The morphological framework of the Mafioso associations is, as we know, described in the text of Art. 416 bis Criminal Code and the disposition takes care to enumerate in detail also what the final purposes are of such organized groups.
The Legislator of 1982, only a few hours after the assassination of the Prefect of Palermo, did not shirk from the clear terminological definition, which has rendered the Mafioso association, to all effects, a unicum in the panorama of criminal conspiracy: “the association is of the mafia kind when those who are part of same make use of the force of intimidation of the associative bond (and of the condition of subjugation and of the code of silence which derives there from), to commit crimes, acquire in a direct or indirect way, the management or, however, the control of economic activities, concessions, authorizations, contracts and public services or to realize profit or unjust advantages for themselves or others”. Ten years later, a few days after the massacre of Capaci and some months from the killing of Salvo Lima, the following was added, ”… or to impede or obstruct the free exercise of the vote, or to procure votes for themselves or others in occasion of electoral consultations”.
With time, numerous and authoritative analyses have probed the legal importance of what was specified in Art. 416 bis and have clarified even the smallest sociological implications of the mafia method. To recall to mind such structure of thinking is indispensable in providing a durable framework for the development of the following considerations, which simply intend to verify whether the struggle between the Mafia organizations and the Institutional structures encroaches also on the unstable ground of “information”. If it happens that the groups ex Art. 416 bis act on the supply of information acquired from subjects close to or within the ambits of politics, economy and the Institutions in general – all things considered, it seems an irrelevant question – it is a fact also shared by the judicial experience and even perceived by common social feeling.
The evolution of the Mafia associations, above all the Sicilian ones, show how, with time, they have realized authentic, sophisticated intelligence structures, purposely designed to infiltrate the repressive apparatuses of the State, in order to obtain a continual flow of useful information. It is an advanced organizational stage, which presents a quid pluris to the historic activity of insider trading realized by the Mafia organizations in equally vital sectors of the civil society. Complex operations of infiltration and control of the sectors of the public contracts require privileged information which the top people of the criminal structure must secure quickly in order to be able to structure the presence of the mafia group.
Unlike what has happened in the past, the more experienced clans no longer wait for the opening of a competition for tender to prepare activities addressed to the perception of illicit profits – in an almost parasitically way – but count on knowing years beforehand, the destination of the public resources towards a certain sector or in the direction of a certain territory, for the preparation – perhaps in the peaceful regions of Northern Italy – of the human and technical resources (firms, enterprises, share holdings, SOA certifications etc.,) to pour back into the markets of the South, controlled from above by even higher positions. Actually, it is an informative requirement, always on the rise and which, more and more, involves the kind of mafia clans which are pushed by the need to shift the weight of the territorial hegemony from the management side to the control side, both included in Art. 416 bis: “to acquire in a direct or indirect way or, however, the control of economic activities, concessions, authorizations, contracts and public services”.
At this juncture the gradient of deterrence which applies to the different mafia groups must be measured. It is necessary, therefore, to distinguish between clans that are able to establish and conserve vital informative links with important segments of the civil society and Institutions, and vicarious organizations that situate themselves “downstream” of that informative patrimony to obtain any eventual lucrative spin-offs. It is indispensable for a mafia family of high prestige to dispose of information regarding the strategic sectors of the control and of the criminal management and, at the same time, be able to neutralize the counter-activity of the State through specifically targeted infiltration aimed at revealing the development of the investigations, their means and their objectives. There is a clear binary structure of activity of the mafia intelligence: on the one side, oriented to support and direct the criminal hegemony and, on the other, to furnish protection against the judiciary undertakings and activities.
The more the State action has pursued innovative paths in the repression of the mafia groups (police co-operators, line-tapping etc.,) the more the need to penetrate the investigative structures has grown, in order to obtain suitable knowledge to divert, contain or damage the investigations.
The image is recurrent in literature and cinema of the old mafia boss who administers his criminal power by using accommodating “moles”; from this angle, any reasoning would have the value of a mere reconnaissance on the practices of the mafia, able – at the most – to bring the iconography up to date.
What is pressing to explore, instead, is whether the criminal system of acquiring privileged information presents vulnerability and whether the Legislator has assumed the burden of creating a normative perimeter adequate to impede the acquisition of information (rectius: espionage) which is systematically implemented by the mafias with regard to the civil society and the Institutions. The consideration tends to assume the shape of a legal framework, which seems opportune to develop, so as to eventually let each conclusion flow back to the area of best practices, which should finally be submitted to the operators and the counter-action agencies for their evaluation.

Mafia insider-trading

Naturally, the above expression does not aspire to a semantic precision: it seems more like a conceptual container. In other words, an effective way to focus attention on certain characteristics of the mafia acquisition of information. The indispensable information for the group must be furnished by an insider, who is able to obtain the information in a fairly easy and continuative fashion. This does not mean occasional incursions, but rather, a systematic operation of intelligence directed to the inside of each structure that holds the useful information. Matrices and characteristics of this activity are no different from other political or military systems (1) . The subjects assume analogous behaviour. There is a boss/final customer (who is the ultimate collector of the information) and a network of more or less efficient agents. Obviously, the rating of the structure is directly proportionate to the level of informer infiltration and to the importance of the illegally obtained information.
Certainly, the jurisprudential elaboration that has supported the consolidation of the crime described as “external association in criminal syndicate” appears able to punish activities of this kind wherever they have been realized and for the consequence of their instrumentality to the objectives of the organization. On the contrary, the coordinates of legitimacy drawn by the jurisprudence allow the punishing also of informative activities which, although not destined to an immediate operative project of the organization, are however, able to reinforce its prestige and criminal deterrence (2) . Such is the importance, in this case, of the contribution that the extraneus (the external associated member of the criminal syndicate) causes to the mafia association, as to render lawful the hypothesis of a so-called criminal liability by position (3) , directly deriving, that is, from the violation of the obligations of privacy and loyalty connected to the role covered in the infiltrated Institution, combined with the traditio of the information to the mafia association.
We find ourselves, all things considered, within the area of a qualifying perimeter without any particular criticality and with respect to which the stabilization of the interpretive framework provides altogether the investigative operators with sufficiently flexible repressive instruments.
Other criminal-law provisions, as we know, contribute to delineate the protection that the legal system provides for the safeguard of the correct functioning of the informative circuits: from the regulations concerning the secret of office, to those regarding the protection of privacy and arriving at the defence of the financial markets, there is a consolidated corpus of regulations predisposed to prohibit the illegal obtainment or utilization of classified information.
The aggravation introduced by the Art. 7. of the decree law 152/91 («For crimes punishable by sentences different from life imprisonment

committed by availing oneself of the conditions provided for by Art. 416 bis of the Criminal Code, or rather with the objective of facilitating the activities of the associations provided by the same article, the punishment is increased from a third to a half») offers the possibility of including each one of the crimes in question into the circuit of the mafia activities and this, notwithstanding the “position” of the subject agent and of his role of participation, or not, in the association (4) . In other words, the cited Art. 7, works as a multiplier of the legally provided criminal offences, constituting beside each “common” crime a specular and symmetric “Mafioso” variant, which has the peculiarity of affecting the structure of the single criminal offences in relation to the quomodo and to the purpose that oriented the execution of the common crime.

Photo Ansa

There is, therefore, the possibility of using a number of possible indictments which allow, in an appropriate manner, the punishment of each disclosure of secret information which has, as its final user, the mafia association.
For example, the public official who reveals the state or existence of investigations – for any finality whatsoever that may facilitate the activities of the mafia groups to which the public official is considered to be linked – behaves in a way that can be punishable by a number of sanctions related to criminal offences – ranging from “external association with criminal syndicates” to aiding and abetting, to the disclosure of secrets of office, to corruption – among which, it will be the task of the Judge to choose, according to the concrete modalities of the contribution and of the stability of the functional ties with the cosca, eventually ascertained during the course of the trial.
On the contrary, a change in alignment is found in the case in which the cognitive contribution does not derive from the ad phensio of information protected by obligations of secrecy, but from the inopportune disclosure of information which, while not being officially inaccessible to mafia groups, derives from privileged and confidential relations with external subjects, who manage or dispatch sensitive information for the organization. In theory, it could be vital for the cosca to learn the destination that a certain body (ministry, local government office etc.,) intends to indicate for public financing, or learn of the town planning classification that a local authority intends to confer on an area, or of the project elaboration of an expressway layout and so on.
.In fact, the association could be in a condition to influence (availing itself of further contacts or by applying pressure) the governance of such resources and glean obvious advantages.
It is not a question of taking possession of the arcana imperii, but of those which, in the ancient style, were defined the arcana dominationis (5) which represent the internal mechanisms of the highest political decisional echelons that, in a strictly legal sense, are not secret and confidential in themselves, but can be easily appreciated by everyone as extremely relevant from a political or economic point of view.
In these latter cases, the collecting operation of the information not only does not determine immediate risks from the criminal point of view, but furthermore, increases the Mafioso information patrimony of control-data, which is much more alarming than the protection-data.
The local government official who advances information to the ‘ndrina boss on the urban organizational plan of an area, or the allocation of public funds to determinate activities, would find himself in an unstable legal condition, given that not always the state of the probative acquisitions reveal – each time and with a high quality of evidence – the existence of a “membership” or external association with the criminal syndicate, or even a close tie between political echelons and the mafia (6) .
On the contrary, hypothetically, it could be defective in each of these contexts, whereas it could concern only single and episodic contacts in which dangerous exchanges of information on the interna corporis are made, but which are, nevertheless, irrelevant from a legal/criminal point of view. The democratic transparency of decisional procedures cannot impose that segments of the procedure that germinates the deliberation of the public or private authorities (for example, the strategy of union struggle in a building yard or the options of a party in an elective reunion) must have a limited disclosure to the circumscribed ambit of the “authorized workers”.
The sharing of such information with the Mafioso group represents a serious and dangerous violation of the infra moenia loyalty, but it takes place in a “lawless territory” in which it is difficult to find prosecuting instruments. Certainly, Art. 54 of the Constitution sanctions that: “All citizens have the duty to be loyal to the Republic and to observe the Constitution and the laws” (7) and the loyalty evokes an ethical scenario that is incompatible with the insider-trading in favour of the mafia, but it is not a matter of stating a mere moral or political disapprobation, as much as to be able to find a provided for criminal offence to match the misconduct.
It should be carefully noted that the fact that the legal system does not have a neutral attitude with regard to the individual’s duties of loyalty towards the community, or the public institutions to which he belongs, is confirmed by a swarm of regulations which transversally intersect the very valuable issue of loyalty: for example see Art. 2105 of the Civil Code: «The work employee must not make business for himself or on account of third parties, in competition with the business that employs him/her, neither must he/she divulge information concerning the organization or methods of production of the business, nor make use of same in such a way as to cause harm to the business» (8) .
I wish to point out, nevertheless, that the treatment of the information within such social groups, if channelled towards criminal groups, does not always constitute reason for the application of a criminal sanction, but it could give rise to censorship of the disciplinary kind (see the position of certain entrepreneurial associations on the subject of the mafia-business contiguity).
Actually, certain orientation criteria can be drawn from the legislation of Reform of the Information Services. The Article 17, para 5 of the Law 124/2004 prescribes that «The types of conduct listed in para 1 (namely, the ones covered by the privilege of the operational guarantees) are not admitted in the seats of political parties represented in Parliament, in a regional assembly or council, in the seats of trade union organizations, or rather, cannot be aimed at or involve professional, registered journalists»
And the following Art. 21, para 11, clearly specifies that: «in no case, not even occasionally, can the DIS and the Security Information Services have as their employees or employ as co-operators or as consultants, members of the European Parliament, of the national Parliament or Government, regional, provincial or communal councillors or members of the respective councils, dependents of the Constitutional bodies, judges, ministers of any religious denomination and professional journalist or publicists».
As one can see, the system, in a particularly sensitive matter for the reiterations between information and obligations of secrecy, has intended to trace an impassable perimeter for the very subjects who are institutionally in charge of the acquisition of information and data useful to the security of the Republic, excluding that places and public or private functions suffer intrusions or co-operation from which could derive the cessation of information in violation of duties of secrecy or of mere discretion.
It is a hortus conclusus which, obviously, must consider itself to be safe from informative incursions carried out by the mafia organizations.
In this respect the Law No. 124/2007 brings a new element: the protection does not concern the information in itself, but concerns its source. It is not important that the acquired information is more or less secret or confidential because it is the inaccessibility of the places where the information is stored that is taken into consideration, together with the impossibility of approaching those who protect this information. To imagine the informative intrusions of the mafia association from this angle is equivalent to recognizing, however, that we are talking about activities contra ius, which give rise to «unfair advantages» – according to the open clause taken from Art. 416, para .3. Criminal Code – and determine the perpetration of the associative crime a latere accipientis.
Otherwise stated: the injustice of the advantage is derived from the reference to the internal prescription of the institution to which it belongs (example: the sole text of the civil employees of the State or the professional code of ethics) also of a disciplinary nature only, which sanctions the violation of the obligations of loyalty and right to privacy and, more generally, such injustice can be also traced in the Law 124/2007, which offers important objective and subjective indications. If this allows the incrimination of the participants in the association that monitors the informative interference ab intra ad extra, the juridical condition of the extraneus to the mafia association appears susceptible to be focalized according to other forms and through the means of further possibilities. Let us take into consideration the Art. 240 para 2, Code of Criminal Procedure, a norm as is well-known, interpolated following the approval of the Decree Law 22, September, 2006, No. 259, states: « Urgent regulations for the re-ordering of regulations on the subject of telephone tapping» (9) , mentioning that «The Public Ministry officially establishes the immediate secreting of and custody in a protected place …. Documents formed through the illegal collection of information» (10) .
As can been seen, the regulation takes into consideration an activity of «illegal collection of information» in which the area of the juridical value loss does not coincide with that governed by specific incriminatory regulations of criminal law. In other words, there exists an evident point of distinction and a clear impossibility of overlapping between the notion of «illegal collection» and that of «illicit collection» and the reference applies to all those regulations of the legislative Decree No. 196/2003 (Code on the privacy) which sanctions any conduct with mere administrative violation (Art. 161 and following), evaluating them illegal, but not stricto sensuillicit.
It is evident that, according to general feeling, the idea of an «illegal collection» brings to mind scenarios in which subjects – the major part private, and for needs connected to the carrying out of their own activities – apply themselves to the procurement of information without having any juridical qualification or to the exceeding of the limits of same. The cases in the news that have imposed the government decree of urgency are well known to all and signal sufficiently univocal scenarios. However, although more distant from the alarm context that the Legislator intended to discipline, it could be the case in which the collection is made by mafia organizations, in view of their expansion strategies. On the subject it is worth proposing again the consideration that, even though one is not always in the presence of activities perpetrated through the commission of crimes, in any case the satisfying of information needs shows itself (as well as «unfair advantages»), as that essential component of the mafia method described by Art. 416 bis, above all, when it intends to «acquire in a direct or indirect way, the management or, however, the control of economic activities, concessions, authorizations, contracts, or public services».
It should be carefully noted that it does not concern evoking a further, almost banal, symmetry between the structure of the public order and the mafia structure – a sociological approach surpassed by the evolution of criminal phenomena which, always more, orient offices and public authorities to their own advantage, resulting in a tendency towards double governing of the territory – but of taking note of the vulnerability to this kind of aggression of the system of treatment and management of the information.
It may seem paradoxical, but the debasement of these privileged relations, or rather the attack on the mafia system of the interception of information, vital for the elaboration of the practices of social domain, can be determined only through a complete de-secreting of the decisional procedures.
In this way, for example, only the correct actuation of the regulation of Art. 49 of the Constitution (which legitimates the activities of the political parties, insomuch as they proceed with the democratic method to determine policies and politics) in one with the transparency of the procedure of elaboration of the choices, can alter the mafia influence prefigured by significant regulations of the Italian Juridical Order (11) . All the rules and regulations that govern the transparency of the administrative procedures pursue the further purpose of reducing the contraband of information that sectors of the Public Administration or important social protagonists (businesses, professionals etc.,) share with organized criminality. Ultimately, the moment could be reached when the structures combating the mafia face the most difficult challenge that the cosche (pl. mafia bands) put before them: that of the dispute on the ‘know-how’ of the organization.
To do this it could be sufficient, in the first place, to render the economic, political and social objectives of the mafia evident and transparent; to transform the vital information, jealously acquired and guarded by the criminality, into a shared patrimony in which commercial operations, participants in the interests, shareholders, sub-contractors, entrepreneurial subjects are advised and, as such the information is always verifiable.
A social habitat no longer infected by secrets, by inopportune disclosures, by tip-offs delivered servilely to the boss of the ‘ndrina (mafia group), but a social habitat ordered by the truth, by common awareness, by public transparency in which the arcana dominationis, the rites of a power that prefers the darkness to the light, are dispersed.