To recall the need for an adequate understanding of the reality of the crimes connected with the management of the refuse is an operation which brings to mind the difficult path that preceded the introduction into our criminal system of, first, the crime of criminal conspiracy of a mafia stamp and, second, the trial reforms – organizational and institutional, which were necessary to effectively carry out the punishments decided by the Court.
And, in fact, like the conduct significant of the affiliation to the mafia-type association, for a long time, there was an interpretive difficulty which, even before cultural, denoted the incapacity to perfectly interpret the mafia phenomenon. Therefore, it must be admitted that the illicit management of the refuse is, to a large extent, still unknown to the Bodies delegated to the prevention and suppression of the criminal activities. And this, let it be emphasized, is, above all, due to the impossibility of using, in the present systematic frame, more penetrating investigation instruments and investigative structures professionally equipped to fight these contexts of organized crime.
Particularly significant – in the case in point – is the new law against the organized activities for the illicit traffic of the refuse, introduced, for the first time, into the body of the legislative decree, 5th February, 1997, N°22 of the Law 23 March, 2001.
It concerns a phenomenon – that of the organized traffic of refuse – which drew the attention of the Legislator for its self-proclaimed danger, deriving, first of all, from it sociological complexity; i.e. from the fact of being characterized by an articulated organizational apparatus, finalized to the by-passing of the regulations – and the relative costs – connected to the management of refuse, with consequent profit for all subjects involved.
The introduction of this criminal law represents an important turning point in counteracting the illicit activities in matters of refuse; for the first time, in fact, the operators have been offered the possibility of utilizing a normative prevision which reflects, quite accurately, the phenomenon in its concrete form. With the result of registering an encouraging closing of the gap between the “gain” of the criminality over the repressive bodies: we have seen, in fact, the starting up of an excellent circle of operators, fuelled by the strength of the adoptable measures and by the consequent success of the investigative undertakings.
It has happened, therefore, that the refining of the investigative techniques – made possible also, and above all, by the changed regulations scenario – has clarified even more the organizational dimension of the refuse traffic, it being, in other and clearer terms, an expression of organized crime.Nevertheless, this more mature understanding of the characteristics of the illicit has not led to a coherent remodelling of the systematic framework, with particular reference to the trial discipline and to the need of investigative coordination and management of the information.
Therefore, if, on the one side, the organized traffic of refuse presents a phenomenology ascribable to the category of the manifestations of organized crime, and an even clearer normative structure, dominated, like it is, by the organization as a structural requirement of the conduct, yet it remains totally absent from the enumeration of the cases of crime presumptively held by the Legislator to be symptomatic of organized crime.
All this has involved negative relapses in the defining of adequate strategies of counteraction to the illicit traffic of refuse and, more generally, to the crimes connected to the management of the refuse, this last being centred on the necessity of making the removal of the refuse appear to be the regular modality of refuse disposal, in line with the prescribed regulations.
There are two principal directions we can follow to understand the reason for this systematic sketchiness. The first concerns – as has been mentioned in the introduction – the adequacy or inadequacy of the level of the operators’ knowledge of the phenomenon.
In fact, it must be considered that due to the absence of powers of the investigative coordination, the facts of the crimes often remain the exclusive knowledge of a single attorney’s office (sometimes, of a single public ministry), consequently remaining unanchored – in the perception of the investigators – to the overall criminal context of which, vice versa, it is a significant expression.
In consequence, there follows an absolutely partial vision of criminal phenomenon characterized, vice versa, by an operative dimension which is often national, if not trans-national, and a repressive activity which is normally inadequate in its effectiveness.
The second concerns the level of involvement of all the investigative bodies, the capacity to stimulate useful synergies between them, respecting the professional expertise of each one.
The absence of subjects with powers of coordination and drive, able to gather, analyze and put into circulation the information relative to the individual activities of investigation, deprives the investigative Bodies of that necessary evaluative feedback, which is an indispensable preliminary to directing the investigation activities in the best possible way.
The lack of an operative and informative link-up function causes that the Bodies which have only indirect jurisdiction in the refuse sector (consider, for example, the case of the Port Authorities or the Customs Authorities) remain excluded from the possibility of furnishing important cognitive contributions in nerve centres (such as – remaining with the above mentioned example – that of the maritime and trans-national traffic).
Although of extraordinary use, the data-banks themselves lose the capacity to supply the added value consequent to the interconnection of the data, due to the fact that it remains within the range of exclusive sovereignty of the single Institutions. The overall picture that emerges describes a condition of structural inferiority of the Bodies delegated to counteraction of illicit behaviour. The scene shows in opposition, on the one side, criminal subjects who exploit to the maximum their own organizational structure, modelling it in different ways according to the technical and normative needs and, on the other side, a repressive structure with the most advanced criminal strategies.
It is necessary, therefore – returning to the analogy which was proposed at the beginning with regard to the Mafioso association – to complete a normative course which was profitably set in motion with the introduction of the Law on illicit organized traffic of refuse, including such crime, finally, in the systematic circuit that refers to organized criminality.
Other criminal phenomena, however, have followed in the recent past, the same evolution; one thinks of cigarette smuggling on a organized scale, or the trade in human beings, included with full rights on the list of cases expressive of organized crime – once that their behaviour had exposed, in an evident way, their close connection and, above all, once we had realized that an effective repression could not be entrusted to investigative undertakings which do not have strategic breathing space.



The illegal market of the refuse: principal dynamics

The illegal management of the refuse is, without doubt, a market. It concerns, in fact, a scenario where one meets, normally, a demand for the reduction of the costs connected to the legal disposal of refuse, with an offer, often expression of an organized crime context, able to furnish – usually, in an entrepreneurial form – a service for one price ‘everything included’, in such a way as to relieve the customer of all fulfilments connected to the disposal of the refuse, at costs which are notably inferior to those requested in compliance with the prescribed regulations.
It is, therefore, a criminality of profit, tendentially to membership support; it is not, nevertheless, unfailing that it must present the character of the mafia organization, it could also merely be a criminal enterprise.
The fact remains, however, that, principally for the management of special refuse and that of useful replacement or recycling on the international market, the contribution of a subject who knows how to combine control of the territory and knowledge of the circuits tied to the international illicit traffic is indispensable.
In fact, the intervention of organized criminal structures was urged, as a way of saying, by such type of illicit demand. And the level of the organizational complexity of the responses of the traditional criminal associations was extremely variegated, having to register – beside offers of notable entrepreneurial refinement (typical, for example, of the so-called Casale Clan, active in the Caserta territory, and not only there) – other more rudimentary offers, essentially founded on intermediation activities.
And yet, where an offer deriving from organized crime circuits was registered, that offer met with interesting cases of joint ventures between delinquent organizations, like a typology of relations which has characterized other illicit markets. Summarizing the spectrum of the different levels of interaction, cases of the following kind were observed:
- outsourcing, consisting in the assignment of determinate activities connected to the management of refuse to local criminal organizations, able to control the territory;
or brokerage, represented by the mere offer of intermediation;
- or agreements of cooperation, which is the most frequent substance of the nexus, of the connection between criminal organizations.
To this, a further very important item of information must be added, with particular reference to the trans-national traffic of refuse represented by the progressive extension of areas outside of State control, and their use as final destinations of toxic and dangerous refuse.
There are two types of areas involved in this phenomenon:
the so-called non-State or weak State areas – above all, border territories – characterized by a weak or, more or less, non-presence of State apparatuses;
the areas of the so-called failed or failing States – States which have experienced or are experiencing extensive processes of dissolution of their capacity of government on the territory, the areas of conflict or post-conflict.
We have said that the illicit handling of the refuse is a market. And, if it is a market, it is effected by the fluctuations of the economic circuits. Therefore, it becomes important for the same comprehension of the flows and directions of the trans-national traffic of the refuse, to know the changes in course in the principal expanding economies, with particular reference to the structuration of the demand, to the typology of raw materials utilized, to the needs of the principal productive cycles.The acquisition of these items makes certain data intelligible. For example, information furnished by the Customs Agencies referring to the exportation and importation flows of certain types of refuse.
In 2007, in particular, 852 tons of refuse was seized; of this, polyethylene represented 2%; paper 3%; rags 5%; iron and steel 13% and plastic, a good 70%.
The majority of the seizures were made on the exportation consignments to Third World Countries (90% of the quantity seized), which travels, principally, by sea, in containers(a good 75% of the consignments).
And now, finally, to the Countries of destination. HONG KONG receives almost 80% of the exportation, followed – at a great distance – by TUNISIA 6%; SENEGAL 3%; PAKISTAN 4%; CHINA 2%.
This means we are in front of a picture that significantly describes how the criminal offer knows how to make itself extremely elastic, pandering to the trends of the principal economic circuits.
And it is in this way that certain phenomena, previously incomprehensible – for example, the movement of refuse from economically depressed areas to industrially advanced ones – are, in reality, phenomena coherent in relation to the determinate needs of specific productive cycles.
Finally, there is a variable which cannot be neglected. The way in which any market, also that of refuse, influences the choices of the Public Administration.
The recent experience of Campania demonstrated how much, decisions relative to the following, are effected:
how was the cycle of refuse closed and, before this, if, in fact, the cycle of refuse is closed;
what new refuse handling installations have been chosen;
what managerial structure has been preferred;
In particular, it has been seen how the choices of the Public Administration to turn to the dumping grounds has had notable effects on the economy of the criminal organizations – and this due to the capacity of the mafia-type associations of ensuring a diffused control over the territory – in the moving of the refuse – and this due to the traditional hegemony of the clans over the transport business ( rapidly restructured to this more lucrative activity from that of the traditional earth removing activity); or finally, how the P.A. has had to turn to mixed companies (public/private partnerships, costly instruments used to acquire electoral support from the public partner and convenient occasions of profit for the private one, protected from the risks of the competition and of the free market.


The trans-national dimension of the refuse market:
the cooperation of the Judiciary and the Police

We have already mentioned the trans-national dimension assumed by the illicit market of refuse.
Aware of this and, therefore, the necessity of moving in a direction that goes beyond the national frontiers (also for the natural trans-national effects of determinate environmental crimes), the European Community has made the protection of the environment a primary interest, so much as to take it into consideration, with all its imperative needs, in all the other sectors of intervention of the Community Bodies. Attributing to environmental protection, particularly to correct management of industrial wastes, a position of ever increasing centrality in the Community policies, the European Union has called the Member States to adopt a strategic approach to environmental matters.
In this regard, particular prominence is given to the protection of the environment through the criminal law, not only in terms of incriminatory cases (as testified by the Directive 2008/99/CE of the European Parliament and Council of 19th November, 2008, on the criminal protection of the environment), but also as a necessity of extending an homogenous protection to all the European territory, in consideration of the character and trans-national effects of the aggressions on the environment.
Nevertheless, in this extremely complex picture, a positive element must be noted, represented by the progressive forming of the mechanisms of investigative cooperation to confront the needs of prevention and counteraction to the crimes in environmental matters.
The decisive contribution in this direction by Interpol merits special mention. For some time, it has promoted an intense activity of cooperation between the Police Bodies assigned to opposing and repressing environmental crimes.
Alongside periodic activities of formation, Interpol has developed a system of cooperation, also and above all, of an informal character, able to give an immediate exchange of information between investigative operators of the States involved in trans-national environmental crimes.
More specifically, through the so-called “eco-message”, Interpol is able, not only to put into immediate communication all the Police Forces concerned, but also to supply to each investigative body a precious informative feedback deriving from the fact that the message enters a data bank where same is enriched with connections and important link-ups.
Besides this, Interpol, as well as coordinating the exchanges between all the main international Police Forces, it is in operative communication with other bodies of regional investigative cooperation.
Among these last, the Balkan area and Southeast Europe need to be mentioned for their investigative importance and where the SECI Centre (Southeast European Cooperative Initiative, created in 1995) operates. It receives the Police Forces (and through the connection with the SEEPAG, the Southeast European Prosecutors Advisory Group, the Judicial Authorities of the following States: Albania, Bosnia-Herzegovina, Croatia, Bulgaria, Greece, Macedonia, Moldova, Romania, Serbia, Hungary, Slovenia and Turkey). Another significant operative link is that which ties Interpol to the so-called Seaport-project. Created in 2002 in the ambit of IMPEL (theEuropean Union Network for the Implementation and Enforcement of Environmental Law, an informal network between the environmental authorities of the European Union for Italy, the APAT participates), the Seaport project connects up the inspection bodies of the Police with specific jurisdiction in the maritime port areas, for the purpose of – through combined investigative activities countering the phenomenon of the so-called port shopping. This consists in the search by the companies and the criminal organizations of the easiest port routes to elude the controls and thus violate the European regulations, with particular reference to the refuse traffic by sea.
As far as the more specific mechanisms of judicial cooperation is concerned, we must mention that Eurojust has provided for the institution of specific working groups dedicated to environmental matters, launching the first experiences of judicial cooperation.
In addition, it is not without significance, to emphasize how, through the connections that Eurojust has with other international bodies of judicial and police cooperation (in primis, OLAF and Interpol) as well as thanks to the analyses of the flows of information done by Europol, a request of judicial assistance which passes through Eurojust is able to activate and draw on a network of subjects able, by now, to cover the entire globe.
If this is the scenario, also in our Country, it is essential to give, as soon as possible, expression to those necessary systematic interventions – which need to both introduce new principles and to reform the procedures – able to confer coherence and, finally, a long term vision to those strategic plans, which the criminal enterprises and organized crime would like to remain disrupted.