In this article are outlined the different kinds of under cover operations contained and provided for in our legislation, also in the light of the new elements introduced by the Law nr. 146/2006, on trans-national crime. There is an effort to shed some light the most delicate – at an interpretative level – “trial situations” contained in the legislation, with special reference to the absence of liability for the undercover agent, to his “position in trial” and to the content of the statements that he can be called to make.
The “instigator agent”
One of the potentially most useful investigative instruments, as long as it is employed with attention and caution, is that of the “instigator agent”.
It is an instrument which takes concrete form in an activity of controlled infiltration into a criminal group, realized by a police operator, who – obviously, working under an assumed identity – is even able to instigate the carrying out of crimes by members of the criminal group, the objective being to achieve the acquisition – otherwise impossible or exceedingly difficult – of means of proof against these subjects.
The emblematic example is represented by the “simulated purchase” of narcotics, where it is the infiltrator who “stimulates” the transfer of the drugs by the criminals, in order to acquire concrete elements of proof against these last, relative to, both the subjective responsibility, and to the subsistence of the associated organized structure itself.
It is an instrument which still presents a considerable number of obscure aspects, both in the operative experience, and in the case-law application Also because the discipline of the different normative hypotheses which allow recourse to simulated operations presents certain problems of interpretative coordination; not attending to, nor resolving, all the questions that can arise; above all, those in trial proceedings.
Thus, it seems useful to reconstruct, both the discipline of the different hypotheses of “instigator agents”, and, above all, to focus on some of the applicable questions which the matter has brought to the surface: for obvious need of space and of logical connection, we shall limit our attention to only the questions of more immediate trial interest.
The simulated purchase of drugs:
the first appearance of the “instigator agent”
An organized discourse on the figure of the “instigator agent” cannot but begin with the Article 97 of the DPR (Decree of the President of the Republic), of October, 2990, No. 309, on the subject of the sanctions regulations of the narcotic or psychotropic substances, which, in the text presently in force, as modified by the Law No. 49 of 2006, para 1, provides that, besides the provision of Art. 51 of the Criminal Code, officers of the Judicial Police Force assigned to the specialized anti-drug units are not liable to punishment: their objective being to acquire elements of proof relative to crimes connected with narcotics, provided for by the same DPR, and the execution of anti-drug operations specifically prepared by the Central Direction for the Anti-drug Services, or “always” in agreement with this last, by the Chief of Police or by the Provincial Commander of the Carabineers or by the Guardia di Finanza (Customs & Excise Control) or by the Commander of the Treasury Agents nucleus or the Director of the Anti-mafia Investigative Direction. The “instigator agent” during the course of his duties in these operations can, “also through a third party”, “purchase, receive, substitute or hide narcotic or psychotropic substances or perform connected and instrumental activities”.
As is known, it concerns the disposition with which, for the first time, the autonomous and special cause of justification, the figure of the “instigator agent”, has been “codified”; this figure, in the past was held to be legitimate by the law through the reference to the cause of common justification of the Art. 51 of the Criminal Code, under the profile of the execution of duty entrusted by the Judicial Police Force to obtain information of the crimes, search for the perpetrators and perform the necessary acts to secure the sources of proof; cfr. Art. 55, of the Criminal Code).
In reality, the recognition of the legitimacy of the activities of the “instigator agent”, through invoking exemption from liability, due to fulfilment of duty is, and always has been, subordinate to particular caution and to significant limitations. In essence, according to the more or less consolidated law, the “instigator agent”, even though belonging to the Judicial Police Force, would not be liable to punishment ex-Art. 51 of the Criminal Code, only if his participation resulted in being indirect or marginal in the ideation and execution of the fact, being resolved, essentially, in an activity of mere control, observation and containment of other people’s illicit actions (hypotheses which would be extremely difficult to recognize in the activity of the simulated “purchase” of drugs, and, as we shall see, also in the other hypotheses of simulated activities, where the infiltrator is authorized to commit and stimulate the commission of crimes); while he would be punishable, as concurring with the crime, that subject who had carried out a concrete activity of instigation or, however, an activity having decisive effectiveness or contributory cause (material or psychic) in the projection and commission of the crime (1)
Consequently, the important normative valence of Art.97, of the DPR No.309/90, is evident, which, significantly reinforcing the investigative powers of the Judicial Police Force, allows to maintain ‘not liable to punishment’ the instigator agent who carries out an activity (for example, the simulated purchase of drugs) which, far from being an activity of mere control, of observation and containment of other people’s illicit actions, it is substantiated in the infiltration into a criminal organization and in the solicitation activity of a sale, perhaps not yet decided, of narcotic substances: conduct, which, if genuine, would certainly not be exempt from punishment by invoking the common ‘exemption from liability’ of Art. 51, of the Criminal Code, understood and applied in the aforementioned rigorous terms: provision which, mutatis mutandis, becomes a point of reference in the other hypotheses of simulated actions that will be addressed further on.
The widening of the hypotheses
of “instigator agent”
The discipline on narcotics introduced in the law has, in fact, proved to be so useful as to be taken for a model for the introduction, in time, in others sectors, of analogous figures of “simulated actions”.
It is sufficient to refer, to serve as an example, to those provided for by Art 12, quater, paras 1 & 2, of the Decree Law, 8th June, 1991, No. 306, converted in law, 7th August, 1992, No. 356, on the subject of recycling and re-investment of illicit capital, and on the subjects of arms, munitions and explosives: of the simulated actions provided for by Art. 14 of the law, 3rd August, No. 269, on the subjects of prostitution, juvenile pornography and sexual tourism, on the damage of minors (recently, with the law, 6th February, 2006, No. 38, extended to pornographic material, Art. 600 quater of the Criminal Code); to that provided for to combat terrorist crimes (Art. 4 of the Decree Law, 18th October, 2001, No. 374,
converted in law, 15th December, 2001, No. 438); to that configured in the law, 11th August, 2003, No. 228, containing measures against the traffic of human beings, which has extended the possibility of utilizing the instrument of “simulated purchase” to combat all the crimes against the individual person provided for by Articles 600 to 604 of the Criminal Code, and that of complicity and exploitation of prostitution provided for by Art. 3, of the law, 20th February, 1958, No. 75.
The re-organization of the figures of
“instigator agents” with the discipline
of opposition to trans-national crimes
However, the Law, 16th March, 2006, No. 146, ratified by the Conventions of the United Nations, against trans-national crime, has affected the aforementioned figures of the “instigator agents”.
The Law, No. 146 of 2006 did not affect the Art. 97 of the DPR, No. 309/90: probably because the latter had already been modified by the Law No. 49 of 2006, with the aforementioned formulation.
In extreme synthesis, in light of the intervention realized with the Law No, 146 of 2006, and taking into consideration the pre-existent legislation body on which the Law 146/06 had no effect, it is possible to identify the following hypotheses of simulated actions:
- the simulated action provided for by Art. 7 of the Decree Law, 15th of January, 1991, No. 8, converted in law, 15th of March, 1991, No. 82, in the matter of kidnapping with the scope of extortion, allows the Public Prosecutor to ask the Judge of the preliminary investigations, the authorization to have at his disposal the property, - money or other utilities, subjected to preventive seizure, provided for by Art. 1 of the same law, for the execution of “controlled operations for the ransom payment” (this is a provision on which Law No. 146 of 2006 did not intervene);
- the simulated actions provided for in the matter of recycling (Art. 648 bis of the Criminal Code) and of the re-investment of illicit capital (Art. 648 ter of the Criminal Code, and in matters of arms, munitions and explosives, of Art. 9, para 1, of the Law No. 146/2006 (see previously, the revoked Art. 12, quater, paras 1 & 2 of the Decree Law, 8th of June, 1992, No. 306, converted in law, 7th August, 1992, No. 356): the undercover agents are allowed, also through means of a third party, to give refuge or assistance to associates, to buy, receive, substitute or hide arms, documents, narcotics, goods or things which are object, product, profit or means to commit the crime or to otherwise hinder the identification of their provenance or, finally, to concur with their utilization;
- the simulated actions provided for in Art. 14 of the law, 3rd August, 1998, No. 269, on the subject of prostitution and juvenile pornography and of sexual tourism, to the damage of minors, provided by the combined provision of Articles 14 of the law, 3rd August, 1998, No. 269, relative to the crimes sanctioned by Articles 600 bis, para 1, 600 ter, paras 1, 2 & 3, and 600 quinquies of the Criminal Code and, recently, with Law, 6th February, 2006 No. 38, extended to the pornographic material di cui al Article 600 quarter of the Criminal Code, and those provided for in Art. 9, para 1, of the law, No. 146 of 2006, relative to all, without distinction, the crimes provided for in Book II, Title XII, chapter III, Section I, of the Criminal Code. In fact, the discipline of sectors presents some problems of coordination for the very reason of the overlapping of the regulations in force (Art. 14 of the law No. 269 of 1998 and Art. 9 of the law, No. 146 of 2006) of the partially coinciding contents. There are now granted, for all the crimes comprised in Book II, Title XII, chapter III, Section I, of the Criminal Code (ergo those from Art. 600 to Art. 602 of 2006) the detailed activities in Art. 9, para 1, of the law No. 146 of 2006: the undercover agents are allowed, also through a third party, to give refuge or assistance to associates, to purchase, receive, substitute or hide, arms, documents, narcotics, goods or things which are object, product, profit, or means to commit the crime, or otherwise hinder the identification of their provenance or, finally, to concur with their utilization.
Besides, the paras, 1, 2 & 3 of Art. 14 of the law No. 269, of 1998, do not result as being revoked, with the consequence that (limited to the crimes sanctioned by Articles 600 bis, para 1 and 600 ter, paras 1, 2 & 3, also when committed in relation to pornographic material: Art. 600, quater and quinquies, of the Criminal Code) the simulated activities there disciplined, still remain allowed; such activities take concrete form in the faculty of proceeding to the simulated purchase of pornographic material and to the relative intermediary activities, and in the faculty of participating in the tourist initiatives, described in the Article 5 of the same law, utilizing covert indications (business addresses, terms of reference) so as to open sites on the internet, to create or manage areas of communication or exchange on the internet or other networks, or to participate in them;
- the simulated actions provided for, to oppose the crimes of terrorism, by Art. 9, para 1, of the law No. 146/2006 (cfr, previously the revoked Art. 4 of the Decree Law, 18th October, 2001, No. 374, converted in law, 15th December, 2001, No. 438): the undercover agents are legitimized, also through a third party, to give refuge and assistance to associates, to purchase, receive, substitute or hide arms, documents, narcotics, goods or things which are object, product, profit or means to commit the crime or otherwise, to hinder the identification of their provenance or to concur with their utilization;
- the simulated actions provided for, in the matter of traffic of human beings (cfr. the crimes of Art. 600 of the Criminal Code to Art. 602 of the Criminal Code) and in the matter of complicity and exploitation of prostitution (Art. 3 of the law, 20th February, 19585, No. 75) by Art. 9, para 1, of the law No. 146 of 2006 (cfr., previously, the revoked Art. 10 of the law, 11th August, 2003, No. 228): the undercover agents are legitimized, also through a third party, to give refuge and assistance to associates, to purchase, receive, substitute or hide arms, documents, narcotics, goods or things which are object, product, profit or means to commit the crime or, otherwise, hinder the identification of their provenance or, finally, to concur with their utilization;
- the simulated actions provided for, in the matter of illegal immigration, to oppose the crimes provided for by Art. 12, paras 3, 3 bis and 3 ter of the legislative Decree, 25th July, 1998, No. 286, relative to the conduct of who carries out direct acts to procure the illegal entry of a foreigner into the State territory, or direct acts to procure the illegal entry into other States, of persons who do not hold citizenship nor have the right of permanent residence, by Art. 9, para 1 of the law No. 146 of 2006 (cfr., previously, the revoked Art. 12, para 3 septies, of the Legislative Decree No. 286 of 1998): the undercover agents are legitimized, also through a third party, to give refuge or assistance to associates, to purchase, receive, substitute or hide arms, documents, narcotics, goods or things which are object, product, profit or means to commit the crime or, otherwise, hinder the identification of their provenance or, finally, to concur with their utilization.
Obviously, added to these hypotheses of simulated actions goes that of Art. 97 of the DPR, No. 309 of 1990, which, as mentioned in the introduction, has not been affected by the normative novum introduced with the Law No. 146 of 2006.
Legitimized to execute simulated operations are: “the officers of the Judicial Police Force of the State Police, the Carabineers Force and the Corp of the Guardia di Finanza, and those belonging to the specialized structures or to the Anti-mafia Investigative Direction” (Art. 9, para 1, letter a), of the Law No. 146 of 2006).
The problem is that of identifying the specialized structures to which, from time to time, it is necessary to refer.
Thus, with regard to the operations finalized to oppose prostitution, juvenile pornography and sexual tourism to the damage of minors, they concern the specialized units “for the repression of sexual crimes or for the safeguard of minors, or those instituted to combat the crimes of the “organized crime” (Art. 14, para, 1, of the Law No. 269 of 1998); while certain specific activities (faculty of utilizing indications of cover, also to activate sites on the network, to create or manage areas of communication or exchange on the internet or other networks, or to participate in them) are reserved to the postal police and telecommunications (Art. 14, para 2, of the Law No. 269 of 1998).
Regarding the operations to combat terrorism, it concerns, instead, for express normative indications, the “investigative bodies of the State Police and the Carabineers Force, specialized in the combat activities against terrorism and subversion, and the Guardia di Finanza Corp, competent in the combat activities against the financing of terrorism, (Art. 9, para 1, letter b, of the Law No. 146, of 2006).
With reference to the operations described in Article 97 of the DPR No. 309, which has not been affected by the Law 146 of 2006, they concern the “anti-drug specialized unit” of the single police forces: (cfr. Art. 97, of the DPR, No. 309, 1990). Relative to the intervention of the executive bodies, it is to be noted that Art. 97 of the DPR, No. 309/90, on the subject of narcotics, provides that the operations are to be executed, always, with the agreement with the D.C.S.A; while, relative to the simulated actions directed to combat the crimes of clandestine immigration (Art. 12, paras 3, 3 bis & 3 ter, of the Legislative Decree, No. 286, of 1998), the necessary agreement with the Central Direction of Immigration, and the Frontier Police is provided for; (Art. 9, para 3 of the Law No. 146, of 2006).
The disputable questions
At this point, it would seem useful to direct our attention to those interpretive problems which seem to be the most delicate – with regard to the trial position of the “instigator agents” may have to appear in trial.
We intend to refer to the “position” that the infiltrator can and must assume, in the legal proceedings and then, in the trial.
We intend to refer, again, to the contents of the deposition of the infiltrator in trial. Both these problems merit examination also with regard to the position of the third party and/or of other sources that the infiltrator avails himself of in the execution of the simulated operations.
Finally, we intend to refer to the delicate problem of the objective limits of efficacy of the exemption from liability.
The position of the infiltrator
With regard to the definition, in legal proceedings, of the position of the officer of the Judicial Police Force who has undertaken several simulated activities which may constitute the subjection to criminal liability, but covered by the special exemption, a meditated consideration of the very essence of the undercover activity allows the Public Prosecutor – once he acknowledges the “crime”, the discovery of which was made possible by the very activity of controlled infiltration – not to proceed against the instigator agent, with the registration of the crime ex-article 335 of the Code of Criminal Procedure and, therefore, to ask the Judge of the preliminary investigations, to dismiss the relative position.
Certainly, such a rigorous solution would be the most suitable to emphasize the Judge’s role of guarantee, but appears, undoubtedly, too penalizing for the police infiltrator operator and, above all, such as to not adequately satisfy the needs connected to the collection of evidence for the prosecution of those responsible for the identified crimes, thanks to the simulated operations. Having to consider, from this aspect, that whereas the scrutiny of the judge is necessary and, therefore, the preventive registration of the police operator in the “Register of acknowledged crimes” (even though with the objective of a rapid and tranquil dismissal of the relative position), it would be – from a technical point of view – impossible to proceed according to the rules of the evidence, bearing in mind that the now consolidated (2)
jurisprudence wants the incompatibility to testify (ratified by Art. 197, letter “a” of the Code of Criminal Procedure) extended also to the investigated.
Therefore, a different solution is preferable.
As regards this, it must start from a shared affirmation contained in a ruling by the Constitutional Court Justice (3)
, according to which the officer of the Judicial Police Force, who proceeds legitimately to the simulated purchase, within the limits of lawful applicability of the cause of justification provided for by Art.51 of the Criminal Code (and, a fortiori
, in respect of the procedure of Art. 97 of the DPR. No. 309/90), cannot be subjected to preliminary investigations (4)
The ruling confirms the absence of liability for the simulated purchase of drugs; which case is, however, extendable to all the different cases of simulated actions, also different from the one examined by the Supreme Appeal Court because the applicable principles are consistently the same.
So, logically developing what has been elucidated by the Supreme Court of Appeal, it seems possible to sustain that it is the Public Prosecutor who can and must evaluate the conduct of the police operator and, if he concludes for the absence of liability (that is to say, if the case in examination is contemplated by the rules that provide for the different hypotheses of simulated actions or of those which, according to the consolidated construction of jurisprudence, allow the application of the cause of justification provided for by Art. 51 of the Criminal Code), it is excluded, together with the possibility of subjecting the operator to preliminary investigations, the registration in the Register of indictments; obtaining, also, the non-necessity of a formal measure for the shelving of the relative position.
The proposed solution attributes, clearly, a considerable evaluation power to the Public Prosecutor, since it must be him – assuming all the responsibilities – who will examine the course of the simulated operation, so as to verify, in reality, the total respect of the procedure (extremely rigorous) dictated by the normative previsions which discipline the hypotheses of simulated actions, or, however, the recurrence of the common “absence of liability” of Art. 51, of the Criminal Code.
In the case in which the verification concludes positively, the Public Prosecutor can and must omit the registration of the infiltrator in the Register of the information of the crime, upon the observance of the ascertained presence of a cause of justification. Actually, the fact for which absence of liability is declared, even though abstractly conforming to a “crime” (the one permitted, each time, by the provisions that discipline the simulated actions: for example, the case provided for by the Art. 73 of the DPR, No. 309/90 in the case of undercover activity ex-Art. 97 of the DPR, No. 309/90), for the very reason of the presence of the cause of justification (the special one provided for by the above mentioned provisions or by the general sanction of the Criminal Code), is devoid of the “anti-juridical aspect” (the subjective intention to violate the law) and becomes juridically lawful.
In essence, it is by reason of the lawfulness of the conduct, determined by the ascertained presence of the absence of liability, which finishes with excluding the existence of a notitia criminis that obliges the Public Prosecutor to proceed to the registration provided for by the Art. 335, of the Code of Criminal Procedure.
And since no criminal procedure ensues against the infiltrator, no normative obstacle subsists as to the possibility of interrogating him as “person informed on the facts” and/or “witness” in the criminal procedure established to investigate the simulated operation (5)
Instead, in the case where the verification concludes negatively (or also in the case of doubt concerning the existence of the above mentioned causes of absence of liability, the Public Prosecutor must proceed with the registration.
In this eventuality, where the outcome of the preliminary investigation leads to the exclusion of criminal responsibility with regard to the infiltrator (because, for example, it is decided to apply the cause of absence of liability provided for by Art. 51 of the Criminal Code, whereas, on a first examination, it was considered not applicable, the Public Prosecutor must forward to the Judge of the preliminary investigation a request for the dismissal of the position of the infiltrator; in this case, besides, since the infiltrator has assumed the quality of ‘one investigated’, even in the presence of a provision for dismissal of the case, the Public Prosecutor cannot proceed to interrogate him in quality of a person who is informed on the facts and/or witness; rather, a norm of the combined provision of the Articles, 61,197 and 210 of the Code of Criminal Procedure, these, insofar as investigated for a crime connected with the one for which proceedings are in course, it must be understood with the assistance of a defending counsel (6)
From what has been expounded, the fundamental importance emerges for the police operator to act in strict respect of the procedural discipline figured in the authorized rules of the simulated operations: by doing so, in fact, no doubts will arise on the lawfulness of conduct – or, in other words, on the presence of the special cause of absence of liability – and the risk of subjecting the infiltrator to criminal proceedings is excluded.
Conversely, failure to respect the above mentioned procedure does not ex se constitute a legal impediment to the applicability of the cause of absence of liability, which essential terms are not always immediately perceptible; it could in fact happen that the registration of the infiltrator in the Register of acknowledged crimes may actually take place, but finalized to the carrying out of the investigations necessary to clarify the entire affair and to concretely verify the recurrence of the conditions for the declaratory provision of non-liability to punishment.
The testimony of the “infiltrator”
In relation to the “testimony” of the instigator agent, the question about “if, and to what extent, admissible” when its registration in the Register of acknowledged crimes has not taken place (see above), poses certain reflections of considerable practical impact.
The first reflection concerns “the contents” of said testimony. In this regard, we must consider, with the best jurisprudential interpretation, that the instigator agent can give evidence in the trial, also on the declarations given by the defendant, invalidating, in this case, the provision of Art. No. 62 of the Code of Criminal Procedure, (which prohibits, by law, the testimony on the declarations given by the accused);
in fact, the instigator agent does not act in his specific function as officer of the Judicial Police Force with its certifying and authoritative powers, but only as a subject who participated in the action (up to the limit of a simulated and discriminate co-participation in the crime) (7)
The same conclusion must be reached with regard to the admissibility of the testimony on the contents of the declarations received, in the course of the operations, from third parties, different from the defendant. The provision of Art. 195, para 4, of the Code of Criminal Procedure, does not impede this solution: the provision, prohibiting the indirect testimony of the officers and agents of the Judicial Police Force on the contents of the declarations from third parties refers to the declarations
acquired from witnesses as provided for by Articles 351 and 357, para, 2, letter a) and b), of the Code of Criminal Procedure. In fact, within these declarations fall, both the declarations which were collected and documented in application of said regulations, and those collected by the Judicial Police Force without the compilation of the relative statement, in this way, evading the methods of acquisition prescribed by the same regulations (8)
; but, certainly, this does not apply to the declarations that were given by third parties and received outside the bounds of a specific procedural context of acquisition, in an exceptional operative situation or of extreme emergency and, therefore, outside the bounds of a dialogue between witnesses and officers or agents of the Judicial Police Force, each one in their own capacity (9)
This last hypothesis is what interests here, for the absorbing consideration that the infiltrator, in the moment that he comes to know of such declarations, apart from not acting in his specific function of officer of the Judicial Police Force, he finds himself in a temporal-space context ex se impeding the possibility of acquiring the declarations with the typical forms of written statements.
The second reflection concerns the lack, in the normative provisions, of mechanisms of “protected and reserved collection” of the testimony of the infiltrator agent, not even being granted recourse to “fictitious names and address”, at the moment of identification of the witness. This is a problem which renders an intervention of the legislator impossible to postpone.
The involvement of a “third party” or of an “auxiliary”
Undoubtedly, good work has been done by the legislator, in the different hypotheses of simulated actions mentioned, to legitimize the use, in the infiltration operation, of a “third party” different from the Judicial Police Officer, invested directly by the infiltration operation, and/or of an “auxiliary”.
It is a choice that merits agreement because it facilitates the carrying out of the different infiltration operations and, in the meantime, avoids the risk for the subjects called to participate ad adiuvandum
in the operations, to be held criminally responsible for the completed activities. Also for these subjects the above developed considerations concerning their identity and function in trial proceedings, should be re-proposed. With the consequent effect on the possibility of admitting the testimony into the trial in quality of witness, if and when it is necessary (the only exception is represented by the provision of Art. 203 of the Code of Criminal Procedure: in the case where an informer is involved in the operation, it is possible in this way, to avoid the involvement of such a person in the trial, maintaining reserve on the person’s personal information).
To fully understand the operative valence of the authoritative discipline of the utilization of third parties or auxiliaries, it is necessary to clarify what differences exist between the third party and the auxiliary.
The notion of ‘third person’ is correlated, in our opinion, to the “direct” carrying-out of the activities that constitute the proprium
of the simulated activity and which, if they were not specifically covered by the absence of liability cause, would constitute a crime. For example, in the undercover activities,( ex-Art. 97 of the DPR No. 309/90), they concern the simulated activities of the purchase of drugs and of the other premonitory and instrumental activities (typical: receiving, substitution or hiding of drugs; or atypical: those different from the typical ones, which are closely connected with the execution of the infiltration operations).
The “third party” can certainly be an agent or an officer of the Judicial Police, called to assist the “infiltrated officer”, but he can also certainly be a private citizen (in particular, a police informer or a “collaborator” placed in the infiltration association, etc.).
The notion of “auxiliary” is differentiated from the “third party”, principally (but not only: see infra) from the aspect of the activity which the person is called upon to undertake: included in these activities are all the activities of co-operation ab externo
with the infiltrator, finalized toward the successful outcome of the operation, in this, it is different from the “direct” involvement which is realized through the accomplishment of one of the typical activities rendered not subject to criminal liability by the provisions regulating the simulated operations.
From the subjective viewpoint, the term “auxiliary”, although usually referring, stricto sensu
, to the people of “specific technical abilities” called to furnish these abilities to the Judicial Police, (ref. Art. 348, para 4, of the Code of Criminal Procedure), in the matter under discussion, it cannot be understood in any other meaning than “not – technical and extensive” (in a technical and strict sense it would not have any
operational relevance): in such a way to be able to include anyone, not belonging to the Police Forces, who is called to “help out” the police operator in the execution of the infiltration operations, without being directly involved, like the third party, in the performance of the previously described activities for which absence of liability is provided.
Therefore, included in the notion of “auxiliary”, are all the “private” people who can be called upon to assist the forces of law and order in the infiltration operations (not only informers and state witnesses, but also those who are called simply to carry out general tasks of support and technical cooperation: fictitious ownership names on apartments or auto vehicles; informatics experts called to cooperate the operations of access into the network or in the informatics apparatus pertinent to the investigated person; toxicology experts charged with carrying out immediate technical verifications on the “negotiated” substances, etc.). Where they are “directly” involved in the execution of the operation, through the undertaking of the typical activities covered by the exemption from liability, these subjects will be acting as “third parties” and not as general auxiliaries.
Obviously, not included in the notion of “auxiliary”, are the police operators who, from the outside, act as support to the “infiltrator”, precisely for the lack of the assumption of the “extraneousness” compared to the police force; a concept which is inscribed in the very nature of the notion under discussion.
The operative consequences
The authoritative discipline of the utilization, in the infiltration operations, of the third person and auxiliaries, implements the possibility of a direct utilization, in such operations, of officers or agents of the Judicial Police different from the “infiltrator” officer, as well as the possibility of involvement, in different ways, of private citizens (such as “third parties” in the direct accomplishment of the activities covered by the absence of liability cause, such as general auxiliaries).
With regard to the first situation, it is of particular importance, the fact that, today, also simple agents of the CIS belonging to the operative structures under which jurisdiction and the execution of the single infiltration activities lies, can be directly utilized in the simulated activities; and likewise, also officers and agents of the CIS not belonging to the said specialized structures can be utilized, if and in the event this manifests itself to be useful and advantageous, due to the particular knowledge that these people possess concerning the criminal phenomenon or the involved subjects.
With regard to the second situation, in absence of an explicit “authorizing” provision contained in the normative discipline, the role of the “private” (informer, collaborator, etc.) in the operations under discussion would be strongly limited and, in practice, it would narrow down to the placing of an undercover agent within a criminal organization, who would then, by himself, have to conclude the simulated operation. Certainly, it would be an unreasonable limitation, being strongly restrictive in the carrying out of the infiltration activity, when it could be more efficiently undertaken and successfully achieved through the direct activity of a “state witness” infiltrated in a criminal organization from which he had secretly disassociated himself and, therefore, knows the components and ways of behaviour very well.
The names of the infiltrator and the third parties
The normative discipline (ref: Art. 97, para 3, of the DPT, No. 309/90, for the undercover activities regarding drugs, and Art. 9 of the law, No. 146 of 2006, for the other hypotheses of undercover operations), provides for, with certain unimportant differences, the communication to the judicial authorities (ergo, the Public Prosecutor), “if necessary or if requested”, of the name of the officer of the Judicial Police responsible for the operation, as well as, the names of eventual third parties employed.
The “if necessary” refers to a determination in the sense assumed by the operators of the Judicial Police Force: the typical hypothesis is to recognize the need to represent the name of those who had participated in the operations to avoid the risk that the judicial authorities, not informed of the roles assumed, could incriminate these same as co-participants in the sub iudice
The “if requested” refers, obviously, to a solicitation in the sense advanced by the Public Prosecutor to the Judicial Police Force. The request for information by the Public Prosecutor could present problems in the presence of the eventual need to wish to guarantee privacy of personal data.
An initial problem could present itself in reference to the name of the “third party”, in the event that he is an informer of the Judicial Police. We maintain that a solution can be found by recalling the (negative) content of the provision of Art. 203, of the Code of Criminal Procedure, in which the Judicial Police has the faculty of not revealing the names of informers.
A second problem could present itself with regard to the name of the officer of the Judicial Police responsible for the operation, in the case that, by entering the relative name in the Acts, the possibility of using the person for future operations would be “burnt” (not to mention the necessity of ensuring the personal safety of the officer). The solution is to be found in the sensitiveness of the Examining Magistrate, who, where not really necessary, should abstain from making the request, which, however, where formulated, unlike the one having as object the name of the informer, could not but find satisfaction.
The objective ambit of impunity
A last consideration of immediate importance in the trial proceedings presents itself with regard to the delicate problem of the limits of impunity provided for the activities of the infiltrator and of the third parties called to be his auxiliaries.
The consideration is only too obvious that the limits that cannot be exceeded in any way, are those of the abstractly illicit activities which are precisely allowed by the different normative cases of undercover operations:. Otherwise, the infiltrator or the third party who exceed these limits will be punished by law. The only possible exception is the one in which the absence of liability, due the “state of necessity” (Art. 54 of the Criminal Code) is recognized: in other words, a situation in which it is demonstrated that the infiltrator was forced into committing such crimes, left with no other solutions (apart from interrupting the activity or, even, calling for the intervention of undercover personnel from the outside) so as not to be revealed to the members of the criminal association, with its consequent risks to personal safety.
Such risks, united to the other presuppositions of the absence of liability due to state of necessity (awareness of the danger to personal safety, the inevitability of the danger, proportion between the danger and the criminal fact committed), are the essential conditions to consider the criminal activities not punishable, not instrumentally connected with the simulated operation, and which the operator could have been “forced” to commit.
In such a perspective, the preferred option for the operator who finds himself forced to commit crimes in order to proceed with his own activity and not reveal his identity, should be that of detaching himself or of interrupting the infiltration activity or of letting the undercover personnel intervene, when the investigative outcome has, in fact, begun to show adequate evidence against the associates. Only as a last extreme, when the first preference is not materially advisable, for fear of a concrete risk to personal safety, the operator could then decide to commit the crime, however, always respecting the aforementioned presuppositions of the absence of liability provided for in Art. 54, of the Criminal Code.