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Fight against organised crime: offences linked to participation in a criminal organisation

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Fight against organised crime: offences linked to participation in a criminal organisation

 

SUMMARY OF:

Council Framework Decision 2008/841/JHA on the fight against organised crime

WHAT IS THE AIM OF THE FRAMEWORK DECISION?

It criminalises offences linked to participation in a criminal organisation.

It seeks to harmonise European Union (EU) countries’ laws on the criminalisation of these offences and lays down penalties for them.

Offences

There are 2 types of conduct, of which EU countries must recognise at least 1 as an offence:

  • 1.

    active participation in an organisation’s criminal activities, with the knowledge of its aim or of its intention to commit crimes;

  • 2.

    an agreement on the perpetration of crimes without necessarily taking part in committing them.

Penalties

EU countries must lay down penalties corresponding to the offences mentioned above.

  • For the first option, the requirement is at least 2 years’ imprisonment for the maximum level of penalty.
  • For the second option, the requirement is at least 2 years’ imprisonment for the maximum level of penalty or a maximum term of imprisonment equivalent to that of the planned activities.

Penalties may be reduced in specific circumstances, such as the offender renouncing the criminal activity or assisting by identifying and bringing to justice other offenders.

On the basis of the framework decision, EU countries must introduce rules that aim to hold legal persons (such as companies) liable for the offences when they are committed on their behalf by a person with a leading role in the legal person.

The penalties for legal persons must be effective, proportionate and dissuasive. They should include fines but may also include the following:

  • ending the right to public aid;
  • temporarily or permanently prohibiting commercial activities and the establishments used for the offences;
  • placing under judicial supervision;
  • judicial winding up or liquidation of a business.

Jurisdiction and coordination of prosecution

An EU country’s jurisdiction must extend to the offences when they are committed, in whole or in part, by a national or on behalf of a legal person that is set up in the country’s territory.

If the offence falls within the jurisdiction of several countries, the latter must collaborate, for example via Eurojust, to decide on the prosecuting EU country and to centralise the proceedings.

Special account must be taken of:

  • where the offence was carried out;
  • the nationality or place of residence of the offender;
  • the country of origin of the victim; and
  • the territory where the offender was found.

FROM WHEN DOES THE FRAMEWORK DECISION APPLY?

Framework Decision 2008/841/JHA has applied since 11 November 2008.

BACKGROUND

Since the 1990s, the EU has taken steps to make the fight against organised crime more effective.

  • 1997: the EU adopts its first action plan to combat organised crime.
  • 1998: the EU adopts Joint Action 98/733/JHA on participation in a criminal organisation.
  • 2000: the United Nations General Assembly adopts the UN Convention against Transnational Organised Crime, the first global legal instrument for combating transnational organised crime, which entered into force in 2003.
  • 2002: the EU adopts Framework Decision 2002/475/JHA on combating terrorism (defines a ‘terrorist group’ on the basis of the definition of ‘criminal organisation’ in Joint Action 1998/733/JHA).
  • 2004: the European Commission communication recognises a need to improve measures used to combat organised crime; by means of Council Decision 2004/579/EC, the EU accedes to the UN convention;
  • 2008: the EU adopts Framework Decision 2008/841/JHA repealing and replacing Joint Action 98/733/JHA.

MAIN DOCUMENT

Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime (OJ L 300, 11.11.2008, pp. 42-45)

RELATED DOCUMENTS

United Nations Convention against Transnational Organised Crime and the protocols thereto

Council Decision 2004/579/EC of 29 April 2004 on the conclusion, on behalf of the European Community, of the United Nations Convention Against Transnational Organised Crime (OJ L 261, 6.8.2004, p. 69)

last update 19.12.2016

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