7 Organised crime
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6582/05
COM(05) 6
| Draft Council Framework Decision on the fight against organised crime
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| Legal base | Articles 29, 31(1)(e) and 34(2)(b) EU; consultation; unanimity
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| Document originated | 19 January 2005
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| Deposited in Parliament | 28 January 2005
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| Department | Home Office |
| Basis of consideration | EM of 16 March 2005
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| Previous Committee Report | None; but see (25536)8200/04: HC42-xxi (2003-04), para 7 (26 May 2004)
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background
7.1 Organised crime has long been the subject of cooperation at
EU and international level. In 1998 the Council adopted a Joint
Action on participation in a criminal organisation (1998/733/JHA[16]),
and the United Nations has adopted a Convention against Transnational
Organised Crime in 2000, which has now entered into force having
received the required 40 ratifications.[17]
7.2 The 1998 Joint Action defines a "criminal
organisation" as a "structured association, established
over a period of time, of more than two persons, acting in concert
with a view to committing offences". Article 2 of the Joint
Action refers to two types of conduct, with Member States having
a right to render either or both criminal. One of such types of
conduct is conduct by a person "who actively takes part"
either in the organisation's criminal activities with intent and
knowledge of either the aim and general criminal activity of the
organisation or its intention to commit offences, or in the organisation's
other activities in the knowledge that his participation "will
contribute to the achievement of the organisation's criminal activities".
The other form of conduct is conduct "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 a criminal
offence, even if the person "does not take part in the actual
execution of the activity".
7.3 We considered on 25 May 2004 a Commission Communication
on measures to be taken to combat terrorism and other serious
crime which, among other things, suggested that the scope of the
Joint Action should be reviewed and expanded and should provide
for a specific offence of "directing a criminal organisation".
We noted the link which the Commission appeared to draw between
terrorism and serious crime, but we agreed with the Minister that
there should be a careful assessment of the links between terrorism
and organised crime in the EU before any new legislation on organised
crime is proposed at EU level.
The draft Framework Decision
7.4 The draft Framework Decision seeks to replace
the provisions of the 1998 Joint Action and to provide for specific
criminal offences of directing, and of active participation in,
a criminal organisation.
7.5 Article 1 of the proposal takes over the definition
of "criminal organisation" from the 1998 Joint Action
(i.e. a structured organisation established over a period of time,
consisting of more than two persons, acting in concert with a
view to committing offences) but with an added definition of "structured
association". This is now defined as an association that
"is not randomly formed for the immediate commission of an
offence" and which "does not need to have formally defined
roles for its members, continuity of its membership or a developed
structure".
7.6 Article 2 prescribes new offences relating to
criminal organisations. Under Article 2(a), Member States are
required to make criminal "the fact of directing a criminal
organisation". Under Article 2(b) Member States are also
required to make criminal "conduct by any person who…
actively takes part in the organisation's criminal activities
… knowing that such participation will contribute to the
achievement of the organisation's criminal activities". The
requisite intent is described as "intent and with knowledge
of either the aim and general activity of the organisation or
its intention to commit the offences in question". The types
of act which amount to active participation include the provision
of "information or material means, the recruitment of new
members" and "all forms of financing of its activities".
The Commission describes Article 2 as creating offences of participation,
"nearly all" of which appear in "an identical or
similar formulation" in the United Nations Convention against
Transnational Organized Crime. However, on closer examination,
there appear to be a number of important differences.
7.7 Article 5(1)(a) of the UN Convention requires
that States Party to the Convention must treat as criminal either
(i) an agreement to commit a serious crime, or (ii) conduct by
a person who, with knowledge of either the aim and general criminal
activity of an organised criminal group or its intention to commit
the relevant crimes, takes an active part in the group's criminal
activities or in its other activities in the knowledge that his
participation will contribute to achievement of the group's criminal
aims. States Party to the UN Convention may make both types of
act criminal, but are not obliged to. States Party may also require
an act in furtherance of the agreement referred to in Article
5(1)(a)(i) as a condition of imposing criminal liability. By contrast,
the draft Framework Decision would require the conduct referred
to in Article 2(b) to be made criminal and there is no provision
for an alternative means of satisfying the requirements of the
Framework Decision by referring to an agreement to commit a serious
crime.
7.8 Article 3 requires Member States to ensure that
the offence of directing a criminal organisation is punishable
by a maximum term of imprisonment of no fewer than ten years,
and that the offence under Article 2(b) is punishable by a term
of at least five years' imprisonment. Member States are also required
to ensure that offences which would carry a sentence of at least
four years' imprisonment "where committed within the framework
of a criminal organisation, incur longer terms of imprisonment"
except where the penalties provided for "are already the
longest terms of imprisonment provided for by national law".
7.9 Article 4 is concerned with mitigating factors
which may lead to a reduction of sentence. Member States are accordingly
required to ensure that penalties may be reduced if the offender
"renounces criminal activity" and provides information
which assists in preventing or mitigating the effects of the offence,
identifying or bringing other offenders to justice, finding evidence,
depriving the criminal organisation of illicit resources or preventing
the commission of further offences of the kind referred to in
Article 2.
7.10 Articles 5 and 6 deal with the liability of,
and penalties for, legal persons. Article 7 requires each Member
State to make rules to assume jurisdiction over offences committed
in whole or in part within its territory, irrespective of the
place where the criminal organisation is based or pursues its
activities. In cases where there is a conflict of jurisdiction,
Member States are required to cooperate, having recourse, if necessary,
to the services of Eurojust. In resolving such conflicts, "sequential
account" is to be taken of the territory in which the offence
was committed, the State of nationality or residence of the offender,
the State of origin of the victims and the State where the offender
was found.
7.11 Article 8 makes provision for the protection
of witnesses. Member States are required to take "all measures
possible" to ensure appropriate assistance for victims' families,
in addition to the requirements of Council Framework Decision
2001/220/JHA on the standing of victims in criminal proceedings.[18]
The remaining provisions (Articles 9 to 11) are concerned with
the repeal of Joint Action 98/733/JHA, implementation and entry
into force.
The Government's view
7.12 In her Explanatory Memorandum of 16 March 2005,
the Parliamentary Under-Secretary of State at the Home Office
(Caroline Flint) indicates that, while there are aspects of the
proposal which are welcomed, such as those relating to the needs
of victims, the Government "will need to look carefully at
the implications for domestic law before forming a view on the
Framework Decision as a whole". The Minister draws particular
attention to Articles 1, 2 and 3.
7.13 The Minister explains that Article 1 seeks to
define a criminal organisation, and that Article 2 requires the
creation of specific offences of directing a criminal organisation
and participation in such an organisation. The Minister points
out that there is currently no criminal offence of participating
in a criminal organisation in the United Kingdom, or of directing
a criminal organisation. The Minister adds that the conduct involved
is tackled in the United Kingdom by such offences as conspiracy
and incitement, and other inchoate offences, and that acceptance
of the proposal in its current form would require further domestic
legislation.
7.14 As regards penalties, the Minister draws attention
to Article 3(2), which require the imposition of longer periods
of imprisonment where the offences referred to in Article 1 are
committed within the framework of a criminal organisation. The
Minister states that the Government believes that this provision
may encroach on sentencing discretion and that it will seek clarification
of the text.
Conclusion
7.15 We note the Government's intention carefully
to examine the implications for domestic law before reaching a
view on the Framework Decision as a whole. We believe the Government's
caution is justified. Unlike the comparable provisions in the
UN Convention against Transnational Organized Crime, the Framework
Decision does not appear to allow for the conduct to be dealt
with by the existing law on inchoate crimes such as conspiracy,
and, to this extent, does not respect the differences between
the traditions and legal systems of the Member States. We see
no useful purpose being served by this departure from the UN Convention
in this regard and we ask the Minister for her comments.
7.16 We also believe the Minister is right to
draw attention to the possibility of an interference with judicial
discretion brought about by the provision made in Article 3(2).
In its natural and ordinary meaning, the provision requires Member
States to ensure that offences committed in the context of criminal
organisations in fact incur longer periods of imprisonment, which
appears to us to interfere with the role of the courts. At the
very least, the provision should be amended to make clear that
the obligation under the Framework Decision is only to provide
for the possibility of increased sentences.
7.17 We shall hold the document under scrutiny
pending the Minister's reply.
16 OJ No. L351 of 29.12.1998, p.1. Back
17
It has been ratified by 15 EU Member States, namely, Austria,
Belgium, Denmark, Estonia, France, Latvia, Lithuania, Malta, the
Netherlands, Poland, Portugal, Slovakia, Slovenia, Spain and Sweden. Back
18
OJ No. L 82 of 22.3.2001, p.1. Back
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