Les mafias

Social redistribution of confiscated mafia assets in Italy:
from mafia informal to civil formalⁱ

Niccolò Mignemiⁱⁱ and Fabrice Rizzoliⁱⁱⁱ

Original title: “La redistribution à des fins sociales des biens confisqués aux mafias en Italie:
de l’informel mafieux au formel citoyen”

Translated by Silvia Caccia [NOTE EN BAS DE PAGE: Silvia Caccia is secretary of the association Libera France. She would like to thank Michael Malloy for his thorough reading of the English version of this text.]

Introduction

Media popularization of the word mafia obscures the scientific approach to a phenomenon concerning very heterogeneous realities. Indeed, in Italy, the mafia is a more complex entity than a simple “concealed octopus.” In Sicily, the mafia-type association is called Cosa Nostra; in Calabria, the ’Ndrangheta; in Campania, the Camorra; in Apulia, the Sacra Corona Unita. The four mafia-type organizations—usually termed, for the sake of simplicity, the mafia—are similar but not identical. Throughout the world, however, there exist other mafias that resemble the Italian phenomenon: the Japanese Boryokundans, the Chinese Triads, and some Russian and Albanian clans. The construction of a common paradigm of analysis is in progress, but there are few scientific resources outside of the Italian peninsula.

In Italy, the mafias constitute a vast subject of interdisciplinary study that deserves to be comprehended starting from the paradigm of complexity.^iv The mafia is an organized political entity that adapts to social and economic changes. Often described as a transnational force, the mafia exerts in the first place a sovereignty on a given territory. Starting from this territorial seigniory,^v it structures and reproduces a system of power and exploitation based on violence and illegality. It perpetuates a rooted but flexible cultural code and benefits from a relative social consensus of the population. The study of the mafia phenomenon shows that the mafia is based on a systemic violence opposed to the state, that produces covert powers and an accumulation model centered on an economy of illegal predation.

The mafia, consisting of about 24,000 affiliates,^vi coordinates a vast and ramified network of connivance that forms a social body composed of the mafiosi and their accomplices. The latter do not belong to the organization, in that they did not undergo any affiliation rites, but without them the mafiosi would just form a criminal gang. The mafia power mechanism operates at the core of a system of accomplice relationships that form, for each of the three principal mafias, a network of one hundred thousand people belonging to the world of politics, enterprise, and liberal professions: “The system of relations of the mafia is made up of kinship, friendship, interests, contiguity and complicity. This network establishes itself in conditions of economic development as well as under-development. These relations build a hierarchical organized social body. Poorer social categories represent the workforce recruitment area for the mafias. The leaders of the organization are capable of signing a villainous pact with the highest levels of political and economic power, high society.”^vii All this forms the above-mentioned social body, an elite that one of the greatest authorities on the mafia, the sociologist Umberto Santino, names the mafia bourgeoisie.^viii The definition of the mafia phenomenon by the existence of a social body and not by a simple criminal organization is the only way to explain the perpetuity of the mafia, faced with the formal systems that followed one another: feudal/capitalistic system, democracy/authoritarianism, war and peace, etc.

In the past thirty years, by means of institutional tools, the state of right has proved very audacious in the recovering of the formal on the mafia informal. In 1982, the introduction of the crime of mafia-type association in the Criminal Code has revolutionized the struggle against this kind of associative criminality. In 1988, a reform of the Code of Criminal Procedure, reinforcing the independence of judges and the judicial police officers at their disposal, made possible the carrying of processes against mafia accomplice elites. Then, there was a change at the beginning of the 1990s. Since 1991, a national direction composed of antimafia judges successfully coordinates all inquiries. A law against the infiltration of the mafia in elected assemblies provoked the dismantling of 234 assemblies between 1991 and 2013. Since 1991, the law on collaborators of justice—wrongly called repentants^ix—caused the exit of 3,000 mafiosi from their environment, and their integration into the state of right.

The accumulation of wealth is an essential component of the mafia system. As this illegally acquired capital “pollutes” the legal economic circuits, the attack on illicit possessions proves to be an indispensable tool of any antimafia strategy. From this viewpoint, the instrument that reversed the strength ratio between the mafia and the state is the practice of the confiscation of illicit possessions, since it weakens the economic power of the mafias. However, this efficacious instrument can sometimes feed the rivalry between two opposing powers—the state and the mafia—excluding the civil society. An Italian law of 1996 allows the “recycling” of confiscated assets, whereas they are usually resold or abandoned after the confiscation. This unique law^x makes it possible, for instance, the attribution of a villa—formerly belonging to a mafioso and obtained by the corruption of the formal system—to a social cooperative.

First of all, our analysis will focus on the mechanisms of confiscation and reuse of mafia assets; then, we will treat the example of the reuse of confiscated land by means of social agricultural cooperatives.

1. The reuse of confiscated assets: mechanisms and results

Before showing the examples of social redistribution of confiscated assets, we will prove the effectiveness of confiscation in the struggle against the informal.^xi

1.1. The confiscation of products of the mafia informal

Confiscation consists, for the judiciary, in definitively expropriating a person of those assets acquired through a criminal infraction. In general, confiscation resting on a criminal condemnation of the owner of the assets exists in every state, but it is difficult to apply as the judge must show the link between the infraction and the property.^xii In opposition to this general rule, Italy possesses a series of procedures that facilitate criminal confiscation, either because the latter is mandatory whereas it is optional elsewhere, or because the Italian judiciary does not have to find the accumulated funds, or because the confiscation of assets also applies to the accomplices of the condemned person, although under particular circumstances. Between 2010 and 2012, the different confiscation regimes allowed for the seizure of €11 billion worth of assets.^xiii

In Italy, criminal confiscation is mandatory for a number of crimes, like those of mafia-type association, drug trafficking, usury, fraud against the European Union, corruption, etc. It is provided for by Article 240 of the Code of Criminal Procedure. Confiscation allows the judiciary to evidence those revenues derived from an infraction; it punishes the principal author, but also the accomplices. A second type of confiscation, called by equivalence (Article 322ter of the Criminal Code), proposes the evaluation of all gains obtained through the infraction, including those for which the judiciary would not be able to find their true origin. For instance, the judiciary may prove that an agricultural entrepreneur fraudulently perceived some European funds, because he has kept stocks of produce to sell them illicitly, declaring that they had been destroyed. The judiciary may thus seize some of his real or personal property, as a yacht for instance, whose value equals that of the European subvention fraudulently perceived. If this entrepreneur is not able to prove that he bought that property by means of legally acquired money, confiscation becomes irreversible. If the property formally belongs to one of the entrepreneur’s associates, friends, or relatives—his spouse, for instance—the charge of proof is partially inverted: it is now the duty of the owner, if he or she could not ignore the situation, to prove the origin of the funds. In this case, one speaks about enlarged confiscation. Confiscation by equivalence often punishes infractions against the morality of public life (unlawful acquisition of an interest or undue advantage, misuse of public resources, etc.). This type of confiscation is particularly interesting when studying the problem of the informal, because it applies to people from whom society awaits, as a result of their social position, an exemplary attitude, in particular by the respect of the formal.

Besides this criminal tool, there exists a “pearl” at the service of the recovering of the formal on the informal: preventive antimafia confiscation. Since 1982, this administrative type of confiscation does not lie on an individual condemnation of the owner, but rather on the illicit character of the mechanisms of the acquisition of property. This property is then considered as dangerous, because it belongs to a person linked with the mafia.

As professional criminals assign their possessions to nominees (simple workers, lawyers, other associates, etc.), the idea consists in seizing the property of these accomplices, as well, even though they are not charged with any crime. Coupled with the crime of mafia-type association, this kind of confiscation proves to be particularly effective in the struggle against the mafia.

For instance, when inquiring about a clan, the judges discover a mafioso calling the Café de Paris in Rome everyday to ask the manager of one of the most beautiful cafes of the Italian capital for the total amount of receipts. The judges assign the inquiry to the Financial Guard, that discovers that the mafioso has been declared as cook helper and that the cafe belongs to a penniless barber from the Calabrian village of Cosoleto, 2,000 inhabitants including our mafioso.^xiv As the inquirers demonstrate the link between the mafioso and the nominee, the latter has to prove that he legally acquired his cafe.

The prefect or the prosecutor and the judicial antimafia police, who dispose of important means of inquiry in order to determine the origin of the assets of the mafioso and his accomplices, may start the procedure. At the end of the inquiry, the administrative court—whose section dealing with conservative measures has an office in each appeals court (corte d’appello)—seizes the property (that is, it puts it under temporary administrative seizure, as a step towards confiscation). When all appeals are settled, confiscation becomes effective and the property enters public domain.

In 2004, the European Court for the Human Rights declared that the preventive judicial regime of confiscation respects the presumption of innocence, because it is a judicial procedure during which all defense rights are fully guaranteed. As it consists in an administrative decision, the person concerned may at all times provide the proof of the licit origin of the property, leading to its restitution or to compensation.

Experts agree in recognizing the effectiveness of this judicial regime against the mafias and that kind of organized crime whose characteristic is that of being an enterprise of collective predation, to which one has to respond with a collective confiscation of assets. From this point of view the Italian balance is very positive despite some difficulties. Until January 7, 2013, about 90,000 mafia assets had been seized but about 70% of them are definitely confiscated. Confiscation of assets has sensibly increased these last years. For instance, during 2007–2008, 11,871 assets were seized, whereas in 2009–2010 they were 21,039. During the five-year period 2007–2011, assets were predominantly located in Sicily (that is, 46%) , but in the past few years more and more assets have been seized in the North of Italy. Lombardy has now the fifth highest regional number of confiscations.

When confiscation is definitively decided, the National Agency for Administration and Destination of Assets Seized and Confiscated from Organized Crime, founded in 2010, decides on their attribution.^xv

1.2. Public use of confiscated assets

When illegally acquired assets are confiscated, the question becomes their destination. They cannot be sold or rented out. Assets confiscated from the mafia cannot be sold at auction as would typically happen in other countries. Either the mafiosi and their accomplices would buy them back, or potential buyers would not dare to defy the power of the mafia by buying those assets. And if nobody buys them, those assets might encounter decay, showing the incapacity of the formal to give consistence to its idea of “reconquest” of the informal. To the eyes of the local community in the first place, the problem is of major interest: Is it better, for instance, that a parcel stays uncultivated or knowing that it is being exploited by a mafioso?

Three main categories of assets are subject to confiscation. Movables are mostly resold, because maintaining a yacht, for instance, is expensive. Only some vehicles are given to public forces (police, fire fighters, forest guard,^xvi etc.). The two other categories are land properties and companies. Today, the agency for confiscated assets is responsible of 12,946 assets—11,238 land properties and 1,708 companies.^xvii

In order to fight against the social consensus benefiting the mafioso, his property must not disappear, but has to be reused on the territory instead. It has to be a sort of compensation for a community that used to be subject to predation by the mafia. In 1995 Libera—a national network of antimafia associations^xviii—promoted a petition, signed by more than one million people. Then, in 1996, the government proposed a law whose purpose was to reintroduce in the legal system all of those confiscated assets that could have a socially useful function. Thanks to this law, each property can now be used either by institutions, or by regional authorities, or by cooperatives and associations having public interest.

Out of the 12,946 assets managed by the agency for confiscated assets, 5,859 land properties have been assigned to an entity having public interest. To this day, the agency has yet to find a destination for 3,995 assets. Only 11.4% of the 5,859 assigned assets benefit public forces (police, justice, fire fighters, harbor office). Most of the assets benefit civil society through cooperatives and associations. The majority of immovables (86.7%) are assigned to local authorities (almost all to town councils—that is, 4,961 out of 5,859) as property that cannot be disposed of freely; 33.3% of these assets are used with social purposes. For instance, 19.9% are assigned to associations and 14.7% to social centers for the rescue of disadvantaged population. On the other hand, when the property consists in a company, it can be rented out, sold or liquidated if the public interest is at stake—for instance, in order to compensate the victims of the mafia.

More than fifteen years after this law was passed, effects are visible. For instance, houses formerly belonging to some mafiosi have been transformed into police stations or courts of law. Other houses have become cultural and learning centers, centers for the care of drug addicts or housing facilities for clandestine immigrants, those to whom the mafia sells drug, or that she exploits as cheap work force. But one of the most well-known examples today is that of confiscated agricultural land, converted to organic agriculture (wine, cereals, etc.) by social cooperatives that take part in the Libera Terra project.

2. Agricultural cooperatives: a paradigm of social reuse

Agricultural land occupies a special place among confiscated assets, as shown by data. According to the report of the agency for confiscated assets, in 2011 agricultural land represented 19.7% of definitively confiscated assets (that is, 2,062 assets out of 10,438), and 16.9% of all assets managed directly by the agency.^xix Proportions rise to 23.1% and 19.6% respectively if one counts land with rural buildings.

Agricultural land is central because it represents about a quarter (23.7%) of effectively assigned assets, of which 33.3% are specifically destined for social reuse and about 40% to larger social purposes (social or health services, schools, associations, etc.).^xx If one admits that agricultural land is usually destined for social purposes,^xxi this category alone consists of more than two thirds of reused assets (71.2%, and 83.3% if one counts rural buildings). How to explain this peculiar position?

Three practical arguments make agricultural land an “experimental outpost” for social reuse. Firstly, the exploitation of land is easier. Of course, recovering a piece of land or a vineyard after years of abandonment requires important investments, but it does not compare to the resources that are necessary for the reactivation of a company. Secondly, land produces economically measurable results and ensures the perpetuity of the project, or even its development, more quickly. Thirdly, the exploitation of confiscated land has a strong symbolic power. As far as agricultural land is concerned, the virtues and the success of social reuse are incarnated in food products destined for the market of responsible buyers, and a quality label propagates their message as largely as possible.

Confiscated agricultural land cannot be sold; it is thus transferred to local councils, which cannot dispose of it freely, and usually assigned through an administrative concession formalized by a gratuitous bailment contract lasting fifteen to thirty years. However, one must find a person that agrees on exploiting an estate formerly belonging to a mafioso, without the possibility of accessing to its full property, in addition. Here, associations and cooperatives—that is, two kinds of actors that accept the entrepreneurial mindset together with the principles of social reuse, which imply strong constraints^xxii—play a key role.

The Libera Terra project was born and continues to develop with this spirit. Nonetheless, coherence and long-term vision were not part of the project at the beginning. They actually formed through the years and through experience. Capable of reinventing itself starting from an initiative of local nature, Libera Terra has become a major example in the Italian social agriculture.^xxiii The path of the project represents a paradigm that shows the opportunities and the critical aspects of social reuse.

The genesis of Libera Terra occurred in 2000–2001, when several town councils of the Alto Belice Corleonese, in the inner land of the province of Palermo, grouped into a consortium with the purpose of federating the efforts in the exploitation of the confiscated assets that the state had assigned them—153 hectares of agricultural land with some rural buildings.

Encouraged by the prefect of Palermo, they also benefited from European funds destined for the development of the Mezzogiorno, and also from the accompanying of the association Libera and of the national federations of cooperatives. Although all the experiments launched since the 1996 law on social reuse had never worked out, this time the favorable conditions were present: an economic, social and political project; a favorable legislative framework; and resources.

Some preexisting cooperatives took part in the project, but on territories conditioned by clientelism it was necessary to imagine alternative and innovative practices. The promoters then opted for the establishment of new structures constituted especially for this purpose; here, company formalization follows and serves a social object that precedes it. Selected through a competitive examination that defines the professional profiles necessary for the needs of the company, young, jobless people are formed and followed in the creation of social cooperatives of type B—an Italian status, similar to French Scop—having the professional insertion of underprivileged groups of people (handicapped people, drug addicts, convicts, etc.) as a goal.^xxiv

The first one of these cooperatives is founded in November 2001 in San Giuseppe Jato, a Sicilian village known for its mafia and antimafia. It is called Placido Rizzotto, in the honor of the trade union leader from Corleone killed in 1948 because of his commitment in favor of the poorest farmers.^xxv As in the other cooperatives that followed it, the reference to the memory of the victims of mafia violence shows the will to fit into a heritage of social struggles.^xxvi

Having become in less than a decade a synonym of ethical, social, and economic quality, the Libera Terra label reunites today eleven cooperatives in four regions of the Mezzogiorno. A cooperative is established in Apulia, another one north of Naples, two in Calabria and seven in Sicily, of which four in the province of Palermo. All cooperatives belong to a consortium, Libera Terra Mediterraneo, that ensures the enhancement of their products (transformation, distribution, commercialization, etc.). After being the cradle of the project, the Alto Belice Corleonese, part of the Sicilian antimafia tradition,^xxvii is now called to reinvent the experience by following its growth strategies.

Other texts have presented the history of Libera Terra.^xxviii What we are interested in is showing the ability of this experience to give concrete form to the process of reformalization of the informal, by means of the collective. In order to show this feature, the pioneer case of the Placido Rizzotto cooperative provides us with a field of study that has to be observed from three viewpoints: work, relation with the territory, and mechanisms of wealth production.

In those areas marked by unemployment—especially among young people—and by irregular work—in particular in the agricultural sector—the cooperative is an opportunity and an “outpost” of legality on the workplace. Since the mid 2000s, the Placido Rizzotto cooperative has hired 30–40 people each year, of which about 15 associates that have a permanent contract and take care of the ordinary management, whereas agricultural work, because of its seasonality, is often assigned to a temporary external workforce. Although at the beginning the fear of working for “those of the antimafia” kept workers at distance, today many of them would like to sign up for the lists of the cooperative. According to some evidence, even farm managing mafiosi appear to be forced to sign work contracts not to lose their workforce.

The question of the relation to the territory is more complex. In rural Sicily, the landowner still maintains a very strong symbolic power. Cultivating a wild field having belonged to a mafioso means not only reaffirming the sovereignty of the state, but truly unmasking the exploitation mechanisms of criminal organizations. Replanting local varieties of vine on an abandoned vineyard, cultivating wheat on a former wild field does not consist in introducing new actors in old piling mechanisms. In fact, the predatory mindset itself is challenged. Illegally acquired resources are now at disposal of the community, again.

The cooperative not only manages its land in a different way, but furthermore it tries to “contaminate” the rest of the territory with its virtuous practices,^xxix for instance opening to local producers the possibility of subscribing a chart of values giving access to the advantages of the Libera Terra label. The wealth production and distribution system is undermined by the choice of organic, as well as ethical, quality. This “will for normality” represents a break with the traditional image of the underdeveloped Mezzogiorno incapable of innovation. From this point of view, social reuse of agricultural land has first of all an exemplary value and a pedagogical function, but it shall not stay locked in a moral stance. This new articulation between public powers, “traditional” companies, and actors of the social and fair economy constitutes a lasting, advantageous option, actually profitable for the subjects directly concerned, as well as for the territory as a whole.^xxx

Conclusion

Today, after the enthusiasm and the natural growth of the initial phase, confiscation as a tool for the struggle against the mafias has to face the challenges of ordinary management and the mechanisms that limit its effectiveness. A first critical point comes from the fact that the Italian State apparently manages to confiscate only 10% of the assets belonging to the mafias. The second follows from the comparison of three numbers: out of 82,654 seized assets, only 12,946 are actually at the disposal of the agency for confiscated assets, of which 5,859 have been attributed to the general interest. Only 15% of confiscated assets are really exploited and, since 2001, less than a half of these assets have found an effective destination, because of bureaucratic issues. Moreover, when a decision is made, these assets are often in ruins because they have been abandoned for long or destroyed by the mafia families that sometimes occupy them despite the decisions of the judiciary. Vast amounts of money become necessary to restore them or save them from closure, with firing as a consequence in the case of companies—whereas banks and clients, out of complicity or fear of reprisals, stop financing their activities. Finally, beyond all formal aspects, the inability of the state in the domain of confiscations risks reinforcing the power of clans. Especially where economic difficulties and unemployment are stronger, the mafioso will be able to go around and tell his fellow townspeople, “See, before there was a hotel that employed many of you, now it has gone wild, the state mocks you. I’m the power.”^xxxi

However, these are criticisms due to a system that has to be improved. In fact, the Italian State starts playing its role although the resources it can invest are meager compared to the needs. It is, however, not responsible for the absence of identical legislation in other countries, not to mention the banks that claim mortgage credits that they had given “in good faith” to the mafiosi now in prison, or the fiscal paradises that feed the financial circuits by laundering the money of criminal organizations.

Indisputably, restitution of seized assets to the community through reuse allows the progressive attack on the social capital of the mafia. The symbolic, pedagogical, and cultural value of the social use of confiscated assets breaks the consensus that benefits the mafioso. As with collaborators of justice, confiscation confers the state its authority among the population, and the latter reacquires the property lost by pillage and intimidation.

As a matter of fact the mafiosi suffer from confiscation much more than from prison, because their prestige is here under discussion, on their territory and in front of their accomplices, in addition. Agricultural cooperatives are paradigmatic of the success of this strategy, since they bring back into cultivation wild fields and land conquered from the mafia’s territorial seigniory. They manage to compete in a substantial manner with the mechanisms of reproduction of the informal system, to which they oppose a new economic model based on a different relation to work, territories, quality, and the distribution of created wealth.

These “freed products” are sold shops of the organic and fair trade circuits, in supermarkets linked with the Legacoop federation, and even abroad. These products can be tasted in Paris, at the Ethicando concept store (6 rue de la Grange aux Belles, 10^e arrondissement). But, in front of globalized mafias—as evidenced by the Duisburg killing in 2007, when six Calabrians were shot—in order to make these tools really effective and reinforce this project, confiscation and social reuse must now be spread out of the Italian national borders, by the adoption—in all countries of the European Union—of a text similar to the above-mentioned Italian law. In fact, a European parliamentary commission is already working on this idea.^xxxii

The mafias, major actors of the integrated global economy, are a structural and systemic phenomenon of the globalization. The Italian antimafia redistribution is thus an example to follow and develop in other countries.^xxxiii Some examples along this path start to show up, as in the case of Serbia, which equipped itself with the same tool in 2008—the authors are however not capable of exposing the details at the moment.

In France, the confiscation procedure has been rationalized by the creation of the AGRASC in 2011, but there is no law allowing for the social reuse of the several assets existing in the country (of which citizens have not yet been provided with evidence). However, in Argenteuil, in the Val-d’Oise province, the villa of a drug dealer could become a school of the second chance and the kebab shop that was formerly an operation of money laundering could become a learning center. In Aix-en-Provence, the cafes belonging to nominees of organized crime could become cultural laboratories, and the assets of African dictators in Paris could become shelters for migrants. Socio-cultural reuse of confiscated assets must also become a model of restoration of the state of right in the case of other forms of criminality. Money coming from the “commissions” of the Taiwan frigates could finance the management of these assets in the townships. Takieddine’s villa could become an observatory on the phenomenon of economic and financial crime. In France, like elsewhere in Europe, there is no reason that these assets should not be returned, in a visible manner, to general interest and civil society.

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