Organized Crime Legislation in the European Union : Harmonization and Approximation of Criminal Law, National Legislations and the EU Framework Decision on the Fight Against Organized Crime

Just a few months after the entry into force of the EU Framework Decision on the fight against organized crime, this book provides an unprecedented analysis of the national and European legislation on organized crime. The book provides a critical examination of the European policies and legal instruments to promote the harmonization and approximation of criminal law in this field (including the United Nations Convention on Transnational Organized Crime). The current level of harmonization among EU Member States and the approximation to the standards of the new Framework Decision are discussed in detail, with the help of tables, graphs and maps. The results highlight the problems surrounding the international legal instruments and the inconsistencies of the national approaches to combating organized crime. Springer Organized Crime Legislation in the European Union 1 ISBN: 3642043305 5 Acknowledgement 6 Contents 8 Abbreviations 12 Untitled 14 Chapter 1: Harmonization and Approximation Policies in the European Union 16 Defining Harmonization and Approximation of Criminal Law in the EU 17 HarmonizationHarmonization 17 Approximation 19 The EU Policy in the III Pillar and Harmonization and Approximation of Criminal Law 22 The Evolution of the EU Policy on Approximation and Harmonization of Criminal Law 22 Functions of Harmonization and ApproximationHarmonizationfunctions ofApproximationfunctions of and the Trend in Framework Deci 22 The Adoption of Framework Decision Approximating Substantive Criminal Law for Crimes Other than Organized Crime, Terrorism and 25 The Adoption of Framework Decision in Other Fields than Substantive Criminal Law 28 Harmonization and Approximation of Criminal Law and the Principle of Mutual Recognition 31 Contrast or Synergy? 31 HarmonizationHarmonizationsupport for mutual recognitionApproximationsupport for mutual recognition and Approximation as a Sup 32 Harmonization and Approximation: A Legal trompe l ́œilTrompe l ́oeuil? 33 Conclusions of Chapter 1 35 Chapter 2: Organized Crime Legislation: Reasons and Background for the Assessment of Harmonization and Approximation 36 Reasons for Assessing the Sector of Organized Crime 36 Reasons Relating to the EU Policy in the III Pillar 37 The Lack of Comparative Research in the Sector of Organized Crime 40 The Main Instruments Aiming at Harmonization and Approximation of EU Member States ́ Organized Crime Legislation 41 The Joint Action on Making It a Criminal Offence to Participate in a Criminal Organization in the Member States of the Europea 42 The Definition of Criminal Organization 42 Criminalization of the Participation in a Criminal Organization 44 Other Provisions 46 The United Nations Convention Against Transnational Organized CrimeUnited Nations Convention against Transnational Organized C 47 The Definition of Organized Criminal Group 47 Criminalization Provisions 48 Other Provisions 49 The Framework Decision on the Fight Against Organised CrimeThe Framework Decision on the Fight against Organised Crime 50 The New Definition of Criminal Organization 51 Offences Relating to Participation in a Criminal Organization 52 Other Provisions 53 Remarks on the Legal Instruments Aiming at Harmonization and Approximation of Organized Crime Legislation 56 The Definition of Organized Crime 56 The Selection of the Predicate Offences 57 The Double Model Offence 58 A Missed Opportunity for an EU Approach to Organized Crime 59 Conclusions of Chapter 2. The Assessment of Organized Crime Legislation 60 Chapter 3: The Methodology 62 The MethodologyMethodology: Assessing Through Indicators 62 Objectives, Operational Definitions and Methodology 63 Objectives 63 Operational Definitions 63 Methodology 63 Data Gathering 64 The Analysis 66 Possible Problems Related to the MethodologyMethodologyPossible problems 67 Conclusions of Chapter 3 69 Chapter 4: Assessing Harmonization: The Horizontal Analysis 70 Structure of Criminal Law 70 Criminal Organization Offences 70 Aggravating Circumstances 74 Punishability of the Mere Agreement to a Criminal Organization 80 Requirements of the Criminal Organization 83 Number of Members of a Criminal Organization 83 Structure of the Criminal Organization 86 Continuity of the Criminal Organization 89 The Activities of a Criminal Organization 92 Number of Predicate Offences 92 Type of Predicate Offences 95 Additional Requirements 99 The Penalties 104 Standard Penalty for Participation/Membership 104 Penalty Differentiation 107 Collaborators with Justice 111 Benefits for Collaborators with Justice 111 Requirements for Benefits 114 Legal Persons 117 Liability of Legal Persons 117 Sanctions for Legal Persons 121 Rules on Jurisdiction 125 Conclusions of Chapter 4. Considerations on the Harmonization of Criminal Organization Legislation Among EU Member States 129 Different Criminal Law Approaches to Organized Crime 130 The Level of Harmonization Among EU Member States 132 Chapter 5: Assessing Approximation: The Vertical Analysis 137 Article 1: Definitions 137 Number of Members 137 Number of Predicate Offences 139 Type of Predicate Offences 141 Structure of the Criminal Organization 143 Continuity of the Criminal Organization 145 Additional Requirements 145 Article 2: Offences Relating to Participation in a Criminal Organisation 149 Article 3: Penalties 151 Standard Penalty for Participation/Membership 152 Aggravating Circumstance 153 Article 4: Special Circumstances 156 Article 5: Liability of Legal Persons 157 Crimes Committed by Persons Having a Leading Position Within the Legal Person 158 Crimes Made Possible by a Lack of Supervision or Control 159 Article 6: Penalties for Legal Persons 161 Criminal/Non-Criminal Fines 161 Other Penalties 163 Article 7: Jurisdiction 166 Territorial Jurisdiction 166 Jurisdiction over Offences Committed by a National 167 Jurisdiction over Offences Committed for the Benefit of a Legal Person Established in the Territory 169 Conclusions of Chapter 5. Considerations on the Level of Approximation to the Standards of the Framework Decision (2008/841/JH 171 Chapter 6: Conclusions and Implications 178 Possibilities for Further Research 178 Considerations on the European Policies on Harmonization and Approximation of Organized Crime Legislation 179 Criminal Organization Offences: A Trade-Off Between Effectiveness and Legality? 179 The Expected Impact of the Framework Decision (2008/841/JHA): A Further trompe l ́œil with Possible Dangerous Con 183 Final Conclusions 185 Bibliography 187 Index 199 3642043305,9783642043307 Front Matter....Pages i-xiv Harmonization and Approximation Policies in the European Union....Pages 1-20 Organized Crime Legislation: Reasons and Background for the Assessment of Harmonization and Approximation....Pages 21-46 The Methodology....Pages 47-54 Assessing Harmonization: The Horizontal Analysis....Pages 55-121 Assessing Approximation: The Vertical Analysis....Pages 123-163 Conclusions and Implications....Pages 165-173 Back Matter....Pages 175-189