- Legal definitions of organized crimes
- Criminal association
- Definitions in the Organized Crime Convention
- Criminal organizations and enterprise laws
- Enabling offence: obstruction of justice
Published in April 2018
Regional Perspective: Eastern and Southern Africa - added in April 2020
This module is a resource for lecturers
Excerpts of legislation
An example of the enterprise model: United States of America
USC: Title 18 - Crimes and Criminal Procedure
Part I: §1962 - §1963
§ 1962 - Prohibited activities
(a) It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity or through collection of an unlawful debt in which such person has participated as a principal within the meaning of section 2, title 18, United States Code, to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce. A purchase of securities on the open market for purposes of investment, and without the intention of controlling or participating in the control of the issuer, or of assisting another to do so, shall not be unlawful under this subsection if the securities of the issuer held by the purchaser, the members of his immediate family, and his or their accomplices in any pattern or racketeering activity or the collection of an unlawful debt after such purchase do not amount in the aggregate to one percent of the outstanding securities of any one class, and do not confer, either in law or in fact, the power to elect one or more directors of the issuer.
(b) It shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.
(c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.
(d) It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section.
USC: Title 18 - Crimes and Criminal Procedure
§ 2 - Principals
(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.
§ 3 - Accessory after the fact
Whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact. Except as otherwise expressly provided by any Act of Congress, an accessory after the fact shall be imprisoned not more than one-half the maximum term of imprisonment or (notwithstanding section 3571) fined not more than one-half the maximum fine prescribed for the punishment of the principal, or both; or if the principal is punishable by life imprisonment or death, the accessory shall be imprisoned not more than 15 years.
Chapter 19 - Conspiracy
§ 371 - Conspiracy to commit offense or to defraud United States
If two or more persons conspire either to commit 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 act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.
If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanour only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanour.
§ 372 - Conspiracy to impede or injure officer
If two or more persons in any State, Territory, Possession, or District conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof, or to induce by like means any officer of the United States to leave the place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties, each of such persons shall be fined under this title or imprisoned not more than six years, or both.
§ 373 - Solicitation to commit a crime of violence
(a) Whoever, with intent that another person engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force against property or against the person of another in violation of the laws of the United States, and under circumstances strongly corroborative of that intent, solicits, commands, induces, or otherwise endeavours to persuade such other person to engage in such conduct, shall be imprisoned not more than one-half the maximum term of imprisonment or (notwithstanding section 3571) fined not more than one-half of the maximum fine prescribed for the punishment of the crime solicited, or both; or if the crime solicited is punishable by life imprisonment or death, shall be imprisoned for not more than twenty years.
(b) It is an affirmative defence to a prosecution under this section that, under circumstances manifesting a voluntary and complete renunciation of his criminal intent, the defendant prevented the commission of the crime solicited. A renunciation is not "voluntary and complete" if it is motivated in whole or in part by a decision to postpone the commission of the crime until another time or to substitute another victim or another but similar objective. If the defendant raises the affirmative defence at trial, the defendant has the burden of proving the defence by a preponderance of the evidence.
(c) It is not a defence to a prosecution under this section that the person solicited could not be convicted of the crime because he lacked the state of mind required for its commission, because he was incompetent or irresponsible, or because he is immune from prosecution or is not subject to prosecution.
Source: Office of the Law Revision Counsel
An example of the common law offence of conspiracy: Ireland, Criminal Justice Act 2006
71. Offence of conspiracy
(1) Subject to subsections (2) and (3), a person who conspires, whether in the State or elsewhere, with one or more persons to do an act -
(a) in the State that constitutes a serious offence, or
(b) in a place outside the State that constitutes a serious offence under the law of that place and which would, if done in the State, constitute a serious offence, is guilty of an offence irrespective of whether such act actually takes place or not.
(2) Subsection (1) applies to a conspiracy committed outside the State if -
(a) the offence, the subject of the conspiracy, was committed, or was intended to be committed, in the State or against a citizen of Ireland,
(b) the conspiracy is committed on board an Irish ship,
(c) the conspiracy is committed on an aircraft registered in the State, or
(d) the conspiracy is committed by an Irish citizen or a stateless person habitually resident in the State.
(3) Subsection (1) shall also apply to a conspiracy committed outside the State in circumstances other than those referred to in subsection (2), but in that case the Director of Public Prosecutions may not take, or consent to the taking of, proceedings for an offence under subsection (1) except in accordance with section 74(3).
(4) A person charged with an offence under this section is liable to be indicted, tried and punished as a principal offender.
(5) A stateless person who has his or her principal residence in the State for the 12 months immediately preceding the commission of a conspiracy is, for the purposes of subsection (2), considered to be habitually resident in the State on the date of the commission of the conspiracy.
72. Organised crime
(1) A person who, for the purpose of enhancing the ability of a criminal organisation to commit or facilitate -
(a) a serious offence in the State, or
(b) in a place outside the State, a serious offence under the law of that place where the act constituting the offence would, if done in the State, constitute a serious offence, knowingly, by act -
(i) in a case to which paragraph (a) applies, whether done in or outside the State, and
(ii) in a case to which paragraph (b) applies, done in the State, on board an Irish ship or on an aircraft registered in the State, participates in or contributes to any activity of the organisation is guilty of an offence.
(2) In proceedings for an offence under subsection (1), it shall not be necessary for the prosecution to prove that -
(a) the criminal organisation concerned actually committed a serious offence in the State or a serious offence under the law of a place outside the State where the act constituting the offence would, if done in the State, constitute a serious offence, as the case may be,
(b) the participation or contribution of the person concerned actually enhanced the ability of the criminal organisation concerned to commit or facilitate the offence concerned, or
(c) the person concerned knew the specific nature of any offence that may have been committed or facilitated by the criminal organisation concerned.
(3) In determining whether a person participates in or contributes to any activity of a criminal organisation, the court may consider, inter alia, whether the person -
(a) uses a name, word, symbol or other representation that identifies, or is associated with, the organisation, or
(b) receives any benefit from the organisation.
(4) For the purposes of this section, facilitation of an offence does not require knowledge of a particular offence the commission of which is facilitated, or that an offence actually be committed.
(5) A person guilty of an offence under this section shall be liable on conviction on indictment to a fine or imprisonment for a term not exceeding 5 years or both.
73. Commission of offence for criminal organisation
(1) A person who commits a serious offence for the benefit of, at the direction of, or in association with, a criminal organisation is guilty of an offence.
(2) In proceedings for an offence under subsection (1), it shall not be necessary for the prosecution to prove that the person concerned knew any of the persons who constitute the criminal organisation concerned.
(3) A person guilty of an offence under this section shall be liable on conviction on indictment to a fine or imprisonment for a term not exceeding 10 years or both.
Source: SHERLOC Database of Legislation
An example of criminalizing the participation in a criminal organization: Italy, Penal Code
Article 416 (Unlawful association to commit a crime)
When three or more persons associate in order to commit several criminal offences, those promoting or setting up or organizing such association shall be liable, for this sole offence, to imprisonment for 3 to 7 years.
For the sole fact of participating in the association, the punishment shall be imprisonment for 1 to 5 years.
Those directing the association shall be liable to the same punishments as those promoting it.
If the participants in the association carry out armed raids of the country or of the public roads, the punishment shall be imprisonment for 5 to 15 years.
The punishment shall be increased if the association includes ten or more persons.
Whenever the organization is aimed to commit any of the crimes referred to in articles 600, 601 and 602, and article 12, paragraph 3-bis of the provisions on the regulation of immigration and the status of foreigners, set forth in the legislative decree 25 July 1998 n. 286, imprisonment from five to fifteen years in the cases provided for in the first paragraph, and from four to nine years in the cases provided for in the second paragraph shall be applied.
Whenever the organization is aimed to commit any of the crimes referred to in articles 600-bis, 600-ter, 600-quater, 600-quater.1, 600-quinquies, 609-bis, when the crime is committed against a minor under eighteen years, 609-quater, 609-quinquies, 609-octies, when the crime is committed against a minor of eighteen years, and 609-undecies, the imprisonment from four to eight years, in cases foreseen in the first paragraph, and imprisonment from two to six years, in cases provided for in the second paragraph, shall be applied.
Article 416bis (Mafia-type unlawful association)
Any person participating in a Mafia-type unlawful association including three or more persons shall be liable to imprisonment for 7 to 12 years.
Those persons promoting, directing or organizing the said association shall be liable, for this sole offence, to imprisonment for 9 to 14 years.
Mafia-type unlawful association is said to exist when the participants take advantage of the intimidating power of the association and of the resulting conditions of submission and silence to commit criminal offences, to manage or at all events control, either directly or indirectly, economic activities, concessions, authorizations, public contracts and services, or to obtain unlawful profits or advantages for themselves or for others, or with a view to prevent or limit the freedom to vote, or to get votes for themselves or for others on the occasion of an election.
Should the association be of the armed type, the punishment shall be imprisonment for 9 to 15 years pursuant to paragraph 1 and imprisonment for 12 to 24 years pursuant to paragraph 2.
An association is said to be of the armed type when the participants have firearms or explosives at their disposal, even if hidden or deposited elsewhere, to achieve the objectives of the said association.
If the economic activities of which the participants in the said association aim at achieving or maintaining the control are funded, totally or partially, by the price, the products or the proceeds of criminal offences, the punishments referred to in the above paragraphs shall be increased by one-third to one-half.
The offender shall always be liable to confiscation of the things that were used or meant to be used to commit the offence and of the things that represent the price, the product or the proceeds of such offence or the use thereof.
The provisions of this article shall also apply to the Camorra, 'ndrangheta and to any other associations, whatever their local titles, even foreigners, seeking to achieve objectives that correspond to those of Mafia-type unlawful association by taking advantage of the intimidating power of the association.
Source: SHERLOC Database of Legislation
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