Assets confiscation to combat organized criminality
Nowadays, we are witnessing an ever-changing[1] evolution of ordinary citizens’ position. Individuals and groups are no longer mere beneficiaries of administrative acts and procedures but – in a way – parts of them. In this very context, the regeneration of urban commons can be located, not only in renewal purposes, but as well in the involvement of city inhabitants. More specifically, urban regeneration is described[2] as «the recycling, transformation and innovation process of urban commons», contributing to promoting “urban creativity”, with the aim of ensuring and improving quality and accessibility.
Particularly, this writing wants to tackle the problem of “final use” of confiscated urban assets which are in a state of disrepair and neglect.
Before getting into the issue in question, it is necessary to clarify the meaning of confisca and “urban commons”.
In the Italian legal system, the antimafia confisca is a preventative property measure, introduced in 1965 and currently regulated by the so called Antimafia Code[3].
According to code provisions, in order to apply antimafia confisca two elements are required.
Starting from the subjective element, the individual who acquires the relevant asset must be recognized as “socially dangerous” at the moment of acquisition, irrespective of whether such status ceases or the person dies.
There are two objective elements: direct or indirect accessibility by the individual to the asset and existence of sufficient evidence in relation to the unlawful origin of the confiscated asset (such as the disproportion between the asset’s value and the income declared by the individual for tax purposes, as established by the legislator).
On the other hand, the “urban common assets” are generally defined[4] as «material, intangible and digital assets recognized by citizens and Public Administration as useful for individual and collective well-being.»
In the light of the foregoing, considering that confiscated assets are (usually) private assets which can be classified as “urban commons”, ordinary citizens’ involvement to administrative acts can be applied and procedures can play a role.
Pursuant to what discussed above, if it is true that private assets (both real estate and companies) can be classified as “urban commons”, the question is: Is it possible to apply the same art. 190, Codice dei contratti pubblici to confiscated assets so that they could be subject to the contract on social partnership and its procedure?
Art. 190, Codice dei contratti pubblici[5], introduced in the Italian legal system the so-called contract on social partnership, whose criteria and conditions can be defined by local authorities «on the basis of projects presented by individuals or groups as long as with regard to a specific territorial scope.»[6]
As clarified also by Antonella Manzione[7], the contract on social partnership provides for a call for tender where “a competition of ideas” occurs for the final use of common assets. It must be borne in mind, though, that this must happen within the limits established by the Italian Court of Auditors[8], which requires compliance with some elements previously identified by the local authority itself, such as the ratione personae scope.
More precisely, whereby there are “urban common assets” in a state of disrepair and neglect and the local authority intends to ensure their exploitation «through cultural initiatives, urban renewal, restoration and refurbishment for general interest objectives»,[9], it should issue a call for applications and then conclude the contract on social partnership.
Carlo Pezzullo
[1] In this connection, CHITI E., La rigenerazione di spazi e beni pubblici: una nuova funzione amministrativa?, in DI LASCIO F., GIGLIONI F., La rigenerazione di beni e spazi urbani. Contributi al diritto delle città, Il Mulino, Bologna, 2017.
[2] According to art. 2.1, Regolamento del Comune di Bologna.
[3] The d. lgs. 159/2011 as reformed by the Law 161/2017.
[4] According to art. 2.1, Regolamento del Comune di Bologna.
[5] The d. lgs. 50/2016, as revisited by d. lgs. 56/2017.
[6] Art. 190 Codice dei contratti pubblici.
[7] The Italian Consigliera di Stato Antonella Manzione, during a lesson at LUISS Guido Carli with Prof. Christian Iaione, 2018 nov. 20.
[8] Court of Auditors, sez. reg. Emilia-Romagna, 2016 march 23, n. 27; sez. reg. Lombardia, 2016 sep. 6, n. 225.
[9] Art. 190 Codice dei contratti pubblici.