Judgment No. 27379/2023 and the Aggravating Factor of Transnationality in Criminal Law

The recent judgment No. 27379 of February 8, 2023, offers important insights into the configuration of the aggravating factor of transnationality provided by Article 4 of Law No. 146 of 2006. This decision, issued by the Court of Cassation, confirmed the possibility of applying the aggravating factor even in the presence of a defendant acquitted of associative crime, thus clarifying some fundamental aspects of criminal liability.

The Aggravating Factor of Transnationality: What Does the Law Provide?

Law No. 146 of March 16, 2006, aims to combat organized crime on a transnational scale. Article 4 establishes that the aggravating factor of transnationality is applicable even to those who have not been convicted of associative crime. This principle has been reiterated by the Court, which stated that acquittal from associative crime does not exclude the defendant's awareness of dealing with and receiving goods from a transnational association.

The aggravating factor of transnationality, as per Article 4 of Law No. 146 of March 16, 2006, is of an objective nature and is applicable even to a defendant who has been acquitted of associative crime, based on the ordinary criteria set forth in Article 59, second paragraph, of the Penal Code, that is, if known, ignored through negligence, or considered nonexistent due to an error caused by negligence. (In its reasoning, the Court stated that the defendant's acquittal from associative crime does not exclude their awareness of dealing with and receiving goods originating from a transnational association).

The Criteria for Attribution According to the Court

According to the Court, the criteria for attribution are based on Article 59, second paragraph, of the Penal Code, which considers ignorance of the law or the constitutive elements of the crime as relevant only if due to negligence. This means that even an acquittal can be compatible with the configuration of transnationality if the defendant was aware of the circumstances regarding the origin of the goods dealt with.

  • Awareness of the origin of the goods
  • Negligence-induced ignorance
  • Error caused by negligence

Conclusions

Judgment No. 27379/2023 represents an important step forward in understanding criminal liability in a global context. It clarifies that the aggravating factor of transnationality is not excluded by acquittal for associative crime, paving the way for a broader assessment of individual conduct. This approach could further influence future jurisprudential decisions and defense strategies in similar cases, emphasizing the awareness and attention that each individual must have regarding their actions, especially in a context as complex as that of transnational organized crime.

Bianucci Law Firm