Organised crime is often associated with the operation of a mafia. However, it is a misconception, as this phenomenon is much more common than one might think. Below we explain what organised crime is, when it occurs and which criminal offences it may be linked to.
Relationship between organised crime and other offences
Under the Criminal Code, participation in organised crime is defined as a separate offence. However, in our view, it should be considered in conjunction with other crimes, defined both in the Criminal Code and the Fiscal Penal Code. Organised crime is often linked to such crimes as:
- cybercrime (computer-related fraud);
- corruption (bribery, trading in influence);
- VAT fraud;
- money laundering;
- credit fraud;
- insurance fraud;
- forgery (counterfeiting of money).
When does organised crime occur?
Organised crime occurs if one acts in a group or an organisation aimed at committing a criminal offence or a criminal fiscal offence. The mere fact of being a member of an organised criminal group constitutes a crime, even if one is not personally involved in committing any specific offences.
Criminal group
According to legal scholars and case law, an organised criminal group consists of at least three persons. However, this does not incline that all members of such group will be convicted (it may be the case – for example – for just one of them). In principle, a criminal group has a fixed organisational structure and consciously pursues its aim of committing at least one criminal offence. However, a view has also been expressed in case law that such group does not need to have an internal structure.
Criminal organisation
A criminal organisation is characterised by a more organised structure than a criminal group. In its rulings, the Supreme Court has recognised the following key characteristics of a criminal organisation:
- existence of permanent organisational forms;
- existence of management;
- discipline of its members.
Organised crime and sentencing
Participation in an organised criminal group or a criminal organisation is punishable by imprisonment of 3 months to 5 years.
Armed nature of a criminal group
In the light of the Supreme Court’s rulings, a criminal group is considered armed if it is permanently equipped with weapons that it uses or intends to use in the pursuit of its activities and that it collects for that purpose.
Participation in organised crime of an armed nature is punishable by imprisonment of 6 months to 8 years. A person founding or leading an armed organised criminal group faces imprisonment of one to 10 years.
Avoidance of punishment
A person participating in an organised criminal group or a criminal organisation may avoid punishment. For that to happen, such person must:
- voluntarily withdraw from the group and disclose all the relevant circumstances of the crime to law enforcement authorities, or
- effectively and fully abandon an attempt to commit an offence or prevent an offence from being committed by a third party.
The voluntary nature of the offender’s action must result from his or her independent decision. However, the motivation behind such action is not relevant and does not affect the offender’s ability to avoid criminal liability.
All relevant circumstances of the crime are understood as the circumstances that will allow law enforcement authorities to prosecute the offenders involved in organised crime. They may include information on the composition of the group and the details of its members, its organisational structure and resources (e.g. whether it owns any weapons), the crimes committed and planned by the group, as well as the group’s links with other criminal organisations.
Summary
Organised crime has been defined in the Criminal Code and is often related to other offences or fiscal offences. It only requires three people to form a criminal group, therefore many offences (e.g. VAT fraud) also constitute an offence of participating in an organised criminal group. It means that the penalties imposed for such offences are higher than when the offenders act alone.
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