic and that this has little to do with the current reality.

MND: Through university involvement, attention can be drawn to the mafia and its methods. How important is this work on raising the awareness at universities? Do you think that it would be necessary in Germany to establish a kind of monitoring centre like the one created by Prof. Nando dalla Chiesa at the University of Milan?

F.N: I think that universities in general are very important. In my opinion, they are of extreme importance for the personal development of students – you can notice that I deliberately did not speak of them only as an educational institution. At the university, everything can and should be talked about – including, but not only, Mafia. A monitoring centre is an attractive idea. Yes, why not? The awareness-raising work could be done there, one could have a wide library on the topic, and the different actors – journalists, scientists, prosecutors – could also be brought together there.

MND: Were or are you alone in the research about Mafia in Germany?

F.N: Please do not overestimate me. I’m not completely alone and I’m mostly involved with organized crime as a side of my job. My main field of work as a scientist is prison research. But as the saying goes, “In the land of the blind, the one-eyed man is king”.

MND: How much does academic work influence current political developments?

F.N: When it comes to the topic of Mafia, this influence does not exist because the corresponding academic work does not exist. Otherwise the influence of criminology on crime policy is weak to non-existent. It is a misbelief to think that politics does what science recommends (assuming science agrees at all). In the current Corona crisis, science is being listened to more strongly again. This is encouraging and hopefully belongs to those things that will remain in the post-Corona era.

MND: On a scale from 1 (“not prepared at all”) to 10 (“totally prepared”), how prepared would you classify the legal system in Germany for the Mafia? Is Germany a fertile land for mafiosi?

F.N: One can never be too careful – hence a 7. From the reports of the BKA it can be seen that cases in which organised crime has influenced or tried to influence the police, public administration or the judiciary are rare. A very important issue, not only about Mafia, is the fight against money laundering. But here, as elsewhere, the same applies: laws are not everything, they have to be enforced, and for this a sufficient number of well-trained experts are needed.

MND: If you had all the material at your disposal and if there were no obstacles of any kind, on which essay or book would you start working on?

Actually, I would like to write a book about the Mafia. But it would have to meet scientific criteria and at the same time be interesting and easy to read for a wider public. About 10 years ago I was close to it, but then I stopped working on such a book. I just didn’t feel comfortable with it, because although I surveyed all the literature, I didn’t have my own empirical approach (such as through special data, interviews or file material). Who knows, maybe one day.

MND: Could you recommend to the readers a well-done academic paper on the Mafia in Germany? Do you have a reading recommendation as an introduction to the topic of Mafia in Germany?

F.N: This question embarrasses me. I could name a few books about Italy, but I can’t think of any for Germany. Wouldn’t that be a nice dissertation topic for you?

Anti-money laundering measures: Swiss banks look the other way

Like their counterparts in the European Union, Swiss banks are very often involved in money laundering schemes. Here are some recent examples. In February 2019, a court in Paris sentenced Switzerland’s largest bank, UBS, to pay a record fine of €3.7 billion and 800 million in compensation for money laundering and tax fraud in favour of French clients. However, most of these events have an international context and are directly related to corruption. The scandal of the Malaysian state fund 1MDB involved, among others, UBS, the private bank BSI, Falcon Private Bank and the private bank Coutts. 7.5 billion dollars were hijacked from this fund. In addition, the Swiss banks were involved in the corruption cases of the energy multinational Petrobras and the building consortium Odebrecht, both Brazilian companies. Here, too, there is evidence of corrupt and hijacked, funds amounting to billions. Credit Suisse, the second largest bank in Switzerland, has caused a stir because it was involved in the corruption case around FIFA.

What makes the Swiss financial market so vulnerable to money laundering?

The reason for this vulnerability lies in the specific business model of Swiss banks, which establish themselves in the world of international competition as the crossroads of private asset management. There are various reasons why clients around the world choose Switzerland as their investment country. Swiss banking secrecy is certainly a factor, although it has become more permeable. Switzerland has had to accept the exchange of tax information in accordance with OECD standards.

Private banking for wealthy clients and wealth management, which concerns the management of private assets, are still an important asset on the Swiss financial market. We are talking specifically about the overall financial protection of private individuals and their assets. In Switzerland, banks and asset managers manage a total of 3.7 billion Swiss francs. Sixty-two percent of them are not domiciled abroad. The Swiss financial market occupies between 1/4 and 1/3 of the global market. Asset management is therefore one of Switzerland’s most important export services. Private assets that are managed across borders have increased by 300 billion Swiss francs from 2013 to 2018.

The administration of private assets has an extensive personnel infrastructure. Not only Swiss banks but also fiduciaries and lawyers are part of this network. It is obvious that these financial services also attract criminals. The funds that are generated illegally run several times between figureheads and offshore companies. In the final phase of money laundering – the investment phase – these funds are then channelled into financial products and the real economy.

In this way wealth management is a gateway to financial crime and the black economy.

The business model of private wealth management has changed in the second decade of this century.

One of the main activities of most Swiss banks had so far been the protection of foreign clients. The main beneficiaries were US and European clients, especially German clients, who used branches and subsidiaries as intermediaries. The assets of these clients often consisted of black funds. In Germany, among other things, the Minister of Finance of North Rhine-Westphalia bought the so-called Steuersünder Cd’s, CDs containing the stolen data on customers of banks engaged in tax evasion. After obtaining this data, many tax fraud proceedings were initiated against clients in Germany and Swiss banks. Thus, clients with illicit funds in bank accounts in Switzerland considered it appropriate to voluntarily report themselves in order to obtain a reduction in penalties.

In addition, Switzerland lost in a tax dispute with the United States that broke out in 2008. As a result, at the beginning of 2009, the US tax authority IRS announced a remission programme. In order to legalise their funds and avoid criminal prosecution, the US tax evaders had to appoint banks and consultants to help them channel their money to the tax authorities. Employees of Swiss banks in the United States were arrested and sentenced to prison. The “business model” of the Swiss banks failed. As a result, business with American and European clients across borders had to be drastically restricted. In the eyes of international public opinion, Switzerland played as the repentant sinner who would in future follow a “clean money strategy” (“Weißgeldstrategie”) to regain its lost reputation. Switzerland would therefore only accept investments whose legal origins were controlled by the banks and considering the national tax law that clients must comply with in order to ensure the absence of danger.

A clean money strategy is another thing

In reality, the Swiss banks did not abandon the old business model entirely but changed it. Instead, they strengthened their focus on the super-rich in emerging markets, which are usually controlled by more permissive financial market, tax and investigating authorities. In the markets of Asia and South America, many funds of dubious clients were received by Swiss banks’ financial managers on the spot. In this way, money received by Swiss banks and thus laundered no longer had to be transferred to Swiss bank accounts and deposits but could be placed in third countries.

The “High Performers” among the consultants were cashing in huge bonuses in this new, immensely profitable business sector. In addition, when business relations were established, hardly any controls were carried out on new clients and their assets by the boards of directors of Swiss banks and their internal AML compliance officers. While the internal requirements with respect to customer care had to be carried out more and more carefully by bank employees, and the number of suspicions reported by Swiss banks – as was also the case at EU banks – increased significantly, the ”top players” in consulting were free to recruit new clients. In fact, there were very few suspicious cases reported to government institutions for this type of clientele. Subsequently, the Swiss tax authority FINMA defined stricter requirements regarding “know your customer policy” – especially in the case of the private bank Julius Bär.

However, using double standards is not just a Swiss problem. Similar deficits have also been noted at EU banks. Which profit-oriented bank reports to the tax authorities its best clients who generate high earnings? Even if this approach runs the risk that, once it is clear, the bank will face huge reputational problems and must expect operational risks on its balance sheet. In this perspective, divorce from the “good client” will be more the exception than the rule.

A comprehensive whistleblowing system must support the reporting of suspects

In the opinion of mafianeindanke, an effective anti-money laundering strategy must start by rethinking the current approach which has become standard in Europe and globally.

It makes sense, of course, that the supervisory authorities continue to require strict compliance with the obligation to report suspicions and customer care obligations on behalf of banks and other obligated parties. However, the examination mechanisms of the tax authorities – even if the number of evidences on the ground were to increase significantly – do not fully detect serious money laundering cases. Banks may run the risk of failing to comply with the Money Laundering Act because in most cases they escape the controls of the supervisory and investigative authorities.

More control could be achieved by complementing the existing suspicion reporting mechanism with a functioning Whistleblower system. Whistleblowers are people who report or report violations of the law or other misconduct. There are social and economic areas where whistleblowers are indispensable. For example, in the areas of money laundering and corruption. The creation of whistleblower systems is part of the obligations of the supervisory authorities in the German Money Laundering Act. In practice, however, these obligations are only symbolic if formulated in general terms.  So far, these systems are not operational. They do not effectively protect the whistleblower when he addresses the outside world. It is therefore not surprising that many employees of banks and other companies who want to report irregularities prefer to remain anonymous or even keep their knowledge to themselves.

The situation in Switzerland is even more unsatisfactory. So far, the Federal Council (Bundesrat) has rejected any initiative for legal regulation in this area.  Whistleblowers are therefore at risk of being fired and subject not only to social condemnation but also to prosecution.

In October 2019, the European Union issued a directive to protect persons who report violations of existing European laws in their profession. German legislation must implement this directive within two years. Civil society should take an interest in this issue from the beginning.

Mafianeindanke will certainly do so.

Swiss parliament stops the adaptation of the Anti-Money Laundering Act to international standards

On 2 March this year, the National Council, the so-called Grand House of the Swiss Parliament, prevented the introduction of new anti-money laundering legislation, which the Swiss government (Federal Council) had already proposed on 1 June 2018. So far, the international media have not paid much attention to this vote. The amendments to the AML Law should, among other things, include an extension of the due diligence obligations for lawyers, notaries and other advisory professions such as trustees or tax advisors. Currently, only banks and financial service providers are covered by the AML Law. Exceptionally, this includes lawyers to the extent that they provide financial services in individual cases.

In the future, the law should also apply to mere advisory activities, such as those offered to companies abroad, to shell companies existing in Switzerland or to trusts or services such as the establishment, management or administration of these companies. Such an expansion of the circle of obligated persons in the anti-money laundering regime is in line with the current standard of the Financial Action Task Force on Money Laundering (FATF) set up by the G7 countries, of which Switzerland is a member. The FATF’s petition has already been implemented in the EU states with the Fourth EU Money Laundering Directive of 5 June 2015. The scandals uncovered by international research networks demonstrating the use of offshore shell companies for money laundering purposes, including tax evasion, “Panama Papers” had led to this extension of standards. As a member of the FATF, Switzerland is committed to implementing this standard in national law.

The decision was taken in the National Council by 107 votes to 89. Except for a few dissidents, the right-wing factions of the SVP (Swiss People’s Party), the Liberal FDP and the CVP (Christian Democratic People’s Party) voted against a stricter law on money laundering. Supporters of an alliance between the SP (Social Democratic Party), the Greens and the Liberal Greens could not prevail.

In the next phase, the Council of Cantonal States (the so-called Small Chamber of Parliament) decides on the bill. If the Council does not want to reopen the debate, which is currently foreseeable, the bill is completely sunk.

In the course of the debate, the Swiss Social Democrats and the Greens stressed that the revelations about the Panama papers clearly demonstrate the need for action in Switzerland to fill this legal gap. The papers revealed that Swiss lawyers and other consultants were involved on a large scale in the creation of problematic domiciliary companies (shell companies) in Panama. In fact, thousands of domiciliary companies were acquired and created by Swiss lawyers and private banks through the mediation of the Mossack Fonseca law firm in Panama. A combination of shell companies based in offshore countries, managed by fictitious trustees who receive instructions from lawyers and trustees in Switzerland (and other financial centres), was often identified. Swiss lawyers and trustees are thus the logistical link between the offshore countries and the investment country Switzerland.

The “Luanda Leaks”, also discovered in January 2020 by an international consortium of investigative journalists, show a network that worked in a similar way. The daughter of former Angolan President dos Santos. Isabel dos Santos, had built a network of 400 companies in 41 countries to systematically appropriate billions in public funds. International banks, lawyers and other consulting firms provided support and closed both eyes. Isabel dos Santos and the entire family clan were able to enrich themselves unscrupulously for years at the expense of the state and the population. Swiss intermediaries helped to ensure that some of this looted money ended up in Switzerland.

Discourse of the legislative initiative opponents: A revival of the EU debate

The influence of lawyers and advisory professions in the Swiss Parliament is particularly strong. In this case, Switzerland does not differ significantly from the German parliamentary system. Under the leadership of the lawyer lobby, the blockade of opponents of the initiative highlighted the considerable additional work required to manage the mandate, to clarify the type of client and possible beneficiaries, and warned above all against the “erosion of lawyer-client privilege” and the role of the lawyer in the administration of justice. The parliamentary majority thus made use of the argument, already deadly in Europe and especially in the German debate, about the lawyer’s obligations in the area of money laundering, according to which the Money Laundering Act would foster a climate of mistrust between lawyer and client. In the end, according to them, this would lead to a “totalitarian state”.The members of the parliamentary group of the UDC in Zug supported their rejection by using historical parallels. They quoted from the book by Berlin historian Jörg Baberowski “Scorched earth – The realm of Stalin’s violence”: “Under Stalin, the members of the Central Committee began to brand the fellow party members as traitors against their own common sense, so that they would not be suspected themselves.

In this ideological fog, the spokeswoman for the UDC in the Federal Council, Barbara Steinemann, was clearer about the ultimate goal of “no”: Switzerland must maintain the competitiveness of its financial centre at all costs. This is precisely what they fear. Without the network of lawyers and trustees linked to Swiss banks, the specific Swiss banking system with its globally leading product lines in private banking and asset management would be less attractive to clients. It would also be less attractive to criminals in the ranks of attorneys and clients.

The position of the Swiss government

The most characteristic point of the debate is that the Finance Minister Ueli Maurer, who was responsible for the legislative initiative, did not deviate from the position of the no-sayers. He is a leading member of the SVP and deviates from the position of his party comrades only on tactical issues. From the very beginning, he stressed that failure to implement the FATF standards would have caused a worldwide reputation problem for the entire Swiss financial centre. Switzerland would enter into an open confrontation with international bodies for no reason whatsoever. The FATF regularly checks whether the laws of its member states comply with its recommendations. Switzerland’s next revision is scheduled for 2021. Maurer’s arguments were actively supported by the Swiss banking and insurance lobby, which also supported the legislative initiative.
In vain, the Finance Minister said that ”soup is not eaten as hot as it is cooked”. After all, the decisive factor is the actual implementation of a legal provision and not the way it is placed in the showcase of a federal law or an official gazette. He emphasized that the lawyer-client privilege will be preserved even with the revision of the law. Lawyers are obliged to report only if this does not violate attorney-client privilege, he said. And this offers a solid fortress in Switzerland that prevents the emergence of reporting obligations.

Does Germany differ positively from Swiss legal practice?

There is no reason for Germany to point the finger at the sinner Switzerland in this debate. Although the Federal Government – as part of the implementation of the Fifth Money Laundering Directive – has ensured by the end of 2019 that lawyers and other liberal professions, such as notaries, comply with their obligation to report suspicions, so far these annual reports of suspicions by the liberal professions do not exceed a single figure. In addition, the federal government’s announcement has not led to any significant results in reducing money laundering and monitoring the implementation of this law by the liberal professions. As in Switzerland, the liberal professions are not yet obliged to report when the facts relate to information received in the course of legal advice or legal representation. This should only apply if the obligated party knows that the contracting party has used legal advice or legal representation for the purpose of money laundering, terrorist financing or other offences. The German Lawyers’ Lobby can live well with this provision, as it offers enough flexibility on the subjective side of secure knowledge.

Covid-19 and Mafia: How two viruses strengthen each other

Closed borders are bad for smuggling goods and empty streets make drug trafficking more difficult – has the virus even weakened mafia clan? While according to an article in the Tagesschau, the Association of German Criminal Investigators assumes that more intensive controls at the time of COVID-19 will have a positive effect on the fight against organised crime, the Antimafia Commission of the Italian Parliament disagrees. The Commission is a permanent institution of the Parliament and the spokesman of its President recently told the NGO “Global Initiative Against Transnational Organized Crime” (GI-TOC) that: “The mafia is like the Coronavirus – it will get you no matter where you are”. So, what do we have to prepare for?

The current health crisis has few precedents in history and threatens to be a great chance for organised crime. In an interview with the Italian newspaper “La Repubblica”, Francesco Messina, head of crime prevention, warns against mafia infiltration in a weakened economic system: “The effects of the current health crisis could expose entrepreneurs and shopkeepers in various sectors to increased attempts of economic recruitment and illegal financing. The abundance of money that mafia groups have thanks to drug trafficking and the increasing financial difficulties of the companies will encourage exploitation and the takeover of entire businesses”. Francesco Messina confirms that the mafia has already begun to offer its “help” in the hospitality industry, among others. In addition, the risk of corruption increases when state officials suddenly have to manage vast amounts of public and European funds. Special care must be taken when awarding public contracts it’s a fact, well known in Italy not only after the experiences of reconstruction projects after earthquakes.

Nevertheless, it cannot be denied that a crisis of this magnitude hits Mafiosi just as hard as it hits us. As Professor Federico Varese points out: “We should not think of Mafiosi as super-humans, they live in the same world as us, and if our lives are endangered, so are theirs”. Organised crime has, however, already proved enviable resilience in the past, for example during the 2008 financial crisis: “They accept they are going to lose a bit of business from this and they are waiting for better times”, General Giuseppe Governale, head of Italy’s anti-mafia police (DIA), told the German Press Agency at the end of March. An old Sicilian proverb describes the current situation perfectly: “Calati junco, ca passa la china” (Bend down, cane, until the flooding is over).

The internationally renowned mafia expert and author Roberto Saviano went one step further and pointed out that criminal organizations can exploit any form of crisis for their own profit. In an article in “La Repubblica” Saviano describes why the pandemic could benefit the mafia: “When you’re hungry you look for bread and you don’t ask from which oven it comes or who gives it to you; when you need a medicine you buy it and you don’t ask yourself who the seller is. Only in times of peace and prosperity you do have a choice”. According to Francesco Messina, the health infrastructure, the agri-food sector and small and medium-sized enterprises in tourism and catering are particularly at risk of being infiltrated.

The Italian authorities are observing illegal trade in respiratory masks that are exported to Turkey, Russia, Kazakhstan or India and then re-imported into Italy – as the prices of protective equipment rise, this business is particularly lucrative. In Rome and Milan, counterfeit masks have already been seized by the police. The lack of goods is opening new markets and fields of action especially where organised crime has infiltrated the state healthcare, which is already the case in both Northern and Southern Italy, including Lombardy.

The Corona-crisis offers wide scope for fraudulent activities, and not only in Italy: Interpol reports on two-thousand websites worldwide, where doubtful products are sold, for example a miraculous “Corona spray”. Meanwhile, Europol warns of a worldwide increase in cybercrime: among other things, unsafe emails are circulating in which cybercriminals act as the World Health Organization (WHO) in order to spread malwares and to access personal data. The Neue Zürcher Zeitung (NZZ) also reports that the emergency in Switzerland is being exploited by false doctors, usurers and cybercriminals, so that the investigating authorities have stepped up their efforts. In the favelas of Rio, on the other hand, organised crime is presenting itself as a better state that provides security and order in the crisis, thus gaining new social legitimacy. The ways and means of profiting from the crisis seem endless. Nicola Gratteri, leading anti-Ndrangheta investigator and chief prosecutor in Catanzaro, also expressed concern to the DPA about interruptions in proceedings against the Mafia; hearings are currently not taking place.

But beyond the health crisis, Mafia’s everyday business is currently on-going: in the ports of Southern Italy an increase in traffic volume has been registered. Movement of goods it’s still possible and border controls are becoming less strict than before. In the German newspaper “Neues Deutschland”, Wolf H. Wagner writes that more drugs are currently entering the country than usual through the South American and African routes. Nor is the consumption of drugs decreasing just because we are locked up within our own four walls: boredom and loneliness can increase the desire to consume illegal substances, also to counteract mental illnesses such as depression. Anti-Mafia prosecutor Federico Cafiero de Raho confirmed to the newspaper La Repubblica: “When the drug distribution centres are closed, drugs are delivered directly to your home”.

What these analysis show, is that we have to consider the Mafia as a virus that can infiltrate every political and societal space. Even if the social order changes and the exception becomes the new norm, crime adapts to maximise its own profits.

© mafianeindanke, 02 April 2020

The memory of the mafia victims does not vanish: March 21st on social media

The “Day of Remembrance and Commitment for the innocent victims of the Mafia” is celebrated in Italy every year on 21 March. This year, due to the global health crisis caused by the coronavirus (COVID-19) the commemoration is postponed until October. Nevertheless, the largest Italian anti-Mafia organisation Libera has launched a commemoration campaign on the social media in which numerous individuals and organisations nationwide have participated. All of us in mafianeindanke have joined the commemoration by sharing our photos with in it the names of the victims and flowers we dedicated to them.

But our commitment does not end there. We have reconstructed, deepened and disseminated the stories of the victims, sometimes unknown to most, to keep the memory of them alive. Here you can read the stories of Annalise Borth, Ciro Rossetti, Silvia Ruotolo and Luigi Fanelli.

But first we would like to tell you about the origin of the important initiative of March 21st.

On 23 May 1993 the first commemoration of the victims of the Capaci attack was held. A woman named Carmela, approached the prominent Mafia opponent, Don Luigi Ciotti, and said to him throuhg tears: “I am the mother of Antonio Montinaro, head of the escort service for Giovanni Falcone. Why do you never mention the name of my son? He died like the others.” Until that time, the police unit that provided Falcone with personal protection, which included Antonio and his colleagues Vito Schifani and Rocco Dicillo, was always superficially passed over as “the guys from police protection”. The initiative was thus born out of the pain of a mother who defended the right to have the memory of her son kept alive by mentioning his name.

Thus, the Day of Remembrance of the innocent victims of the Mafia was born with the idea and obligation to grant every victim the same right to be remembered.

The stories of the victims

Annalise Borth

Ferentino, 26 September 1970

Annalise Borth was an 18-year-old German girl, married to Gianni Aricò and pregnant. Originally from Hamburg, she experienced a troubled adolescence and moved to Italy when she was still very young.

“Muki” was her nickname and she was a member of the anarchist group “Anarchici della Baracca”. This group consisted of political activists from the Reggio Calabria area, whose name refers to an abandoned hut where the group had established its operational base. These were the years of the bombing of Piazza Fontana in Milan and the Reggio uprising, the resistance against the government’s decision to make Catanzaro, and not Reggio, the regional capital of Calabria.

On the evening of 26 September 1970, Annalise and Gianni Aricò were in their Mini Morris, together with three other friends: Franco Scordo, Luigi Lo Celso and Angelo Calise, all between 18 and 26 years old. They were on their way to Rome, where a demonstration was planned on the visit of the then US President Nixon. The young people wanted to hand over a dossier with explosive information to the lawyer Edoardo Di Giovanni in Rome. They had collected documents proving links between the ‘Ndrangheta and neo-fascist groups, especially in relation to the Reggio uprising and the attack on the “Freccia del Sud” train near Gioia Tauro.

At the height of Ferentino their car collided with a truck for the transport of canned tomatoes, the rear-end collision was probably provoked. All passengers died. Annalise was the last to die, after 21 days of fighting for her life in the hospital.

The documents transported in the car disappeared without a trace. The drivers of the truck, who survived the accident unharmed, were employees of a company that can be traced back to the “black prince” Junio Valerio Borghese.

It was not until more than 20 years later, in 1993, that there were new findings concerning the events of the Reggio Uprising and the bombing of the “Freccia del Sud” train, in which six people died and 54 were injured. The statements of some “pentiti” (penitent former mafia members) revealed that the ‘ndrangheta provided the explosives to the neo-fascist groups. In addition, a man who cooperated with the judiciary confessed to the cooperation between organised crime and terrorist, extreme right-wing groups in the case of the ‘Reggio Uprising’.

But for the “Anarchici della Baracca” there is no justice until today.

Ciro Rossetti

Naples, 11 October 1980

Ciro was a 31-year-old factory worker.

On 11 October 1980 he was at his mother’s house to watch the World Cup qualifying match Italy-Luxembourg with his wife and two children. Suddenly he heard shots in the street. He assumed that they were fireworks to celebrate Italy’s victory in the football match. Therefore, he went to the window immediately. From the window he saw a car from which a man fired four shots. One of those bullets killed him.

This man had nothing to do with organized crime and just wanted to shout out a shout of joy from his window.

Silvia Ruotolo

Naples, 11 June 1997

Silvia Ruotolo loved her city of Naples, she loved her neighbourhood Vomero and above all she loved her family. She was a cheerful and helpful woman with an unmistakable smile.

After completing her Master’s degree she met Lorenzo Clemente, whom she married. In 1987 she became pregnant and was expecting her first daughter, Alessandra, to whom she was a caring mother from then on. Five years later she carried another child in her womb: she was now trying to find a bigger house while waiting for little Francesco to arrive. So, she moved to the 9th floor of a house at Salita Arenella 13 / A, in a spacious apartment with a wonderful view of her city.

On 11 June 1997, at the age of 39, Silvia held her little son Francesco by the hand. Francesco was then 5 years old. She had just picked him up from the kindergarten and was walking towards the Salita Arenella, almost home. On the balcony ten-year-old Alessandra was waiting for her.

Suddenly two men got out of a car and started shooting wildly. Silvia was hit in the head by one of the 40 bullets and died. However, their target was not her, but two members of the Cimmino clan, Salvatore R., who was also killed, and Luigi F., who was injured together with a university student, Riccardo Valle.

The case was not closed until 2011: The Court of Appeal gave a life sentence to Mario C., the last of the defendants whose trial was still pending. Four other sentences also became final, including a life sentence for Vomero boss Giovanni A., the mastermind behind the cruel and violent action that led to Silvia’s tragic death.

Luigi Fanelli 

Bari, 26 September 1997

Luigi Fanelli was a sincere and cheerful boy who aspired to a military career. He was recruited at the Briscese Barracks in Bari. When he was only 19 years, on a day off, he left the house at 9 pm and told his parents that he would return home late that evening. He met some friends in a public square. After a while he went with his friend Luca to the wine bar “Ridemus”. There he met his ex-girlfriend Fausta B.. After a heated argument Fausta left the bar.

Luigi spent some time at Ridemus, while Paolo M. and Francesco S., Fausta’s ex-boyfriend, were also there. Francesco and his friends later claimed that towards the end of the evening they saw Luigi leaving the restaurant and driving away on a black scooter accompanied by an unknown person.

From then on, all traces of the whereabouts of Luigi Fanelli are lost. He did not disappear voluntarily. The Bari prosecutor’s office assumes that Fausta resented the argument. She probably called two clan members of Cosola’s clan and asked them to give Luigi a “lesson”. The two went to the bar. There they could convince him to follow them. His body has not been found until today.

Paolo M., nephew of mob boss Antonio di C., decided to cooperate with the justice in October 2015. He confessed to killing Luigi Fanelli with a pistol. A murder for which Paolo M. never paid, since in this case he had already been acquitted.

© mafianeindanke, 29 March 2020

European Union – Money Laundering Paradise

The Fifth EU Money Laundering Directive (Directive (EU) 2018/843 of the European Parliament and of the Council of 30 May 2018 amending Directive (EU) 2015/849 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing and amending Directives 2009/138/EC and 2013/36/EU) had to be implemented by the member states by 10 January 2020. Spain, Portugal, the Netherlands, Romania, Hungary, Slovakia, Slovenia and Cyprus did not transpose this directive at all within the deadline; other EU states transposed it only partially. Italy, Germany, Finland, Latvia and Bulgaria are the only EU countries that have fully implemented this directive according to the European Commission. The German Implementation Act came into force on 1 January 2020. However, the question of whether the transposition laws of these five countries also comply with the content of the Directive in substance and in full needs to be examined separately.

The failure of the defaulting member states to meet the implementation deadlines shows how little importance the executive and legislative bodies of the individual EU member states attach to effective money laundering prevention and a harmonised legal framework for the prevention of money laundering in all sectors of the European Union’s economy, despite all assurances and rhetoric.

The European Commission itself is partly responsible for this desolate situation. In the four previous directives on the prevention of money laundering, it had already failed to consistently sanction non-compliance with the transposition deadlines or materially inadequate implementation in national transposition laws. The Commission would have the instruments for this by initiating infringement proceedings. The Commission can initiate formal infringement proceedings if an EU country fails to notify the measures to fully transpose a directive or fails to remedy an alleged infringement of EU law. The procedure consists of several steps – at a certain stage of the procedure, involving the European Court of Justice – laid down in the EU treaties, each of which ends with a formal decision. In cases where the Commission refers the matter to the European Court of Justice for the second time, it can propose the imposition of very severe financial sanctions in the form of a lump sum and/or a daily amount to be paid.

At present, 17 infringement proceedings are still pending for inadequate implementation of the Fourth EU Money Laundering Directive by individual member states. This Directive should have been implemented as early as 2017. The European Commission is not in a position to conduct these proceedings independently due to the desolate staffing situation in the Commission’s working units responsible for money laundering prevention. It has “outsourced” the examinations relevant to the proceedings to the Council of Europe; the pending proceedings for suspected violations of the Third Money Laundering Directive were completely discontinued due to this personnel situation. As a result, the European Commission is mutating into a paper tiger in the fight against money laundering, which the member states have no reason to fear.

It is quite clear that the letter of the implementing law and its compliance with the requirements of the respective directive alone does not say anything about how effective the respective anti-money laundering measures are in the individual EU member states and how the implementing laws are actually lived in the individual EU states. There is a deep gap between the claim formulated in the directive or the individual implementation law and the legal reality in the individual EU states. There is enough evidence of implementation deficits in the member states Denmark, the Baltic States, the Netherlands, Malta and Cyprus. Germany, too, is an eloquent negative example. Although Germany is one of the model countries in the formal implementation of the EU money laundering directives, the actual implementation in the federal system is a farce, not least due to a lack of personnel in the state authorities responsible for the non-financial sector and the lack of political will on the part of the state governments. In some cases, years after the legal requirements came into force, the Länder have made no attempt to start implementation in individual supervisory areas. For example, the regulations on the supervision of notaries in terms of money laundering law are being negated by the presidents of the regional courts in the federal states.

Conversely, however, this does not mean that the harmonised legal framework for the prevention of money laundering in the European Union intended by the Directive is irrelevant.

On the contrary, a fragmented regulatory and supervisory framework in the field of money laundering prevention is poison for effective supervision in cross-border situations. Money laundering cases of relevance such as the Danske Bank case, with a volume of EUR 200 billion, usually have such a cross-border background. Without a harmonised legal framework, there can be no smooth exchange of information and no effective coordination of the competent authorities in the European Union. Also, in order to preserve the integrity of the EU internal market, there is a need for harmonised, concerted action by the supervisory institutions in the EU Member States with regard to third countries with a high risk of money laundering.

What can be done?

These problems will continue in the future when it comes to regulation in the area of money laundering prevention, unless the European Commission finally decides on an alternative regulatory route. The 6th EU Money Laundering Directive of 12.11.2018, which is to be implemented by the EU states by 3. 12.2020, has still been adopted according to the old harmonisation pattern, namely the creation of minimum standards in the form of a directive and their implementation by national implementing acts. EU law does not prevent the Commission from choosing the path of full harmonisation by adopting an EU regulation in future. In agreement with the Council and the European Parliament, the Commission is increasingly adopting this approach to financial market regulation. There is no good reason why this should not be done in the same way for the prevention of money laundering. Legislative procedures could thus be considerably accelerated in order to be able to react immediately to identified risks. Once the regulation has been adopted, the content of the regulation would also become legally binding immediately; fragmented implementation laws in the member states would no longer be necessary. 

“The war between Montenegrin clans does not stop”. The case of Igor K. shakes German public opinion

The war between Montenegrin clans is once again attracting public attention in Germany. Igor K., a 35-year-old Montenegrin criminal, was seriously injured after an attack on him near Podgorica (MNE) at the end of January. He was then transferred to the Medizinische Hochschule in Hanover (MHH) on February 7. The attack took place as part of the clash between Škaljarski and Kavački clan, which we had already examined last May following the violent killing of two members of the Škaljarski clan in Forst (Brandenburg).  The news of Igor K.’s admission to Germany appeared in the media a few days late and immediately caused controversy.

The reconstruction of the facts

On January 28, after being hit by a hail of bullets while in his car, Igor K., He is urgently transported to the local hospital where he is admitted with seven gunshot wounds. In order to obtain better treatment, he was then transferred to Hanover, where his presence mobilized a large numeber of policemen (around 250) to ensure h24 patient safety, as well as the safety of hospital staff and MHH patients.

The close surveillance of the Montenegrin criminal has alerted German public opinion. The taxpayers’ association (Steuerzahlerbund) protested about the deployment of security forces in large numbers, claiming that the cost should be charged to the private patient and his family. The Hannover police said that such precautions and security measures were necessary for this type of case. The Minister of the Interior of Lower Saxony Boris Pistorius (SPD) made it clear that the arrival of Igor K. was neither wanted nor requested by anyone, but since a patient was found to be in a serious condition the treatment and the security measures had to be provided for everyone’s safety. The Ministry of Science and Culture of Lower Saxony also explained that the patient arrived at the clinic as an urgent case and that the MHH doctors could not refuse to help. Dirk Toepffer of the CDU, as reported by the BILD, claims that the admission of Igor K. was an irresponsible and dangerous act, which caused financial damage to taxpayers as well as to the image and credibility of the country.  Representatives of other political parties also joined the chorus. Among others, Marco Genthe of the FPD stressed that is necessary to make clear whether the stay at the Medizinische Hochschule in Hanover was paid in laundered money.  

In fact, the cost of the treatment – around 90,000 euros – was paid by Igor K., but the question was raised as to where this high amount of money came from. The 35-year-old Montenegrin was already known to the police in his home country. In 2017, he was subjected to a police operation that led to the seizure of mobile phones, knives, a machete, two cars and 182,450 euros in cash, presumably proceeds of usury and drug trafficking.

Considering the implications and the media coverage, the city of Hanover, in agreement with the Ministry of Pistorius, has decided to expel the Montenegrin criminal, because ”the patient’s stay at the MHH represents a threat to security and public order”.  Igor K. therefore received an expulsion notification. Transported by helicopter to Turkey, he will continue his treatment in Istanbul.

The background

Igor K. is considered a member of the Škaljarski clan and the attempt on his life can be traced back to the clash that this criminal group has been conducting for some years now with the Kavački clan for the control of lucrative drug trafficking. Škaljarski and Kavački clan were originally united into one criminal group in the city of Kotor. However, the arrest in 2014 of the powerful drug trafficker Darko Šarić left an important space in the Montenegrin criminal underground to fill, and it was here that the splitting within the Kotor group began. Darko Šarić led a very sophisticated and flexible criminal group of Montenegrin Serbs. He relied on important connections with the institutions and police forces in the region, and was considered an efficient and reliable partner by the South American cartels in the cocaine traffic in Europe. The proceeds of the drug trade were then recycled by the narcoboss into various legitimate activities within the Balkan region, such as acquisition of coffee-shops. restaurants building plots and farmland, as well as the provision of loans and the conclusion of fictitious contracts. His arrest and the end of his criminal rule left an attractive space for criminals in the region who were willing to do anything to establish themselves in the drug trade.

The trigger was the disappearance in 2014 of 200kg of cocaine belonging to the Kotor criminal group in an apartment in Valencia. This episode sparked a bloody internal feud, which so far has led to the deaths of more than 40 people. The clash between Škaljarski and Kavački clan has ended up involving other criminal groups active in Serbia and Montenegro, which have split between the fighting factions. According to the investigative journalism portal KRIK, the Škaljarski clan is said to be supported by the Serbian criminal Luka Bojović, leader of the renewed Zemun clan and currently imprisoned in Spain. The reins of the criminal group are now held by his close collaborator Filip Korać, who has long been unknown to most, but who has recently received enormous visibility after Serbian President Aleksandar Vučić spoke out publicly calling Korać an extremely dangerous person and a real threat to the Serbian population. On the other hand, however, the Kavački clan in Serbia can count on the support of criminal elements linked to the Janjičari, an ultras group of the Belgrade Partizan, led by Aleksandar Stanković, also known as Sale ‘Mutavi’ (the mute), until his murder in 2016. The group of ‘Sale Mutavi’ has important coverage by the police forces and institutions of the country. The son of Serbian President Vučić himself is in friendly relations with some members of the Janjičari group, and has been photographed on more than one occasion in their company. 

After the violent episodes that took place on Serbian territory in the context of this war between clans, the government strongly supported the need to fight the criminal phenomenon in Serbia. Despite this, the action taken by institutions and law enforcement agencies to some observers has so far seemed to be one-sided, i.e. directed exclusively against the faction close to the Škaljarski clan.

The confrontation between these criminal groups is reaching vast dimensions, with murders also being carried out in other European countries. The Škaljarski clan is currently having the worst of it. Some members of this group have moved abroad but are however reached by their opponents. The conflict is now conducted outside any scheme. The goal is the annihilation of the opponent. The families of the criminals, their collaborators – such as lawyers, for example – are affected, and attacks are increasingly being carried out even in the presence of defenceless witnesses. There are cases of innocent victims who are accidentally hit by the criminals because they are sitting at the table next to the target of the shooting. The rival groups are particularly violent and brutal, as the attack on Igor K. shows; in this war without borders the clans resort to explosives and car bombs, but also to other forms of intimidation and retaliation.

Statistics also show that in most cases the material perpetrators get away with it. Last November, at an event organized by mafianeindanke in Berlin on the topics of corruption and organized crime, KRIK Serbian journalist Bojana Jovanović showed us their database of criminal and mafia murders on the territories of Serbia and Montenegro from 2012 to date. Out of 163 murders, only 13 (about 8%) have been solved, while in 97 cases (almost 60%) the perpetrators are unknown.

Recent developments in criminal confrontation

Last May we published a first in-depth analysis of the dynamics of this clash, in light of the events in Forst (Brandenburg), where two members of the Škaljarski clan, Darko M., and Nikola J., had been killed in an apartment in the German town, while two other criminals of the same group had been injured in the ambush.

The most recent period shows the surge of violence.

On 19 January, Igor Dedović, one of the leaders of the Škaljarski clan, was killed in a restaurant in Athens. Together with him, Stevan Stamatović, his close collaborator, was also eliminated. The two were killed in the presence of their wives, children and numerous guests of the restaurant. At this point the clan seemed to be left without a guide because Jovan Vukotić, the boss of the criminal group, was in prison in Serbia. Later, on 8 February, Vukotić has been extradited to Montenegro, where he is charged of attempted murder. He is also under investigation in Greece for trafficking 135kg of cocaine.

On 28 January, took place the attack on Igor K., who – according to the Serbian newspaper Blic – has close relations with Milić Minja Šaković, an important member of the Škaljarski clan who is in turn linked to Stevan Stamatović, took place.

Only about ten days later, four men close to the same clan, three Montenegrin citizens and one Bosnian citizen were arrested at the Crowne Plaza Hotel in Belgrade. According the Serbian tabloids, they were supposedly organizing heavy criminal actions.

The most recent episode of violence, however, shows a different direction. Šćepan Roganović, a figure close to the Kavački clan and the third member of the Roganović family to be eliminated in the feud, was killed on 13 February in Herceg Novi (MNE) after the last on the list was his cousin Vladimir, killed in front of a restaurant in the centre of Vienna in December 2018.

The situation remains tense. The authorities in the region are not achieving particularly effective results in the fight against organised crime. The need to provide citizens with greater protection and security presupposes that the police forces and institutions of the countries concerned are more determined in the fight against the criminal phenomenon and, above all, that they cut off all links and forms of connivance with criminal groups at war.

Montenegro on the route of criminal trafficking

Montenegro is an important junction along the trafficking routes to the European Union. The Montenegrin clans, in fact, can rely on a privileged geographical position. Montenegro is a coastal state and its ports – particularly that of Bar – have always played a key role. Already in the 90’s, during the conflicts in ex-Yugoslavia, the Montenegrin criminal groups were protagonists in the smuggling of cigarettes towards Italy. For this smuggling they were able to rely on collaboration with representatives of the institutions and police forces of Montenegro, as well as with important Italian criminal organizations – Camorra and Sacra Corona Unita – and giants of the tobacco industry. Important political figures, such as the current President of Montenegro Milo Đukanović, were also involved in what was a real state smuggling. Relations between institutions, organized crime and security forces were also consolidated after the war and facilitated the inclusion of Montenegrin criminals in drug trafficking. Montenegro is located along the Balkan route, a key passage in the trafficking of opiates arriving from the Middle East (Afghanistan) and bound for European countries. But, at present, the country is a key hub for cocaine smuggling from South America. As pointed out in a recent report by ”The Global Initiative Against Organised Crime”, Montenegrin ports play an important role in these traffics, thanks to the good infrastructure, the coverage guaranteed by the police forces and the large workforce available to criminal groups.

Finally, the internal situation in Montenegro is causing concern. The country is permeated by a patronage and corrupt system. This is not the best for a country which, as a prerequisite for EU membership, must commit itself to fighting organised crime and corruption. The country’s institutions have recently made this commitment publicly.

According to some observers, the charges against criminals in the fight are stricter and tougher than those in Serbia, for example, demonstrating a seemingly greater commitment on this front. Therefore, we can only await developments in this matter, without forgetting that the only way to combat the criminal phenomenon is through the commitment of all the forces in the country, without compromising and legitimising the presence of these criminal groups. This is the only direction in which the fight must be pursued, with the aim of guaranteeing the security and safety of the citizens.

Filippo Spiezia: ”The European Commission wants to cut Eurojust’s operational budget. It is unacceptable and against the EU values”

The vice-president of Eurojust speaks at the conference ”Mafias: a European Problem”, organised at the European Parliament. Brussels, 5 February 2020.

On the 5th of February 2020 the conference ”Mafias: a European Problem” was held in Brussels at the European Parliament, promoted by the MEP Sabrina Pignedoli which saw, among the speakers, the vice-president of Eurojust Filippo Spiezia. His speech gave to the participants some food for thought that is worth reviewing.

At the beginning, Filippo Spiezia recalled the investigative operation Pollino, also known as “European ‘ndrangheta Connection”, which led to the arrest of 90 people in 2018 and produced one of the most effective judicial responses on a European level against mafia organisations. In particular, he praised the work of his German colleague Uwe Mühlhoff, Duisburg’s Public Prosecutor (here his remarks). Mr. Spiezia spoke about the important professional experience he and Mr Mühlhoff have undertaken together, praising his commitment and courage, which resulted in an operational axis between Italy and Germany of fundamental importance.

The vice-president of Eurojust has presented a preview of data that are the result of the work of the agency for the year 2019, stressing the importance of doing it in the European Parliament, where he can directly address the political power. Spiezia, in fact, argues that it is necessary to find new solutions to fight the mafias in Europe in the context of a renewed strategy. In its analysis a valid starting point remains ”the new EU strategy for the new millennium against organized crime” of May 2000 (C:2000:124:TOC), which presents an extraordinary topicality and effectiveness, as well as some important programmatic points that have not yet been implemented. It is therefore necessary to start again from this document, which contained important milestones in the fight against organised crime, and to evaluate the necessary additions.

But what do we mean when we talk about organised crime and mafia? At the moment, Spiezia specifies, we do not have a legally shared definition of organized crime, nor do we have an internationally valid legal definition of the concept of mafias. It is true, the Palermo Convention of 2000, Art. 2(a) defines the organized criminal group: ‘’structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences […] in order to obtain, directly or indirectly, a financial or other material benefit’’. But this is a concept more a matter of doctrine than of legal definition. The mafia-type association, instead, is a crime provided for by the Italian legislator through the Rognoni-La Torre law (art.416-bis of the Penal Code) of 1982 and responds to a precise connotation.

‘’The fact that concerns us is that there is no perfect equivalence between organized crime and mafia crime. The mafia is a form of organized crime, but not all organized crime is mafia”, says Spiezia.

On the practical level, the major difference is given by the stability of the criminal project: the mafias are characterized by their vocation to exercise a form of anti-state within the territories and social communities, due to the force of intimidation (which is a normative parameter of 416-bis). Here lies the root of the problem: the vocation of the mafia organizations to carry out a stable criminal project over time. This has made it possible for the mafia organizations to evolve, starting from their territories of origin, to reach other regions of Italy and abroad.

Spiezia then analyses the Eurojust data and points out that the Agency’s action has increased in recent years. Between 2018 and 2019 Eurojust increased its operations by 17%, providing support in as many as 8000 investigations into transnational crime (2019).

Observing the judicial data of the body, however, it is noted that mafia-type organized crime is not considered in the priority areas of action of the European Union. It is undoubtedly present in the judicial data of Eurojust but is not formally classified among the priority areas because it does not fall within the classification parameters considered in the official documents of the Union. Paradoxically, therefore, the mafia phenomenon is not considered a priority. For what reason?

First of all, there is a problem of classification with regard to the presence of mafia-type organisations outside their territories of origin. The Italian Court of Cassation provides two different frameworks, apparently in contrast. The first orientation requires the ”proof that that organization had the capacity to exercise mafia control over the new territory of development. The other orientation maintains that it is not necessary to prove the projection of mafia intimidation on the new territory if there is the evident connection with the motherland”. To resolve the interpretative conflict, on July 17, 2019, the President of the Supreme Court of Cassation expressed his opinion on the matter, arguing that the problem concerned only the ”proof of the mafia method”. For the newly created mafias, which constitute themselves outside of their original centres, it is necessary that the new cell can manifest itself and express itself as a mafia cell, therefore, the projection of the mafia must be found on the territory. On the contrary, for the aggregates which are the manifestation of cells already existing in the motherland, there is no need to go and prove that on the territory of arrival there is a new mafia cell.

See, for example, Operation Pollino: for the mafiosi who go to Duisburg – or, more generally, for business in Germany and Holland – there is no need to prove that a new mafia cell has formed. It is sufficient to know that the mafia subject active in Duisburg belongs to a mafia-type criminal organization – the ‘ndrangheta – which is already proven to exist in Calabria.

There is, then, a problem of emergence of the phenomenon at a European level. This, according to Spiezia, depends, first, on the approach of the mafia operating abroad. These are always more silent, oriented towards business and the acquisition of markets. They often do not reproduce abroad those forms of intimidation and violence that they use in their original context. They bring, instead, “a more expendable face”. Therefore, it is difficult to perceive them, unless there is a contrast with other criminal groups active on the territory which lead to situations where – see the case of Duisburg – the mafias show their violent face again, because control and hegemony on the territory is once again at stake.

The emergence of the phenomenon, then, is blocked also by the lacks and inhomogeneity of the legal framework at European level. Today, a regulatory framework – the 2008 Council Framework Decision on the fight against organised crime (QD 2008/841/JHA) – is used, which is totally inadequate. It is necessary to have legislation that reflects the business model of these criminal organisations, which reflects how organised criminal groups operate in Europe today. It is essential to consider their transnational character. Today, the magistrate strongly emphasises, there is a need for relevant legislation at European level which takes this transnationality into account and which, on this basis, makes it possible to aggravate the punitive treatment. This is a legal vacuum that needs to be filled, as does the gap concerning collaborators of justice. The Deputy Director of Eurojust points out that often there is recourse to creative solutions because there are not the appropriate instruments to carry out the work effectively. Then there is certainly a need for a European and centralised management body for assets seized and confiscated from mafias. According to EU data, only 1% of the proceeds are taken away from organised crime. If we want to win the fight against the mafias, this is a trend which must be reversed.

The most heated and heartfelt reflection, however, concerns Eurojust’s working conditions. The valuable work of the European Judicial Coordination Agency is under threat due to major budget cuts. In this respect, Mr. Spiezia launches a serious warning to the European institutions: ‘’Beware of undermining the operational capacity of the coordinating body against mafia organisations (Eurojust n.d.r.). We are fighting the problem of the multi-financial framework. Do you know what it is? It is the budget limits that are set to determine the budget allocations for the following years. We have an operational budget for Eurojust which for this year is EUR 41 million. The European Commission proposal for the coming years is EUR 33 million. This means that, according to the European Commission’s forecasts, we now close the gates. This is called the ‘shutdown’ effect, which I cannot accept as a magistrate and as a representative of the institutions. The fact that the representatives of the Commission – who are sitting in the College of Eurojust for the first time – support this proposal is not respectful of the values on which the European institution is founded”.

The Italian magistrate therefore reaffirms the need to strengthen judicial coordination at European level and the action of Eurojust. He criticises the anomalous choices made by the European institutions in the allocation of resources. He takes the example of other law-enforcement agencies that are perhaps disproportionately strengthened, such as Frontex, which will be strengthened by recruiting 10000 people over the next few years, with the aim of creating an operational coastguard and no longer just supporting the Member States. It also highlights the inevitable complexity of the European bureaucratic machine, where there is a problem regarding the transmission of information. As far as Eurojust is concerned, Spiezia recalls that when the EU Justice Commissioner found out about the agency’s difficult economic and financial situation, he did not know what they were talking about. Aware of the facts, instead, it was another section of the EU (DG HOME). The EU therefore needs to review its priorities, eliminating dysfunctions and strengthening its actions. It is not enough to just allocate expertise, it is also necessary to provide adequate support and resources. Therefore – through the introduction of new instruments, the strengthening of operational structures and the revision of the regulatory framework – the fight against mafia-type organised crime must be included among the EU’s priorities in the light of a new strategy.

At the end of the conference, Mr Spiezia expressed the hope that the political authorities present will take on board the needs and requests presented by the rapporteurs in order to promote an initiative that will gather consensus and lead to a proposal for a directive for new European legislation on organised crime. 

Uwe Mühlhoff, Duisburg Prosecutor: “The ‘ndrangheta in Germany and Europe does not work alone: it cooperates with all criminal groups”

During a conference at the European Parliament on February 5, 2020, organized by the MEP of the Five Star Movement Sabrina Pignedoli, the Prosecutor of Duisburg Uwe Mühlhoff presented the results of the Pollino investigative action, which led to the arrest of 90 people throughout Europe and South America on December 5, 2018. The operation, also known as “European ‘ndrangheta Connection” is the result of an investigative collaboration between Italy, Germany and the Netherlands, formally united in the so-called JIT (Joint Investigation Team)

The JIT Pollino began to take shape as early as 2014 when the Dutch authorities became aware of a strange movement of Italian citizens of Calabrian origin who were gathering at the border between Germany and the Netherlands opening cafes and bars. So, the Dutch authorities began to seek cooperation, first in Germany and then in Italy. The JIT was formally established on 18 October 2016, thanks to the fundamental support of Eurojust. The collaboration was immediately fruitful, because some of the families active on Dutch and German soil were the same: the renown families of San Luca, the beating heart of the ‘ndrangheta in Calabria.

Before the creation of the JIT, it was impossible to carry out trans-national investigations in a productive way, since there was no type of collaboration between the police forces of the different European countries. This is where the JIT changed things: it allowed all the players in the game to receive the right information and support, not without obstacles. Prosecutor Mühlhoff remembers a key fact: after the formation of the JIT, two rogatory letters by the Direzione Distrettuale Antimafia (DDA) of Reggio Calabria arrived at the prosecutor’s office in Duisburg. These letters were, at first, incomprehensible to German investigators who lacked previous knowledge and training: “there were so many names”, says the prosecutor, “and they all sounded the same to us: all these Giorgi, Pelle, and so many allusions to past cases that we did not know about, we did not have the background information and at first we wondered: what are they talking about?”. The prosecutor points out that the DNA of a defendant who was found at the scene of the “Duisburg massacre” matched with that of a suspect in the Pollino investigation: it is therefore clear that there are relevant links between the 2007 slaughter and the more recent operation. Prosecutor Mühlhoff wants to specify that “the families involved in the Duisburg Massacre are still active and present in those areas”. Curious is the fact that, only fifty meters from the Local Court of Duisburg, there is a bar run by one of those families, where all the judges regularly have coffee.

A problem which is underlined by the Prosecutor Mühlhoff is the lack of personnel with regard to the investigations into organized crime in Germany, in particular, mafia-type: the attention of the police is very high, for example, against terrorism, but the action teams which deal with mafia are very few. In the specific case of the Duisburg Public Prosecutor’s Office, there are between 10 and 15 agents working in the group fighting organized crime, but they also deal with Bikers, Gangs and Arab Clans at the same time. In this respect, the contribution of the BKA, the German Federal Police, has been crucial and it willing to work on the case.

The Duisburg Public Prosecutor’s Office opened the investigation in August 2016 and deployed undercover agents and SWAT teams, with a special system of wiretap, car checks and financial investigations. “At first we thought that the ‘ndrangheta was working alone”, explains Mühlhoff, “but that’s not the case: it cooperates with all kinds of criminal groups – Turkish, Albanians, Moroccans – the 58 defendants in the German investigation come from a total of ten different countries. They work together: they cooperate wherever there is money to be made”. And the criminal activities were not only limited to drug trafficking, but also to supporting members of criminal families and money laundering through restaurants.

An important part of the investigation was the monitoring of 195 phone numbers that produced thousands of pages of wiretaps, as well as the decoding of some Blackberry phones and EncroChats (instant messaging application that uses special security protocols). The German police have also had surveillance gears inside defendant’s cars but – as reported by mafianeindanke almost a year ago – it was discovered by the defendants, also thanks to the advent of new technologies: the latest generation cars from Mercedes, BMW and Volkswagen send a notification to the owner’s phone when the car is opened, and the car companies have been reluctant to cooperate with justice. However, the surveillance stopped there, because in Germany it is virtually impossible to receive the authorisation to conduct audio surveillance in private homes and offices. The deployment of forces made it possible, however, to have undercover agents within Turkish groups doing business with the ‘ndrangheta and also managing to tail a defendant to South America where he was closing a deal of cocaine that would then be transported to Europe via the ports of Gioia Tauro in Italy and those of Amsterdam, Rotterdam and Antwerp in northern Europe. But not only the ports are under the control of the clans: their influence also reaches the airports. This is the case with a deal of 25 kg of cocaine transported from Bogota to Miami and from Miami to Amsterdam airport through a rose delivery. “The important thing in this case”, continues Mühlhoff, “is that the ‘ndrangheta clans do not always have direct control over the ports and airports, but they enter thanks to other criminal groups”.

The Public Prosecutor points out, furthermore, how the action of the organs of justice is always too slow with regard to the clans: “as soon as we arrested an important member of the clan, within a few weeks, there was already someone to replace him, maintaining the criminal activities”. Another of the problems that the German police find is the fact that they cannot follow the movements of the cars through the license plate number: in Germany it is illegal to come into possession of these data. Another issue raised by the prosecutor of Duisburg is the lack of a national database: since Germany is a Federal Republic, each Land has its own rules and above all the data protection law is very restrictive and does not allow sensitive data to be kept for more than six months.

On the operational side the difficulties were many: it may seem trivial, but the translation of documents is one of them. From Italy there were pre-trial detention orders of more than a thousand pages long in which all the evidence was described in detail, which meant an allocation of more than 1.25 million euros by the Duisburg Public Prosecutor’s Office for the translations only. “It is more important to have one good translator than ten investigators”, notes Mühlhoff, who also points out that the exchange of documents between the different prosecution offices is still too complex and slow. A further reflection made by the prosecutor focuses on the question of the different laws that each country has adopted: everyone does what he can with what he has, so the work of mediation by Eurojust was fundamental. Mühlhoff also recalls how in Italy, the prosecutors who deal with these things, are very often threatened and forced to have a police escort and a life of hardship: “I feel lucky not to need it”, says the prosecutor. In Italy, regarding the confiscation of assets, there is the inversion of the burden of proof, in Germany, instead, it is still the investigators who must prove that the assets derive from criminal activities.

Another curious case testified by Mühlhoff was the confiscation of 3.5 tons of cocaine in Antwerp: following a defendant in Guyana, the Duisburg Public Prosecutor’s Office was able to trace a shipment of cocaine bound for Antwerp, and when the case was reported to the Belgian police, the drugs were confiscated inside a boat. The police authorities, in an attempt to frame the group who had bought that cargo of cocaine, sent the ship to the port of Antwerp with white powder similar to cocaine, but the Belgian police was not on the scene when the criminal group went to collect the drugs, why? Because it was Saturday, and there were no teams available on the weekend.

Another important element in the success of Operation Pollino was the possibility for the Duisburg Public Prosecutor’s Office to interview an Italian cooperating witness who had information about Germany. Mühlhoff then concludes by outlining guidelines for the future: “we need perseverance, motivation and the ability to learn and adapt to every situation: we have learned a lot from this investigation, and we will continue to do so. Transnational investigations can help if there are national deficits”, he continues, “mafias like the ‘ndrangheta do not work alone, they are a world wide web of criminal organizations. The puzzle can only be solved by working together, we may not have all the pieces but together we can have enough information to understand. In the future we will need much more European collaboration, not less”.