Participation in criminal associations: theoretical and practical approaches in Ukraine and Italy

The article presents a comparative legal analysis of the concept of «participation in a criminal association» under the criminal law of Ukraine and of Italy. Based on an analysis of the provisions of Ukrainian and Italian criminal legislation regarding the criminalization of actions related to participation in a criminal association, as well as judicial practice and expert opinions, the author highlights problems in interpreting this concept. Italian criminal law, like the Criminal Code of Ukraine, does not define the concept of participation in a criminal association. Italian doctrine and the Italian Court of Cassation (United Sections) have proposed different interpretative approaches to clarify what behavior is considered participation in a criminal association (Article 416 of the Criminal Code) and mafia-type associations (Article 416-bis of the Criminal Code). According to the majority of the literature, the most justified is considered to be the mixed model, which combines «organizational» and «causal» interpretative models. It requires providing evidence of both a person’s formal membership in the association and active and long-term engagement in its criminal activities. The author presents critical observations by scholars regarding the inconsistent and contradictory rejection of the Italian Court of Cassation from the mixed model in its current practice. In particular, the risks of reverting to an exclusively organizational interpretative model that fosters broad interpretation, aimed at expanding the scope of punishment for participation in a mafia association, are emphasized. According to this model, formal initiation into a criminal organization and the new member’s subsequent willingness to be available to it may be sufficient evidence of participation without the need for the individual to carry out specific acts of planned illegal activity. It is concluded that in Ukraine, at both the theoretical and practical levels, an approach to interpreting associative participation similar to the Italian “mixed” model is generally employed. However, there are differences regarding the content of a participant’s active contribution to the association’s activities. In this regard, the relevant interpretative practice of the domestic Supreme Court is necessary to ensure the unity and consistency of existing interpretations.