LEGAL RESPONSES TO GLOBAL CRIME THREATS April - May 2018 Ambassador Dr Uglješa Zvekić

ORGANIZED CRIME EXERCISE and Case Study

ORGANIZED CRIME DEFINITIONS

Offence of participating in an organized criminal group (Art.5) Either agreeing to commit a serious crime for financial or material benefit or knowingly taking part in criminal or related activities of an organized criminal group to contribute to criminal aim Options take account of different approaches to conspiracy, association etc. Article 5 takes account of two major variations between national legal systems. While some countries would have chosen to criminalise mere membership in an organised criminal group many countries would have been prevented from doing so by constitutional or other provisions guaranteeing the freedom of association. For this reason, conduct beyond mere membership, such as agreeing to commit crimes or taking active part in group activities, is required. The two alternative options of Art.5(1)(a)(i) and (ii) were created to reflect the fact that some countries have laws criminalising conspiracy to commit crimes, while others do not. The options allow for effective action against organised criminal groups without requiring the creation of conspiracy where the legal concept has not previously existed. Note that while this offence must involve transnationality to invoke the cooperation provisions of the Convention, this should not be made elements of the domestic offence (Art.34(2))

Definition  In simple terms, conspiracy is an offence that is based on an agreement to commit crime, whereas criminal association is an offence for participating in the activities of an organized criminal group. Conspiracy is used in common law countries, such as Canada, Myanmar, Pakistan, Uganda and the US, and criminal association is the principle used in civil law countries, such as Algeria, France, Gabon, Germany, Italy, Romania, Spain, Turkey, and Venezuela. Several countries, such as the UK, have elements of both models concurrently.  

Criminal Association 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. 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

Participation in Organized Crime per UNTOC 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.

CONSPIRACY Conspiracy occurs when two or more persons agree to commit a crime—an essential feature for committing organized crime. One purpose of the conspiracy offence is to extend liability “backwards” by criminalizing the planning (or agreement) stage of a criminal offence. The offence serves to prevent crime and allows criminal justice agencies to interven some time before an offence is actually attempted or completed. The criminalization of conspiracy allows for prosecution of multiple persons. The offence attaches liability to agreements to commit crime, which enables the prosecution of persons who organize and plan crime but do not themselves execute those plans. It is defined as an inchoate crime, or an act engaged in toward the commission of a criminal act.

Physical elements (actus reus) Mental elements (mens rea) Table 2.1 Elements of Conspiracy in the Organized Crime Convention CONSPIRACY per UNTOC Organized Crime Convention Physical elements (actus reus) Mental elements (mens rea) Article 5, para. 1(a)(i) Agreeing with one or more other persons to commit a serious crime (action)   The agreement was entered into intentionally. The agreement was made for a purpose related directly or indirectly to obtaining a financial or other material benefit.

RACKEETIRING not in UNTOC In order to tackle organized crime and, in particular, its infiltration and exertion of corrupt influence over legitimate businesses, the United States introduced the offence of racketeering, Racketeering is a newer kind of law with a similar objective to conspiracy and criminal association, but with a broader scope. It provides for extended penalties for crimes committed as part of an ongoing criminal enterprise. It is sometimes called RICO for the Racketeer Influenced and Corrupt Organizations (RICO) USA.

THREE APPROACHES Figure 2.1. Approaches to Organized Crime: Conspiracy, Criminal Association, Racketeering

CASE STUDY DRUG SMUUGLNG through Baby Loan ORGANIZED CRIME CASE STUDY DRUG SMUUGLNG through Baby Loan

DESCRIPTION Mothers recruited from an impoverished neighbourhood were charged with “renting” their infants to women who would then fly with them on international plane trips. Women couriers made at least 34 smuggling trips to Panama and Jamaica using 20 different infants. The women were given baby formula cans that contained liquid cocaine. It is alleged that smugglers punched holes in the baby formula cans, drained the formula, and then used syringes to fill them with liquid cocaine. In some cases, cocaine also was placed in rum bottles or concealed in suitcase handles. The women with infants would then return to North America with the drugs, which were distributed by others.

ACCUSATION   Among the 35 people charged in this smuggling scheme were the parents who “rented” their babies for short periods in exchange for money. The parents knew little of the smuggling scheme and basically saw their role merely as “loaning” their babies in an effort to get some needed money.

DISCUSSION ISSUES Significant features   Criminal conspiracy vs. criminal association Explain whether and why the parents of the infants should be charged as participants in the drug smuggling conspiracy. How could the elements of conspiracy or criminal association be used to argue for or against the parents’ conviction?