The Use of Conspiracy as an Instrument to Fight OC

UNODC

The two elements of the definition of OC

• FirstFirst– Active participation in the organized group– Other activities that contribute to the criminal

objectives of an OC group and with knowledge that participation will contribute to the aim of the organized criminal group

• Second (CONSPIRACY)Second (CONSPIRACY)– Agreement between 2 or more people

to commit serious crimes – With the aim of obtaining financial or other material

benefit

Conspiracy:Basic facts about the concept.

• It was developed in the Common Law system.

• It comes from a 13th century institution. • It is derivates from judicial precedence.• The agreement to commit a Crime is

considered as a Crime by itself.

DEFINITION OF O.C.

Country As conspiracy Active participation in crime group

Other forms of participation

Austria X X X

Colombia \ X X

Croatia X X X

Czech Republic X X X

France [1] X X

Germany X X X

Hungary X X

Italy X X

Mexico[2] \ X X

Aiding or abetting (see convention)[1] Active participation in a group refers to drug offences only.[2] ‘Conspiracy’ is included in the organized crime law.

Netherlands X X X

Poland X X X

Romania X X X

Russia X X

South Africa X X X

Spain[1] X X X

Switzerland X X

United Kingdom X X X

United States X X X

Venezuela [2] X X X

[1] The term ‘Conspiracy’ can be applied only to those offences involving terrorism or drugs [2] While the Venezuelan Criminal Code includes membership and participation in a criminal group as an offence this is not as sophisticated as the descriptions provided by the RICO Act in the US.

Argentina• The penal code establihes a distinction between

the instigation to commit a crime and the illicit associations

• The instigation to commit a crime: the one that publicly instigates to commit a crime determined against a person or institution. (art. 209)

• The illicit associations: the one that part in an association or band will take from three or more people destined to commit crimes by the single fact of being member of the association. (art. 210)

Chile

• Art.8 of the penal code defines and regulates the conspiracy adding the figure of the proposal to commit a crime or simple crime.

• The conspiracy exists when two or more people are agreed for the execution of a crime.

• The proposal verifies when the one that has solved to commit a crime or simple crime, proposes its execution to another or other people. crime.

• Therefore conspiracy ELN the national legislation has a typical treatment. The participation of at least two people is required (plurality of active subjects) and that agrees the accomplishment of a crime or simple crime.

France• France has a specific definition for conspiracy

(complot) and the criminal conspiracy (association de malfaiteurs)

• Conspiracy is formed by the resolution adopted between several people to make an attack when this resolution is concretized by one or more material acts.( art. 412-2 of the French penal code).

• Criminal conspiracy is defined as any formed grouping or agreement established for the preparation, characterized by one or more material facts, of one or more crimes, or one or more ten years punished offences of imprisonment.( art.450-1)

Italy

• The Italian organized crime law does a distinction between conspiracy and participation.

• Conspiracy: In Italy, the mere agreement to commit a crime is

not a crime.

The criminal(s) may be punished only after an attempt of the crime is carried out.

According to the article 115 c.p.

• Generally if two or three people have agreed to commit a crime and don’t commit it, nobody of them is punishable.

• In this case, however, the judge can order MEASURES OF SECURITY ( it is not considered as a penalty)

But…

• Only in special case explicitily provided by the law, the mere agreement can be punished

This is the case of the agreement between the briber and the bribe

Associative Crimes

• The Italian criminal system consists of several types of organized criminal activity

• Types of Associative crimes: - Associative crimes against State ( here , we can

find organized terrorist criminal groups) - all the other Associative crimes

4 MAIN KINDS OF CRIMINAL ASSOCIATION

Art. 416 C.P. and Art. 416 BIS C.P.: the promotion, the direction and every kind of participation of a organized group, whose purpose is committing crimes.

Art. 74 D.P.R. 309/90: the creation, promotion, direction , and every form, shape and kind of participation to a criminal group organized to reach the aim of drug trafficking is heavily punished

Art. 291 quarter L. 43/73: a specific criminal disposition about cigarettes smuggling.

Mafia-type association law (law n. 646/1982)

According to this law, it is a crime:According to this law, it is a crime:

To be part of a Mafia-type association composed To be part of a Mafia-type association composed by 3 or more personsby 3 or more persons

To be a promoter, leader, or organizer To be a promoter, leader, or organizer

Mexico

• In 1996, a law against organized crime was elaborated in Mexico.

• There is organized crime when 3 or more people decide or they are organized in repeated or permanent form having like aim or result the commission of crimes

Spain

• A distinction must be done between the conspiracy, the proposal and the provocation to break the law (art. 17 and 18 of the Spanish penal code)

• The conspiracy exists when 2 or more people are agree for the execution of a crime and solve to execute it.

Illicit Associations (art. 515)

1º) Those that intend to commit some crime or, after constituted, promote their commission.

 2º) Armed bands, terrorist organizations or groups.

3º) Those that, even intending an allowed aim, use violent means or alteration or control of the personality for its attainment.

 

4º) The organizations of paramilitary character

  5º) Those that promote the discrimination, hatred or the violence against people, groups or associations because of their ideology, religion or beliefs, the property of their members or some of them to an ethnic group, race or nation, its sex, sexual direction, familiar situation, disease or handicapped, or urge it.

6º) Those which promote the illegal smuggling of people.

The United States legislation on organized crime is composed by different instruments.

According to the general text, there is conspiracy if two or more persons conspire any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

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United States

In the Texas Penal code, the criminal conspiracy is defined in this terms :

(A) A person commits criminal conspiracy if, with intent that a felony be committed:

(1) He agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense; and

(2) He or one or more of them performs an overt act in pursuance of the agreement

(B) An agreement constituting a conspiracy may be inferred from acts of the parties.

(C) It is no defense to prosecution for criminal conspiracy that:

(1) One or more of the coconspirators is not criminally responsible for the object offense;

(2) One or more of the coconspirators has been acquitted, so long as two or more coconspirators have not been acquitted;

(3) One or more of the coconspirators has not been prosecuted or convicted, has been convicted of a different offense, or is immune from prosecution;

(4) the actor belongs to a class of persons that by definition of the object offense is legally incapable of committing the object offense in an individual capacity; or

(5) the object offense was actually committed.

 

(D) An offense under this section is one category lower than the most serious felony that is the object of the conspiracy, and if the most serious felony that is the object of the conspiracy is a state jail felony, the offense is a Class A misdemeanor.

According to the Mississippi penal code, if 2 or more persons conspire either:

- To commit a crime; or - Falsely and maliciously to indict another for a

crime, or to procure to be complained of or arrested for a crime; or

- Falsely to institute or maintain an action or suit of any kind; or

- To cheat and defraud another out of property by any means which are in themselves criminal, or which, if executed, would amount to a cheat, or to obtain money or any other property or thing by false pretense; or

- To prevent another from exercising a lawful trade or calling, or doing any other lawful act, by force, threats, intimidation, or by interfering or threatening to interfere with tools, implements, or property belonging to or used by another, or with the use of employment thereof; or

- To commit any act injurious to the public health, to public morals, trade or commerce, or for the perversion or obstruction of justice, or of the due administration of the laws; or

- To overthrow or violate the laws of this state through force, violence, threats, intimidation, or otherwise; or     

- To accomplish any unlawful purpose, or a lawful purpose by any unlawful means; such persons, and each of them, shall be guilty of a felony and upon conviction may be punished by a fine of not more than $5,000.00 or by imprisonment for not more than 5 years, or by both.