Fight against organised crime: offences linked to participation in a criminal organisation
Council Framework Decision 2008/841/JHA on the fight against organised crime
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.
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.
DOCUMENTS
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)
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)
Freezing and confiscation of proceeds of crime
Directive 2014/42/EU on the freezing and confiscation of instrumentalities and proceeds of crime in the EU
It aims to make it easier for national authorities to confiscate and recover the proceeds* and instrumentalities* from crime in the EU.
KEY POINTS
It sets out minimum rules for freezing and subsequently confiscating the proceeds and instrumentalities of crime.
The criminal offences concerned are those in various EU laws listed in Article 3 of the Directive.
In addition to the confiscation (following a criminal conviction) of proceeds and instrumentalities, or to the confiscation of their value, Article 4 allows the confiscation of the proceeds of crime and instrumentalities in cases of the flight or illness of the person concerned (when it is impossible for the suspect or accused person to attend the criminal proceedings for a longer period of time, meaning that the proceedings cannot continue under normal conditions and a criminal conviction is not possible).
Article 5 sets out clearer rules on extended powers of confiscation, thus making confiscation easier when a judge is satisfied that the property in question has been obtained through other criminal activities by the convicted person.
Article 6 of the Directive enables confiscation where property has been transferred from the suspect to a third party, or directly acquired by a third party, who should have realised that it is a result of crime.
Under Article 10, EU countries must adequately manage frozen assets (for example by setting up Asset Management Offices), so that they do not lose economic value before they are eventually confiscated.
Ireland is taking part in the directive while the United Kingdom (1) and Denmark are not.
The directive entered into force on 19 May 2014. EU countries have to incorporate it into national law by 4 October 2016.
ACT
Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union (OJ L 127, 29.4.2014, pp. 39-50)
Successive amendments to Directive 2014/42/EU have been incorporated in the original text. This consolidated version is of documentary value only.
Freezing and confiscation of assets
Regulation (EU) 2018/1805 — mutual recognition of freezing orders and confiscation orders
It aims to facilitate the cross-border recovery of criminal assets and to lead to more efficient freezing and confiscation of funds from illicit origin in the EU.
The regulation forms part of the action plan developed by the European Commission to strengthen the fight against terrorist financing. It contributes to completing the security union by ensuring that criminals are deprived of their assets.
Scope
This regulation sets out the rules under which an EU country recognises and executes in its territory freezing orders* and confiscation orders* issued by another EU country in the context of proceedings in criminal matters.
Features
The regulation has the following key features.
The resolution of issues linked to the implementation of existing legal instruments by establishing a single regulation — covering both freezing orders and confiscation orders — that is directly applicable in the EU.
The general principle of mutual recognition, meaning that all judicial decisions in criminal matters taken in one EU country will normally be directly recognised and enforced by another EU country. There are only a limited number of reasons for non-recognition and non-execution.
Standard certificates and procedures to allow for quicker and more efficient freezing and confiscation actions.
A deadline of 45 days for the recognition of a confiscation order and, in urgent cases, a deadline of 48 hours for the recognition and 48 hours for the execution of freezing orders. Limits can be postponed under strict conditions.
Provisions to ensure that victims’ rights to compensation and restitution are respected in cross-border cases.
It will apply from 19 December 2020.
BACKGROUND
The regulation adds to legislation already in place on police and judicial cooperation on criminal matters within the EU, including:
the freezing and confiscation of instrumentalities and proceeds of crime,
the European investigation order directive,
the right to access a lawyer,
the right to information in a criminal proceeding,
the right to translation and interpretation in a criminal proceeding,
legal aid, and
the presumption of innocence.
KEY TERMS
Freezing order: a decision issued or validated by an issuing authority in order to prevent the destruction, transformation, removal, transfer or disposal of property which the authority wished to confiscate.
Confiscation order: a final penalty or measure, imposed by a court following proceedings in relation to a criminal offence, resulting in the final removal of property from a person or company.
Organised crime: common framework for liaison officers
The purpose of this Decision is to create a common framework for liaison officers seconded from the Member States with the aim of improving cooperation in preventing and combating all forms of international crime.
ACT
Council Decision 2003/170/JHA of 27 February 2003 on the
Common use of liaison officers posted abroad by the law enforcement agencies
[See amending acts].
On the basis of the experience gained as a result of Joint Action 96/602/JHA and in the light of the provisions of the Treaty of Amsterdam, the purpose of the Decision is to strengthen cooperation on the posting of liaison officers to third countries and international organisations in order to combat serious forms of cross-border crime more effectively.
“Liaison officer” means a representative of one of the Member States, posted abroad by a law enforcement agency to one or more third countries or to international organisations to establish and maintain contacts with the authorities in those countries or organisations with a view to preventing or investigating criminal offences. “Europol liaison officers” are employees seconded from Europol to enhance cooperation between third countries or organisations and Europol and to help combat serious forms of international crime.
The Member States must ensure that Member States’ liaison officers posted to the same third country or international organisation:
meet regularly to exchange useful information;
work together to improve relations with the host country;
share tasks among themselves, where appropriate;
look after the interests of one or more other Member States, if this has been agreed by the Member States concerned;
participate in joint seminars on crime trends.
Any Member State which does not have a liaison officer in a third country may approach another Member State which does.
Each year, the Member States must notify the General Secretariat of the Council of the following:
the posting of liaison officers to a third country or organisation, including their responsibilities;
the national contact points that they must designate in order to facilitate implementation of this Decision.
The General Secretariat draws up an annual summary concerning the seconded liaison officers of the Member States and Europol, their duties and any cooperative agreements concluded on the posting of officers.
Europol liaison officers provide Europol with information relating to serious threats of criminal offences to Member States. Such information is communicated to the competent national authorities.
Joint Action 96/602/JHA and Article 47(4) of the Convention on the application of the Schengen Agreement are repealed.
Act
Decision 2003/170/JHA
Decision 2006/560/JHA