FECL 52 (December 1997):
The proposal to make participation in a criminal organisation an offence in all EU-member states was first made in an "Action Plan for the Fight against Organised Crime". This was drawn up by a High Level Group of police experts created by the EU-Council at Dublin in December 1996 (see FECL No.51: "High Level Group presents 'Action Plan' against organised crime"). The Action Plan was approved by the member states' governments at the Amsterdam EU Summit in June. As early as July, a K.4 subgroup had drawn up a first draft Joint Action.
The following overview and analysis is based on a more recent confidential draft, from October, that was made available to your editor in French only. Therefore, our translations into English of some of the terms used in the French document may not be identical with the official English wording.
An introductory statement to the draft Joint Action stresses the need to strengthen cooperation between the EU-member states to fight against organised crime, "in particular" regarding serious forms of crime such as drug trafficking, smuggling of immigrants, money laundering, as well as "other acts of violence" threatening a person's life, physical integrity or freedom, or "creating a collective danger for persons".
Article 1 §1, section one of the draft defines "criminal organisation" as follows:
"A structured organisation of more than two persons, established in time and acting in concert with a view to commit crimes or offences punishable by deprivation of liberty or a detention of a maximum of four years at least, by using, notably, intimidation, threat, violence, fraudulent practice or corruption".
The following section appears to significantly extend the crimes and offences aimed at in the first section to include all forms of crimes under the remit of Europol or listed in the annex to the Europol Convention, provided the offences concerned are punishable by at least four years of imprisonment.
According to Article 1 §2 a criminal organisation also exists, whenever the purpose of the organisation is to commit crimes and offences as a means to "obtain material benefits" or to "influence improperly the operation of public authorities".
According to Article 2, each member state "commits itself to see to it" that one or both of the following behaviours be punishable:
1. The behaviour of any person who intentionally and in knowledge of the purpose and the general criminal activity of the organisation - or of its intention to commit the offences concerned, participates actively in the activities of a criminal organisation, even when this person does not participate in actually carrying out the offences concerned, and even when the offences concerned are not actually committed. Also a person who participates in "other activities of the organisation" [i.e. lawful activities!] shall be punishable provided his knowledge of the fact that his "active participation" contributes in a "significant way" to the realisation of the purposes and the general criminal activity of the organisation.
2. The behaviour of any person consisting in having concluded an agreement with one or more persons with a view to engage in an activity, if implementing the agreement would amount to committing a crime or offence, even when the person does not participate in actually carrying out the above activity.
Member states may choose to make one or both of the above two behaviours an offence under their national law and shall mutually assist each other to the largest possible extent in dealing with the offences concerned.
Article 3 states that legal persons shall be punishable too.
According to Article 4, each member state shall make sure that persons who have shown the behaviours described in Article 2.1 or 2.2, on its territory, can be tried regardless of the place where the organisation is based or carries on its criminal activities, or the place where the "activity" described in Article 2.2 is taking place.
According to Luxembourg's Minister of Justice, Marc Fischbach, the JHA-Ministers came "very close to an agreement" on the draft Joint Action at their meeting of 4-5 December in Brussels. Indeed, Ministers do not appear to disagree on fundamental aspects of the draft. Spain is opposed to limiting the crimes defining a criminal organisation to merely offences punishable by at least four years imprisonment and maintains that the limit should be 12 months instead ( as stated in the EU Convention on Extradition, signed in 1996).
Belgium wished to limit the offence to organisations using intimidation, threats, violence, fraudulent practice or corruption; but this request was not approved. Regarding the extension of the offence of "participation" to people who in the context of their professional activities (lawyers, accountants...) act intentionally, and are aware that their participation contributes to the "general activities" of a criminal organisation, Denmark proposed to add "in a significant way"; but, Spain considers this too restrictive.
Sources: Projet d'Action Commune relative à l'incrimination de la participation à une organisation criminelle dans les Etats membres de l'Union Européenne (non-dated, no reference number); Agence Europe, 5.12.97; see also: 'Crime of opinion in Portugal - The trial of Natercia Campos', case study examining the use of §288 Portuguese Penal Code on "criminal associations", C.E.D.R.I., 1989.
No matter the final outcome of this round of squabbling, the vagueness of some of the key definitions in the draft Joint Action will remain, and thus the risk of opinions and mere intentions becoming punishable offences throughout the European Union.
The intention with the Joint Action may be a good one - to clamp down on the Mafia and other criminal organisations operating on an international level, and to fight against terrorists and their logistic support networks throughout Europe. But the definitions of the criminal behaviours the Joint Action aims against are vague and ambiguous. The wording of the whole draft is involved, as often, when the EU-member states with their very differing legal cultures try to "harmonise" or "approximate" their national laws.
The result of this sort of "approximation" - often obtained through political horse trading and compromising - is all too often legislation marked by an appalling lack of precision, and therefore open to interpretation. Precisely because of their vagueness such texts tend to suit the politicians - the Justice ministers from the various member states who are under constant pressure to demonstrate unity in strengthening European cooperation in the fight against crime. The more vague a text, the less ministers will hesitate to approve it. At home they will adapt their interpretation of its content in such away that it suits their legal-political agenda, while at the same time appearing compatible with the national legal culture.
From a constitutional point of view, however, vague legislation is bad legislation, as it undermines the certainty of law and fosters arbitrariness.
The ongoing negotiations on the draft Joint Action on participation in a criminal organisation once again highlight this problem. A considerable number of EU-member states have so far refrained from making membership or other forms of participation in a criminal organisation a punishable offence under their criminal law. A general reticence against making this type of behaviour an offence is grounded on the concern that this could undermine the rights of the defence and lead to people being sentenced on "guilt by association" grounds, and for their intentions rather then for their acts.
Sweden is one of the countries where the JHA Council's plans to make participation in a criminal organisation an offence in all member states began to draw some concern among the very restricted circle of MPs, jurists and journalists who had a chance to read the draft Joint Action. But, officials from the Ministry of Justice soon succeeded in reassuring the public by contending that the planned Joint Action would not require any change of the Swedish criminal law (in which the offence of participation in a criminal organisation does not exist). According to the Government, the criminal behaviours aimed at by the Joint Action are already punishable in Sweden as "instigation" of a crime or as "conspiracy".
Comforting as it might sound to Swedish ears, this ministerial interpretation for home use of the Joint Action does not stand up to scrutiny. First of all, instigation of a crime is already a classical offence under the criminal law of all EU-member states. Consequently, there would be no need to decide a Joint Action by which all member states commit themselves to see to it that an already punishable behaviour becomes a punishable behaviour...
As a matter of fact, there is a fundamental difference between the offences of "instigation of a crime" and "participation in a criminal organisation".
The term Instigation applies to a person inciting a perpetrator to commit a specific crime - both the instigator and the perpetrator must act with premeditation. Thus, a direct and causal relation must be established between a specific criminal act, the person carrying it out and the instigator who wants the crime concerned to be committed. Moreover, the specific criminal act concerned must actually have been committed, or at least attempted. A person merely approving of, or contributing in some way or another to "general criminal activities or purposes", cannot be prosecuted for instigation. But, the wording of the draft's Article 2.1 and 2.2, involved as it is, strongly suggests that he can be charged with "participation in a criminal organisation".
This is actually the very purpose with making participation an offence. Interestingly, in a number of countries, e.g. Germany, the Netherlands and Portugal, provisions to this respect were originally introduced with a view to clamp down on radical political groups and their assumed supporters and sympathisers.
The danger with these provisions lies with the abstract character of the targeted criminal behaviours. "Criminal (or terrorist) association" articles (such as the notorious §129a in the German penal code or §288 in Portugal) are not aimed at specific crimes (e.g. homicide, bomb attacks, kidnapping, car-theft, immigrant smuggling...) but at the assumed members and supporters of "associations" having as an objective the exercise of crimes. The punishable offence lies, therefore, in a general intention without any need to establish a direct link between an individual defendant and a specific crime.
Here lies the danger: how can one legitimately establish the existence of criminal or terrorist intentions which, according to jurisdiction in some member states, can be expressed merely in the "approval of violence"?
According to a constitutional approach to law, there cannot be crime without the established existence of both of the following elements: criminal intent and the actual carrying out of a criminal act, or at least the (in some way materialised) attempt. In the case of specific crimes, such as homicide, this rule is easy to apply. The intention alone of killing your mother in law is not punishable as long as it is not accompanied by at least an attempt. Death brought about without intent to kill does not constitute murder.
Things become more complicated in the case of crimes where the intention is in itself the punishable offence, as with articles covering "criminal organisations". Proving the existence of a "criminal thought", when no direct, causal link between an individual and a specific concrete criminal act can be established, is no easy task. To nevertheless try to do so almost automatically involves indulging in speculations and malevolent interpretations as regards the accused person's knowledge of an "organisation's" activities, and the extent of his involvement. This leaves the door open to the arbitrary.
It lies in the nature of things that "criminal organisations" seldom have statutes or formal membership. Instead, we are mostly dealing with informal associations of people. Moreover, criminal associations may overlap with perfectly lawful organisations recruiting their members in the same social or political environment or scene. This makes it difficult to establish not only the very existence of such an "organisation", but also a person's "membership" or "participation" - in particular, when the person concerned has not himself engaged in any specific criminal activity.
At which point in time has a specific criminal organisation begun to exist. From what moment on and from what degree of knowledge, approval and support can a person be considered a member? And last but not least, how can a person terminate his membership in a criminal organisation... when formal membership does not exist?
Obviously, clear answers to the above questions would make it impossible to sentence people who have not been implicated in the preparation or carrying out of specific criminal acts.
Jurisdiction in Germany, Portugal and Spain shows that the judiciary has found ways to circumvent the problem by replacing the precise definition and proof of a defendant's alleged criminal behaviour by another criterion: that of the willingness (or refusal) of the defendant to cooperate with his prosecutors. The "repenting witness" or "grass" (defendant turned state witness) who, through his true or (often) false statements, contributes to the conviction of his co-defendants, thereby provides proof of his innocence or at least of his active repentance. The defendant, who remains silent because he cannot, or does not want to, incriminate others, demonstrates his "approval" of the criminal or terrorist organisation concerned. He will thus be found guilty, the lack of evidence being replaced by his evident lack of cooperation.
In practice, the use of this scheme has lead to dangerous criminals, convicted of serious crimes, being set free on the grounds of their cooperation with justice Their co-defendants, not found guilty of crime other than participation in a criminal organisation, are often sentenced to long imprisonment in their stead.
The adoption of the draft Joint Action by the JHA-Council would entail the risk of the above jurisdiction, inspired by Inquisition (rather than constitutional principles) quickly spreading over the whole of Europe.