This article explores the evolving intersections between civil law and criminal law within the framework of anti-mafia legislation, questioning the very feasibility of a «civil anti-mafia law». The study begins with an analysis of special legislation and its judicial interpretation, offering a privileged perspective on the issue. By examining the conceptual foundations of both legal disciplines, the paper seeks to construct a coherent legal paradigm that aligns with contemporary social and institutional needs. A central focus is the notion of «mafia subjectivity», which calls for a re-evaluation of the legal status concept, shifting from a solidarity-based, promotional function to a protective one. This reconceptualization entails the imposition of legal limitations aimed at neutralizing illicit transactions and organized crime activities. The discussion extends to the impact of preventive measures, such as asset seizure and confiscation, highlighting their legal and systemic implications. The second part of the study critically assesses the increasing role of new technologies in anti-mafia prevention, particularly the controversial restrictions on communication devices imposed on individuals under preventive measures. A recent ruling by the Italian Constitutional Court declared such restrictions unconstitutional, citing violations of fundamental rights such as freedom of communication and expression. The study questions whether the prohibition of digital access constitutes a modern form of «civil death», effectively erasing individuals from social existence beyond the scope of their criminal activities. The paper also addresses the paradoxical role of OSINT (open-source intelligence) in investigative processes, arguing that complete communication bans may counteract law enforcement objectives by eliminating valuable intelligence sources. Ultimately, this study underscores the need for a transparent and balanced approach to anti-mafia measures, ensuring that fundamental freedoms are not unduly sacrificed in the name of crime prevention. The dilemma remains: in the scales of justice, should the weight of security measures outweigh the intrinsic value of human personality and fundamental rights?
«Qualità» di mafioso, uso delle nuove tecnologie e tutela della personalità umana
Alberto Marchese
2026-01-01
Abstract
This article explores the evolving intersections between civil law and criminal law within the framework of anti-mafia legislation, questioning the very feasibility of a «civil anti-mafia law». The study begins with an analysis of special legislation and its judicial interpretation, offering a privileged perspective on the issue. By examining the conceptual foundations of both legal disciplines, the paper seeks to construct a coherent legal paradigm that aligns with contemporary social and institutional needs. A central focus is the notion of «mafia subjectivity», which calls for a re-evaluation of the legal status concept, shifting from a solidarity-based, promotional function to a protective one. This reconceptualization entails the imposition of legal limitations aimed at neutralizing illicit transactions and organized crime activities. The discussion extends to the impact of preventive measures, such as asset seizure and confiscation, highlighting their legal and systemic implications. The second part of the study critically assesses the increasing role of new technologies in anti-mafia prevention, particularly the controversial restrictions on communication devices imposed on individuals under preventive measures. A recent ruling by the Italian Constitutional Court declared such restrictions unconstitutional, citing violations of fundamental rights such as freedom of communication and expression. The study questions whether the prohibition of digital access constitutes a modern form of «civil death», effectively erasing individuals from social existence beyond the scope of their criminal activities. The paper also addresses the paradoxical role of OSINT (open-source intelligence) in investigative processes, arguing that complete communication bans may counteract law enforcement objectives by eliminating valuable intelligence sources. Ultimately, this study underscores the need for a transparent and balanced approach to anti-mafia measures, ensuring that fundamental freedoms are not unduly sacrificed in the name of crime prevention. The dilemma remains: in the scales of justice, should the weight of security measures outweigh the intrinsic value of human personality and fundamental rights?Pubblicazioni consigliate
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