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Criminal association

 

While conspiracy is the main legal tool for addressing criminal enterprises in common law countries, most civil law countries prefer the legal concept of punishing participation in a criminal association (or organization or group). This is called the offence of criminal association - i.e., association de malfaiteurs, since the model of such criminal provisions are Articles 265-268 of the Criminal Code of France of 1810 (Calderoni, 2010). Participation of the accused in a criminal organization is the offence, rather than an agreement between members of the organization or planning a crime with others, which is the focus of conspiracy. For both conspiracy and criminal association, the participation in the group, or planning of the crime, is a separate offence from any ultimate crimes that are carried out.

Intention to take part in the criminal group and knowledge of the aim

Like conspiracy, there is variation among nations in the scope of their criminal association laws, although in every case the participation in the criminal group is the central element, rather than a specific agreement to commit a crime. The elements of the offence of criminal association require that the accused had intention to take part in the criminal group or its activities with knowledge of at least the group's general aims.

If the participation relates to other, non-criminal activities of the organized criminal group, the accused must have known that such participation will contribute to achieving the criminal aim. This may include persons who commit a criminal offence in pursuit of the aims of, or on behalf of, the organized criminal group, but also persons who operate legitimate front operations in support of an organized criminal group or who provide services, such as bookkeeping, knowing that such conduct contributes to the achievement of the criminal aims of the group. Therefore, association with a group that has a criminal objective results in criminal responsibility. Table 2 summarizes important elements of criminal association, although some differences exist among national laws.

Table 2: Elements of criminal association in the Organized Crime Convention
Organized Crime Convention Physical elements
( actus reus)
Mental elements
( mens rea)
Article 5, para. 1(a)(ii)a Through an act or omission, take an active part in criminal activities of the organized criminal group. The act or omission is intentional and undertaken with knowledge of the criminal nature of the group, or of its criminal activities or objectives.
Article 5, para. 1(a)(ii)b Through an act or omission, take an active part in other (non-criminal) activities of the organized criminal group. The act or omission is intentional and undertaken with knowledge that participation will contribute to the achievement of the criminal aim.
Source: United Nations Office on Drugs and Crime. (2012). Model Legislative Provisions against Organized Crime. Vienna: UNODC.

The offences for participation in a criminal association in civil law jurisdictions perform an analogous function of the conspiracy offences in common law jurisdictions. In recent years, some countries of both legal traditions have introduced both conspiracy and criminal association laws as a method to deal with organized criminal groups, as analysed in more detail below. Many have restricted their use to certain kinds of serious offences (Calderoni, 2012; Hauck and Peterke, 2016; Sergi, 2014).

 

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