UNODC

The two elements of the definition of OC

• First
– 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)
– Agreement between 2 or more people
to commit serious crimes
– With the aim of obtaining financial or other material
benefit
• 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.
Country As conspiracy Active Other forms
participati of X X X
on in participation
Netherlands
crime • Poland X X X
group
X X X X X X
Austria Romania
\ X X X X
Colombia Russia
X X X
Croatia X X X
South Africa
X X X
Czech Republic X X X
Spain[1]
X X
France [1] X X
Switzerland
X X X
Germany
X X X
Hungary X X United Kingdom
X X X
United States
X X
Italy X X X
Venezuela [2]
X X
Mexico[2] \
[1] The term ‘Conspiracy’ can be applied only to those offences involving
terrorism or drugs
[2] While the Venezuelan Criminal Code includes membership and
• Aiding or abetting (see convention) participation in a criminal group as an offence this is not as sophisticated
[1] Active participation in a group refers to drug offences only. as the descriptions provided by the RICO Act in the US.
[2] ‘Conspiracy’ is included in the organized crime law.
• 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)
• 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 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)
• 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.
• 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
• 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.
According to this law, it is a crime:

n To be part of a Mafia-type association composed

by 3 or more persons
n To be a promoter, leader, or organizer
• 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
• 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.
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.
.
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.