mÓdulo ii

MODULE 2: European and national normative aspects in the fight against

transnational organized crime

Female Professor: Laura Zúñiga RodríguezPermanent Lecturer of Criminal Law

Accredited professorUniversity of Salamanca

Project JUST/2011/ISEC/DRUGS/AG/3671

ORGANIZED CRIMEProblems of definition

• What is organized crime?

• Sociological definitions (the mafia /conspiratorial thesis)

• International definitions(The United NationsConvention against Transnational OrganizedCrime, 2000).

• Legal Definitions (illicit associations crimes)

• Definition of Europol (11 indicators)


N ANALYSIS OF THE PHENOMENON IN SPAIN

• Prominence of terrorism until quite recently

• Proliferation from 90 of organized crime: TID /mafias are installed on the coasts

• Favouring the real estate boom

• Spain gateway to South American cocaine


INTERNATIONAL FIGHT AGAINST GLOBAL CRIME

• INTERNATIONAL CONVENTIONS ON DRUGS,CORRUPTION / PALERMO CONVENTION OF 2000

– Punishability of participation in a criminalorganization

– (Criminal) liability of legal persons

– Confiscation of the proceeds of criminalorganizations

– Provisions relating to collaborators with justiceand undercover agents

– Controlled deliveries and interception ofcommunications


EUROPEAN REGULATIONS

• Council Framework Decision 2002/584/JHA of 13June 2002 on the European arrest warrant

• Council Framework Decision 2008/584/JHA of 24October 2008 on the fight against organized crime

• Framework Decision 2008/976/JHA of the Council of16 December 2008, on the European JudicialNetwork, concerning the the strengthening ofEurojust (Decision 2002/187/JHA)


NATIONAL REGULATIONS

• Crime of Illicit Association: Penal Code Article515

• Criminal offence of participation in a criminalorganization: Penal Code article 570 bis

• Criminal offense of participation in criminalgroup: Article 570 ter of the Criminal Code

• Numerous specific aggravating circumstancesfor belonging to a criminal organization


1st Problem: illicit association / criminal organization / criminal group

• A number of concepts overlap in legislation

• There is no a systematic treatment of organizedcrime (transnational)

• Interpretative difficulties

• Problem of contests of laws

• Vacuum of the treatment of transnationalorganized crime, except Article 370 PenalCode (TID in international networks).



• Illicit association: This concept seems to pointto associations that "occasionally"commitcrimes, ie, are not purely criminal.

• For example, a political party or a companythat realizes some criminal activity.

• Have been sparsely implemented byjurisprudence (political historical background)



• Criminal organization: Core of organized crime: “theorganizations and criminal groups in general are not really`associations' who commit crimes, but groupings of originaland inherently criminal nature“ (Explanatory Memorandumintroducing LE/5/2010 570 bis and 570 ter) –Organic Law-

• Modernization of the nomenclature

• Authentic Interpretation "grouping formed by more thantwo people with a stable or indefinitely character, that in aconcerted and coordinated way are distributed varioustasks or functions in order to commit crimes, as well as tocarry out the repeated perpetration of faults"



• Is broader than the mandate of the DM 2008and the UN Convention against TransnationalOrganized Crime, as it requires that crimes areserious (penalties of 4 years) -FrameworkDecision-

• In addition, reiterat faults are penalized

• Participation extends to any form ofcooperation: economic "or any other”



• Criminal group: Residual figure in relation with criminal organization: "without gathering one or more of the features ...“

• The legislator has wanted to "save" thepunishability of criminal organizations towhich can not be proved all elements

• Only is punished "Whoever constitutes,finances or forms".


2nd PROBLEM: DISTINCTION WITH THE CO DELINQUENCY

• Major problems with the criminal group

• The criminal group would be an intermediatefigure between a criminal organization and codelinquency

• The criminal group would have someminimum stability / more generic commissionof crimes

• Co-authoring: the meeting to commit specific crimes (transitory)


3rd PROBLEM: DISTINCTION WITH THEPREPARATORY ACTS

• Anticipate codelinquency: conspiracy to commitcrimes

• Again the stability would be the fundamentalelement to distinguish them of illicit asociation,criminal organization and criminal group(existence of structure)

• The conspiracy to commit specific crimes

• Both in criminal organization and criminal groupexists an indeterminate plan to commit crimes


4th PROBLEM: SPECIFIC AGGRAVATING CIRCUMSTANCES

• The Spanish Penal Code provides in numerouscrimes the aggravating circumstance tocommit them by criminal organization:trafficking, money laundering, abuse and childsexual assault, child pornography, etc..

• Special importance: new article 369 bis of theCriminal Code: the crime of drug trafficking

• Only the Article 370 specific aggravating ofinternational networks

ject JUST/2011/ISEC/DRUGS/AG/3671

4th PROBLEM: SPECIFIC AGGRAVATING CIRCUMSTANCES

• Innumerable interpretive problems

• Article 570 quater of the Penal Code: in caseof contests shall apply the provisions of Article8, Rule 4: alternativity principle: thecorrespondent penalty to the more seriouscrime.

• Concurrence of a royal contest of laws


mÓdulo ii

Education