It was above all at the end of the Seventies and early Eighties that Parliament realised that the range of crimes committed by Mafia organisations was marked by a particular form of economic productivity: racketeering was being systematically practised against businesses, smuggling was being given up in favour of far more lucrative activities related to the production, trafficking and distribution of drugs, to public contracts and funding was being acquired by intimidation and corruption within the institutions and collusion with political leaders etc.. All this enabled the Mafia to make huge profits and to accumulate wealth of such magnitude to make it more and more threatening, and much more efficient.
As the ferocious struggle broke out between rival gangs, many people were slaughtered and following a shocking series of murders of civil servants and politicians, magistrates and members of the Police forces, Parliament realised that it could no longer put off radical measures to tackle the problem.
It was in those years that the head of the Palermo flying squad Boris Giuliano lost his life, followed by the enquiring magistrate Cesare Terranova; the president of the Sicilian Region Piersanti Mattarella; the Carabinieri Captain Emanuele Basile, Commander of the Monreale Carabinieri Corps; Gaetano Costa Public Prosecutor in Palermo; Pio La Torre, MP and member of the Anti-Mafia Commission who was working on the draft of an innovative Anti-Mafia law.
But the most shocking episode which demonstrated how deeply Mafia organisations were challenging the State, was the murder of the Prefect of Palermo, Carabinieri General Carlo Alberto Dalla Chiesa on the 3rd of September 1982.
Three days later, on the 6th of September 1982, the office of the Anti-Mafia High Commissioner was established to combat organised crime (1) and was vested with powers delegated by the Minister of the Interior to co-ordinate police work, as well as with specific powers to control Mafia's infiltration in the productive system and in the national financial system.
Ten days later, on the 13th of September, the law Rognoni-La Torre (2) was enacted. The law was named after the Minister of the Interior of the day who continued the murdered MP's work and focused on a few vital concepts:
1) Mafia conspiracy was defined as a crime so that it was possible to identify individuals to be prosecuted under the Anti-Mafia legislation as anyone whom "circumstantial evidence" indicated as a member of the Mafia;
2) a whole range of powers were given to the police heads and state attorneys to carry out investigations into wealth and assets in order to be able to trace the real wealth of members of the Mafia and compare it with the income officially declared;
- in addition to the personal prevention measure of the so called "special surveillance", a preventive measure affecting property was also introduced: firstly, the seizure and subsequently the confiscation of any property which might be considered to be the fruit of criminal activities, on the basis of adequate evidence thereof.
The law maker's intention was to strike at the property of individuals, and in one go take away the accumulated wealth stemming from unlawful activities carried out thanks to the Mafia status.
Let us now look at these three fundamental aspects of the 1982 law.
The crime of Mafia conspiracy was specifically introduced in a new article of the Criminal Code, n. 416-bis, which, in paragraph 3, provides for conspiracy of a Mafia type when "its members use the intimidatory force of the bond of membership and the ensuing state of subjection and secrecy for ..." what for? there are two possible answers:
- first of all, "to acquire, directly or indirectly, the management or the control of economic activities, franchises, licences or permits, public contracts or public services";
- or "to commit crimes or to make illicit profit or gains for themselves or for others".
We have deliberately separated the two purposes here in order to emphasise the fact that, in reality, the intentions being pursued by members of a Mafia conspiracy may not all be unlawful in themselves: the first group, namely the acquisition of the management or control of a particular economic activity, or obtaining permits and authorisations, or being awarded public contracts, tenders, etc. may well be part of the normal objectives of a perfectly legal company.
But what makes that objective an offence is the way in which it is pursued, namely through intimidation. The lawful objective becomes unlawful because it is pursued through intimidation.
The central and decisive element of a Mafia-type conspiracy is therefore the intimidating power; otherwise, when the objective is lawful, the conspiracy might appear to be an association of respectable lawabiding citizens.
When the objective is in itself unlawful ("to commit a crime or make illicit profit or gains", as defined above) which implicitly makes the association a criminal conspiracy, it is still its power to intimidate which typifies that conspiracy as a Mafia conspiracy, distinguishing it from common criminal conspiracy, and making the specific provisions of the new Anti-Mafia legislation applicable.
Hence the need for the police to focus on this intimidating character, to reveal the existence of a conspiracy of Mafia type. Sometimes this intimidatory aspect is hard to determine even though it is extremely effective and real, as it appears from the state of subjection in which victims fall.
It should then be recalled that the "entry threshold" for enforcing Anti-Mafia legislation is the fact that sufficient circumstantial evidence exists to demonstrate the Mafia membership of the individual concerned.
The provisions (3) do not apply just to "anyone", but only, under the explicit wording of section 1, to anyone against whom there is "circumstantial evidence indicating membership of a Mafia type conspiracy". In other words, if insufficient circumstantial evidence exists of such membership, the Anti-Mafia legislation cannot be enforced, and the powers it provides for cannot be used.
What this circumstantial evidence is supposed to consist of is a question that has to be answered referring to the technical and legal meaning of the word: Italian law holds that while direct evidence is certain, circumstantial evidence is only probable evidence of the fact indicated; however, even circumstantial evidence can be used to provide certainty about a fact or event and can therefore be used as the basis for a verdict, whenever it is based on safe presuppositions, criteria of causal normality, and is unambiguous, and converges to demonstrate one and the same fact.
In other words, circumstantial evidence is indirect evidence, evidence by logical inference, evidence drawn from critical judgement, evidence based on a reconstruction of the facts, which fully belongs to the system of legal evidence (unlike suspicion, suppositions, conjecture, which have no probatory value whatsoever). So when the Anti-Mafia legislation requires the investigators to find preliminary sufficient circumstantial evidence indicating that the individual in question belongs to a Mafia conspiracy, before enforcing the law and its provisions, it is necessary to demonstrate the membership of the Mafia through concrete, safe and conclusive probatory elements.
Having overcome this difficulty of the "entry threshold" for enforcing the law against the Mafia, a high police officer (questore) and a public prosecutor are vested with a whole range of powers in relation to investigating the property and assets of suspects in order to reconstruct the value of their assets and compare it with those they could have reasonably accumulated through a normal working activity.
More specifically, the law (4) enables a high police officer and a public prosecutor to examine their standard of living, financial assets and other properties and investigate their economic activities in order to seek out sources of income.
In particular, this is to ascertain whether Mafia suspects hold licences, permits, franchises, or are licensed to practise particular professions or are engaged in entrepreneurial or commercial activities, and whether they receive grants, loans, subsidised loans from the government or other public bodies, or from the European Community.
The same enquiries are conducted against their entourage, in other words their spouses, children, and anyone else who has been living with them over the last five years, together with all the natural and legal persons, companies, entities, consortia and associations and partnerships, with which the suspects can avail themselves either directly or indirectly, wholly or partially.
In order to do this, a high police officer and a public prosecutor may request any department of the civil service or government, and any bank or company and bodies of all types, to provide information and copies of documents that may be useful for the purposes of their enquiries.
As you can see, the law sets up a very wide-ranging system of checks, all-embracing and very penetrating, focused on the individual Mafia member. This is to control all sources of income and properties and assets, including anything owned by front men or by using legal means of concealment, so to ensure that all of them were lawfully obtained, with the power to seize any assets found to be the outcome of unlawful activities and in any case all those exceeding the limits of productivity (or to put it more clearly, savings and accumulation) achievable with lawful activities.
The legislator explicitly provided for the court to seize a Mafia member's property, when there is sufficient circumstantial evidence to show that it comes from unlawful activities, specifying that there is sufficient circumstantial evidence "when the value is disproportionate to the declared income or to the economic activity performed" (5) .

And this latter parameter acquires its full probatory significance to show that the wide gap between the property owned and the income lawfully produced is primarily the result of having concealed other sources of income stemming from membership of the Mafia, when it is taken within the context of the whole judicial enquiry to which the individual is subject ed after being charged on the basis of circumstantial evidence of being part of a conspiracy - a Mafia conspiracy in this case - which is characterised by a particular form of economic productivity, whose purposes are spelt out by the law as the acquisition of control over entrepreneurial activities, licences, public contracts, public services, or in making profit or gain unlawfully.
The disproportion between property owned and the low incomes declared are logically explained by the fact that the individual has drawn from concealed sources, income from Mafia activities, so that this parameter itself becomes a normal instrument for critical probatory evidence.
Moreover applying this parameter - namely the disproportion between property and income-earning capacity - has been given the indirect blessing of the Constitutional Court. In a recent judgement it ruled that "a provision which, with the sole purpose of imposing preventive measures infers from the circumstantial evidence that an individual has committed certain types of crimes, that the disproportion between assets owned and income declared may be the result of illegal activities, is not in contrast with the principles of the Constitution" (6) .
In order to do this, however, painstaking investigations have to be carried out at the tax registry, the real estate registry, the national register of shares and securities, court clerk's offices, chambers of commerce, notaries' records, trustee companies, finance companies, securities investment firms, leasing companies, stockbrokers, the public vehicles register, the shipping register, the aeronautical register, etc., but above all the private and public banks, since unlawfully earned wealth always goes through a phase in which it is converted into liquid cash.
However, the mere listing of the sources on which to draw - and still incomplete - to find evidence of possible Mafia investment shows that it is not possible to trace all of the Mafia's wealth systematically: the finance companies, for example, are some 22,000 and it is impossible to send inspectors to each one of them; in the same way, the banking system, which includes the rural, co-operative and mutual banks (Casse Rurali ed Artigianali) total more than 4,000, and it is not feasible to analyse them all. And this applies to all the others, with the result that no investigation can be complete, and cannot at all events cover the whole of Italy for every single instance.
The secret of success within a reasonable time-scale therefore depends on "studying" the person under investigation, following his movements, identifying the banks he uses, the businessmen with whom he deals, etc., on the understanding that however broad his activities might be and however many precautions he may take to keep them secret, his decisions are always made in one particular area.
This means that the police have to find the key to reconstruct the unlawful gains through their own investigations, and not merely notifying banks, companies and public and private bodies with requests from the public prosecutor or the police, particularly since there are now so many possibilities of hiding wealth on the part of those who wish to avoid detection.
The 1982 Anti-Mafia Act, which was so generous in providing powers for the investigating authorities was nevertheless extremely naive by not realising that most of the illegal gains of the Mafia are anonymous, and are kept in numbered and pass-book accounts without apparent holder, and are transferable merely upon instructions, following channels that are very difficult to identify by exercising all these statutory powers.
That mass of anonymously circulating wealth is fuelled by undocumented company funds, sums relating to false invoices, unrecorded revenues, illegal payments made to political parties, the black and grey money belonging to the Mafia, extortioners, corrupters, bribers, embezzlers, receivers, money-lenders, tax evaders, etc., all of them tacitly allied to defend the banking secrecy rule at all costs, and to ensure that everything is done to enable financial resources to circulate anonymously.
In 1991, when the problem of identifying hidden wealth became extremely worrying and urgent, Parliament issued a measure which it emphatically entitled "Urgent measures to limit the use of cash and unregistered securities, and to prevent the financial system from being used for recycling money" (7) but this does not seem to have provided decisive solutions.
This Act prohibits the transfer of cash and unregistered securities whose value exceeds 20 million lire, even though at the present time this has caused serious drawbacks connected with the circulation of passbooks issued prior to the date of that measure, as well as the circulation of unregistered certificates of deposit, on whose value at present no limit exists.
Finally, we should recall that the law has also widely extended the use of the parameter for judging the disproportion between wealth and declared income for the prosecution of ordinary crimes, in order to apply preventive measures against property in order to impound the unlawful fruits of crime earned from a whole range of other crimes which were typically committed by the underworld. For the law provides for any money, goods or profit whose source or origin cannot be justified and which belongs to someone found guilty Mafia conspiracy crimes (i.e. extortion, kidnapping, unlawful money lending, receiving stolen goods, money-laundering and the use of securities acquired illegally, the fraudolent transfer of property, the production and trafficking in drugs and aggravated smuggling) to be seized when it can be shown to be the persons's property, either directly or through a third person be this an individual or a corporate body , which he has free use of and where the property is disproportionate in value to

his own income (8) .
This means that even during investigations when ascertaining the existence of these crimes, it is necessary to reconstruct the assets and property of the accused in order to see whether or not they are consistent with the earning capacity and - in order to prevent them from being fraudulently disposed of, removed or dispersed - they must be seized as a precautionary measure (art. 321 (2) c.p.c.). As we are talking here of ordinary criminal proceedings, in order to define the amount of property and assets, the powers provided for by the legislation on preventive measures cannot be enforced.