Organized Crime Legislation in the European Union

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Organized Crime Legislation in the European Union

.

Francesco Calderoni

Organized Crime Legislation in the European Union Harmonization and Approximation of Criminal Law, National Legislations and the EU Framework Decision on the Fight Against Organized Crime

Francesco Calderoni Via Valparaiso 8 20144 Milano Italy [email protected]

ISBN: 978-3-642-04330-7 e-ISBN: 978-3-642-04331-4 DOI 10.1007/978-3-642-04331-4 Springer Heidelberg Dordrecht London New York Library of Congress Control Number:2009939122 # Springer-Verlag Berlin Heidelberg 2010 This work is subject to copyright. All rights are reserved, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilm or in any other way, and storage in data banks. Duplication of this publication or parts thereof is permitted only under the provisions of the German Copyright Law of September 9, 1965, in its current version, and permission for use must always be obtained from Springer. Violations are liable to prosecution under the German Copyright Law. The use of general descriptive names, registered names, trademarks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. Cover design: WMXDesign GmbH, Heidelberg, Germany Printed on acid-free paper Springer is part of Springer Science+Business Media (www.springer.com)

Acknowledgement

This book benefited from many valuable contributions. I am indebted to many people. I have learned much from this experience, firstly about life and about me. Thanks to my parents Giovanna and Alessandro and to my brother Marco. Thanks to my uncle and aunt, Augusto and Kimberly and to Steve and Kathy. Thanks to my friends, to Benedetto and Anneleen. Above all to Anna. Thanks to past and present people from Transcrime. Prof. Ernesto Savona believed in me and supported my project. Many colleagues and friends offered me useful suggestions and tolerated my unusual requests. A special thanks goes to Areti Antoniou, Francesca Belton, Federica Curtol, Francesco Gosetti, Damiano Salvetti, Valentina Tenti. Some professors, colleagues and fellow researchers provided me important support and information. Among them, I would like to mention Yvon Dandurand, Simona Diblikova, Gabriele Fornasari, Bart Keupink, Goran Klemencic, Stefano Manacorda, Vincenzo Militello, Darryl Plecas, Jean Pradel, Christian Schuster. The research could not have been started without the fundamental support of the following individuals and institutions: l

l

l

l

l

United Nations Office on Drugs and Crime – Dimitri Vlassis and Demostenes Chryssikos European Police College CEPOL – Italian contact point – Rossana Farina, Salvatore Siena and Emanuele Marotta European Judicial Network EJN – Angel Galgo, Fa´tima Ae´lia Pires Martins, Patricia Rosochowicz General Secretariat, Council of the European Union – Hans Nilsson, Guy Stessens, Paola Fiore Eurojust-Italian Desk – Carmen Manfredda, Cristiano Ripoli, Filippo Spiezia

Many national experts contributed to the research answering the questionnaire. Without their assistance completion of this book would have not been possible. They are: l l

Austria – Helmut Ba¨rtl Cyprus – Panayiotis Nicolaides v

vi l l l l l l l l l l l l l l l l l l l

Acknowledgement

The Czech Republic – Marcela Prˇikrylova´, Miroslav Polcar, Petr Langer ¨ lle Eelmaa Estonia – U Finland – Sami Kiriakos France – Marie-Pierre Agneray Germany – Wolfgang Niewald, Perdita Kro¨ger Greece – Alexandros Anastasiadis, Saharides Dimitrios Ireland – Gerry Hickey, Hugh Boyle Italy – Stefano Dodaro, Furio Tiripicchio, Antonio Mannoni Latvia – Andris Kalnin¸sˇ Lithuania – Irmantas Mikelionis Malta – Micallef Dominic The Netherlands – Bart Keupink, Paul Verloop Poland – Elzbieta Wolinska-Wro´bel Portugal – Joana Gomes Ferreira, Teresa Alves Martins Romania – Anghel Cristian, Delia Stanescu Slovakia – Ladislav Hamran Slovenia – Bojan Dobovsˇek ˚ stro¨m Sweden – Bo A The United Kingdom – Ian Welch

This book covers the legislation of 27 Member States of the European Union. I tried to provide the most up-to-date and reliable information. I apologize for any mistake. I will be happy to receive comments and criticisms at [email protected].

Contents

1

Harmonization and Approximation Policies in the European Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1.1 Defining Harmonization and Approximation of Criminal Law in the EU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1.1.1 Harmonization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1.1.2 Approximation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1.2 The EU Policy in the III Pillar and Harmonization and Approximation of Criminal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 1.2.1 The Evolution of the EU Policy on Approximation and Harmonization of Criminal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 1.2.2 Harmonization and Approximation of Criminal Law and the Principle of Mutual Recognition . . . . . . . . . . . . . . . . . . . . . . . 16 1.3 Conclusions of Chapter 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

2

Organized Crime Legislation: Reasons and Background for the Assessment of Harmonization and Approximation . . . . . . . . . . . . 2.1 Reasons for Assessing the Sector of Organized Crime . . . . . . . . . . . . . . . 2.1.1 Reasons Relating to the EU Policy in the III Pillar . . . . . . . . . . . . 2.1.2 The Lack of Comparative Research in the Sector of Organized Crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 The Main Instruments Aiming at Harmonization and Approximation of EU Member States’ Organized Crime Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.1 The Joint Action on Making It a Criminal Offence to Participate in a Criminal Organization in the Member States of the European Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.2 The United Nations Convention Against Transnational Organized Crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.3 The Framework Decision on the Fight Against Organised Crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

21 21 22 25

26

27 32 35

vii

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Contents

2.2.4 Remarks on the Legal Instruments Aiming at Harmonization and Approximation of Organized Crime Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 2.3 Conclusions of Chapter 2. The Assessment of Organized Crime Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 3

4

The Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 The Methodology: Assessing Through Indicators . . . . . . . . . . . . . . . . . . . . 3.1.1 Objectives, Operational Definitions and Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1.2 Data Gathering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1.3 The Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Possible Problems Related to the Methodology . . . . . . . . . . . . . . . . . . . . . . . 3.3 Conclusions of Chapter 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

47 47

Assessing Harmonization: The Horizontal Analysis . . . . . . . . . . . . . . . . . . . . 4.1 Structure of Criminal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1.1 Criminal Organization Offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1.2 Aggravating Circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1.3 Punishability of the Mere Agreement to a Criminal Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 Requirements of the Criminal Organization . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.1 Number of Members of a Criminal Organization . . . . . . . . . . . . . . 4.2.2 Structure of the Criminal Organization . . . . . . . . . . . . . . . . . . . . . . . . 4.2.3 Continuity of the Criminal Organization . . . . . . . . . . . . . . . . . . . . . . . 4.3 The Activities of a Criminal Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.1 Number of Predicate Offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.2 Type of Predicate Offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.3 Additional Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4 The Penalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4.1 Standard Penalty for Participation/Membership . . . . . . . . . . . . . . . 4.4.2 Penalty Differentiation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.5 Collaborators with Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.5.1 Benefits for Collaborators with Justice . . . . . . . . . . . . . . . . . . . . . . . . . 4.5.2 Requirements for Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.6 Legal Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.6.1 Liability of Legal Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.6.2 Sanctions for Legal Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.7 Rules on Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.8 Conclusions of Chapter 4. Considerations on the Harmonization of Criminal Organization Legislation Among EU Member States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.8.1 Different Criminal Law Approaches to Organized Crime . . . . 4.8.2 The Level of Harmonization Among EU Member States . . . .

55 55 55 59

47 50 51 52 54

64 68 68 71 74 77 77 80 84 89 89 92 96 96 99 102 102 106 110

114 115 117

Contents

5

6

Assessing Approximation: The Vertical Analysis . . . . . . . . . . . . . . . . . . . . . . 5.1 Article 1: Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1.1 Number of Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1.2 Number of Predicate Offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1.3 Type of Predicate Offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1.4 Structure of the Criminal Organization . . . . . . . . . . . . . . . . . . . . . . . 5.1.5 Continuity of the Criminal Organization . . . . . . . . . . . . . . . . . . . . . . 5.1.6 Additional Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 Article 2: Offences Relating to Participation in a Criminal Organisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3 Article 3: Penalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.1 Standard Penalty for Participation/Membership . . . . . . . . . . . . . . 5.3.2 Aggravating Circumstance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4 Article 4: Special Circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5 Article 5: Liability of Legal Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5.1 Crimes Committed by Persons Having a Leading Position Within the Legal Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5.2 Crimes Made Possible by a Lack of Supervision or Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.6 Article 6: Penalties for Legal Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.6.1 Criminal/Non-Criminal Fines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.6.2 Other Penalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.7 Article 7: Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.7.1 Territorial Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.7.2 Jurisdiction over Offences Committed by a National . . . . . . . . . 5.7.3 Jurisdiction over Offences Committed for the Benefit of a Legal Person Established in the Territory . . . . . . . . . . . . . . . . 5.8 Conclusions of Chapter 5. Considerations on the Level of Approximation to the Standards of the Framework Decision (2008/841/JHA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Conclusions and Implications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1 Possibilities for Further Research . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2 Considerations on the European Policies on Harmonization and Approximation of Organized Crime Legislation . . . . . . . . . . . . . . . . . . . . . 6.2.1 Criminal Organization Offences: A Trade-Off Between Effectiveness and Legality? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2.2 The Expected Impact of the Framework Decision (2008/841/JHA): A Further trompe l’œil with Possible Dangerous Consequences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3 Final Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

ix

123 123 123 125 126 128 130 131 134 136 137 138 141 143 143 145 147 147 149 152 152 152 153

155 165 165 166 166

170 172

Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187

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Abbreviations

AFSJ CEECs CoE COO ECHR ECJ EU FD/Framework Decision (2008/841/JHA) JA/Joint Action (98/733/JHA)

JHA MS n/a OECD OSCE TEC TEU TFEU UN

Area of freedom, security and justice Central and Eastern European countries Council of Europe Criminal Organization Offence European Court of Human Rights European Court of Justice European Union Framework Decision on the Fight against Organized Crime (2008/841/JHA) Joint Action on making it a criminal offence to participate in a criminal organization in the Member States of the European Union (98/733/JHA) Justice and home affairs Member State not applicable, not available Organisation for Economic Co-operation and Development Organization for Security and Co-operation in Europe Treaty establishing the European Community Treaty on European Union Treaty on the functioning of the European Union The United Nations

xi

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Introduction

This book assesses the level of harmonization and approximation of organized crime legislation among European Union Member States (EU Member States). Chapter 1 defines the concepts of harmonization and approximation and clarifies their relationship. It also argues the evolution of the EU policy of harmonization and approximation in the sector of Justice and Home Affairs. Finally it points out the lack of scientific research assessing harmonization and approximation of organized crime legislation among EU Member States. Chapter 2 argues the reasons for an assessment of harmonization and approximation of EU Member States’ criminal legislation in the specific sector of organized crime. Some reasons relate to the evolution of the EU policy in the JHA, others to the lack of comparative research in this field. In particular, three international legal instruments exist aiming at the harmonization and approximation of organized crime legislation. These three instruments attempt to harmonize and approximate national legislations on organized crime, but scientific research has raised a number of criticisms about their excessive broadness and actual enforceability. Chapter 3 presents the methodology for the assessment of harmonization and approximation of organized crime legislation among EU Member States. In order to avoid the difficulties related to the differences among legal systems and traditions, the assessment has been based on two sets of indicators. The first set (indicators of harmonization) rates EU Member States’ national legislation in crucial issues of organized crime legislation. The second set (indicators of approximation) rates the level compliance of EU Member States’ national legislations with the requirements set by the Framework Decision on the Fight against Organized Crime. This methodology represents a first attempt to scientifically assess harmonization and approximation of national criminal legislation. It may also apply to other sectors of the EU policy of harmonization and approximation of criminal law. Chapter 4 provides the assessment of the level of harmonization of organized crime legislation among EU Member States. The assessment is made through an horizontal analysis of the national legislations. The analysis provides tables, graphs

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and maps for a better presentation of the national legislation. The results show the inconsistencies among EU Member States’ organized crime legislation. Chapter 5 provides a vertical analysis of the level of approximation of organized crime legislation to the requirements set by the Framework Decision on the Fight against Organized Crime. The legislation of each EU Member State is rated against the EU requirements. The analysis provides tables and maps for a better understanding of the impact of the Framework Decision on national criminal law. This assessment provides a much needed gap analysis, evaluating the compliance of EU Member States’ legislation with the EU standards at the moment of the entry into force of the Framework Decision. Chapter 6 briefly identifies opportunities for further research, provides some general considerations on the EU policy on harmonization and approximation and concludes summarizing the results.

Chapter 1

Harmonization and Approximation Policies in the European Union

It is frequent to encounter harmonization and approximation when dealing with international and particularly European cooperation in criminal matters. In general, they refer to the creation of common or model definitions of serious forms of crimes in order to enhance better cooperation and enforcement. Despite the frequent use of these concepts, their meaning is still unclear. Both policymakers and practitioners interpret them in different and seldom contrasting ways. Even scientific literature refers to harmonization and approximation in different terms. Sometimes they are objectives, sometimes methods or processes. This equivocality has brought about different approaches and opinions on harmonization and approximation of criminal law, with lively debates between enthusiasts and sceptics. The difficulties in the conceptualization of harmonization and approximation of criminal law reflect in the European Union (EU) policy in the III pillar.1 Commentators have frequently criticized the EU approach to harmonization and approximation of criminal law. In particular, questions concern the democratic legitimacy of EU institutions in adopting legal instruments which affect national criminal law, the selection of the sectors of the EU’s intervention and finally the overall quality of these instruments. This chapter provides some basic notions and tools on harmonization, approximation and the European Union policies. The first section provides definitions of harmonization and approximation of criminal law in the EU context. The second section briefly summarizes the evolution of the EU policy in relation to harmonization and approximation and argues the lack of scientific research assessing the levels of harmonization and approximation.

1 Since the Treaty of Maastricht (entered into force in 1993), the European Union is commonly referred as a structure divided into three pillars: the European Community (first pillar), the Common Foreign and Security Policy (second pillar) and the Police and Judicial Co-operation in Criminal Matters, formerly Justice and Home Affairs until the entry into force of the Treaty of Amsterdam in 1999 (third pillar).

F. Calderoni, Organized Crime Legislation in the European Union, DOI 10.1007/978-3-642-04331-4_1, # Springer-Verlag Berlin Heidelberg 2010

1

2

1.1

1 Harmonization and Approximation Policies in the European Union

Defining Harmonization and Approximation of Criminal Law in the EU

Harmonization and approximation are frequently mentioned in relation to EU policy in the III pillar. However, in the political or scientific debate they are frequently confused and no clear distinction appears. This section provides basic working definitions of the two concepts. Section 1.1.1 defines harmonization and presents its salient features, while Sect. 1.1.2 deals with approximation.

1.1.1

Harmonization

Currently there is no legal definition of the concept of harmonization of criminal law, although it is widely used in the political and scientific debate (Tadic 2002, 2). The term does not even appear once in the whole Treaty on European Union (TEU). It appears only in the Treaty establishing the European Community (TEC), but not with reference to criminal law. Scientific literature has not compensated for this lack of definition. Scholars interpret harmonization of criminal law with different and frequently divergent meanings. Nevertheless, when reviewing existing legal literature on harmonization of criminal justice systems, it is possible to extract a basic common meaning of the term. This can be summarized in “the elimination of disparities between the criminal justice systems of different States” (Tadic 2002, 8; Joutsen 2002b, 410). The core of this common meaning is the elimination of disparities or differences. This definition of harmonization differs significantly from what the term means in the natural language. In natural language, “harmonize” means “to bring into harmony, agreement or accord; to make harmonious” (The Oxford English Dictionary, 1989). Harmony means “combination or adaptation of parts, elements, or related things, so as to form a consistent and orderly whole; agreement, accord, congruity” (The Oxford English Dictionary, 1989). In general, harmony is the situation where there is no conflict or friction. In harmony differences are maintained, since “differences are essential to harmony” (Tadic 2002, 4–6; Manacorda 2005b, 65–66; Boodman 1991, 701). Thus, harmonization can be defined as the “process of (re)ordering the relationship between diverse elements in accordance with a prefixed standard so as to avoid or eliminate friction” (Tadic 2002, 16). There is a contrast between the meaning of harmonization commonly adopted in the legal sector (elimination of differences) and its meaning in the natural language (elimination of frictions). In the law context, harmonization is frequently misconceived and is used in a sense that differs significantly from its general meaning, since it aims at eliminating differences instead of eliminating frictions among different legal systems (Tadic 2002, 7). In a more considered perspective, harmonization of criminal legislation should not aim at eliminating differences among legal systems, but rather remove frictions in order to make different systems more consistent among them (Nelles 2002, 34).

1.1 Defining Harmonization and Approximation of Criminal Law in the EU

3

Shifting the focus from the elimination of differences to the elimination of frictions is a crucial passage. It brings back the interpretation of the concept of harmonization to its natural meaning. It avoids confusion with the concept of unification of criminal law (Boodman 1991, 704) (and with the concept of approximation, see Sect. 1.1.2). It also provides guidelines for an effective use of harmonization of criminal law. Indeed, harmonization should intervene only when frictions exist and need to be removed. This idea should drive policymakers when deciding whether to harmonize criminal law. Evidence of frictions should support the decision to harmonize legislation. Scientific research, but also by operational experience of law enforcement agencies may provide this evidence. For the purpose of this book, the concept of harmonization of criminal law is used in its more appropriate interpretation. It means the process of modifying different criminal legislations in order to improve their consistency and eliminate frictions among them. Harmonization of criminal law is a broad and flexible concept. This means that there is no specific procedure for harmonizing legal systems, nor do specific legal instruments exist. Harmonization can thus result from very different activities and processes. These may include spontaneous convergence of legislation passed by national legislators, jurisprudence of supranational courts such as the European Court of Human Rights (ECHR) or the European Court of Justice (ECJ), interpretation of national laws in conformity with principles of law acknowledged by the European legislation and praxis developed through constant dialogue and cooperation with other countries (Bernardi 2007, 716). In the European context, harmonization of criminal law may be the result of several drivers. There are continental instances, like the European Union, the Schengen system and the Council of Europe and there are international or even global instances, like the Organisation for Economic Co-operation and Development (OECD), Organization for Security and Co-operation in Europe (OSCE), the United Nations (UN). In the particular context of the EU, harmonization of criminal law has developed considerably. This process has been defined as “Europeanization of criminal law” (Bernardi 2007, 716). Harmonization is a horizontal concept. The ultimate goal of harmonization is to remove all frictions among different systems, thus achieving a legal harmony. However, harmonization does not give us the content of this (rather utopian) legal harmony. There is no “best solution” or “best legislation”. There is no predetermined benchmark. Harmonization involves elements that are different, but equal in value. No legal system has higher status or consideration. This makes harmonization of criminal law a horizontal concept. This is a fundamental premise when assessing the level of harmonization among different legal systems. The nature of harmonization influences the assessment of harmonization. The first step is the identification of similarities and differences among criminal legislations. Then, possible frictions must be identified. This process is without prejudice on the type of policy approach and on the effectiveness of national criminal legislation. The assessment of the level of harmonization among different systems is independent from the possibly different approaches adopted by one or more

4

1 Harmonization and Approximation Policies in the European Union

countries. Different national approaches may (or may not) be harmonized. The existence of frictions is the only relevant parameter. Difference alone (as long as no frictions are present) is irrelevant. Moreover, the assessment of the level of harmonization among EU Member States is independent from the quality/ effectiveness of the legislation in itself. National legislations may be harmonized (no frictions among them), but still ineffective in achieving their goals (e.g. preventing and/or countering crime). In this case, a high level of harmonization corresponds to poor or ineffective legislation (low quality/effectiveness). Contrarily, national legislations may be not harmonized (frictions are present), but each legislation may still be an effective solution to criminal problems. In this case, a low level of harmonization corresponds to good or effective legislation (high quality/effectiveness). In conclusion, it is important to remind that a high level of harmonization does not imply good legislation. Harmonization and quality/ effectiveness are independent concepts and should not be confused.

1.1.2

Approximation

Approximation is different from harmonization. However, the concept of approximation is frequently identified with harmonization. This confusion can be misleading. A first contribution to the definition of approximation comes from the TEU. The word approximation is expressly used in the TEU in relation to criminal legislation, whereas there is no mention of the word harmonization. Approximation of rules in criminal matters represents one of the instruments to achieve the objective of the III pillar, i.e. an “area of freedom, security and justice” (AFSJ) (Article 29 of the TEU). Second, Article 31, para 1 e specifies the scope for approximation of legislation in criminal matters. It allows for “progressively adopting measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organized crime, terrorism and illicit drug trafficking”. The TEU also provides a specific legal instrument, created purposely for approximation. This is the framework decision. Framework decisions are “binding upon the Member States as to the result to be achieved but shall leave to the national authorities the choice of form and methods” (Article 34 para 2 b of the TEU).2 The binding effect of framework decisions is actually more formal than 2 The TEU also specifies that framework decisions “shall not entail direct effect,” in order leave EU MS control over the implementation of EU legal instruments into their criminal justice systems. On this point, the ECJ has issued an innovative judgment in the Pupino case (Case C-105/03, judgment of 16 June 2005). The Court argued that national courts have the obligation to interpret national legislation according to the principle of conforming interpretation also in presence of measures of the III pillar, such as a Framework Decision. This principle was so far admitted only for I pillar legislation and requires national laws to be interpreted, as far as possible, in conformity with legal instruments of EU source (Bernardi 2007, 727; Manacorda 2007a, 907; Mitsilegas 2009, 26–31; Fletcher et al. 2008, 35–37).

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5

effective (Bernardi 2007, 722). The European institutions, and particularly the Commission, are not empowered to bring a Member State before the European Court of Justice for failure to fulfil the obligations under a framework decision.3 The Commission cannot exercise the role of watchmen, it plays under Community law. Therefore, it cannot push Member States to effectively implement a framework decision (Fletcher et al. 2008, 35 and 71; Mitsilegas 2009, 18). The implementation of these measures rests ultimately within the political will of a Member State (Bernardi 2007, 723). The TEU provides a rather narrow scope for the approximation of criminal law. It should be bound to the setting of minimum standards for the constituent elements and the sanctions for three serious forms of crime (Fletcher et al. 2008, 105). Its only instrument should be the framework decision (Vermeulen 2002b, 69; Perron 2005, 8; Weyembergh 2006, 185).4 Approximation is a narrow and specific concept. Approximation is an exclusively EU process, strictly related to the development of the EU policy in the III pillar of the EU (Bernardi 2007, 719). No other policy sector refers to approximation of criminal law with the same precision. This implies that the EU III pillar policy and particularly framework decisions approximating criminal laws can provide further elements for the definition of approximation. In general, framework decisions provide for minimum standards of regulation. All EU Member States must comply with them, although the modalities of the implementation are left to their choice. First, this implies the elimination of national norms in contrast or differing from the EU standards (Vermeulen 2002b, 73). The elimination of differences among legal systems is the essence of this mechanism. Approximation aims at eliminating differences as far as they are incompatible with the minimum standards set by a framework decision. A national provision directly contrasting with the text of a framework decision has to be removed to ensure the full implementation of the EU legislation. Second, Member States are free to regulate further. This means, for example, that a Member State is free to criminalize other behaviours than the ones required by an EU approximation instrument or to extend circumstances beyond the scope provided by an EU approximation instrument. The only limit is the compliance with the minimum requirements set by the framework decision. This implies that EU Member States are free to establish stricter rules, if they still comply with the EU standards. For example, if a Framework Decision requires punishing a given offence with up to three years of maximum imprisonment, a Member State imposing a penalty of up to five years of maximum imprisonment to the same offence is still complying with the EU requirements. 3

Article 226 TEC provides the Commission with this power in the context of the first pillar. The wording of the TEU is nevertheless quite vague and open. This has enabled different interpretation of the scope of the III pillar and approximation (Mitsilegas 2009, 85–86; Weyembergh 2005b, 154; Peers 2006, 383). However, a restrictive interpretation seems to be the most appropriate and convincing one (Vermeulen 2002b, 69). 4

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In the light of these characteristics, for the purpose of this book, approximation of criminal law is the process of modifying different criminal legislations in order to eliminate differences contrasting with the minimum standard set by a framework decision. Approximation depends on EU policies in the III pillar. It is enacted only when the EU issues a framework decision setting minimum standards for national criminal legislation. Consequently, the EU institutional and political trends are fundamental drivers of the approximation of criminal law. For example, the adoption of a framework decision requires unanimous approval by all Member States. Only a significant political consensus can lead to the approbation of framework decisions. This implies that approximation is frequently associated with compromises. Naturally, the text of a framework decision usually reflects the need to mediate among very different positions (Weyembergh 2005b, 15). This reflects on the final choices and in particular on the minimum standards set by framework decisions (Lavenex 2007, 770; Weyembergh 2005a, 1576). Approximation is a vertical concept. The focus of the process of approximation is the elimination of differences among legal systems, when these are contrasting with the EU minimum standards. These minimum standards are the benchmark for approximation. Since Member States are obliged to implement framework decisions into national legislation, the EU minimum standards must prevail on national law. EU standards have a higher position than national criminal legislation contrasting with them. Consequently, approximation to the EU standards depends on type of approach adopted by national legislations. Any regulation contrasting with the EU standards should be removed. Contrarily to harmonization, where frictions are intrinsically negative, for approximation the selection of the minimum standards is a complex political decision. This decision rests within the European legislator that selects the sectors to approximate, drafts approximation instruments and chooses the minimum standards that Member States have to implement. The assessment of the level of approximation verifies the compliance with EU minimum standards set by a framework decision. The first step is the identification of the EU requirements, by dividing a framework decision into separate requirements or standards (e.g., each article may contain a different requirement). Subsequently, national legislations are rated against each requirement. The assessment of the level of approximation is independent from the quality/ effectiveness of both national legislation and the EU standards. National legislation may be fully approximated (compliant with the EU standards set by a framework decision), but still ineffective in achieving its goals (e.g. preventing and/or countering crime). In this case, a high level of approximation matches a low quality of legislation. Contrarily, EU national legislation may be not approximated (not complying with the requirements of a framework decision), but still very effective in countering crimes. In conclusion, just as for harmonization, it is important to highlight that a high level of approximation does not imply per se good legislation. Approximation to the EU standard and quality/effectiveness of legislation are two different concepts.

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7

The EU Policy in the III Pillar and Harmonization and Approximation of Criminal Law

The idea of harmonizing national criminal law among EU Member States is not new and several international instruments were adopted before the entry into force of the Treaty of Amsterdam in order to harmonize national legislations (Vermeulen 2002b, 67). However, the process of harmonization advanced with a slower pace, either through the jurisprudence of the ECHR or through international conventions or through spontaneous convergence of national laws, seldom guided by international legal instruments without binding effects. This section deals with the salient points of the EU policy on harmonization and approximation of criminal law. The first subsection (Sect. 1.2.1) describes the evolution of the EU policies and instruments in this field, while the second subsection argues the relation between harmonization and approximation of criminal law and the principle of mutual recognition (Sect. 1.2.2).

1.2.1

The Evolution of the EU Policy on Approximation and Harmonization of Criminal Law

The Treaty of Amsterdam (entered into force on the 1st of May 1999) gave significant momentum to this process through the introduction of the concept of approximation (Weyembergh 2006, 186; Bernardi 2007, 719; Fletcher et al. 2008, 173; Mitsilegas 2009, 86). The TEU now provided framework decisions as specific legal instruments for the approximation of criminal law, binding upon Member States as to the results. In this context it is possible to identify the functions of harmonization and approximation of criminal law and a specific trend in the EU production of framework decisions.

1.2.1.1

Functions of Harmonization and Approximation and the Trend in Framework Decisions

In the new context of the “area of freedom, security and justice”, harmonization and approximation of criminal law play multiple functions. These are both autonomous and auxiliary functions (Weyembergh 2005b). There are two autonomous functions of harmonization and approximation (Weyembergh 2005b, 164–170). First, harmonization and approximation may provide useful for effective fight against crime. Contrasting legal systems may create opportunities for criminals. Harmonization and approximation should remove obstacles to an effective action against cross-border forms of criminality (Weyembergh 2005a, 1578–1580; Spencer 2002, 47–48; Joutsen 2006, 30).

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Second, harmonization and approximation may reduce inequalities of treatment. Contrasting legal systems may have different impacts on people’s lives. A certain behaviour may constitute a criminal offence in one country and not in another, or just receive very disparate criminal treatment. This may contrast with the idea of a European citizenship, where the principle of free movement of people is established. Harmonization and approximation may have an important symbolic role in implementing the common values shared by all European citizens (Weyembergh 2005a, 1580–1581; Spencer 2002, 43–44; Vogel 2002, 60–62; Joutsen 2006, 30). The auxiliary functions of harmonization and approximation are two (Weyembergh 2005b, 155–163). First, harmonization and approximation may have a role of support to the functioning of judicial cooperation in criminal matters. Indeed, the TEU included approximation of criminal law in Article 31, which deals with judicial cooperation in criminal matters. (Weyembergh 2005a, 1574–1577; Vogel 2002, 62–63; Joutsen 2006, 30). Second, harmonization and approximation are an important step for the effective functioning of European bodies in the field of criminal policy (e.g. Europol, Eurojust, but eventually a European Public Prosecutor) (Weyembergh 2005a, 1577). In this perspective, framework decisions have quickly become useful and popular legal instruments among EU policymakers, because they made it possible to avoid the long procedures connected with the negotiation, signature and ratification of international conventions (Vermeulen 2002b, 70; Peers 2004, 8; Vogel 2002, 60; Weyembergh 2006, 187; Bernardi 2007, 721–722). For this reason, the EU has increasingly adopted framework decisions since the entry into force of the Treaty of Amsterdam. The popularity of framework decisions has caused the introduction of a great number of these instruments. Strikingly, this trend occurred also in sectors that appear to be outside the narrow scope of a strict interpretation of the TEU, i.e. minimum rules concerning the constituent elements of crimes and penalties for organized crime, terrorism and drug trafficking (Vermeulen 2002b, 70; Weyembergh 2005a, 1569). This trend has two dimensions. The first dimension concerns substantive criminal law. The EU adopted framework decisions for the approximation of a wide series of offences, not always directly related to organized crime, terrorism and drug trafficking. A quick review of the framework decisions approximating national criminal legislations clearly confirms this extension.5 5

In the field of substantive criminal law, the EU has issued the following framework decisions: Council Framework Decision 2000/383/JHA of 29 May 2000 on increasing protection by criminal penalties and other sanctions against counterfeiting in connection with the introduction of the euro, Council Framework Decision 2001/413/JHA of 28 May 2001 combating fraud and counterfeiting of non-cash means of payment, Council Framework Decision 2001/500/JHA of 26 June 2001 on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime, Council Framework Decision 2002/629/JHA of 19 July 2002 on combating trafficking in human beings, Council Framework Decision 2002/946/JHA of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence, Council Framework Decision 2003/80/JHA of 27 January 2003 on the protection of the

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The second dimension concerns criminal procedure and cooperation in criminal matters in general. The EU introduced framework decisions for purposes other than the approximation of substantive criminal law. These purposes include the adoption of common regulations concerning exchange of information, criminal procedure and, most notably, the implementation of the principle of mutual recognition (Bernardi 2007, 720). Today, this second group of framework decisions outnumbers the one approximating substantive criminal law.6

environment through criminal law (annulled by the European Court of Justice), Council Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the private sector, Council Framework Decision 2004/68/JHA of 22 December 2003 on combating the sexual exploitation of children and child pornography, Council Framework Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking, Council Framework Decision 2005/222/JHA of 24 February 2005 on attacks against information systems, Council Framework Decision 2005/667/JHA of 12 July 2005 to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution (annulled by the European Court of Justice), Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime, Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law, Council Framework Decision 2008/919/JHA of 28 November 2008 amending Framework Decision 2002/475/JHA on combating terrorism. 6 Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings, Council Framework Decision 2002/465/JHA of 13 June 2002 on joint investigation teams, Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence, Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties, Council Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Property, Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders, Council Framework Decision 2006/960/JHA of 18 December 2006 on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union, Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings, Council Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters, Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions, Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union, Council Framework Decision 2008/978/JHA of 18 December 2008 on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters, Council Framework Decision 2009/315/JHA of 26 February 2009 on the organisation and content of the exchange of information extracted from the criminal record between Member States, Council Framework Decision 2009/ 299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial.

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An in-depth analysis of the general evolution of the III pillar falls outside the scope of this book. Nevertheless, it is important to highlight some issues arising from the two dimensions of the trend of increasing adoption of framework decisions. Indeed, this analysis may help to better understand the EU policies on harmonization and approximation of criminal law.

1.2.1.2

The Adoption of Framework Decision Approximating Substantive Criminal Law for Crimes Other than Organized Crime, Terrorism and Drug Trafficking

The first dimension of the trend has led to criticisms. (Vermeulen 2002b, 69–70). The main objections relate to the competence of the EU and to the lack of democracy in the III pillar decision-making process. Indeed, the adoption of framework decisions in areas which are not strictly linked to the above mentioned crimes contrasts with the letter of the TEU and the TEU is the only legal instrument setting the competence of the EU in criminal law (Vogel 2002, 59–60; Vermeulen 2002b, 65–71; Weyembergh 2005a; Mitsilegas 2009, 90). The EU has thus exceeded its competence in the III pillar.7 Moreover, the institutional framework of the III pillar suffers from a well known democratic deficit. The decision-making process is in the hands of the Council, which represents the Governments of the Member States. The Parliament and the European Court of Justice have very limited influence in the III pillar.8 The lack of democracy is particularly serious in the field of criminal law (Smith and Wallace 2001; Bernardi 2007, 718–719), where the legality principle requires that the adoption of criminal legislation is a prerogative of the Parliaments (Smith and Wallace 2001; Weyembergh 2006, 188; Bernardi 2008, 96).

7 The issue of the EU competence in substantive criminal law overlaps not only with the MS competence, but also with the EC competence under the first pillar. Traditionally, the EC had no competence in criminal law. However, EC legislation influenced national criminal law under different perspectives. In this context III pillar framework decision were adopted to provide effectiveness to Community law through the harmonization of criminal legislation. This reflected in the adoption of couples of I and III pillar instruments in the field of illegal migration, environmental crimes and ship-source pollution (Mitsilegas 2009, 60ßff.). However, the Commission challenged such a “double track” approach before the ECJ. The Court annulled the III pillar instruments in two important judgments (Case C-176/03, Commission v. Council, judgment of 13 September 2005, for the environmental crimes case and Case C-440/05, Commission v. Council, judgment of 23 October 2007 for the ship-source pollution case). In extreme synthesis, the ECJ argued that the Community has criminal law competence, when criminal law is essential to ensure the effectiveness of the EC policies. For more detailed discussion, see Mitsilegas (2009, 65–84), Weyembergh (2005, 1572) and Fletcher et al. (2008, 176–184). 8 Notwithstanding its limited role in the “area of freedom, security and justice,” in recent years the ECJ has issued a number of important judgments in relation to the “area of freedom, security and justice” and criminal law in general (Fletcher et al. 2008, 64). Examples of the most important judgments are cited in other parts of this book.

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The criticisms to the expansion of the III pillar legislation beyond its limits did not stop the adoption of new legal instruments. The ECJ has prevented the overexpansion of this trend with its judgments on the environmental crime and ship-source pollution cases.9 The possibility for the Community law to include criminal provisions for the achievement of its objective (although not unlimited) mitigates the problems of the democratic deficit of the III pillar. Since the European Parliament and the ECJ play important parts in the legislative and implementation phases of EC law, Community law with criminal law provisions would not suffer from the same deficit as III pillar law. Two projects of reform of both the TEU and TEC addressed the issues concerning the III pillar in general, the approximation of substantive criminal law and the democratic deficit of the EU. They are the Treaty establishing a Constitution for Europe (commonly referred as European Constitution) and the Treaty of Lisbon. The Treaty establishing a Constitution for Europe provided broadly demanded solutions for many issues raised by the aforementioned criticisms (Perron 2005, 9–11; Weyembergh 2006, 192; Mitsilegas 2009; Fletcher et al. 2008).10 The EU’s institutional framework would have been strengthened and the pillar structure would have been abolished; the III pillar would have moved into the supranational approach typical of the Community law, under the label of “area of freedom, security and justice” (AFSJ); the European Parliament as well as national Parliaments would have received strengthened legislative roles in the “area of freedom, security and justice”; the reforms would have extended the scope of approximation of criminal legislation beyond the narrow limits set by the TEU after Amsterdam; the jurisdiction of the European Court of Justice would have expanded. The adoption of the Constitutional Treaty failed in 2005 after two negative referendums in France and the Netherlands. After the failure of the European Constitution, in 2007 the Member States prepared another draft reform Treaty, the Treaty of Lisbon.11 The Treaty of Lisbon abandons the constitutional terminology of the European Constitution and limits itself to amend the TEU and TEC, renaming the latter Treaty on the functioning of the European Union (TFEU). Concerning the “area of freedom, security and justice”, the Treaty of Lisbon maintains the structure already proposed in the European Constitution. It clearly establishes the EU competence in approximating criminal law for both procedural criminal law and substantive criminal law.

9

See Footnote 7. The origins of the Treaty establishing a Constitution for Europe go back to the European Council held in Laecken (Belgium) on 14–15 December 2001. The European Council established the Convention on the Future of Europe (2002–2003), led by Vale´ry Giscard d’Estaing with the purpose of producing a first draft. The Intergovernmental Conference (IGC) negotiated the final text. The IGC reached an agreement in June 2004. The representatives of the EU MS signed the European Constitution in Rome on 29 October 2004. 11 The European Council held in Brussels on 21–23 June 2007 deliberated to proceed to the drafting of a new treaty. The IGC drafted the Treaty. EU MS signed it in Lisbon on 13 December 2007. 10

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In criminal procedure, Article 82 para 2 of the TFEU enables adoption of minimum rules in the following fields: mutual admissibility of evidence, rights of individuals in criminal procedure, rights of victims of crime and other specific areas unanimously deliberated in a Council decision. Strikingly, the approximation of criminal procedure is conditioned to facilitating mutual recognition and police/ judicial cooperation (Mitsilegas 2009, 109). In substantive criminal law, the Treaty enables approximation in two instances. The first is the definition of offences and sanctions for particularly serious crime with a cross-border dimension. These are “terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime” (Article 83 para 1 TFEU). Remarkably, organized crime is placed at the end of the list, while it was the first element in the Treaty of Amsterdam. This seems to confirm its “open concept” nature, which enabled the adoption of a wide number of measures, justified through the claims of possible connections with organized crime (Vermeulen 2002b, 80). After about ten years of EU approximation policies, the TFEU would enable approximation for a longer and more detailed list of offences. The “wild card” of organized crime is present, but at the end of the list. As for criminal procedure, an unanimous decision of the Council may enlarge this list. The second area of approximation of substantive criminal law is possibly broader. Article 83 para 2 of the TFEU enables approximation of criminal law if it is “essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures”. This provisions is in line with the judgements of the EJC on the competence of Community law in criminal law.12 In June 2008 a referendum in Ireland rejected the Treaty of Lisbon. This has delayed the whole process of reform. A second referendum approved it on 2 October 2009. In the meanwhile, nearly all the other EU Member States have approved/ ratified the Treaty of Lisbon.13 The rejection of the European Constitution and the problems relating to the ratification of the Treaty of Lisbon have had a significant impact on the EU. Indeed, the III pillar is still functioning within the institutional framework established by the Treaty of Amsterdam. This Treaty entered into force in 1999 when the EU only had 15 Member States. The limits of this situation have emerged in several instances. The Treaty of Amsterdam is nowadays an obsolete text for supporting

12

See Footnote 7. Remarkably, Ireland was the only EU MS to hold a referendum. For the European Constitution, referendums were held in Luxembourg, Spain, the Netherlands, France, while the planned referendums in Denmark, Ireland, Poland, Portugal and the United Kingdom were cancelled. The avoidance of referendums on the Lisbon Treaty by nearly all EU MS does not speak in favor of improved trust between the EU and its citizens. This is quite surprising, given that one of the priorities of the Treaty of Lisbon is the improvement of the level of democracy within the EU. Nota bene: the Treaty of Lisbon has entered into force on 1 December 2009 during the final revision of this book. The last Member State to ratify it has been the Czech Republic.

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the developments of the “area of freedom, security and justice” (Fijnaut 2004, 279). Undoubtedly, the entry into force of the Lisbon Treaty will bring important improvements in legality, accountability and democracy in the “area of freedom, security and justice” (Bernardi 2007, 731; Weyembergh 2005a,1593; Vogel 2005, 147). However, the evolution of the EU policy in this sector will face new challenges due to the significant changes in its framework.

1.2.1.3

The Adoption of Framework Decision in Other Fields than Substantive Criminal Law

Notwithstanding the mentioned difficulties, the evolution of the EU policy in the III pillar has not stopped. This evolution necessarily happened outside the level of the Treaties, through political declarations, action plans and legal instruments. The second dimension of the trend of increasing adoption of framework decisions (adoption of framework decision in other fields than substantive criminal law) reflects this evolution. This second dimension was the consequence of a gradual change in the EU policy in the “area of freedom, security and justice” which started even before the entry into force of the Treaty of Amsterdam. This evolution has radically transformed the EU policy in the III pillar and is related to a new concept, mutual recognition.14 The concept of mutual recognition is not present in both the TEU and TEC. In the text of the TEU, as modified by the Treaty of Amsterdam, the main instruments for the creation of the “area of freedom, security and justice” were both enhanced cooperation among police and judicial authorities and approximation of criminal legislations. Since the European Council of Cardiff (15–16 June 1998), the concept of enhanced cooperation developed into a more penetrating one, the principle of mutual recognition (Peers 2004, 10). This development is in great part due to the dissatisfaction with the slow evolution of cooperation in criminal matters and the reaction of some EU Member States to extensive harmonization and approximation of national criminal law (Mitsilegas 2009, 116; Fletcher et al. 2008, 188; Vermeulen 2002b, 72–73; Vogel 2005, 131).15 14

Mutual recognition is not new in other legal systems or other sectors of EC law. Weyembergh (2005b, 160) mentions the single EC market and mutual recognition in the civil and commercial fields. Moreover, Vogel (2005, 131) recalls the Constitution of the United States of America (Art. IV }1: “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof ”). 15 Concerning the reaction to excessive harmonization and approximation, the most relevant example is the Corpus Juris. This was a research project funded by the Commission. The Corpus Juris produced an ambitious proposal to improve the fight against the frauds against the EC budget. It suggested the adoption of a common core of EC offences and criminal procedure rules, including an European Public Prosecutor office (Delmas-Marty 1997; Delmas-Marty and Vervaele 2000). Partially adhering to the suggestions of the Corpus Juris, the Commission tabled a first pillar proposal for the protection of the Community’s financial interests (European Commission

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The crucial point of this process was the Tampere European Council (15–16 October 1999), where the principle of mutual recognition became the cornerstone of the development of the “area of freedom, security and justice” (Vermeulen 2002b, 66; Peers 2004, 9–11; Joutsen 2006, 9; Gilmore 2006, 17). The Presidency Conclusions of the Tampere European Council argued that “enhanced mutual recognition of judicial decisions and judgments and the necessary approximation of legislation would facilitate co-operation between authorities and the judicial protection of individual rights” (Tampere European Council 15 and 16 October 1999: Presidency Conclusions, 1999). The principle of mutual recognition implies that judicial decisions in criminal matters issued by a Member State are enforced by other Members States with no or minimum validation procedures.16 The grounds for implementing the principle of mutual recognition should lie in the mutual trust among EU Member States concerning their criminal justice systems. This trust should come from the shared commitment to democracy, respect for human rights and the rule of law (Programme of Measures to Implement the Principle of Mutual Recognition of Decisions in Criminal Matters, 2001; Pitto 2005, 51). The Tampere European Council marked the prevalence of the new mutual recognition approach over extensive harmonization and approximation of national laws. It incentivized the adoption of a wide-reaching plan of implementation of the principle of mutual recognition (Manacorda 2005a, 28; Programme of Measures to Implement the Principle of Mutual Recognition of Decisions in Criminal Matters, 2001; Joutsen 2006, 9). As a consequence of this fundamental choice, a shift in the legislative production in the III pillar occurred. EU efforts toward approximation of substantive criminal law decreased, as the comparison of the number of framework decision dealing with substantive criminal law and criminal procedure/mutual recognition respectively shows (Bernardi 2007, 723–726; Manacorda 2007a, 904). In this perspective, EU institutions limited approximation and harmonization of substantive criminal law only to supporting the implementation of the mutual recognition principle (Weyembergh 2005b, 170). This shift reflected on a number of policy documents and legal instruments concerning the “area of freedom, security and justice”. The first was the Hague Programme, which set the main objectives of the III pillar for the period 2004–2009 (The Hague Programme: Strengthening Freedom, Security and Justice in the European Union, 2004, 12). Secondly, the European Constitution and the Treaty of Lisbon recognized the principle of mutual recognition as the cornerstone of the

2001). MS did not welcome the proposal and the Council eventually dismissed it.For the purpose of this book, it is appropriate to mention that the Corpus Juris provided a definition of conspiracy/ criminal association (the name change in the translations in different languages). The Corpus Juris opted for the continental/civil law model (Manacorda 2008, 282–283). For further discussion on conspiracy and criminal association offences see below, Sects. 2.2 and 4.1. 16 MS favorable to the mutual recognition principle, and in particular the United Kingdom, supported the introduction of mutual recognition in analogy with its application to the creation of the internal market (Mitsilegas 2006, 1278). Several scholars have criticized this approach (Peers 2004; Lavenex 2007).

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15

III pillar (Peers 2004, 11), even if the scope of the approximation of criminal legislation was extended (Bernardi 2007, 731–733).17 By fall 2009 the EU will likely approve the new “area of freedom, security and justice” programme (the Stockholm Programme). Once again, the principle of mutual recognition will be the cornerstone of the “area of freedom, security and justice”.18 The introduction of the mutual recognition principle in the EU policy in the III pillar has reduced the efforts towards harmonization and approximation of substantive criminal law. Indeed, these instruments have proved difficult to negotiate and implement. The mutual recognition principle enabled extraordinary changes in the field of international cooperation in criminal matters (Fletcher et al. 2008, 116–117). In this context, harmonization and approximation took the function of supporting the implementation of mutual recognition. This approach has raised some concern (Manacorda 2005a, 28; Nuotio 2005, 84 and 93; Poiares Maduro 2007, 823). In particular, it would imply that measures reshaping substantive criminal law are bound to support the effectiveness of international cooperation instead or providing clear definitions of crimes (Manacorda 2002b, 271–275; Manacorda 2007a, 899). This may contrast with the principles of clarity and precision (corollaries of the principle of legality) which require criminal legislation to be clearly defined in order to be easily understood (Bernardi 2008, 94 and Advocaten voor de Wereld judgement, paras 3 and 49–54). Moreover, it would prioritize the effectiveness of prosecution over the respect of the rights of the defendant (Asp 2005, 35; Perron 2005, 20; Weyembergh 2005a, 1576; Mitsilegas 2009, 125; Fletcher et al. 2008, 49–50; Vogel 2005, 136). The discussion of the problems arising from the introduction and implementation of mutual recognition is beyond the goals of this book. It seems appropriate to remember that the adoption of framework decisions for the implementation of the principle of mutual recognition has been challenged before the ECJ. In case Advocaten voor de Wereld, the Court held that the first mutual recognition instrument (the framework decision on the European Arrest Warrant) is valid and is not in breach of the competences of the III pillar as set by the TEU.19 Therefore, the Council can adopt framework decisions for goals other than approximation of substantive criminal law. Notwithstanding some criticisms on the ECJ’s reasoning (Sarmiento 2008, 177– 178), this judgment legitimated the EU policy on mutual recognition and prevented further discussions on the EU competence within the limited scope of the TEU. The emergence of the concept of mutual recognition and its role of cornerstone of the AFSJ have significantly changed the EU policies in this sector. In particular, this applies to the relationship between harmonization/approximation of criminal law and mutual recognition. The next subsection discusses this relationship and its implications for the EU’s action in the AFSJ.

17

Interestingly, Klip (2005, 122) argues that mutual recognition has no definition in the Treaty. The Commission has already issued a Communication with its views on the new Programme (European Commission 2004; Gallagher 2009). 19 Case C-303/05, Advocaten voor de Wereld VZW v Leden van de Ministerraad, judgment of 3 May 2007. For more detailed discussion of the case, see Mitsilegas (2009, 138–142). 18

16

1.2.2

1 Harmonization and Approximation Policies in the European Union

Harmonization and Approximation of Criminal Law and the Principle of Mutual Recognition

As argued in the previous subsection, the introduction and implementation of the principle of mutual recognition is (at least in good part) a reaction to the fears of excessive harmonization and approximation. This part provides a more complex view of the relation between harmonization/approximation and mutual recognition.

1.2.2.1

Contrast or Synergy?

In the political and scientific debate, harmonization/approximation and mutual recognition frequently appear as two opposite paths to reach the same objective, i.e. the achievement of the AFSJ among EU Member States (Joutsen 2006, 9; Vermeulen 2002b, 72–73). Different arguments were frequently advanced in order to justify the preference for mutual recognition (Lavenex 2007, 767; Fletcher et al. 2008, 109 and 188). First, harmonization and particularly approximation are techniques mainly tackling substantive criminal law. Contrarily, mutual recognition deals with procedural criminal law and more particularly with international cooperation. Allegedly, substantive criminal law is believed to be more difficult to change, because it is strictly related to the cultural values and choices of each country. This belief seems unfounded and countered by the problems encountered in the implementation of the first mutual recognition measures (as described further in this subsection). Second, harmonization (especially in the misconceived definition that this concept receives in the legal context, see Sect. 1.1.1) and approximation should foster a supranational and unique law upon all the Member States, while mutual recognition should have a more intergovernmental approach, allowing each Member State to retain its specificities. This conception is actually rather superficial. As argued in Sect. 1.1.1, differences are implied in the very concept of harmonization and this differs from the idea of unification (Joutsen 2006, 30; Manacorda 2005b, 66). Moreover, in the TEU approximation is limited to “minimum rules relating to the constituent elements of criminal acts”, leaving a broad discretion to national legislators. Finally, mutual recognition may end up in requiring subsequent approximation of law, as occurred in the negotiations for the European Evidence Warrant (EEW) (Mitsilegas 2009, 101–102 and 125–127; Poiares Maduro 2007, 818–820). Third, approximation should require an agreement on common definitions, which is very difficult to reach among 27 different legal systems (and particularly in the current institutional framework of the III pillar, where decisions still require the unanimity of the Member States to be adopted) (Joutsen 2006, 32); mutual recognition instead would allow more flexibility, with better chances to reach a consensus among Member States. Again, this argument is refuted by the difficulties encountered in the negotiation of the second “wave” of mutual recognition measures (Manacorda 2007a; Lavenex 2007, 775; Fletcher et al. 2008, 107).

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17

In a more considered perspective, the two concepts should not be regarded as radically opposite. They may provide important synergies for the EU (Manacorda 2005b, 65; Bernardi 2007, 724; Poiares Maduro 2007, 819 and 823–824; Lavenex 2007, 768; Walker 2004, 25–26; Perron 2005, 18; Vogel 2005, 133; Weyembergh 2001, 54–55; Nilsson 2001, 158). This may go beyond the merely supportive function that harmonization and approximation should have in relation to mutual recognition.20

1.2.2.2

Harmonization and Approximation as a Support for Mutual Recognition

Since the Tampere European Council, the supportive function of harmonization and approximation has become the most important one. The principle of mutual recognition developed into the cornerstone of the EU policy in the III pillar (see Sect. 1.2.1.3). Its effective implementation may require some harmonization and approximation of criminal law (Weyembergh 2005a, 1582; Pitto 2005, 52). Indeed, in order to successfully implement mutual recognition instruments among EU Member States, mutual trust is not a condition that can be taken for granted (Weyembergh 2005a, 1574–1575; Alegre 2005, 43; Pitto 2005, 67; Lavenex 2007, 772; Fletcher et al. 2008, 110–111). Approximation can strengthen mutual trust among Member States (Asp 2005, 32). The difficulties in the implementation of the first mutual recognition instrument (the EAW) confirmed this and highlighted a relatively low level of trust among EU Member States (Csonka 2006, 348; Lavenex 2007, 773–774; Fletcher et al. 2008, 112–126). In general, some degree of harmonization of substantive criminal law enables mutual recognition to work properly and increases the level of trust among different legal systems (Joutsen 2006, 34; Gilmore 2006, 20). In this perspective, the auxiliary function of harmonization and approximation to support international cooperation and particularly mutual recognition becomes even more important (Weyembergh 2005a, 1574; Weyembergh 2006, 190). Indeed, it aims at increasing mutual confidence among different legal systems. Formally, the EU institutions recognized the importance of harmonization/ approximation of criminal law in relation to the effective implementation of the principle of mutual recognition (Nilsson 2006, 58). The implementation of mutual recognition instruments should occur in sectors where some degree of harmonization, if not true approximation, exist. This principle remained quite theoretical and its actual realization proved much more difficult. The Framework Decision on the EAW provides a clear example of this problem. This instrument replaced traditional extradition law and abolished de facto the dual criminality requirement

20

For the complex implications of the mutual recognition principle, also in sectors other than “area of freedom, security and justice,” see Poiares Maduro (2007, 820–821).

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1 Harmonization and Approximation Policies in the European Union

for a list of 32 types of crimes (Keijzer 2005).21 The grounds for this choice was the presumption that some sort of pre-harmonization exists for the crimes included in the list (Manacorda 2005b, 63; Peers 2004, 27). Many scholars demonstrated how this belief is unfounded (Manacorda 2005b, 62–72; Peers 2004, 28; Weyembergh 2005a, 1582; Vermeulen 2002b, 74). The pretended pre-harmonization of EU legal systems, as far as these 32 offences are concerned, is more imaginary than real. Actually, different reasons fostered the inclusion of these crimes in the list and there was no preventive assessment of the level of harmonization among Member States’ legislation (Peers 2004, 28). Only for few of them the EU had previously adopted legal instruments aiming at harmonizing or approximating their definitions (Combeaud 2006, 135; Peers 2004, 28). Even for these, the actual impact and outcome of these measures are debated. Moreover, many crimes included in the list were not even the object of any harmonization measure (Vermeulen 2002b, 74; Mitsilegas 2001, 121). This example shows that the path to an effective implementation of the mutual recognition principle presents some elements of incoherence. The pre-harmonization of the 32 offences proved more fictitious than true. This may shed a light over the actual mechanics beyond the introduction of mutual recognition. Additionally, it reveals the limits of the current harmonization and approximation policy in the AFSJ.

1.2.2.3

Harmonization and Approximation: A Legal trompe l’œil?

The EU policy on harmonization and approximation of criminal law has received many criticisms. Frequently, the adopted approximation instruments were deemed to be void of binding effect (Peers 2004, 33; Csonka 2006, 349), too generic (Weyembergh 2005a, 1589; Peers 2004, 33; Csonka 2006, 348) or not effective (Manacorda 2005b, 69; Weyembergh 2005a, 1585; Csonka 2006, 349). Some scholars claimed that the EU action only aims at an harmonization/approximation en trompe l’œil (Flore 1999, 122; Weyembergh 2005b, 152; Weyembergh 2006, 188; Manacorda 2005b, 67; Fontanaud 2007, 193). Criticisms targeted the selection of the sectors for harmonization/approximation. First, the scope of approximation measures has gone beyond the letter of the TEU, which limits approximation to terrorism, organized crime and drug trafficking (Vermeulen 2002b, 70). Second, the selection of the crimes was due more to political reasons than to actual need of approximation in the chosen sector (Weyembergh 2005a, 1585; Vermeulen 2002b, 71). The need to show EU’s reaction to some important and exceptional events set the agenda of approximation and harmonization. There is no trace of critical research and analysis of the sectors 21

Traditionally, extradition law is governed by the principle of dual criminality. This provides that the alleged crime for which extradition is requested must be a criminal offence in both the demanding and the requested states (Hafen 1992). The control of dual criminality is seldom an obstacle to swift cooperation (Flore 2001, 67–72).

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19

actually requiring harmonization or approximation (van der Wilt 2002, 84; Gilmore 2006, 21; Weyembergh 2006, 192; Fletcher et al. 2008, 46–47 and 175). Examples of this approach are abundant. International and especially EU actions on organized crime originated from the murders of the Italian judges Giovanni Falcone and Paolo Borsellino in 1992 and the Irish journalist Veronica Guerin in 1996 (Fijnaut 2008, 252; Nilsson 2006). The EU adopted the Joint Action of 24 February 1997, concerning action to combat trafficking in human beings and sexual exploitation of children, after pedophile scandals in Belgium.22 After the death of illegal migrants in England, the EU adopted the Framework Decision and Directive of 28 November 2002 concerning the facilitation of unauthorized entry, transit and residence. After the events 11 September 2001 the EU Member States quickly approved the Framework Decision of 13 June 2002 on combating terrorism (Weyembergh 2005a, 1585). A further crucial shortcoming of the EU harmonization and approximation strategy in the III pillar is the lack of scientific research in relation to the adoption of approximation measures. The absence of research is a further confirmation of the political nature of many of these legal instruments. In particular, this lack of research characterizes the phase before the adoption of legal instruments (European Commission 2008a, 4 and ff.). Rarely, if ever, cross-national horizontal analysis has ever been conducted in order to understand the approaches of the different legal systems in relation to a specific crime (Manacorda 2005b, 72; Vermeulen 2002b, 71; van der Wilt 2002, 84). Further, no vertical analysis has ever been done to assess which Member States would have to adapt their national legislation to the EU minimum standards. Scientific research is lacking also after the adoption of approximation instruments. No scientific study has ever been done on the actual implementation of the EU standards by Members States and on the improvement of the levels of harmonization and approximation among national legislations as a consequence of an approximation instrument. The Commission conducts evaluations, as provided by the text of many framework decisions. However, these exercises depend on the transmission of relevant information by the EU Member States. As a results, the Commission’s evaluations are frequently delayed and lack sufficient information for adequate assessment (De Biolley and Weyembergh 2006, 84).23 The EU policy on approximation of criminal law should instead be supported by accurate scientific research. First, the drafting of approximation measures should be

22

Joint actions are legal instruments of the III pillar under its first formulation (Article K. 3 of the Treaty of Maastricht). The provision did not explain the function and effects of these legal instruments (Fletcher et al. 2008, 174). In the absence of clear provisions, 39 joint actions were approved in very disparate sectors, ranging from drugs and organized crime to police and judicial cooperation (Peers 2006, 15–17). The relative ease of adoption (compared to conventions) and the lack of obligations for Member States made joint actions useful tools for political purposes without any actual obligation upon governments. 23 The Commission has issued a Communication on the evaluation of AFSJ (“area of freedom, security and justice”) policies (European Commission 2006). However, given the institutional framework of the III pillar, its powers are limited.

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preceded by a precise analysis of the national norms concerning the targeted crimes (horizontal analysis), to assess the actual need for approximation and the level of compatibility among national legislations. Further, an assessment of the impact of the envisaged EU minimum standards on the national legal systems should be done (vertical analysis). This would provide a valuable gap analysis, assessing which Member States need to modify their legislation in order to comply with the EU standards (Vander Beken 2002, 97; Spinellis 2002, 90–93; Vermeulen 2002b, 71). After the adoption of an approximation measures, a systematic assessment of the implementation by national legislators should follow. This would assess the improvements of the level of approximation and whether Member States closed their legislation gaps as a consequence of a framework decision. The lack of both a horizontal (among different legal systems) and vertical (between national laws and EU standards) analysis on approximation measures is a major flaw of the EU policy in the III pillar. Not only this impedes the actual and effective implementation of EU standards among Member States, but it also jeopardizes the construction and strengthening of the mutual trust and confidence which is an important requirement for the functioning of the mutual recognition principle.

1.3

Conclusions of Chapter 1

This chapter argued the main issues related to harmonization and approximation of criminal law in the III pillar of the EU. First, as shown in Sect. 1.1, confusion exists on the definition of harmonization and approximation and their functions in connection with the goals of the III pillar. The section provided definitions of these notions and explained briefly their relation and their functions. Second, section 1.2 summarized the complex path of the EU policy on harmonization and approximation. The EU today recognizes harmonization and approximation mainly as processes supporting the implementation of the mutual recognition principle. The EU approach to harmonization and approximation entails several problems. In general, the EU does not conduct any scientific assessment of the actual needs of harmonization and approximation instruments. There is no previous evaluation of the gaps in national legislations. The Commission’s evaluation of the implementation of the legal instruments is limited by the availability of information and cooperation of Member States. Scientific research criticized this approach. However, so far no scientific cross-national study has addressed the issue of the levels of harmonization and approximation among EU Member States. This book is a first attempt to fill this gap assessing harmonization and approximation of organized crime legislation. The next chapter argues the reasons for the choice of this sector and provides the essential background information.

Chapter 2

Organized Crime Legislation: Reasons and Background for the Assessment of Harmonization and Approximation

As outlined in the Chap. 1, the EU policy on harmonization and approximation of criminal law is controversial. The concepts of harmonization and approximation of criminal law are among the most debated issues in this field. Not only these notions are unclear and frequently misconceived, but also the EU instruments aiming at approximating criminal legislation are considered ineffective. A systematic lack of comparative research (both independent and EU funded) concerning EU approximation measures supports these criticisms. The sector of organized crime is an excellent example of these issues for different reasons. Furthermore, three international legal instruments aiming at the harmonization and approximation of national legislation exist in this field. The Joint Action on making it a criminal offence to participate in a criminal organization in the Member States of the European Union was the first harmonization measure containing a legal definition of criminal organization and was adopted in 1998. The 2000 United Nations Convention against Transnational Organized Crime followed a few years later. Last, the Council Framework Decision on the Fight against Organized Crime has recently entered into force (11 November 2008). Notwithstanding this corpus of international legal instruments, there is no comparative research assessing the level of harmonization and approximation among EU Member States. This chapter argues the main reasons for selecting the sector of organized crime legislation (Sect. 2.1) and analyzes the existing legal instruments aiming at harmonization and approximation of criminal legislation on organized crime (Sect. 2.2).

2.1

Reasons for Assessing the Sector of Organized Crime

For a first attempt to assess the current levels of harmonization and approximation among EU Member States’ criminal legislations, the sector of organized crime is of particular interest. This section briefly argues the main reasons for selecting the F. Calderoni, Organized Crime Legislation in the European Union, DOI 10.1007/978-3-642-04331-4_2, # Springer-Verlag Berlin Heidelberg 2010

21

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sector of organized crime. Section 2.1.1 presents the main reasons relating to the EU policy in the III pillar. Section 2.1.2 provides a further argument, i.e. the lack in scientific literature of comprehensive assessments of harmonization and approximation of organized crime legislation among the 27 EU Member States.

2.1.1

Reasons Relating to the EU Policy in the III Pillar

In the perspective of the EU policy in the III pillar, there are multiple arguments for the selection of the sector of organized crime legislation for a first assessment of the current level of harmonization and approximation among EU Member States. Although strictly correlated, they can be divided into four main arguments. First, important efforts of harmonization have targeted the sector of organized crime legislation. The driver for these efforts was the idea that in a globalized world, where borders and barriers among different legal systems increasingly fade out, organized crime may take advantage of the new opportunities that these changes provide also for criminals (Joutsen 2006, 7). Therefore, a certain level of harmonization of criminal legislation may prevent the creation of “safe havens” for criminal organizations, where their criminal activities are lightly countered or do not even constitute offences at all. Even if this reasoning received criticisms, arguing that rarely organized groups would ever consider the differences among national criminal legislation when organizing their criminal activities (Klip 2005, 118), the idea of providing every criminal justice system with commonly agreed definitions and tools for tackling organized crime seems reasonable (van der Wilt 2002, 78). The argument that many countries do not experience the presence of organized crime does not undermine the underlying rationale of harmonization of criminal legislation dealing with organized crime. The lack of serious criminal groups within the borders of a country should not prevent it from approving some minimum legislation tackling criminal organizations applicable only in case of need. In conclusion, the first reason to assess the current level of harmonization and approximation of organized crime legislation among EU Member States relates to claims that harmonization and approximation are important to effectively counter organized crime and prevent its displacement toward countries where the criminal law system is less prepared to tackle it. Second, and partially related to the first reason, several international institutions reacted to the claims for harmonization in the sector of organized crime with different measures. These include the Council of Europe, the United Nations and the European Union. This intensive efforts toward harmonization of criminal legislation dealing with organized crime produced a number of policy documents, recommendations and studies, including some important legal instruments provided with binding force. The first international legal instrument aiming at harmonizing national legislation in the field of organized crime was the Joint Action on making it a criminal offence to participate in a criminal organization in the Member States of

2.1 Reasons for Assessing the Sector of Organized Crime

23

the European Union (98/733/JHA) (henceforth JA/Joint Action (98/733/JHA)). The JA provided the first internationally agreed upon definition of organized crime and contained criminalization requirements. Although scholars have disputed the binding force of joint actions, the JA represents the first important attempt to harmonize EU legal systems in the sector of organized crime (see Sect. 2.2.1). The United Nations Convention against Transnational Organized Crime, signed in Palermo in December 2000 (henceforth Palermo Convention), followed the JA.1 As of July 2009, 147 states or regional organizations have signed the Palermo Convention and 149 State Parties have ratified it. Among EU Member States, only the Czech Republic, Greece and Ireland have not yet ratified the Convention (see Sect. 2.2.2). The Palermo Convention introduced a global legal definition of an organized criminal group and represents an important document in the sector, given the number of Parties to the Convention and its worldwide reach. Recently the Framework Decision on the Fight against Organized Crime (2008/841/JHA) has entered into force (henceforth Framework Decision (2008/841/JHA), see Sect. 2.2.3). The aim of this measure was to update and reformat the Joint Action (98/733/JHA) in order to update it to the new legal instrument of the framework decision, to the provisions of the Palermo Convention and to the Framework Decision on the Fight against Terrorism (European Commission 2005). As already mentioned, the Framework Decision (2008/841/JHA) is binding upon Member States as to the results to be achieved (although some scholars cast doubt on the effectiveness of this binding force, see Sect. 1.1.1). The deadline for the implementation of the requirements set by the Framework Decision (2008/841/JHA) is 11 March 2010 (Article 10 of the FD). All the above mentioned instruments provide for legal definitions of organized crime and criminalization requirements concerning the activities of criminal organizations. These three instruments represent an unmatched corpus of international legislation calling for harmonization and approximation of criminal law. The fact that the Joint Action (98/733/JHA) entered into force 10 years ago indicates that the process of harmonization has already started and is continuing. The Palermo Convention with its global coverage represents an important incentive to this process. Indeed, some harmonization should be expected in a sector where harmonization instruments have been in place since 1998. The assessment of the effects of the JA and the Palermo Convention falls within the concept of harmonization as defined in the Chap. 1 (see Sect. 1.1.1). It is thus possible to assess the current level of harmonization among EU Member States (horizontal analysis) and analyze the effects in terms of harmonization of the two legal instruments already in force. Therefore, a second reason to assess the current level of harmonization and approximation of organized crime legislation among EU Member States is that

1 The Palermo Convention was adopted by the General Assembly on the 15 November 2000 and was open for signature from 12 to 15 December 2000 in Palermo and in New York until 12 December 2002. It entered into force on 29 September 2003.

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three international legal instruments exist aiming at harmonization of national criminal legislation in the field. The third reason is complementary to the second one. The fact that the Framework Decision (2008/841/JHA) has just entered into force represents a further unmatched opportunity. If the JA and the Palermo Convention allow the horizontal analysis, i.e. assessing the level of harmonization among EU Member States, the Framework Decision (2008/841/JHA) makes it possible to do a vertical analysis at the moment of its entry into force. The vertical analysis assesses each Member State’s current level of approximation to the EU standards set by the Framework Decision (2008/841/JHA). Given the time frame of this book, the vertical analysis will provide a timely gap analysis, producing a research much demanded by the scientific literature in the field (see Sect. 1.3). The gap analysis allows the evaluation of a Member State’s compliance with the Framework Decision (2008/841/JHA) requirements at the very moment of its entry into force. Such an assessment is unprecedented and can offer a synthetic view of the changes a Member State will have to introduce into their national legislation. This is not only relevant per se, but may contribute to empirically verify some of the criticisms to EU legislative production in the III pillar, i.e. that the approximation is rather a trompe l’œil operation than a truly considered choice of criminal policy. Consequently, a third reason to assess the current level of harmonization and approximation of organized crime legislation among EU Member States s is that the recent entry into force of the Framework Decision (2008/841/JHA) allows for a timely gap analysis comparing criminal legislation of EU Member States with the requirements set by the EU. Fourth, Article 29 of the TEU explicitly mentions the sector of organized crime for the approximation of criminal law (see Sect. 1.1.1). This implies that all EU Member States have endorsed the approximation of criminal legislation in the sector of organized crime and the process has a sound legal basis. This element must not be underestimated. As already argued, the scope of framework decisions aiming at approximation of substantive criminal has gradually extended since the entry into force of the Treaty of Amsterdam. Criticisms pointed out that this evolution went beyond the letter of the TEU on approximation of criminal law. The explicit mentioning of organized crime in Article 29 TEU smoothens down criticisms about the democratic legitimacy and the lack of legal basis in the TEU of the EU intervention in this area. Further, since there is agreement by all Member States on approximation in this field, political consensus within the Council should be easier to reach. The fact that a process of harmonization in this field is already ongoing at the international level should be an additional factor in this direction. In conclusion, the fourth reason to assess the current level of harmonization and approximation of organized crime legislation among EU Member States is that Article 29 TEU, which establishes the limit and scope of the approximation of national legislation, explicitly mentions organized crime.

2.1 Reasons for Assessing the Sector of Organized Crime

2.1.2

25

The Lack of Comparative Research in the Sector of Organized Crime

The previous section argued that the sector of organized crime provides a number of reasons for a cross national assessment of the level of harmonization and approximation. However, so far no scientific research has ever addressed on this topic. In recent years, some comparative research focused on the specific sector of organized crime. However, these studies either did not assess the level of harmonization and approximation among different legal systems, or did not cover all the EU Member States. Some research collected legislation from several countries, but did not provide a thorough cross national analysis. This is the case of the National legislation on Organized Crime, collected by the UN Centre for International Crime Prevention (Centre for International Crime Prevention 1999). The Canadian Department of Justice carried out another review of legislation. Although it collected a number of legal provisions, the study did assess the level of harmonization among different legal systems (Plecas et al. 2001). Some academic studies provided an in-depth comparative analysis of national legislations. However, no study assessed all the legislation of the EU Member States and the assessment of the harmonization and approximation level remains unstudied (Manacorda 2002a; Militello, Paoli and Arnold 2000; Fornasari 2002; Cesoni 2004; Pradel 2006; Levi and Smith 2002). The most important contributions in this field come from the International Association of Penal Law (IAPL). The XVIth International Congress of Penal Law regarded “The Criminal Justice Systems Facing the Challenge of Organized Crime”. The Congress adopted a number of relevant resolutions on several issues of organized crime criminal legislation (Les syste`mes pe´naux a` l’e´preuve du crime organise´/The criminal justice systems facing the challenge of organised crime, 1999b). Moreover, four double issues of the Revue internationale de droit pe´nal/ International Review of Penal Law reported the results and discussions from preparatory colloquiums. These concern the general part of criminal law (Les syste`mes pe´naux a` l’e´preuve du crime organise´/The criminal justice systems facing the challenge of organised crime, 1997), the special part (Les syste`mes pe´naux a` l’e´preuve du crime organise´/The criminal justice systems facing the challenge of organised crime, 1998a), criminal procedure (Les syste`mes pe´naux a` l’e´preuve du crime organise´/The criminal justice systems facing the challenge of organised crime, 1998b) international criminal law and cooperation (Les syste`mes pe´naux a` l’e´preuve du crime organise´/The criminal justice systems facing the challenge of organised crime, 1999a). Each issues provides a general report and several national report from different countries. Similarly, one the preparatory colloquium for the XVIIIth International Congress of Penal Law tackled the “Expanding forms of preparatory acts and

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participation” of the general part of criminal law. A special issue of the International Review of Penal Law presents the general report and the national reports. In part, these deal also with organized crime legislation, as a possible element of the general trend of enlargement of the forms of preparatory acts and participation (L’e´largissement des formes de pre´paration et de participation - Expanding forms of preparatory acts and participation, 2007). These contributions are very valuable for the level of analysis of organized crime legislation. Indeed, they represent a ponderous corpus of comparative research. However, they have some limits. First, the most in-depth analysis, for the 1999 Congress, dates back to more than 10 years and many changes have occurred in this time span. Most of all, it dates back to before the adoption of any of the international legal instruments on organized crime. Therefore the impact and assessment of these instruments was impossible. Second, the analysis do not cover all EU Member States, not even the 15 Member States at that time. Third, the synthetic part of the research is very limited and is frequently just a description of the most frequent or interesting national reports. Fourth, the choice of different general national reporters for each special issue of the journal, along with the natural difference in the approaches and understanding of the topic made very difficult an actual comparison. Some reports are very synthetic while others are extremely long and detailed. In general, the nation-based approach makes it hard to analyze specific issues on organized crime legislation. Other research compared national systems in the perspective of international cooperation. Den Boer (2002b) attempted to verify whether a process of convergence or of Europeanization of law enforcement cooperation can be attributed to organized crime legislation. Bartone (2003) compared national legislations in order to verify the assumption of pre-harmonization of national systems in the sectors that were included in the list of crimes of the EAW. Paoli and Fijnaut (2004) coordinated a very comprehensive research comparing organized crime patterns and policies. This study provides detailed historical background on the development of criminal organizations and on the national policies adopted in a number of European States, both EU and non-EU. As briefly outlined, some comparative research on organized crime legislation exists. However, these studies have never directly addressed the issue of assessing the level of harmonization and approximation among different countries. This issues have so far remained unsounded.

2.2

The Main Instruments Aiming at Harmonization and Approximation of EU Member States’ Organized Crime Legislation

As mentioned above (Sect. 2.1.1), three international legal instruments aiming at harmonization and approximation of national legislations exist in the sector of organized crime. It is appropriate to describe these instruments, since they are

2.2 Main Instruments Aiming at Harmonization

27

important drivers of harmonization and the main benchmarks for the assessment of approximation. Section 2.2.1 presents the Joint Action (98/733/JHA), Sect. 2.2.2 the United Nations Convention against Transnational Organized Crime and Sect. 2.2.3 the Framework Decision (2008/841/JHA) on the Fight against Organized Crime. Having described the main issues relating to these instruments, Sect. 2.2.4 provides some remarks to the notion of organized crime emerging from the three documents.

2.2.1

The Joint Action on Making It a Criminal Offence to Participate in a Criminal Organization in the Member States of the European Union

The Joint Action 733 of 1998 introduced the first definition of organized crime in international law.2 The Joint Action (98/733/JHA) has been the legal instrument in force within the EU until the entry into force of the Framework Decision (2008/841/ JHA), on 11 November 2008. The JA provides a very broad concept of criminal organization. It introduces a double model offence of participation in a criminal organization. This makes it possible the coexistence of the two main approaches to organized crime in criminal law, i.e. the Anglo-Saxon conspiracy model and the continental criminal association model.

2.2.1.1

The Definition of Criminal Organization

Art. 1 of the Joint Action (98/733/JHA) defines a criminal organization as “a structured association, established over a period of time, of more than two persons . . .”. The first descriptor of the criminal organization is the presence of an association with at least three participants. The requirements of being “established over a period of time” and of concert between its members restrict the domain of application of the provision. Notwithstanding, the definition remains extremely vague. The Joint Action (98/733/JHA) provides a very broad definition of criminal organization, almost corresponding to the mere participation in a crime (Weyembergh 2005a, 1588–1589). The criminal nature of a group derives from its objective of committing crimes (“. . . acting in concert with a view to committing offences which are punishable by 2

Article 1, paragraph 1 of the JA: “Within the meaning of this joint action, a criminal organization shall mean 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, whether such offences are an end in themselves or a means of obtaining material benefits and, where appropriate, of improperly influencing the operation of public authorities.”

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deprivation of liberty or a detention order of a maximum of at least four years or a more serious penalty”). The criminal plan must include offences punishable with at least 4 years of maximum imprisonment, a quantitative threshold setting what the EU considers as a serious crime. This legislative technique reveals a rigid approach to the definition of a criminal organization. The quantitative threshold may pose some problems, since the levels of penalties vary significantly among EU Member States and there is no EU framework for criminal sanctions (Peers 2004; Vermeulen 2002b, 75–76). As Militello clearly stated, “proportionality between criminal acts and respective penalties is not an absolute concept but only a relative one measuring the scale of reaction of a particular legal order” (2001, 25). The second paragraph of Art. 1 extends the application of the first paragraph to the offences mentioned in the Europol Convention.3 This cross-reference is superfluous and misleading. Its superfluity is clear from the text: the reference is illustrative and not mandatory, since the referred offences must fall within the quantitative threshold set by the previous paragraph (Manacorda 2002b, 281). The misleading element derives from a sheer mistake of legislative technique. It shows the repressive, law enforcement driven, approach adopted by the EU in the field of organized crime. The JA provides a framework for national criminal laws and should devote more attention to the clarity and precision of its legal definitions. It should identify in explicit and clear terms the crimes that criminal organizations could plan or commit. The Europol Convention and its Annex attribute the competences to Europol. This allows some margin of indefiniteness, since the aim of the norm is only to identify some categories of criminal phenomena and not to shape criminal legislation. This cross-reference to the Europol Convention does not provide a minimum standard of clarity and preciseness in relation to the requirements for the formulation of substantive criminal law (Manacorda 2002b, 281–282). Article 1 of the Joint Action (98/733/JHA) provides a rather generic definition of criminal organization. An extremely large collection of crimes committed by at least three people with a minimum level of coordination may fall within the definition of Article 1 of the JA (Paoli and Fijnaut 2004, 41). No reference is made to the main characteristics of organized crime (see Sect. 2.2.4). The solution did not fully satisfy all EU Member States, as the following statement made by the Belgian delegation on Article 1 of the JA demonstrates: The Belgian delegation considers that the definition of ’criminal organisation‘ given in Article 1 includes the modi operandi used by the perpetrators of the offence. The modi operandi cover the use of intimidation, threats, violence, fraudulent manipulation or corruption or the use of commercial or other structures to dissimulate or facilitate the perpetration of offences. (European Union 1998)

3 Art. 1, paragraph 2 of the JA: “The offences referred to in the first subparagraph include those mentioned in Article 2 of the Europol Convention and in the Annex thereto and carrying a sentence at least equivalent to that provided for in the first subparagraph.”

2.2 Main Instruments Aiming at Harmonization

2.2.1.2

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Criminalization of the Participation in a Criminal Organization

Article 2 of the Joint Action (98/733/JHA) confirms the criticisms made to Article 1, providing very generic criminalization requirements of the participation in a criminal organization. The provision requires Member States to ensure the criminalization of the participation in a criminal organization through the introduction of a “criminal organization offence” (COO).4 National legislators are allowed to choose between two different models of COOs, recalling the archetypes of the civil law association de malfaiteurs and the common law conspiracy respectively. Art. 2, paragraph 1, (a) of the JA is the civil law model offence.5 It includes two distinct behaviours, consisting in the participation in the organization’s criminal activity falling within Article 1 of the JA and the participation in the organization’s other activities. The participation in the organization’s criminal activities is designed as an autonomous offence. This means that it can be committed without a direct participation in the execution of the offences included in the organization’s criminal plan. The EU model offence thence performs a generalization function of the criminal liability, punishing the members of a criminal organization (and particularly the leaders) for every crime committed by the group (Aleo 2002, 63; Manacorda 2002b, 269). The criminal liability is also independent from the actual completion of the offences included in the criminal plan, but this point is “subject to the general principles of the criminal law of the Member State concerned”. This element is the controversial anticipatory function of the criminal organization offences, aiming at lowering the threshold of criminal responsibility when organized crime groups are involved (Aleo 2002, 62; Den Boer 2002a, 110; Manacorda 2002b, 269–270). This alleged function rarely applies in practice, since experience shows that criminal organization offences (either the continental and the Anglo-Saxon model) are applied against criminal groups that already committed offences and hardly ever before the commission of any crime (Aleo 2002, 62–63; (De Nauw and Deruyck 1998, 170). In such cases criminal organization offences rather perform an

4

For the purpose of this book, criminal organization offences are criminal offences that require either more than one person in order to be committed and some sort of agreement, group, association or organization among the offenders. Traditionally, the most important archetypes of COOs are the conspiracy model and the criminal association model (Manacorda 2008, 270–273, with further references). The first model is typical of common law countries, while the second one of civil law countries. 5 Art. 2, paragraph 1, (a) of the JA: “conduct by any person who, with intent and with knowledge of either the aim and general criminal activity of the organization or the intention of the organization to commit the offences in question, actively takes part in: - the organization’s criminal activities falling within Article 1, even where that person does not take part in the actual execution of the offences concerned and, subject to the general principles of the criminal law of the Member State concerned, even where the offences concerned are not actually committed, - the organization’s other activities in the further knowledge that his participation will contribute to the achievement of the organization’s criminal activities falling within Article 1 [. . .].”

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aggravating function, increasing the amount of the penalties that can be imposed on organized criminals (Manacorda 2002b, 269). The participation in the organization’s other activities is an unclear point. Controversies arise from the interpretation of the text, which is made difficult by contrasting translations of the Joint Action (98/733/JHA).6 It is not clear whether the organization’s other activities should include those minor crimes not falling under the threshold of at least 4 years of maximum imprisonment or just any noncriminal activity. The point is relevant because from this model offence may follow the criminalization of the many legal activities supporting criminal organizations, such as the provision of services by lawyers, accountants and banks. Different translations of the JA may entail the implementation of different disciplines in Member States, thus jeopardizing the homogeneous application of the EU standards and ultimately affecting the goal of harmonizing national criminal legislations. The mental element required by the JA is the intent and knowledge of either the general criminal activity or the intention to commit offences of the organization. The participation in the organization’s other activities requires the additional knowledge of contributing to the organization’s crimes punishable with a minimum of 4 years of maximum imprisonment. Art. 2, paragraph 1, (b) of the JA provides the common law model offence.7 Members States may punish the mere agreement between two people to commit the crimes falling under Article 1 of the JA. This possibility has been included in the JA in order to obtain the consensus of the common law Member States, where criminal organizations are pursued through the offence of conspiracy (Manacorda 2002b, 287; Joutsen 2002c, 423). The JA leaves great autonomy to Member States concerning the sanctions for the offences of participation in a criminal organization. Art. 2 of the JA requires Member States to punish such crimes through “effective, proportionate and dissuasive criminal penalties”. This formula was originally created by the European Court of Justice in the sector of frauds against the EC budget under the first pillar and was then introduced in Art. 280 of the Treaty establishing the European Community.8 It can now be found in many EU norms adopted under either the I or the III pillar (Nuotio 2005, 81–85; Grasso 2002, 99). Member States are left free to choose among very different solutions. This freedom may allow a certain degree of

6 In the English, French and Spanish version of the JA, the adjective ‘criminal’ refers to the activities (“organization’s criminal activities”, “aux activite´s criminelles de l’organization” and “en las actividades delictivas de la organizacio´n” respectively). In the Italian translation, it refers to the organization (“alle attivita` di un’organizzazione criminale”). The Portuguese version omits the adjective (“nas actividades de uma organizac¸a˜o”) (Manacorda 2002b, 284–285). 7 Art. 2, paragraph 1, (b) of the JA: “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 falling within Article 1, even if that person does not take part in the actual execution of the activity.” 8 At that time no criminal law competence was recognized to the EC. For the recent evolutions, see Footnote 7 in Chap. 1.

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flexibility, but it also undermines both the harmonization of national legislations and the improvement of police and judicial cooperation in the enforcement of organized crime. Indeed, some Member States may sanction participation in a criminal organization with penalties below some thresholds fixed by legal instruments on international cooperation (e.g. the surrender pursuant to an EAW without verification of double criminality requires that the offence is punished with a maximum penalty of at least 3 years of imprisonment). The analysis of Art. 2 of the JA confirms the criticisms about the vagueness of Article 1. Overall, the JA represents a compromise where the common law and civil law approaches are equalized as far as their function is concerned, without any substantial harmonization or approximation of national disciplines (Manacorda 2002b, 287). This choice, surely brought by the need to reach unanimity in the Council on the text, was criticized about the actual possibility of improving the current harmonization and approximation of national disciplines, in particular their supporting function to the effective working of international cooperation in criminal matters (Weyembergh 2005a, 1582; Manacorda 2002b, 270; Vermeulen 2002b, 71–74; Joutsen 2006, 33).

2.2.1.3

Other Provisions

Articles 3 and 4 of the Joint Action (98/733/JHA) deal with the liability of legal persons and jurisdiction respectively.9 Legal persons must be punishable for participation in a criminal organization, but EU Member States are let free to apply either criminal or administrative liability. As far as the penalties, the JA requires that at “material and economic sanctions” can be imposed on legal persons (Peers 2006, 412). Concerning jurisdiction, the JA requires that EU Member States establish their jurisdiction over the offence of participation in a criminal organization independently from the place where the organization is “based or pursues its criminal 9 “Article 3. Each Member State shall ensure that legal persons may be held criminally or, failing that, otherwise liable for offences falling within Article 2(1) which are committed by that legal person, in accordance with procedures to be laid down in national law. Such liability of the legal person shall be without prejudice to the criminal liability of the natural persons who were the perpetrators of the offences or their accomplices. Each Member State shall ensure, in particular, that legal persons may be penalised in an effective, proportionate and dissuasive manner and that material and economic sanctions may be imposed on them. Article 4. Each Member State shall ensure that the types of conduct referred to in Article 2(1)(a) or (b) which take place in its territory are subject to prosecution wherever in the territory of the Member States the organisation is based or pursues its criminal activities, or wherever the activity covered by the agreement referred to in Article 2(1)(b) takes place. Where several Member States have jurisdiction in respect of acts of participation in a criminal organisation, they shall consult one another with a view to coordinating their action in order to prosecute effectively, taking account, in particular, of the location of the organisation’s different components in the territory of the Member States concerned.”

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activities”. This provision is extremely wide-reaching, since it requires Member States to punish criminal organizations that may have no particular relation with their legal system. It enables the establishment of a very extensive jurisdiction over organized crime, with the aim of preventing any loophole of jurisdiction. However, it may have a counterproductive effect, since positive conflicts of jurisdiction (when more than one legal system claims to have jurisdiction to punish a crime) may arise. To address this problem the JA provides a mechanism of reciprocal consultation. The solution does not appear to be satisfactory and this is confirmed by the annexed declaration made by the German delegation, which states “Germany assumes that, in the consultations provided for in the second subparagraph of Article 4, due account will be taken of the main focus, i.e. area of operation, of the criminal organisation or a component thereof” (European Union 1998).

2.2.2

The United Nations Convention Against Transnational Organized Crime

The Palermo Convention (United Nations Convention against Transnational Organized Crime. General Assembly Resolution 55/25 of 15 Nov. 2000) has become a reference for international cooperation in the enforcement of organized crime, introducing a number of mutual cooperation instruments ranging from anti money-laundering measures to extradition. The main goal of the Palermo Convention was the international diffusion of this “cooperation toolbox”. Definitional issues were somehow left in the background and some drafters even argued that there was no need for a definition of organized crime in the convention (Orlova and Moore 2005, 8; Vlassis 2002, 87). Nevertheless, the definition of organized criminal group provided by the text has become a global standard. The European Union actively participated in the negotiations of the Palermo Convention (Wright 2006, 195–197). In order to ensure the compatibility with the JA, the Council approved a Joint Position on the Convention (European Union 1999). Moreover, the European Community signed the Convention and is a Party to it (European Union 2001, 2004; Michelini and Polimeni 2007, 27). 2.2.2.1

The Definition of Organized Criminal Group

The Palermo Convention defines organized crime as an “organized criminal group”. This definition is very broad and echoes the Joint Action (98/733/JHA) definition under several points (Sheptycki 2002, 55, note 1; Orlova and Moore 2005, 7; McLean 2007, 43; Rosi 2007, 22–24).10 10

“Article 2. Use of terms. For the purposes of this Convention: (a) ‘Organized criminal group’ shall mean a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit;

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The attempts to provide a more precise definition are inconsistent. The Palermo Convention provides a definition of the concept of “structured group”. This definition excludes only randomly formed groups and does not require formally defined roles or continuity of membership or a developed structure. It is mainly a negative definition. The only positive requirements are the existence for a period of time and the concert between the members of the group. Both elements are extremely vague (McLean 2007, 41). The Palermo Convention infers the illicit nature of a group from the commission of “one or more serious crimes” or offences established by the Convention, just as provided by the JA. A quantitative selection specifies the notion of “serious crime”: it includes any “conduct constituting an offence punishable by a maximum deprivation of liberty of at least four years or a more serious penalty” and follows the rigid approach above criticized in relation to the JA (see Sect. 2.2.1). This solution is even more questionable in a UN treaty, where sanctioning regimes among the 147 parties to the Palermo Convention differ much more than between the EU Member States (Orlova and Moore 2005, 7; Militello 2001, 26; McLean 2007, 40). Differently from JA, an organized criminal group may exist also for the commission of one single offence. This broadens the scope of the provision and further blurs the difference with the simple participation in a crime by more than two persons (Orlova and Moore 2005, 7). 2.2.2.2

Criminalization Provisions

The Palermo Convention requires the criminalization of the participation in an organized criminal group.11 Just as the Joint Action (98/733/JHA), the Palermo Convention adopts the double model offence approach. State Parties may choose (b) “Serious crime” shall mean conduct constituting an offence punishable by a maximum deprivation of liberty of at least four years or a more serious penalty; (c) “Structured group” shall mean a group that is not randomly formed for the immediate commission of an offence and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure [. . .]” 11 Article 5: “Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally: (a) Either or both of the following as criminal offences distinct from those involving the attempt or completion of the criminal activity: (i) Agreeing with one or more other persons to commit a serious crime for a purpose relating directly or indirectly to the obtaining of a financial or other material benefit and, where required by domestic law, involving an act undertaken by one of the participants in furtherance of the agreement or involving an organized criminal group; (ii) Conduct by a person who, with knowledge of either the aim and general criminal activity of an organized criminal group or its intention to commit the crimes in question, takes an active part in: a. Criminal activities of the organized criminal group; b. Other activities of the organized criminal group in the knowledge that his or her participation will contribute to the achievement of the above described criminal aim; (b) Organizing, directing, aiding, abetting, facilitating or counselling the commission of serious crime involving an organized criminal group. [. . .]”

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alternatively or cumulatively between two options, referable to the civil law and common law traditions respectively (McLean 2007, 62). The civil law model offence (Article 5 (a) (ii) of the Convention) criminalizes the participation in any criminal act committed by the group. This provision differs from the JA because it divides the participation in the criminal activities and the participation in the other – therefore formally legal – activities. Both behaviours require the mental element of the “general knowledge of the criminal nature of the group or of at least of its criminal activities or objectives” (United Nations Offices on Drugs and Crime 2004, 24). In addition, the participation in the non-criminal activities of the group requires the knowledge that the apparently legal activity will contribute to the achievement of the illegal purposes of the group. The conspiracy model offence (Article 5 (a) (i) of the Convention) “criminalizes the mere agreement to commit serious crimes for the purpose of obtaining a financial or other material benefit” (United Nations Offices on Drugs and Crime 2004, 23). The definition provided by the Palermo Convention does not seem to add much to the basic notion of conspiracy in common law countries (McLean 2007, 63 and 67). Two optional elements can restrict its application and so comply with national criminal legislations. These are either an act committed in furtherance of the criminal agreement or the involvement of an organized criminal group. The last is significant. The actual presence of an organized criminal group is a mere possibility. It is not mandatory for national legislators introducing new conspiracy offences. This may lead to extensive criminalization and possible excesses of repression. Through the excuse of compliance with international agreements and international fight against organized crime, national governments may introduce very broad conspiracy offences into national legislation (Blakesley 1998, 76). These offences may have no reference to the actual presence of an organized criminal group and may apply for behaviours that have nothing to do with organized crime. Article 5 (b) of the Palermo Convention requires establishing as a criminal offence a series of behaviours that goes beyond the mere participation in the group’s criminal or legal activities. This provision targets the various activities of support and direction of the serious crimes involving an organized criminal group. This norm aims to sanction the leaders of criminal organizations that frequently do not participate directly in the commission of the crimes (United Nations Offices on Drugs and Crime 2004, 25).

2.2.2.3

Other Provisions

The Palermo Convention provides a wide number of rules concerning both substantive criminal law, criminal procedure and international cooperation. For the purpose of this book, some provisions have particular interest. Concerning the penalties for participation in a criminal organization, the Palermo Convention refrains from specific requirements. Article 11 only provides that States Parties should consider the gravity of the offences when selecting the penalties.

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Concerning the liability of legal persons, Article 10 requires State Parties to establish the liability of legal persons for participation in a criminal organization. The second paragraph enables to choose among criminal, civil or administrative liability, “subject to the legal principles of the State Party”. In relation to penalties the Palermo Convention requires “effective, proportionate and dissuasive criminal or non criminal sanctions”. This recalls the Joint Action (98/733/JHA) and leaves significant flexibility to the States Parties in the implementation. On jurisdiction, Article 15 of the Palermo Convention requires States Parties to establish their jurisdiction over the offences of participation in a criminal organization according to the principle of territoriality. Paragraph 2 enables additional principles of jurisdiction, namely the active national (crimes committed by a national or by a person having its habitual residence in a State’s territory) and passive national (crimes committed against a national) jurisdiction. For the conspiracy model offence, States Parties can also establish their jurisdiction over agreements committed outside their territory in view of committing serious crimes within their territory. The Palermo Convention does not follow the approach of the JA to the jurisdiction of criminal organization offences. It prescribes a minimum standard (territorial jurisdiction) with some possible additional criteria. In case of positive conflict of jurisdiction (more than one State claiming to have jurisdiction for prosecuting participation in a criminal organization), the Convention require State Parties to “consult one another with a view to coordinating their actions”. In conclusion, the Palermo Convention echoes the JA in a substantial way. Even if some issues improve with a better formulation of the text, the main criticisms made about the JA remain. The Palermo Convention follows the same overly broad approach in defining the concept of organized crime and in the double criminalization requirement. The criminalization of the participation in an organized criminal group does not differ significantly from the mere participation in a crime by multiple offenders (Michelini and Polimeni 2007, 111).

2.2.3

The Framework Decision on the Fight Against Organised Crime

The Framework Decision (2008/841/JHA) is the third international law instrument providing a definition of organized crime. The need for a new EU instrument originated from different factors, but the main boost came from the change in international cooperation brought on by the events of 11 September 2001. Since then terrorism became the absolute priority on the international agenda. This brought the application of many anti-organized crime measures to the fight against terrorism. The “War on terrorism” in part took the place of organized crime as a “picklock” for the introduction of harsh legislation and the restriction of civil liberties (Orlova and Moore 2005, 12–14). Although it is clear that many anti-organised crime activities can prove very effective in the repression of terrorism as well, the overlap between the two phenomena may lead to significant misunderstandings and confusion in combating them

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(Calderoni 2008, 269). A clear example of this approach is the Communication of the 29th of March 2004 by the European Commission, stating that “a link should be established between measures to combat organized crime and terrorism” (European Commission 2004, 4). The concept of criminal organization introduced by the Joint Action (98/733/JHA) should serve also against terrorist groups.12 Consequently: The Union legislation on criminal organizations must therefore be toughened and made consistent with Union legislation on the fight against terrorism: a Framework Decision to supersede Joint Action 1998/733/JHA will be a major step forward in the fight against the most serious forms of crime. This will also be the most effective way of tackling the overall terrorist phenomenon. (European Commission 2004, 7)

In the Commission perspective, the main objective of the review of the JA was to “actually harmonize the definition of offences and penalties” (European Commission 2004, 6). Somehow, this statement recognized that the actual harmonization in this field needed further action. The reformatting of the JA was necessary in order to update it to three main factors. The first was the Treaty of Amsterdam, which had reformatted the III pillar and in particular introduced framework decisions (see Chap. 1). The second was the Palermo Convention, introducing a global definition of organized criminal group and requiring state parties to criminalize the participation in an organized criminal group (see Sect. 2.2.2). The third was the Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism, deemed “a much fuller” instrument (European Commission 2004, 6). With its Communication of 9 January 2005 the Commission tabled a proposal for a Framework Decision on the fight against organized crime (European Commission 2005). The Commission proposal adhered to the JA and the Palermo Convention, yet introduced some interesting innovations. In particular, it rejected the double approach adopted by the JA and the Palermo Convention and fostered a single model offence renouncing to the conspiracy model offence. The Council refused to endorse this change and continued with the double approach. 2.2.3.1

The New Definition of Criminal Organization

The definition of criminal organization provided by the Framework Decision (2008/ 841/JHA) is a blend of the Joint Action (98/733/JHA) and Palermo Convention definitions.13 The Framework Decision (2008/841/JHA) retains the term criminal 12

For some arguments in favor of this analogy, see Fijnaut (2008, 251). Art. 1 of the FD: “Definitions. For the purposes of this Framework Decision: “criminal organization” 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; “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.” 13

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organization introduced by the JA. The goal of the criminal organization shifts. The simple clause introduced by the Palermo Convention (“to obtain, directly or indirectly, a financial or other material benefit”) replaces the somewhat problematic description of the ultimate objectives of the organization in the JA (“[. . .] whether such offences are an end in themselves or a means of obtaining material benefits and, where appropriate, of improperly influencing the operation of public authorities.”). The Framework Decision (2008/841/JHA) defines the structured association in a negative way ((Article 1, point 2) of the FD). This provision follows to the letter the definition of “structured group” of Palermo Convention and thus deserves the same criticisms (Mitsilegas 2009, 94). The Framework Decision (2008/841/JHA) maintains the quantitative threshold of 4 years of maximum deprivation of liberty to identify the predicate offences.14 As already mentioned, the different sanctioning regimes among Member States make this mechanism flawed (see Sect. 2.2.1.1). The Framework Decision (2008/841/JHA) does not depart in substance from the definitions provided in the previous international instruments. It amends some minor issues in the JA definition importing solutions from the Palermo Convention. This approach shows that the European legislator has disregarded the consistent criticisms to the excessive vagueness and meaninglessness of the JA. Opinions in favour of restricting the application of the notion of criminal organization had found support in the European Parliament. In its Legislative Resolution of 26 October 2006 the Parliament proposed an amendment to the definition of structure association, in order to exclude groups “randomly formed for the immediate commission of one or more acts giving rise to a number of different, or a series of, offences . . .” (European Parliament 2005). This amendment would have clarified that criminal organizations differ from groups of co-offenders. It would have set an stronger distinction between criminal organizations and traditional forms of participation in a crime. As such, it would have restricted the scope of application of the model offences. The Council ignored the suggestion of the European Parliament. 2.2.3.2

Offences Relating to Participation in a Criminal Organization

The Framework Decision (2008/841/JHA) maintains the double model offence approach.15 The Council rejected the Commission’s suggestion of a single model 14

In this book, “predicate offence” refers to the offence(s) which must be committed or planned by a criminal organization according to the law. 15 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 organization are regarded as offences: conduct by any person who, with intent and with knowledge of either the aim and general activity of the criminal organization or its intention to commit the offences in question, actively takes part in the organization’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 organization’s criminal activities; conduct by any person consisting in an agreement with one or more persons that an activity should

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offence. Instead, it introduced a conspiracy-type paragraph. Consequently, the two possible model offences are once again a continental/civil law model and an Anglo-Saxon/common law model respectively. It is the same pattern followed by the Joint Action (98/733/JHA) and the Palermo Convention, with minor changes. The civil law model offence slightly changes from its versions in the JA and in the Palermo Convention. The uncertain and unclear distinction between “criminal activities” and “other activities” of the organization disappears. The criminal conduct now encompasses the active taking part in the criminal activities of the organization. Additionally, there is a list of formally non-criminal support activities, comprising the provision of information or material means, the recruitment of new members and all forms of financing. These behaviours describe the typical activities of leaders of the groups and other “external” contributors. They are criminalized because of their essential support role to the criminal activities of the organization. Consequently, in the Framework Decision (2008/841/JHA) there is no more express clause on the generalization function of the offence as provided in the JA. The Council also renounced to the controversial anticipatory function of the model offence (see Sect. 2.2.1). Indeed, the Framework Decision (2008/841/JHA) excises the clause sanctioning the participation in a criminal organization independently from any actual attempt of the organization to commit any offence (or from the actual achievement of a crime). Even if the clause was present in the JA, “some Member States objected to such a criminalisation” (Joutsen 2006, 39). Both criminal and support activities require that the participant knows that the organization is either a criminal one or intends to commit offences and that its participation will contribute to the achievement of the organization’s criminal activities. The common law model (Article 2 (b) of the FD) just draws on the correspondent provision of the JA without any change.

2.2.3.3

Other Provisions

A remarkable innovation compared to the previous instruments is the requirement of minimum sanctions for the offence of participating in a criminal organization. The Joint Action (98/733/JHA) and the Palermo Convention did not set any specific penalty requirement. This is done in Article 3 of the Framework Decision (2008/ 841/JHA) which adopts the “minimum maximum” technique. The civil law model offence must be punished with a “maximum term of imprisonment of at least between two and five years”. The same applies to the common law model offence, with the alternative of the application of “the same maximum term of imprisonment as the offence at which the agreement is aimed”. The Framework Decision (2008/ 841/JHA) conforms to the Council’s standard rules on penalties, agreed at the 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.”

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meeting of the Council on Justice and Home Affairs, 25–26 April 2002 (Peers 2006, 419; Mitsilegas 2009, 89). The choice has been adopted in order to ensure that penalties are not set too low for mutual legal assistance and international cooperation. However, a penalty of 2 years of maximum imprisonment would comply with the requirement of the Framework Decision (2008/841/JHA), but in case of an EAW would not allow avoiding the verification of double criminality. Moreover, this approach has been criticized because it pushes toward a potential increase in the sanctioning levels to meet the Framework Decision (2008/841/JHA) requirements without providing for a maximum threshold for penalties (Weyembergh 2005a, 1588; Vermeulen 2002b, 75–76). The provision of a “minimum maximum” range (between 2 and 5 years) should increase the flexibility of the Framework Decision (2008/841/JHA) and therefore reduce the push toward increase of penalties. However, the lack of a “maximum maximum” threshold once again reveals the enforcement driven approach leading the EU anti organized crime policy (Vermeulen 2002b, 76; Asp 2005, 33). A further innovation is the introduction of an aggravating circumstance for any crime committed in the framework of a criminal organization.16 Unfortunately, the final text of the Framework Decision (2008/841/JHA) raises a interpretative problem. In the Commission’s proposal the paragraph on the aggravating circumstance referred to Article 1 of the Framework Decision (2008/841/JHA), defining the predicate offences (European Commission 2005). The purpose was clear. It aimed at increasing the penalties for any offences falling within the 4 years threshold when committed within the framework of a criminal organization (European Commission 2005, 5–6). At the Council, some Member States opposed the mandatory nature of this circumstance and the final text just required Member States to ensure that the circumstance may entail a higher penalty (Council of the European Union 2006a, 6). The official text of the Framework Decision (2008/841/ JHA) decision presents a sudden and unexpected change in the formulation of Article 3 para 2. Instead of Article 1 (definition of criminal organization and of the predicate offences), it refers to Article 2 (offences relating to the participation in a criminal organization). There is no trace of the reasons underlying this change in the documents of the Council. The document reporting the final text agreed in the Council refers to Article 1 (Council of the European Union 2006b, 6). However, a following document, without any comment (Council of the European Union 2006a), refers to Article 2 and this version finally became the official one. The outcome is paradoxical. A strict interpretation of the Framework Decision (2008/ 841/JHA) would lead to nonsense. Participation in a criminal organization may be aggravated when committed within the framework of a criminal organization. A systematic interpretation should bring back the meaning of the provision to the one

16

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.”

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agreed by the Council. In any case, this issue may lead to diverging interpretations by national legislators and should be amended. The Framework Decision (2008/841/JHA) requires Member States to introduce the liability of legal persons for participation in a criminal organization. The Framework Decision (2008/841/JHA) does not require explicitly the criminal nature of such liability. Therefore, just as the Joint Action (98/733/JHA) and the Palermo Convention, it leaves this choice to Member States. Differently from the previous international legal instruments, the Framework Decision (2008/841/JHA) requires that the liability is established in two circumstances. The first is when a person having a leading position in the legal person commit the offence of participation in a criminal organization for the benefit of the legal person (Article 5 para 1).17 The second is when the lack of supervision or control by a leading person make possible the participation in a criminal organization (Article 5 para 2) (Peers 2006, 413).18 Concerning jurisdiction, the Framework Decision (2008/841/JHA) recalls in part the Palermo Convention. There are three criteria for establishing a Member State’s jurisdiction over the participation in a criminal organization: territorial, active personality (offence committed by a Member State’s national) and when the offence is committed “for the benefit of a legal person established in the territory of that Member State”. The last two criteria are optional, since Member States may not adopt them or may apply them “only in specific cases or circumstances” (Peers 2006, 456–457).19 In case of conflict of jurisdiction, the Framework Decision (2008/841/JHA) improves the provisions of the Palermo Convention.20 In this cases, Member States

17

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. 18 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.” 19 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; (b) by one of its nationals; or (c) for the benefit of a legal person established in the territory of that Member State. A Member State may decide that it will not apply, or that it will apply only in specific cases or circumstances, the jurisdiction rules set out in (b) and (c) where the offences referred to in Article 2 are committed outside its territory.” 20 Article 7 para 2 of the FD. “When an offence referred to in Article 2 falls within the jurisdiction of more than one Member State and when any one of the States concerned can validly prosecute on the basis of the same facts, the Member States concerned shall cooperate in order to decide which of them will prosecute the offenders, with the aim, if possible, of centralising proceedings in a

2.2 Main Instruments Aiming at Harmonization

41

should cooperate “in order to decide which of them will prosecute the offenders, with the aim, if possible, of centralising proceedings in a single Member State”. This may include the recourse to Eurojust or other bodies or mechanisms provided by the EU. This provision enables a better cooperation and coordination than the JA and the Palermo Convention. It may prevent double prosecutions for the same facts (Peers 2006, 458). In conclusion, the Framework Decision (2008/841/JHA) does not improve substantially the discipline set by the JA and the Palermo Convention. Some minor changes solve some critical points, e.g. on jurisdiction. The approach to organized crime remains constant: a broad definition of criminal organization combines with a criminalization technique based on a quantitative threshold (Fijnaut 2008, 253).

2.2.4

Remarks on the Legal Instruments Aiming at Harmonization and Approximation of Organized Crime Legislation

Some critical issues arise from the analysis of the international legal instruments aiming at harmonization and approximation of organized crime legislation.

2.2.4.1

The Definition of Organized Crime

The legal definition of organized crime, i.e. the notions of organized criminal group or structured association, is objectionable for various reasons. From a legal point of view, the vague definition of the concept of organized crime may raise problems relating to the principle of legality and its corollaries of clarity and precision of criminal law (Mitsilegas 2001, 570; Joutsen 2002c, 423). In order to make it compatible with the principle of legality, national legislators (at least the most scrupulous ones) may have to complete and specify the definition (Lahti and Sahavirta 2007, 103–104). The results may differ substantially among Member States. This uncertain understanding of the notion is likely to jeopardize the effective approximation of national legislation. Indeed, the implementation of the EU definition at the national level may result with very different national definitions and approaches, depriving the original intent of all meaning. The Framework single Member State. To this end, Member States may have recourse to Eurojust or any other body or mechanism established within the European Union in order to facilitate cooperation between their judicial authorities and the coordination of their action. Special account shall be taken of the following factors: (a) the Member State in the territory of which the acts were committed; (b) the Member State of which the perpetrator is a national or resident; (c) the Member State of the origin of the victims; (d) the Member State in the territory of which the perpetrator was found.”

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Decision (2008/841/JHA) definition, as it appears, is so vague as to deprive the notion of structured association of a large part of its selective potential (Mitsilegas 2001, 577; Symeonidou-Kastanidou 2007, 93). The structured association is defined in a negative way. This does not distinguish it from the mere cooperation of in a crime by multiple offenders, which all EU Member States regulate according to national legal traditions (Symeonidou-Kastanidou 2007, 97; Paoli and Fijnaut 2004, 41; Ambos 2005, 182–186). From a criminological point of view, the definition covers an extremely broad span of phenomena and does not address the distinctive features of organized crime (Ba¨ckman 1998, 31). These characterise organized crime and should make it possible to distinguish it from mere “crimes that are organized”. Indeed, “there is a danger, generally, in the promiscuous use of the label organized crime with reference to perpetrators of ‘crimes that are organized,’ and also with criminal networks that lack what we regard as the essential defining elements of being criminal organizations” (Finckenauer 2005, 77–78). Although there is no general agreement on a common definition of organized crime (Fijnaut 2004, 267–270; Fijnaut 2008, 244–247; Mitsilegas 2009, 93), several studies in the field have identified the following elements: l

l

l

l

Continuity. The group must have a stable structure suited to the continuous and indefinite commission of crimes, independently of its membership (Finckenauer 2005, 66; Ba¨ckman 1998, 25; Hagan 2006, 135). Violence. The group exploits its force to use or to threaten to use violence or intimidation. This may be addressed to other criminal groups, minor criminals, legal/illegal competitors and victims (Finckenauer 2005, 66; Ba¨ckman 1998, 26; von Lampe et al. 2006, 36; Spinellis 1997, 813). Enterprise. The group’s main goals are profit and power. These are usually pursued through the production and/or exchange of illegal goods and/or services in illegal markets (Finckenauer 2005, 66–67; Hagan 2006, 134; Spinellis 1997, 813). Immunity. The group can corrupt or exert influence on other subjects (politicians, media, judicial authorities, administrators, enterprises) in order to shield its activities from any form of sanctions (Finckenauer 2005, 67; Ba¨ckman 1998, 27; Hagan 2006, 135; Spinellis 1997, 813).

None of these elements is clearly present in the legal definitions of criminal organization of the international legal instruments. The EU’s notion of organized crime is thus far from the results of scientific research in the field.

2.2.4.2

The Selection of the Predicate Offences

The technique of selection of the predicate offences that are the main activity of an organized criminal group raises some doubts. The quantitative threshold once again jeopardizes the objective of harmonizing and approximating national legislation against organized crimes. Indeed, different offences (if committed by at least three

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people) may fall within the notion of criminal organization, according to the sanctioning regime and tradition of each Member State (Militello 2001, 25). This may result in very different applications of the concept of criminal organization and thus create problems in the coordination of law enforcement activities among Member States (e.g., two different countries may treat very differently two identical behaviours) (Manacorda 2002b, 282). Moreover, since many activities of criminal organizations usually fall within the competence of several jurisdictions, the differential application of the discipline on criminal organizations may imply very different criminal treatments depending on which state prosecutes the offences (e.g.: one behaviour may receive different treatments according to which state establishes its jurisdiction to prosecute it). The result may be far from improving the level of harmonization and approximation among Member States. Besides the legal issues caused by the use of this technique, it also reflects a controversial criminal policy approach to the concept of organized crime. Instead of focusing on the distinctive features of this phenomenon, in order to provide a more penetrating definition, it dilutes the salient aspects of organized crime and transforms the notion into a generic container serving ideological and mutual cooperation purposes (Ba¨ckman 1998, 32). This intention is evident in the aforementioned Commission Communication, which presents the Framework Decision (2008/841/ JHA) as a measure complementary to the Framework Decision on combating terrorism (European Commission 2004, 7). This choice of criminal policy may have important drawbacks. The label “criminal organization” has serious consequences in terms of police control and derogations to standard procedural guarantees. The level of state reaction requires that the crimes involved be proportionally serious. The Framework Decision (2008/841/JHA) definition however does not focus on the distinctive features of organized crime that may justify the substantial increase in the investigation, prosecution and sanctioning regime. The combination of the critical points described above prevents setting a sensible threshold for the application of the notion of criminal organization, opening the way for possible excesses of repression (Symeonidou-Kastanidou 2007, 92 and 96).

2.2.4.3

The Double Model Offence

The double model offence approach is another problematic issue concerning the harmonization and approximation of organized crime legislation. First introduced by the Joint Action (98/733/JHA), maintained by the Palermo Convention, it remains also in the Framework Decision (2008/841/JHA). This represents a solution by political compromise between the civil law criminal association and the common law conspiracy traditions. During the JA negotiations, the common law model offence was introduced because of the reaction by the United Kingdom and this also happened in the case of the Framework Decision (2008/841/JHA) (Mitsilegas 2001, 570; Calderoni 2008, 278). The Commission’s proposal tried to solve this issue and suggested a single model offence based on the continental

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tradition, but the Council, which instead introduced a conspiracy clause, did not pass it. This happened because IE and UK thought that the alternative option of criminalising conspiracy from the 1998 Joint Action should be maintained. UK referred to the evidentiary difficulties UK prosecutorial authorities would be faced with when trying to prove membership of a criminal organization. In view of these legitimate law enforcement concerns and at the suggestion of BE, the Presidency proposes to reinsert the alternative referring to conspiracy.21 (Council of the European Union 2005, 6, Footnote 3)

It is clear that the double model offence is the price to obtain the consensus of the common law Member States, where criminal organizations are pursued through the offence of conspiracy (Mitsilegas 2001, 571; Manacorda 2002b, 287–288; 2008, 284–285). This happened because Article 34 } 2 of the Treaty on European Union still requires unanimity for the adoption of framework decisions. This compromise is once again problematic in light of the objective itself of framework decisions, i.e. the approximation of the criminal legislations of Member States (Manacorda 2002b, 287–288). The final text approved by the Council appears to undermine the actual approximation of national systems. Indeed, the EU solution once again equalizes the common law and civil law approaches from a functional point of view, with no likely changes in the substance (Manacorda 2002b, 287; 2008, 281). It is probable that most EU Member States will not have to change or modify their current legislation concerning the criminalization of participation in a criminal organization (Joutsen 2006, 39).

2.2.4.4

A Missed Opportunity for an EU Approach to Organized Crime

For the above reasons, the Framework Decision (2008/841/JHA) fails to establish a common European criminal law approach to the repression of organized crime. This choice seems to jeopardize the added value of the Framework Decision (2008/ 841/JHA) from the perspective of improving law enforcement and judicial cooperation in criminal matters through the approximation of criminal law (Vermeulen 2002b, 71–74; Manacorda 2002b, 270; Weyembergh 2005a, 1582; Calderoni 2008, 280–282; Fijnaut 2008, 261). This view is confirmed by the blunt statement made by the Commission, joined by France and Italy, concerning the final text of the Framework Decision (2008/ 841/JHA) (Council of the European Union 2006, 12; Calderoni 2008, 279). The Commission affirms that “the Framework Decision does not achieve the minimum degree of approximation of acts of directing or participating in a criminal organization on the basis of a single concept of such an organization”. Moreover, the

21

Council of the European Union, Doc. 9864/05 of 8 June 2005 (2005), p. 6, Footnote 3.

2.3 Conclusions of Chapter 2. The Assessment of Organized Crime Legislation

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Framework Decision (2008/841/JHA) “enables Member States not to introduce the concept of criminal organization but to continue to apply existing national criminal law by having recourse to general rules on participation in and preparation of specific offences”. Finally, it states that the Framework Decision (2008/841/JHA) “does not achieve the objective of the approximation of legislation on the fight against transnational organized crime as provided for in the Hague Programme”. This declaration highlights the extent to which the issue is still debated and its complexity. The Commission statement on the final text proves that the doubts about the effectiveness of the approximation process are well founded, even within the European institutions. In conclusion, the Framework Decision (2008/841/JHA) definition does not depart substantially from the definitions provided in the previous international instruments. It remedies some minor problems with the Joint Action (98/733/ JHA) by importing solutions from the Palermo Convention.22 The Council has failed to address the core characteristics of organized crime. The definition of “structured association” is thus a nebulous oxymoron challenging legal certainty (Symeonidou-Kastanidou 2007, 97–98; Mitsilegas 2001, 576–577; Calderoni 2008, 275). The quantitative selection of the predicate offences does not contribute to make the concept more precise, because of the disparity in penalties among national systems. This broad approach to the concept finally dilutes it in order to extend its application and apparently reduce discrepancies among EU Member States (Ba¨ckman 1998, 32). The analysis of the text of the Framework Decision (2008/841/JHA) shows that the European legislator has disregarded the criticisms made of the excessive vagueness and meaninglessness of the JA (Ba¨ckman 1998, 32; Mitsilegas 2001, 576–577 Manacorda 2002; Militello 2001; Weyembergh 2005a; Calderoni 2008). Once again, criticisms about the approximation en trompe l’œil seem to find support in the overall poor quality of the legal instruments in the III pillar.

2.3

Conclusions of Chapter 2. The Assessment of Organized Crime Legislation

This chapter focused on the sector of organized crime legislation. Section 2.1 provided multiple arguments for the choice of this sector for an assessment of the level of harmonization and approximation among EU Member States’ legislation. These include reasons related to the importance of this area in the EU policy in the 22

In particular, the simple clause introduced by the Palermo Convention (“to obtain, directly or indirectly, a financial or other material benefit”) substitutes for the somewhat problematic description of the ultimate objectives of the organisation in the JA (“[. . .] whether such offences are an end in themselves or a means of obtaining material benefits and, where appropriate, of improperly influencing the operation of public authorities.”). Article 1 paragraph 2 of the JA providing a superfluous and unclear cross-reference to the offences contained in the Europol Convention has not be been maintained.

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III pillar and to the lack of previous assessments, although very demanded by scientific literature. Section 2.2 presented the three existing international legal instruments aiming at harmonizing and approximating national legislation on organized crime. The analysis showed the limits of these instruments from different points of view and highlighted how the Council did not take into account these criticisms in the negotiations of the Framework Decision (2008/841/JHA). In conclusion, the analysis of the specific sector of organized crimes confirms the general issues highlighted in Chap. 1. Harmonization and approximation measures in the field of organized crime received strong criticisms, but there is no scientific assessment of harmonization and approximation of organized crime legislation. On one side, this lack of research supports the criticisms to the EU policymaking in the III pillar, which argue that approximation measures are mostly adopted for political reasons, are not supported by any previous study and are excessively broad. On the other side, the lack of research has so far prevented the actual verification of these criticisms and ultimately of the accountability of the EU policy in the sector of organized crime legislation. Indeed, the international legal instruments in the field of organized crime have been the target of strong criticisms. In particular, their actual potential in terms of added value to the harmonization and approximation of organized crime legislation raises doubts. The Commission and some EU Member States share this opinion and openly affirmed their disagreement in a declaration concerning the final text of the Framework Decision (2008/841/JHA). For the above reasons, organized crime legislation appears to be an interesting sector for an assessment of the level of harmonization and approximation of EU Member States’ legislations. This book addresses the problems outlined in Chap. 1 and 2 through an assessment of organized crime legislation among EU Member States. The following chapter (Chap. 3) describes the methodology. The assessment includes an horizontal analysis, describing the current level of harmonization among national legislation (Chap. 4) and a vertical analysis (a gap analysis) assessing whether EU Member States comply with the EU requirements as set by the Framework Decision (2008/841/JHA) (Chap. 5). The results may contribute to the scientific and political debate on the effectiveness and added value of the EU policy of harmonization and approximation (Chap. 6).

Chapter 3

The Methodology

The assessment of the level of harmonization and approximation of organized crime legislation among 27 EU Member States needs to overcome some difficulties. These relates to the very different legal traditions and legislations. The mere description of the legal provisions of each EU Member State would not enable a proper assessment. The inherent differences among legal systems would constitute an obstacle to both an horizontal and vertical analysis. This book fosters a different approach, with a different methodology (Sect. 3.1). It is based on the use of indicators and collection of data from different sources. Indicators make it possible to focus on selected aspects of organized crime legislation and to overcome differences which have minor relevance for the goal of this book. This methodology however is far from being perfect. For this reason the second section of this chapter argues some of its limits and discusses their implications (Sect. 3.2).

3.1

The Methodology: Assessing Through Indicators

This section presents the methodology for the assessment of the level of harmonization and approximation of organized crime legislation among EU Member States. The methodology is based on the creation of indicators of harmonization and approximation. Subsequently, EU Member States’ national legislations on organized crime are rated against each indicator. The section argues the objectives, the operational definitions and the methodology (Sect. 3.1.1), the data gathering techniques (Sect. 3.1.2) and the analysis (Sect. 3.1.3).

F. Calderoni, Organized Crime Legislation in the European Union, DOI 10.1007/978-3-642-04331-4_3, # Springer-Verlag Berlin Heidelberg 2010

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3 The Methodology

3.1.1

Objectives, Operational Definitions and Methodology

3.1.1.1

Objectives

This book aims to provide an assessment of the level of harmonization and approximation of organized crime legislation among EU Member States. In order to achieve this aim, two objectives are identified: l

l

Objective 1. Assess the level of harmonization of organized crime legislation among EU Member States (horizontal analysis) Objective 2. Assess the level of approximation of national organized crime legislations to the EU standards set by the Framework Decision (2008/841/JHA), i.e. the national legislations’ compliance with the EU requirements (vertical analysis)

A preliminary objective is the elaboration of a methodology to assess harmonization and approximation among different national legislations. 3.1.1.2

Operational Definitions

Chapter 1 defined the concepts of harmonization and approximation. Harmonization is the process of modifying different criminal legislations in order to eliminate differences contrasting with the minimum standard set by a framework decision. Approximation is the process of modifying different criminal legislations in order to improve their consistency and eliminate frictions among them. From these working definitions, to achieve the two objectives of this book, the following operational definitions of harmonization and approximation were created: l

l

The operational definition of harmonization is the level of consistency among the ratings of EU Member States for each indicator of harmonization. The underlying assumption is that the more the ratings of EU MSs are consistent among them, the more the national legislations are harmonized. The assessment of harmonization describes EU national legislations on organized crime in order to understand the different approaches a. The operational definition of approximation is the EU Member States’ rate of compliance (positive assessments) with the indicators of approximation EU requirements as set by Framework Decision (2008/841/JHA) for each. The underlying assumption is that the more the EU Member States’ ratings are positive, the more the national legislation complies with the EU requirements. The assessment of approximation describes the compliance of national legislation with the requirements set by the Framework Decision (2008/841/JHA).

3.1.1.3

Methodology

To assess the level of harmonization and approximation, two different sets of indicators have been created. The first set aims at assessing the level of harmonization among EU Member States. It includes 16 indicators of harmonization (Table 3.1). The indicators were created on the basis of extended analysis of

3.1 The Methodology: Assessing Through Indicators Table 3.1 Indicators of harmonization No. Indicator of harmonization 1 Criminal organization offences 2 Aggravating circumstances 3 Punishability of mere agreement 4 Number of members 5 Structure of the group 6 Continuity of the group 7 Number of predicate offences 8 Type of predicate offences 9 Additional element 10 Standard penalty for participation/membership 11 Diversification of sanctions 12 Benefits for collaborators with justice 13 Requirements for benefits 14 Liability of legal persons 15 Sanctions for legal persons 16 Rules on jurisdiction

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Group The structure of criminal law

The requirements of the criminal organization The activities of the criminal organization The penalties The collaborators with justice The liability of legal persons

national criminal legislations and existing scientific literature on the same topic. Each indicator describes a specific feature of organized crime legislation. The legislation of EU Member States has been rated against the indicators of harmonization (see Chap. 4). This assessment has resulted in the identification of the legislative approaches adopted by EU Member States in relation to each indicator. The number of possible values of the indicators of harmonization varies significantly. Some indicators showed a significant convergence among EU Member States, with a limited number of legislative approaches (and consequently a limited number of values). Other indicators pointed out a higher number of different legislative approaches (more values). The second set of indicators aims at assessing the level of approximation of national legislations to the EU requirements as provided by the Framework Decision (2008/841/JHA). The indicators were created in order to address the main requirements set by the Framework Decision (2008/841/JHA). The provisions of the Framework Decision (2008/841/JHA) have been framed into 17 indicators of approximation (Table 3.2). Each indicator assesses the compliance with one specific requirement set by the Framework Decision (2008/841/JHA). The legislation of EU Member States has been rated against the indicators of approximation. This operation assessed whether national organized crime legislations comply or not with the requirements set by the Framework Decision (2008/841/JHA) (see Chap. 5). Consequently, the possible values of the indicators of approximation were only “yes” (compliance with the FD), “no” (non compliance) and “n/a” (not applicable/available).

3.1.2

Data Gathering

The information for the assessment of national legislation has been collected through four different data gathering techniques.

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Table 3.2 Indicators of approximation No. Indicator of approximation 1 Number of members 2 Number of predicate offences 3 Type of predicate offences 4 Structure of the group 5 Continuity of the group 6 Additional requirements 7

8 9 10 11 12 13 14 15 16 17

Standard penalty for participation/membership Aggravating circumstance Crimes committed by persons having a leading position within the legal person Crimes made possible by lack of supervision or control Criminal/non-criminal fines Other sanctions Territorial jurisdiction Jurisdiction over offences committed by a national Jurisdiction over offences committed for the benefit of a legal person established in the territory

Group Article 1 – Definitions

Article 2 – Offences relating to participation in a criminal organization Article 3 – Penalties Article 4 – Special circumstances Article 5 – Liability of legal persons

Article 6 – Penalties for legal persons Article 7 – Jurisdiction

The first data gathering method has been the direct access to national legislation. Different sources contributed, such as official publications, internet sources (including both official sites providing national legislation and unofficial sites) and personal contacts. This enabled to collect information on all EU Member States. The second data gathering strategy has been a review of scientific literature, including article in scientific journals, monographs, comparative studies and other papers. This provided valuable information and analysis on the most important legal systems (in particular, Belgium, France, Germany, Italy, the Netherlands, Spain, the United Kingdom). The third data gathering technique has been the access to the questionnaires compiled by EU Member States collected by the United Nations Office for Drug and Crime (UNODC) in order to monitor the implementation of the Palermo Convention. The questionnaires asked States Parties to provide information on their national legislation on organized crime, with particular focus on the areas concerned by the implementation of the Palermo Convention. Questionnaire available included all EU Member States except for Denmark, Hungary and Luxembourg. The fourth data gathering strategy has been the administering of a questionnaire to national experts. The drafting of the questionnaire was made through careful analysis of organized crime legislations and scientific literature. It asked national experts to answer questions relating to the main features of national legislation (including jurisprudence of highest national courts of criminal justice) on organized crime. Additionally, it requested to provide copies of relevant legislation in any of the following languages: English, French, Italian, Spanish and Portuguese. A network of international organizations supported the dissemination of the questionnaires. These included the European Police College (CEPOL), Eurojust,

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European Judicial Network (EJN) and the Secretariat of the Council of the European Union. These institutions sent the questionnaires to the national representatives/ desks of each EU Member State. Overall, 25 questionnaires were collected covering 21 EU Member States (Austria, Cyprus, the Czech Republic, Germany, Estonia, Finland, France, Greece, Ireland, Italy, Latvia, Lithuania, Malta, the Netherlands, Poland, Portugal, Romania, Slovenia, Slovakia, Sweden, the United Kingdom). Further discussion and clarifications with the experts occurred with the aim of clarifying specific issues and regulations.

3.1.3

The Analysis

The data collected were used to rate Member States’ legislation against each harmonization and approximation indicator. The assessment of the level of harmonization (horizontal analysis) aimed at assessing national legislation which is more specifically designed to address criminal organizations. This has two implications. First, the assessment focused only on general criminal organization offences (COOs). For the purpose of this book, general criminal organization offences are COOs where different types of crimes can be committed, while in special criminal organization offences only specific crimes can be committed (e.g. drug-trafficking criminal organization offences; human trafficking criminal organization offences). This choice was due to the need to focus on national provisions aiming at defining organized crime in criminal legislation from a general point of view. As a consequence, provisions on terrorist organizations, drug-trafficking organizations and similar have been discarded, because of the specific aim of these offences. Second, whenever a legal system presented more than one general criminal organization offence, the assessment focused only on the offence that more specifically describes organized crime and/ or criminal organizations. The analysis concentrated on the lex specialis instead of the lex generalis. An example may clarify this approach. In Italy there are multiple COOs tackling criminal organizations. Some are special COOs, because they are specially designed to tackle a specific criminal activity (e.g. terrorist association, drug-trafficking criminal association, tobacco smuggling criminal association). Two offences are general COOs: Article 416 of the Criminal Code, criminal association and Article 416-bis, mafia-type criminal association. The assessment of the level of harmonization has focused only on the mafia-type criminal association. Indeed, this provision is specifically designed to tackle organized crime and describes it with more precision. A further reason for this option has been the necessity to have a meaningful assessment. The opposite approach, i.e. assessing multiple offences or the most general ones, would have led to a less meaningful assessment, including broader provisions and excluding the ones specifically addressing organized crime. Consequently, the horizontal analysis assesses the offences that, within each national legal system, are the nearest to the concept of organized crime. The assessment of harmonization evaluates the national efforts to portray in criminal legislation the concept of organized crime.

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The assessment of the level of approximation necessarily adopted a different approach. The very nature of approximation, i.e. the setting of EU minimum standards, implies that national legislation complies with EU requirements when any provision in national criminal law meets the requisites set by the Framework Decision (2008/841/JHA). Consequently, the vertical analysis through the indicators of approximation assesses the mere existence under national criminal legislation of any provision that complies with the EU requirements, independently from the presence of more specific legislation tackling criminal organizations. Both the assessment of harmonization and approximation differ from the traditional approach of comparative research. In general, the studies on comparative (organized crime) legislation, contain several sections analyzing different legal systems separately. Eventually a general report summarizes the main issues. This approach has some limits (see Sect. 2.1.2.). Moreover, at present there is no assessment of the legislation of all the 27 EU Member States, notwithstanding the need of such an assessment in order to verify the criticisms about the quality of EU legal instruments. This book provides an alternative approach, focusing on specific topics rather than on specific national systems. The creation of the indicators of harmonization and approximation make it possible to concentrate on some of the most relevant themes. This may provide an innovative view on organized crime legislation and complement the existing research.

3.2

Possible Problems Related to the Methodology

The need to reduce the impact of national differences on the analysis drove the methodological choices for this book. Issues such as terminology and legal traditions may indeed unnecessarily complicate the analysis of national legislations. However, this approach may have some drawbacks. First, the selection of the indicators may not cover issues that are of particular importance in some EU Member States. For example, some EU Member States have several special criminal organization offences (COOs) tackling specific forms of criminal organizations (e.g. drug trafficking criminal organization). The presence of these provisions may reduce the importance of general COOs in countering organized crime. Indeed, general offences may function as “residual provisions” applied only when a criminal organization does not fall within the scope of special COOs. This book focuses mainly on general COOs. This option is due to the need to focus the analysis on a general, widely adopted, approach and avoid national particularities. As a further argument, the international legal instruments aiming at harmonizing and approximating organized criminal legislation implement this approach. Indeed, all these measures require the adoption of general COOs by national legislators (see Sect. 2.2). Second, the focus on specific topics instead of specific national systems requires to partially renounce an in-depth, comprehensive analysis of national legislations on organized crime. Traditionally, comparative research has always followed this approach. However, this type of analysis is frequently complex and requires

3.2 Possible Problems Related to the Methodology

53

researchers from each analyzed country. It is also difficult to draw a synthesis of the result, since each national expert has a personal approach to the subject. This book follows a different path and tries to provide synthetic and simpler description of some selected issues. It does not aim at in-depth analysis of national laws, but rather seeks to provide a comprehensible and readable cross-national analysis of 27 legal systems. This choice may imply a possible trade-off between the detail of the analysis and its readability and its geographical reach. To address this issue, the chapters presenting the results provide references to specific national studies. Third, it is important to consider that the problem of organized crime is extremely complex and EU Member States may have a different understanding of it (Fijnaut 2008, 243–247). This book adopts a rather narrow approach to the definition of organized crime and, consequently, of criminal organizations. As outlined above (see Sect. 2.2.4) organized crime implies the use of violence or intimidation, the continuity element, an entrepreneurial approach to the commission of crimes and the use of corruption or other means to attain immunity from prosecution. In some EU Member States organized crime has broader definitions, including, for example, terrorist groups, economic crimes, gang criminality. National legislation on criminal organizations may be drafted in order to fit to these national understandings of organized crime. Therefore, the national conception of organized crime may affect the level of detail and precision in the definition. This point falls partially outside of the scope of this book. The horizontal analysis highlights the different national approaches to the definition of criminal organizations in criminal law. Some countries provide very detailed definitions of criminal organizations, requiring one or more typical features of organized crime. Other countries have very broad definitions of criminal organizations. It has not been always possible to establish whether this is due to a broad understanding of organized crime and/or to a mere legislative drafting option. Fourth, this book only partially considers the fact that the existence and the diffusion of organized crime (and particularly in its narrow interpretation) vary significantly among EU Member States. Surely, a relevant presence of organized crime fosters the introduction of more specific legislation by national legislators. The example of Italy confirms this assumption. Italy introduced detailed legislation on organized crime to address the serious problems with mafia-type organizations. However, it should be noted the EU action against organized crime aims at preventing the spreading of criminal organizations across the whole territory of the EU as a consequence of the establishment of the common market and the establishment of free movement of goods, workers, services and capitals. Consequently, the process of harmonization and approximation of organized crime legislation should not be limited to countries currently facing organized crime problems, but rather involve all EU Member States in order to provide each legal system with minimum legal instruments and avoid the creation of safe havens for criminal organizations. Even so, national criminal law on criminal organizations may still be remarkably influenced by national concerns and priorities rather than by the EU criminal policy. Fifth, this research should not be intended to measure the effectiveness of national legislation in tackling organized crime, although it may be tempting to make such an evaluation. This book aims to assess the level of harmonization and

54

3 The Methodology

the level of approximation. It does not assess which is the best legislation for tackling organized crime for various reasons. Surely, good legislation contributes to the effectiveness of enforcing organized crime, but it is just one element among many others (actual implementation, resources and independence of law enforcement and the judiciary, political commitment in addressing criminal organizations, corruption, etc.) (Fijnaut 2008, 247). Moreover, even harmonized or approximated legislation may still be ineffective against organized crime, although it may be assumed that a good level of harmonization and approximation improve the effectiveness of anti-organized crime action. Lastly, the assessments of the level of harmonization and approximation only evaluates national legislations. It was not possible to assess the actual implementation and functioning of these provisions. The data gathering enable to assess this point only partially, through the analysis of the jurisprudence of higher courts and discussion with experts. This issue is relevant since, for example, a Member State may already comply with the Framework Decision (2008/841/JHA) standards, but the law may be rarely or never applied because of a number of reasons, such as recent introduction, lack of training, different legal culture, corruption (Perron 2005, 19). These issues are of major relevance in the overall perspective of countering organized crime, but they go beyond the scope of this book. This research focuses on the formal legal meaning of harmonization and approximation and provides a first step toward possible (and probably much more complex) assessment of the actual implementation of organized crime legislation.

3.3

Conclusions of Chapter 3

This chapter described the methodology used in the assessment of harmonization and approximation of organized crime legislation among EU Member States. The first section outlined the methodology. The second section discussed the main methodological choices and their possible drawbacks. Independently from the outcome of the analysis, the creation and testing of a methodology for the assessment of harmonization and approximation has its relevance. It is an attempt to tackle the problems relating to EU policies of harmonization and approximation of criminal law. Its application is not limited to the sector of organized crime legislation. The same methodology may apply (mutatis mutandis) to other sectors of the EU policy in the III pillar. In particular it could apply to sectors of substantive criminal law where there are already EU legal instruments aiming at approximation of national legislation. Its implementation would enable an assessment of the levels of harmonization and approximation both before and after the implementation of EU legal instruments. Scientific literature has repeatedly stressed the importance of this type of analysis for an effective EU policy in the AFSJ. The methodology developed in this book attempts to provide a relatively simple tool of analysis which may stimulate further developments from both the academic world and the EU institutions.

Chapter 4

Assessing Harmonization: The Horizontal Analysis

This chapter provides the assessment of the level of harmonization of national legislation on organized crime, through the analysis and discussion of the indicators of harmonization. The first section presents the analysis of the indicators concerning the structure of criminal law. Section 4.2 deals with the requirements of the criminal organization. Section 4.3 analyses the indicators on the activities of the criminal organization. Section 4.4 presents the penalties participating in a criminal organization and their possible differentiation in the law. Section 4.5 presents the assessment of the indicators on collaborators with justice. Section 4.6 describes the provisions on the liability of legal persons. Section 4.7 addresses the rules on jurisdiction on participation in a criminal organization. Section 4.8 provides a combined analysis of the level of harmonization of organized crime legislation among EU Member States.

4.1

Structure of Criminal Law

This section presents the indicators relating to the general structure of criminal law. These include the indicators on criminal organization offences (Sect. 4.1.1), on aggravating circumstances (Sect. 4.1.2) and on the punishability of the mere agreement (Sect. 4.1.3).

4.1.1

Criminal Organization Offences

This indicator assesses the existence of one or more criminal organization offences (COOs) addressing organized crime. COOs are a key factor to effectively tackle organized crime (Manacorda 2002b, 233; Plecas et al. 2001; Weigend 1997, 532). Indeed, they perform multiple functions in relation to the contrast to organized crime. COOs perform a strategic F. Calderoni, Organized Crime Legislation in the European Union, DOI 10.1007/978-3-642-04331-4_4, # Springer-Verlag Berlin Heidelberg 2010

55

56

4 Assessing Harmonization: The Horizontal Analysis

function. They lead law enforcement agencies to focus their investigations on a whole organization. This achieves a better understanding and in-depth knowledge of criminal organizations (Verbruggen and Fijnaut 1997, 663). This would be hard if investigations had to focus merely on collecting evidence on single offences perpetrated by a criminal organization (Plecas et al. 2001). COOs perform a generalization function of the criminal liability. They punish the members of a criminal organization for the general criminal activity of the group (Aleo 2002, 63; Manacorda 2002b, 269). This function is crucial for targeting the leaders of criminal organization. Frequently, leaders do not participate directly in the illicit activities in order to avoid detection and prosecution. This also facilitates law enforcement agencies in evidence collection. Instead of proving each member’s implication in a specific crime, it is enough to prove the participation in the activities of the group. COOs perform an anticipating function of criminal liability. They punish the members of a criminal organization independently from the actual commission of any crime (Aleo 2002, 62; Den Boer 2002a, 110; Manacorda 2002b, 269–270; Manacorda 2008, 273). This function lowers the threshold of criminal responsibility in presence organized crime groups. Experience shows that this function usually remains a theoretical possibility, but nearly never applies in practice. COOs normally apply against criminal groups that have already committed offences and hardly ever before the commission of any crime (Aleo 2002, 62–63). COOs perform an aggravating function. They punish the members of a criminal organization with higher penalties than the ones provided for the single crimes committed by the organization. Indeed, the sanction for participation in a criminal organization adds to the sanction provided for the single offences, resulting in a remarkable increase in the penalties imposed on organized criminals (Manacorda 2002b, 269). COOs perform a procedural function, triggering the possibility to use special investigative techniques that may not be accessible for the investigation of relatively minor crimes (Manacorda 2002b, 269; Council of Europe 2004). All the international legal instruments of harmonization and approximation of organized crime legislation require the adoption of COOs (see Sect. 2.2). The analysis of this indicator highlights three approaches among EU Member States (Table 4.1, Graph 4.1 and Map 4.1). The first approach is the presence of one general criminal organization offence. This approach is followed by: Bulgaria, Cyprus, the Czech Republic, Estonia, Finland, France, Germany, Hungary, Latvia, Lithuania, the Netherlands, Poland, Portugal, Slovakia, Slovenia, Spain, the United Kingdom.1 Within this group different legal traditions can be found. The United Kingdom’s legislation is based on the concept of conspiracy (Joutsen 2002c, 419). The offence of conspiracy focuses on the notion of agreement between two or more persons to commit one 1

In criminal matters, the United Kingdom has three legal systems: England and Wales, Scotland and Northern Ireland. Among these areas relevant differences may exist concerning some issues of criminal matters (Vinciguerra 1992, 5). Unless differently specified, every reference to the United Kingdom in this research relates to England and Wales.

4.1 Structure of Criminal Law

57

Table 4.1 Structure of criminal law – criminal organization offences EU Member State Structure of criminal law – criminal organization offences Austria One general offence and a special offence Belgium

One general offence and a special offence

Bulgaria

One general offence

Cyprus

One general offence

The Czech Republic

One general offence

Denmark

No criminal organization offences

Estonia

One general offence

Finland

One general offence

France

One general offence

Germany

One general offence

Greece

One general offence and a special offence

Hungary

One general offence

Ireland

One general offence (conspiracy) and a special offence

Italy

One general offence and a special offence

Latvia

One general offence

Lithuania

One general offence

Luxembourg

One general offence and a special offence

Malta

One general offence (conspiracy) and a special offence

The Netherlands

One general offence

Poland

One general offence

Portugal

One general offence

Romania

One general offence and a special offence

Slovakia

One general offence

Slovenia

One general offence

Spain

One general offence

Sweden

No criminal organization offences

The United Kingdom One general offence (conspiracy) Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires 20 18 16 14 12 10 8 6 4 2 0

17 One general offence One general offence and a special offence

8

2

No criminal organization offences

Graph 4.1 Structure of criminal law – criminal organization offences Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

58

4 Assessing Harmonization: The Horizontal Analysis

One general offence (conspiracy) and a special offence

One general offence

One general offence and a special offence

No criminal organization offences

One general offence (conspiracy) Map 4.1 Structure of criminal law – criminal organization offences Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

or more offences and is typical of the common law systems.2 The other countries focus on the notion of association, organization or group. This approach corresponds to the civil law model of the association de malfaiteurs whose archetype was Articles 265–268 the Criminal Code of France of 1810 (Cedras 1998, 348–350) (Bulgaria, Cyprus, The Czech Republic, Estonia, Finland, France, Germany, Hungary, Latvia, Lithuania, the Netherlands, Poland, Portugal, Slovakia, Slovenia, Spain). The second option is the presence of more than one criminal organization offence. In this case there is a general criminal organization offence and a special criminal organization offence. This reflects the efforts of some Member States to 2 The concept of conspiracy exists also in civil law systems, but its scope is different. In general, the civil law conspiracies concern the agreement to commit particularly serious offences, e.g. offence against national security (Pelser 2008, 58; Weigend 1997, 531). This differs from the common law tradition, where the offence of conspiracy applies to any criminal (and sometimes even non criminal (Vinciguerra 2002, 465)) behavior. Unless differently specified, this book does not consider the civil law conspiracies. This choice was driven by the aim of focusing on the most specific legal definition of organized crime within the legislation of each EU Member State. For civil law countries indeed other organization offences (criminal association, criminal organization or similar norms) are provided tackling more specifically criminal organizations.

4.1 Structure of Criminal Law

59

define more precisely criminal organizations in criminal law. This approach is followed by: Austria, Belgium, Greece, Ireland, Italy, Luxembourg, Malta, Romania. Also in this group different legal traditions exist. Ireland and Malta are common law countries.3 In Ireland and Malta the general offence is the offence of conspiracy, which focuses on the agreement to commit a crime. The special offences focus instead on the concept of group or organization (Article 83A of the Criminal Code of Malta and Section 71 of the Criminal Justice Act 2006 of Ireland). Austria, Belgium, Greece, Italy, Luxembourg and Romania are civil law countries. They all have two criminal organization offences (COOs) centred on the notion of association or organization. In Austria, } 278a on criminal organization has been added after } 278 on criminal association. In Belgium and Luxembourg the offences of criminal organization (Article 324-bis ff. of the Criminal Code of Belgium and Article 324-bis ff. of the Criminal Code of Luxembourg) have been introduced along with the traditional offences of criminal association. In Greece, Article 187 of the Criminal Code of Greece provides for both criminal organization (para 1) and criminal association or gang (para 3). In Italy, Article 416-bis of the Criminal Code of Italy (mafia-type criminal association) has been added along with the traditional Article 416 on criminal association. In Romania, law 39/2003 introduced the new offence of criminal organization beside Article 323 of the Criminal Code of Romania on criminal association. The elements of speciality of these provisions may vary from one system to the other. Some countries apply a quantitative threshold in order to restrict the scope of application of the offence (e.g. Belgium, Luxembourg, Romania; see Sect. 4.3.2); others require particular modi operandi for the special offence (Austria, Belgium, Italy, Greece; see Sect. 4.3.3). The third option is the absence of any criminal organization offence countering criminal organizations. This solution is adopted in Sweden and Denmark.

4.1.2

Aggravating Circumstances

This indicator assesses the existence of aggravating circumstances for offences committed within the framework of criminal organizations. For the purpose of this book, aggravating circumstances are special circumstances that increase the seriousness of a crime and in turn increase the applicable penalty. Aggravating circumstances enables increased penalties for offences committed in the framework of criminal organization, in recognition of the increased seriousness of organized crime. However, the existence and extent of these circumstances varies much among different legal systems. In some countries, these circumstances 3 Both Malta an Cyprus have actually mixed legal traditions. This is due to the alternate influence of the legal traditions of European continental countries (in particular France, Italy, Greece) and of common law countries (the United Kingdom). For the purpose of this book, Cyprus and Malta are considered as common law countries, since they have conspiracy offences amenable to the common law tradition.

60

4 Assessing Harmonization: The Horizontal Analysis

apply to few offences typically committed by criminal organizations (e.g. extortion, drug-trafficking). Other legal systems adopt a more general approach. In this case, the general part of criminal codes lists aggravating circumstances applicable to any offence. Aggravating circumstances may represent both a possible alternative or an additional element to the criminalization of the participation in a criminal organization (Blakesley 1998, 81). Therefore this indicator can provide additional information on national legislations and their general approach to the criminalization of organized crime. The Framework Decision (2008/841/JHA) requires EU Member States to adopt aggravating circumstances. Article 3 paragraph 2 of the Framework Decision (2008/841/JHA) requires Member States to ensure that the fact that predicate offences of a criminal organization have been committed within the framework of a criminal organisation, may be regarded as an aggravating circumstance for these offences. The final text of the Framework Decision (2008/841/JHA) however shows a possible error of transcription. The provision on the aggravating circumstance refers to the offences described in Article 2 of the Framework Decision (2008/841/JHA) and not (as both in the Commission’s proposal and in the final text negotiated at the Council) to the predicate offences (see Sect. 2.2.3.3). The analysis of this indicator highlights four approaches among EU Member States (Table 4.2, Graph 4.2 and Map 4.2). The first approach is the existence of aggravating circumstances related to the commission of an offence in the framework of a criminal organization only for specific crimes. This approach is followed by: Austria, Belgium, Bulgaria, Cyprus, France, Germany, Greece, Luxembourg, Malta, Portugal, Slovenia, Slovakia, Spain. Within this group, some legal systems make extensive use of these aggravating circumstances (Bulgaria, France, Germany, Portugal, Slovenia, Slovakia, Spain). Other countries provide these circumstances only for a limited number of crimes (Austria, Belgium, Cyprus, Greece, Luxembourg, Malta). Moreover, some circumstances specifically refer to the presence of an organized group or association (e.g. Section 204B of the Criminal Code of Malta, “Inducing persons under age to prostitution or to participation in a pornographic performance”: “When the offence is committed with the involvement of a criminal organisation ...”; Article 433octies of the Criminal Code of Belgium, on human trafficking: the punishment is increased when human trafficking is “an act of participation to the main or accessory activities of a criminal organization”). Others only refer to the commission of a crime by a group of people (e.g. Article 132, para 2g) of the Criminal Code of Portugal, on homicide: “commit the fact together with, at least, two other people ...”; Article 311-4 of the Criminal Code of France, on theft: “when [the theft] is committed by several people acting as offender or accomplice”). The second approach is the existence of both a general aggravating circumstance and aggravating circumstances for specific crimes. This approach is followed by: Estonia, Hungary, Italy, Latvia, Lithuania, Romania. In this group most countries provide for a general aggravating circumstance for crimes committed in group (e.g. } 58 10) of the Criminal Code of Estonia: “commission of the offence by a group”;

4.1 Structure of Criminal Law

61

Table 4.2 Structure of criminal law – aggravating circumstances EU Member State Structure of criminal law – aggravating circumstances Austria

A.c. for specific crimes

Belgium

A.c. for specific crimes

Bulgaria

A.c. for specific crimes

Cyprus

A.c. for specific crimes

The Czech Republic

General a.c.

Denmark

General a.c.

Estonia

General a.c./a.c. for specific crimes

Finland

General a.c./a.c. for specific crimes

France

A.c. for specific crimes

Germany

A.c. for specific crimes

Greece

A.c. for specific crimes

Hungary

General a.c./a.c. for specific crimes

Ireland

No a.c.

Italy

General a.c./a.c. for specific crimes

Latvia

General a.c./a.c. for specific crimes

Lithuania

General a.c./a.c. for specific crimes

Luxembourg

A.c. for specific crimes

Malta

A.c. for specific crimes

The Netherlands

No a.c.

Poland

General a.c.

Portugal

A.c. for specific crimes

Romania

General a.c./a.c. for specific crimes

Slovakia

A.c. for specific crimes

Slovenia

A.c. for specific crimes

Spain

A.c. for specific crimes

Sweden

General a.c.

The United Kingdom No a.c. Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

Section 48 of the Criminal Code of Latvia: “the criminal offence was committed while in a group of persons”) and aggravating circumstances referring to criminal organization for specific crimes (e.g. } 199 of the Criminal Code of Estonia, on theft: “[a theft,] if committed by a criminal organisation, is punishable by 2 to 10 years’ imprisonment”; Section 175 para 4 of the Criminal Code of Latvia, on theft: “if [a theft] has been committed by an organised group [...] the applicable sentence is deprivation of liberty for a term of not less than three years and not exceeding fifteen years, confiscation of property and police supervision for a term not exceeding three years”). Hungary has the opposite solution (Fabrizy 2007, 178). A general aggravating circumstance tackles all crimes committed by criminal organizations (Section 98). Aggravating circumstances increase the penalties only for specific

62

4 Assessing Harmonization: The Horizontal Analysis

25 20

20

A.c. for specific crimes

15

General a. g.

11 10 5

No a.c.

3

0

Graph 4.2 Structure of criminal law – aggravating circumstances Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

Map 4.2 Structure of criminal law – aggravating circumstances (a.c.) Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

crimes, when these are committed by a group (when three people participate in the commission of the crime, Section 137 para 13 of the Criminal Code) or in a criminal conspiracy (“two or more persons are engaged in criminal activities under arrangement, or they conspire to do so and attempt to commit a criminal act at least once” Section 137 para 7 of the Criminal Code). In Italy several general aggravating

4.1 Structure of Criminal Law

63

circumstances exist. Article 112 para 1 of the Criminal Code of Italy provides a penalty increase if the number of people cooperating is of five or more. Other general circumstances refer more directly to criminal organizations. According to Article 7 of Decree 152/1991, for offences committed using the mafia method (see Sect. 4.3.3) or for the benefit of a mafia-type association, the penalties are increased from one third to one half. Moreover, Article 4 of law 146/2006 provides a penalty increase from one-third to the half for crimes punished with at least 4 years of maximum imprisonment when an organized criminal group engaged in criminal activities in more than one state is involved. For specific crimes, aggravating circumstances are provided, related to the commission by more than one person (e.g. Article 625 of the Criminal Code of Italy, on theft: “if the fact is committed by three or more persons”). Slovakia and Lithuania have a particular discipline. The Criminal Code of Lithuania provides a detailed discipline of the forms of complicity.4 There are three possible forms of complicity, characterized by increasing complexity of the interrelation among the participants: a group of accomplices, an organized group and a criminal organization. Article 129 of the Criminal Code of Slovakia adopts a similar approach. It defines a group of persons, an organized group and a criminal group. Article 60 of the Criminal Code of Lithuania provides as general aggravating circumstances the commission of an offence in a group of accomplices or in an organized group. Slovakia has no general aggravating circumstance, but the Criminal Code aggravates specific offences when these are committed by members of group of persons, or organized group or criminal group. The membership in a criminal organization or criminal group is punished by the criminal organization offence provided by Article 249 of the Criminal Code of Lithuania and Article 296 of the Criminal Code of Slovakia. The system adopted by Lithuania and Slovakia restricts the application of the criminal organization offences to the most serious forms of criminal organizations. At the same time, it increases the penalties for less serious criminal groups (either with a general aggravating circumstance, as in Lithuania, or with specific aggravating circumstances, as in Slovakia). Since the three forms of complicity are in a hierarchical order, also crimes committed within

4

Article 25 of Criminal Code of Lithuania: “Forms of Complicity 1. Forms of complicity shall be a group of accomplices, an organised group or a criminal association. 2. A group of accomplices shall be one in which two or more persons agree, at any stage of the commission of a criminal act, on the commission, continuation or completion of the criminal act, where at least two of them are perpetrators. 3. An organised group shall be one in which two or more persons agree, at any stage of the commission of a criminal act, on the commission of several crimes or of one serious or grave crime, and in committing the crime each member of the group performs a certain task or is given a different role. 4. A criminal organisation is a combination of three or more persons who are associated to each other by constant inter-relationship, distribution of roles and tasks, and who join together to carry out criminal acts – one or several major and grave crimes. An anti-constitutional group or organisation and a terrorist group are also considered to constitute a criminal organization.

64

4 Assessing Harmonization: The Horizontal Analysis

the framework of a criminal organization appear to fall within the scope of the above mentioned aggravating circumstances. This approach recalls similar provisions of the new Criminal Code of the Russian Federation and may be a common heritage of the former socialist legal systems (although both codes entered into force after 1991) (Orlova 2008, 105–107). Interestingly, even if the theoretical approach appears very similar, Lithuanian and Slovakian legislations show some differences. For example, Article 25 of the Criminal Code of Lithuania states that a group of accomplices may have “two or more” members. Contrarily, Article 129 of the Criminal Code of Slovakia requires “at least three people”. Further, an organised group in Lithuanian law requires two or more persons; In Slovakia they must be at least three. Overall, the Lithuanian and Slovak approach to criminal organizations seems guided by a clear description of the possible forms of group criminality and the attempt to proportionate the penalty to the seriousness of the criminal organization.5 The third approach is the existence of only one general aggravating circumstance. This approach is followed by: the Czech Republic, Denmark, Estonia, Finland, Poland and Sweden. Some countries in this group explicitly mention criminal organizations or associations (e.g. Section 34 (g) of the Criminal Code of Czech Republic: “committed the offence as ..., member of an organized group ...”). Other countries have general circumstances, applicable when crimes are committed by several people jointly (e.g. } 80 of the Criminal Code of Denmark increases penalties for crimes committed in group). The fourth option is the absence of any aggravating circumstance of this type. This approach is followed by: Ireland, the Netherlands, and the United Kingdom. The absence of any specific aggravating circumstance does not prevent the imposition of more serious penalties for these offences. However, the penalty increase may be decided by the court within the penalty range provided by the law. In Ireland, Section 73 of the Criminal Justice Act 2006 has recently criminalized the “commission of offence for criminal organization”.6 This is an autonomous offence, but it appears to be functionally similar to an aggravating circumstance. Indeed, its main goal is to increase the penalties for offences committed in the framework of a criminal organization.7

5

Notwithstanding the efforts for precise definitions, the Russian legislation received criticisms about its vagueness (Orlova 2008, 106–114). 6 Section 73 of the Criminal Justice Act 2006: “(1) A person who commits a serious offence for the benefit of, at the direction of, or in association with, a criminal organization is guilty of an offence. (2) In proceedings for an offence under subsection (1), it shall not be necessary for the prosecution to prove that the person concerned knew any of the persons who constitute the criminal organization concerned. (3) A person guilty of an offence under this section shall be liable on conviction on indictment to a fine or imprisonment for a term not exceeding 10 years or both.” 7 This point was discussed in depth with the national experts for Ireland, Mr. Gerry P. Hickey and Hugh F. Boyle. Mr. Boyle confirmed this point, but also argued that until February 2009, no prosecutions for Section 73 had occurred.

4.1 Structure of Criminal Law

4.1.3

65

Punishability of the Mere Agreement to a Criminal Organization

This indicator assesses the possibility of punishing the members of a criminal organization independently from the commission (or at least the attempt) of a predicate offence and on the basis of a mere agreement to a criminal group/ association/conspiracy/organization. The possibility to punish the mere agreement to a criminal organization is connected to the anticipating function of criminal organization offences (COOs). This is the anticipation of the threshold of criminal responsibility to the point where a criminal organization is in its initial phase and has not committed any crime yet. As already mentioned (see Sect. 4.1.1), this function is more theoretical than actual. The great majority of cases concerns active criminal organizations. In this perspective, the punishability of the mere agreement is a remarkable anticipation of the threshold of criminal liability. This may conflict with civil liberties and human rights (e.g. freedom of association) and with the principles of criminal law requiring that offences should tackle factual behaviours and not opinions (Spinellis 1997, 824). The general part of criminal law has a significant influence on this point. National legislation on attempt, participation, incitement and preparatory acts, which combines with the provisions of COOs, has a key role in this field (Picotti 2007, 409–417). National legislations have different approaches to these issues and this reflects on the punishability of the mere agreement. Furthermore, this issue also concerns the traditional differences between conspiracy offences and criminal association offences. Conspiracy focuses on the agreement between at least two persons (Weigend 1997, 531). Therefore, the mere agreement falls within the scope of the offence. Contrarily, associative offences refrain from punishing the mere agreement, requiring some additional element (Pelser 2008, 73). The Joint Action (98/733/JHA) addresses this issue directly. Art. 2, paragraph 1, (a) of the JA provides a flexible approach. The participation in a criminal organization can be punished “even where the offences concerned are not actually committed”, but this remains “subject to the general principles of the criminal law of the Member State concerned”. Contrarily, both the Palermo Convention and Framework Decision (2008/841/JHA) do not have specific provisions on this point. The analysis of this indicator highlights three approaches of criminal justice policy among EU legal systems (Table 4.3, Graph 4.3 and Map 4.3). The first approach, adopted by the majority of EU Member States, provides the possibility to punish the agreement to a criminal organization, but requires some additional elements. This approach is followed by: Austria, Belgium, Bulgaria, Cyprus, the Czech Republic, Estonia, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia. National jurisprudence has a strong influence on the actual punishability of the mere agreement. In general, the higher courts set the criteria for the punishable attempt and for the formation of a criminal organization. The punishability of the mere

66

4 Assessing Harmonization: The Horizontal Analysis

Table 4.3 Structure of criminal law – punishability of the mere agreement to a criminal organization EU Member State Structure of criminal law – punishability of mere agreement (m.a.) to a criminal organization Austria

M.a. is punishable with additional elements

Belgium

M.a. is punishable with additional elements

Bulgaria

M.a. is punishable with additional elements

Cyprus

M.a. is punishable with additional elements

The Czech Republic

M.a. is punishable with additional elements

Denmark

M.a. is not punishable

Estonia

M.a. is punishable with additional elements

Finland

M.a. is not punishable

France

M.a. is punishable with additional elements

Germany

M.a. is punishable with additional elements

Greece

M.a. is punishable with additional elements

Hungary

M.a. is punishable with additional elements

Ireland

M.a. is punishable in all cases

Italy

M.a. is punishable with additional elements

Latvia

M.a. is punishable with additional elements

Lithuania

M.a. is punishable with additional elements

Luxembourg

M.a. is punishable with additional elements

Malta

M.a. is punishable in all cases

The Netherlands

M.a. is punishable with additional elements

Poland

M.a. is punishable with additional elements

Portugal

M.a. is punishable with additional elements

Romania

M.a. is punishable with additional elements

Slovakia

M.a. is punishable with additional elements

Slovenia

M.a. is punishable with additional elements

Spain

M.a. is punishable in all cases

Sweden

M.a. is not punishable

The United Kingdom M.a. is punishable in all cases Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

agreement is in close connection with the national provisions criminalizing preparatory acts, attempt, instigation and conspiracy. Some national systems have remarkably different approaches to these issues in connection with the offence of participation in a criminal organization/association. In general, the fundamental element is the actual creation or existence of the organization (Verbruggen and Traest 2007, 19; Picotti 2007, 413–414). Depending on the national legislation, instigation (e.g. Romania) or attempt (e.g. Germany) or preparatory acts (e.g. the Netherlands, only for the offence of direction of a criminal organization, Art. 140 para 3 of the Criminal Code) are applicable to criminal organization offences (COOs). In other systems COOs are

4.1 Structure of Criminal Law 22

67

20

17

M.a. is punishable with additional elements

12 7 2

4

M.a. is punishable in all cases

3 M.a. is not punishable

0

Graph 4.3 Structure of criminal law – punishability of the mere agreement (m.a.) to a criminal organization Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

Map 4.3 Structure of criminal law – punishability of the mere agreement (m.a.) to a criminal organization Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

exceptional to the standard rules on preparatory acts, attempt, instigation and conspiracy (e.g. Italy, France). In this cases, the organization is formed (and thus the crime is committed) as soon as the agreement is connected to some practical activity (Girault 2007, 127). Both approaches however converge in requiring an additional element, however minor, to the mere agreement to a criminal organization.

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4 Assessing Harmonization: The Horizontal Analysis

The second option provides the punishability of the mere agreement in all cases. This approach is adopted in Ireland, Malta, Spain and the United Kingdom. This is coherent with the legal tradition of common law countries. Traditionally, these criminalize organized crime through the offence of conspiracy. Conspiracy offences focus on the agreement to commit an offence rather than on the existence of an association or organization for the commission of crimes (Joutsen 2002c, 419). Although a civil law country, Spain is included in this group. Article 519 of the Criminal Code of Spain explicitly provides for the punishment of the proposition and the conspiracy to commit the crime of asociacion ilicita (Art. 515 of the Criminal Code). This raised criticisms by scientific literature (Silva Sanchez 2002, 70). The third option does not provide for the punishability of the mere agreement to a criminal organization. This approach is followed by: Finland, Sweden and Denmark. Chapter 17 Section 1a of the Criminal Code of Finland expressly requires that at least one predicate offence is committed or attempted; Sweden and Denmark do not have any criminal organization offence criminalizing the participation in a criminal organization.

4.2

Requirements of the Criminal Organization

This section presents the indicators relating to the requirements of a criminal organization. These include the indicators on the minimum number of members (Sect. 4.2.1), on the structure of the organization (Sect. 4.2.2) and on the continuity of the organization (Sect. 4.2.3).

4.2.1

Number of Members of a Criminal Organization

This indicator assesses the minimum number of members of a criminal organization required by the law. This element relates to the national interpretation of the concept of organization. National legal traditions have developed different approaches to the minimum number of members. The majority of the legal systems requires either two or three members (Picotti 2007, 440). The international legal instruments on organized crime set at three members the minimum number of participants in a criminal organization. However, the double model offence approach enables the adoption of the conspiracy model offence. In this case, the agreement to commit an offence only requires two members. The analysis of the minimum number of members of a criminal organization highlights three approaches of criminal justice policy among EU legal systems (Table 4.4, Graph 4.4 and Map 4.4). The first approach, adopted by the majority of EU Member States, requires three members for a criminal organization. This approach is followed by: Belgium, Bulgaria, Cyprus, the Czech Republic, Estonia, Finland, Germany, Greece, Hungary,

4.2 Requirements of the Criminal Organization

69

Table 4.4 Requirements of the criminal organization – number of members of a criminal organization EU Member State Requirements of the criminal organization – number of members Austria

More than three members

Belgium

At least three members

Bulgaria

At least three members

Cyprus

At least three members

The Czech Republic

At least three members

Denmark

n/a

Estonia

At least three members

Finland

At least three members

France

At least two members

Germany

At least three members

Greece

At least three members

Hungary

At least three members

Ireland

At least three members

Italy

At least three members

Latvia

At least three members

Lithuania

At least three members

Luxembourg

At least three members

Malta

At least two members

The Netherlands

At least two members

Poland

At least three members

Portugal

At least three members

Romania

At least three members

Slovakia

At least three members

Slovenia

At least three members

Spain

At least two members

Sweden

n/a

The United Kingdom At least two members Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

Ireland,8 Italy, Latvia, Lithuania, Luxembourg, Poland, Portugal, Romania, Slovakia, Slovenia. In most countries the law explicitly requires three members; in some countries, the requirement has been set by the jurisprudence (e.g. } 129 of the Criminal Code of Germany) (Volk 2002, 24). 8

In Ireland Section 72 of the Criminal Justice Act 2006 introduced the offence of participation in a criminal organisation. The same act, at Section 71, also provided for an offence of conspiracy when two or more persons agree to commit an act that constitutes a serious offence (i.e. punished with imprisonment for 4 years or more).

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4 Assessing Harmonization: The Horizontal Analysis

20

19

15

3 Members 2 Members

10

More than 3

5

n/a

5 1

2

0

Graph 4.4 Requirements of the criminal organization – number of members of a criminal organization Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

Map 4.4 Requirements of the criminal organization – number of members of a criminal organization Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

The second approach requires only two members for a criminal organization. This approach is followed by France, Malta, Spain, the Netherlands and the United Kingdom. For Malta and the United Kingdom, this is in accordance with the common law tradition. Conspiracy offences focus on the agreement by at least two persons. In Spain the jurisprudence has traditionally required only two persons

4.2 Requirements of the Criminal Organization

71

for the establishment of an illicit association (Gonza`les Rus and Palma Herrera 2002, 100; Boldova Pasamar and Rueda Martı´n 2006, 7). Some scholars criticized this, arguing that three members constitute a more appropriate minimum number (Gonza`les Rus and Palma Herrera 2002, 101). In the Netherlands, the Supreme Court requires two members (Pelser 2008, 70). In France two members are sufficient for criminal association according to Article 450-1 of the Criminal Code (Bernardi 2002, 59; Girault 2007, 127). The third approach requires more than three members. This approach is followed only by Austria. According to } 278a of the Criminal Code of Austria, a criminal organization is made of a “large number of persons”. According to the most common interpretation, the minimum number of member is around ten (Fornasari 2002, 180; Fava 2007, 160).9 The indicator does not apply to Sweden and Denmark since no criminal organization offences (COOs) criminalizing the participation in a criminal organization exist in these legal systems.

4.2.2

Structure of the Criminal Organization

This indicator assesses the structure of a criminal organization required by the law. Every national legislation has developed one or more criteria in order to describe the structure of a criminal group (Picotti 2007, 440). The main aim of this conceptual elaboration is to distinguish criminal organizations from less dangerous forms of commission of an offence, such as the mere participation in a crime of multiple offenders. This complies with the principle of legality of criminal legislation, and in particular with its corollary of clarity and proportionality between the penalties and the seriousness of the offence. The international legal instruments received many criticisms for their vague and broad definitions. Indeed, they define both the organized criminal group (Palermo Convention) and the structured association (Joint Action (98/733/JHA) and Framework Decision (2008/841/JHA)) in a negative way. They state what such groups are not rather than setting positive requirements. The analysis of the structure of a criminal organization requested by the law highlights multiple approaches among EU legal systems (Table 4.5, Graph 4.5 and Map 4.5). The first approach is the requirement of a minimum level of organization. This is defined in different ways among the EU Member States, in order to provide some flexibility in respect to the possible structures adopted by various criminal organizations. The minimum level of organization allows to distinguish criminal organizations from the mere participation in a crime by several people, as regulated in the Austria has two criminal organization offences (see above, Sect. 4.1.1). } 278 of the Criminal Code, on criminal association, only requires three members (Fabrizy 2007, 5).

9

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4 Assessing Harmonization: The Horizontal Analysis

Table 4.5 Requirements of the criminal organization – structure of the criminal organization EU Member State Requirements of the criminal organization – structure of the criminal organization Austria

Minimum level of organization

Belgium

Minimum level of organization

Bulgaria

Minimum level of organization

Cyprus

Minimum level of organization

The Czech Republic

Division of tasks

Denmark

n/a

Estonia

Division of tasks; informal hierarchy

Finland

Minimum level of organization

France

No specific requirement

Germany

Division of tasks; common will

Greece

Informal hierarchy; division of tasks

Hungary

Minimum level of organization

Ireland

Minimum level of organization

Italy

Minimum level of organization

Latvia

Minimum level of organization

Lithuania

Informal hierarchy; division of tasks

Luxembourg

Minimum level of organization

Malta

No specific requirement

The Netherlands

Minimum level of organization

Poland

Informal hierarchy; division of tasks

Portugal

Minimum level of organization

Romania

Informal hierarchy; division of tasks

Slovakia

Minimum level of organization

Slovenia

Minimum level of organization

Spain

Informal hierarchy

Sweden

n/a

The United Kingdom No specific requirement Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

general part of many criminal codes. This approach is followed by: Austria, Belgium, Bulgaria, Finland, Hungary, Ireland, Italy, Latvia, Luxembourg, the Netherlands, Portugal, Romania, Slovakia, Slovenia. The second approach requires some kind of division of tasks among the members of the criminal organization. This approach is followed by: the Czech Republic, Estonia, Germany, Greece, Lithuania, Poland, Romania. In some countries this requirement is provided by the law (the Czech Republic, Estonia, Lithuania, Romania) or has been elaborated by the prevalent jurisprudence (Germany (Volk 2002, 24), Greece, Poland (Council of Europe 2004, 20)).

4.2 Requirements of the Criminal Organization

73

20 15

Minimum level of organization Division of tasks

14

Informal hierarchy

10 5

No specific requirement

7

6

Common will n/a

3 1

2

0

Graph 4.5 Requirements of the criminal organization – structure of the criminal organization Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

Map 4.5 Requirements of the criminal organization – structure of the criminal organization Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

The third option is the requirement of an informal hierarchy among the members of a criminal organization. This element is never required by the law and is always required by the jurisprudence. This approach is followed by: Greece, Lithuania, Poland, Spain (Silva Sanchez 2002, 65–66), Romania. It must be noted that Greece,

74

4 Assessing Harmonization: The Horizontal Analysis

Lithuania, Poland and Romania require both the division of tasks and the informal hierarchy (Council of Europe 2004, 20; Streteanu 2005, 2). The fourth option does not require any specific feature as to the structure of the criminal organization. This approach is followed by France, Malta and the United Kingdom. For Malta and the United Kingdom this is in coherence with the common law tradition of conspiracy offences. Although Malta has introduced a special criminal organization offence (Article 83A of the Criminal Code of Malta), there are no specific requirements as to the structure of the criminal organization. In France the Criminal Code use the notions of groupement (group) and entente (agreement). There are no further requirement as to the structure of a criminal organization (Giudicelli-Delage 2002, 133; Bernardi 2002, 59). Germany has a further requirement. The members of a criminal organization must act according to the common will (Kinzig 2006, 7; Volk 2002, 24; Fornasari 2002, 177; Council of Europe 2004, 22; Weisser 2007, 163; Wenin 2007, 259–260). The jurisprudence requires this element for the application of } 129 of the Criminal Code of Germany. This interpretation has caused some problems. The offense cannot apply to hierarchical organizations, where a few leaders decide for all the participants (Volk 2002, 25). Consequently, many criminal organizations fall outside this interpretation of } 129. The indicator does not apply to Sweden and Denmark since no criminal organization offences (COOs) criminalizing the participation in a criminal organization exist in these legal systems.

4.2.3

Continuity of the Criminal Organization

This indicator assesses the continuity through time of the criminal organization, as required by the law. National systems developed multiple approaches (Picotti 2007, 440). The goal is distinguishing criminal organizations from less serious criminal activities. Criminal organizations differ from the mere commission of more than one offence by a group of offenders. Scientific research stresses the importance of the continuity requirement in defining organized crime (Finckenauer 2005, 66; Ba¨ckman 1998, 25; Hagan 2006, 135). The international legal instruments set vague requirements as to the continuity of criminal organizations (“existing for a period of time” for the Palermo Convention, “established over a period of time” for the Joint Action (98/733/JHA) and the Framework Decision (2008/841/JHA)). This led to criticisms for excessive vagueness (see Sect. 2.2.4). The analysis of the continuity of a criminal organization highlights three approaches among EU legal systems (Table 4.6, Graph 4.6 and Map 4.6). The first approach is the requirement of a continuous duration of the criminal organization. This means that the organization must be stable or at least possibly capable to continue its activities for a prolonged time. Yet, the organization must not be permanent. This approach is followed by: Belgium, the Czech Republic, Germany, Greece, Italy, Lithuania, Luxembourg, the Netherlands, Poland, Portugal,

4.2 Requirements of the Criminal Organization

75

Table 4.6 Requirements of the criminal organization – continuity of the criminal organization EU Member State Requirements of the criminal organization – continuity of the criminal organization Austria

Potentially permanent

Belgium

Continuous duration

Bulgaria

Potentially permanent

Cyprus

No requirement

The Czech Republic

Continuous duration

Denmark

n/a

Estonia

Potentially permanent

Finland

No requirement

France

No requirement

Germany

Continuous duration

Greece

Continuous duration

Hungary

No requirement

Ireland

No requirement

Italy

Continuous duration

Latvia

No requirement

Lithuania

Continuous duration

Luxembourg

Continuous duration

Malta

No requirement

The Netherlands

Continuous duration

Poland

Continuous duration

Portugal

Continuous duration

Romania

Continuous duration

Slovakia

Continuous duration

Slovenia

Continuous duration

Spain

Continuous duration

Sweden

n/a

The United Kingdom No requirement Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

Romania, Slovakia, Slovenia, Spain. National systems provide for this element through different approaches. In general, the jurisprudence has elaborated it from the notion of organization or association (e.g. Italy, the Netherlands, Portugal, Spain).10 In some cases, the law requires some explicit elements of continuous duration (e.g. Article 25, para 4 of the Criminal Code of Lithuania, on criminal organization: “... a combination of three or more persons who are associated to each

10

For recent evolution of the Dutch jurisprudence, with special reference to the continuity and the number of offences, see Pelser (2008, 74–75).

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4 Assessing Harmonization: The Horizontal Analysis

16

14

14 12 10

Continuous duration

8

No specific requirement

8

Potentially permanent

6 4

3

2

n/a

2 0

Graph 4.6 Requirements of the criminal organization – continuity of the criminal organization Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

Map 4.6 Requirements of the criminal organization – continuity of the criminal organization Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

other by constant inter-relationship ...”; } 89 (17) of the Criminal Code of the Czech Republic, on criminal conspiracy: “... activities that are aimed at the systematic commission of intentional criminal activities”; Article 187 of the Criminal Code of Greece, on criminal organization: “... group with continuous activity ...”). The second option is the absence of any requirement as to the continuity of the group. In this case, no specific requirements are provided by the law or the law only requires the organization/group must be “established over a period of time”. The last element explicitly recalls the formulas of the Joint Action (98/733/JHA),

4.3 The Activities of a Criminal Organization

77

the Palermo Convention and the Framework Decision (2008/841/JHA). This approach is followed by: Cyprus, Finland, France, Hungary, Ireland, Latvia, Malta, the United Kingdom. The absence of any requirement does not imply that any kind of group is a criminal organization. It means that the distinction between criminal organizations and cooperation in multiple crimes or group criminality does not lie in the continuity of the organization. This choice raises some criticism, since continuity is one of the main characteristics of criminal organizations (see Sect. 2.2.4). The third option is the requirement of the potentially permanent duration of the criminal organization. This means that the criminal organization is capable of continuing its criminal activities for an undetermined time, possibly on a permanent basis. It is a very selective requirement that seems to exclude from the scope of the offence any group which has been formed for a limited period of time and/or for the commission of a limited number of offences. This approach is followed by: Austria, Bulgaria, Estonia. For each country, the law explicitly refers to this requirement: in Bulgaria and Estonia the association or organization must be “permanent” (Article 93, para 20 of the Criminal Code of Bulgaria and } 255 of the Criminal Code of Estonia); in Austria, it must be “on a long-term basis” (} 278a of the Criminal Code of Austria). The Estonian national expert has clarified that the concept of permanent duration of a criminal organizations has to be interpreted in a broad sense, i.e. the “organisation is permanent when it is able to act for long time and structural potential is not limited with one action.”11 The indicator does not apply to Sweden and Denmark since no criminal organization offences (COOs) criminalizing the participation in a criminal organization exist in these legal systems.

4.3

The Activities of a Criminal Organization

This section presents the indicators relating to the activities of a criminal organization. These include the indicators on the number and type of predicate offences (Sect. 4.3.1 and 4.3.2 respectively) and on possible additional elements required by the law (Sect. 4.3.3).

4.3.1

Number of Predicate Offences

This indicator assesses the legal requirements relating to the number of predicate offences that must be committed by (or at least included in the plans of) a group in order for it to be punishable as a criminal organization. The concept of organized ¨ lle Eelmaa, Adviser, Criminal Policy Department, Ministry of E-mail of 30 September 2008 by U Justice of Estonia.

11

78

4 Assessing Harmonization: The Horizontal Analysis

crime usually implies the potential commission of an undetermined number of offences. However, some systems include groups or organizations set up for the commission of one single offence (e.g. a complex fraud). The issue is of particular relevance because the international legal instruments are not unanimous on this point. The Palermo Convention requires the commission of “one or more serious crimes or offences”, while the Joint Action (98/733/JHA) and the Framework Decision (2008/ 841/JHA) require that the structured association aims at “committing offences”. The analysis of the number of predicate offences that must be committed or planned by a criminal organization highlights two main approaches among EU legal systems (Table 4.7, Graph 4.7 and Map 4.7). Table 4.7 The activities of a criminal organization – number of predicate offences EU Member State The activity of the criminal organization – number of predicate offences Austria

More than one offence

Belgium

More than one offence

Bulgaria

One offence is enough

Cyprus

More than one offence

The Czech Republic

More than one offence

Denmark

n/a

Estonia

More than one offence

Finland

One offence is enough

France

One offence is enough

Germany

More than one offence

Greece

More than one offence

Hungary

More than one offence

Ireland

One offence is enough

Italy

More than one offence

Latvia

One offence is enough

Lithuania

One offence is enough

Luxembourg

More than one offence

Malta

More than one offence

The Netherlands

More than one offence

Poland

More than one offence

Portugal

One offence is enough

Romania

One offence is enough

Slovakia

One offence is enough

Slovenia

More than one offence

Spain

More than one offence

Sweden

n/a

The United Kingdom One offence is enough Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

4.3 The Activities of a Criminal Organization

79

18 16

15

14 12

10

More than one offence

10 One offence is enough

8 6 4

n/a

2

2 0

Graph 4.7 The activities of a criminal organization – number of predicate offences Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

Map 4.7 The activities of a criminal organization – number of predicate offences Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

The first approach is the requirement of more than one offence. This approach is followed by: Austria, Belgium, Cyprus, the Czech Republic, Estonia, Germany, Greece, Hungary, Italy, Luxembourg, Malta, the Netherlands, Poland, Slovenia, Spain. This requirement focuses on the fact that typically organized crime commits crimes in a serial or systematic way. In general, this implies that a criminal

80

4 Assessing Harmonization: The Horizontal Analysis

organization must commit, or at least plan to commit, more than one offence.12 Consequently, a single offence, however serious or complex, is not sufficient for establishing the presence of a criminal organization. The second approach is the requirement of just one offence. This approach is followed by: Bulgaria, Finland, France, Ireland, Latvia, Lithuania, Portugal, Romania, Slovakia, the United Kingdom. In general, the possibility of the commission or planning of one single crime is clearly spelled out in national legislation. However, Bulgaria and Latvia have been included in this group because the text of the law refers generally to crime (Article 93, para 20 of the Criminal Code of Bulgaria: “purpose of committing crime”; Section 244 of the Criminal Code of Latvia: “for the committing of crime”).13 The indicator does not apply to Sweden and Denmark since no criminal organization offences (COOs) criminalizing the participation in a criminal organization exist in these legal systems.

4.3.2

Type of Predicate Offences

This indicator assesses the legal requirements relating to the type of predicate offences that a criminal organization must commit or plan. While there seems to be an agreement that organized crime should aim at the commission of serious offences, the legislative techniques for individuating these offences are diverse (Weigend 1997, 533). Some legal systems prefer to list the specific offences that can be committed by criminal organizations; other systems use a penalty threshold, establishing that criminal organization offences (COOs) exist only when crimes punished with more than e.g. 3 years are committed (or at least planned); other systems do not select the offences that may be committed by criminal organizations. The international legal instruments introduced the quantitative threshold of 4 years of maximum imprisonment, with the aim of selecting only serious offences. This mechanism has been criticized because of the different national sanctioning policies (see Sect. 2.2.4.2). Indeed, a fixed quantitative threshold may fail to select only serious offences in Member States where the criminal policy provides high statutory penalties. The analysis of the type of predicate offences that must be committed or planned by a criminal organization highlights multiple approaches among EU legal systems (Table 4.8, Graph 4.8 and Map 4.8). 12

The recent Dutch jurisprudence on this point confirms that the relevant point is that the criminal organization must have the potential of committing multiple offences, even if only one offence was proved because of early law enforcement intervention (Pelser 2008, 74–75; Dolman 2007, 234). 13 Translation of the two codes were found on the websites of the Ministry of Interior of Bulgaria (http://www.mvr.bg/en/default.htm) and the Translation and Terminology Centre of Latvia respectively (http://www.ttc.lv/?id=2).

4.3 The Activities of a Criminal Organization

81

Table 4.8 The activities of a criminal organization – type of predicate offences EU Member State The activities of a criminal organization – type of predicate offences Austria

Qualitative selection

Belgium

Quantitative selection (3 years)

Bulgaria

Quantitative selection (3 years)

Cyprus

Quantitative selection (3 years)

The Czech Republic

No type requirement

Denmark

n/a

Estonia

Quantitative selection (3 years)

Finland

Quantitative selection (4 years)/qualitative selection

France

Quantitative selection (5 years)

Germany

No type requirement

Greece

Qualitative selection

Hungary

Quantitative selection (5 years)

Ireland

Quantitative selection (4 years)

Italy

No type requirement

Latvia

No type requirement

Lithuania

Quantitative selection (6 years)

Luxembourg

Quantitative selection (4 years)

Malta

Quantitative selection (4 years)

The Netherlands

No type requirement

Poland

No type requirement

Portugal

No type requirement

Romania

Qualitative selection/quantitative selection (5 years minimum penalty)

Slovakia

Quantitative selection (5 years)/qualitative selection

Slovenia

Quantitative selection (3 years)

Spain

No type requirement

Sweden

n/a

The United Kingdom No type requirement Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

The first approach is the absence of any requirement as to the type of predicate offences. This approach is followed by: the Czech Republic, Germany, Italy, Latvia, Portugal, the Netherlands, Poland, Spain, the United Kingdom. This solution covers any possible criminal activity of a criminal organization. It must be noted that in Italy, Spain and the United Kingdom a criminal association may also exist when no crimes are planned or committed. Indeed, in Italy Article 416-bis also applies to mafia-type organizations also when the participants take advantage of the intimidating power of the association and of the resulting conditions of submission and silence . . . to manage or control, either directly or

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4 Assessing Harmonization: The Horizontal Analysis

14 12 10

9

8 6 4

5

4 3

3

2 1

2 0

No type requirement Quantitative selection (three years) Quantitative selection (four years) Quantitative selection (five years) Qualitative selection Quantitative selection (six years) n/a

Graph 4.8 The activities of a criminal organization – type of predicate offences Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

Quantitative selection (three years)

Quantitative selection (six years)

Quantitative selection (four years)

Qualitative selection

Quantitative selection (four years)/qualitative selection

Qualitative selection/quantitative selection (5 years minimum penalty)

Quantitative selection (five years)

No type requirement

Quantitative selection (five years)/qualitative selection

n/a

Map 4.8 The activities of a criminal organization – type of predicate offences Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

4.3 The Activities of a Criminal Organization

83

indirectly, economic activities, concessions, authorizations, public contracts and services, or to obtain unlawful profit or advantages for themselves or for others, or with a view to prevent or limit the freedom to vote, or to get votes for themselves or for others on the occasion of an election.

Consequently, a mafia-type organization can be engaged in licit (e.g. an enterprise) or illicit, but non criminal (e.g. non criminal violations of labour legislation or commercial legislation) activities (Turone 2008, 217ff.). What makes these behaviours fall within the scope of a mafia-type criminal association is the modus operandi, i.e. the metodo mafioso (see Sect. 4.3.3). Similarly, Article 515 of the Criminal Code of Spain include among illicit association those ones “which, although having as object a lawful purpose, use violent methods or alteration or personality control in order to achieve it”. Finally, in the United Kingdom, traditionally the offence of conspiracy could have any unlawful activities as possible predicate offence. After the reform brought by the Criminal Law Act 1977 which introduced a statutory offence of conspiracy, only few forms of common law conspiracy remain. These are the conspiracy to defraud and conspiracy to corrupt public morals or to outrage public decency (Ormerod 2005). The second option is the requirement of offences punishable with a maximum of at least 3 years of imprisonment or a more serious penalty. This approach is followed by: Belgium, Bulgaria, Cyprus, Estonia, Slovenia. This solution follows the requirements set by the international legal instruments on harmonization and approximation of organized crime legislation (see Sect. 2.2), but sets a lower threshold. National legislators probably made this choice in order to select a penalty limit which is more relevant in their national law. For example, in Belgium, the 3-years threshold has more sense than the 4-years one (Traest 2006, 761). The third approach is the requirement of offences punishable with a maximum of at least 4 years of imprisonment or a more serious penalty. This approach is followed by Finland, Ireland, Luxembourg, Malta. The 4 years threshold corresponds exactly to the requirements set by international legal instruments (see Sect. 2.2). Finland has also a qualitative selection, including the offence of ethnic agitation (Chapter 11 Section 8 of the Criminal Code of Finland) and threatening a person to be heard in the administration of justice (Chapter 15 Section 9 of the Criminal Code of Finland) as a possible predicate offence of a criminal organization. The fourth option is the requirement of offences punishable with a maximum of at least 5 years of imprisonment or a more serious penalty. This approach is followed by: France, Hungary and Slovakia. This choice sets a higher requirement compared to the provisions of the Joint Action (98/733/JHA) and the Palermo Convention. Slovakia has also a qualitative selection, including the offences of money-laundering and corruption as possible predicate offences of a criminal organization.14

14

Interestingly, Hungary previously adopted a qualitative selection method. The international legal instruments on organized crime have probably made it necessary to introduce a quantitative threshold (Fehe´r and Geller 1998, 400).

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4 Assessing Harmonization: The Horizontal Analysis

The fifth approach is the qualitative selection of predicate offences. This approach is followed by Austria, Greece and Romania. In these cases the national legislators preferred to individuate the predicate offences that can be committed by criminal organization by specifically listing them (Greece and Romania) (Chamilothoris 2006, 5–6; Streteanu 2005, 2–3). Differently, Austria refers to the rights that these offences must violate (Austria). Romania has also added a residual clause, including among the predicate offences of a criminal organization all offences punished with a minimum of at least 5 years or a more serious penalty. This mechanisms is very selective, since a minimum of 5 years allows to focus only on the most serious offences (Streteanu 2005, 3). Remarkably, all the three countries also have a more general criminal COO in their national legislation which allows to tackle criminal organizations aiming at other crimes (see Sect. 4.1.1). The sixth option is the requirement of offences punishable with a maximum of at least 6 years of imprisonment or a more serious penalty. This is the approach of Lithuania. In Lithuania a criminal organization must commit or plan one or more major crimes (punishable with a maximum of more than 6 years of imprisonment) or grave crimes (punishable with a maximum of more than 10 years of imprisonment). This high threshold can be explained by the detailed description of the possible forms of complicity provided by the Criminal Code of Lithuania (see Sect. 4.1.2). The indicator does not apply to Sweden and Denmark since no criminal organization offences (COOs) criminalizing the participation in a criminal organization exist in these legal systems.

4.3.3

Additional Requirements

This indicator assesses the legal requirements relating to possible additional elements that must be present in a criminal organization. In order properly describe organized crime from a legal point of view, some national legislation (or the leading national jurisprudence) requires that criminal organizations may use particular modi operandi (e.g., use of violence, intimidation), have specific goals (e.g. power, profit or material gain) or features (Picotti 2007, 440). The international legal instruments have different approaches to this issues. The Joint Action (98/733/JHA) requires that a criminal organization has the goal of committing offences “whether such offences are an end in themselves or a means of obtaining material benefits and, where appropriate, of improperly influencing the operation of public authorities” (Article 1). The Palermo Convention only requires the aim obtaining “a financial or other material benefit” (Article 2). The Framework Decision (2008/841/JHA) recalls this expression, but also leaves EU Member States “freedom to classify other groups of persons as criminal organisations, for example, groups whose purpose is not financial or other material gain” (preamble of the FD, (4)). The analysis of the additional requirements provided by national legislations for criminal organizations highlights multiple elements. These elements may be aims or modi operandi of the criminal organization (Table 4.9, Graph 4.9 and Map 4.9).

4.3 The Activities of a Criminal Organization

85

Table 4.9 The activities of a criminal organization – additional requirements Corruption Armed No Enterprise/ EU Member Profit Threat/inadditional State timidation/ economic requirement activities violence Austria

x

x

x

x

Belgium

x

x

x

x

Bulgaria

x

Cyprus

x

The Czech Republic

x

Denmark

n/a

Estonia

x

Finland

x

France

x

Germany

x

Greece

x

Hungary

x

Ireland

x

Italy

x

Latvia

x x

Lithuania Luxembourg

x

x x

Malta

x

The Netherlands

x

Poland

x

Portugal

x

Romania

x

Slovakia

x

Slovenia

x

Spain Sweden The United Kingdom

x n/a x

Total 10 3 3 2 1 14 Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

The first additional requirement is profit. Several Member States require that a criminal organization aims at profit or gain or material benefit. This aim is requested by: Austria, Belgium, Bulgaria, Cyprus, Estonia, Ireland, Italy, Luxembourg, Romania, Slovakia. This element is explicitly mentioned by the international legal instruments aiming at harmonizing organized crime legislation. However, the profit requirement is not considered to be mandatory in the preamble of the

86

4 Assessing Harmonization: The Horizontal Analysis 16 13

14 12

10

10 8 6 4 2

3

3

2

1

2

Profit Threat/intimidation/ violence Enterprise/economic activities Corruption Armed No additional requirements n/a

0

Graph 4.9 The activities of a criminal organization – additional requirements Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

Map 4.9 The activities of a criminal organization – additional requirements Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

4.3 The Activities of a Criminal Organization

87

Framework Decision (2008/841/JHA).15 The search for profit is a typical feature of organized crime and this allows it to be distinguished from other serious criminal behaviours, such as terrorism. In some EU Member States, the profit requirement is mandatory (Belgium, Bulgaria, Cyprus, Estonia, Luxembourg, Romania, Slovakia). In Austria the profit requirement is alternative to the aim “exerting considerable influence on politics or trade and industry through such activities” (} 278a of the Criminal Code of Austria). In Italy the aim of profit is just one of the four possible aims of criminal organizations. The other three are: (a) the commission of offences; (b) the management or control of economic activities, the concession of authorizations, public contracts and services; (c) prevent or limit the freedom to vote, or to get votes for themselves or for others on the occasion of an election (Turone 2008, 217). However, the aim of profit represents the most general and comprehensive aim of the criminal organizations and therefore is the most relevant one (Turone 2008, 271). The second additional requirement is the use of intimidation, threat or violence by the criminal organization. This modus operandi applies in Austria, Belgium, Italy. The use of violence or intimidation is a typical feature of criminal organizations, which specialize in the use of threat and violence in order to achieve their aims and secure their profits (see Sect. 2.2.4). In Austria, the use of intimidation is alternative to the use of corruption or “the evasion of criminal prosecution by special means”. In Belgium, threat, intimidation and violence are included among the possible modi operandi of the group (Art. 324ter of the Criminal Code of Belgium) (Traest 2006, 767). As mentioned above (Sect. 2.2.4), Belgium has always attached great importance to the modi operandi of the criminal organizations as an important limitation of the scope of the criminal organization offences (COOs) countering criminal organizations. During the negotiations of both the Joint Action (98/733/JHA) and the Palermo Convention, the Belgian delegations attempted to introduce a reference to the modi operandi, i.e. the use of intimidation, threat, violence, fraud or corruption (Traest 2006, 762; McLean 2007, 39). The Belgian declaration in relation to the JA further confirms this approach (see Sect. 2.2.1.1). Although the Belgian initiatives were not successful, Belgium has explicitly introduced a reference to the modi operandi of criminal organizations in its national legislation. Firstly this was in Article 324bis that provides the definition of criminal organization. In 2005 the law ratiying the Palermo Convention has moved the reference from Article 324 bis to Article 324ter of the Criminal Code. In the current legislation, the references applies only to the offence of participation in a criminal organization (Article 324ter para 1) (Verbruggen and Traest 2007, 28). It does not apply to other offences relating to criminal organizations (participation in

15

“The obligations arising by virtue of Article 2(a) should be without prejudice to Member States’ freedom to classify other groups of persons as criminal organisations, for example, groups whose purpose is not financial or other material gain.”

88

4 Assessing Harmonization: The Horizontal Analysis

the legal activities of the organization, Art. 324ter para 2, participation to the decision-making of the organization, Art. 324ter para 3 and direction of a criminal organization, Art. 324ter para 4). In Italy, the use of intimidation is the central element of the mafia-type criminal association and individuates the “metodo mafioso”: “The illegal association is of mafia-type when the participants take advantage of the intimidating power of the association and of the resulting conditions of submission and silence” (Article 416bis para 3 of the Criminal Code of Italy). The third additional requirement is related to the entrepreneurial nature of organized crime, the exploitation of legal enterprises and the infiltration in the legitimate economy (see Sect. 2.2.4). Austria provides for the entrepreneurial nature of criminal organizations (“enterprise-type association”, according to } 278a of the Criminal Code of Austria). Belgium requires as possible modi operandi of the criminal organization the exploitation of enterprises (“recourt a` des structures commerciales ou autres” according to Article 324ter para 1 of the Criminal Code of Belgium). As explained above in this paragraph, this applies only to the offence of participation in a criminal organization and not to the other offences (Traest 2006, 767); Italy includes among the aims of mafia-type association the management or control of economic activities (Article 416-bis of the Criminal Code of Italy). These elements represent national legislators’ attempts to describe the typical entrepreneurial approach of criminal organizations, which distinguishes them from groups seeking merely immediate gains. The fourth additional requirement is the use of corruption. Austria provides for corruption and evasion of criminal prosecution by special means as modus operandi alternative to intimidation (} 278a (1)3 of the Criminal Code of Austria). Belgium includes corruption and “manœuvres frauduleuses” among the possible modi operandi of a criminal organization. Once again, this applies only to the participation in a criminal organization (Art. 324ter para 1) and not to other offences in the same Article. Latvian legislation requires that the group must be armed in order to be punishable. Article 224 of the Criminal Code of Latvia expressly mentions this element for the criminalization of the participation in a criminal organization. If there is no proof of the armed nature of the organization, the mere participation in it is not criminalized. The majority of EU Member States does not require any additional element for the offence of participation in a criminal organization. These Member States are: the Czech Republic, Finland, France, Germany, Greece, Hungary, Lithuania, Malta, the Netherlands, Poland, Portugal, Slovenia, Spain, the United Kingdom. It should be highlighted that until 2002 German law required the criminal organization to be present, at least partially, on the territory. This interpretation had been introduced by the German jurisprudence and for a long period prevented the application of } 129 of the Criminal Code of Germany to criminal organizations based abroad and with limited presence in the territory of the state (Volk 2002, 25–26; Kinzig 2006, 7; Fornasari 2002, 177–178; Council of Europe 2004, 22). The law of 22 August 2002 has introduced } 129b which explicitly states that

4.4 The Penalties

89

} 129 (and } 129a on terrorist organizations) “shall apply to organizations abroad”.16 The indicator does not apply to Sweden and Denmark since no criminal organization offences (COOs) criminalizing the participation in a criminal organization exist in these legal systems.

4.4

The Penalties

This section presents the indicators relating to the penalties for participation in a criminal organization. These include the indicators on the penalties for the basic conduct of participation/membership (Sect. 4.4.1) and on possible penalty differentiations (Sect. 4.4.2).

4.4.1

Standard Penalty for Participation/Membership

This indicator assesses the penalties provided for the standard participation/membership in a criminal organization. As already mentioned, sanctioning policies vary among EU legal systems (see Sect. 2.2.1). This indicator portrays the sanctioning policies in relation to the basic conduct relating to a criminal organization. The international legal instruments have different approaches to this point. The Joint Action (98/733/JHA) requires that participation in a criminal organizations is “punishable by effective, proportionate and dissuasive criminal penalties” (Article 2). The Palermo Convention requires to “establish as criminal offences” the participation in an organized criminal group (Article 5). The Framework Decision (2008/841/JHA) provides a more detailed discipline. Article 3 requires that the participation in a criminal organization is “punishable by a maximum term of imprisonment of at least between two and five years”.17 The analysis of the standard penalty for participation or membership in a criminal organization shows different approaches among EU Member States. According to the maximum penalty, it is possible to divide the majority of EU Member States into four groups (Table 4.10, Graph 4.10 and Map 4.10).

16

The norm has been introduced after the attacks of 11 September 2001 and in order to ensure the punishability of terrorist organizations. For criminal organizations established outside the EU prosecution need to be authorized by the Federal Ministry of Justice and the activities of the organization must be within Germany or the offender or the victim must be German or found in Germany (Weisser 2007, 142). 17 For the common law model offence, the penalties can be either the “same maximum term of imprisonment as the offence at which the agreement is aimed, or by a maximum term of at least between two and five years” (Article 3, para 1b of the FD).

90

4 Assessing Harmonization: The Horizontal Analysis

Table 4.10 The penalties – standard penalty for participation/membership EU Member State The penalties – standard penalty for participation/membership Austria

6 months–5 years

Belgium

1–3 years

Bulgaria

1–6 years

Cyprus

3 years

The Czech Republic

2–10 years

Denmark

n/a

Estonia

3–12 years

Finland

2 years

France

5 years/10 years

Germany

5 years

Greece

10 years

Hungary

5 years

Ireland

5 years

Italy

7–12 years

Latvia

5–12 years

Lithuania

3–15 years

Luxembourg

1–3 years

Malta

1–5 years

The Netherlands

6 years

Poland

3 months–5 years

Portugal

1–5 years

Romania

5–20 years

Slovakia

3–10 years

Slovenia

3 months–5 years

Spain

1–3 years

Sweden

n/a

The United Kingdom Proportionate to the offence Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

A group of countries provides for relatively low penalties, with a maximum imprisonment of up to 3 years. This approach is followed by: Belgium, Cyprus, Finland, Luxembourg, Spain. A second group of countries provides for low-medium penalties, reaching a maximum of up to 5 years of imprisonment. These countries are: Austria, Germany, Hungary, Ireland, Malta, Poland, Portugal, Slovenia. A third group of countries provides for medium-high penalties with a maximum of up to 10 years of imprisonment. These Member States are: Bulgaria, the Czech Republic, France, Greece, the Netherlands, Slovakia. France has a particular system

4.4 The Penalties

91

14 Max imprisonment up to 3 years

12

Max imprisonment up to 5 years

10 8

Max imprisonment up to 10 years

8 6 6

5

5

Max imprisonment more than10 years

4 2 2 0

1

Proportionate to the offence n/a

Graph 4.10 The penalties – standard penalty for participation/membership Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

Map 4.10 The penalties – standard penalty for participation/membership Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

proportioning the penalty to the offences planned or committed by the criminal organization. If these offences are punished with at least 5 years of maximum imprisonment (de´lits), the penalty is up to 5 years of imprisonment. If the offences

92

4 Assessing Harmonization: The Horizontal Analysis

are punished with at least 10 years of maximum imprisonment (either de´lits or crimes), the penalty is up to 10 years of imprisonment. A fourth group of countries provides for very high penalties for the participation in a criminal organization, exceeding 10 years of imprisonment. These are: Estonia, Italy,18 Latvia, Lithuania, Romania. In Romania, according to Article 7 (2) of law 39/2003, the penalty for participation in a criminal organization “may not be bigger than the sanction provided by the law for the most grave offence within the purpose of the organized criminal group”. This norm allows to proportionate the penalties in the EU Member States which provides the highest penalties for membership/ participation in a criminal organization (Streteanu 2005, 4). The United Kingdom adopts a different approach. The offence of conspiracy is sanctioned with a penalty which is proportionate to the offences that where the object of the conspiracy (Section 3(1) Criminal Law Act 1977). Indeed, the maximum punishment for conspiracy is that of the specific crime that the conspirators intend to commit. In case of multiple offences, the penalty for conspiracy is the highest penalty among the ones provided for the planned offences (Vinciguerra 1992, 291). This solution is extremely flexible and may also imply the possibility of life imprisonment for e.g. murder, crimes punished with life imprisonment or without maximum term of imprisonment (Section 3(2) Criminal Law Act 1977). The indicator does not apply to Sweden and Denmark since no criminal organization offences (COOs) criminalizing the participation in a criminal organization exist in these legal systems.

4.4.2

Penalty Differentiation

This indicator assesses the presence of penalty differentiations for the participation in a criminal organization, depending on the roles within the organization or on the characteristics of the organization. Many legal systems attempt to differentiate penalties according to the relevance of the role performed by each offender (Picotti 2007, 418 and 441). In general, the differentiation implies penalties higher or lower than the standard penalty for participation/membership. This technique allows to proportion the penalties to the more or less relevant roles performed within a criminal organization. Only provisions that modify the standard penalty for participation/memberships have been considered for the assessment of this indicator, omitting provisions that simply extend the penalties for participation/membership to other functions.

18

Italy has just recently increased the penalties for mafia-type criminal organization with Decreelaw 23 May 2008, no. 92, converted into low with amendments with law 24 July 2008, no. 125.

4.4 The Penalties

93

Table 4.11 The penalties – penalty differentiation EU Member Founders/ Armed Financing/ Decision State leaders support making Austria

Other No differentiation

x

Belgium

x

Bulgaria

x

x x

Cyprus

x

The Czech Republic

x

Denmark

n/a

Estonia

x

Finland

x

France Germany

x x

x

x

Greece

x

Hungary

x

Ireland

x

Italy

x

x

Lithuania

x

x

Luxembourg

x

Malta

x

The Netherlands

x

Poland

x

Portugal

x

x

Latvia

x

Romania

x

x

x x

Slovakia

x

Slovenia

x

Spain

x

Sweden

n/a

The United Kingdom

x

x

Total 13 4 3 2 2 11 Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

The analysis of the penalty differentiation for behaviors other than participation/membership or for particular characteristics of the organization shows different approaches among EU Member States (Table 4.11, Graph 4.11 and Map 4.11). The first element of differentiation provides a penalty increase for founders and/ or leaders of a criminal organization. This approach is followed by: Belgium, Bulgaria, Estonia, Germany, Italy, Lithuania, Luxembourg, Malta, the Netherlands,

94

4 Assessing Harmonization: The Horizontal Analysis

16 14

13 Founders/leaders

11

12

Armed

10

Financing/support Decision making

8 6 4

Other No differentiation

4 3

2

2

2

n/a

2 0

Graph 4.11 The penalties – penalty differentiation Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

Map 4.11 The penalties – penalty differentiation Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

Poland, Portugal, Slovenia, Spain. These legal systems provide increased penalties for persons having a leading role within criminal organizations, including founders, directors, organizers.

4.4 The Penalties

95

A second element of penalty differentiation is related to the fact that a criminal organization is armed. This approach is followed by Bulgaria, Italy, Lithuania, Poland.19 A third element of differentiation relates to the financing or support or investing of the assets of a criminal organization. This differentiation implies a penalty increase in Germany and Malta. Contrarily, a penalty decrease is provided in Austria. However, “if the value of the property is higher than ATS 500,000” (about 36,300 €) the penalty is equal to the one provided for participation/ membership in a criminal organization (} 278a (2) of the Criminal Code of Austria). A fourth element of differentiation is the participation in the decision making processes of a criminal organization. This approach is followed by Belgium and Luxembourg. Both countries passed this legislation at the end of the 1990. The notion of participation in the decision making has been criticized for its vagueness, since there is no distinction for the level of participation and to the amount of decisions. Moreover, this differentiation may overlap with the penalty differentiation based on the role of leader/founder of a criminal organization (Traest 2006, 770–771). Further elements of differentiation are provided in Germany, Ireland, Italy and Malta. In Germany, } 129 para 4 provides a penalty increase for “especially serious” cases.20 In Italy a penalty increase is provided “whenever the economic activities that the members may lead or control are totally or partially financed with crimes’ profits, products or price.” (Article 416-bis, para 6 of the Criminal Code of Italy). In Malta a penalty increase is provided if the number of persons in the organization is ten or more (Article 83A(3) of the Criminal Code of Malta). A significant number of EU Member States does not provide for any penalty differentiation. These are: Cyprus, the Czech Republic, Finland, France, Greece, Hungary, Latvia, Romania, Slovakia, the United Kingdom. The absence of penalty differentiation in the law does not imply that the sanctions are not graduated to the 19

As abovementioned Sect. 4.3.3, the armed nature of the criminal organization is a mandatory requirement in Latvia. 20 } 129 para 4 provides a penalty from 6 months to 5 years for leaders, supporters (“Hinterma¨nner”) or especially serious cases (nota bene: standard penalty for participation is up to 5 years of imprisonment); the law of 24 June 2005 (entered into force on 1 July 2005) increased the penalty to between 6 months and 10 years “if the aim or the activity of the criminal organisation is directed at the commission of an offence set out in Section 100c (2) No. 1 (a), (c), (d), (e), and (g) with the exception of offences pursuant to Section 239a or Section 239b, (h)–(m) Nos. 2–5 and 7 of the Code of Criminal Procedure”. The referred offences comprise different typologies including offences against the state, offences relating to human trafficking, aggravated theft, aggravated robbery, extortion, weapons, drugs, corruption, money laundering, etc. It should be highlighted that from the present formulation it is not completely clear whether this penalty increase applies every time any criminal organization aims at the commission of one of the above cited offences or just when either one of these predicate offences and an especially serious case are present. The second solution appears more appropriate, since the amendment has been introduced at para 4 which provides for aggravating circumstances, rather than at para 1 where the standard penalty for the participation/membership is provided.

96

4 Assessing Harmonization: The Horizontal Analysis

importance of the single contribution to the criminal organization. However, for these countries this operation is done by other means. These may be the attribution of attenuating or aggravating circumstances and/or the mere determination of the penalty by the court within the penalty range set by the law (Fabrizy 2007, 186). The indicator does not apply to Sweden and Denmark since no criminal organization offences (COOs) criminalizing the participation in a criminal organization exist in these legal systems.

4.5

Collaborators with Justice

This section presents the indicators relating to collaborators with justice. These include the indicators on the benefits for collaborators (Sect. 4.5.1) and on the requirements for granting benefits (Sect. 4.5.2).

4.5.1

Benefits for Collaborators with Justice

This indicator assesses the possibility for granting benefits to criminals who cooperate with the authorities. Many legal systems introduced this type of provisions to incentivize the dissociation of criminals from criminal organizations. This allows the authorities to gather important information and evidence concerning criminal organizations. The possibility is of particular importance since research has shown that the criminal organizations have the capacity to avoid investigation and prosecution through different means (Fransen, Belde´ and Vermeulen 2005, 65). One problematic issue is the possibility to grant immunity to collaborators with justice (Weigend 1997, 535–536). This issue is strictly related to legal traditions of EU Member States, where some countries allows for total exemption while others do not and the prosecution has different discretionary powers in prosecuting criminals which collaborate with the authorities (Fransen, Belde´ and Vermeulen 2005, 68–69). International organizations have frequently stressed the importance of collaborators with justice in countering organized crime. In the European context, both the Council of Europe and the European Union have issued several non binding documents on the topic.21 Lastly, Article 4 of the Framework Decision (2008/841/ JHA) leaves EU Member States free to implement or not this type of measures in connection to criminal organizations. The analysis of the possibility to grant benefits to criminals who collaborate with the authorities highlights three main approaches among EU Member States (Table 4.12, Graph 4.12 and Map 4.12). 21

For a detailed analysis, see (Fransen, Belde´ and Vermeulen 2005, 67–73).

4.5 Collaborators with Justice

97

Table 4.12 Collaborators with justice – benefits for collaborators EU Member State Collaborators with justice – benefits for collaborators Austria

Penalty reduction

Belgium

Exemption from liability at an early stage

Bulgaria

Exemption from liability at an early stage

Cyprus

Penalty reduction

The Czech Republic

Exemption from liability at an early stage

Denmark

n/a

Estonia

Exemption from liability

Finland

Exemption from liability at an early stage

France

Exemption from liability at an early stage

Germany

Exemption from liability

Greece

Exemption from liability

Hungary

Exemption from liability

Ireland

Exemption from liability

Italy

Penalty reduction

Latvia

Exemption from liability

Lithuania

Exemption from liability

Luxembourg

Exemption from liability at an early stage

Malta

Exemption from liability (pardon)

The Netherlands

Penalty reduction

Poland

Exemption from liability

Portugal

Exemption from liability

Romania

Exemption from liability at an early stage

Slovakia

Penalty reduction

Slovenia

Penalty reduction

Spain

Penalty reduction

Sweden

n/a

The United Kingdom Exemption from liability Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires 14 12

11 Exemption from liability Exemption from liability at an early stage Penalty reduction n/a

10 8

7

7

6 4 2 2 0

Graph 4.12 Collaborators with justice – benefits for collaborators Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

98

4 Assessing Harmonization: The Horizontal Analysis

Map 4.12 Collaborators with justice – benefits for collaborators Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

The first approach provides the possibility of exemption from criminal liability for criminals who collaborate with the authorities. This approach is followed by: Estonia, Germany, Greece, Hungary, Ireland, Latvia, Lithuania, Malta, Poland, Portugal, the United Kingdom. This solution attaches a significant benefit for criminals’ collaboration with the authorities aiming at incentivizing these behaviors. The exemption from criminal liability can be granted even if the organization has already been discovered or has already committed crimes. It must be noted that in Latvia exemption can only be granted if the criminal contributes to uncover crimes which are “more serious or dangerous than the crime committed by the person himself or herself” (Section 58(3) of the Criminal Code of Latvia; this does not apply if the criminal has committed especially serious crimes, i.e. offences punished with more than 10 years of imprisonment). The second option provides the possibility of exemption from criminal liability for criminals who collaborate with the authorities at an early stage of the activities of a criminal organization. This approach is followed by: Belgium, Bulgaria, the Czech Republic, Finland, France, Luxembourg, Romania. The benefit of exemption from criminal liability is granted only for the withdrawal from criminal activities at an early stage. The criterion for individuating this early stage and thus granting exemption from penalty are multiple. They include the commission of any crime by the criminal or by the group (Article 321(4) of the Criminal Code of Bulgaria), the elimination of the danger caused by the activities of the group (} 163b of the

4.5 Collaborators with Justice

99

Criminal Code of the Czech Republic) and the requirement of the collaboration to start before any investigation or prosecution begins (Art. 326 of the Criminal Code of Belgium, Art. 326 of the Criminal Code of Luxembourg, Article 450-2 of the Criminal Code of France) (Verbruggen and Traest 2007, 38). In Romania, Article 9 of law no. 3/2003 requires the collaboration to start before the commission of any crime and the discovery of the group. In Finland, Chapter 5 Section 2(2) requires a criminal to withdraw from the offence and “gets also the other participants to desist” or otherwise “prevent the consequence referred to in the statutory definition of the offence” or “in another manner [eliminates] the effects of his/her own actions on the completion of the offence”. Consequently, a member of an organized criminal group can be exempted from criminal liability if he/she informed the authorities in a way that allows to prevent the commission of a crime or to eliminate his/her contribution to the offence. Criminals who collaborate with the authorities when these conditions are not met anymore (e.g. the group has already committed an offence or the prosecution has already started) can only obtain penalty reductions, according to general provisions on penalty reduction or special clauses for members of criminal organizations. The third approach provides only penalty reductions to criminal collaborating with the authorities. This approach is followed by: Austria, Cyprus, Italy, the Netherlands, Slovakia, Slovenia, Spain. These countries never allow exemptions from criminal liability in cases of collaboration, but may still provide significant penalty reductions (e.g. in Italy life imprisonment can be reduced to imprisonment from 12 to 20 years and other penalties can be reduced by one third to half, according to Article 8 of decree 152/1991). The indicator does not apply to Sweden and Denmark since no criminal organization offences (COOs) criminalizing the participation in a criminal organization exist in these legal systems.

4.5.2

Requirements for Benefits

This indicator assesses the legal requirements for granting a penalty reduction/ immunity to criminals who cooperate with the authorities. The requirements may vary markedly among different national systems. This depends on different legal traditions and may show different priorities among criminal justice systems. Article 4 of the Framework Decision (2008/841/JHA) leaves great autonomy to national legislators, providing only some examples of requirements for the granting of penalty reduction/exemption. The analysis of the requirements to grant benefits to criminals who collaborate with the authorities highlights different options of criminal justice policy among EU Member States (Table 4.13, Graph 4.13 and Map 4.13). The first option requires collaborators with justice to provide information allowing the identification and prosecution of the other offenders or the group. This approach is followed by: Austria, Belgium, Bulgaria, Cyprus, the Czech Republic,

100

4 Assessing Harmonization: The Horizontal Analysis

Table 4.13 Collaborators with justice – requirements for benefits EU Member Identify or Prevent offences State provide or end/mitigate information on effects of offenders or offences organization Austria

x

Belgium

x

Bulgaria

x

Cyprus

x

x

The Czech Republic

x

x

Denmark

n/a.

Estonia

x

Finland

x

x x

x

Germany

x

x

Greece

x

x

Hungary

x

x

Ireland

x

Italy

x

Latvia

x

Lithuania

x

Luxembourg

x

x

x

Malta

x

The Netherlands

x

Poland

x

x

Portugal

x

x

Romania

x

Slovakia

x

Slovenia

x

Spain The United Kingdom

No specific requirements

x

France

Sweden

Deprive the organization of resources or proceeds

x x

n/a x

Total 20 10 1 7 Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

Estonia, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Poland, Portugal, Romania, Slovakia, Slovenia. This option focuses on the investigative contribution that collaborators with justice can provide to the authorities. For Belgium, France and Luxembourg this requirement is provided only for exemption from criminal liability, which can be granted only at an early stage of the criminal

4.5 Collaborators with Justice 22 20 18 16 14 12 10 8 6 4 2 0

101

20

10 7

1

2

Identify or provide information on offenders or organization Prevent offences or end/mitigate effects of offences Deprive the organization of resources or proceeds No specific requirement n/a

Graph 4.13 Collaborators with justice – requirements for benefits Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

Identify or provide info on offenders or organization Identify or provide info on offenders or organization; Prevent offences or end/mitigate effects of offences Prevent offences or end/mitigate effects of offences Identify or provide info on offenders or organization (for exemption); No specific requirement. (for penalty reduction) No specific requirement Identify or provide information on offenders or organization; Prevent offences or end/mitigate effects of offences; Proceeds n/a Map 4.13 Collaborators with justice – requirements for benefits Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

102

4 Assessing Harmonization: The Horizontal Analysis

organization. For other cases, the general provisions on penalty reduction may apply. The second option requires collaborators with justice to provide information allowing to end or mitigate the effects of the offences already committed or to prevent the commission of further offences. This approach is followed by: Cyprus, the Czech Republic, Estonia, Finland, Germany, Greece, Italy, Poland, Portugal, Slovenia. This option focuses on the preventive contribution that collaborators with justice can provide to the authorities. With the exception of Finland, all EU Member States providing for this requirement also grant benefits to collaborators for information allowing to identify or prosecute the other offenders of the group. In Finland no benefit is ever granted to criminals merely providing information on other offenders, on the ground that this information may be less reliable. Contrarily, exemption from criminal liability can be granted to criminals withdrawing from the criminal organization and providing information which allow to prevent offences or to eliminate the effects of the contribution to the completion of the offence. Additionally, Cyprus provides the requirement that collaborators contribute to deprive criminals of their resources or of the proceeds of crime. This requirements has been introduced to implement Article 26 paragraph 2 of the Palermo Convention. The third option does not provide specific requirements for granting benefits to criminals collaborating with the authorities. This approach is followed by: Belgium, France, Ireland, Luxembourg, Malta, Spain, the United Kingdom. The criteria for granting benefits to criminals collaborating with the authorities are not provided by the law and are usually assessed by the prosecution or the court. As mentioned above, for Belgium, France and Luxembourg the general provisions only apply for penalty reductions and not for exemption from criminal liability. The indicator does not apply to Sweden and Denmark since no criminal organization offences (COOs) criminalizing the participation in a criminal organization exist in these legal systems.

4.6

Legal Persons

This section presents the indicators relating to the liability of legal persons. These include the indicators on the type of liability for legal persons (Sect. 4.6.1) and on the sanctions for legal persons (Sect. 4.6.2).

4.6.1

Liability of Legal Persons

This indicator assesses the legal grounds for the liability of legal persons for crimes committed for their benefit and within the framework of a criminal organization.

4.6 Legal Persons

103

The liability of legal persons in connection with criminal offences is a complex issue. Comparative research shows very differing approaches worldwide (de Doelder and Tiedemann 1996; Wells 2001, 127–145; Beale and Safwat 2004, 105–126). Traditionally, the criminal liability of legal persons in many countries contrasted with the legal principle of societas delinquere non potest which limits criminal liability only to natural persons (Beale and Safwat 2004, 105–108). Some States have overcome this obstacle since many years and established the criminal liability of legal persons (e.g. the United Kingdom and the Netherlands). Other countries have not followed the same path and sought alternative possibilities, including administrative or quasi-criminal liability (e.g. Germany and Italy). This book does not seek to clarify this complex subject which show constant evolution also as a reaction to financial and corporate scandals (e.g. Enron and Parmalat cases).22 It only aims at summarizing the national approaches to the liability of legal persons in relation to participation in a criminal organization (Picotti 2007, 443– 444). Therefore, for the purposes of this indicator, criminal, administrative or quasicriminal liabilities are equivalent. This point may have great importance, given that organized crime may exploit legal persons for the commission of offences. Indeed, the entrepreneurial element is one of the abovementioned characteristics of organized crime (see Sect. 2.2.4.1). In recent years many international agreements in criminal matters required the introduction of criminal liability of legal persons. In Europe, this included initiatives of the CoE and of the EU in many sectors (e.g. corruption, frauds, moneylaundering) (Beale and Safwat 2004, 126–136; Peers 2006, 411). In particular, in the sector of organized crime, all the international legal instruments on organized crime provide for liability of legal persons for participating in a criminal organization. The Joint Action (98/733/JHA) and the Palermo Convention leave more flexibility. The JA requires that “legal persons may be held criminally or, failing that, otherwise liable for offences [...] committed by that legal person, in accordance with procedures to be laid down in national law” (Article 3) (see Sect. 2.2.1.3). Similarly, the Palermo Convention requires States Parties to adopt “measures as may be necessary, consistent with its legal principles, to establish the liability of legal persons for participation in serious crimes involving an organized criminal group ...” (Article 11) (see Sect. 2.2.2.3). The Framework Decision (2008/ 841/JHA) is more precise. It requires EU Member State to establish legal persons’ liability for two situations: crimes committed by top managers or legal representatives for the benefit of the legal person and crimes committed for the benefit of a

22

To name just a few of the possible issues, the liability of legal persons may be independent from the liability of natural persons or connected to it. National legislation may provide defenses for legal persons if these show that they have adopted adequate measures to prevent the commission of offences. Liability of legal persons may apply to all criminal offences, or just to a specific list of offences. Clearly, the analysis of all these issues is well beyond the goal of this book.

104

4 Assessing Harmonization: The Horizontal Analysis

Table 4.14 Legal persons – liability of legal persons EU Member State Crime by a person having a leading position Austria

x

Belgium

x

Lack of supervision x

Bulgaria Cyprus

x x

x

The Czech Republic

x

Denmark

n/a

Estonia

x

Finland

x

France

x

Germany

x

x

Greece

x

x

Hungary

x

x

Ireland

x

x

Italy

x

x

Latvia

x

Lithuania

x

x

x

Luxembourg Malta

x x

The Netherlands

x

x

Poland

x

x

Portugal

x

x

Romania

x

x

Slovakia Slovenia

No liability

x x

Spain

x

Sweden

n/a

The United Kingdom

x

x x

Total 21 15 4 Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

legal person made possible by a lack of supervision by top managers or legal representatives (see Sect. 2.2.3.3). The analysis of the liability of legal persons for participation in a criminal organization highlights different approaches among EU Member States (Table 4.14, Graph 4.14 and Map 4.14). The first option provides the liability of legal persons for crimes committed for their benefit by a person having a leading position within it. This approach is followed by: Austria, Belgium, Cyprus, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Malta, the Netherlands, Poland,

4.6 Legal Persons 24 22 20 18 16 14 12 10 8 6 4 2 0

105

21 Crime by a person having a leading postion Lack of supervision No liability n/a

15

4 2

Graph 4.14 Legal persons – liability of legal persons Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

Map 4.14 Legal persons – liability of legal persons Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

Portugal, Romania, Slovenia, Spain, the United Kingdom. The legal persons’ liability has different nature among EU Member States. In some states the legal persons’ liability is criminal (e.g.: the Netherlands, the United Kingdom), in others it is administrative or quasi-criminal (e.g.: Germany, Italy, Spain).

106

4 Assessing Harmonization: The Horizontal Analysis

The second option provides (in addition to liability of legal persons for crimes committed for their benefit by a person having a leading position within it) liability of legal persons for crimes committed due to a lack of control or supervision by a person having a leading position. This approach is followed by: Austria, Cyprus, Finland, Germany, Greece, Hungary, Italy, Latvia, Lithuania, the Netherlands, Poland, Portugal, Romania, Spain, the United Kingdom. The third option provides no liability of legal persons for participation in a criminal organization. This approach is followed by: Bulgaria, Czech Republic, Luxembourg, Slovakia. It must be noted that these Member States envisage to introduce liability of legal persons and some have already drafted the legislation implementing this requirement (OECD 2006, 2008). The indicator does not apply to Sweden and Denmark since no criminal organization offences (COOs) criminalizing the participation in a criminal organization exist in these legal systems.

4.6.2

Sanctions for Legal Persons

This indicator assesses the different penalties applicable to legal persons liable for participation in a criminal organization. As mentioned above, the liability of legal persons has encountered difficulties in the implementation in some national systems and this is reflected in the typology of penalties that EU Member States introduce in their regard (Wells 2001, 31–35; Harding 1996, 378–382). In general, the most common sanction is the imposition of a criminal or noncriminal fine upon the legal person. However, several EU Member States introduced other penalties which may appear more effective in deterring and sanctioning legal persons. The international legal instruments on organized crime show an evolution in this field. While the Joint Action (98/733/JHA) and the Palermo Convention only required the adoption of “effective, proportionate and dissuasive” sanctions, Article 6 of the Framework Decision (2008/841/JHA) recalls the same expression but also explicitly states that the sanctions “shall include criminal or non-criminal fines”. Further, the Framework Decision (2008/ 841/JHA) allows EU Member States to introduce other sanctions, providing a list of examples. The analysis of the sanctions for legal persons for participation in a criminal organization show a variety of approaches among EU Member States (Table 4.15, Graph 4.15 and Map 4.15). The first sanction is the pecuniary sanction. This penalty can be applied in Austria, Belgium, Cyprus, Estonia, Finland, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Malta, the Netherlands, Poland, Portugal, Romania, Slovenia, Spain, the United Kingdom. In Austria, Finland, Ireland, Malta, the Netherlands and the United Kingdom this is the only sanction applicable to legal persons for COOs. It must be noted that some countries provide for a variety of sanctions for legal persons for other crimes. An example is the Netherlands,

x

x

n/a

x

n/a

n/a

x

x

x

x

x

x

x

x

x

x

n/a

x

x

Austria

Belgium

Bulgaria

Cyprus

The Czech Republic

Denmark

Estonia

Finland

France

Germany

Greece

Hungary

Ireland

Italy

Latvia

Lithuania

Luxembourg

Malta

The Netherlands

x

x

x

x

x

x

x

Table 4.15 Legal persons – sanctions for legal persons EU Member State Pecuniary Exclusion from public penalty benefits, aid, public procurement procedures

x

x

x

x

x

x

x

x

Temporary or permanent disqualification from the practice of commercial activities

x

x

x

x

Placement under judicial supervision

x

x

x

x

x

x

x

x

x

Judicial windingup

x

x

x

x

x

x

(continued)

Temporary or permanent closure of establishments used to commit the offence

4.6 Legal Persons 107

x

x

n/a

x

x

n/a

Romania

Slovakia

Slovenia

Spain

Sweden

x

x

x

Exclusion from public benefits, aid, public procurement procedures

x

x

x

x

x

Temporary or permanent disqualification from the practice of commercial activities x

5

Placement under judicial supervision

Total 21 10 13 Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

The United Kingdom x

x

Portugal

Pecuniary penalty

Poland

Table 4.15 (continued) EU Member State

x

x

x

12

Judicial windingup

x

x

x

x

10

Temporary or permanent closure of establishments used to commit the offence

108 4 Assessing Harmonization: The Horizontal Analysis

4.6 Legal Persons 24 22 20 18 16 14 12 10 8 6 4 2 0

109 Pecuniary penalty

21

Exclusion from public benefits, aid, publicprocurement procedures

13

12 10

10 5

6

Temporary or permanent disqualification from the practice of commercial activities Placement under judicial supervision Judicial winding-up Temporary or permanent closure of establishments used to commit the offence n/a

Graph 4.15 Legal persons – sanctions for legal persons Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

Map 4.15 Legal persons – sanctions for legal persons Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

where the Economic Offences Act provides a number of different penalties. However, Article 140 of the Criminal Code of the Netherlands (criminal organization) is not included among the economic offences.

110

4 Assessing Harmonization: The Horizontal Analysis

The second sanction is the temporary or permanent disqualification from the practice of commercial activities. This sanction can be applied in Belgium, Cyprus, France, Germany, Greece, Italy, Lithuania, Portugal, Romania, Slovenia, Spain. The sanction is particularly relevant whenever the legal person is an enterprise, since this could imply the suspension or termination of its main activity. The third sanction is the judicial winding-up of the legal person. This sanction can be applied in Belgium, Cyprus, Estonia, France, Germany, Hungary, Italy, Latvia, Lithuania, Portugal, Romania, Spain. This sanction allows to eliminate a legal person guilty of participation in a criminal organization. The fourth sanction is the temporary or permanent closure of establishments used to commit the offence. This sanction can be applied in Belgium, Cyprus, France, Germany, Greece, Italy, Lithuania, Portugal, Slovenia, Spain. The fifth sanction is the exclusion from public benefits, aid, public procurement procedures. This sanction can be applied in Cyprus, France, Germany, Greece, Hungary, Italy, Latvia, Poland, Portugal, Romania. This sanction allows to exclude the legal person from the most frequent forms of public contribution or support. Moreover, the exclusion from public procurements aims at ensuring the transparency and legality within the procurement market. The sixth sanction is the placement under judicial supervision. This sanction can be applied in Cyprus, France, Germany, Italy, Portugal. The indicator does not apply to Bulgaria, the Czech Republic, Denmark, Luxembourg, Slovakia, Sweden. Denmark and Sweden have no criminal organization offences (COOs) criminalizing the participation in a criminal organization exist in these legal systems. Bulgaria, the Czech Republic, Luxembourg, Slovakia have not yet implemented legal persons liability for participation in a criminal organization.

4.7

Rules on Jurisdiction

This indicator assesses the EU Member States’ rules on jurisdiction in relation to the offence of participation in a criminal organization. This issue comes especially to relevance when the offences are transnational, i.e. involving more than one legal system. The international legal instruments in the sector have variously addressed this point (see Sect. 2.2). The Joint Action (98/733/JHA) at Article 4 required EU Member States to establish their jurisdiction over the offence of participation in a criminal organization independently from “the territory of the Member States the organisation is based or pursues its criminal activities, or wherever the activity covered by the agreement referred to in Article 2(1)(b) takes place”. Article 15 of the Palermo Convention requires State Parties to establish jurisdiction over the offence committed within the territory of a State party or on board of a vessel or aircraft subject to its national legislation. The Palermo Convention also allows Parties to establish additional jurisdiction criteria. The Framework Decision (2008/ 841/JHA) requires EU Member States to establish their jurisdiction over the participation in a criminal organization according to three criteria: (a) offence

4.7 Rules on Jurisdiction

111

committed “in whole or in part within its territory, wherever the criminal organisation is based or pursues its criminal activities”; (b) offence committed “by one of its nationals”; (c) offence committed “for the benefit of a legal person established in the territory of that Member State”.23 The analysis of the rules on jurisdiction over participation in a criminal organization shows a variety of approaches among EU Member States (Table 4.16, Graph 4.16 and Map 4.16). The first option is the territorial jurisdiction. All crimes committed within a State’s territory fall within the jurisdiction of that State. This rule is the standard criterion for the establishment of criminal jurisdiction over an offence. With regard to COOs, it is adopted by all EU Member States, except for Denmark and Sweden (where no COOs exist).24 23

The criteria under b and c can be applied by EU MS “where the offences referred to in Article 2 are committed outside its territory” (Article 7 para 1 of the FD). 24 In common law countries (the United Kingdom and Ireland) there is no systematic regulation of jurisdiction as for the civil law countries. The analysis of the jurisdiction over the offences of participation in a criminal organization reveals a very complex framework. The United Kingdom represents a clear example. In England and Wales the general rule is the principle of territoriality: English criminal law deals with crimes committed in England and Wales (according to the principle “all crime is local”) (Hirst 2003, 6). However, several exceptions to this rule can be encountered either in the common law or in statute law (Vinciguerra 2002, 176). The offence of conspiracy is an exceptional example of complexity as far as jurisdiction is concerned. “The absence of any coherent overall strategy or guiding principle governing this area of law is reflected in a plethora of largely ad hoc statutory provisions, each of which appears to have its own unique features or quirks. Nor can any of these provisions be described as models of clear or pre´cised drafting. Even the best of them are problematic in certain important respects. The worst examples are so badly flawed as to be incapable of serving any useful purpose.” (Hirst 2003, 135) Conspiracy is punishable in the United Kingdom if it takes place in the territory of the country. Different rules are applicable when (a) a conspiracy is established in the United Kingdom in order to commit a crime abroad; (b) a conspiracy is established abroad in order to commit a crime in United Kingdom. Traditionally, the jurisdiction for these cases was regulated by the common law and several statutes and basically depended on the conspired crime(s) (the ulterior or predicate offence). Nowadays, conspiracies established in the United Kingdom to commit a crime abroad are punishable when the agreed course of conduct would be an offence in the United Kingdom and under the law of the foreign country and if, in the United Kingdom, a person becomes party to the agreement or anything is done before the formation of the agreement or in its pursuance (Section 1A of the Criminal Law Act 1997) (Hirst 2003, 142). Conspiracies established abroad in order to commit a crime in United Kingdom are always punishable. This approach has been adopted after case Somchai Liangsiriprasert v. US Government (Hirst 2003, 156; Ormerod 2005, 373). For the purpose of this book, the jurisdiction of the United Kingdom and Ireland has been interpreted as territorial jurisdiction, unless differently specified. For Malta a specific provision exist in Article 83A of the Criminal Code of Malta. Paragraph (5) provides that “The criminal action for an offence against the provisions of this article may be prosecuted in Malta notwithstanding that the organization of persons is based or pursues its criminal activities outside Malta.” As a consequence of this norm, Malta establishes its jurisdiction of criminal organizations based in any place. The territorial jurisdiction typical of common law systems is therefore extended beyond its traditional limits.

112

4 Assessing Harmonization: The Horizontal Analysis

Table 4.16 Rules on jurisdiction EU Member State Territorial Active personality Passive national (Offence by a national) (Offence against a national) Austria

x

x

Belgium

x

x

x

Bulgaria

x

x

x

Cyprus

x

x

The Czech Republic

x

x

Denmark

n/a

Estonia

x

x

x

Finland

x

x

x

France

x

x

x

Germany

x

x

x

Greece

x

x

x

Hungary

x

x

Ireland

x

Italy

x

x

x

Latvia

x

x

x

Lithuania

x

x

Luxembourg

x

x

Malta

x

The Netherlands

x

x

Poland

x

x

x

Portugal

x

x

x

Romania

x

x

x

Slovakia

x

x

x

Slovenia

x

x

x

Spain

x

x

Sweden

n/a

The United Kingdom x Total 25 22 13 Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires 28 26 24 22 20 18 16 14 12 10 8 6 4 2 0

25

Territorial 22 Active personality (Offence by a national)

13

2

Passive personality (Offence against a national) n/a

Graph 4.16 Rules on jurisdiction Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

4.7 Rules on Jurisdiction

113

Map 4.16 Rules on jurisdiction Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

The second option is the active personality jurisdiction. Crimes committed abroad by a national of a Member State fall within the jurisdiction of that State. Active personality jurisdiction is normally adopted to complement the territorial jurisdiction. It is adopted by all EU Member States, except the common law countries (Ireland25, Malta26, the United Kingdom).27 The application of the rule

25

Recently, Ireland has moved towards the active personality jurisdiction. However, this change applies not to the most specific offence tackling organized crime, but to the general criminal organization offence of conspiracy. Indeed, the offence of organised crime provided by Section 72 of the Criminal Justice Act 2006 does not have special provisions as far as jurisdiction is concerned. However, Section 71 (Offence of conspiracy) extends the Irish conspiracy (to commit a serious offence, i.e. an offence punished with at least 4 years of imprisonment) to both acts committed by or against an Irish citizen. 26 See the Footnote 24 for the particular provision relating to Malta’s jurisdiction of criminal organizations. 27 As mentioned above (Sect. 4.3.3, Footnote 16), in Germany the prosecution of organizations outside the EU need to be authorized by the Federal Ministry of Justice and the activities of the organization must be within Germany or the offender or the victim must be German or found in Germany.

114

4 Assessing Harmonization: The Horizontal Analysis

of active personality jurisdiction differs among the other EU Member States. Some Member States, particularly Central and Eastern European countries, provide for its general applicability in any case (e.g.: Bulgaria, the Czech Republic, Hungary, Latvia, Lithuania, Slovakia). Other Member States require some additional elements for the establishment of their criminal jurisdiction over offences committed by their nationals abroad. Frequently, dual criminality is required. The behavior of the national must constitute a criminal offence also under the law of the place of commission (e.g. Belgium, Cyprus, Estonia, Finland, France, Germany, Luxembourg, the Netherlands, Poland, Portugal, Romania, Spain). Moreover, some Member States require that the national is present or is apprehended in the territory of the state or is extradited to it (e.g. Italy, Portugal, Slovenia). The third option is the passive personality jurisdiction. Crimes committed abroad against a national of a Member State fall within the jurisdiction of that State. This approach is adopted by: Belgium, Bulgaria, Cyprus, Estonia, Finland, Germany,28 Greece, Italy, Latvia, Malta, Portugal, Romania, Slovakia, Slovenia.29 It must be noted that some countries require dual criminality for the application of this rule (e.g. Belgium, Estonia, Finland, France, Germany, Poland, Portugal). Frequently it may be hard to identify a specific victim of the offence of participating in a criminal organization. However, this jurisdiction rule may be of relevance in consideration that the predicate offences committed within the framework of a criminal organization are committed against a specific person (e.g. extortion, murder). The connection with the predicate offences may enable to establish the jurisdiction also for the criminal organization offence (COO). The indicator does not apply to Sweden and Denmark since no COOs criminalizing the participation in a criminal organization exist in these legal systems.

4.8

Conclusions of Chapter 4. Considerations on the Harmonization of Criminal Organization Legislation Among EU Member States

The horizontal analysis provides important information concerning national criminal legislations on criminal organizations. The different legal traditions among EU Member States emerge clearly from the analysis (Sect. 4.8.1). Moreover, it is difficult to identify a prevailing model of organized crime legislation (Sect. 4.8.2) because of the relevant inconsistencies among EU Member States’ legislation.

28

See Footnote 25. Recently, Ireland has moved towards the passive personality jurisdiction, but not for the offence of organized crime provided by Section 72 of the Criminal Justice Act 2006. See Footnote 25.

29

4.8 Conclusions of Chapter 4. Considerations on the Harmonization

115

Nevertheless, it is possible to highlight some slow trends in the harmonization of organized crime legislation.

4.8.1

Different Criminal Law Approaches to Organized Crime

The analysis highlighted the existence of three approaches to the criminalization of organized crime. They are the Scandinavian approach, the common law approach and the civil law approach (Militello 2001, 20–23). The Scandinavian approach is represented by Denmark, Finland and Sweden. Scandinavian countries have a criminal law tradition emphasizing detailed provisions on the possible forms of participation in a crime and aggravating circumstances (Ba¨ckman 1998, 31; Militello 2001, 22; Lahti and Sahavirta 2007, 102–103; Asp 2007, 276–277). Scandinavian EU Member States have frequently objected to the introduction of criminal organization offences (COOs) arguing that the general part of their criminal law allows to cover the phenomenon of organized crime (Cornils and Greve 2004, 864; Asp 2007, 279). To date, only Finland has introduced a COO criminalizing participation in a criminal organization, while Denmark and Sweden have no such provision (Flyghed 2002, 489; Kruize 2002, 159).30 Indeed, the criminalization of participation/membership in a criminal organization may represent “a crucial departure from legal traditions in Scandinavia” (Ba¨ckman 1998, 31). The Scandinavian approach to the issue of criminal organization may be supported by the scarce presence of criminal organizations activities on the territory of these countries (Ba¨ckman 1998, 20; Cornils and Greve 2004, 853). Frequently, organized crime has been associated to rockers and bikers crime (Kruize 2002, 159; Cornils and Greve 2004, 857; Heikinheimo 1998, 329). The introduction in Finland of the offence of participation in a criminal organization may be explained by the possible influences of Russian criminal organizations (Ba¨ckman 1998, 35; Heikinheimo 1998, 328) and the requirements of the Joint Action (98/733/ JHA) and the Palermo Convention (Lahti and Sahavirta 2007, 106). However, the aim of the process of harmonization of organized crime legislation is mainly preventive (see Sect. 3.2). Although the problem may not be a priority for Scandinavian EU Member States, the introduction of offences tackling criminal organizations may prevent loopholes in their criminal legislation. Such loopholes may cause problems if ever a more significant presence of organized crime will occur in these countries. Organized crime legislation, and in particular criminal organization offences (COOs), should apply only in case of actual need. So far, the Danish and Swedish governments did not chose to introduce COOs dealing with criminal organizations. The two countries have ratified the Palermo Convention but no criminalization of participation in a criminal organization has been implemented. Probably, the poor quality of the international legal instruments in the sector and the 30

For interesting remarks on the Scandinavian approach in relation to the Finnish criminal system before the introduction of the COO see Hietalahti (1997, 783–85).

116

4 Assessing Harmonization: The Horizontal Analysis

excessive vagueness of their provisions have prevented their full implementation by the Scandinavian legislators (Joutsen 2002c, 423). The common law approach is based on the offence of conspiracy. Adopting the classic perspective of continental criminal law tradition, characterized by the codification of criminal legislation, in Ireland, Malta and the United Kingdom the offence of conspiracy appears closer to the general part of criminal legislation than to the special part. Indeed, conspiracy, along with attempt and instigation, falls within the category of inchoate offences. Inchoate offences apply to every possible indictable offence and make the conspiracy, attempt and instigation to commit such offences punishable. This approach is different from the most part of civil law systems, where the conspiracy to commit a crime is not a punishable act or is punishable only where the agreed crimes are particularly serious or endanger national security (Joutsen 2002c, 422–423; Pelser 2008, 58; and see above Footnote 2). Moreover, the offence of conspiracy poses several issues in relation to its effectiveness in countering criminal organizations (Joutsen 2002c, 420). As Levi and Smith argue, “conspiracy law and practice may be criticised as a consequence of the following: 1. Conspiracy contemplates an agreement to engage in conduct which relates to one or a series of closely related crimes, it does not contemplate the activities of a multi-faceted criminal enterprise. It can accommodate certain broad conspiracies such as have been employed in terrorist prosecutions such as ‘conspiracy to cause explosions on the United Kingdom mainland’, but that is a single form of offence. 2. Each defendant in single conspiracy indictment has to be shown to be party to the same agreement. Proof of the agreement and its terms is usually indirect. It is thus often difficult to distinguish related or sub-conspiracies. 3. Agreement, in the sense of a meeting of two or more minds, does not accord with the common experience and how people actually associate in criminal endeavour. 4. Strict rules of evidence dislocate and obscure the presentation to the court of a full or clear picture” (Levi and Smith 2002, 16).

For these reasons, nowadays very few countries in the world tackle criminal organizations solely through the offence of conspiracy (Plecas et al. 2001, 7). This happens also within the EU, where Ireland and Malta have introduced special offences based on the concept of criminal association. In the last years in the United Kingdom there have been discussions about the introduction of a criminal association offence based on the traditional civil law approach (Mitsilegas 2009, 96; Home Office 2004, 40–41; Levi and Smith 2002, 16–18; Harding 2005, 690–691). These discussions also considered the international and particularly European action towards harmonization and approximation of criminal law. Notwithstanding these debates, the United Kingdom insisted for keeping the double model offence approach in the negotiations of the Framework Decision (2008/841/JHA) (see Sect. 2.2.4.3 and Mitsilegas 2009, 96). The civil law approach is based on the criminalization of criminal association. Nowadays, the majority of EU Member States falls within this approach. The only exceptions are the Scandinavian and common law countries. Although civil law countries share a common origin in their criminal law approach to criminal

4.8 Conclusions of Chapter 4. Considerations on the Harmonization

117

organizations, national traditions have developed different paths and interpretations of criminal organization offences (COOs). The archetype of the civil law approach goes back to the French Criminal Code of 1810, which criminalized criminal association at Articles 265–268. Originally, COOs tackled either banditry and/or subversive political associations (Giudicelli-Delage 2002, 114; Silva Sanchez 2002, 61; Volk 2002, 19; Wenin 2007, 254–256; De Nauw and Deruyck 1998, 170). National legislators later introduced special COOs tackling terrorist groups, drug-trafficking groups, organized crime groups, either modifying the general criminal organization offence or introducing new offences. Some counties have tried to describe organized crime with more precision. Italy has been the forerunner in this trend, and other countries followed its example (Austria, Belgium, Luxembourg). These Member States have introduced general COOs specifically designed to tackle organized crime, focusing on one or more of the distinctive elements of organized crime (e.g. intimidation, corruption, enterprise). Other Member States avoided this path but nevertheless adopted COOs with specific and quite stringent requirements (the Czech Republic, Romania, Greece, Lithuania, Bulgaria, Latvia). Finally, other Member States chose to rely on traditional offences, such as criminal association offences, eventually amending these norms to improve their effectiveness (France, Spain, Germany, Portugal). The Central and Eastern European countries (CEECs) show a further element in this evolution. In order to accede to the EU, these Member States had to implement the so-called JHA acquis (European Commission 2008b). This included both the Joint Action (98/733/JHA) and the Palermo Convention among the instruments the candidate countries had to implement. Therefore, many CEECs introduced COOs which closely (if not literally) match the abovementioned instruments (e.g. Slovenia, Hungary, Estonia, Cyprus, Slovakia). For example, Article 263/C of the Criminal Code of Hungary passed from a qualitative selection of predicate offences, to a quantitative threshold of 5 years of maximum imprisonment (Fehe´r and Geller 1998, 400; Karsai and Ve´gva´ri 2007, 180). Further, Slovenia has lowered the quantitative threshold of Article 294 of the Criminal Code from 5 to 3 years (Jakulin 1998, 503). The need to satisfy the accession criteria must have played a relevant role in this process, possibly hindering more in-depth debates on the introduction of these offences (De Hert and Pitto 2006, 187). These three approaches to organized crime legislation show a number of differences. The convergence towards a common model seem slow and complex. These elements influence the level of harmonization among EU Member States.

4.8.2

The Level of Harmonization Among EU Member States

The analysis of the indicators of harmonization partially reflects the three approaches above argued. Ireland, Malta and the United Kingdom rated similarly against most indicators of harmonization. The majority of the indicators of

118

4 Assessing Harmonization: The Horizontal Analysis

harmonization does not apply to Denmark and Sweden, since these countries do not provide any criminal organization offence tackling organized crime. A first exercise to assess the level of harmonization among EU Member States, is the identification of a theoretical “prevailing model” of organized crime legislation among EU Member States. It is composed of the most frequent options among EU Member States for each indicator of harmonization. These are the options that are adopted by the majority of EU Member States. As already explained (see Sect. 3.2), it is important to highlight that the goal of this exercise is not to identify the best organized crime legislation among EU Member States. Contrarily, the goal of this horizontal analysis is to assess similarities and differences among national legislations and to evaluate the level of harmonization among them (i.e. consistency among each EU Member States’ scores in the indicators of harmonization). The prevailing model is composed as in Table 4.17. Remarkably, no legislation of any EU Member State corresponds to the prevailing model. Portugal differs from the prevailing model only in one indicator which is the number of predicate offences. Portuguese legislation requires that a criminal organization plans or commits one or more offences. Poland differs from the prevailing model in two indicators: a general aggravating circumstance is provided in Polish criminal law for crimes committed by an organized group; Polish jurisprudence requires that a criminal organization has division of task and informal hierarchy among its members. The Netherlands and Slovenia differ from the prevailing model in three indicators each. The Netherlands has no aggravating circumstance for crime committed by a group of persons or by criminal Table 4.17 The theoretical “prevailing model” of organized crime legislation No. Indicator Most frequent option 1 Criminal organization offences One general offence 2 Aggravating circumstances Aggravating circumstance for specific crimes 3 Punishability of the mere agreement to a Mere agreement is punishable with criminal organization additional requirements 4 Number of members of a criminal At least three members organization 5 Structure of the criminal organization Minimum level of organization 6 Continuity of the criminal organization Continuous duration 7 Number of predicate offences More than one offence 8 Type of predicate offences No Type requirement 9 Additional requirements No additional requirement 10 Standard penalty for participation/ Max imprisonment up to 5 years membership 11 Penalty differentiation Founders and leaders 12 Benefits for collaborators Exemption from liability 13 Requirements for benefits Identify or provide information on offenders or organization 14 Liability of legal persons Crime by a person having a leading position 15 Sanctions for legal persons Pecuniary penalty 16 Rules on jurisdiction Territorial Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

4.8 Conclusions of Chapter 4. Considerations on the Harmonization

119

organizations, requires a minimum number of two members for a criminal organization and provides for penalty reduction for criminals collaborating with the authorities. In relation to the continuity of the criminal organization, Slovenian legislation only requires that the criminal organization is not randomly formed for the commission of crimes; the type of predicate offences that must be planned or committed by a criminal organization is restricted to offences punished with at least 5 years of maximum imprisonment; criminals collaborating with justice can be granted penalty reductions. The other EU Member States differ to a greater extent from the prevailing model above described. Denmark and Sweden differ in all the indicators of harmonization. The remaining Member States differ in a number of indicators ranging between 4 and 10. The exercise on the identification of a prevailing model of organized crime legislation does not highlight significant convergence among EU Member States. Overall, it seems that national legislation of EU Member States are remarkably different in their approaches to organized crime. Considering all the indicators of harmonization, it is not possible to identify a model common to a significant number of Member States. Contrarily, the indicators highlight very different approaches among national legal systems. These differences are likely to cause frictions and inconsistencies among national legislations. This reflects on the level of harmonization among EU Member States. Three examples appear particularly relevant. A first indicators revealing the very different approaches among EU Member States is the type of predicate offences of a criminal organization (see Sect. 4.3.2). The most frequent option is the absence of any requirement as to the type of predicate offences (nine EU Member States). The other countries implement a variety of approaches. Three EU Member States adopt a qualitative selection of the predicate offences, listing the specific offences that can be committed by a criminal organization (Greece, Romania) or providing broader categories (Austria). Many Member States adopt a quantitative selection of the predicate offences, but they differ significantly in the thresholds. Among these, some countries include offences punished with at least 3 years of maximum imprisonment (Belgium, Bulgaria, Cyprus, Estonia, Slovenia), 4 years (Finland, Ireland, Luxembourg, Malta), 5 years (France, Hungary, Slovakia) and even more than 6 years (Lithuania). A similar disparity among national legislations is likely to affect the concept of organized crime. Indeed, some crimes may fall within the threshold for criminal organizations in one legal system while in another one they may not. This may cause frictions and inconsistencies in the general perception of what is a criminal organization. Surely this may affect the strengthening of mutual trust among EU Member States, since a request of cooperation for a criminal organization offences (COO) may regard behaviors which the requested Member State would not consider as typical of criminal organizations. A second indicator highlighting significant inconsistencies among EU Member States is the continuity of a criminal organization (see Sect. 4.2.3). The most frequent option requires that a criminal organization has a continuous duration, without being potentially permanent (14 EU Member States). The second most frequent option is the absence of any continuity requirement (8 EU Member States).

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These Member States consider that a criminal group does not need to have a particular continuity in order to be classified as criminal organization. Accordingly, even criminal groups agreeing to commit one or more crimes for a very limited period may fall within the definition of criminal organizations. Other EU Member States expressly require that the organization is permanent (3 EU Member States). The indicator of harmonization on the continuity of a criminal organization shows significant differences among EU Member States. Some countries require that criminal organizations are permanent, while others do not provide for any requirement. As a consequence, temporary groups of criminals may fall within the scope of COOs in some EU Member States and not in others. This jeopardizes the emergence of a common understanding of criminal organizations at the EU level. Moreover, it may force EU Member States to cooperate in the enforcement of behaviors which they do not consider sufficiently serious to fall within the scope of criminal organization offences (COOs). A third issue revealing the problematic differences among EU Member States relates to penalties both for natural persons and legal persons (see Sects. 4.4.1 and 4.6.2 respectively). Imprisonment for the standard participation/membership in a criminal organization range from 2 years (Finland) to 20 years (Romania) of maximum imprisonment. Moreover, common law countries proportionate the penalty for conspiracy to the penalty provided for the conspired predicate offence (or for the most serious offence among them). As far as legal persons are concerned, all EU Member States providing for the liability of legal persons impose criminal/non criminal fines. However, the analysis of other penalties among EU Member States show very different approaches. Some countries rely solely on pecuniary penalties (Austria, Finland, Ireland, Malta, the United Kingdom), while other have introduced a wide variety of sanctions, ranging from judicial winding up to exclusion from public benefits, aid or public procurement procedures. The analysis of the penalties provided for participation/membership in a criminal organization for natural and legal persons confirms that EU Member States still have inconsistent approaches to the issue. As a consequence, very different penalty levels apply to criminal organizations across the EU. The disparity among EU Member States may hinder the effective international cooperation against criminal organizations. For example, in Finland the penalty for participation in a criminal organization is below the threshold of 3 years of maximum imprisonment set by the Framework Decision on EAW for avoiding to verify the double criminality of the act. Consequently an EAW issued by Finland would be subject to verification of double criminality and this may complicate international legal cooperation. The analysis of the level of harmonization among EU Member States shows that a common understanding of the concept of criminal organization is lacking and that there are significant inconsistencies among national legal systems. Examples drawn from the most controversial indicators show that these differences are important and prevent the emergence of a common approach in countering criminal organization and may jeopardize the effectiveness of international cooperation.

4.8 Conclusions of Chapter 4. Considerations on the Harmonization

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In conclusion, the three approaches (Scandinavian, common law and civil law) still seem to be the most relevant factor in shaping national legislation on organized crime. Moreover, there are significant differences within each approach. This seems to confirm the idea that criminal law is a sensitive sector for Member States and international harmonization efforts in this field have a rather low impact. In this general context, some signs of evolution are visible. In particular, two trends emerge. The first trend is the slow convergence toward the civil law approach of some Member States belonging to the common law (Ireland, Malta, Cyprus) and Scandinavian approaches (Finland). These countries have introduced new criminal organization offences (COOs) in their criminal legislation. The international legal instruments on organized crime, and particularly the civil law model of criminal association, have inspired the drafting process of this new offences. Remarkably, common law countries have introduced criminal association offences without being obliged to do so. Traditional conspiracy offences would have satisfied the international requirements in this field. In this context, the United Kingdom, Sweden and Denmark still show considerable reserves to such a change. The criticisms to the quality of the civil law model offence may have played a role this reticence. The second trend appears in several Member States, independently from the traditional approach to organized crime legislation. There is a slight convergence towards offences very similar (if not identical) to the model offences of the international legal instruments. The accession of new Member States (particularly of the CEECs) and the inclusion of the international definitions of organized crime in the JHA acquis has been an important driver in this trend. Few among the new Member States tried to modify and restrict the application of the international and European models. These trends show some evolution, although at a slow pace. Remarkably, many EU Member States (including the major ones) did not change their criminal organization offences (COOs) or the changes did not pay great attention to the international legal instruments. This is the especially case for those continental countries which have been members of the EU since before the Treaty of Amsterdam. For example Germany, France, Italy, Spain, the Netherlands, Austria and Portugal maintain their traditional offences. The differences and inconsistencies among these legislations are still relevant.

Chapter 5

Assessing Approximation: The Vertical Analysis

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. As already mentioned above (see Sect. 3.1.3), in order to comply with the EU standards it is sufficient that any provision in national criminal law meets the requisites set by the Framework Decision (2008/841/JHA), independently from the existence of more specific laws tackling criminal organizations. Moreover, EU Member States are considered to comply with the Framework Decision (2008/841/ JHA) requirements if they have stricter rules (e.g. higher penalties, lower minimum number of members of a criminal organization), provided that these do not contrast with the Framework Decision (2008/841/JHA). Sections 5.1 to 5.7 analyze the compliance of national legislation with the requirements set by the Framework Decision (2008/841/JHA). Section 5.8 provides a combined analysis of the level of approximation of EU Member States’ legislation to the EU standards.

5.1

Article 1: Definitions

This section assesses EU Member States’ compliance with the requirements set by Article 1 of the Framework Decision (2008/841/JHA).

5.1.1

Number of Members

This indicator compares the national legal requirements relating to the minimum number of members of a criminal organization with the EU F. Calderoni, Organized Crime Legislation in the European Union, DOI 10.1007/978-3-642-04331-4_5, # Springer-Verlag Berlin Heidelberg 2010

123

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requirements. The minimum standard of the Framework Decision (2008/841/JHA) is that at least three members are required for the existence of a criminal organization.1 The great majority of EU Member States complies with the EU minimum standard. Denmark and Sweden do not comply since no criminal organization offences (COOs) criminalizing the participation in a criminal organization exist in their legal systems. Austria complies with the EU requirement by virtue of } 278 of the Criminal Code of Austria (Kriminelle Vereinigung or criminal association). This provision requires a minimum of three members (while, according to the most frequent interpretation, } 278a on criminal organization requires about ten members) (Map 5.1 and Table 5.1).

Map 5.1 Compliance with Art. 1 FD (2008/841/JHA) – number of members of a criminal organization Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

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.”

5.1 Article 1: Definitions

125

Table 5.1 Compliance with Art. 1 FD (2008/841/JHA) – number of members of a criminal organization EU Member State National legislation – EU requirement number of members Austria Belgium Bulgaria Cyprus The Czech Republic Denmark Estonia Finland France Germany Greece Hungary Ireland Italy Latvia Lithuania Luxembourg Malta The Netherlands Poland Portugal Romania Slovakia Slovenia Spain Sweden The United Kingdom

At least three members At least three members At least three members At least three members At least three members n/a At least three members At least three members At least two members At least three members At least three members At least three members At least three members At least three members At least three members At least three members At least three members At least two members At least two members At least three members At least three members At least three members At least three members At least three members At least two members n/a At least two members

Yes Yes Yes Yes Yes No Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes No Yes

Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

5.1.2

Number of Predicate Offences

This indicator compares the national legal requirements relating to the minimum number of predicate offences a criminal organization must commit with the EU requirements. The minimum standard of the Framework Decision (2008/841/JHA) is that a criminal organization must plan or commit more than one offence.2

2

See previous note.

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5 Assessing Approximation: The Vertical Analysis

The great majority of EU Member States complies with the EU minimum standard. Denmark and Sweden do not complies since no criminal organization offences (COOs) criminalizing the participation in a criminal organization exist in their legal systems (Map 5.2 and Table 5.2).

Map 5.2 Article 1 – definitions – number of predicate offences Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

Table 5.2 Article 1 – definitions – number of predicate offences EU Member State National legislation – number of predicate offences Austria Belgium Bulgaria Cyprus The Czech Republic Denmark Estonia Finland France Germany Greece Hungary Ireland Italy

More than one offence More than one offence One offence is enough More than one offence More than one offence n/a More than one offence One offence is enough One offence is enough More than one offence More than one offence More than one offence One offence is enough More than one offence

EU requirement Yes Yes Yes Yes Yes No Yes Yes Yes Yes Yes Yes Yes Yes (continued)

5.1 Article 1: Definitions Table 5.2 (continued) EU Member State Latvia Lithuania Luxembourg Malta The Netherlands Poland Portugal Romania Slovakia Slovenia Spain Sweden The United Kingdom

127

National legislation – number of predicate offences

EU requirement

One offence is enough One offence is enough More than one offence More than one offence More than one offence More than one offence One offence is enough One offence is enough One offence is enough More than one offence More than one offence n/a One offence is enough

Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes No Yes

Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

5.1.3

Type of Predicate Offences

This indicator compares the national legal requirements relating to the type of predicate offences a criminal organization must commit with the EU requirements. The minimum standards of the Framework Decision (2008/841/JHA) is that the criminal organization must plan or commit offences punished with at least more than 4 years of maximum imprisonment (quantitative threshold).3 The majority of EU Member States complies with the EU minimum standard. Greece complies by virtue of Article 187 para 3 of the Criminal Code of Greece, which criminalizes “cooperating with someone in order to commit a crime (gang)”, with more serious penalty if the group “is aimed at the commitment of a crime that is punished for itself with imprisonment of at least one year and which aims at a financial or other material profit or against life or against human integrity or against freedom”. Romania complies with the EU standard through Article 323 of the Criminal Code of Romania which criminalizes criminal association. Austria complies by virtue of } 278 of the Criminal Code. This provision concerns the criminal association. A criminal association may plan or commit one or more offences punished with at least 3 years of maximum imprisonment (Verbrechen) or other offences specifically listed by the provision (Fabrizy 2007, 8). Denmark and Sweden do not comply since no criminal organization offences (COOs) criminalizing the participation in a criminal organization exist in their legal systems.

3

See Footnote 1.

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France, Hungary, Lithuania, Slovakia do not comply with the EU requirement since the quantitative threshold provided in these legislations are higher than the EU requirements. France, Hungary and Slovakia set the requirement at 5 years, while in Lithuania a criminal organization must commit or plan one or more major crimes (punished with a maximum of more than 6 years of imprisonment) or grave crimes (punished with a maximum of more than 10 years of imprisonment). In order to comply with the requirement set by the Framework Decision (2008/841/JHA) these Member States should lower the quantitative threshold (Map 5.3 and Table 5.3).

Map 5.3 Compliance with Art. 1 FD (2008/841/JHA) – type of predicate offences Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

Table 5.3 Compliance with Art. 1 FD (2008/841/JHA) – type of predicate offences EU Member State National legislation – EU type of predicate offences requirement Austria Belgium Bulgaria Cyprus The Czech Republic Denmark Estonia

Quantitative selection (3 years)/qualitative selection Quantitative selection (3 years) Quantitative selection (3 years) Quantitative selection (3 years) No type requirement n/a Quantitative selection (3 years)

Yes Yes Yes Yes Yes No Yes (continued)

5.1 Article 1: Definitions Table 5.3 (continued) EU Member State Finland France Germany Greece Hungary Ireland Italy Latvia Lithuania Luxembourg Malta The Netherlands Poland Portugal Romania Slovakia Slovenia Spain Sweden The United Kingdom

129

National legislation – type of predicate offences

EU requirement

Quantitative selection (4 years)/qualitative selection Quantitative selection (5 years) No type requirement No type requirement/quantitative selection (1 year) Quantitative selection (5 years) Quantitative selection (4 years) No type requirement No type requirement Quantitative selection (6 years) Quantitative selection (4 years) Quantitative selection (4 years) No type requirements No type requirements No type requirements No type requirements Quantitative selection (5 years)/qualitative selection Quantitative selection (3 years) No type requirements n/a No type requirements

Yes No Yes Yes No Yes Yes Yes No Yes Yes Yes Yes Yes Yes No Yes Yes No Yes

Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

5.1.4

Structure of the Criminal Organization

This indicator compares the national legislation relating to the structure of a criminal organization with the EU requirements. The minimum standard of the Framework Decision (2008/841/JHA) Framework Decision (2008/841/JHA) is that the criminal organization must have a minimum level of organization. This relates to the definition of “structured association”.4 The great majority of EU Member States complies with the EU minimum standard. Germany does not appear to complies, since the requirement of the members’ submission to a common will excludes the application of } 129 of the Criminal Code of Germany to a number of criminal organizations where decisions are taken by few leaders (see Sect. 4.2.2). This interpretation should be changed to reach full

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.”

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compliance with the requirements of the Framework Decision (2008/841/JHA). Denmark and Sweden do not comply since no criminal organization offences (COOs) criminalizing the participation in a criminal organization exist in their legal systems. Austria complies with the EU requirement by virtue of } 278 of the Criminal Code of Austria (Kriminelle Vereinigung or criminal association) (Map 5.4 and Table 5.4).

Map 5.4 Compliance with Art. 1 FD (2008/841/JHA) – structure of the criminal organization Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

Table 5.4 Compliance with Art. 1 FD (2008/841/JHA) – structure of the criminal organization EU Member State National legislation – structure of the group EU requirement Austria Belgium Bulgaria Cyprus The Czech Republic Denmark Estonia Finland France Germany Greece Hungary Ireland

Minimum level of organization Minimum level of organization Minimum level of organization Minimum level of organization Division of tasks n/a Informal hierarchy; division of tasks Minimum level of organization No specific requirement Division of tasks; common will Minimum level of organization Minimum level of organization Minimum level of organization

Yes Yes Yes Yes Yes No Yes Yes Yes No Yes Yes Yes (continued)

5.1 Article 1: Definitions Table 5.4 (continued) EU Member State Italy Latvia Lithuania Luxembourg Malta The Netherlands Poland Portugal Romania Slovakia Slovenia Spain Sweden The United Kingdom

131

National legislation – structure of the group

EU requirement

Minimum level of organization Minimum level of organization Informal hierarchy; division of tasks Minimum level of organization No specific requirement Minimum level of organization Informal hierarchy; division of tasks Minimum level of organization Minimum level of organization Minimum level of organization Minimum level of organization Informal hierarchy n/a No specific requirement

Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes No Yes

Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

5.1.5

Continuity of the Criminal Organization

This indicator compares the national legislation relating to the continuity of a criminal organization with the EU requirements. The minimum standard of the Framework Decision (2008/841/JHA) is that the criminal organization must be not randomly formed for one single offence.5 The majority of EU Member States complies with the EU minimum standard. Denmark and Sweden do not comply since no criminal organization offences (COOs) criminalizing the participation in a criminal organization exist in their legal systems. Bulgaria and Estonia do not seem to comply since their legislation requires that the criminal organization is permanent (Art. 93 para 20 of the Criminal Code of Bulgaria and } 255 of the Criminal Code of Estonia) (Map 5.5 and Table 5.5).

5.1.6

Additional Requirements

This indicator assesses the compliance of EU Member States’ national legislation with the Framework Decision (2008/841/JHA) standard as to the additional requirements of a criminal organization (Map 5.6 and Table 5.6). The majority of EU Member States complies with the EU minimum standard. Austria complies through } 278 of the Criminal Code of Austria (criminal 5

See previous footnote.

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Map 5.5 Compliance with Art. 1 FD (2008/841/JHA) – continuity of the criminal organization Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires Table 5.5 Compliance with Art. 1 FD (2008/841/JHA) – continuity of the criminal organization EU Member State National legislation – continuity of the group EU requirement Austria Belgium Bulgaria Cyprus The Czech Republic Denmark Estonia Finland France Germany Greece Hungary Ireland Italy Latvia Lithuania Luxembourg Malta The Netherlands Poland Portugal

Continuous duration Continuous duration Potentially permanent No requirement Continuous duration n/a Potentially permanent No requirement No requirement Continuous duration Continuous duration No requirement No requirement Continuous duration No requirement Continuous duration Continuous duration No requirement Continuous duration Continuous duration Continuous duration

Yes Yes No Yes Yes No No Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes (continued)

5.1 Article 1: Definitions Table 5.5 (continued) EU Member State Romania Slovakia Slovenia Spain Sweden The United Kingdom

133

National legislation – continuity of the group EU requirement Continuous duration Continuous duration Continuous duration Continuous duration n/a No requirement

Yes Yes Yes Yes No Yes

Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

Map 5.6 Compliance with Art. 1 FD (2008/841/JHA) – additional requirements Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

Table 5.6 Compliance with Art. 1 FD (2008/841/JHA) – additional requirements EU Member State National legislation – additional requirement Austria No additional requirement Belgium No additional requirement (Art. 322); profit; threat/intimidation/violence; enterprise/economic activities; corruption (Art. 324bis) Bulgaria Profit Cyprus Profit The Czech Republic No additional requirement Denmark n/a

EU requirement Yes No

Yes Yes Yes No (continued)

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Table 5.6 (continued) EU Member State Estonia Finland France Germany Greece Hungary Ireland Italy Latvia Lithuania Luxembourg Malta The Netherlands Poland Portugal Romania Slovakia Slovenia Spain Sweden The United Kingdom

National legislation – additional requirement

EU requirement

Profit No additional requirement No additional requirement No additional requirement No additional requirement No additional requirement Profit No additional requirement Armed No additional requirement Profit No additional requirement No additional requirement No additional requirement No additional requirement No additional requirement Profit No additional requirement No additional requirement n/a No additional requirement

Yes Yes Yes Yes Yes Yes Yes Yes No Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes No Yes

Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

association) which does not provide for any additional requirements for a criminal association. } 278a (criminal organization) requires some additional elements compared to Framework Decision (2008/841/JHA) standards (see Sect. 4.3.3). Italy complies through Article 416 of the Criminal Code of Italy (criminal association) which does not provide for any additional requirement for a criminal organization. Article 416-bis (mafia-type criminal association) requires some additional elements compared to the Framework Decision (2008/841/JHA) standards (see Sect. 4.3.3). Belgium does not seem to comply with the Framework Decision (2008/841/ JHA) standards. Article 322 of the Criminal Code of Belgium (criminal association) is applicable only when the group aims at harming people or property (“dans le but d’attenter aux personnes ou aux proprie´te´s”). Although no additional requirement is provided, the offence does not seem to cover any offence punishable with more than 4 years of imprisonment (e.g. forgery of documents, obstruction of justice). Article 324-ter of the Criminal Code of Belgium punishes the membership of a criminal organization only when the organization employs intimidation, threat, violence, fraudulent tactics or corruption or exploits commercial structures or others to dissimulate or favour the commission of crimes (“Lorsque l’organisation

5.2 Article 2: Offences Relating to Participation in a Criminal Organisation

135

criminelle utilise l’intimidation, la menace, la violence, des manoeuvres frauduleuses ou la corruption ou recourt a` des structures commerciales ou autres pour dissimuler ou faciliter la re´alisation des infractions . . .”). It must be noted that the reference to the modi operandi of criminal organizations is an important element for the Belgian legislator (see Sect. 4.3.3). The provision has been introduced after the adoption of the Joint Action (98/733/JHA) and has been maintained also after the ratification of the Palermo Convention.6 Therefore it can be assumed that the Belgian choice has explicitly been done in order to limit the application of the concept of criminal organization as defined by the international legal instruments. However, it is likely that this requirement is stricter than the active participation in the organization’s criminal activities as defined by the Framework Decision (2008/841/JHA). Latvia does not seem to comply with the Framework Decision (2008/841/JHA) requirement since Section 224 of the Criminal Code of Latvia (gangsterism) requires that the criminal organization is armed in order to punish the membership. Denmark and Sweden do not comply since no criminal organization offences (COOs) criminalizing the participation in a criminal organization exist in their legal systems.

5.2

Article 2: Offences Relating to Participation in a Criminal Organisation

This indicator compares the national legislation on participation in a criminal organization with the EU requirements. The minimum standard of the Framework Decision (2008/841/JHA) is the existence under national legislation of a provision criminalizing either the active participation to the activities of a criminal organization (Article 2 (a) of the FD) and/or the agreement to a criminal offence (Article 2 (b) of the FD) (Map 5.7 and Table 5.7).7 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 organizationEach 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;

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5 Assessing Approximation: The Vertical Analysis

Map 5.7 Compliance with Art. 2 FD (2008/841/JHA) – offences relating to participation in a criminal organisation Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires Table 5.7 Compliance with Art. 2 FD (2008/841/JHA) – offences relating to participation in a criminal organisation EU Member State Offences relating to participation in a criminal EU organisation requirement

Bulgaria Cyprus The Czech Republic Denmark Estonia Finland France

} 278 and } 278a of the Criminal Code Articles 322 and 324-bis ff. of the Criminal Code Article 321 of the Criminal Code Sections 63A and 63B of the Criminal Code Section 163a of the Criminal Code n/a } 255 of the Criminal Code Chapter 17 Section 1 a of the Criminal Code Articles 450-1 ff. of the Criminal Code

Yes Yes Yes No Yes Yes Yes

Germany Greece

} 129 and } 129b of the Criminal Code Article 187 of the Criminal Code

Yes Yes

Austria Belgium

Yes Yes

(continued)

(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.”

5.3 Article 3: Penalties Table 5.7 (continued) EU Member State

137

Offences relating to participation in a criminal organisation

Hungary Ireland

Article 263/c of the Criminal Code Offence of conspiracy and Section 72 of Criminal Justice Act 2006 Italy Articles 416 and 416-bis of the Criminal Code Latvia Section 224 of the Criminal Code Lithuania Article 249 of the Criminal Code Luxembourg Article 322 and 324-bis ff. of the Criminal Code Malta Article 83A and 48A (conspiracy) of the Criminal Code The Netherlands Article 140 of the Criminal Code Poland Article 258 of the Criminal Code Portugal Article 299 of the Criminal Code Romania Articles 7 ff. of law 39/2003 Slovakia Section 296 of the Criminal Code Slovenia Article 294 of the Criminal Code Spain Articles 515 ff. of the Criminal Code Sweden n/a The United Kingdom Sections 1 ff. of the Criminal Law Act 1977

EU requirement Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes No Yes

Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

The great majority of EU Member States complies with the Framework Decision (2008/841/JHA) requirements. The requirement of Article 2 (a) of the Framework Decision (2008/841/JHA) is the most common criminalization model. It is applied by all continental EU Member States (except Denmark and Sweden). They all have an offence of criminal organization or criminal association. The requirement of Article 2 (b) of the Framework Decision (2008/841/JHA) is applied by threecommon law states. Ireland, Malta and the United Kingdom all have a conspiracy offence. Remarkably, Ireland and Malta the two models coexist. Along with the traditional conspiracy approach, they have introduced an offence of participation in a criminal organization (based on the civil law model of Article 2 (a) of the FD). Denmark and Sweden do not comply since no criminal organization offences (COOs) criminalizing the participation in a criminal organization exist in their legal systems.

5.3

Article 3: Penalties

This section assesses EU Member States’ compliance with the requirements set by Article 3 of the Framework Decision (2008/841/JHA).

138

5.3.1

5 Assessing Approximation: The Vertical Analysis

Standard Penalty for Participation/Membership

This indicator compares the national legislation relating to penalties for participation in a criminal organization with the EU requirements. The minimum standard of the Framework Decision (2008/841/JHA) is that the penalty for the participation in a criminal organization must be at least more than 2 years and up to 5 years of maximum imprisonment or by same maximum term of imprisonment as the offence at which the agreement is aimed (the latter only for the agreement to commit an offence as provided by Article 2 (b) of the FD). The great majority of EU Member States complies with the EU minimum standard. Denmark and Sweden do not comply since no criminal organization offences (COOs) criminalizing the participation in a criminal organization exist in their legal systems (Map 5.8 and Table 5.8).

Map 5.8 Compliance with Art. 3 FD (2008/841/JHA) – standard penalty for participation/ membership Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

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.”

5.3 Article 3: Penalties

139

Table 5.8 Compliance with Art. 3 FD (2008/841/JHA) – standard penalty for participation/ membership EU Member State National legislation – standard penalty EU for participation/membership requirement Austria Belgium Bulgaria Cyprus The Czech Republic Denmark Estonia Finland France Germany Greece Hungary Ireland Italy Latvia Lithuania Luxembourg Malta The Netherlands Poland Portugal Romania Slovakia Slovenia Spain Sweden The United Kingdom

6 months–5 years 1–3 years 1–6 years 3 years 2–10 years n/a 3–12 years 2 years 5 years/10 years 5 years 10 years 5 years 5 years 7-12 years 5–12 years 3–15 years 1–3 years 1–5 years 6 years 3 months–5 years 1–5 years 5–20 years 3–10 years 3 months–5 years 1–3 years n/a Proportionate to the offence

Yes Yes Yes Yes Yes No Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes No Yes

Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

5.3.2

Aggravating Circumstance

This indicator compares the national legislation relating to aggravating circumstances for crimes committed within the framework of a criminal organization with the EU requirements. The minimum standard of the Framework Decision (2008/ 841/JHA) is that the fact that crimes (punishable by deprivation of liberty or a detention order for a maximum of at least 4 years) are committed within the

140

5 Assessing Approximation: The Vertical Analysis

framework of a criminal organization constitutes an aggravating circumstance (for the discussion of the problems relating to this article, see Sect. 2.2.3.3).9 Only few EU Member States comply with the Framework Decision (2008/ 841/JHA) requirement: the Czech Republic, Denmark, Estonia, Finland, Latvia, Lithuania, Poland, Romania and Sweden. These legal systems have a general aggravating circumstance complying with the requirement set by Article 3 para 2 of the Framework Decision (2008/841/JHA) (Map 5.9 and Table 5.9). Some EU Member States, although providing general aggravating circumstances for crimes committed by criminal organizations, do not meet the requirements of the Framework Decision (2008/841/JHA). Section 98 of the Criminal Code of Hungary provides for a penalty increase for crimes committed “in affiliation with organized crime”. However, according to Section 137 para 8, an organized criminal group must aim at the commission of offences “punishable with five years of imprisonment or more”. Since the quantitative threshold is higher than the one provided by the Framework Decision (2008/841/JHA), Hungarian legislation does not seem to comply with the EU requirements. Italy has three general aggravating circumstances for crimes committed in group or within the framework of a criminal organization. However, none appears to fully comply with the Framework Decision (2008/841/ JHA) requirement. Article 112 para 1 1) aggravates penalties only when crimes are

Map 5.9 Article 3 – penalties – aggravating circumstance Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

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.”

5.3 Article 3: Penalties

141

Table 5.9 Compliance with Art. 1 FD (2008/841/JHA) – aggravating circumstance (a.c.) EU Member State National legislation – aggravating EU circumstance requirement Austria Belgium Bulgaria Cyprus The Czech Republic Denmark Estonia Finland France Germany Greece Hungary Ireland Italy Latvia Lithuania Luxembourg Malta The Netherlands Poland Portugal Romania Slovakia Slovenia Spain Sweden The United Kingdom

A.c. for specific crimes A.c. for specific crimes A.c. for specific crimes A.c. for specific crimes General a.c. General a.c. General a.c./a.c. for specific crimes General a.c./a.c. for specific crimes A.c. for specific crimes A.c. for specific crimes A.c. for specific crimes General a.c./a.c. for specific crimes No aggravating circumstance General a.c./a.c. for specific crimes General a.c./a.c. for specific crimes General a.c./a.c. for specific crimes A.c. for specific crimes A.c. for specific crimes No a.c. General a.c. A.c. for specific crimes General a.c./a.c. for specific crimes A.c. for specific crimes A.c. for specific crimes A.c. for specific crimes General a.c. No a.c.

No No No No Yes Yes Yes Yes No No No No No No Yes Yes No No No Yes No Yes No No No Yes No

Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

committed by five or more persons; Article 7 of Decree 152/1991 aggravates penalties only for crimes committed using the mafia method (see Sect. 4.3.3) or for the benefit of a mafia-type association; Article 4 of law 146/2006 requires that more than one state is involved in the activities of an organized criminal group. Other EU Member States do not have any general aggravating circumstance for crimes committed in the framework of a criminal organization. Therefore, they do not comply with the Framework Decision (2008/841/JHA) requirement (Austria, Belgium, Bulgaria, Cyprus, France, Germany, Greece, Luxembourg, Malta, the Netherlands, Portugal, Slovakia, Slovenia, Spain, the United Kingdom). This can be due to the lack of any aggravating circumstance on criminal organizations (Ireland, the Netherlands, the United Kingdom) or to the presence of aggravating circumstances only for specific crimes (Austria, Belgium, Bulgaria, Cyprus, France, Germany, Greece, Luxembourg, Malta, Portugal, Slovenia, Slovakia, Spain).

142

5.4

5 Assessing Approximation: The Vertical Analysis

Article 4: Special Circumstances

This indicator compares the national legislation relating to benefits for collaborators with justice with the EU standard. Note that Article 4 of the Framework Decision (2008/841/JHA) is not prescriptive, since it states that “Each Member State may take the necessary measures”. Therefore, the Framework Decision (2008/841/JHA) only provides a standard and not a mandatory requirement Member States must implement. The standard of the Framework Decision (2008/841/JHA) is that collaborators with justice may be granted a penalty reduction or immunity.10 The great majority of EU Member States complies with the Framework Decision (2008/841/JHA) standard. Denmark and Sweden do not comply since no criminal organization offences (COOs) criminalizing the participation in a criminal organization exist in their legal systems (Map 5.10 and Table 5.10).

Map 5.10 Compliance with Art. 4 FD (2008/841/JHA) – special circumstances Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

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;

5.5 Article 5: Liability of Legal Persons Table 5.10 Compliance with Art. 4 FD (2008/841/JHA) – special circumstances EU Member State National legislation – benefits for collaborators with justice Austria Belgium Bulgaria Cyprus The Czech Republic Denmark Estonia Finland France Germany Greece Hungary Ireland Italy Latvia Lithuania Luxembourg Malta The Netherlands Poland Portugal Romania Slovakia Slovenia Spain Sweden The United Kingdom

Penalty reduction Exemption from liability at an early stage Exemption from liability at an early stage Penalty reduction Exemption from liability at an early stage n/a Exemption from liability Exemption from liability at an early stage Exemption from liability at an early stage Exemption from liability Exemption from liability Exemption from liability Exemption from liability Penalty reduction Exemption from liability Exemption from liability Exemption from liability at an early stage Exemption from liability (pardon) Penalty reduction Exemption from liability Exemption from liability Exemption from liability at an early stage Penalty reduction Penalty reduction Penalty reduction n/a Exemption from liability

143

EU requirement Yes Yes Yes Yes Yes No Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes No Yes

Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

5.5

Article 5: Liability of Legal Persons

This section assesses EU Member States’ compliance with the requirements set by Article 5 of the Framework Decision (2008/841/JHA).

(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.”

144

5.5.1

5 Assessing Approximation: The Vertical Analysis

Crimes Committed by Persons Having a Leading Position Within the Legal Person

This indicator compares the national legislation relating to the liability of legal persons for participation in a criminal organization with the EU requirement. In particular, this indicator refers to the commission of the offence by persons having a leading position within the legal person. The minimum standard of the Framework Decision (2008/841/JHA) is that legal persons may be held liable for participation in a criminal organization committed for their benefit by persons having a leading position.11 The majority of EU Member States complies with the EU requirement. Denmark and Sweden do not comply since no criminal organization offences (COOs) criminalizing the participation in a criminal organization exist in their legal systems. Bulgaria, the Czech Republic, Luxembourg and Slovakia have not yet implemented legal person liability in their legal systems (Map 5.11 and Table 5.11).

Map 5.11 Compliance with Art. 5 FD (2008/841/JHA) – liability of legal persons – crimes committed by persons having a leading position within the legal person Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires 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.”

5.5 Article 5: Liability of Legal Persons

145

Table 5.11 Compliance with Art. 5 FD (2008/841/JHA) – liability of legal persons – crimes committed by persons having a leading position within the legal person EU Member State National legislation – persons having a EU leading position within the l.p. requirement Austria Belgium Bulgaria Cyprus The Czech Republic Denmark Estonia Finland France Germany Greece Hungary Ireland Italy Latvia Lithuania Luxembourg Malta The Netherlands Poland Portugal Romania Slovakia Slovenia Spain Sweden The United Kingdom

Crime by a person having a leading position Crime by a person having a leading position No liability Crime by a person having a leading position No liability n/a Crime by a person having a leading position Crime by a person having a leading position Crime by a person having a leading position Crime by a person having a leading position Crime by a person having a leading position Crime by a person having a leading position Crime by a person having a leading position Crime by a person having a leading position Crime by a person having a leading position Crime by a person having a leading position No liability Crime by a person having a leading position Crime by a person having a leading position Crime by a person having a leading position Crime by a person having a leading position Crime by a person having a leading position No liability Crime by a person having a leading position Crime by a person having a leading position n/a Crime by a person having a leading position

Yes Yes No Yes No No Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes No Yes Yes Yes Yes Yes No Yes Yes No Yes

Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

5.5.2

Crimes Made Possible by a Lack of Supervision or Control

This indicator compares the national legislation relating to the liability of legal persons for participation in a criminal organization with the EU requirement. In particular, this indicator refers the commission of the offence thanks to a lack of control by persons having a leading position within the legal person. The minimum standard of the Framework Decision (2008/841/JHA) is that legal persons may be held liable for participation in a criminal organization, committed for their benefit,

146

5 Assessing Approximation: The Vertical Analysis

by a person under their authority, thanks to a lack of control by persons having a leading position.12 The majority of EU Member States complies with the EU requirement. Belgium, Bulgaria, the Czech Republic, Denmark, Estonia, France, Luxembourg, Malta, Romania, Slovakia, Slovenia, Sweden do not comply for different reasons. Denmark and Sweden do not comply since no criminal organization offences (COOs) criminalizing the participation in a criminal organization exist in their legal systems. Bulgaria, the Czech Republic, Luxembourg and Slovakia have not yet implemented legal person liability in their legal systems. Belgium, Estonia, France, Malta and Slovenia do not provide for liability of legal persons when a crime is made possible by a lack of supervision/control within the legal person (Map 5.12 and Table 5.12).

Map 5.12 Compliance with Art. 5 FD (2008/841/JHA) – liability of legal persons – crimes made possible by a lack of supervision or control Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

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.”

5.6 Article 6: Penalties for Legal Persons

147

Table 5.12 Compliance with Art. 5 FD (2008/841/JHA) – liability of legal persons – crimes made possible by a lack of supervision or control EU Member State National legislation – crime made possible EU by a lack of supervision/control requirement Austria Belgium Bulgaria Cyprus The Czech Republic Denmark Estonia Finland France Germany Greece Hungary Ireland Italy Latvia Lithuania Luxembourg Malta The Netherlands Poland Portugal Romania Slovakia Slovenia Spain Sweden The United Kingdom

Lack of supervision No liability for lack of supervision No liability Lack of supervision No liability n/a No liability for lack of supervision Lack of supervision No liability for lack of supervision Lack of supervision Lack of supervision Lack of supervision Lack of supervision Lack of supervision No liability Lack of supervision No liability No liability for lack of supervision Lack of supervision Lack of supervision Lack of supervision Lack of supervision No liability No liability for lack of supervision Lack of supervision n/a Lack of supervision

Yes No No Yes No No No Yes No Yes Yes Yes Yes Yes No Yes No No Yes Yes Yes Yes No No Yes No Yes

Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

5.6

Article 6: Penalties for Legal Persons

This section assesses EU Member States’ compliance with the requirements set by Article 6 of the Framework Decision (2008/841/JHA).

5.6.1

Criminal/Non-Criminal Fines

This indicator compares national legislation relating to penalties for legal persons with the EU requirements. In particular, this indicator refers to pecuniary sanctions.

148

5 Assessing Approximation: The Vertical Analysis

The minimum standard of the Framework Decision (2008/841/JHA) is that legal persons should be punishable with “criminal or non criminal fines”.13 The majority of EU Member States complies with the EU requirement. Denmark and Sweden do not comply since no criminal organization offences (COOs) criminalizing the participation in a criminal organization exist in their legal systems. Bulgaria, the Czech Republic, Luxembourg, Romania and Slovakia have not yet implemented legal person liability in their legal systems. All the systems having liability of legal persons contemplate criminal/non criminal fines among the possible sanctions for legal persons (Map 5.13 and Table 5.13).

Map 5.13 Compliance with Art. 6 FD (2008/841/JHA) – penalties for legal persons – criminal/ non criminal fines Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

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.”

5.6 Article 6: Penalties for Legal Persons

149

Table 5.13 Compliance with Art. 6 FD (2008/841/JHA) – penalties for legal persons – criminal/ non criminal fines EU Member State National legislation – criminal/ EU requirement non-criminal fines Austria Belgium Bulgaria Cyprus The Czech Republic Denmark Estonia Finland France Germany Greece Hungary Ireland Italy Latvia Lithuania Luxembourg Malta The Netherlands Poland Portugal Romania Slovakia Slovenia Spain Sweden The United Kingdom

X X No liability X No liability n/a X X X X X X X X X X No liability X X X X X No liability X X n/a X

Yes Yes No Yes No No Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes No Yes Yes Yes Yes Yes No No Yes No Yes

Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

5.6.2

Other Penalties

This indicator compares national legislation relating to penalties for legal persons with the EU standard. In particular, this indicator refers to non-pecuniary penalties. On this point, the Framework Decision (2008/841/JHA) is not prescriptive. According Article 6 para 1 of the Framework Decision (2008/841/JHA) penalties for legal persons “may include other penalties”. Therefore, the Framework Decision (2008/ 841/JHA) only provides a standard and not a mandatory requirement Member

150

5 Assessing Approximation: The Vertical Analysis

States must implement. The standard of the Framework Decision (2008/841/JHA) is a list of possible other penalties for legal persons.14 Some EU Member States provide for other sanctions for legal persons in addition to criminal/non criminal fines (Map 5.14 and Table 5.14). In particular, some Member States provide a number of additional sanctions. This approach if followed by: Cyprus, France, Belgium, Germany, Hungary, Italy, Latvia, Portugal, Romania, Spain. A few Member States only provide for a limited number of additional sanctions (Estonia, Greece, Lithuania, Poland and Slovenia). A significant number of EU Member States do not provide any sanction other than criminal/non criminal fines. Denmark and Sweden do not comply since no criminal organization offences (COOs) criminalizing the participation in a criminal organization exist in their legal systems. Bulgaria, the Czech Republic, Luxembourg and Slovakia have not yet implemented any form of legal person liability in their legal systems. Austria, Finland, Malta, Ireland, the Netherlands and the United Kingdom rely only on criminal/non criminal fines for sanctioning legal persons for participation in a criminal organization.

Map 5.14 Compliance with Art. 6 FD (2008/841/JHA) – penalties for legal persons – other penalties Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

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.” 14

Austria Only pecuniary sanctions Belgium X Bulgaria No liability Cyprus X X X The Czech Republic No liability Denmark n/a Estonia Finland Only pecuniary sanctions France X X X Germany X X X Greece X X Hungary X X Ireland Only pecuniary sanctions Italy X X X Latvia X X Lithuania Luxembourg No liability Malta Only pecuniary sanctions The Netherlands Only pecuniary sanctions Poland X X Portugal X X X Romania X X Slovakia No liability Slovenia X Spain X Sweden n/a The United Kingdom Only pecuniary sanctions Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

Table 5.14 Compliance with Art. 6 FD (2008/841/JHA) – penalties for legal persons – other penalties EU Member State Exclusion from public Temporary or permanent Placement benefits or aid, public disqualification from the under procurement practice of commercial judicial procedures activities supervision

X

X X X X

X X

X

X

X X X

X

X X

X X

X

X

X

X

X

No No Yes Yes Yes No Yes Yes No No

No Yes No Yes No No Yes No Yes Yes Yes Yes No Yes Yes Yes

Judicial Temporary or permanent EU winding- closure of establishments standard up used to commit the offence

5.6 Article 6: Penalties for Legal Persons 151

152

5.7

5 Assessing Approximation: The Vertical Analysis

Article 7: Jurisdiction

This section assesses EU Member States’ compliance with the requirements set by Article 7 of the Framework Decision (2008/841/JHA).

5.7.1

Territorial Jurisdiction

This indicator compares national legislation relating to jurisdiction over participation in a criminal organization with the EU requirements. In particular, this indicator refers to territorial jurisdiction. The minimum standard of the Framework Decision (2008/841/JHA) is that participation in a criminal organization must fall under the jurisdiction of a Member State whenever it is committed in whole or in part within the Member State’s territory.15 The great majority of EU Member States complies with the EU requirement. Denmark and Sweden do not comply since no criminal organization offences (COOs) criminalizing the participation in a criminal organization exist in their legal systems (Map 5.15 and Table 5.15).

Map 5.15 Compliance with Art. 7 FD (2008/841/JHA) – jurisdiction – territorial jurisdiction Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

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;”

5.7 Article 7: Jurisdiction

153

Table 5.15 Compliance with Art. 7 FD (2008/841/JHA) – jurisdiction – territorial jurisdiction EU Member State National legislation – territorial EU jurisdiction requirement Austria Belgium Bulgaria Cyprus The Czech Republic Denmark Estonia Finland France Germany Greece Hungary Ireland Italy Latvia Lithuania Luxembourg Malta The Netherlands Poland Portugal Romania Slovakia Slovenia Spain Sweden The United Kingdom

X X X X X n/a X X X X X X X X X X X X X X X X X X X n/a X

Yes Yes Yes Yes Yes No Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes No Yes

Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

5.7.2

Jurisdiction over Offences Committed by a National

This indicator compares national legislation relating to jurisdiction over participation in a criminal organization with the EU standard. In particular, this indicator refers to participation in a criminal organization committed by a national of an EU Member State (active personality jurisdiction). The Framework Decision (2008/841/JHA) is not prescriptive on this point. According to Article 7 para 1 of the Framework Decision (2008/841/JHA) “a Member State may decide that it will not apply, or that it will apply only in specific cases or circumstances” this rule of jurisdiction when participation in a criminal organization is “committed outside its territory”. Consequently, this provision of Article 7 only provides a standard and not a mandatory requirement Member States must implement (Map 5.16 and Table 5.16).

154

5 Assessing Approximation: The Vertical Analysis

Map 5.16 Compliance with Art. 7 FD (2008/841/JHA) – jurisdiction – jurisdiction over offences committed by a national Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

Table 5.16 Compliance with Art. 7 FD (2008/841/JHA) – jurisdiction – jurisdiction over offences committed by a national EU Member State National legislation – offence EU committed by a national requirement Austria Belgium Bulgaria Cyprus The Czech Republic Denmark Estonia Finland France Germany Greece Hungary Ireland Italy Latvia Lithuania

X X X X X n/a X X X X X X X X X X

Yes Yes Yes Yes Yes No Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes (continued)

5.7 Article 7: Jurisdiction Table 5.16 (continued) EU Member State Luxembourg Malta The Netherlands Poland Portugal Romania Slovakia Slovenia Spain Sweden The United Kingdom

155

National legislation – offence committed by a national

EU requirement

X X X X X X X X X n/a No jurisdiction

Yes Yes Yes Yes Yes Yes Yes Yes Yes No No

Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

The great majority of EU Member States complies with the EU requirement. Denmark and Sweden do not comply since no criminal organization offences (COOs) criminalizing the participation in a criminal organization exist in their legal systems. Among common law systems, which in general do not apply the active personality rule of jurisdiction, only the United Kingdom seems not complying with the Framework Decision (2008/841/JHA) (on the jurisdiction of common law countries, see Sect. 4.7). Indeed Malta has introduced a clause that allows prosecution of criminal organizations independently from the place they are based (see Footnote 24 in Chap. 4). Therefore Malta legislation seems to comply the Framework Decision (2008/841/JHA) standards. Ireland complies by virtue of Section 71 of the Criminal Justice Act 2006, which explicitly includes conspiracies committed by an Irish citizen.

5.7.3

Jurisdiction over Offences Committed for the Benefit of a Legal Person Established in the Territory

This indicator compares national legislation relating to jurisdiction over participation in a criminal organization with the EU standard. In particular, this indicator refers to participation in a criminal organization committed for the benefit of a legal person established in a Member State’s territory. The Framework Decision (2008/841/JHA) is not prescriptive on this point. According to Article 7 para 1 of the Framework Decision (2008/841/JHA) “a Member State may decide that it will not apply, or that it will apply only in specific cases or circumstances” this rule of jurisdiction when participation in a criminal

156

5 Assessing Approximation: The Vertical Analysis

organization is “committed outside its territory”. Consequently, this provision of Article 7 only provides a standard and not a mandatory requirement Member States must implement (Table 5.17). It is not possible to assess whether EU Member States’ legislation comply with the Framework Decision (2008/841/JHA) requirement. Indeed, no EU legal system expressly establishes jurisdiction over participation in a criminal organization committed “for the benefit of a legal person established in the territory of that Member State”. Jurisdiction over such cases may be established though other criteria (e.g. offence committed by a national, when the person has also a leading role within the legal person).

Table 5.17 Compliance with Art. 7 FD (2008/841/JHA) – jurisdiction – jurisdiction over offences committed for the benefit of a legal person established in the territory EU Member State National legislation – offences committed EU requirement for the benefit of a legal person established in the territory Austria Belgium Bulgaria Cyprus The Czech Republic Denmark Estonia Finland France Germany Greece Hungary Ireland Italy Latvia Lithuania Luxembourg Malta The Netherlands Poland Portugal Romania Slovakia Slovenia Spain Sweden The United Kingdom

n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a

n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a n/a

Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

5.8 Conclusions of Chapter 5. Considerations on the Level of Approximation

5.8

157

Conclusions of Chapter 5. Considerations on the Level of Approximation to the Standards of the Framework Decision (2008/841/JHA)

In general, EU Member States already comply with most of the requirements set by the Framework Decision (2008/841/JHA). On a total of 459 assessments (17 approximation indicators by 27 EU Member States), 27 assessments (6% of the total, see Map 5.17 and Table 5.18) are not applicable (in relation to the last approximation indicator concerning jurisdiction over crimes committed for the benefit of a legal person established within the territory) and 86 were negative (19% of the total). Positive assessments amount to 346 (75% of the total). The negative assessment concentrate on specific countries and topics. A significant part of the negative assessments (30, i.e. 7% of the total and 35% of the negative assessments) are related to Denmark and Sweden which do not have any criminal organization offence tackling criminal organizations, notwithstanding their ratification of the Palermo Convention. Traditionally, Scandinavian countries have very detailed provisions on joint participation in crimes and these norms are employed in conjunction with a penalty increase for crimes committed by groups or

Map 5.17 Number of approximation indicators not complying with the Framework Decision (2008/841/JHA) requirements and/or standards Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

158

5 Assessing Approximation: The Vertical Analysis

Table 5.18 Assessment of approximation of EU Member States legislation to the requirements of the FD. Different set of indicators Only mandatory Only mandatory Type of indicators All Only indicators – no indicators – no indicators mandatory liability of legal liability of legal indicators persons persons – no aggravating circumstance 17 13 10 9 No. of indicators values % values % values % values % Yes 346 75% 282 80% 22 83% 216 89% No (Denmark and Sweden) 30 7% 24 7% 18 7% 18 7% No (other countries) 56 12% 45 13% 27 10% 9 4% No (Total) 86 19% 69 20% 45 17% 27 11% n/a 27 6% 0 0 0 Total 459 351 270 243 Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

organizations. Therefore, so far, Danish and Swedish legislators have not introduced any criminal organization offence tackling organized crime. For this reason, Denmark and Sweden appear to have a low level of approximation to the EU standards that are mainly based on the introduction of criminal organization offences into national legislation. Except for Denmark and Sweden, the majority of EU Member States rates negatively against up to two indicators only (Map 5.17). Poland and Romania fully comply with every indicator of approximation. Some countries do not comply with three to six indicators of approximation. These are Belgium, Bulgaria, the Czech Republic, France, Luxembourg, Slovakia, and the United Kingdom. As mentioned above, some of the indicators of approximation concern provisions of the Framework Decision (2008/841/JHA) which are only optional (indicators relating to special circumstances for collaborators with justice, sanctions for legal persons other than criminal or non criminal fines, the jurisdiction over offences committed by a national and jurisdiction over offences committed for the benefit of a legal persons). EU Member States are not required to implement them mandatorily and the Framework Decision (2008/841/JHA) only provides a standard. Although their assessment offers useful information about the level of approximation to the EU requirements, these indicators have minor importance and can be excluded from an in-depth analysis. Considering only the mandatory requirements and excluding Denmark and Sweden, negative ratings drop to 45 (13% of the considered assessments) (Map 5.18). Finland, Poland and Romania are fully compliant with the mandatory requirements and the majority of the other EU Member States (n ¼ 16) rates negatively against up to two indicators of approximation. Belgium, Bulgaria, the Czech Republic, France, Luxembourg, Slovakia rate negatively against three to five indicators of approximation. The analysis of the 45 negative ratings of EU Member States (except Denmark and Sweden) against the indicators of approximation, related only to the mandatory

5.8 Conclusions of Chapter 5. Considerations on the Level of Approximation

159

Map 5.18 Number of approximation indicators not complying with the Framework Decision (2008/841/JHA) requirements (no optional standards) Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

requirements set by the Framework Decision (2008/841/JHA), highlights that a relevant share of these is imputable to the liability of legal persons. Some EU Member States have not yet implemented any form of liability of legal persons for participation in a criminal organization (12 negative ratings). As above mentioned (Sect. 4.6.1), Bulgaria, Czech Republic, Luxembourg, Slovakia have no legal persons liability and therefore do not comply with the Framework Decision (2008/841/JHA) requirements. This issue is currently debated by national legislators and probably will be implemented in compliance with other international legal instruments (such as the OECD Convention on Combating Bribery of Foreign Public Officials or the Palermo Convention). Moreover, six EU Member States do not seem to provide for liability of legal persons for crimes made possible by a lack of supervision or control by a person having a leading position within the legal person (Belgium, Estonia, France, Latvia, Malta, Slovenia). Overall, negative ratings in the indicators related to liability of legal persons are 18. If the negative ratings relating to the liability of legal persons are excluded from the analysis (along with Denmark and Sweden and the optional standards, as mentioned above) the total number of negative ratings drops to 27 (10% of the considered assessments) (Map 5.19). In this perspective, the Czech Republic joins

160

5 Assessing Approximation: The Vertical Analysis

Map 5.19 Number of approximation indicators not complying with the Framework Decision (2008/841/JHA) requirements (no optional standards, no requirements concerning liability of legal persons) Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

Finland, Poland and Romania in the full compliance with the Framework Decision (2008/841/JHA) requirements. Overall, all EU Member States rate negatively against up to two indicators of approximation. The level of compliance with the Framework Decision (2008/841/JHA) is therefore very high if optional provisions and liability of legal persons are excluded (along with Denmark and Sweden). Lastly, 18 of the 27 remaining negative ratings relates to the provision requiring EU Member States to introduce an aggravating circumstance for crimes punishable with at least 4 years of maximum imprisonment when committed within the framework of a criminal organization. The interpretation of this provision is problematic. Probably, an error of transcription has altered the original meaning of the text (see Sect. 2.2.3.3.). As seen in the horizontal analysis (see Sect. 4.1.2) EU Member States have very different solutions in relation to this issue and only a few of them are in full compliance with the requirement of the Framework Decision (2008/841/JHA). It should be noted that, although the introduction of the aggravating circumstance is a mandatory requirement of the Framework Decision (2008/841/JHA), the fact of committing an offence within the framework of a criminal organization “may be regarded as an aggravating circumstance” (Article 3 para 2 of the Framework Decision (2008/841/

5.8 Conclusions of Chapter 5. Considerations on the Level of Approximation

161

JHA), emphasis added). Therefore the text seems ambiguous in relation to the actual necessity of a specific aggravating offences, opening to an extensive interpretation which would allow to consider broader circumstances (e.g. offence committed by more than two persons) as complying with the Framework Decision (2008/841/JHA). All these remarks make Article 3 para 2 of the Framework Decision (2008/841/JHA) a problematic provision. At the moment it is not possible to establish which interpretation will prevail. In case of a (quite unlikely) strict interpretation, many EU Member States will have to amend their national legislation accordingly, introducing or modifying provisions relating to aggravating circumstances. If the indicator on the aggravating circumstance is excluded from this analysis only 9 negative ratings are left (4% of the remaining assessments). They relate to different indicators of approximation (Map 5.20). The most problematic issue (four negative ratings among EU Member States except Denmark and Sweden) relates to the type of predicate offences that can be committed by a criminal organization. Lithuania, France, Hungary and Slovakia do not seem to comply with the Framework Decision (2008/841/JHA) requirements. These EU Member States do not include in the possible predicate offences of a criminal organization all offences

Map 5.20 Number of approximation indicators not complying with the Framework Decision (2008/841/JHA) requirements (no optional standards, no requirements concerning liability of legal persons, no aggravating circumstance requirement) Source: Author’s elaboration on national criminal legislation, scientific literature and questionnaires

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5 Assessing Approximation: The Vertical Analysis

punishable with at least 4 years of maximum imprisonment. They set a threshold which is higher than the one provided by the Framework Decision (2008/841/JHA) (at least 4 years of maximum imprisonment). Indeed, France, Hungary and Slovenia require that a criminal organization aims at crimes punishable with at least 5 years, while Lithuania requires that a criminal organization commits one or more serious crimes (penalty exceeding 6 years of maximum imprisonment). For the full implementation of the Framework Decision (2008/841/JHA), these countries will have to reduce the threshold in order to comply with the EU requirements. The very last five negative ratings relate to the continuity of the criminal organization (2), the additional requirements (2) and the structure of the criminal organization (1). As explained above, Estonia and Bulgaria explicitly require that the criminal organization is permanent. This approach seems incompatible with the provision of the Framework Decision (2008/841/JHA) whose definition includes criminal groups which are not permanent. If the Framework Decision (2008/841/ JHA) enters into force, these Member States will have to modify the permanent element. In order to comply with the EU requirement, it would be possible to reformulate it and require that the criminal organization has continuous activity without being permanent. Belgium does not comply with the Framework Decision (2008/841/JHA) in the additional requirements indicator. Articles 322 ff. of the Criminal Code on criminal association require that the association aims at threatening persons or properties. This selection does not comply with the quantitative threshold provided by the Framework Decision (2008/841/JHA). Articles 324 ff. on criminal organization require the use of intimidation, threat, violence, “manœuvres frauduleuses” or corruption or the exploitation of enterprises (structures commerciales ou autres) to dissimulate or facilitate the commission of crimes. This requirement may leave out of the domain of the norm groups which do not use such modus operandi. However, it has already been argued that this approach has been deliberately adopted by Belgium in order to limit the application of the broad definition adopted by the international legal instruments on organized crime (see Sect. 4.3.3). Consequently, it does not seem likely that Belgium will easily change this provision (already modified to comply with the Palermo Convention) with the entry into force of the Framework Decision (2008/841/JHA). Nevertheless, it is doubtful that the Belgian criminal law covers any form of active participation in a criminal organization’s criminal activities as requested by the FD (see Sect. 5.1.6). In Latvia, Article 224 of the Criminal Code requires expressly that the group is armed in order to punish the membership/participation in it. Therefore, a group may fall outside of the scope of this offence unless it has this characteristic. In Germany, the requirement that the members of the organization are submitted to the common will of the group jeopardizes the compliance of } 129 of the Criminal Code of Germany with the Framework Decision (2008/841/JHA). In conclusion, the majority of EU Member States complies with most of the provisions set by the Framework Decision (2008/841/JHA). The only relevant exceptions are Denmark and Sweden, where the legal tradition is contrary to the introduction of criminal organization offences (COOs) to tackle criminal organizations. If Denmark and Sweden and the optional provisions of the Framework

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Decision (2008/841/JHA) are excluded, the greatest part of negative ratings (18 of 45) is related to the liability of legal persons. Remarkably, legislation implementing it is already being drafted by the four Member States which do not yet provide it. Moreover, other international legal instruments require these countries to introduce liability of legal persons and probably some of them will adopt new bills in the next months. Another significant amount of negative ratings (18, excluding once more Denmark and Sweden) relates to the requirement of an aggravating circumstance for crimes punished with at least 4 years of maximum imprisonment committed within the framework of a criminal organization. The horizontal analysis has shown that many EU Member States already provide for penalty increases for crimes committed by groups or criminal organizations. However, some countries specifically provide for these circumstance in relation to specific crimes frequently committed by organized groups, while others have similar general aggravating circumstances which are not complying with the Framework Decision (2008/841/ JHA) requirement. The remaining negative ratings (9) relate to the type of predicate offences that can be committed by a criminal organization, to the continuity of the criminal organization and to additional requirements. In the light of these remarks, the added value of the Framework Decision (2008/ 841/JHA) appears questionable. The gap analysis of the Framework Decision (2008/841/JHA) shows that some EU Member States might need to amend some minor issues of national criminal legislations in order to reach full compliance with the Framework Decision (2008/841/JHA). Contrarily, Denmark and Sweden should depart from their criminal law tradition and introduce criminal organization offences (COOs) criminalizing participation in a criminal organization. Overall, the greatest gaps that EU Member States may need to close will likely concern the aggravating circumstance for crimes committed within the framework of a criminal organization. Additionally, Denmark and Sweden should introduce COOs in their criminal legislation. These issues do not seem to justify the adoption of a broad and discussed legal instrument such as the Framework Decision (2008/841/JHA). The changes possibly ignited by the Framework Decision (2008/841/JHA) are not likely to significantly improve the consistency of EU Member States’ organized crime legislation. Significant differences are likely to remain. Probably only minor amendments will occur. In conclusion, the vertical analysis shows a high level of compliance with the requirements of the Framework Decision (2008/841/JHA) at the moment of its entry into force. This may confirm the criticisms about the EU policy on approximation of organized crime legislation and on the finale text of the Framework Decision (2008/841/JHA).

Chapter 6

Conclusions and Implications

This chapter discusses some possibilities for further research, argues some issues in relation to the EU policy on harmonization and approximation of criminal law and concludes resuming the steps and the results of the research.

6.1

Possibilities for Further Research

This book provides a first cross-national analysis of organized crime legislation among EU Member States. It is an exploratory attempt to assess the level of harmonization and approximation among different legal systems. Definitely, this book does not pretend to exhaust the topic. It is possible to identify some opportunities for further research in the field of harmonization and approximation of organized crime legislation. First, the same assessment could be repeated after the implementation of the Framework Decision (2008/841/JHA) into national legislations. According to Article 10 of the Framework Decision (2008/841/JHA), Member States shall implement the Framework Decision (2008/841/JHA) before 11 May 2010. The national measures shall be transmitted to the Council Secretariat and to the Commission. The repetition of the assessment could verify whether any modification in the level of harmonization has happened and the level of approximation to the EU standards has improved. The results of this second assessment would provide interesting information on the evolution of the process of harmonization and on the impact of the Framework Decision (2008/841/JHA) on the level of approximation among EU Member States’ organized crime legislation. Second, the geographic scope of the assessment could be extended beyond the borders of the EU, including non-EU European Countries (e.g. Norway, Switzerland, Croatia, Ukraine, Turkey and Russia) and other countries such as the USA and Canada and Latin American countries. This operation would allow to verify whether EU countries are more harmonized among them than non-EU countries. Indeed this could provide additional information on the impact of EU policies in the field. F. Calderoni, Organized Crime Legislation in the European Union, DOI 10.1007/978-3-642-04331-4_6, # Springer-Verlag Berlin Heidelberg 2010

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Third, the most relevant and complex development may be the study the actual implementation of organized crime legislation. In this perspective, statistical data on the use and application of the criminal organization offences (COOs) could be collected. Moreover, information could be gathered concerning the actual application of the studied legislation (case studies, interviews with prosecutors and law enforcement agencies). Finally, information on penalties and punishment could be collected. This operation could provide additional valuable information on the concept of organized crime and its differential application among EU Member States.

6.2

Considerations on the European Policies on Harmonization and Approximation of Organized Crime Legislation

The horizontal and vertical analysis provide interesting information about the level of harmonization and approximation of organized crime legislation among EU Member States. On the basis of the results of the analysis and the background information provided in the first two chapters it is thus possible to make some conclusive considerations.

6.2.1

Criminal Organization Offences: A Trade-Off Between Effectiveness and Legality?

In general, the adoption of criminal organization offences (COOs) criminalizing the participation in a criminal organization is recognized as an effective approach to organized crime in criminal law. Indeed, these offences allow to prosecute all the members of a criminal association independently from the actual commission of any offences. Therefore COOs perform a strategic function, focusing investigations on the general activities of the criminal organizations and not only on specific predicate offences. The advantages of this approach lie in that it may be easier to prove the participation/membership in a criminal organization rather than the actual participation in the commission of predicate offences. In particular, COOs allow to prosecute the leaders of a criminal group which frequently do not commit crimes directly but perform functions of coordination and decision-making (Joutsen 2002c, 422). However, the advantages of COOs imply that the proof of membership/ participation in a criminal organization remains easier than the one of participation in a predicate offence (Plecas et al. 2001, 6; Picotti 2007, 435). Consequently COOs are frequently drafted in a very broad style. Some of the most general COOs adopted by EU Member States are clear examples of this broadness. Article 416 of the Italian Criminal Code defines a criminal association as “when three or more

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persons associate with the aim to commit offences”. Similarly, } 129 of the Criminal Code of Germany criminalizes the formation or participation in “an organization, the objectives or activity of which are directed towards the commission of crimes”. Further, Article 140 of the Criminal Code of the Netherlands punishes the participation in “an organization that has the objective to commit crimes” (Olger 1998, 451). Indeed, the formulation of COOs is frequently vague and broad. It rarely addresses the specific features of criminal organizations (see Sect. 2.2.4). At the time of their first introduction in continental systems COOs aimed at countering political opposition and therefore their vagueness provided an easy tool to suppress dissent. The evolution of criminal legislation has brought these provisions to contrast with the principle of legality, in particular with its corollaries of clarity and definitiveness (Symeonidou-Kastanidou 2007, 92). The mere act of associating with the aim of committing crimes is too vague to fulfill the requirements of the modern criminal law (Blakesley 1998, 96). Scientific research has raised regularly this issue, in particular within those legal systems where COOs have been more frequently applied and criminal organizations are more widespread. One of the main criticisms is that broad definitions of criminal organizations fail to address the specificity of organized crime, but applies to a greater variety of criminal behaviors (Giudicelli-Delage 2002, 180; Castaldo 2002, 194–195; Council of Europe 2004, 8–9; Levi and Smith 2002, 12; Fornasari 2002, 179). Therefore these offences may apply against minor criminal behaviors and against political opposition, infringing fundamental rights and liberties (Buruma 1997, 921). In order to improve the COOs in relation to the principle of legality, national legal systems have followed mainly two paths: the jurisprudence has developed some criteria to identify the main characteristics of criminal organizations and the legislators have introduced new COOs with more detailed definitions. Examples of the first path are Italy, Germany and Spain, where the courts have specified the main elements of criminal organizations (e.g. division of tasks, informal hierarchy, continuous duration) (Silva Sanchez 2002, 65; Volk 2002, 24–25; Castaldo 2002, 200; Gonza`les et al. 2002, 100; Kinzig 2006, 6; Boldova Pasamar and Rueda Martı´n 2006, 8; Corn 2007, 76–77). In nearly all EU Member States the legislative provisions have been interpreted in order to reduce their vagueness and restrict their possible application. The second path has been followed by a few EU Member States and consisted in the introduction of special COOs or in the refinement of the existing ones. Italy has been the forerunner, with the introduction of Article 416-bis on mafia-type association since 1982. This provision focuses on the metodo mafioso as the key feature for distinguishing these associations from other criminal organizations (see Sect. 4.1.1). This approach has been adopted by other Member States, in particular Austria (} 278a of the Criminal Code), Belgium (Articles 324bis ff. of the Criminal Code), Bulgaria (Article 321 of the Criminal Code), Greece (Article 187 para 1 of the Criminal Code), Estonia (} 255 of the Criminal Code), Latvia (Section 224 of the Criminal Code), Lithuania (Article 249 of the Criminal Code), Luxembourg (Article 324bis of the Criminal Code), Romania (Article 7 ff. of law

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39/2003). In these provisions EU Member States attempted to provide more precise definitions of criminal organization. Some of these countries have introduced such provisions in addition to the traditional (and broader COOs). Some scholars have criticized this choice of criminal policy, since the distinction among the different offences is difficult or inconsistent (Streteanu 2005, 3; Antoniou and Streteanu 2007, 265–266; Traest 2006, 780).1 In other countries (e.g. Italy, Austria, Greece) the distinction between COOs are clearer and the provisions tackle different criminal phenomena. This allows to impose more serious penalties on the most specific offences tackling criminal organizations and enables the use of extended investigative powers (e.g. phone tapping, undercover operations, controlled deliveries, collaborators with justice).2 Common law countries have followed a different path. The introduction of COOs specifically targeting criminal organizations is a more recent process which has started with the first harmonization measures at the EU level. Malta and Ireland have implemented such offences in order to comply with the Joint Action (98/733/JHA) (with laws passed in 2002 and 2006, respectively), while Cyprus did the same with the law ratifying the Palermo Convention in 2003. The United Kingdom has not passed any new legislation yet, but debates on the issue are frequent. This aspect is particularly interesting because all the three existing international legal instruments provided the widely criticized double model offence. This allowed common law countries to comply on the basis of the traditional offence of conspiracy. Moreover, this was a solution expressly adopted upon request (and to obtain the consent) of common law countries (see Sect. 2.2). Thus, notwithstanding this possibility, the majority of common law Member States has adopted new COOs based on the continental/civil law approach. One possible explanation of this choice is related to the specificities of criminal law and procedure in common law countries. In these nations, experts and practitioners have been generally against the introduction of new COOs that would require higher evidential standards to the prosecution – especially compared to the offences of conspiracy – without a proportionate return in terms of higher penalties. As a consequence, all common law countries that have introduced COOs on criminal organizations have maintained the offence of conspiracy. This element must be connected to the wide discretionary powers of the prosecution as to the selection of the offence to apply to a specific case. Therefore, when tackling a criminal group the prosecution can still chose between charging for conspiracy or for the new COO. Given the advantages that conspiracy offences provide for the 1

In this regard, the projects for a new Criminal Code in Romania provide for a single COO, and solve this possible conflict. However, the reform of the Romania Criminal Code has seen different phases and draft codes and it is not possible to state which version will finally enter into force. In June 2009 a new Criminal Code has been approved by the Parliament. According to Article 446 of the new code, the entry into force will be determined by the law for the implementation of the Criminal Code. This law has still to be approved on December 2009. 2 Nevertheless, Weigend (1997, 534) argues that these offences may “lead to problems of proof”.

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prosecution, it seems unlikely that the introduction of new COOs will change much as to the investigation, prosecution and, particularly, the legal concept of organized crime. Unless practice and research in the next years will prove the contrary, it is reasonable to argue that the new legislation appears a rather motionless change in the criminal justice policy of common law countries. The introduction of new COOs in common law countries may the consequence not of technical-legal choices, but rather of political options. One possible reason may be the political will of common law legislators to show toughness against organized crime (just as many other legislators in and outside the EU). On the national scene, this has been enacted through the adoption of new specific legislation. In this context, new COOs are just a piece of more general criminal justice reforms increasing police powers and limiting civil rights and liberties. Organized crime has been used as a picklock for reforms, a role assumed by terrorism since 9/11 (see Sect. 2.2.3). On the international scene, the introduction of new COOs based on the globally prevailing model (the civil law continental one) may have contributed to show the will to cooperate and take international action against the threat of transnational organized crime. In addition to the remarkable differences in the legal tradition and culture of each Member State as to COOs, the practice shows that the frequency of application and the effectiveness of COOs differ significantly among EU Member States. Some countries make extensive use of COOs in contrasting organized crime. Italy is a clear example of this approach. Although some scholars criticize the formulation of Article 416-bis of the Italian Criminal Code, its introduction has dramatically changed the approach to the issue of mafia-type criminal organizations and allowed significant investigative results. Other countries use COOs more rarely or mainly with a procedural aim, since the incrimination for criminal organization enables the use of special investigative techniques otherwise unavailable. Once evidence is gathered on the predicate offences, usually the incrimination for the criminal organization offence is dropped. England and Germany provide two examples of this approach. In England, when the predicate offences of a conspiracy have already been committed, the prosecution is frequently required to choose between the charge of conspiracy or the charge for the predicate offences (Levi and Smith 2002, 16). In Germany } 129 of the Criminal Code on criminal organization is mainly used for investigative purposes (Wenin 2007, 257–258; Lilie 1998, 143–144). Charges for } 129 are frequently brought at the beginning of investigations, but are then dropped. This is reflected by the low number of convictions (Volk 2002, 18). The jurisprudence requirements in relation to the criminal organization make this offence difficult and problematic to prove for the prosecution (Volk 2002, 18; Fornasari 2002, 177–178). Effective prosecution and respects of the principles of criminal law (e.g. legality, proportionality, clarity and precision) are two important factors shaping COOs. Apparently, these two factors may imply a trade-off (Cedras 1998, 366; Blakesley 1998, 77). The possible overcriminalization may appears as the price for effective fight against organized crime. This approach seems superficial. Some EU Member States have managed to introduce sufficiently detailed definitions of criminal

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organizations and such provisions have proved to be effective in countering organized crime. Contrarily, countries where definitions of criminal organization are extremely broad their application raise criticisms in relation to the respect of the principles of criminal law. Additionally, national courts provide interpretative criteria to narrow the application of COOs that finally hinder their purposes (e.g. the case of Germany). Effectiveness and the principle of legality should not be seen as the elements of a trade-off but as two important objectives that COOs must reach. Only COOs sufficiently precise and clear allow to counter organized crime efficiently without conflicting with the principles of legality and the respect for human rights. In this context, the contributions of the existing international instruments aiming at harmonizing organized crime legislation seem problematic if not counterproductive. Excessively broad definitions, the double model offence opening to the maintaining of conspiracy offences in this specific sector and the lack of previous comparative research are all issues already criticized by scientific literature (see Sect. 2.2.4). The international concept of criminal organization still appears to be too strict for common law countries, while it raises opposite criticisms in civil law countries. At the root of the problem seems to lie the lack of a scientifically-based international political will to actually harmonize organized crime legislation. The Framework Decision (2008/841/JHA) is a striking example of this.

6.2.2

The Expected Impact of the Framework Decision (2008/841/JHA): A Further trompe l’œil with Possible Dangerous Consequences

The horizontal analysis of the level of harmonization and the gap analysis in relation to the EU requirements show that the Framework Decision (2008/841/JHA) should not be expected to have a major impact on the national legislation of the EU Member States. Except for Denmark and Sweden, EU Member States already comply with the majority of the requirements and only minor changes seem to be needed in order to reach full compliance with the EU provisions. Consequently, the added value of the Framework Decision (2008/841/JHA) in approximating national legislations in the sector of organized crime appears rather low. As already argued, the Framework Decision (2008/841/JHA) introduces very few innovations compared to the Joint Action (98/733/JHA) and the Palermo Convention. Its added value in comparison to the previous instruments is low. Moreover, the reformatting of the JA into the “new” legal instrument of the framework decision does not appear to be a valid argument justifying per se the Framework Decision (2008/841/JHA) on the grounds that it would be provided with binding force. As mentioned above (see Sect. 1.1.1) the European institution are not empowered to bring EU Member States before the European Court of Justice for failure in the implementation of a framework decision. There is no

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true possibility to force a Member State to implement a framework decision, unless another Member State raises the issue. This seems a remote possibility, since a similar move would be politically inappropriate. Therefore, the Framework Decision (2008/841/JHA) does not represent a significant improvement compared to the JA neither for its content nor for its better enforceability. In the light of these considerations, the criticisms made about the Framework Decision (2008/841/JHA) (see Sect. 2.2.4) are confirmed by the results of the vertical analysis. The vagueness of the Framework Decision (2008/841/JHA) appears to prevent any substantial improvement to the level of approximation of the criminal legislation of EU Member States. Doubts can be raised about the improved enforceability of the Framework Decision (2008/841/JHA), since the Commission cannot bring a Member State before the Court for failure to fulfill its provisions. These considerations strongly support the argument that the current approximation process in the field of organized crime is a superfluous trompe l’œil without any actual improvement of the level of approximation among EU Member States. The entry into force of the Framework Decision (2008/841/JHA) not only is likely to have a low impact on the level of harmonization or approximation among EU, but may imply serious risk of a generalized decrease in the precision and clarity of COOs. The vague and broad concepts fostered by the Framework Decision (2008/841/JHA) (e.g. criminal organization and structured association) and the quantitative selection of the predicate offences are going to force EU Member States providing for particularly detailed and specific provisions tackling organized crime to simplify their legislation. This simplification, driven by international obligations, is likely to result in the extension of the application of COOs – and thus of the debated concept of organized crime – well beyond the most dangerous and complex criminal organizations. National efforts in detailing the typical features of organized crime will be vanished and diluted into a broader – and less clear – concept of criminal organization. For example, the Belgian efforts aiming at describing the modus operandi of criminal organizations (see Article 324ter of the Criminal Code of Belgium relating to the membership in a criminal organization) do not seem to comply with the EU requirements. The reference to the modi operandi is likely to be restricted or modified to comply with the Framework Decision (2008/841/JHA). EU Member States where criminal organizations must plan or commit only serious offences (France, Hungary, Lithuania, Slovakia) will have to reduce the quantitative threshold. This will cause an increase of the scope of COOs. In general, the Framework Decision (2008/841/JHA) will require EU Member States to adopt a broader concept of criminal organization. EU Member States with more precise definitions will have to change their legislation or introduce new – and more generic – offences. This will possibly cause an excess of repression. In particular, such generic provisions will make it possible to label as “organized crime” a variety of situations and behaviors. Probably, these will be very far from the actually dangerous criminal organizations. The Framework Decision (2008/841/JHA) is also likely to have another side effect. It will discourage any effort to provide more precise and specific definitions,

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complying with the principles of criminal law and more in line with human rights standards. EU Member States will probably refrain from any attempt in this direction, fearing to violate the EU obligations in this field. Overall, these considerations support the criticism already made to the Framework Decision (2008/841/JHA) and highlight further critical points of particular importance for the respect of fundamental principles in criminal law.

6.3

Final Conclusions

This book provides an exploratory assessment of the harmonization and the approximation of organized crime legislation among EU Member States. In order to assess national legislations, Chaps. 1 and 2 provide some background information. The first chapter defines the concepts of harmonization and approximation and presents the evolution of the EU policy of harmonization and approximation in the sector of Justice and Home Affairs. At present no scientific assessment has ever been made of the level of harmonization approximation of criminal legislation among EU Member States. Chapter 2 argues the reasons for the selection of the specific sector of organized crime. In particular, the three existing international legal instruments aiming at harmonization and approximation of organized crime legislation are an unmatched international legal corpus. However, the analysis of these measures highlights problems and criticisms about their excessive broadness and actual enforceability. Chapter 3 describes the methodology of the research and discusses the indicators of harmonization and approximation used in the assessment. Chapter 4 assesses the level of harmonization (horizontal analysis) highlighting the similarities and differences of the legal approaches to organized crime among EU Member States. Chapter 5 assesses the level of approximation (vertical analysis) evaluating the compliance of EU Member States national legislation with the requirements set by the Framework Decision (2008/841/JHA) (gap analysis). This book achieves three results. The first result relates to the creation and testing of a methodology for assessing harmonization and approximation of criminal legislation among EU Member States. This is a preliminary result. The methodology may be used to assess other sectors of the EU policy in the criminal law sector. This may provide scientific evaluation of the effectiveness, impact and enforceability of EU policies. The second result is the assessment of harmonization among EU Member States in the sector of organized crime. The assessment highlights remarkable inconsistencies among EU Member States. The national legislations contrast in several important points of organized crime legislation. In part, this is due to different legal traditions. However, the broadness and scarce effectiveness of international efforts aiming at harmonization of organized crime legislation does not improve this situation.

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The third result is the assessment of approximation among EU Member States, i.e. the compliance of EU Member States legislation with the requirements set by the Framework Decision (2008/841/JHA). The FD has entered into force on 11 November 2008. Therefore the assessment of the current level of compliance of national legislation with the Framework Decision (2008/841/JHA) requirements provides a timely gap analysis. The results of this assessment show that most EU Member States already comply with the EU requirements. Therefore, the FD is likely to have a low impact on the national legislations with no relevant improvement as to the level of approximation. These results support the numerous criticisms about the broadness and ineffectiveness of international legal instruments aiming at harmonization and approximation of criminal legislation, in particular in the EU. In the light of these remarks, it is reasonable to call the European institutions and the EU Member States to reconsider the criminal law policies on organized crime, to avoid that the goal of an effective prosecution of organized crime is pursued at the cost of human rights and civil liberties.

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Index

A Advocaten voor de Wereld case, 15 Approximation assessment of, 6, 20–46, 48, 51, 54, 123–163, 165, 172 definition, 1, 4–6, 18, 20, 48, 123–134 functions of, 7–10, 17, 20 in the sector of organized crime, 21–26, 45, 46, 54, 103, 170, 172 in the TEU, 4–5, 8, 16, 18–19, 24 led by external events, support for mutual recognition, 17–18 Association de malfaiteurs, 29, 58, 80

C Collaborators with justice, immunity for, 96, 142 Common will among members of a group, 162 Compromise, in FD (2008/841/JHA), 43 Conspiracy in civil law systems, 116 in FD (2008/841/JHA), 37, 43, 136 in the Palermo Convention, 34, 36, 37, 43 Continuity continuous duration, 74, 119 of organized crime, 42, 74–77, 118–120, 131–133, 162, 163 potentially permanent duration, 77 Corpus Juris, 13 Criminal organization offence, 29, 35, 51, 52, 55–59, 63–65, 68, 73, 80, 87, 114–117, 119, 120, 124, 126, 127, 130,

131, 135–138, 142, 144, 146, 148, 150, 152, 155, 157, 158, 162, 163, 165–170 armed, 88, 93, 133 corruption, 83, 88, 162 enterprise, 87, 88, 162 functions of, 55–56, 64 general, 51, 52, 56, 58, 84, 115, 117 intimidation, threat or violence, 87, 162 penalties for founders/leaders, 92, 95 special, 51, 52, 58, 73, 117, 167

D Democratic deficit, 10, 11 Division of tasks, 71, 72, 118, 167 Double criminality, 31, 39, 120

E Effectiveness, of national legislation against organized crime, 3, 4, 6, 53, 166–170 Enterprise, of organized crime, 42, 87, 88, 162 Environmental crimes case, 11 EU competence in criminal law, 11 European Arrest Warrant, pre-harmonization of offences, 26

F Framework decision, adoption of, 10–15, 19, 44, 106

187

188

Framework Decision of 13 June 2002 on combating terrorism, 19, 36 Framework Decision on the Fight against Organised Crime (2008/841/JHA); Commission’s proposal, 39, 43, 60

G Gap analysis, 43 in relation to FD (2008/841/JHA); 24, 46, 163, 170, 172

Index

of the European Union, 21, 22, 27–35 Jurisdiction active personality, 111, 113, 153, 155 in the Joint Action (98/733/JHA), 31, 32, 35, 41, 110 passive personality, 40, 114 territorial, 35, 40, 111, 152–153

L

Hague Programme, the, 14, 44 Harmonization assessment of, 3, 4, 18, 20–23, 25, 45–48, 51, 52, 54–121, 172 definition, 1–4, 20, 48 functions of; 7–10, 15, 17 in law context, 2 in natural language, 2 support for mutual recognition, 7, 14, 16–18, 20 Horizontal analysis, 19, 20, 23, 24, 46, 48, 51, 53, 55–121, 163, 170, 172

Lack of research on harmonization and approximation, 1, 19, 21, 22 Legal persons closure of establishments, 110 disqualification, 109 exclusion from benefits and procurement, 110, 120 judicial supervision, 110 not present in some EU Member States, 53 winding-up, 110 Legality principle, 25 clarity and precision, 41 Liability of legal persons, in the Joint Action (98/733/JHA), 31, 103

I

M

Immunity, of organized crime, 42, 53, 96 Indicators of approximation, 48–52, 123, 125, 127, 129, 131, 135, 138, 139, 142, 144, 145, 147, 149, 152, 153, 156–162 of harmonization, 48, 49, 51, 52, 55, 56, 59, 60, 64, 65, 68, 71, 74, 77, 80, 84, 88, 89, 92, 96, 99, 102, 103, 106, 110, 114, 117–120 Informal hierarchy, 72, 167 International legal instruments on organized crime, 21, 22, 24, 26, 40–42, 46, 52, 56, 68, 71, 74, 77, 83, 84, 89, 106, 121, 135, 162

Methodology, possible problems, 52–54 Metodo mafioso, 83, 87, 167 Minimum level of organization, 71, 129 Model offences in FD (2008/841/JHA), 37, 38, 43, 44, 116, 170 in the Joint Action (98/733/JHA), 27, 29, 30, 33, 35–38, 43 in the Palermo Convention, 33–38, 43 Mutual recognition, as reaction to excess of harmonization/approximation, 16 Mutual trust, 14, 17, 20, 119

H

J Joint Action on making it a criminal offence to participate in a criminal organization in the Member States

O Organized crime characteristics, 28, 45, 77, 92, 103, 162, 167 legal definitions, 2, 21, 23, 28, 41, 42 profit, 84, 87

Index

189

Organized crime law civil law approach, 44, 115, 116, 121 common law approach, 115 reasons for assessment, 21–54 Scandinavian approach, 115 theoretical prevailing model, 117, 118

Ship-source pollution case, 11 Statement by the Commission, France and Italy on FD (2008/841/JHA), 44 Stockholm Programme, 15 Structured association, in FD (2008/841/ JHA), 37, 41, 45, 71, 78, 129, 171

P

T

Palermo Convention (United Nations Convention against Transnational Organized Crime), 23, 32 Participation in a criminal organization, 27, 29–31, 34, 35, 37–40, 44, 56, 60, 65, 68, 71, 74, 77, 80, 84, 87–90, 92, 95, 96, 99, 102, 103, 106, 110, 111, 114, 115, 120, 124, 126, 127, 130, 131, 135–138, 142–146, 148, 150, 152, 153, 155, 156, 159, 162, 163, 166 Participation in an organized criminal group, in the Palermo Convention, 33, 36, 89 Penalties, in FD (2008/841/JHA), 38, 39, 45, 89, 99, 123, 137–141, 147–151, 162, 163 Predicate offences, definition, 39, 125–129

Tampere European Council, 14, 17 Treaty establishing a Constitution for Europe, 11 Treaty establishing the European Community, 2, 5, 11, 13, 30 Treaty of Amsterdam; 7, 8, 12, 13, 24, 36, 121 Treaty of Lisbon, 11, 12, 14 Treaty on European Union, 2, 4, 5, 7, 8, 10, 11, 13, 15, 16, 18, 24, 44 Treaty on the functioning of the European Union, 11, 12 Trompe l’œil, 18–20, 24, 45, 170, 171

Q Qualitative selection, 83, 119 Quantitative threshold four years, 28, 37, 80, 126 in FD (2008/841/JHA), 37, 127, 128, 140, 162, 171 in the Palermo Convention, 37, 41, 162 three years, 117

S Safe havens for criminals, preventing the creation of, 22, 53

U United Nations Convention against Transnational Organized Crime, 21, 23, 27, 32 as a “cooperation toolbox”, 32

V Vertical analysis, 19, 20, 24, 46–48, 51, 123–163, 166, 171 Violence, of organized crime, 42, 84, 87, 162

W War on terrorism, 35