Suchergebnisse

Smuggling and corruption are negative social phenomena; it is not an objective reality, because people create them. Smuggling is commonly referred to as illegal traffic of goods (or other items) across the state border, unlawful disposal of illegally imported goods that are subject to tax. Corruption is understood as any behaviour of a public servant or an equivalent person, which does not match their empowerment or set standards of behaviour, or a promotion of such behaviour in order to gain benefit for self or others, thus injuring the interests of individuals and the state. The authors of the article are of opinion that smuggling and corruption are among the most dangerous social phenomena that endanger human rights, democracy and the rule of law and that distort social justice. Therefore, this article seeks to reveal and analyse the link between smuggling and corruption as two social phenomena by discussing the common features of smuggling and corruption as distinct social phenomena, and evaluating the interrelationship of smuggling and corruption and their influence on the extent and spread of both criminal activities. The world uses various methods to diagnose smuggling and corruption: assessment of perceptions of these phenomena, assessment and understanding of experience when encountering cases of corruption or smuggling, legal statistics, etc. The article presents analysis of dynamics of and links between various smuggling and corruption- related criminal acts as social phenomena; it also examines the relation of dynamics of smuggling acts to dynamics of corruption- related criminal acts, provides common shared features of corruption and smuggling as separate social phenomena.

Smuggling and corruption are negative social phenomena; it is not an objective reality, because people create them. Smuggling is commonly referred to as illegal traffic of goods (or other items) across the state border, unlawful disposal of illegally imported goods that are subject to tax. Corruption is understood as any behaviour of a public servant or an equivalent person, which does not match their empowerment or set standards of behaviour, or a promotion of such behaviour in order to gain benefit for self or others, thus injuring the interests of individuals and the state. The authors of the article are of opinion that smuggling and corruption are among the most dangerous social phenomena that endanger human rights, democracy and the rule of law and that distort social justice. Therefore, this article seeks to reveal and analyse the link between smuggling and corruption as two social phenomena by discussing the common features of smuggling and corruption as distinct social phenomena, and evaluating the interrelationship of smuggling and corruption and their influence on the extent and spread of both criminal activities. The world uses various methods to diagnose smuggling and corruption: assessment of perceptions of these phenomena, assessment and understanding of experience when encountering cases of corruption or smuggling, legal statistics, etc. The article presents analysis of dynamics of and links between various smuggling and corruption- related criminal acts as social phenomena; it also examines the relation of dynamics of smuggling acts to dynamics of corruption- related criminal acts, provides common shared features of corruption and smuggling as separate social phenomena.

Il ricorso alla forza militare come mezzo di contrasto della tratta o del traffico di esseri umani è escluso a seguito di esame delle misure consentite dalla Convenzione di Palermo del 15 dicembre 2000, sulla lotta alla criminalità organizzata, dai due Protocolli, rispettivamente, sulla tratta e sullo smuggling ad essa annessi, nonché dalla Convenzione delle Nazioni Unite sul diritto del mare del 12 dicembre 1982. Eliminata ogni possibilità di analogia con la già discutibile prassi delle uccisioni mirate di terroristi tramite droni e precisate le condizioni e i presupposti della autorizzazione all'uso della forza nei confronti dei pirati somali da parte del Consiglio di sicurezza, si conclude che il ricorso alla forza militare contro gli "scafisti" che partono dalla Libia potrebbe integrare gli estremi della aggressione armata contro tale Stato e sicuramente sarebbe una violazione dell'intero sistema dei diritti umani e delle garanzie su cui è costruito lo Stato di diritto (principio di legalità del reato e della sanzione, tutela giurisdizionale, principi di personalità e colpevolezza, ecc.).

In Italia, il settore agricolo e quello del lavoro domestico sono caratterizzati da un alto impiego di manodopera straniera, spesso sottoposta a gravi forme di sfruttamento. Questo rapporto, oltre a illustrare i fattori che contribuiscono a rendere vulnerabili le lavoratrici e i lavoratori migranti, esamina la normativa nazionale in materia di tratta e sfruttamento mettendo in luce l'inadeguata formulazione di alcune norme nonché la loro disomogenea applicazione. Il rapporto inoltre evidenzia i limiti delle attuali politiche riguardanti lo sfruttamento lavorativo e la tratta, denunciando la scarsa attenzione del governo al fenomeno e in particolare alla tutela delle vittime. Il rapporto si conclude proponendo alcune strategie d'intervento, sia sul piano normativo che politico, prendendo specificamente in considerazione il settore agricolo e quello del lavoro domestico. ; La ricerca presentata in questo rapporto è stata svolta nell'ambito del progetto di ricerca TRAFFICKO - Trafficking for Labour Exploitation. Assessing Anti-Trafficking Interventions in Italy, co-finanziata dalle Open Society Foundations.

Cover -- Occhiello -- Indice -- Parte I I traffici illeciti: soggetti, tipologie, tecniche investigative -- I traffici illeciti nel Mediterraneo e le organizzazioni criminali transnazionali. Una introduzione alla ricerca NESMeS (Militello) -- I traffici illeciti nel Mediterraneo. Aspetti criminologici e tendenze evolutive (Punzo) -- The role of organized crime in illicit trades: drug trafficking, migrant smuggling, arms trafficking and cigarette smuggling (La Spina) -- Organizzazioni criminali transnazionali e traffico di migranti. L'esperienza nel Canale di Sicilia (La Chioma) -- Le tecniche investigative nel contrasto ai traffici di migranti, stupefacenti e sigarette (Mangiaracina) -- Parte II I singoli traffici illeciti -- L'incriminazione dello smuggling of migrants in Europa: una ricognizione comparatistica (Spena) -- I fondamenti normativi dell'incriminazione del favoreggiamento dell'immigrazione clandestina. Analisi delle problematiche linee di confine tra diritto europeo e diritto internazionale (Mitsilegas) -- Il traffico di migranti nel Mediterraneo in un ufficio giudiziario di frontiera. L'esperienza della Procura della Repubblica di Palermo (Ferrara) -- Il traffico di migranti nel Mediterraneo: validità della legge penale e tutela della persona (Orlando) -- Problemática de la trata de seres humanos en España. Regulación penal y tratamiento jurisprudencial (Corcoy) -- Política criminal multinivel en la trata y el tráfico de personas: especial consideración a los problemas de implementación del delito de trata en Alemania (Manzo Porto) -- Il traffico illecito di droghe leggere dal Mediterraneo all'Atlantico: punti fermi e questioni aperte (Siracusa) -- Il ruolo dell'organizzazione criminale nel contrasto al traffico illecito di tabacchi lavorati esteri (Omodei) -- Elenco degli autori -- Volumi pubblicati.

In recent years, trafficking in human beings has attracted an increasing media attention and the activism of civil society, as well as the efforts of international and intergovernmental organizations. With the so-called Palermo Protocol trafficking has entered into the political agenda and legislation of many countries and the number of studies have increased. Nevertheless, after almost fifteen years from the Palermo Protocol, there seems to be a lack of knowledge of the problem and a broad consensus on what is meant when we speak of human trafficking. Meanwhile, its representation refers constantly to its epochal dimensions as well as to its continued growth, involving primarily women and children. The acceptance and reproduction of these myths, rather than their critical analysis, seems to prevail along with the sensationalism of violent narratives presented as typical cases, especially with reference to cases of trafficking for sexual exploitation. These narratives seem to respond to a deliberate intention to maintain media attention, government support and, more generally, financing activities which contrast trafficking and support the victims. The international research on this theme has focused in particular on the victim, leaving apart the traffickers, exploiters and middle men. The paper traces myths and images of human trafficking that characterize recent years, focusing also on the most recent research perspectives and policy responses to the problem in the so-called trafficking destination countries, where the raising of border controls and the increased controls of the sex industry, in the case of trafficking for sexual exploitation, seem to feed the problem. ; info:eu-repo/semantics/acceptedVersion

Il contrasto al traffico di migranti nel diritto internazionale ed europeo. L'operazione EUNAVFOR MED nel Mar Mediterraneo. Scopo della ricerca è l'analisi del fenomeno del traffico di migranti in tutti i suoi molteplici aspetti, a partire dalla definizione di "traffico di migranti" data dal Protocollo; alle forme di criminalizzazione dello stesso; passando per la prevenzione del crimine e la cooperazione tra gli Stati parte; fino all'assistenza e alla tutela dei migranti trafficati. Il fulcro centrale dello studio è il dispiegamento di EUNAVFOR MED Operazione SOPHIA nel Mar Mediterraneo: il primo caso di operazione navale militare dell'Unione europea, autorizzata ex post dal Consiglio di Sicurezza delle Nazioni Unite, dotata di poteri di law enforcement, da un lato, e di polizia, dall'altro, nonché specificamente rivolta al contrasto al crimine organizzato transnazionale. Ci si è concentrati, in particolare, sul mandato e l'evoluzione dell'operazione dal momento della sua istituzione, nel maggio 2015, ad oggi, al fine di mettere in luce le criticità e le innovazioni che essa solleva alla luce del diritto internazionale ed europeo. Peculiare, poi, è il fatto che nell'ambito di EUNAVFOR MED sia stata creata una fitta rete di collaborazione tra Stati membri e agenzie dell'Unione europea, in particolare FRONTEX ed EUROPOL, sulla quale ci si è soffermati per comprendere come si applica, nella prassi, il coordinamento tra i vari organi. Infine, è stata rivolta un'attenzione particolare alla tutela effettiva dei migranti coinvolti in operazioni di traffico, a partire dai diritti fondamentali che trovano applicazione generale fino a quei diritti che vengono in rilievo in particolari situazioni, come il divieto di sfruttamento dei migranti e la protezione di coloro che hanno subito tortura o altri trattamenti inumani e degradanti. Una volta analizzati i punti critici dell'operazione da cui potenzialmente potrebbero scaturire violazioni di alcuni diritti fondamentali dei migranti, ci si è interrogati su chi, in tal caso, sarebbe da ritenersi responsabile per tali contravvenzioni, dal momento che la missione comprende azioni coercitive che si applicano in acque internazionali. Oltre a ciò, è stato necessario considerare, ai fini dell'attribuzione delle responsabilità, che gli Stati agiscono, nell'ambito dell'operazione Themis, prima Triton, coordinati dall'agenzia FRONTEX dell'Unione europea, e, nell'ambito dell'operazione SOPHIA, attraverso una decisione del Consiglio dell'Unione europea e sotto l'autorizzazione del Consiglio di Sicurezza delle Nazioni Unite. ; The Fight against Migrant Smuggling in International and European Law. The EUNAVFOR MED Operation in the Mediterranean Sea. The international juridical context of reference on the contrast to migrant smuggling is extremely complex. In fact, it reconnects a dense network of rights, obligations and responsibilities which do not derive only from the Protocol against the Smuggling of Migrants by Land, Sea and Air, but also from the Law of the Sea, Human Rights and Refugee Law. The research is focused on EUNAVFOR MED Operation SOPHIA in the Mediterranean Sea, as it was the very first case in which a military maritime operation was specifically adopted to tackle transnational organized crime and was provided with both law enforcement and police powers. Starting from the mandate of the operation, in May 2015, and its evolution up to now, the purpose of the analysis is to highlight the critical issues and the innovative features it entails under an International and European Law perspective. Furthermore, it worth noticing that around EUNAVFOR MED a dense net of intelligence and operational cooperation has been established between Member States and European Union agencies, such as EUROPOL and FRONTEX; so that, particular attention has been given to the juridical aspects related to the coordination issues between different institutions in this field. The last part of the research focus on the effective protection of migrants who are involved, at various levels, in migrant smuggling. After examining the critical issues, related to Operation SOPHIA, which may entail human rights violations of migrants, the controversial aspect of the allocation of responsibilities for such eventual violations has been questioned. In fact, it should be considered that States involved in the fight against migrant smuggling act both under the coordination of FRONTEX, as far ad Operation Themis is concerned, and in line with Resolution 2240 of the UNSC, in the field of Operation SOPHIA.

This article analyzes the Lithuanian model of criminalization of customs infringements, assessing it in accordance with the harmonized customs supervision system in the European Union, as well as in terms of consistency, reasonableness and proportionality. Questions of legality and control of the movement of goods across borders are common and obligatory to all countries of the European Union, therefore Lithuanian national legislation should be consistent with this legal regulation as much as possible, not to oppose it. This is also relevant for codes that lay down administrative and criminal liability for non-compliance with the common rules and procedures applicable to goods entering or leaving the customs territory of the Union. The Criminal Code of the Republic of Lithuania contains three norms establishing criminal liability for customs infringements: 1) smuggling (Art. 199); 2) customs fraud (Art. 199); 3) the unlawful non-export of goods or products from the Republic of Lithuania (Art. 200). All these crimes are classified as less serious and serious and this shows a great concern of the legislator about the damage caused by these infringements and the desire to insert in the norms a very strong element of dissuasion. In legal literature, this aspect of the existing criminal regulation is sometimes criticized due to excessive sanctions. On the other hand, in the public legal discussion there are no comments on the coherence and validity of the criminalization model established in the criminal legislation, whether all criminalized acts in this area really deserve a status of crime and properly aligned with the fact of belonging of the Republic of Lithuania to the common customs territory of the European Union and the Union Customs Code regulation. The article mostly focuses on these issues. The author of the article has drawn the following conclusions: 1) in the system of three norms that criminalize customs infringements can be seen both positively evaluated and preserved, as well as non-systemic and exclusionary features. Some of them may lead to excessive criminal liability, while others, on the contrary, leave room for legal gaps; 2) the status of customs offence deserves acts related to an attempt to avoid or mislead customs supervision in order to obtain unlawful tax benefits of a fixed amount. Other violations should lead to non-criminal sanctions. The model of criminalization should include avoiding and deceiving both the "external" customs supervision (applied at the border of EU customs union) and "internal" EU customs supervision (applied at the territory of EU customs union). The criterion, which establishes the basis for criminal liability for smuggling and other customs offenses, should be related with the evaded tax burden, but not with the value of transported goods and items. This criterion should be solid enough to not devalue the institute of criminal liability and consistent with general criminal legislation on tax evasion; 3) the possibility of imposing criminal liability solely for a lack of permission to transport some special kind of items across the state border (regardless of the value of the goods and status of goods under customs supervision), set in the norm of smuggling (art. 199), does not comply with the principle of proportionality; 4) the application of criminal liability for the non-declaration of cash when crossing the borders with non-EU countries, set in the norm of smuggling (art. 199), regardless of the origin of money and the purpose of the carriage, does not comply with the requirement of proportionality and aims of criminal law; 5) limitation of the subject of customs fraud (art. 199-1) to only goods brought to Lithuania from another European Union country unjustifiably restricts the scope of the norm, which does not cover violations of special procedures (customs warehousing, free zones, temporary admission, end-use, inward and outward processing) applicable to goods brought directly from third countries; 6) all customs related crimes can be merged into one article of the Criminal Code and included into section of financial criminal offenses.

This article analyzes the Lithuanian model of criminalization of customs infringements, assessing it in accordance with the harmonized customs supervision system in the European Union, as well as in terms of consistency, reasonableness and proportionality. Questions of legality and control of the movement of goods across borders are common and obligatory to all countries of the European Union, therefore Lithuanian national legislation should be consistent with this legal regulation as much as possible, not to oppose it. This is also relevant for codes that lay down administrative and criminal liability for non-compliance with the common rules and procedures applicable to goods entering or leaving the customs territory of the Union. The Criminal Code of the Republic of Lithuania contains three norms establishing criminal liability for customs infringements: 1) smuggling (Art. 199); 2) customs fraud (Art. 199); 3) the unlawful non-export of goods or products from the Republic of Lithuania (Art. 200). All these crimes are classified as less serious and serious and this shows a great concern of the legislator about the damage caused by these infringements and the desire to insert in the norms a very strong element of dissuasion. In legal literature, this aspect of the existing criminal regulation is sometimes criticized due to excessive sanctions. On the other hand, in the public legal discussion there are no comments on the coherence and validity of the criminalization model established in the criminal legislation, whether all criminalized acts in this area really deserve a status of crime and properly aligned with the fact of belonging of the Republic of Lithuania to the common customs territory of the European Union and the Union Customs Code regulation. The article mostly focuses on these issues. The author of the article has drawn the following conclusions: 1) in the system of three norms that criminalize customs infringements can be seen both positively evaluated and preserved, as well as non-systemic and exclusionary features. Some of them may lead to excessive criminal liability, while others, on the contrary, leave room for legal gaps; 2) the status of customs offence deserves acts related to an attempt to avoid or mislead customs supervision in order to obtain unlawful tax benefits of a fixed amount. Other violations should lead to non-criminal sanctions. The model of criminalization should include avoiding and deceiving both the "external" customs supervision (applied at the border of EU customs union) and "internal" EU customs supervision (applied at the territory of EU customs union). The criterion, which establishes the basis for criminal liability for smuggling and other customs offenses, should be related with the evaded tax burden, but not with the value of transported goods and items. This criterion should be solid enough to not devalue the institute of criminal liability and consistent with general criminal legislation on tax evasion; 3) the possibility of imposing criminal liability solely for a lack of permission to transport some special kind of items across the state border (regardless of the value of the goods and status of goods under customs supervision), set in the norm of smuggling (art. 199), does not comply with the principle of proportionality; 4) the application of criminal liability for the non-declaration of cash when crossing the borders with non-EU countries, set in the norm of smuggling (art. 199), regardless of the origin of money and the purpose of the carriage, does not comply with the requirement of proportionality and aims of criminal law; 5) limitation of the subject of customs fraud (art. 199-1) to only goods brought to Lithuania from another European Union country unjustifiably restricts the scope of the norm, which does not cover violations of special procedures (customs warehousing, free zones, temporary admission, end-use, inward and outward processing) applicable to goods brought directly from third countries; 6) all customs related crimes can be merged into one article of the Criminal Code and included into section of financial criminal offenses.

The article analyzes the legal concept of tax evasion and its equivalents in the system of special part of criminal legislation. The author, emphasizing subsidiarity of criminal law in relation with the tax law, assesses the quality and consistency of relevant norms of criminal code, rationality of criteria to criminalize various forms of tax evasion, discusses the ways to improve the legal regulation, draws attention to the issues of qualification of tax offenses illustrating his conclusions by reference to the relevant precedents of the Court of Cassation. The author draws attention to the lack of Criminal Code regulation, which by misunderstanding uses the notion of tax avoidance instead of tax evasion, while in the Code there is a whole chaotic set of tax evasion corresponding norms, which are scattered in different sections. This collection contains both the articles set out in the chapter of offenses against financial system (Chapter XXXII) and the articles defining offences against property, property rights and property interests (Chapter XXVIII), as well as offences against the economy and business (Chapter XXXI). The basic idea of the presented research is that the application of criminal liability for tax violations and their delimitation from non-criminal activity of tax payers must be based on classification of tax burden reduction adopted in the tax law. In other terms, the criminal justice must be able to distinguish between tax optimization, tax avoidance and tax evasion, as well as to ensure that criminal liability would be applied only for the illegal tax burden reduction which corresponds to the concept of tax evasion. Very important are also criterions of delimitation of the criminal and administrative liability for tax evasion, paying special attention to their clarity and rationality. The author is critical of the existing criminal legal regulation, according to which offences corresponding to the concept of tax evasion are scattered in different chapters of criminal legislation, are not compatible with each other and based on different legal logic. The author criticizes also the provision of article 220 of Criminal Code under which € 380 evasion is sufficient to result in criminal liability. According to the author, this size should be 25 times higher, while the existing criterion is inconsistent with the Code of Administrative Offenses. The author also criticizes part 1 of article 202 of Criminal Code, which establishes the criteria of criminal liability for illegal economic activities, one of them (entrepreneurial way) is very vague and naturally inherent in any business. This complicates the issue of criminal and administrative responsibility delimitation and creates favorable conditions to carry redundant criminal proceedings for minor violations. The article critically evaluates also the norms on deceptive and negligent accounting, in which the criteria of criminalization are extremely abstract. The author also advocates the need for a total decriminalization of negligent accounting as incompatible with the purposes of criminal legislation. The article also criticizes the definition of illicit enrichment which lacks the legal logic and rationality. According to the author, the criminality of illicit enrichment (art. 189(1) of CC) should not be associated with the value of the assets held, but to the value of concealed income from such assets are acquired. The article expresses the idea that criminal punishability of all tax evasion offenses must lead to the same criteria – the value of concealed or attempted to conceal taxes and income. All such tax evasion norms should be included into the financial crimes section of criminal legislation.

The article analyzes the legal concept of tax evasion and its equivalents in the system of special part of criminal legislation. The author, emphasizing subsidiarity of criminal law in relation with the tax law, assesses the quality and consistency of relevant norms of criminal code, rationality of criteria to criminalize various forms of tax evasion, discusses the ways to improve the legal regulation, draws attention to the issues of qualification of tax offenses illustrating his conclusions by reference to the relevant precedents of the Court of Cassation. The author draws attention to the lack of Criminal Code regulation, which by misunderstanding uses the notion of tax avoidance instead of tax evasion, while in the Code there is a whole chaotic set of tax evasion corresponding norms, which are scattered in different sections. This collection contains both the articles set out in the chapter of offenses against financial system (Chapter XXXII) and the articles defining offences against property, property rights and property interests (Chapter XXVIII), as well as offences against the economy and business (Chapter XXXI). The basic idea of the presented research is that the application of criminal liability for tax violations and their delimitation from non-criminal activity of tax payers must be based on classification of tax burden reduction adopted in the tax law. In other terms, the criminal justice must be able to distinguish between tax optimization, tax avoidance and tax evasion, as well as to ensure that criminal liability would be applied only for the illegal tax burden reduction which corresponds to the concept of tax evasion. Very important are also criterions of delimitation of the criminal and administrative liability for tax evasion, paying special attention to their clarity and rationality. The author is critical of the existing criminal legal regulation, according to which offences corresponding to the concept of tax evasion are scattered in different chapters of criminal legislation, are not compatible with each other and based on different legal logic. The author criticizes also the provision of article 220 of Criminal Code under which € 380 evasion is sufficient to result in criminal liability. According to the author, this size should be 25 times higher, while the existing criterion is inconsistent with the Code of Administrative Offenses. The author also criticizes part 1 of article 202 of Criminal Code, which establishes the criteria of criminal liability for illegal economic activities, one of them (entrepreneurial way) is very vague and naturally inherent in any business. This complicates the issue of criminal and administrative responsibility delimitation and creates favorable conditions to carry redundant criminal proceedings for minor violations. The article critically evaluates also the norms on deceptive and negligent accounting, in which the criteria of criminalization are extremely abstract. The author also advocates the need for a total decriminalization of negligent accounting as incompatible with the purposes of criminal legislation. The article also criticizes the definition of illicit enrichment which lacks the legal logic and rationality. According to the author, the criminality of illicit enrichment (art. 189(1) of CC) should not be associated with the value of the assets held, but to the value of concealed income from such assets are acquired. The article expresses the idea that criminal punishability of all tax evasion offenses must lead to the same criteria – the value of concealed or attempted to conceal taxes and income. All such tax evasion norms should be included into the financial crimes section of criminal legislation.