Abstract
This chapter provides the assessment of the compliance of EU national legislations on organized crime with the requirements set by Framework Decision (2008/841/JHA) (vertical analysis). The objective is to assess the level of approximation to the EU standards. The underlying assumption is that the more the rating of the approximation indicators are positive, the more the national legislations are approximated to the EU standard.
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Notes
- 1.
Article 1 para 1 of the FD: “‘criminal organisation’ means a structured association, established over a period of time, of more than two persons acting in concert with a view to committing offences which are punishable by deprivation of liberty or a detention order of a maximum of at least four years or a more serious penalty, to obtain, directly or indirectly, a financial or other material benefit.”
- 2.
See previous note.
- 3.
See Footnote 1.
- 4.
Article 1 para 2 of the FD: “‘structured association’ means an association that is not randomly formed for the immediate commission of an offence, nor does it need to have formally defined roles for its members, continuity of its membership, or a developed structure.”
- 5.
See previous footnote.
- 6.
With the law of 10 August 2005 however, the reference to the modi operandi of criminal organizations has been moved from Article 324bis of the Criminal Code (which provides the definition of the criminal organization) to Article 324ter (which punishes the participation in a criminal organization). This has been done to adapt Article 324bis to the requirement of the Palermo Convention (Traest 2006, 762), but the modi operandi are still mandatory requirements in order to punish the participation in a criminal organization. Other offences relating to criminal organizations do not require this element (see above Sect. 4.3.3).
- 7.
Article 2 of the FD:
“Offences relating to participation in a criminal organization
Each Member State shall take the necessary measures to ensure that one or both of the following types of conduct related to a criminal organisation are regarded as offences:
(a) conduct by any person who, with intent and with knowledge of either the aim and general activity of the criminal organisation or its intention to commit the offences in question, actively takes part in the organisation’s criminal activities, including the provision of information or material means, the recruitment of new members and all forms of financing of its activities, knowing that such participation will contribute to the achievement of the organisation’s criminal activities;
(b) conduct by any person consisting in an agreement with one or more persons that an activity should be pursued, which if carried out, would amount to the commission of offences referred to in Article 1, even if that person does not take part in the actual execution of the activity.”
- 8.
Article 3 para 1: “Each Member State shall take the necessary measures to ensure that:
(a) the offence referred to in Article 2(a) is punishable by a maximum term of imprisonment of at least between two and five years; or
(b) the offence referred to in Article 2(b) is punishable by the same maximum term of imprisonment as the offence at which the agreement is aimed, or by a maximum term of imprisonment of at least between two and five years.”
- 9.
Article 3 para 2 of the FD: “Each Member State shall take the necessary measures to ensure that the fact that offences referred to in Article 2, as determined by this Member State, have been committed within the framework of a criminal organisation, may be regarded as an aggravating circumstance.”
- 10.
Article 4 of the FD: “Each Member State may take the necessary measures to ensure that the penalties referred to in Article 3 may be reduced or that the offender may be exempted from penalties if he, for example:
(a) renounces criminal activity; and
(b) provides the administrative or judicial authorities with information which they would not otherwise have been able to obtain, helping them to:
(i) prevent, end or mitigate the effects of the offence;
(ii) identify or bring to justice the other offenders;
(iii) find evidence;
(iv) deprive the criminal organisation of illicit resources or of the proceeds of its criminal activities; or
(v) prevent further offences referred to in Article 2 from being committed.”
- 11.
Article 5 para 1 of the FD “Each Member State shall take the necessary measures to ensure that legal persons may be held liable for any of the offences referred to in Article 2 committed for their benefit by any person, acting either individually or as part of an organ of the legal person, and having a leading position within the legal person, based on one of the following:
(a) a power of representation of the legal person;
(b) an authority to take decisions on behalf of the legal person; or
(c) an authority to exercise control within the legal person.”
- 12.
Article 5 para 2 of the FD: “Member States shall also take the necessary measures to ensure that legal persons may be held liable where the lack of supervision or control by a person referred to in paragraph 1 has made possible the commission, by a person under its authority, of any of the offences referred to in Article 2 for the benefit of that legal person.”
- 13.
Article 6 para 1 of the FD: “Each Member State shall take the necessary measures to ensure that a legal person held liable pursuant to Article 5(1) is punishable by effective, proportionate and dissuasive penalties, which shall include criminal or non-criminal fines and may include other penalties, for example:
(a) exclusion from entitlement to public benefits or aid;
(b) temporary or permanent disqualification from the practice of commercial activities;
(c) placing under judicial supervision;
(d) judicial winding-up;
(e) temporary or permanent closure of establishments which have been used for committing the offence.”
- 14.
Article 6 para 1 of the FD: “… may include other penalties, for example:
(a) exclusion from entitlement to public benefits or aid;
(b) temporary or permanent disqualification from the practice of commercial activities;
(c) placing under judicial supervision;
(d) judicial winding-up;
(e) temporary or permanent closure of establishments which have been used for committing the offence.”
- 15.
Article 7 para 1 of the FD: “Each Member State shall ensure that its jurisdiction covers at least the cases in which the offences referred to in Article 2 were committed:
(a) in whole or in part within its territory, wherever the criminal organisation is based or pursues its criminal activities;”
References
Fabrizy EE (2007) Austria. Revue internationale de droit pénal 78(3–4):3–11 Rapports nationaux
Traest P (2006) Les règles de fond sur la lutte contre le crime organisé. In: Dirix E, Leleu Y-H (eds) The Belgian reports at the congress of Utrecht of the international academy of comparative law. Bruylant, Bruxelles
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Calderoni, F. (2010). Assessing Approximation: The Vertical Analysis. In: Organized Crime Legislation in the European Union. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-04331-4_5
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