INTERNATIONAL COOPERATION AGAINSTTRANSNATIONAL ORGANIZED CRIME: CRIMINALISINGPARTICIPATION IN AN ORGANIZED CRIMINAL GROUP1
Matti Joutsen*
I. INTERVENING INCONSPIRACIES AND ORGANIZEDCRIMINAL GROUPS
Let us assume that the competent law
enforcem ent authorities in three
countries, Japan, the United States and
Mexico, are informed of the existence of awiretap of a telephone discussion
between A and B. In this, B informs A
that he has talked with C, who has said
that he can supply B with cannabis in
Mexico for a good price. During the same
telephone call, A tells B that he knows of
a good way to smuggle the cannabis from
Mexico to Japan, and that he also knowsof people w ho would be interested inb u ying c a nn a b i s . Ha s a cr i m e b e e n
co m mitte d, and ca n the autho rities
intervene in any of the three countries?
In respond ing to the threat oftransnational organiz ed crim e inparticular, criminal justice authorities
ha ve a ne ed to inte rve ne as soo n as
possible in order to prevent crime, breakup criminal organisations and apprehend
the offenders. Ideally, they should be able
to arrest offenders before an offence has
been committed. Otherwise, there is theconsiderable risk that the offenders willb e a ble to ca rry out the off ence a nd
escape across national b orders, thus
evading justice.
Here, however, there is a difficulty. In
t he ca s e d es cr ib e d a b ove , no a ct ua lpurchase of drugs has been made, muchless has there been any overt attempt tosm ug gle the d rug s into Jap an . T hecriminal laws of many countries would
even hold that, since there has been noact other than the first contact between A
and C, and the telephone call between A
a n d B , th e r e h a s n o t e v e n b e e n a n
a t t em p t a t a n y o f f e nc e ( s u ch a s a n
attempt at purchasing illegal drugs). If
indeed no offence has been committed,
then the authorities would not have therigh t to ma k e an y ar re sts. T he law
enforcement authorities would have to
wait and, in the worst-case scenario,
would lose the trail of A and B, and the
drugs will be successfully smuggled into
Japan.1
A s e c o n d c o n c e r n h a s to d o w i th
p ro vin g c om p li city in an o f f e nc e inconnection with crimes undertaken by alarge, well-structured organized criminal
grou p. Trafficking i n persons, fore x a m p l e , m a y i n v o lv e a n u m b e r o foffenders, acting in different capacities.
Some may seek to identify the persons to
1

I am indebted to the members of Working Group 2
for the benefit of stimulating discussions in thecourse of the preparation of this paper: Mr .
Zafarullah Khan (chairperson), Mr. Yasunari
H ata g uc h i ( co -c h ai r per s on ), Mr . S itti po ng
Tanyapong pr uc h (rappor teur), Mr. Tak ashi
M a r u o k a ( c o - r a pp o r t e u r ) , M r . N o u p h a n h
Mahaphonh, Mr . Zainal Rashid Bin Hj Abu
Bakar, Mr. Bhola P rsad Kh arel, M r.
Muchwangali Charles and (as advisors), Prof.

* Director, International Affairs
Ministry of Justice, Finland

Yasuhiro Tanabe, Prof. Hiroshi Tsutomi and Prof.
Mikiko Kakihara.

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RESOURCE MATERIAL SERIES No. 59
be trafficked, others will forge the papers
needed to cross borders, others will see if
key authorities can be bribed, yet others
will take care of transport and lodging,and finally some people will look after theplacement of the people in the destination
country, and perhaps will continue tocontrol their movement. Each activity
may involve a different individual crime(fraud, forgery, corruption, illegal bordercrossing, extortion and so on), and some
activities may in fact not involve a crime
at all ( tra ns po rt within a c ou ntry) .
P roving co mp licity in traf ficking inp e rs o n s, o r in a ny o t he r o r g a n iz e dcriminal activity, may be difficult.
A third concern has to do withprocedural economy. If a large number of
persons agree to commit crimes, andthese are in fact committed at different
times by different people (as is often thecase, for example, with extortion carriedout by large organized criminal groups),
it may be difficult to obtain sufficientevidence to convict all of them of thesubstantive offences. However, it may beeasier to prove that they have been acting
as conspirators, or as members of anorganized criminal group.
A fou rth concern has to do withinternational co-operation. In our case,each of the three persons is located in adifferent country. Of all the fields of law,criminal law is perhaps most closely tied
to the essential values of a country. Overthe centuries, considerable variety has
emerged in what is criminalised andwhat is not in the different jurisdictions.
From the point of view of domestic legal
system s, this does not cause any
particular difficulties, since the legal
systems almost invariably apply theirown criminal law.

different criminal laws has caused, andwill continue to cause, consid erab ledifficulties. One of the greatestdifficulties in practice is caused by theprinciple of double criminality.
International agreements on extradition
and m utual legal assistanc e almo st
invariably require that the offence inquestion is a crime in both the requested
and the requesting State. The requested
State will presumably not extradite asuspect to the requesting State if the
conduct in question is not criminal underit s l a w s . H o w e v e r , e v e n i f t h e tw oco untr ies a gr ee tha t the c on du ct iscriminal, the details of the definition mayvary to such an extent that the requested
country may well decide not to co-operate.
It is against this background ofdomestic and international concerns that
the United Nations Convention against
Transnational O rganized Crime (thePalermo Convention) requires States
Parties to criminalise either conspiracy orparticipation in an organized criminal
gr o u p . B o t h c o n ce p ts r e q ui re s o m e
explanation.
II. CONSPIRACY
The concept of conspiracy arose atcommon law during the early 1600s in
England, from where it spread to otherco m m on la w co untr ies . 2 At E nglis hc o m m o n la w , if a n o f f e n ce wa s n o tcompleted, it was not punishable.
This, of course, was not consideredsatisfactory. The concept of “inchoate
crime” arose. Inchoate crimes are crimes
2

The leading decision was that of the Star
Chamber in the Poulterer’s Case in 1611. See
Glanville Williams, Criminal Law. The General
Part, second edition, Stevens and Sons Limited,

From the point of view of international
co-operation, however, the existence of

418

London 1961, p. 663, and the literature cited infootnote 1 therein.

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERSs h a l l b e p u r s u ed w h i c h , i f t heagreement is carried out inaccordance with their intentions,either:that are committed by an act done withthe purpose of effecting some other crime(called the substantive crime or the
consummated crime).3 The three types ofinchoate crimes are attempt, conspiracy
and incitement. By and large, attempt of,conspiracy to commit, and incitement tocommit any offence is punishable.
The concepts of attempt andincitement are universally recognised,and need no further introduction in thisc o nn e ctio n . I t i s the th ir d c o nc e p t,
conspiracy, which is of interest here.
Under common law, mere thought did notconstitute a crime. A person could thinkof doing evil deeds, but would remain
unpunished for this. However, should heor she agree with another person about
the comm ission of a crime, this w as
regarded as increasing the direct risk to
the community of criminal activity in two
ways. First, it increased the likelihood of
success of the crime. Secondly, it makes
the commission of other crimes more
likely. Because of this increased risk, it
was deemed useful to bring such conduct
into the scope of criminal law even before
it reached the sta ge of attempt. The
concept of conspiracy was born.4
The first statutory definition ofconspiracy in the United Kingdom did notcome until with the Criminal Law Act
1977. 5 As subsequently amended by the
Criminal Attempts Act 1981, section 1(1)of this law states:

a. will necessarily amount to or
involve the commission of any
offence or offences by one or moreof the parties to the agreement;orb. would do so but for the existenceof facts which render thecommission of the offence or any
offences impossible,
he is guilty of conspiracy to commit
the offence or offences in question.”
The corresponding provision in, forexample, the Canadian criminal code
(section 423(2) avoids defining
conspiracy, and merely states that “Everyone who conspires with any one (a) toeffect an unlawful purpose, or (b) to effecta lawful purpose by unlawful means, isguilty of an indictable offence.”6
A few particulars about conspiracy:7
1. In its basic form, the mere agreement
to comm it a n of fence constitute s
conspiracy (see, however, below).
2. Negotiating the commission of an
offence is insufficient to constitute5

Outside the realm of statutory conspiracy are forexample conspiracy to defraud and conspiracy tocorrupt public morals. See Williams 1961, op.cit.,
pp. 686–710 and Mike Molan, Denis Lanser and“Subject to the following provisionsof this Part of this Act, if a person
agrees w ith any other person or
persons that a course of conduct

Duncan Bloy, Bloy and Parry’s Principles of
Cr i m in al L aw, Fo u rt h Ed iti o n, Ca ve ndi sh
Publishing Limited, London 2000, pp. 152–154
and 162–168. Regarding US law, see for example
Ro b e r t W . Fe r g u so n a n d Al le n H . S to k k e ,3Glanville Williams, Textbook of Criminal Law,

Concepts of Criminal Law, Holbro ok Pr ess,

Stevens and Son Limited, London 1978, p. 349.
4

Regardingthejustification

of

the

law

Boston 1976, p. 136.
on6

See, for example, Alan Mewett and Morris

conspiracy, see Williams 1961, op.cit., pp. 710–

Ma nni ng, Crim ina l La w, second editi on ,713.

Butterworths, Toronto 1985, pp. 179–189.

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RESOURCE MATERIAL SERIES No. 59
conspiracy. There must be aconcluded agreement, even if theagreement leaves open the method
and time of commission is left open(for example, the conspirators agree
to act “as and when the opportunity
arises”).
The agreement can be manifested byword or conduct.
There must be two or more parties.
H o w e v e r , a p e r s o n m a y s ti l l b econvicted of conspiracy even if none ofthe other co-conspirators areapprehended or even identified.8
The conspirators must be knowledgeableof the elements of the conduct thatamount to the offence. This means thateach must know or believe he or sheknows the facts that will make theconduct criminal when done. (Forexample in the case of fraud, if one person
agrees only to deliver an invoice, without
knowing that the invoice is for goods thathave not been delivered, this person
would not be guilty of conspiracy tofraud.)
Any act done by any of theconspirators in the furtherance of theconspiracy is an act of all, even if thisact was not planned or contemplatedby all.
It is not necessary that the offence isin fact consummated, and may indeed
lie in the indefinite future.
A person who supplies a necessary
weapon or service, even if he or she
knew that this would be used for an

3.
4.

5.

6.

7.
8.

unlawful purpose, can be convicted ofconspiracy only if he or she somehow
promotes the unlawful conduct itself.
9. Even if the conspiracy falls apartalmost immediately (for example a
key co nspirato r backs out), theconspiracy exists. The withdrawing
conspirator rem ains guilty ofconspiracy and of any acts committed
in furtherance of the conspiracy up tothat point.
10. An offender can be convicted of bothconspiracy and the actual offence.9
By its very nature, conspiracy may bedifficult to prove. A conspiracy may beinferred from conduct (in other words
from overt acts). The testimony of a coconspirator regarding the existence of the8Some limitations exist regarding who can bedeemed a co-conspirator. At English law, noconspiracy exists if the only other conspirator isthe spouse of the first conspirator, or under theage of criminal responsibility, or the intended
victim of the offence (section 2 of Criminal Law
Act 1977). The law in some other common law
jurisdictions may vary somewhat; for example, in
the United States a husband and wife can now
constitute a conspiracy. Ferguson and Stokke,
op.cit., pp. 138–139. On this point, Canadian legal
practice follows that of England; Mewett andManning, p. 183.
A special case arises when one of the two coconspirators is a law enforcement officer who isan undercover officer trying to break up drugtrafficking. For example in England, the officer
himself or herself can, technically, be convicted of

7

Regarding English law, and in addition toconspiracy although the court will probably holdWilliams 1961, and Molan et. al., see for example

that his or her “mental reservation” against theRichard Card, Card, Cross and Jones. Criminal

conspiracy meant that he or she had not in fact

Law, twelfth edition, Butterworths, London 1992,

agreed. The other co-conspirator, however, can be

pp. 479– 500 , J.C. Sm ith and Br ian H ogan,convicted. See the Yip case cite in Molan et al,

Criminal Law, seventh edition, Butterworths,

o p.c it., pp. 15 9–1 60 . Unde r Cana dia n la w ,London 1992, pp. 269–304, and D.W. Elliott andhowever, the fact that the second conspirator was

Michael Allen, Elliott and Wood’s Casebook ona police agent provocateur led to the acquittal of

Criminal Law, sixth edition, Sweet & Maxwell,

the first conspirator of conspiracy; O’Brien [1954]

London 1993, pp. 451–473.

S.C.R. 666, cited in Mewett and Manning, p. 181.

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119TH INTERNATIONAL TRAINING COURSE
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conspiracy may also be taken and used as
evidence. This latter rule (which has beenc o n s tr u e d so m e w h a t d i f f e re nt l y i nd iff erent com mon la w jurisdictions)means in practice the allowing of hearsay
evidence.10
At English law, the mere agreement tocommit an offence constitutes conspiracy.
In some other jurisdictions, however,statutes have added a requirement of an
overt act committed in the furtherance of
the agreement. This overt act may becomparatively slight, but nonethelesss uc h a n a d d i tio na l e le m e n t is th us
required.11
English law has also explicitly
addressed the question of jurisdiction.
The courts in England are deemed tohave jurisdiction both when a conspiracy
in England is directed towards an offence
to be committed in another country, andwhen a conspiracy abroad is directed
towards an offence to be committed inEngland.
In the United States, it was decided tobuild on the concept of conspiracy to cometo grips specifically with organized crime,and its attempt to infiltrate into thelegitimate economy. This was done witht h e 1 9 7 0 R a ck et ee r I n f l ue nc ed a n d
Corrupt Organisations Statute (18 USCA
§ 1961), commonly referred to as the
RICO statute. This statute criminalised
participation in or conducting of theaff a irs of an e nte rp rise in volv ed inracketeering.12 The d efinition of“racketeering” is rather complex, butessentially it is based on a list of offencesthat a re co m m o nly asso c iate d withorganiz ed criminal activity. The
definition of “enterprise” is based on thedefinition of conspiracy, and involves an“asso ciation in f a ct” of two o r m o repeople. A refinement to the definition ofco nsp ira cy is tha t th e ra ck e tee ringa c t i v i t y m u s t i n v o lv e a t l e a s t t w oracketeering acts committed within ten
years of each other (as opposed to the factthat a conspiracy may be designed tocommit only one wrongful act).13
RICO allows not only stiff punishment
for the offences within its scope, but also
civil remedies such as treble damagea c ti o n s , c o r p o r a te d i ss o l u ti o n a n dreorganisation. This aspect has beende em e d to b e p a rticula rly use ful incoming to grips with organized crime.
Canada has enacted the concept of“enterprise crime offence” (art. 462(3) ofthe Criminal Code), which is based on alist of offences that is more limited thanthe RICO statute in the United States.

12 See Norman Abrams, Federal Criminal Law and

Its Enforcement, West Publishing Company, St.
9

The Federal Model Penal Code in the UnitedPaul 1986, pp. 167–270.

States, however, holds that where the conspiracy

13 Further refinements in the United States include

has only one object or crime as its purpose, thethe Continuing Criminal Enterprise Statute,conspirators may not be punished for both thewhich is targeted at large-scale drug trafficking,crime and the conspiracy. Myron Hill, Howardand th e Violen t C rime Con trol and Law

Ro s s e n a nd W i l to n S o gg, Sm i th ’s Re vi e w .

Enfo r c em en t Ac t of 1 99 4, w hic h in tu rn is

Criminal Law, West Publishing Company, St.

targeted at street gangs. See Sabrina Adamoli,Paul 1977, p. 133.

Andrea Di Nicola, Ernesto U. Savona and Paola

10 See Williams 1961, op.cit., pp. 681–682.

Zo ffi, O rga nize d Cr im e Ar o und the W or l d,

11 Ferguson and Stokke, op.cit., pp. 135–136.

HEUNI publication no. 31, Helsinki 1998, p. 136.

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RESOURCE MATERIAL SERIES No. 59
III. THE OFFENCE OF
PARTICIPATION IN AN
ORGANIZED CRIMINAL GROUP
The concept of conspiracy has beendeveloped on the basis of common law. In
c ivil la w co u ntr ie s, t he co nc e p ts o f
a tte m p t a nd in ci te m e n t ar e w id e ly
recognised, but conspiracy is not. The
general position in civil law countries isthat mere planning of an offence, without
an overt act to put the plan into
operation, is not criminal. (As noted,
s om e s ta tute s in som e co m mo n la w
jurisdictions have taken this very same
position.) For example, mere planning ofa robbery, and even such preliminary
stages as an examination of the premises,arrangement for a getaway car or the
recruiting of assistants, do not constitutecriminal conduct. The offenders may bearrested and brought to trial only when
they have gone so far as to, for example,
enter the premises with weapons.
In Italy, which has long had difficulties
i n c o m i n g t o g r ip s w i t h o r g a n i z e dcriminal groups, this was regarded as
unsatisfactory. Groups such as the Mafia
and the Camorra may be highlyorganized, and it may be difficult for thelaw enforcement authorities to show how
individual members of the group, and inparticular the leadership, haveparticipated in actual criminal activity.
The Italian legislature therefore decided,in 1982, to adopt special legislation thatwas directed not at individual criminal
acts, but at the role of the member in theorganized criminal group. The
assum ption was that mem bers ofcriminal organisations commit crimes.
For this reason mere membership was
regarded as a crime, and persons
suspected of this could be arrested.14

Article 416bis of the Italian criminal
code thus criminalises “participation in a
Mafia-type unlawful association”.15 Suchan association is said to exist “when thep a r ti c i p a n t s t a k e a d v a n ta g e o f t he
intimidating power of the association andof the resulting condition of submission
and silence to commit criminal offences,
to manage, at all levels, control, either
d i r e c t l y o r in d i r e c t l y , o f e c o n o m ic
activities, concessions, authorisations,public contracts and services, or to obtainu nl a w f u l p ro f it s o r a d v a n ta ge s f o rthemselves or for others, or with a view topreventing or limiting the freedom tovote, or to get votes for themselves of forothers on the occasion of an election.”If the participants have firearms or
explosives at their disposal, thepunishment is higher. The punishment isalso higher if the economic activities thatthe participants intend to control are
funded even in part by the price, productor proceeds of criminal activities.
The assessment of the impact of thislegislation has been that it is effective.
The prosecutor no longer needs to provethat, for example, a leader of anorganized criminal group has in someway participated in a criminal offence. It
is enough to demonstrate that such aperson is a member of a certain type oforganisation.
The Italian definition can be regarded
as quite broad, since even a person who isa p a s si v e m e m b e r o f a n o r g a n i z e dcriminal group can be punished. Other
civil law countries have been reluctant tofollow suit. Portugal has been one country
that ha s ad op ted so m ewhat sim ilar
15 Other provisions in Italian criminal law deal with“common association crime” and “drug-trafficking
association crime”. See Adamoli et al, op.cit., pp.
14 See Adamoli et al, op.cit., p. 133.

422

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119TH INTERNATIONAL TRAINING COURSE
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legislation. Portugal has criminalised thefounding of a group for the purpose ofcommitting crimes, becoming a memberof such a group, or providing such groups
with help, particularly in the form of
weapons or ammunition, or seeking torecruit further members. Among Central
and Eastern European countries thathave enacted somewhat similarl e g is l a ti o n a r e E s t o n ia , L it hu a ni a ,Moldova and Poland.16
In addition, several civil law countries
have enacted legislation directed at more
tightly defined forms of participation orconspiracy in the case of particularlys e r i o u s o f f e n c e s . F o r e xa m p le , t h erespective criminal codes of Denmark and
Finland contain provisions regarding
conspiracy to com mit treason.
Furthermore, several civil law countries
regard commission of an offence as amember of an organized criminal group to
be an aggravating factor to be consideredin sentencing.
Finally, several civil law countries
have enacted legislation that criminalises
a ctive participa tion in a n organize dcriminal group. Germany, for example,
criminalised the formation of a groupw h o se go a ls a r e t h e c o m m i ss io n o foffences, [active] participation in the
gr oup , soliciting fo r the gro up , andproviding support for the group.
In 1997, the European Union adopted
an Action Plan against organized crime.
One of the key elements of this Action
Plan called for the adoption of a joint
actio n re quiring all f iftee n M em b er
States of the European U nio n tocriminalise participation in an organizedcriminal group. Such a joint action was
indeed adopted in December 1997.

In the discussions leading up to thejo int action, there w as conside ra b lecontroversy over its formulation. The two
M e m b e r S ta t es w ith a co m m o n la w
system, the United Kingdom and Ireland,
noted that they already use the concept ofconspiracy, and were not prepared tochange their law in this regard. Italy
strongly advocated legislation that would
follow its model in criminalising“participation in a Mafia-like unlawful
association”. Countries that did not have
either option were adverse to adopting
them, in particular on the grounds thatboth op tions (conspiracy and“participation”) were rather vague, and in
this respect were seen to be in violation of
the principle that conduct to becriminalised should be defined explicitly(the “legality principle”).
The end result was, as so often in sucha context, a compromise. All member
sta te s o f the E ur o p ea n U nio n w e rerequired to ensure that their legislation
crim inalised either conspiracy orparticipation in an organized criminalgroup, and the definition of participation
was drawn to require an overt act, “active
participation”.17
It was this joint action which
contributed to the definition adopted in
the Palermo Convention.
IV. ARTICLE 5 OF THE PALERMOCONVENTION AND ITSIMPLICATION
A. The Text of Article 5
Article 5 is one of only fourcriminalisation obligations contained in
the Palermo C onvention. It requires
States Parties to ensure that their laws
crim inalise either consp iracy orparticipation in an organized criminal

16 Adamoli et al, op.cit., pp. 138–141.

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RESOURCE MATERIAL SERIES No. 59
gro up , or bo th. The a rticle re ad s as
follows:
Article 5
Criminalisation of participation in an
organized criminal group
1. Each State Party shall adopt such
legislative and other measures asm ay be necessary to estab lish as
criminal offences, when committed
intentionally:(a) Either or both of the following as
criminal offences distinct fromthose involving the attempt orcompletion of the criminal
activity:(i) Agreeing with one or more otherpersons to commit a serious crimefor a purpose relating directly or
indirectly to the obtaining of afinancial or other material benefit
and, where required by domestic
law, involving an act undertakenb y o ne o f th e p a rti ci p a nt s infurtherance of the agreement or
involving an organized criminalgroup;(ii) Conduct by a person who, withknowledge of either the aim and
17 In

September 2001, the Commission of theEuropean Union introduced a proposal for a
Co un c i l fr a me w o r k de c is i o n o n c o m b ati n gterrorism (12103/01 DROIPEN 81, 24 September2001). If accepted, this framework decision would
require that each of the fifteen Member States of
the European Union (and, in time, the twelve
candidate Member States) “take the necessary
measures to ensure” that inter alia the following
offences will be punishable:- directing a terrorist group, andgeneral criminal activity of anorganized criminal group or its
intention to commit the crimes inquestion, takes an active part in:a. Criminal activities of theorganized criminal group;b. Otheractivitiesoftheorganized criminal group in
the knowledge that his or her
participation will contribute to
the achievement of the abovedescribed criminal aim;(b) Organising, directing, aiding,abetting,
facilitatingor
counselling the commission ofserious crime involving anorganized criminal group.
2. The knowledge, intent, aim, purpose
or agreement referred to in paragraph
1 of this article may be inferred fromobjective factual circumstances.
3. States Parties whose domestic law
requires involvement of an organizedcriminal group for purposes of theoffences established in accordancewith paragraph 1 (a) (i) of this article
shall ensure that their domestic law
covers all serious crimes involvingorga niz ed crimina l groups. Suc h
Sta tes P artie s, a s w el l a s S ta te sParties whose domestic law requires
an act in f urtherance of theagreem ent for p urposes of theoffences established in accordancewith paragraph 1 (a) (i) of this article,
shall so inform the Secretary-Generalof the United Nations at the time of
their signature or of deposit of theirinstrument of ratification, acceptanceor approval of or accession to thisConvention.

- promoting of, supporting of or participating in aterrorist group.
The definition of a “terrorist group” is quite
similar to that of an organized criminal group. It
is “a structured organisation established over a
period of time, or more than two persons, acting
in concert to commit terrorist offences..:”424

B. The Criminalisation Obligation
2(a)Conspiracy
F o r th e p u rp o s e s o f t h e P a l e r m oConvention, conspiracy is thus defined as:

119TH INTERNATIONAL TRAINING COURSE
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intentionally agreeing with one ormore other persons
to commit a serious crime for a
purpose relating directly or indirectly
to the obtaining of a financial or othermaterial benefit and,
where required by domestic law,
involving an act undertaken by one ofthe participants in furtherance of theagreement or involving an organizedcriminal group.

Certain key points emerge when thisdefinition is compared with for example
the statutory definition of conspiracy
under English law.
First, however, a point of similarity: aconspiracy can be present even when
there are only two conspirators. It may berecalled that art. 2(a) of the Palermo
Convention defines an “organizedcriminal group” as a structured group of
three or more persons.
One difference is that the conspiracy
must be directed to the commission of a“serious crime”. Art. 2(b) of the Palermo
Convention defines serious crime as“conduct constituting a criminal offence
punishable by a maximum deprivation ofliberty of at least four years or a more
serious penalty”. Thus, States Partiesn e e d no t e xt e nd t he ir d e f in it io n o fconspiracies to include those directed atless serious offences.
A second difference is that the purposeof the serious offence in question must be
related “directly or indirectly to theobtaining of a financial or other material
benefit”. Also this is in line with thed ef inition s give n in article 2 of th ePalermo Convention. States Parties need
not extend the concept of conspiracy
beyond offences that are basically coveredb y the Palermo Convention. (In thisregard, the criminalisation obligation inarticle 5 is narrower than any of the otherthree criminalisation obligations.)
A third difference is that the State
Party may, if its domestic law so requires,
include the additional condition that oneof the participants has undertaken an act“in furtherance of the agreement” or thatthe act involves an organized criminal
grou p. Thi s would be in li ne withsta tu to ry law in s o m e co m m on law
jurisdictions that require an overt act infurtherance of the conspiracy. It is notenough to have a “meeting of the minds”;
there must also be action. How
substantive this additional act must be tofulfil the condition laid down in article
5(1)(a)(i) of the Palermo Convention isleft open to the individual State Party.
Article 5(3) makes reference to the factthat some States Parties may wish tolimit the scope of conspiracy to only a listof serious offences. In such case, theStates Party must “ensure that theirdomestic law covers all serious crimes
involving organized criminal groups”, andmust inform the Secretary-General of theUnited Nations accordingly.
Article 5(3) also requires that States
Parties whose domestic law requires an
act in furtherance of the agreement for
purposes of the offences established inaccordance with paragraph 1 (a) (i) so
inform the Secretary-General.
2(b)Participation in an Organized
Criminal Group“Participation proper” is defined inarticle 5(1)(a)(ii) as:••

conduct by a person who,with knowledge of either the aim andgeneral criminal activity of ano r ga n iz e d cr i m i n a l g r o u p o r i t s
intention to commit the crimes inquestion,

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intentionally takes an active part in- either the criminal activities of theorganized criminal group or- other activities of the organizedcriminal group in the knowledge
that his or her participation willcontribute to the achievement of
the above-described criminal aim.

Here again there are key points ofdifference between the criminalisation
requirement in art. 5 of the Palermo
Convention, and such predecessors as art.
416bis of the Italian Criminal Code.
First, the person must know the aim
and general criminal activity of the groupin question, or of its intention to commit
crimes.
Second, the person must take an active
part in the organisation. The clearest
f o rm o f such pa rticip ation is in thecriminal activities of the organisation.
Here, it may be noted that if this option istaken, art. 5 requires criminalisation ofsuch participation as distinct from theattempt or completion of the criminal
activity itself. Let us assume that A joins
an organiz ed criminal group andintentionally takes part in robberies. This
person, A, should then be held guilty ofboth the robbery and of participation inan organized criminal group thatcommits the robberies. (In this respect,
the thinking behind this requirement iscloser to that of conspiracy, since mostcommon law jurisdictions hold that theo f f e nd e r c ou ld b e c o nvic te d of b o thconspiracy and the offence in question.)
The alternative form of participation
can be in “other activities of the organizedcriminal group”. However, here there is
the additional condition that the person
in question is aware that “his or her
p a rtic ipatio n will c ont ribute to th ea chieve me nt of the a b ove -de scribe d426

criminal aim”. It is left to the State Party
to d e t e r m in e h o w s u b st a n t iv e th i scontribution should be. Presumably an
accountant knowingly working for an
organized criminal group would fulfil thisdefinition, even if he or she in no way
engages in illegal accounting practices orin money laundering; merely helping thegroup with its accounts would seem to be
sufficient. A driver who drives the leadero f t h e g r o u p f r o m p la c e t o p l a c e —especially where none of the meetings
wou ld a ppear to b e r elated to t heplanning or commission of illegal
activities—would be a more doubtful
case. And going to the other extreme,
persons who work for members of thegroup as, for example, gardeners, cooks orcustodians would presumably not be seen
to “contribute to the achievement of the ...
crim in a l aim , ” alth ou gh this wo uld
ultimately depend on the individual case.
C. Attempt and Forms ofParticipation
As noted, under the Pa lermo
Convention e ither conspiracy orparticipation in an organized criminalgroup are to be criminalised as distinct
from attempt or completion of thecriminal activity in question.
Article 5(1)(b) makes the further pointthat States Parties are also to criminalisecertain specific forms of participation in
the commission of serious crime involving
an organized criminal group. The forms
themselves (organising, directing, aiding,abetting, facilitating and counselling) are
fairly well recognised in criminal law,although the construction placed on thew ords m ay w ell va ry from one lega lsystem to the next.
Presuma bly most, of not all, lega lsystem s o f the w orld a re alre ad y incompliance with this requirement, in thate.g. aiding and abetting in the

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
c o m m issio n o f a ny s e rio us c rim e ispunishable. Although art. 5(1)(b) makes
reference to e.g. aiding and abetting “thecommission of serious crime involving anorganized criminal group,” it can b e
a rg ued th a t a S t ate P a rty ne ed n ot
separately enact such a qualified
criminalisation. Nothing, however, would
prevent States Parties from adopting astatute that does define an organizedcriminal group, and sets a special tariff ofpunishment for various forms ofparticipation in its criminal activities.
This has, indeed, already been done by
several states around the world.
D. Evidence of Conspiracy andParticipation
Art. 5(2) very briefly states that “thek no w le d ge , i nte nt, a im , p ur p os e o r
agreement referred to in paragraph 1 ofthis article may be inferred from objective
factual circumstances.” This is basically arule for interpreting the evidence of guilt.
States Parties can, alternatively, providethat their courts may look at the totalityof evidence, thus giving courts much moreleeway in construing possible guilt.
E. Coda: Applying the Convention to
the Case Study, and Assessing its
Utility
The case cited at the outset involves
three persons, A, B and C. How would
this be dealt with under the two
definitions in article 5 of the Palermo
Convention?
Under the heading of conspiracy, art.
5(1)(a)(i), all three suspects could befound guilty of conspiracy, since A and B,
and B and C, had apparently agreed onthe (illegal) purchase of cannabis, and A
and B had further agreed on its import
into Japan.
Under the heading of participation inan organized crim inal group, theprosecutor would have to show that A, B
and C constituted a structured groupexisting for a period of time. If this can
successfully be done, then all three can beconvicted of participation.
Would either or both approach add
anything to the arsenal of theinvestigator and the prosecutor, andwould there be any drawbacks?
To sum m ar ise o n the basis of theforegoing,
•

•

•

•

•

the criminal justice authorities would
have the possibility of intervening at
a n e a r lie r s ta g e o f t he c r im i na lactivity,
all three could be charged withconspiracy or participation even if
their role had been more marginal
than in the case used as anillustration;
should the three suspects continue
their activity, the prosecutor need notprove complicity in each and every actof drug trafficking;the concepts of conspiracy andparticipation allow, in effect, double
punishment: one for the conspiracy orparticipation, and one for the offencesco mm itte d in f urt her a nce of theconspiracy or participation;
legislation referring to conspiracies
and organized criminal groups could
provide the framework for the use ofcivil measures in addition topunishment.

There has also been significant
criticism of the concepts of conspiracy andparticipation in an organized criminalgroup:•

the concepts are ambiguous andconfusing, in particular if juries are
invo lve d . Th e le gal p ractic e h a s

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s h o w n th a t t h e c o n c e p t s c a n b e
confusing even to trained lawyers;some critics have said that theco nc ep ts v io la te the p rinc ip le o flegality, which requires definition of
p recise ly wha t a cts or o missions
constitute criminal conduct;
this ambiguity raises concerns
regarding legal safeguards, such as
ensuring that the defendant knows
exactly what conduct he or she ischarged with having committed;
the ambiguity also raises concerns
th at t he co n ce p t w ill be us e d t oexpand the scope of criminal
behaviour to an unacceptable extent;
andthe concept of conspiracy has been
used, in the view of some, to “convert
innocent acts, talk and association
into felonies”.18 The discussion within
the European Union regarding thejoint action requiring Member Statesto criminalise participation in an
organized criminal group shows thatthese same qualms exist regarding
this latter concept. The concern hereis that the concepts may be abused byover-zealous prosecutors.

•

•

•

•

Even so, the experience that has beenc o lle ct ed in t he gr ow ing nu m b e r o f
countries applying one or the other ofthese concepts shows that, in the hands oftrained investigators and prosecutors,
they can be highly useful tools in theconstant efforts of the criminal justicesystem to come to grips with organizedc ri m e . T he d ra ft e rs o f the P a le r m oConvention have seized this opportunity,
and are requiring States Parties to act
accordingly.
18 Ferguson

and Stokke, op.cit., pp. 140–141. The

authors cite the use of the concept in the UnitedStates against, for example, union organisers,
members of th e Comm u nis t Pa rty, andconscientious objectors during the Vietnam War.

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