Explanatory Memorandum to COM(2005)6 - Fight against organised crime - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2005)6 - Fight against organised crime. |
|---|---|
| source | COM(2005)6  |
| date | 19-01-2005 |
The European Union has taken the lead in the fight against organised crime since the Treaty of Amsterdam and the Amsterdam European Council of 16 and 17 June 1997, which adopted the first action plan to combat organised crime.
In 1998, the Council adopted a Joint Action on participation in a criminal organisation i. However, it is now necessary to provide the Union with a more powerful and ambitious instrument to approximate more closely Member States’ criminal legislation and improve cooperation in order to combat organised crime more effectively, inter alia by harmonising the minimum thresholds of criminal penalties.
The European Council, meeting in Vienna in December 1998, already called for the Union to strengthen EU action against organised crime in the light of the new possibilities opened up by the Amsterdam Treaty.
Point 6 of the Tampere European Council conclusions of 15 and 16 October 1999 states: “People have the right to expect the Union to address the threat to their freedom and legal rights posed by serious crime. To counter these threats a common effort is needed to prevent and fight crime and criminal organisations throughout the Union.” Point 40 adds: “The European Council is deeply committed to reinforcing the fight against serious organised and transnational crime.”
In addition, the European Union strategy for the prevention and control of organised crime for the beginning of the new millennium states that organised criminal activity is dynamic by nature. It need not be confined to rigid structures. It has shown itself to have the capacity to be entrepreneurial, business-like and highly flexible in responding to changing market forces and situations. Organised criminal groups are generally not confined by national borders. They often form partnerships within and outside the territory of the European Union, either with individuals or with other networks for the commission of one-off or multiple offences. These groups appear to be increasingly involved now in the licit as well as the illicit market, using non-criminal business specialists and structures to assist them in their criminal activities. Moreover, they are taking advantage of the free movement of capital, goods, persons and services across the European Union. As a result of the increased sophistication of many organised criminal groups, they are able to utilise legal loopholes and differences between Member States, exploiting the anomalies in the various systems. Although the threat from organised crime groups outside the territory of the European Union appears to be increasing, it is the groups which originate in and operate throughout Europe, composed predominantly of EU nationals and residents, that appear to pose the significantly greater threat. These groups are strengthening their international criminal contacts and targeting the social and business structure of European society, for example through money laundering, drug trafficking and economic crime. They appear to be able to operate easily and effectively both within the European area and elsewhere in the world, responding to illegal demand by acquiring and supplying commodities and services ranging from drugs and arms to stolen vehicles and money laundering. Their concerted efforts to influence and hamper the work of law enforcement and the judicial system illustrate the extent and professional capability of these criminal organisations. This situation requires an energetic and coordinated response by all the Member States.
Lastly, in its Communication of 29 March 2004 on measures to be taken to combat terrorism and other forms of serious crime i, the Commission considered that the facilities available for combating crime in the EU should be reinforced. It stated that it would draw up a framework decision to replace Joint Action 98/733/JHA which should in particular:
- harmonise effectively the definition of offences and penalties as regards individuals and legal persons;
- provide for a specific offence of “directing a criminal organisation";
- where necessary, determine specific aggravating circumstances (commission of an offence in association with a criminal organisation) and mitigating circumstances (reduced penalties available for those who assist the police with their inquiries);
- include provisions to facilitate cooperation between judicial authorities and coordinate their activities.
Reformatting the Joint Action on membership of a criminal organisation into a framework decision will make it possible to take a similar approach to criminal groups, whether they are terrorist organisations or organised crime.
The new text also takes account of parameters that have changed since 1998:
- the Treaty of Amsterdam, which succeeded the Maastricht Treaty, introduced new types of legal instruments, more effective than the “joint action”; the framework decision is now the proper instrument for approximating criminal law in the Union in this area;
- the United Nations Convention against Transnational Organised Crime, known as the 'Palermo Convention' i, now provides an international framework which details the offences connected with participation in an organised criminal group; the Convention was approved by the European Community on 21 May 2004;
- Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism i is a reference point which must be taken into account; it defines a 'terrorist group' on the basis of the definition of 'criminal organisation' in Joint Action 1998/733/JHA, but it is a more comprehensive instrument i.
Contents
- Article 1 (Definitions)
- Article 2 (Offences relating to participation in a criminal organisation)
- Article 3 (Penalties)
- Article 4 (Special circumstances)
- Article 5 (Liability of legal persons)
- Article 6 (Penalties for legal persons)
- Article 7 (Jurisdiction and coordination of prosecutions)
- Article 8 (Protection of and assistance to victims)
- Article 9 (Repeal of existing provisions)
- Article 10 (Implementation and reports)
The first paragraph of Article 1 partly takes over the definition of 'criminal organisation' from the first paragraph of Article 1 of Joint Action 98/733/JHA.
It 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 by a more serious penalty.
As specified in the United Nations Convention against Organised Transnational Crime, the objective of the organisation is to obtain financial or other material benefits. The idea that the offence of participating in an organised criminal group assumes that the aim is to commit a 'serious offence' is maintained. The criterion selected, as in the Joint Action, is that of an offence punishable by deprivation of liberty for a period of at least four years or by a more serious penalty.
This method is judged preferable to drawing up a list of specific offences. The four-year threshold also corresponds to the one used by the United Nations Convention against Organised Transnational Crime. Likewise, the objective of the organisation, which is to obtain financial or other material benefits, corresponds to the criteria of the UN Convention.
Under Article 2(b) of that Convention, “serious offence” means “conduct constituting an offence punishable by a maximum deprivation of liberty of at least four years or a more serious penalty”.
For the rest, it has not been felt useful to take over in this Framework Decision the second paragraph of Article 1 of the Joint Action relating to offences for which Europol is competent, since the prison sentence threshold also applies to these offences. It seems necessary to maintain this threshold. Abandoning this condition and retaining all the offences referred to in the Europol Convention would considerably enlarge the concept of criminal organisation at the risk of reducing its scope. The concept of criminal organisation must remain connected to the concept of serious offence. This is in perfect accordance with the UN Convention against Transnational Organised Crime.
On the other hand, the text takes over the definition of structured association from Article 2 of Framework Decision 2002/475/JHA. A “structured association” is an association that is not formed on an ad hoc basis for the immediate commission of an offence.
Article 2 imposes on the Member States an obligation to define offences consisting of the various forms of participation in a criminal organisation.
It creates offences of certain forms of participation not expressly provided for by Joint Action 98/733/JHA nearly all of which appear, in an identical or similar formulation, in the United Nations Convention against Transnational Organised Crime.
Each Member State will have to take the necessary measures to ensure that directing a criminal organisation is made a punishable offence. Each Member State must also define as an offence conduct by any person who, with intent, actively takes part in the organisation's criminal activities or in other activities of the organisation, 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.
Article 3 concerns penalties. It aims to create an effective approximation of penal legislation within the Union.
Unlike the Joint Action, which only required the Member States to provide for effective, proportional and dissuasive criminal penalties, it is now necessary to go further and set minimum thresholds for prison sentences, to reflect the degree of participation in the criminal organisation.
Paragraph 1 sets the minimum penalty incurred for offences connected with participation in a criminal organisation in accordance with the “minimum maximum” method used hitherto in framework decisions. For directing a criminal organisation, the maximum term of imprisonment may not be less than ten years. For other offences, the maximum term of imprisonment may not be less than five years.
Paragraph 2 provides for more severe penalties for certain offences committed within an organised criminalstructure.
It is designed to cover acts actually consisting of the commission of offences rather than various other acts such as creating or directing the organisation, recruitment, material or financial assistance. The aim is to provide for more severe penalties for serious offences where they are committed in the context of a structured association acting in concert. It highlights the particularly dangerous nature of offences committed in such circumstances.
Hence provision is made for Member States to take the necessary measures to ensure that the offences referred to in Article 1, where they involve participation in a criminal organisation, incur longer terms of imprisonment than are provided for by national law for such offences when committed outside the framework of a criminal organisation, except where the penalties are already the maximum terms provided for by national law (paragraph 1).
This is a type of aggravating circumstance which consists of taking into account in sentencing for a serious offence the specific risk of individuals acting in a mafia-type or other criminal organisation.
Such an approach is also present in Framework Decision 2002/475/JHA on combating terrorism but, in the case of terrorism, the penalty is increased for a given list of offences whereas, in the present case, the aggravating circumstance applies to all offences where the term of imprisonment incurred is at least four years.
Article 4, which takes into account the Council Resolution of 20 December 1996 on individuals who cooperate with the judicial process in the fight against organised crime, refers to mitigating circumstances when the perpetrator of an offence gives up his criminal activities and provides the administrative or judicial authorities with useful information.
The text takes over Article 6 of Framework Decision 2002/475/JHA, which introduces measures to strengthen cooperation with the law enforcement authorities as provided by Article 26 of the United Nations Convention against Transnational Organised Crime.
In addition, Recommendation 25 of the European Union strategy for the beginning of the new millennium for the prevention and the control of organised crime (2000/C124/01) calls for the preparation of an instrument relating to persons who participate or who have participated in criminal organisations, and who are prepared to cooperate with the judicial process by supplying information useful for investigative and evidentiary purposes or by providing information that may contribute to depriving criminal organisations of their resources or of the proceeds of crime. The proposal should consider the possibility, in appropriate cases, of mitigating punishment of an accused person who provides substantial cooperation in such cases.
In accordance with the approach followed by a number of legal instruments adopted by the EU to combat various forms of crime, situations where legal persons are involved in organised crime should also be covered. To this end, Recommendation 9 of the European Union strategy for the beginning of the new millennium for the prevention and the control of organised crime states that the Commission is invited to prepare a proposal for an instrument on the criminal, civil or administrative liability of legal persons where the legal person has been involved in organised crime.
Article 5 accordingly contains provisions making it possible for legal persons to be held liable for the offences or conduct referred to in Article 2, where the offences are committed or the conduct effected on their behalf by any person, acting either individually, or as a member of an organ of the legal person, who exercises de facto or de jure managerial authority. The term liability should be construed so as to include either criminal or civil liability.
In addition, according to standard practice, paragraph 2 provides that a legal person can also be held liable when the lack of supervision or control by a person in a position to exercise control, has rendered possible the commission of the offences for its benefit. Paragraph 3 indicates that legal proceedings against a legal person do not preclude parallel legal proceedings against a natural person.
This Article takes over Article 7 of Framework Decision 2002/475/JHA and not Article 3 of Joint Action 98/733/JHA in order to base the rules for the liability of legal persons on the most recent instrument and to align with the text relating to the fight against terrorism.
Penalties must be provided where legal persons are held liable for the offences or conduct referred to in Article 2. It requires effective, proportionate and dissuasive penalties, where the minimum obligation is to impose criminal or non-criminal fines.
Other penalties that typically could apply to legal persons are also indicated.
This Article is taken over from Article 8 of Framework Decision 2002/475/JHA and not Article 3 of Joint Action 98/733/JHA, for the same reasons as the previous Article.
This is a new Article in relation to Joint Action 98/733/JHA. It takes over certain principles from Framework Decision 2002/475/JHA.
Without regulating all aspects of jurisdiction, the text nevertheless envisages a minimum rule whereby each Member State would ensure that its jurisdiction covers at least the cases in which any of the offences referred to in Article 2 was committed in whole or in part in its territory, irrespective of where the criminal organisation is based or pursues its criminal activities.
If several Member States have jurisdiction, they must cooperate and consult each other to coordinate their action and decide which Member State will prosecute the alleged offenders. To this end, they shall, if necessary, have recourse to the services of Eurojust.
Sequential account shall be taken of the following factors:
- the Member State in whose territory the acts were committed;
- the Member State of which the offender is a national or resident;
- the Member State of origin of the victims;
- the Member State in whose territory the offender was found.
The European Union attaches particular importance to protecting and assisting victims. A Framework Decision was adopted by the Council on 15 March 2001 on the standing of victims in criminal proceedings. In addition, the Commission has prepared a Green Paper concerning compensation to victims of crime.
In cases involving organised crime, and in particular trafficking in human beings, provision must be made to ensure that a complaint or statement by the victim is not necessary for initiating prosecution. There are many cases where victims are afraid of reprisals by mafia-type organisations against themselves or their families.
This Article reflects Article 25 of the United Nations Convention against Transnational Organised Crime, relating to assistance to and protection of victims, and Articles 6 to 8 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children.
This Article is taken over from Article 10 of Framework Decision 2002/475/JHA.
This Article repeals Joint Action 98/733/JHA, which is replaced by this Framework Decision, and makes consequential changes to the reference to that Joint Action in measures based on the Union and EC Treaties. Participation in a criminal organisation within the meaning of this Framework Decision replaces references in measures adopted pursuant to Title VI of the Treaty on European Union to participation in a criminal organisation within the meaning of the Joint Action.
Article 10 concerns the implementation and follow-up of this Framework Decision. Paragraph 1 sets the date by which the Member States must take the measures necessary to comply with it.
Paragraph 2 requires the Member States to transmit by that date to the General Secretariat of the Council and to the Commission the text of the provisions transposing the obligations imposed on them under this Framework Decision into national law. On this basis, the Commission is then to report to Parliament and the Council on the implementation of the Framework Decision. Lastly, the Council must assess whether Member States have taken the measures necessary to comply with it.
Article 11 (entry into force)