The Dissolution of Municipal Councils due to Organized Crime Infiltration

Introduction

The dissolution of municipal councils due to organized crime infiltration represents a unique instrument in the Italian legal system to combat and prevent serious criminal infiltration into municipalities. Criminal infiltration within local governments of Italian municipalities seriously undermines the basic principles of democracy, has a negative impact on the public sector and the economic system, and heavily compromises citizens’ rights and freedoms. Studies also show that there is a direct connection between infiltrated local governments and the allocation of public resources and revenue collection on a local level (Di Cataldo and Mastrorocco, 2019). Moreover, collusion between organized crime and politicians violates the constitutional principles of the rule of law, of impartiality and best practice in public administration, as provided for in Article 97 of the Italian Constitution (Rolli, 2013). This justifies the enforcement of this legal tool regulated in Article 143 T.U.E.L., which aims to restore the proper functioning of the decentralized levels of government although it is a very severe legal tool as it causes the suspension of normal democratic practices by completely demolishing the entire political body of the community that elected it,  heavily  affecting the citizens’ right to choose political representation through election. The reason criminal organizations are so interested in local governments is “control of the territory” which is one of the mafia’s traditional activities. Indeed, organized criminal groups have a great ability to gain control over the territory and local public administration (Mete, 2009). This kind of control is carried out mainly by corrupting local politicians who will, in return, influence decision-making, therefore collusion with local authorities is functional to various illicit purposes: awarding public contracts, urban development speculation, money laundering, waste management, and so forth. Signing public contracts with municipalities may be also a useful opportunity for criminals to appear as fictitious businessmen. For example, the construction of public infrastructure which offers job opportunities to the population will allow the criminal group to achieve social respectability, and social consensus is essential to carry out illicit activities virtually undisturbed (Angelosanto and Rivola, 2011). Therefore, according to the Parliamentary Committee of Inquiry into Mafia-related and other criminal organizations (2018) the strength of criminal organizations nowadays, lies not least in the powerful support which they receive from those sectors “that owe their wealth or survival to the economic activities that flourish around organized crime” (p. 24).¹

More recently, investigations have revealed that criminal infiltration occurs not only in the southern regions, specifically Sicily, Calabria, Campania and Apulia² where Italian organized crime groups traditionally have influence and are well rooted within the socio-cultural and political context, but also in non-traditional regions in northern Italy, precisely Lombardy, Piedmont, Emilia-Romagna and Liguria.

At this point, it is appropriate to note that the subject of the dissolution of local governments due to the infiltration of organized crime is currently an extremely relevant problem throughout Italy and is often at the centre of public debate, and hence in December 2018 amendments were made to national legislation regarding this legal instrument which will be analysed below.

The obvious relevance and topicality of this issue also emerges from the data processed by Avviso Pubblico, an antimafia association which brings together local authorities and regions focusing on promoting awareness of legality and combatting organized crime (Avviso Pubblico Enti Locali e Regioni per la formazione civile contro le mafie, n.d.), according to which from 1991 to 21 May 2019, 301 local authorities were dissolved due to mafia infiltration, twenty-three of which were disbanded in 2018, and there have already been eight in the first five months of 2019 alone (Avviso Pubblico, 2019).

The aim of this paper is to analyse the main aspects of Italian legislation that allow the dissolution of mafia-infiltrated municipalities upon evidence of collusion between local authorities and organized crime groups. Therefore, the rest of the paper is organized as follows: paragraph 1 of the paper focuses on the legislative development of the legal instrument since its introduction in 1991; paragraph 2 describes how the legal tool works according to Article 143 T.U.E.L.; paragraph 3 reports the typical circumstances which may occur as evidence of criminal infiltration; paragraph 4 presents the latest legislative changes that were implemented in December 2018 with Law No 132/2018; paragraph 5 concludes.

1. Evolution of the Legislation

Throughout the 1980s collusion between local politicians and organized crime emerged dramatically in southern Italy, as in many municipalities in Sicily, Calabria and Campania there was evidence of criminal oppression of the elected officials. At the time there were no legal tools to deal with this emergency until 1991, when the Italian central government introduced a specific regulation in response to what is known as the “massacre of Taurianova”, a town in the province of Reggio Calabria, where a violent mafia war took place and the following investigations revealed a high level of corruption and collusion within the local administration and a general feeling of fear and intimidation among the local population.³ Thus, the central government acted in defence of democracy and legality, which led to the introduction of Decree Law No 164/1991, converted into Law No 221/1991, providing urgent measures for the dissolution of municipal and provincial councils and other local government bodies, due to organized crime infiltration and conditioning (Decree Law No 164/1991 of 3^rd May 1991). Article 1 of Law 221/1991 introduces art. 15 bis in the antimafia law n. 55/1990, already regulating organized crime prevention and other socially dangerous phenomena (Law No 55/1990 of 19^th March 1990). The enforcement of this law allows for the dissolution of a municipality “when evidence emerges regarding direct or indirect links between members of the local government and criminal organisations…jeopardising the free will of the electoral body and the sound functioning of the municipal administration” (Di Cataldo and Mastrorocco, 2019, p. 8).

Immediately after the enactment of this specific antimafia measure, on 2nd August 1991, the city council of Taurianova was dissolved (Mete, 2009). Among the reasons that justified the dissolution of the local government of Taurianova were direct or indirect links between criminal organizations and town councillors which affected the efficiency of the administration and public provision of basic services. The report also revealed a growing mistrust among the local population (Official Gazette – Decree of the President of the Republic 2 August 1991).

Two years after its enactment, National Law No 164/1991 was amended by Legislative Decree No 420/1993, then converted into Law No 108/1994. The amendments aimed to strengthen the role of the Prefect and the other bodies in charge of implementing this law and to provide support to local communities involved in the struggle for their civil rights (Cupi et al, 2011). The regulation was finally transferred to Single text of the laws on the organization of local authorities – T.U.E.L. Testo unico delle leggi sull'ordinamento degli enti locali, approved by Legislative Decree No 267/2000.

Over time, the practical implementation of the legal tool has raised some critical issues, which in 2009 led to a new to a new regulatory framework with the adoption of Law No 94/2009 (Cupi et al, 2011); the framework was further amended with the recent Law No 132/2018.

2. The Discipline

Article 143 T.U.E.L., regulates the procedure required for dissolving an infiltrated local government as follows.⁴ Firstly, the law states that municipal and provincial councils may be dissolved when, concrete, unambiguous and relevant elements emerge on direct or indirect links between organized crime and elected politicians, or on forms of conditioning of the administrators that could alter the process of formation of their will and could compromise the good governance or impartiality of local authorities, as well as the proper functioning of local services, or when these links with organized crime are likely to cause serious and lasting prejudice to public security.

The institution in charge of applying this legal tool is the Prefect, a peripheral body of the State Administration which represents the government at the provincial level and exercises all the functions of the State at the local level; and also has supervisory powers over the institutions of province and municipalities.⁵ Therefore, when the Prefect is informed of the above-mentioned risks of infiltration and criminal conditioning, he appoints a Committee of Inquiry consisting of three officials within the state administration.

The committee investigates the work of the local administration and verifies whether the criminal infiltrations have occurred. The investigations may go from a period of three to six months after which the committee submits its conclusions to the Prefect who, within 45 days, sends a report to the Minister of the Interior containing the various elements which can be considered to determine the dissolution.

The proposal for dissolution must state all detected irregularities and anomalies within the local council and must specify which local authorities have allegedly colluded with criminal organizations. The proposal for dissolution is drafted by the Minister of the Interior, after deliberation of the Cabinet -Council of Ministers- and finally the dissolution decree is issued by the President of the Republic.

If the elements provided are not sufficient to dissolve the municipal council, the Minister of the Interior must nevertheless issue a decree on the conclusion of the procedure in which he reports on the results and on the activity of the commission of inquiry.

The decree of the President of the Republic, attached to the Minister’s proposal for dissolution and to the Prefect’s report, is then published in the Official Gazette, unless the Cabinet of Ministers decides to keep part of the documents confidential. The purpose of publication is to guarantee transparency and public access to these official documents for all citizens who want to be aware of the reasons for the dissolution, in order to better target their political and electoral choices⁶ (Garofoli Commission in charge of elaborating proposal against crime and measures targeting the assets of organized crime, 2014).

Once the infiltrated municipal council is disbanded, the mayor, the council people and the members of  executive committee of the municipality are removed from their offices.

The dissolution decree shall maintain its effects for a period of twelve months to eighteen months, which may be extended up to a maximum of twenty-four months in exceptional cases.

According to Article 144 T.U.E.L., upon removal of the authorities, another commission is appointed in the dissolution decree , the so-called Extraordinary Commission, made up of three members who take over council duties and carry out ordinary management for all the period of dissolution, i.e. from twelve to a maximum of twenty-four months; at the end of this period local elections are held.

The major amendments introduced by the 2009 reform concerned the following (Cupi et al, 2011):

• The definition of the necessary conditions to implement the legal tool. The evidence of direct or indirect connection between members of the local council and criminal organizations must be concrete, univocal and relevant. More precisely, concreteness means that the elements must be ascertained in the historical reality; univocity implies that the elements must be contrary to what the measure intends to protect; relevance means that the elements must be likely to compromise the regular performance of the functions of the local authority (Italian Council of State, 2013).⁷ Furthermore, criminal influence over the local government has to determine an alteration in the process of public decision-making, it has to compromise impartiality and best practice in the local administration as well as hinder the proper functioning of public services, or be likely to pose a serious and enduring threat to security and public safety.

• Preventing local politicians who have colluded with organized crime to run for re-election in the first round of regional, provincial and local elections in the region where the disbanded municipality is located, after the local government dissolution. This represented a solution to the fact that quite often, the same corrupt politicians were elected after the transition period held by the Extraordinary Commission, negating the commissioner’s work and the purpose of the dissolution. The ineligibility to run for office must be stated by the tribunal, therefore the Minister of the Interior sends the proposal for dissolution to the court having jurisdiction, which will then analyze the authorities’ responsibility and eventually declare this ineligibility (Article 143 T.U.E.L.).

The discipline on ineligibility has recently been modified by Decree Law No 113/2018 converted into Law No 132/2018 which will be further analyzed.

The members of the disbanded councils are entitled to initiate action against the dissolution decree at first instance before the Regional Administrative Court of the Region of Lazio – TAR Lazio; finally appeal may be brought before the Italian Council of State against the decision of the Regional Administrative Court seeking annulment of the dissolution decree.

All the rulings of the administrative courts form a conspicuous case law which provides significant examples of recurrent cases of mafia infiltration in municipalities, which will be addressed in the next paragraph.

3. Typical Causes of the Dissolution of Municipal Councils

Although Law No 94/2009 introduced the necessary conditions for the application of the dissolution tool, it does not indicate the specific cases that can be considered as evidence of criminal infiltration. More precisely, the law, while setting out the requirements of "concreteness, univocity and relevance" for the evidence of infiltration and conditioning, does not indicate the concrete circumstances on the basis of which the proposal for dissolution can be drafted (Romei, 2014).

Organized crime aims to influence politics in several different ways and the practical cases of the collusion between them may be retrieved from the Italian administrative case-law and from the Minister’s proposals for dissolution as these documents contain all the details of the links between organized crime and politicians (Mete, 2009).

According to notable studies (Angelosanto and Rivola, 2011; Mete, 2009) the most common reasons for dissolving a local government under Article 143 T.U.E.L. are:

• Murders, feuds and other risks which endanger public safety and public order: these circumstances are less frequent than in the past, indeed the use of homicide to stop a hostile politician from working properly and to intimidate others like him, is the last resort for organized crime as it causes immediate law enforcement intervention to prosecute the perpetrators of the attack, representing an obstacle to criminal business (Di Cataldo and Mastrorocco, 2019; Daniele and Dipoppa, 2017).⁸ Nevertheless it is important to underline that in Italy, 132 local politicians were murdered from 1974 to 2014, 47% of whom were killed by organized crime (Lo Moro et al., 2015).⁹ According to the Parliamentary Committee of Inquiry into the phenomenon of intimidation against local administrators, with regard to local administrators, “besides the fallen of law enforcement, no other category has recorded more deaths in Italy” (p. 50).

• Other types of violence: threats and intimidations against administrators happen more often than homicides, e.g. arson attacks targeting cars and the City Hall or its structures, threatening letters, dead animals and bullets through the post are among the methods commonly used to deliver threats to public officials (Avviso Pubblico, 2018). Avviso Pubblico has recorded 2,182 acts of intimidation against local administrators from 2013 to 2017, and 574 in 2018; the data show that there has been an escalation in the use of violence since 2011, during which 212 cases of intimidations were recorded, these violent behaviours increased by 170%; the survey conducted by Avviso Pubblico involved 19 Italian regions, 84 provinces and 309 municipalities and revealed that in 2017 violence against municipal-level politicians increased by 6% compared to the previous year. With regard to infiltrated municipalities, in 2018, 68 episodes, from threats to personal attacks, have been recorded in 45 disbanded municipalities due to organized crime infiltration, aproximately 12% of the total number of cases dealt with by Avviso Pubblico (2018).¹⁰

• Contamination of the electoral competition, e.g. the conclusion of pre-election agreements with which it is agreed that criminal groups give their electoral support to politicians who will, in turn, distort policy-making in the interest of criminal groups. Recent empirical studies, analyzing how organized crime uses violence to influence local politics, have observed that criminal organizations may strategically use violence either before elections, in order to discourage unwanted candidates from running for office and to manipulate the electoral outcomes, or after elections in order to influence the local government’s decisions and activities (Daniele and Dipoppa, 2017).¹¹ Moreover, the Italian Parliamentary Commission investigating intimidation against local government officials, also focuses on the issue of electoral violence, providing evidence that the use of violence by organized crime is strictly connected to political competition. The parliamentary commission also underlines that electoral competition as a means of inciting violence against local governments is not acceptable in a democratic system (Lo Moro et al., 2015).

• Administrators or bureaucrats who have friendly or family relationships with members of criminal organizations or with individuals with recurrent criminal records, e.g. a key role is often played by relatives of the mafia members who are employed by municipal offices such as the technical office and who abuse the powers related to their office, favouring criminal interests (Transcrime, 2018); in other cases, individuals connected to the mafia were hired by the town council (Italian Council of State, 2016)¹².

• Criminal proceedings for mafia-type offences against one or more administrators or bureaucrats: in these cases, the investigations on mafia infiltration originate from investigations by the judiciary into the activities of criminal organizations and usually the dissolution decree is based on the acts of the criminal proceedings. However, it must be specified that the local council may be dissolved regardless of the outcome of the criminal proceedings against the administrators; this means that it is not necessary to prove the commission of crimes by local officials, but the dissolution requires just sufficient elements that provide evidence of the influence of mafia organizations over administrators (T.A.R. Lazio, 2013).¹³

• Administrative irregularities which include: securing municipal contracts awarded illegitimately due to corruption; severe infringement of building regulations; absence of rigorous inspections in the execution of public works; clientelism (Di Cataldo and Mastrorocco, 2019). For example, in urban planning, the management of public and private infrastructures by the mafia groups means that they take on a leading role in the local economic fabric. This allows criminal groups to control labour supply and thus to offer employment opportunities to the local population, which will allow criminal organizations to obtain social consensus which is essential to maintain control of the territory (Angelosanto and Rivola, 2011).

These administrative irregularities are recurrent in the administrative case law and often judges link such circumstances to the negligence and weakness of the local politicians who are considered unable to control and supervise the activities of the municipal offices (T.A.R. Lazio, 2016).¹⁴

The Italian administrative case-law also shows how the abovementioned elements should be interpreted. All the facts must be interpreted as a whole, since an episode considered individually may seem of insufficient value, while, together with others, it is able to give evidence of a local administration controlled by organized crime. Furthermore, these circumstances do not necessarily need to have criminal relevance to be taken into account, it is sufficent that they constitute evidence of the bargaining between criminals and local politicians, independently from the administrator’s will or commission of crimes (Longo, 2008). However, it would be misleading to interpret the elements in a fragmentary way or indeed to consider them in abstract terms, that is, without accounting for the territorial context in which the criminal infiltration occurs, especially if in areas where organized crime traditionally has influence and is committed to keeping the territory under strict control (Italian Council of State, 2018).¹⁵

4. Latest Legislative Changes Implemented with Law 132/2018

To provide an exhaustive overview of the tool of the dissolution of municipal councils due to organized crime infiltration, it is important to mention the very recent amendments introduced with Legislative Decree No 113/2018 converted with Law No 132/2018. Article 28 of Law No 132/2018 providing “Amendments to Article 143 of Legislative Decree 18 August 2000, n. 267”, ascribes extraordinary powers of intervention to the Prefect in the event that the proposal for dissolution is rejected but the efficiency of the local administration is highly compromised. In this case the Prefect shall grant a reasonable time for the local administration to adopt the necessary acts to restore the proper administration operating conditions, and the Prefect also provides the local authorities with the necessary technical support. Otherwise the Prefect will appoint a commissioner to take over the council duties.

Article 28 of Law No 132/2018 extends the sanction of ineligibility to those politicians who have colluded with organized crime, preventing them to run for re-election for two rounds after the dissolution, and it also concerns national and European elections, in addition to regional, provincial and local elections.

Finally, Article 32 bis of Law No 132/2018 provides for the establishment at the Ministry of the Interior of a special unit composed of prefectural career personnel, to be part of the Extraordinary Commissions which take over council duties and carry out ordinary administration management.

Such amendments to Article 143 T.U.E.L. were expected to be enacted as the legal tool was not always considered the appropriate instrument for targeting organized crime infiltration. In particular, with regard to the inelegibility measure introduced with the 2009 reform, experts argued that it was indeed a rather weak tool as it was limited in time and space; they also agreed on the need for more highly specialized officials to be part of the extraordinary committees appointed for the ordinary management of the disbanded municipality (Commissione Garofoli, 2014), as well as the need to introduce a solution for those municipalties which are not disbanded but are compromised by bad governance due to potential criminal influences (Parliamentary Committee of Inquiry into Mafia-related and other criminal organizations, including foreign organizations, 2018).

Conclusions

Organized crime aims to infiltrate local governments in order to control the territory and influence local politicians in public decision making. Criminal organizations use different strategies to gain control over local bodies, amongst which corruption, intimidation, electoral conditioning and various relationships with politicians or employees of the bureaucratic structure. Collusion with local politicians allows criminal organizations to engage in a wide range of illegal activities and to illicitly award public contracts (Pinotti, 2015), therefore criminal conditioning over local bodies seriously compromises the functioning of the democratic system and consequently the well-being of the population. This distortion in the democratic system and in the functioning of local public administration, enables the enforcement of the legal tool allowing the dissolution of municipal council due to organized crime infiltration as defined in Article 143 T.U.E.L (Legislative Decree No.267/2000).

The paper analyzes the legislative evolution of this legal tool since its introduction in 1991 as an emergency anti-mafia law following a terribly violent mafia attack; it analyzes the current framework according to Article 143 T.U.E.L as amended by the 2009 reform and most recently by Law No.132/2018. The implementation of this legal tool aims to prevent the risk of criminal infiltration within local governments and to safeguard the proper functioning of local public administration. The paper also provides an overview of the most common circumstances that may provide evidence of criminal influence on local-level politicians.

In conclusion, the paper aims to create awareness of the phenomenon of dissolution of local governments due to organized crime interference and consequently on the risks for democracy following criminal infiltration. Moreover, the phenomenon of infiltrated municipal councils is very common in the southern regions and is gradually spreading to the north of the country, thus the enforcement of this very strict instrument, and indeed its strengthening, are necessary for safeguarding the democratic system.

References