On March 11 of this year, the law against criminal organizations, popularly known as the Anti-Mafia Law, came into force in Argentina. The preliminary project took into account the experience of the Ministry of National Security in prosecuting organized crime gangs, as well as the peculiarities that this confrontation maintains in our country. For this reason, it is an original legislation that does not copy the norms of other nations, although these have been studied as background; essentially the anti-mafia law of Italy and the RICO law of the United States.
In Argentina it is necessary that the federal state can act in the case of a mafia organization in the provinces, a need that also exists in the United States as a federal country, but the path chosen for this is different.
The United States typically uses a very simple trigger clause to make it a federal crime, which affects interstate commerce. This can be proven very easily there. It is enough that mail, e-mail, network communications, or transportation passing from one state to another in the country was used to commit a crime, even an ordinary crime, to constitute a federal crime.
In Argentina there is no tradition of federalizing crimes for the mere transport of a message or goods from one province to another. At least not in all cases. This condition would hardly have been accepted by Congress. A structure had to be created that could be well received by provincial representatives and had enough substance to constitute a federal crime without undermining provincial autonomies. The crime in itself had to be undoubtedly serious and pose a danger to the entire nation.
First, the crimes must be committed by an organization or by one or more members of an organization. In addition, in order for the crime to lead to the intervention of federal power, one of the conditions listed in the law must be met: the benefit of an organization; the displacement or destruction of another; intimidation of the general population or specific population groups; cause fear of executive, legislative or judicial authorities or the armed forces, police and federal security forces; or that it turns out that the purpose is to ensure control over an area for the commission of crimes or to remove that area from the control of national, regional or local authorities.
The federal anti-mafia law remedies also come into play when “the mechanisms established to enforce the law in a province, city or region are notoriously inadequate to stop a chain of criminal conduct….”
Finally, the trigger is also activated when the property of the nation state or the personnel employed with it is threatened by a criminal organization.
Each of these diverse situations leads to the initiation of federal proceedings under the anti-mafia law. For this purpose, at the request of the Public Prosecutor’s Office or the Ministry of National Security, the judge declares an “area subject to special investigation”, which may be a city or part thereof, a province or an area of this province. Once the area is defined, certain procedural rules apply, because investigating a criminal organization requires a lot of skill. For example, in these cases, both the federal police and security forces as well as those of the province or the Autonomous City of Buenos Aires may detain a person for up to 48 hours for the investigation of a crime, with the authorization of the prosecutor and notification of the judge. In complex cases, detention can last up to 15 days and can be extended for another 15 days.
The forces may also confiscate goods allegedly related to the offenses provided for in the law or carry out searches in prisons.
Although raids or wiretapping of telephone conversations still require prior judicial authorization, if one of these raids creates the urgency to carry out further raids or wiretapping of telephone conversations, the armed forces can continue the chain with the mere authorization of the prosecutor and without prior request to the judge.
For the first time, a law allows the collection of messages from applications and social networks, which is very important these days when almost no one talks about the telephone line itself anymore.
However, the sanctions provided for by law are equally or even more relevant than the special procedures. Mere membership in a criminal organization is punishable by a prison sentence of eight to 20 years. The range of crimes that this organization can commit to be considered a mafia is very wide: illegal drug trafficking, money laundering, organ trafficking, murder, injuries of all forms, corruption of minors, pimping, human trafficking, illegal deprivation of liberty, degradation into servitude, kidnapping, robbery, extortion, illegal possession of weapons, explosives or radioactive materials, crimes against public administration or the concealment of these crimes.
A sentence of eight to 20 years is already extremely deterrent. However, in addition to this penalty, the penalties corresponding to the individual crimes of each individual member are mathematically added and the minimum and maximum penalties are doubled. And there’s more. If the offenses are committed with physical force, seeking control of an area, intimidation of the population or the authorities, or the acts are committed for the benefit of the organization or for the destruction of another person, each member of the association may be punished with the penalty corresponding to the most serious offense committed by another member. So if a member of the mafia had killed, the organization’s accountant, for example, could be charged with murder.
As can be seen from this law, the member of a mafia runs the risk of spending the rest of his life in prison, regardless of his role in the structure. And the best part is that these penalties are independent of whether federal mechanisms have been put into effect or not. A province’s judicial system can charge a criminal under the anti-mafia law, as has already happened in Salta and Mendoza.
Such a legitimate threat of crime facilitates the remorse of lower-ranking members who face the same fate as the bosses. For this reason, the use of the services is expressly intended for the accused collaborator who provides relevant information.
What is also new is that advance confiscation is applied if there is reasonable suspicion that the assets are of illegal origin.
Prosecutors and judges now have an unprecedented tool to combat organized crime. Soon you will discover more and more advantages in it. It is also to be expected that criminals will discover it themselves.
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