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Vous consultezExpanding forms of preparation and participationGeneral report
AuteurLorenzo Picotti[*] [*] Pr fessor, University of Verona (Italy), ( (lorenzo. picotti@univr. it). ...
suitedu même auteur
During the last few years, the development of new forms of very serious crime has gained ground through the exploitation of both the opportunities and the contradictions of today’s « global » so iety, emphasizing the need for more effective responses to face the organized and often trans-national character of the phenomenon at stake.
2 On the one hand, economic development, increased exchanges, the « free » circulation of people, goods, services and capital beyond national borders laid the ground for a global market with new opportunities for the action and proliferation of highly ramified criminal networks, exploiting the economic, social, political and juridical conditions of different countries to increase any sort of investments and illegal trafficking – ranging fr m drug to weapons, from women, children and migrants up to the sale of human organs for transplantation or experiments. These goals can be effectively attained, thanks to the expansion and modernization of means of transport and communication, which are easily affordable, as shown by the pervasiveness of the Internet.
3 On the other hand, strong inequalities stemming from direct contacts among strikingly different populations and territories, from the more to the less developed, also diverging in terms of culture, traditions, ideologies, religions, value systems and both individual and collective lifestyles pose the basis for harsh confrontation and open conflicts. This is clearly shown by the strong difficulties, and sometimes even impossibilities of social integration in the case of mass migration or trafficking, which can cause discrimination and intolerant behaviours, often leading to outbursts of violence.
4 Hence, new areas become centres for the formation and proliferation of highly ramified terrorist networks, which require more effective responses to contrast their often trans-national character.
5 The concept of terrorism, which evolved through time, as a result of the different historical periods and societies in which it was introduced, defies a unique characterization as well as a homogeneous juridical legislation. It is differently perceived in different countries, where both preventive and repressive measures to contrast the phenomenon can vary to a considerable extent.
6 However, its prominent role as the focus of the world public opinion is undisputed, and a variety of initiatives have been undertaken by governments and international institutions to face the phenomenon.
7 Thanks to extremely powerful technological devices, which can produce tragic spectacularization, as in the case of the terrorist attacks to the Twin Towers in New York, or to the Atocha station in Madrid, terrorism has recently acquired a new brutal character, while increased perception of the phenomenon is widespread throughout the world, thanks to global communication systems and the consequent development of information and opinions.
8 The latter factors usually match the frequently explicitly stated intentions of terrorist organizations to reach their goals far beyond the national borders of the countries in which they are operating, or where their envisaged target is.
9 Hence, in spite of the complex multiplicity of causes and different perspectives emerging from a deep analysis of the qualification and evaluation of actions and facts, which can be classified as « very serious forms of crimes » and more specifically « terrorist » a tions, the phenomenon can be said to have a global role, directly matching both characteristics and tendencies of contemporary society.
10 For the sake of the present contribution, it is worth noticing that neither « serious organized crime » nor « terrorism » have been hitherto in luded among crimes of international concern « in a strict sense », which are the subject of indictment and of a supra-national jurisdiction system set in the Rome Statute in 1998, with the establishment of the International Criminal Court.
11 However, a new tendency can be outlined in the fight against terrorism, especially after the September 11,2001 attacks in New York and Washington, to strengthen cooperation among different countries, not only in the judicial system and at a police level, but also in the harmonization of substantive criminal law.
12 This course of action has developed at various levels.
13 The first level has to do with a global perspective characterized by growing interventions by the United Nations (UN). Particularly, it is worth mentioning the Convention on Trans-national Organized Crime adopted in Palermo, Italy, in 2000 and its additional Protocols against human trafficking, especially in woman and children, but also migrant smuggling. Such instruments delineate a global framework encompassing and integrating a wide range of conventions already in force against different typologies of serious trans-national crimes, such as those related to drug, weapons and human trafficking.
14 In the case of terrorism, on the contrary, it is still difficult to reach agreement on a general convention, due to contrasting and heterogeneous points of view on the possibility of producing a common definition of the concept in legal terms, while a wide range of conventions against different typologies of terrorist acts have been already produced.
15 However, agreement has been reached at a continental level, and specifically within the European Union, with the 2002 Framework Decision, which together with other provisions, presented a common definition of the phenomenon in legal terms and outlined the basic instruments to contrast it.
16 Starting from a 1998 common action, the same strategy was adopted for organized crime. In this case, the definition of « criminal organization » constit ted the reference framework for a wide range of additional instruments of intervention against specific forms of « serious trans-national organized crime », among which figure the Framework Decision on the European arrest warrant, on the acquisition of documentary evidence, as well as for the confiscation of proceeds of crime, and those against cybercrime, human trafficking, drug or fire weapon trafficking. These crimes can be loosely considered within the purview of Article 29 and following of the European Union Treaty, which outline the « defining properties » of constitutive elements of crimes and their related sanctions, so as to ensure that the common fight carried out by different member states of the EU together are more effective than individual actions.
17 Finally, special attention must be drawn to the national level, where each law enters into force, since each State has its own jurisdiction for the effective application of substantive and procedural criminal law.
18 Therefore, assuming the achievements of supra-national norms, an in-depth analysis of the topic at stake should be carried out, starting from the positive criminal law currently in force in each juridical system.
19 Before July 27,2007,14 national reports were prepared, most of which were from continental Europe (Germany, Austria, Spain, France, Italy, the Netherlands) and Eastern Europe (Bosnia Herzegovina, Croatia, Poland, Romania and Hungary). One is from Northern Europe (Finland), while two others come from Brazil and Japan.
20 Later, five other reports were added, coming from Turkey, New Guinea, Belgium, Sweden and Taiwan. The latter, however, can only be partially considered in our study.
21 In order to cover all the general features of substantive criminal law, juridical matters in each national report have been considered in the light of ‘globalisation’ and f the changes it brought about in each juridical system.
22 Most of the national reports examined, with the exception of Austria and t least partially of Finland, affirm the influence of the phenomenon of ‘globalisation’ and recognize the importance of consequent international duties, with the introduction of a wide range of changes to national criminal law.
23 On the one hand, the development of communication, increased « free » circulation of people, goods, services and capital beyond national borders offered new opportunities for the action of criminal networks operating on a high scale, while on the other hand, international law instruments and specifically judicial sources of the European Union introduced a variety of reforms in the national criminal law of each country.
24 Some national reports specifically outline the domains in which the influence of globalisation is particularly evident :
- in Spain, in crimes related to prostitution, corruption of a minor (art. 187 s. CPE), money laundering (art. 301 s. CPE), illegal trafficking in workers (art. 312 s. CPE), people (art. 318 s. CPE) and drugs (art. 368 s. CPE), weapon detention (art. 563 s. CPE) and crimes related to terrorism (art. 571 s. CPE).
- in Italy, the importance of organized crime has been repeatedly highlighted, which gained new impulse and strength, thanks to new contacts with illegal migration, human trafficking and foreign criminal organizations, such as the Chinese ‘mafia’ or riminal groups coming from Eastern Europe, but also Islamic terrorism.
- in Poland and Germany, the most relevant effect has been underlined with reference to indictment on terrorism charges, as in art. 115, par. 20 of the Polish Criminal Code and § 129 b StGB introduced with a ref rm in 2002, as prescribed by the European Union, and punishing terrorist association (§ 129 b StGB).
- in France, several laws against terrorism are mentioned, starting from the reform of the Criminal Code in 1992, to laws enacted in 2001 and 2006, as well as that against organized crime (2004).
- in Croatia, an entire Chapter (XIII) of the Criminal Code is devoted to crimes against goods protected by international law, the majority of which are committed by organized criminality. As a consequence, they fall within the purview of a Specialised National Office, according to the Croatian legislation against corruption and organized crime of the years 2001/2005.
- in Roma ia, according to the new Criminal Code approved by Law no. 301/2004 and not yet into force, International Conventions and European Union sources can be applied to terrorism-related crimes (arts. 295-300), organized crime (arts. 354-356), human trafficking (art. 204), migrant trafficking (art. 330), miners trafficking (art. 205), child pornography (art. 238), corruption of an international official (art. 308), drug trafficking (arts. 386-390), cybercrime (arts. 440-446) and crimes against the financial interest of the European Union (arts. 479-484) among the others. Existing special laws in these matters are applied still today.
- in Japan, important reforms of the Criminal Code were introduced in 1997, with the application of International Conventions against trans-national crimes (credit card forgery : 2001; the possibility to punish a crime committed abroad, if the victim is Japanese : 2003; human trafficking : 2006).
- in Brazil, the absence of terrorism-related crimes has been underlined. The United Nations Convention against Trans-national Organized Crime, however, was ratified, even though no direct penalization for this typology of organization has yet been introduced.
25 The concept of preparatory act is a relative notion, which can only be defined in relation to its object of reference. In criminal law, it must be considered in relation to the commission of a legally determined crime. However, since by definition, preparatory acts represent only the first stage of action, which cannot yet be univocally determined, as that in its future development, the notion can be more generally applied to a more serious offence, or to a set of non-precisely determined crimes, which one would like to prevent.
26 In the majority of countries, preparatory acts are not in principle punishable, since they are still considered « equivocal » and too remote from the act al perpetration of a crime to deserve punishment. Objectively, they do not constitute any risk or concrete threat of harming socially relevant interests (Italy), nor can they be held the cause of social harm (Germany).
27 Thus, preparatory acts represent the threshold before constitutive lements of punishable attempt, as it can be observed fr m the legal definition of attempt (Austria, Germany, Croatia, Spain, France, Italy, Brazil).
28 The borderline between the two, which is not always explicitly stated by the law, but sometimes only by the doctrine of jurisprudence (Japan), is frequently defined as « taking steps towards the realization of the actus reus », which also includes the intention to com it a crime (France, Germany, Finland, Hungary, the Netherlands). Additional elements, which can either be explicitly mentioned in the law, or derived by interpretation, can also be reported, such as closeness in time and space to an act of realization, the unequivocal character of the act and its adequacy (art. 56 Italian CC; art. 16 CC of Spain; Romania) and the danger of crime commission (art. 51 CC Finland, Chap. 23, Sect. 1 CC of Sweden; art. 45 CC of the Netherlands).
29 Some countries explicitly rule out punishment of « inadequate » actions, i.e. th se which « cannot » objectively constit te a crime (« reato impossibile» art. 49 CC Italy; art. 17 CC Brazil). Conversely, in other countries, inadequate (untauglich) attempt itself is punishable (§ 22 CC of Germany), with the exception of mere « putative » (Wahndelikt) attempt, on the ground that mere subjective opinion of having committed or attempted the commission of a crime is not punishable under Criminal Law, which is strictly related to the principle of legality.
30 Obviously, a general negative lement common to preparatory acts must also be outlined. The latter is characterized by the non (com lete) realization f a constitutive action of a criminal act, or by the inadequacy of its intended object.
31 However, whether it is necessary to know if « initiating acts» of crime execution must conform, at least partially, to a statutory definition of offence (« actes typiques»), i.e. starting to take possession of another person’s goods in the case of theft, in addition to displaying that the perpetrator’s acts, viewed in their outward appearance, be unequivocally geared towards completion of the crime, is yet uncertain.
32 In most countries, acts immediately prece ing « the offence » re considered characteristic elements of criminal attempts. They are strongly related to the offence due to the high probability that the criminal act be accomplished even without any further act by the perpetrator (Germany, Spain, Italy).
33 On the contrary, preparatory acts are those which do not concern the « actual realization » of a given crime, and which need additional acts by the perpetrator or third parties for the realization of criminal attempt, and a fortiori for rime consummation.
34 In the majority of the countries, specific provisions in the national Criminal Code or in the law are introduced to the effect that preparatory acts for specific crimes are themselves exceptionally punishable as separate crimes (Germany, Austria, Finland, Bosnia Herzegovina, Croatia, Japan, Brazil), or as attempts of certain crimes (Poland rt. 16 CC).
35 Neither mere « incitement » to the co mission of a crime, nor « mere agreement » (conspiracy), not followed by the actual commission of a crime, are per se punishable under Italian cri inal law (art. 115), unless provided otherwise by specific provisions. A wide range of cases of mere incitement to and conspiracy for the commission of particular crimes, punished as separ te offences, are listed in the Special Part of the Italian Criminal Code (art. 302 CC criminalizes « incitement » to the co mission of a crime « against the personality of the State », while art. 304 criminalizes « political conspiracy through association », with the aim to commit the offence).
36 In Spain, the criminal code (art. 17 and 18) defines three forms of preparatory acts, which can be relevant from a penal perspective, namely « conspiración», « proposición» and « provocación» (w ich also includes glorification of the act).
37 In France, the principle that both criminal intention and preparatory acts cannot be punished, without sufficient evidence, is not widely attested in ordinary jurisprudence, since preparatory acts, such as the mere visiting or spying out of the crime scene have sometimes been assimilated to preliminary stages of crime execution.
38 On the contrary, in Germany these acts are tre ted as « preparatory » and cannot be punished as attempts (§ 22 StGB), b t as « declaration of being prepared » to commit a felony, « acceptance of an offer for the commission of a felony », or « agreement on committing a felony », as in ex § 30, p r. 2, StGB, which prescribes a more lenient penalty with respect to crime execution, or attempt (infra .1.4).
39 In the special part, in the sense of § 80 StGB, mere prep ration of an offensive war is criminalized as a separate crime, and in § 83 the « preparation » of a cert in treasonable act receives a more lenient sanction, than the one prescribed by § 81 for the corresponding completion of the crime, namely treason against the Federal Government.
40 According to the Romanian cri inal code, some preparatory acts can be « assimilated » to riminal execution and are punished as attempts of specific offences.
41 The Hungarian Cri inal Code delineates the general conditions in which preparatory acts are punishable (art. 18), i.e. the law orders especially a sanction for the preparation, and the act of preparation is realized in order to commit an offence. It also states the general acts which must be committed, i.e. ensuring the conditions which facilitate or are required for committing an offence; invitation to perpetrate an offence; offering the perpetration of an offence; undertaking the perpetration of an offence; agreement on joint perpetration of an offence.
42 The Dutch Criminal Code was reformed in 1994, in order to criminalize the preparation of very serious crimes which carry a minimum prison term of eight years, especially within the domain of organized crime. This was an exception to the rule stating that preparatory acts which did not amount to punishable attempt as a rule were not punishable at all, while the police was forced to wait until the intended crime had been « initiated » in the sense of arti le 45. According to art. 46, preparatory acts are punishable which are defined as obtaining, importing, transiting, exporting or having « at one’s disposal » obje ts, substances, information carriers, spaces or means of transport aimed at the commission of a crime. Additionally, a 2007 law introducing special provisions against terrorism and other forms of very serious crime established the criminalization of conspiracy and other prepar tory acts aimed at the commission of specific crimes listed in art. 96.
43 It is possible to delineate four m in groups of offences criminalized as separate crimes, which fall within the scope of punishable preparatory acts.
44 A) It is foremost necessary to mention the so-called « criminal attempts» (delitti d’attentato, Unternehmensdelikte), whose structure is very close to that of ordinary attempts, since the mere commission of « acts to bring about » a specific harm (as « subtracting a part of national territory to State sovereignty ») is punished as an autonomous crime « in advance ». The completion of a crime may effectively be some way off once it is initiated; however, it would pose an unacceptable risk and endanger crime prosecution.
45 « Criminal attempts » re especially prominent in the domain of offences against state security and integrity of the State territory, against the life or liberty of the King or Head of the Nation, or against the economic, constitutional or social basic structures of a State.
46 A-1) In the latter cases, the most frequent interpretation of doctrine and jurisprudence prescribes that these acts cannot be punished as mere attempts, since the degree of punishment would coincide with an offence already punished as an autonomous crime. The judge in this case must apply the same characteristic elements generally required for the punishment of attempt, such as closeness in time and space to an act of realization, the « unequivocal character » of acts and their « adequacy », the non-impossibility to attain the goal described as an objective direction of the action (Italy), while mere individual intention of the perpetrator to realize his/her goal is not sufficient in this respect.
47 From this perspective, it is not appropriate to talk about punishments of preparatory acts stricto senso.
48 A-2) However, there are also « criminal attempts », which are not defined in relation to a specific event (as homicide, or harm to the Head of a Nation), but are rather the development of consequences in the long run, a « macro event », as it has been labelled by the doctrine, such as insurrection, civil war, the overthrowing of a government or a democratic institution, a pillage, which can neither be specifically connected with a chain of events with a sufficient degree of certainty, nor ascribed to a single in ividual.
49 On the basis of these hypotheses, it is not possible to apply the same elements required for the criminalization of attempt and determine when crime « initiation », immediately preceding the realization of the act which the law tries to prevent, occurs.
50 Therefore, it is possible to speak of punishment of preparatory acts generically defined with reference to the most serious consequences outlined by the law, which should thus be prevented.
51 B) The second group of cases includes crimes in which the law harshly criminalizes acts explicitly described as preparatory acts of other crimes, which do not necessarily cause any material harm, but (can) effectively « precede » the c mmission of certain more serious crimes. Examples of crimes within this category are illegal acquisition, or weapon detention, recruiting and training individuals, providing counterfeit documents, having at one’s disposal instruments to produce them, plus generally providing opportunity, means or information for the commission of the crime, preparing or possessing plans and trying to prevent, hamper or frustrate any official measure to prevent or suppress the commission of that crime.
52 In the aforementioned cases, we cannot talk about « attempt » as opposed to the realization of a crime which is its « ultimate » goal. Nor is it pos ible to require that the same sanction be applied, since the law provides explicit autonomous regulation to establish an independent sanction.
53 Some of the reports examined employ the term « preparatory crimes » (delicta preparata), if there is a more serious crime, whose criminalization encompasses that of the former, or alternatively of « autonomous crimes » (delicta sui generis) (Bosnia Herzegovina, Croatia, Hungary). The impossibility of simultaneous occurrence of the two categories of crimes is also recognized in other countries (Italy, Finland).
54 C) A variety of « preparatory acts » which re punished prior to the actual achievements of harmful deeds, or the realization of a very serious crime include collective or j int offences, which result in the joint association of more than a single individual f r their realization (Italy, the Netherlands, Hungary, Poland, Finland). In some reports, criminal association and organization fall within the scope of this category (Austria).
55 In the French report, it has been str ssed that, if the preparatory stage presupposes the presence of more than one participant, it is easier to thwart the plans conceived by the group, while criminalization at the stage of realization or of preparatory acts is justified with reference to the notion of collective offence. When several individuals join together to commit a crime, « an outward supplementary phase takes place before preparatory acts, namely the agreement among the criminals » (Dupe ron), which confers unequivocal character to preparatory acts.
56 However, it does not merely refer to an easier task than their criminal intention or the direction of preparatory acts. By contrast, it is rather concerned with an objective structure which is different or unrelated to the (collective) punishable act, emerging as a result of the convergence of sever l plans and conducts for the achievement of the common goal.
57 C-1) In cases where a stable network of relations is en isaged, which includes division of labour, providing the means, organizing internal relations and a plan of action, it is possible to devise the existence of a social organism which « lasts through time » and is crimin lized in most countries as the separate crime of association or criminal organization (cf. infra Chap. B sec 3).
58 Sanctions vary according to the different typologies, which rest upon the jointly pursued goal (terrorism, drug trafficking, recruitment or exploitation of prostitutes, etc.) and on the elements, methods and means employed (armed association, « mafia » asso iation).
59 However, the fact that all juridical systems recognize the criminal liability of association and criminal organization as autonomous crimes clearly displays that their « existence » and stable c llective structure represent a « durable » danger for the correct, secure and orderly development of collective social life, not only in the domain of political institutions (as in the case of a subversive or terrorist organization), but also in the fields of economy and public administration among others. This is due to their capacity of harming interests which must be protected in spite of crime execution or additional goals pursued by the organization (as in the case of « mafia » associ tion exerting control on a territory, on a specific economical or administrative domain, an organized association aimed at illegal trafficking in weapons, drugs and children, etc., i.e. all acts which pose concrete dangers for themselves as well as for the interests they strive to protect).
60 In this line of thought, it is not possible to talk about mere « preparatory acts » or « attempts », as opposed to the realization of crimes which can represent the ultimate goal of the association. Nor is it possible to require the same conditions for the criminalization of attempt, since the law explicitly rules out this possibility.
61 An important consequence of this distinction lies in the fact that the crime committed by an association can be criminalized independently of its actu l realization, or of the attempt of one or several crimes which might represent one of its ultimate goals.
62 C-2) On the contrary, in cases of mere agreement, plot or conspiracy, one must refer only to the « preparation » f a specific rime, namely of acts which are criminalized only in so far as there is no actu l accomplishment of the crime, and when the harsher sanction encompasses that of its preparatory acts (the Netherlands, Sweden, etc.).
63 However, as it has already been observed, it is not possible to characterize the latter cases as « attempts », nor to require the same sanction prescribed for such crime (supra 2.1.1.), since a different statutory definition applies in this case (for example § 3, par. 2, German StGB).
64 D) Finally, exceptional cases, when mere « expression of thought » is punished, which is deemed as dangerous since it carries the risk of a serious crime having been completed by other individuals, must also be outlined. This is the case of incitement to the commission of very serious crimes, to which their glorification is frequently assimilated, especially if it is « public » (Italy, Spain, Brazil).
65 In these cases, punishment is also applied to prior conduct, or sometimes even to that following the actual commission of one or more acts. The latter cannot be considered as « preparatory » in a trict sense, since it is not inextricably linked to a specific crime, as in the case of punishable participation (infra 2..).
66 Since « preparatory acts » are usually punishe, under exceptional circumstances, their criminalization as attempt occurs only with reference to specific offences, as outlined in the Special Part of the Criminal Code, or by specific provisions.
67 In most countries, attempt its lf can be punished only with reference to specific individual offences, both in the general part of the criminal code (in Italy art. 56 CC mentions only the attempt of a « crime », while excludes its relevance for all « offences »; in Germany § 23 StGB in ludes all serious crimes – Verbrechen- while attempt of less serious ones -Vergehen- is punishable only if explicitly stated by the law; in Belgium attem t is punished, only for all the « crimes » and « offences » listed by the law; et.), and in the special part, for each offence whose attempt can be criminalized (Croatia, Sweden, etc.).
68 The criminalization of attempt must be excluded, when is incompatible with the characteristics of the offence to which it is related. This is the case of involuntary non-completion or unsuitability (Italy, the Netherlands, etc.), or particular structure of the offence (for example criminal attempts : Germany, Italy, the Netherlands, etc : supra 2..2 lett. A).
69 The fields of applicability, in which preparatory acts can be punished, are very few. They can be classified as follows :
- According to an ancient tradition, all criminal codes outline several cases of « criminal attempts » (« delitti di attentato ») (Italy, France, Germany: supra 2..2 lett. A) and « preparatory crimes » (the Netherlands, Croatia, art. 153 CC, which defines several preparatory acts of crimes against the Republic, such as « providing or assuring means or information for the realization of the crime, preparing or possessing plans, taking agreements with third parties, in order to undertake future actions, leading to favourable conditions for the direct realization of the offence, trying to prevent, hamper, or frustrate any measure to prevent or suppress crime commission »; but also Bosnia Herzegovina, Poland, Finland: supra 2..2 lett. B) within the scope of crimes against the personality and security of the State, or in the domain of political criminal law.
Sometimes a distinction is also introduced among different typologies of preparatory acts; mere agreement or conspiracy (supra 2..2 lett. C-2) is punished only in the case of specific crimes, as explicitly regulated (Italy, art. 304 CC; the Netherlands, art. 96.1 CC; Hungary, Finland, Sweden).
In this respect, several acts commonly held as preparatory of other crimes (such as illegal weapons acquisition or detention, recruiting and training of other individuals to crime commission, providing counterfeit documents, etc. : supra 2.1.2 lett. B) are severely punished by the law as separate crimes.
- In some countries, preparatory acts of crimes against humanity (genocide in Poland) or of other crimes, as prescribed by International Criminal Law, are punishable (human trafficking in Hungary).
- A wide range of acts which harm or endanger public juridical goods (such as security and public integrity : Poland, Hungary, Germany, § 310, p r. 1, n. 2 StGB : crimes involving the causing of an explosion) or protected interests of the State (counterfeiting of money : Poland, Hungary, Finland, Brazil, etc.) are punished also in the domain of economic crime (money and goods laundering : Hungary, Finland).
- In several countries, it is possible to punish preparatory acts, also with respect to crimes endangering the protection of personal property or goods, such as life or personal integrity (Spain, Hungary, Japan). However, considering the illegal carrying of and possession of firearms, and of means of offence as « preparatory acts » of oth r crimes, it is also possible to include violent crimes against property and personal liberty (theft, extortionate kidnapping, etc : Brazil).
- In addition, punishable « preparatory acts » can lso be found in specific domains, where a strong need for punishment is especially prominent, before the complete realization of the act, and particularly of « dissemination », which precisely causes a violation of protected interests. This occurs with cybercrime and particularly with violations of the rights of intellectual property, which are effected, thanks to the new digital techniques of reproduction and dissemination of thoughts and data, as the Internet. In Spain, for example, art. 270-3 CC punishes manufacturing, importing, transiting and detention of « whatever means specifically designed to facilitate the commission of the crime ». However many other countries (Germany, Italy, Hungary, tc.) provide that acts such as mere detention or having specific devices or immaterial objects « at one’s disposal » (for example : access codes, child pornography images, etc.) be criminalized, by application of international conventions (such as OMPI (2000) or the European Council Convention against Cybercrime (2001)), or of European Union directives.
- Finally, punishment of « incitement » is pres ribed for the commission of very serious specific crimes against the security of the State (Italy, art. 305 CC), or against public order (Italy, art. 414 and 415 CC), to which their « glorification » is frequently assimilated, especially if it is « public », when it carries the risk of a future crime being committed by other individuals (Brazil).
- Separately, it is also necessary to mention « offences of association » or « organized crime », which cannot be merely classified as preparatory acts of crimes, the realization of which might be one of their aims (supra 2.1.2 l tt. C-1), and which harm or endanger different juridical goods.
70 The Austrian crimin l code lists these types of crimes together with mere agreement under the heading of « organization crimes » (§ 27 : « conspiracy »; § 278 : criminal association; § 278 a : crimin l organisation; § 278 b : terrorist association; § 279 : armed associ tion). In other criminal codes, they are listed in different chapters : the Italian code includes them among crimes against the personality of the State, in the case of armed organization (art. 306 CC), or terrorist organization (art. 270-bis), while it places them among crimes against public order, if the forming of a generic association consists of an agreement on a future common pursuance of a crime (art. 416). Special aggravation is applied, if the purpose is human trafficking (art. 416, last par., introduced by law 228/2003) or mafia association (art. 416-bis), or when explicitly stated by drug regulation, if the association is defined as aimed at drug trafficking (art. 74 D.P.R. 9.10.1990, n. 309).
71 The fact that applicable punishments in the case f mere preparatory acts are more lenient than those of the corresponding offence actually realized is stressed by all national reports (Austria, Japan, Taiwan).
72 Sometimes limitations are explicitly formulated with respect to the maximum term of imprisonment with can be applied (Italy: art. 302, par. 2, and art. 304, par. 2, CC establish that in the case of incitement or agreement, not followed by the commission of the offence, the term cannot exceed half of the term set for the offence to which incitement refers, while the term prescribed for attempt, according to art. 56 CC cannot exceed 2/3 of the term set for the offence. In the Netherlands, art. 46, par. 2, CC establishes half the term set for the offence; 1/3 reduction is prescribed for attempt, in the sense of art. 45, par. 2, while life imprisonment is replaced by prison terms which respectively cannot exceed 15 and 20 years). Sometimes the applicable punishment is determined as a reduction of the prison t rm, which can be mandat ry (in Spain, the term is reduced by 1 or 2 degrees, corresponding to half of the term set for the offence, ex art. 70-1-2 CC; in Germany, the term cannot exceed half of the term set for the offence realized or attempted, in case of mere « offer to commit the crime », « acceptance of such offer » or « agreement for the commission of the crime » ex § 30, par. 2, StGB. On the contrary, in the case of attempt, the prison term « can » be reduced, only with respect to that of the committed crime) or optional (Hungary), and is applied on the basis of the term set for the commission of the offence, or for attempts of the main crime.
73 As a conclusion, punishment established for crimes which can be classified as preparatory acts of other crimes cannot be applied, if the main crime has been committed, since the punishment established in t is case encompasses that prescribed for actual « preparatory crimes » (Italy, art. 302 and 304 CC; the Netherlands, Croatia, Bosnia Herzegovina, Finland, Sweden, et.).
2.2.1. Treatment of the Acting in Concert of Individuals in the Commission of an Offence (categories of criminal instigation, cooperation, complicity...)
74 A) Criminal codes in the majority of countries provide a system to regulate criminal liability in the case of the acting in concert of individuals in the commission of an offence, where the role of the perpetrator is di tinguished from that of other participants, who, according to a dualist syst m, are in t rn characterized as « instigators » and « accomplices ».
75 In other countries, such as Austria, France, Italy and Brazil, on the contrary, criminal law is based on a monist system, presupposing no difference in principle between the liability of the perpetrator and the other participants in the offence (§ 12 CC Austrian, art. 121-1 CC French, art. 110 CC Italian, art. 29 CC Brazilian). This amounts to saying that the person who offers any kind of « contribution » to the cri inal offence, will be liable to the same sentence set for the « jointly committed » ffence, provided that no difference is established among the extent or specific nature of their contributions in specific circumstances, which can lead to differences in individual liability (infra 2..2).
76 B) Different conceptualizations of the role of the perpetrator i fluence that of the participant.
77 The perpetrator is the person who effectively realizes the (main) subjective and objective elements of the offence criminalized by the law, the person who actually « carries out » the a t (Poland), or rather, according to a functional definition proposed by the German doctrine, and subsequently endorsed by a variety of countries, someone who has « control over the act ». The latter results from a combination of objective elements, i.e. typical characteristics of crime realization, and subjective ones, such as those concerning intent and willingness to carry out the act (Germany, but also Croatia, Bosnia Herzegovina, etc.).
78 The person who acts « conjointly with the perp trator » and intends to assist in the commission of the crime is equally considered a perpetrator (co-author, « co-perpetrator », « joint-principal »: Germany, § 2, par. 1, StGB; Spain art. 28 CC; the Netherlands, art. 47, par. 1 CC; Bosnia Herzegovina, art. 29 CC; Hungary, Poland, art.18, par. 1, CC; Romania, art. 24 CC).
79 In the latter case, other countries employ the term « accomplice » instead of perpetrator (Finland, art. 5.3 CC; Croatia, art. 35, par. 3, CC). In the absence of a legal definition, in Japan the pu ishment set for the perpetrator of a crime is also applied to people who did not physically realize the act, on the basis of the theory of the « perpetrator-agent », namely someone actively participating in the commission of the crime , with the intent of pursuing the principal’s goals.
80 In Poland, the person who « directs » crime exec tion, or commissions a crime actually carried out by someone else is treated as a perpetrator (art. 18, par. 1, CC). In Spain, a differentiation is proposed between two senses of the term « perpetrator ». The wide sense of the term « encompasses » both someone who induces someone else to commit the crime, and also all those who take part in the offence, where a difference is drawn between anterior and simultaneous complicity (cf. art. 28 CC Spain).
81 Different classifications are also proposed with reference to the person who has control over the crime through another innocent individual, who serves as a human means for the perpetration of the crime. In some countries, the term indirect perpetrator is em loyed (or « mediator », « Mittelbarer Täter»: Germany, § 25, par.2, StGB; Sp in, art. 2; the Netherlands, rt. 47, par. 1, CC, Hungary : « indirect principal »), while elsewhere this conduct is not classified as acting in concert of individuals (Finland, art. 5.4. CC; Romania, where the term « improper participation » is em loyed; Italy, art. 46, par. 2 and 48 CC).
82 C) Forms of participation to a crime re widely different. However, in most countries the law does not propose any constraining definition. This is due to the intrinsic difficulties in tracing abstract boundaries of criminal responsibilities and their different degrees in a precise way, when conjoint commission is envisaged. Hence, doctrinal elaboration and jurisprudential interpretation play a key role in this respect.
83 It is generally argued that a participant is s meone who provides a considerable contribution, which can either be material or moral, to the commission of an offence, without being the direct perpetrator.
84 Specifically, a basic difference can be outlined between instigator nd accomplice (« Anstifter » and « Gehilfe », « instigator » and « abettor and/or aidor », « inductor » and « accomplice »: G rmany, § 26 and § 27 StGB; Bosnia Herzegovina: art. 30 and 31 CC; Croatia, art. 35, par. 4, CC; Hungary; Romania, art. 25 and 26 CC; Poland, art. 18, par. 2 and 3 CC ), both when the role of the former is assimilated to that of the perpetrator (the Netherlands, rt. 47, par. 2, and 48 CC; Finland, art. 5.5 and 5.6 CC; Spain, art. 28, par. 2 and 29 CC), and when the law generally follows the monist system (France, It ly).
85 The instigatorevokes or rovokes the decision to commit the crime in the perpetrator (who in this case, must not be already determined to commit the crime) and presupposes adequate concrete realization of the act in advance.
86 The aider or accomplice mu t provide any support to the commission of the main crime by the perpetrator consciously and willingly, while causal connection in the sense of condition sine qua non between the as isting action and the main crime is not a prerequisite (Germany). Conversely, in countries adopting the monist system, a causal connection is held necessary, in order to establish criminal responsibility with respect to all the participants to the criminal act, including accomplices (Italy).
87 In all the cases outlined, the term accessory liability can be employed. It is generally defined as strongly dependent on that of the perpetrator, or better on the unjustified commission of an act, which can be assimilated to criminal liability, i.e. typical and anti-juridical (Germany, Bosnia Herzegovina, Croatia, Hungary, Romania, etc.).
88 The most relevant consequence of accessory participation is th t, if the offence has not been realized, or at least attempted by the perpetrator, or justified, it is not possible to talk about accessory liability, unless mere instigation (not complicity) be explicitly punishable as a « preparatory act », and thus more leniently than a complete crime (Germany, § 30, par. 1 StGB; Bosnia Herzegovina, art. 26.2 CC; Romania, art. 29 CC, which prescribes punishment, only for very serious crimes; Croatia, art. 37, par. 2 CC, prescribing punishment, only when an attempt to commit the same crime is itself punishable; Hungary; and i fra .2.2.).
89 According to the same perspective, mere agreement (conspiracy) not followed by crime commission cannot be punished (Japan, where a difference from Anglo-American juridical systems is underlined), unless special provisions are introduced which equate conspiracy to « preparatory acts » f specific crimes (supra, 2.1.2, letter C-2).
90 Monist systems provide that the punishment of co-participants is conditioned by the commission of the crime by one or more of them (defined as « perpetrators » and « co-perpetrators » by the doctrine and the jurisprudenc ). Punishability in this case also depends on the absence of a justification. Specifically, it would not be possible to conceive only the responsibility of other « participants », whose « causal contribution » could not be esta lished, without assessing their roles as instigators (which in Italy also encompasses the aggravating role of « determiner » cf. rt. 112, n. 3 and 4, CC which establishes aggravation for this role, on the ground of the weight of one’s contribution in the perpetration of the crime), or as accomplices (equally France, It ly, Brazil). Art. 115 of the Italian Criminal Code states that instigation and conspiracy are not punishable, if not followed by the actual realization of the crime.
91 By contrast, in other countries, among which figures Spain, the liability of the instigator is « assimilated » to the « main » lia ility of the perpetrator, whereas the contribution provided by an accomplice is the only one which can be really deemed as « accessory » (the Netherlands, respectively art. 47, par. 2 and art. 48 CC).
92 D) As for the moral element, participation is usually criminalized as intent (in ll its various degrees : « intentional », « direct » r « accessory »: Germany, the Netherlands, Italy, Bosnia Herzegovina, Hungary, Finland, etc.), by stressing the fact that the accessory’s intent must extend to his/her own « contri ution » as w ll as to (the elements of) the crime towards whose commission it is made (Germany, the Netherlands, Italy, Bosnia Herzegovina, etc.).
93 The ultimate goals of the act, which are constitutive elements of the offence, pursued by other co-participants must also be included as elements of the participant’s intent, even if he/she is not pursuing them as a personal goal (i.e. terrorist intent, the possibility of gaining an advantage). In order to apply general provisions on the subject of intent, it is also necessary that the participant act consciously.
94 Sometimes perpetrators and/or second parties are punished in relation to the consequences of their acts, on account of unsuitability (the Netherlands, art. 47, par. 2, CC; Croatia, art. 36, par. 1, CC), or exceptionally of objective responsibility in specific borderline and ambiguous cases of the acting in concert of individuals (Italy, art. 116 CC for a co-participant, instigator and/or accomplice, who aimed at committing an offence which is different from the one effectively realized; Romania for the « improper acting in concert »).
95 Intent does not necessarily presuppose previous knowledge or prediction of all the details of the offence, including personal identities and respective tasks of the other co-participants, which can even be partially unknown, since general knowledge of the criminal plan is sufficient in this case (Germany, Bosnia Herzegovina, the Netherlands, Italy, etc.).
96 It is necessary to recognize that juridical criteria for the attribution of criminal liability in the case of the conj int commission of a crime by several individuals, as well as in the case of attempt and preparation can widen their scope beyond the formal conformity of each individual to mere legal criminalization. According to many hypotheses, the perpetrator or co-perpetrators do not entirely carry out an act which conforms to legal criminalization in itself, but only some acts, which give rise to the crime, only by connection with other acts or other accomplices (for example violence by one of the co-perpetrators and a demand for money by another). The forms of participation listed in the general part of many criminal codes include instigation and complicity, which only partially typify the content of punishable acts with open definitions, or which can be used as examples, or describe aggravating and mitigating circumstances, which can be applied to the concept of contribution employed within monist systems.
97 For example, according to the general part of the criminal codes analyzed, the role of the instigator is defined as someone who : provokes (determiner) or reinforces the decision to commit the crime, i.e. praises, persuades, presents the advantages of crime commission, promises or provides reward, threatens, abuses of his power, gives orders, deceives someone or does not divulge secret information, gives advice and instructions, bets, tries to convince someone that the crime will not be discovered, etc.
98 An « accomplice » is expli itly defined as someone who « facilitates » crime execution, i.e. :
crime commission (art. 48, par 1and 2. CC the Netherlands);
« provides advice or instructions for the commission (...) », « promises to remove
traces, and hide the goods provided by the offence in advance » (art. 3, par. 2
CC Croatia; also Bos ia Herzegovina tc.);
« prevents, hampers or frustrates any measure to prevent or suppress crime
commission » (Bosnia Herzegovina)
« supports by giving advice, with specific actions or in other ways» (art. 5, p r.
6, CC Finland); etc.
100 It can be observed that several actions can either be classified as instigation or complicity (for example providing instructions or advice), and open formulas can be employed for both (Spain, Finland, etc).
101 It is generally held that instigation must precede crime execution, while complicity can be realised until the act has been completed. The former is usually represented as « moral » parti ipation, while the latter can be characterized as « material » co tribution, even though no absolute classification can be applied in this case.
102 The criterion of causal connection (conditio sine qua non) employed by monist systems to determine the weight of the « contribution » by each co-parti ipant presents several problems. Firstly, a relation must not be established among the events, which can be repeated on the basis of widely recognized scientific or statistic laws, but among the behaviour of individuals, who can change their conducts independently of both plans and decisions already taken. In addition, certain « acts » w ich are not per se concret ly useful for crime commission, can nevertheless contribute to establish individual liability in the case of acting in concert.
103 There are systems which explicitly rule out weight of the contribution as a criterion of causal connection for « complicity », which represents both a marginal case and the most common and open form of participation (Germany).
104 In many juridical systems, specific forms f complicity are also typified as autonomous crimes (the Netherlands: arts. 131-136,140 CC which punish dissemination of incitement and instructions for the commission of serious crimes, participation of a public official and participation in a criminal organization etc; France, art.132-71 CC, which provides aggravation in case of a group of people « joining together, in order to prepare the commission of a crime, consisting of one or several material elements of one or more offences »; Hungary, art. 321, par. 3, lett. C, CC, which also introduces aggravation in the case of an offence realized by a « group » of peo le; etc).
105 However, for the same reasons mentioned earlier (2.1.2 sec. C-1), one must not forget the status of autonomous crimes against specific interests, which must be recognised in the case of crimes represented by the joining of an association or criminal organization, compared to crimes which can either be the objects, aims or means of their criminal activity.
106 On the basis of the principle of accessoriness and, a fortiori, of monist systems, the punishment prescribed for committed crime is equally applied to all participants « under » spe ific legal terms. In countries where a distinction exists between accomplice (« Gehilfe », « abettor and/or aidor ») and other second parties, the liability of the former is deemed as less serious than the one of the perpetrator, as well as that of the instigator (« Anstifter », « instigator »). In this case, some codes introduce constraints (Germany, § 27, p r. 2 and § 49, par. 2 StGB; Spain, art. 28,61 and 63 CC, which provide the same punishment for both the perpetrator and the instigator, while a penalty lower by one degree is prescribed for accomplices; the Netherlands, art. 49 CC, which introduces a reduction of 1/3 of prison term for complicity and the replacement of life imprisonment with a term of 30 years; Finland with art. 5., establishing a reduction to 3/4 of the maximum prison term in the case of complicity and the replacement of life imprisonment with a prison term between 2 and 12 years; Japan § 68 CC), while thers merely outline the possibility of generic penalty reduction (Bosnia Herzegovina, art. 31.1 CC; Poland, art. 19, par. 1 CC; Hungary).
107 In all cases, punishment varies, according to the extent of individual guilt, on the basis of general rules about special circumstances, personal or subjective, outlined by certain codes (Poland, art. 20 and 21 CC; Finland, art. 5.7 CC; etc.).
108 In countries employing a monist system, where no distinction is outlined between different co-participants and second parties on the basis of the role played in conceiving or carrying out a crime, no constraining criterion to differentiate the sanctions applied is presupposed. The latter, however, must be appropriate to the extent of the individual guilt, on the basis of general rules (Austria) and special circumstances, personal or subjective, explicitly prescribed (Italy, art. 111 and 112 CC for aggravating circumstances, which include the selection of certain people for the crime and encouraging, organizing and directing co-participants; art. 114 CC for mitigating circumstances ). Specifically, mitigation for « less prominent » participation can be established on the basis of the weight of a contribution rather than on the role played in the realization of the crime, while the final decision is up to the judge (Italy, art. 114 par. 1 CC, very rarely applied; Brazil, art.29 CC, which in the first paragraph prescribes a reduction of the term from 1/6 to 1/3).
109 Special circumstances, where punishment is not applied, are outlined by some countries, if the crime has not been completed due to spontaneous withdrawal f accomplices (Croatia, art. 36, par. 4 CC; Poland, art. 23, par. 1 CC), while in other countries the absence of a punishment for the agent provocateur is interpreted on the ground of the absence of an intent (Germany).
110 Several national reports (France, Italy, Poland, Brazil) highlight the fact that new indictments and regulations have been introduced, starting from the late 1970s, in an attempt to contrast terrorism and/or organized crime as internal phenomena more effectively.
111 Specifically, in Italy these phenomena gained imp rtance with political terrorism of the Red Brigades (Brigate Rosse) and increased spread of the « mafia » and oth r similar organizations. Hence, new indictments were introduced in the Italian criminal code in the years 1978-1980 to penalize kidnapping (art. 289 bis CC) and attempts « with a terrorist or subversive intent » (art. 280 CC) as s parate crimes. In addition, « terrorist or subversive intent » con titutes a ground for mandatory aggravation of the sentence, w ich is increased by 50 percent for any crime (art. 1 d.l. 625/1979, turned into law 15/1980)) other than the offences especially qualified by this intent. Some years later (1982), a new indictment related to « mafia organization » (art. 41-bis CC) was introduced, providing aggravating circumstances (from 1/3 to 1/2 of the prison term) for all crimes committed « while acting under the conditions outlined in art. 416 bis CC, or with the intention to provide support to criminal organizations penalized by that provision » (art. 7 d.l. 152/1991 turned into law 203/1991). These reforms have been complemented by additional provisions, both material and procedural, representing an exception to common law, also aimed at promoting the dissolution of those organizations and cooperation with investigators.
112 In the new French riminal code (1992), where the importance of fighting against organized crime was already paramount, a new aggravating circumstance of organized group was i troduced (art. 132-72 CC : supra .2.1).
113 Conversely, in Brazil the cri inalization of « terrorist offences » is based on the law on national security (1983), dating back to the period of military dictatorships, while no juridical definition of the phenomenon has yet been proposed, even though the term terrorism is also employed in the Constitution.
114 A general tendency, already apparent in those years, can be outlined, which favours the introduction of more severe penalties, punishing specific crimes « in advance », thus emphasizing the pursued goal, and the role of association and criminal organization per se.
115 3.1. Are there, in your juridical regulations, explicit prescriptive definitions of « terrorism » and of other very s rious crimes ? Do they comply or are they harmonized with internationally established definitions (for example, with the European Union Framework Decision against Terrorism (2002), or with the UNO Convention against Trans-national Organized Crime (2000))?
116 A) Prescriptive definitions and/or specific categories of « terrorist acts» re included in the criminal codes of all the countries examined, as outlined in the various national reports (Austria, art. 278 CC; France, art. 421-1 CC; Italy, art. 270 sexies CC, defining « terrorist intent »; the Netherlands, art. 83 CC, listing all the offences corresponding to such a character; Bosnia Herzegovina, art. 201.1 CC; Croatia, art. 169 s. CC; Hungary, which presents specific indictments, but lacks a general definition of the concept; Poland, art. 115, par. 20, CC; Romania, art. 2 of law nr. 535 25 November, 2004; Finland, Chapter 34 a, section 6 CC). However, in some countries an explicit definition of the term « terrorism » has n t yet been proposed, while the concept is differently applied through systematic interpretation of the norms (Germany, § 129 a StGB pro ides a list of particularly serious crimes, whose commission is itself sufficient, to qualify an association as a « terrorist » on; Spain, where the category of terrorist crime is mentioned in the title of Section 2, Chapter V, title XXII, Book II, art. 571 s. CC; Japan, where a general notion of « criminals aiming at threatening people » is rep rted in the law against their financing).
117 Many of these provisions were introduced in the aftermath of September 11,2001 terrorist attacks in New York, in an attempt to put into practice the European Council Framework Decision 2002/475/JAI on combating terrorism (Italy, the Netherlands, Bosnia Herzegovina, Croatia, Poland, Romania, Hungary, Finland), even though specific definitions presented by each country do not exactly coincide with those reported by the EU.
118 For example, the Italian provision does not enumerate the single acts which should fall under the definition of terrorism. Therefore, interpretation is necessary to establish which indictments broadly correspond to those outlined in the EU Definition. In other countries, indictments are either partially listed (Bosnia Herzegovina, Croatia, Romania), or the minimum term of imprisonment is outlined (Poland: maximum term not exceeding 5 years of imprisonment). There are also countries where specific intents are extensively described (the Netherlands: cf. infra .2), are quite different (Bosnia Herzegovina, Romania, Poland), or are not explicitly mentioned for each offence (Romania).
119 The need to consider the International Convention for the Suppression of the Financing of Terrorism adopted by the General Assembly in resolution 54/109 of December 9,1999 has also been emphasised (the Netherlands: on this topic, see the works of Section II).
120 B) Similarly, new indictments and definitions of other forms of very serious crime have been introduced, especially with reference to « organized crime», sometimes putting into practice the United Nations Convention against « Trans-national Organized Crime » (2000) and its additional pr tocols (Germany, § 129 StGB; Bosnia Herzegovina, art. 250 CC; Croatia, art. 89 par. 23 CC; Italy, law March 16, 2006, n. 146; Poland, several laws introduced in 2005; Romania, law 565/2002; Finland, Chapter 17, Section 1a (4) CC; Japan).
121 Some countries introduced special provisions, especially in the realm of criminal procedure, to fight serious crime more effectively (with particular reference to trafficking in drugs, migrants and laundering of money and goods). However, no general definition f « organized crime » has yet been pro ided (France, the Netherlands, Hungary, Brazil, which ratified the United Nations Convention against Trans-national Organized Crime (2000) and its additional protocols).
122 3.2. Wh t are the constitutive (or differential) elements of these specific offences as opposed to common offences ? What about their objective element (actus reus) and their subjective element (mens rea)?
123 A) Several reports argue that the constitutive differential element of « terrorist crimes » is their ai, that is supporting the commission of criminal acts, as defined by the law (the Netherlands art. 83 a CC : « seriously frighten a population or part of the population of a cou try, to unlawfully compel a government or international organization to do, refrain from doing or suffer any act, or to seri usly disrupt or destroy the fundamental political, constitutional, economic or social structures of a country or international organization » [the words exten ing the corresponding part in the Framework Decision of the European Union are in italics]; France art. 421-1 CC : « an individual or collective enterprise aimed at seriously damaging public order through intimidation and terror strategies »; Poland, art. 115 par. 20 CC : « 1) considerable intimidation of many people; 2) forcing public organs of the Republic of Poland, or another State or an organ of an international organization to accomplish or refrain from accomplishing specific tasks; 3) causing considerable trouble in the government or economy of the Republic of Poland, of another State or international organization, or threatening to do so »; Japan, the intention to « intimidate people » and/or « political aim » ) wh re elaborated by jurisprudence (Spain: « the aim to subvert constitutional order, or severely damaging public peace »).
124 However, as suggested in some of the reports examined, the law also needs an objective element to ifferentiate terrorist crimes from ordinary ones : « their capacity to severely harm a country or an international organization, by their very nature and context » (Austria, Italy, Bosnia Herzegovina, Croatia, Romania, Finland, and also Germany, Hungary, New Guinea).
125 It must be pointed out that art. 11 of the Framework Decision of the European Union (2002) explicitly defines the aim w ich must characterize terrorist acts as « intimidating people or unduly compelling a government or international organization to perform or abstain from performing any act, or seriously destabilizing or destroying the fundamental political, constitutional, economic or social structures of a country or an international organization…».
126 However, it also points out that the act must provoke a « concrete danger of seriously damaging a country or an international organization ».
127 As a consequence, it is here argued, three constitutive elements can be outlined for terrorist acts, as also put forward in the Austrian report, namel :
- the intentional commission of acts corresponding to one of the indictments listed in the law;
- the pursuit of a « terrorist aim » (among the thers), which is to be characterized in such a way that there must be an actual teleological relationship « means/goal » between these a ts and their typic l goal. The latter must in turn (be able to) be shared and/or known by several individuals, in case of the acting in concert or criminal association, since it is not an interior or psychological characterization of each of them (intent), but rather an accomplishment of its object (in Germany, Spain, Italy, Croatia the ex ression « subjective element of an illicit act» is employed, without mentioning a specific kind of intent).
- finally the concrete danger of « seriously damaging a country or an international organization », which must be also included among the intentions (prediction and willingness : intent) of each individual.
128 B) As for « organized crime», on the contrary, a different picture emerges.
129 Only few countries have not (yet) adopted specific legislation against the phenomenon or a definition of « organized crime » (the Netherlands).
130 Among the other group of countries, it is possible to delineate two main situations:
B-1) There are a group of countries, where the qualification (explicitly : Croatia rt. 89, par. 23; or implicitly) depends on whether the crime has been committed by (members of) a criminal association or a qualified criminal organization (mafia association : Italy art. 416- is CC; or aimed at trafficking in drug, migrants, weapons, or money and goods laundering etc.)
131 In these countries, mere participation in these asso iations is also criminalized. However, in some cases, actual commission, or at least attempt of specific crimes is also required (Bosnia Herzegovina, 249, par. 1, CC; Finland, Chapter 17, Section 1 CC), in addition to the special aim f « committing one of several crimes » (pos ibly serious, or of a specific type), or exerting control on economical activities, public markets etc. (Italy, Croatia) and obtaining financial or material benefit, either directly or indirectly (Romania).
132 B-2) In the second group of countries, only a mere enumeration of serious (or « very serious ») crimes is proposed (Poland, with many provisions to laws which have ratified International Conventions; Brazil, pr senting specific legislation for « very serious crimes », such as trafficking in drugs, weapons, human beings, children pornography, money laundering), sometimes with reference to the typology of punishment prescribed, and whose commission provides evidence of the existence of a criminal organization and a ground for aggravating circumstances, such as an organized group (France, Law of March 9,2004, aka Perben II, which re-proposes a list of very serious indictments, such as drug trafficking, procuring, money laundering, extortion, dealing in stolen goods etc). The latter are criminalized without any definition of « organized crime », qualified criminal association or defined by a « common » ass ciation of criminals (France, art. 450-1 CC; Brazil art. 288 CC; Poland, art. 258 CC).
133 3.3. In particular, does the incriminating rule or aggravating circumstance explicitly require that the perpetrator be acting in the pursuit of a specific intent (having a terrorist or subversive character, or concerning the aims of a criminal organization)?
134 It is not possible to propose a unique positive answer, but only a partial one.
135 A) In most juridical orders examined, and also born out by the analysis carried out in the previous sections (3.2), it appears that terrorist crimes – or those aggravated on the ground of their terrorist character – explicitly require th t the perpetrator pursue « a terrorist aim », as defined by the law (Austria, France, Hungary et.). The latter cannot be merely characterised in terms of an interior or psychological element (special intent). On the contrary, it has to do with the « accomplishment » f its object, through which the law expresses the need of an actual teleological relationship « means/goal» with the objective « acts » characterising crime execution. Hence, this « typical goal » must (be able to) be shared and/or known by several individuals in case of the acting in concert of individuals or criminal association (Bosnia Herzegovina).
136 B) As for other very serious forms of crime, and « organized crime » in the first place, different normative formulations can be outlined.
137 However, the structure of a criminal « organization» or criminal association aimed at the « conjoint » c mmission of certain very serious acts require that a teleological relationship « means/goal » b tween the goal typified by the riminal group and specific acts related to crime execution, including mere participation in the association, be specified. As a consequence, even in these cases, the « typical goal » mu t (be able to) be shared and/or known by several individuals who form the association or act conjointly in crime realization (Bosnia Herzegovina).
138 As for the content of these « aims », loosely speaking, it might be argued, that while terrorism generally has a « subversive » aim, as des ribed by the law, organized crime pursues « illegal profiting » (Croatia, Finland), or more generally acts « obtaining a financial or other material benefit, either directly or indirectly », according to the definition of an organized criminal group provided in art. 2, letter a) of the United Nations Convention against Trans-national Organized Crime (2000).
139 1. Has th re been an expansion of the forms of preparation and participation (for example, concerning offences in the matter of terrorism and other forms of very serious crime)?
140 National reports gave a positive an wer with respect to the expansion of forms both of preparation and participation related to terrorist offences and other forms of very serious crime.
141 The majority of provisions on the subject, it has been underlined, have been introduced very recently by laws against terrorism (Austria, 2002 and 2004; the Netherlands 2004; Italy, 2001 and 2005; Germany 2002; Bosnia Herzegovina, 2003; Poland, 2004; Romania, 2004; Hungary, 2003; Finland, 2003; Sweden, 2003; Japan, 2003; Taiwan, 2001 ) and against organized crime (Poland, 2001; Romania, 2003; Japan, 2005; Brazil, 2004, etc.), applying international decisions, and sometimes even considering (Italy) the New Council of Europe Convention (STCE n. 196) on the prevention of terrorism, opened for signature at Warsaw, May 16,2005 and entered into force on June 1,2007.
142 1.1. Are mere preparatory acts, such as the agreement or incitement not followed by the commission of the crime, punished as separate offences or as conspiracy ?
143 Mere preparatory acts, such as incitement or a reement n t followed by the commission of the crime are punished as separate crimes in many countries (Germany § 129 b, par. 5, se tion 2, StGB; Spain art. 579 CC, which cri inalizes « conspiracy », « justification » and « agreement » to co mit terrorist crimes, according to arts. 571 to 578; Italy art. 304 , where the applic tion has been extended to new terrorist crimes : art. 270 bis – associ tion, 270 ter – as istance, 270 quater – re ruitment, 270 quinquies – trai ing 280 – cri inal attempt, 280 bis terrorist crimes employing explosives, 289 bis idnapping with a terrorist aim; the Netherlands, art. 46 CC; Romania, art. 285 CC; Finland; New Guinea; etc.), w ile in others as conspiracy (Austria, art. 277 CC including several typologies of serious crime, such as killing, extortionate kidnapping, trafficking in slaves, prostitutes, or drugs etc.; Italy art. 302 the applic tion of which has been extended to new terrorist crimes; the Netherlands, art. 96, par. 2, etc.; Bos ia Herzegovina, art. 247 CC; Croatia, art. 247 CC; Hungary, art. 137, n. 7 CC; Finland).
144 It must be pointed out that in some cases incitement or agreement must be « public acts », in ord r to be punishable (Brazil, Italy, art. 414, par. 1 CC and par. 4 added by the 2005 law against terrorism, prescribing aggravation « of 50 percent of the term of imprisonment » if the o ject is the commission of terrorist crimes or crimes against humanity. The indictment is applicable, even if the crimes are effectively committed, while art. 304 CC does not require a « pu lic » con ition, but is not applicable in the latter hypothesis, since it is incorporated as an act of participation to a crime ex art. 110 CC as instigation).
145 In some other countries, instigation not followed by crime commission can be punished as its attempt (Austria, Germany, Croatia) or deemed as an act of participation in an association or group which can be criminalized in itself, while otherwise it would not be criminalized (Belgium).
146 1.2.More particularly, are there specific indictments (and, if so, when have they been introduced) punishing separately such specific activities (as recruitment, training, making or possession of falsified documents, the making, possession or purchasing of explosive substances or of weapons etc.), that take place prior to the actual carrying out of acts of terrorism or of the criminal plan ?
147 In some countries, indictments which criminalize specific activities playing a role in the actu l execution of terrorist crimes or in the realization of the criminal plans as separate crimes have been introduced, especially thanks to recent provisions mentioned in the previous sections. The latter include recruitment (Italy, art. 270 quater CC; the Netherlands, art. 205 CC; Croatia, art. 167 b CC; Romania, art. 33, par. 1, letter b law 535/2004), training (Italy, art. 270 quinquies CC; Romania, art. 33, par. 1, letter b law 535/2004), possessing or producing counterfeit documents (Austria, art. 223-224 a CC; Italy, art. 497 bis CC; Spain, art. 400 CC aggravated by provision of art. 574 CC : cf. 1.3; the Netherlands, art. 225 CC aggravated by par. 3, due to « the intent to prepare or facilitate a terrorist crime »; Romania, art. 33, par. 1, letter b law 535/2004), possessing, producing or acquiring explosives r weapons (Austria, art. 280 CC; Germany, § 310, par. 1, . 2 StGB : provoking an explosion; Spain, art. 573; the Netherlands, art. 83 CC establishing that indictments related to the use or detention of munitions and/or explosives, as outlined in special laws, are to be considered as terrorist crimes, if perpetrated with a terrorist intent »; Romania, art. 33, par. 1, letter b law 535/2004), or other dangerous substances (Romania, art. 33, par. 1, letter a law 535/2004 ).
148 The criminalization of these offences, however, in many countries is not specified for terrorist crimes (this is the case of Croatia, for crimes prescribed by arts. 314 and 334 CC related to counterfeit documents and weapons in general; etc.).
149 Specific indictments of preparatory acts in the domain of illicit trafficking in drugs (Finland, Bra il, law 11,343/06, which also punishes drug abuse induction and instigation : art. 33, par. 2) and human beings (Brazil, law 11,106/05), or money and goods laundering (France, Finland) have also been mentioned.
150 Finally, in some countries a variety of these activities are not punished as separate crimes, but can be penalized as cases of participation in a terrorist or criminal organization (Austria, art. 278 b, par. 2, CC; Germany, § 129 a StGB; Croatia).
151 1.3. Do more reparatory and/or accessory offences exist, in relation to the commission of these offences ?
152 There are also additional accessory indictments r lated to the commission of these crimes.
153 In addition to acts of terrorism financing (see Section II of the Congress), it is possible to distinguish between indictments characterised by preparatory activities r which facilitate crime execution ( ither preceding or simultaneous) and those which are merely access ry to the activities of associations or criminal groups, and which can be carried out by members of a criminal group independently from a specific terrorist act.
154 A) The former group includes, for example, a separate crime introduced in Croatia to criminalize « seriously threatening » to co mit an international terrorist act in advance (art. 169, p r. 2, CC), and the indictment introduced in Romania (art. 3, letter c and d, law 535/2004) whereby the following offences are « assimilated » to terrorist acts and punished as separate crimes :
« c) (… ) fostering the entrance or exit from national territory, harbouring or helping access to the target area of someone who aided or is going to aid the accomplishment of a terrorist act, or who has committed or is going to commit such act » « d) the gathering and transmission of information or data to the terrorists about the target goal of the act; (...) ».
155 B) Among indictments included in the second group, it is possible to mention in Italy the crimes r lated to assistance to individuals who are members of terrorist associations, armed groups or mafia associations (respectively art. 270 ter, 307 and 418 CC), and which are characterised as « providing refuge, food, hospitality, transport, means of communication etc ».
156 In Spain, art. 574 CC prescribes aggravating circumstances for all crimes committed by individuals « who are associated, act or cooperate with armed groups, terrorist groups or organizations ».
157 1.4. Are there cases where the same in ividual can be indicted and punished for the commission of one of these preparatory acts (for example, « recruitment ») and also for the commission of one of the offences representing the « final aim» (f r example, « commission of an act of terrorism »)? and, possibly, also for the offence of association or participation in a terrorist or criminal group pursuing the same aim (infra, B.3)?
158 In the majority of countries, the same person can be pursued and punished for the realization of one of these « preparatory acts » cri inalised as separate crimes (either sui generis or per se: for example « recruitment »), as well as for the realisation of one of the offences which constitute its aim (for example « kidnapping with a terrorist aim »).
159 However, it is also possible for the same individual to be criminalized for association or being a member of a terrorist or criminal group pursuing the same goal (Austria, Germany, Spain, France, Italy, the Netherlands, Bosnia Herzegovina, Croatia, Romania, infra, B-3).
160 In this case, we talk about « theactual co-occurrence of infractions», which is related to their autonomy, and includes « associated crimes » riminalized on the ground that their realization represents a concrete danger for the interests of collective life (cf. supra), in relation to « crime-goal ».
161 By contrast, acts which are defined as « preparatory» from a juri ical perspective, such as criminal attempt or conspiracy, are included in the actual commission of the same crime (Austria, Germany, Italy, the Netherlands, Hungary, Finland).
162 Cases, where in some countries the term delicta preparata is mployed, pose several difficulties. The fact that they are criminalized as separate crimes does not remove their merely accessory character, which cannot always be easily determined (Bosnia Herzegovina, Croatia).
163 1.5. Are there regulations or special conditions for the penal relevance of attempt in these fields of crime ? Which substantive or differentiating elements (concerning the objective or subjective element of the offence) do they possibly present, if compared to the ones of the attempt for corresponding common offences ?
164 In the majority of countries, there are no special conditions or rules w ich regulate the penal relevance of attempt in th se fields of crime (Austria, Germany, Spain, Croatia, Hungary, Finland).
165 Other reports, on the contrary, argue that they exist, but only in the sense that separate criminalization of attempt (and sometimes of preparation) as separate offences exclude the pen l relevance of the attempt of the correspondent crimes.
166 Specifically in Italy, attempts to the life, security, liberty or honour of the Head of the State and other similar cases of criminal attempts against the people protected by international law are already charged with the mere commission of « acts aimed at » crime realiz tion (cf. art. 301 CC referring to art. 276,277,278, 295,296 CC and other crimes against the personality of the State : supra A.2.1.1.).
167 Similarly, in the Netherlands a spe ial provision of art 79 CC (cf. supra A.2..1.) is applied in case of attempt to the life or liberty of the King and his Family, as well as of people protected by international law.
168 In Romania, only one derogatory rule can be outlined, related to the fact that « preparatory acts » are treated as execution a ts, as already observed. This means that criminal attempt in the matter of terrorism can occur also with reference to acts characterized as « assimilated », even though the latter are strongly different from acts of execution in a strict sense, since they merely represent favourable conditions contributing to crime execution.
169 2. Are there special regulations or conditions for the penal relevance of participation in the offence or for the punishment of complicity in these fields of crime ?
170 According to most of the reports examined (Austria, Belgium, Hungary, Finland, Turkey, Brazil, Japan, New Guinea), there are no special regulations or conditions w ich qualify the penal relevance of participation to a crime r for the punishment of complicity in these fields of crimes.
171 However, in France exten ion of aggravating circumstances was applied (by law of March 9,2004) to instigation not followed by crime commission for criminal attempts to a person’s life (art. 221-5-1 CC, which, in derogation of rules on complicity, criminalizes « offers, promises or proposals of reward or any advantages for the commission of murder or poisoning » if, this crime is not committed nor attempted).
172 Many other national reports stress the fact that several « acts of participation » to certain crimes have been upgraded to separate crimes (Spain, art. 576 CC which punishes cooperation with an armed group as a separate act; the Netherlands f. supra A, p r. 2.2.2; Romania, where acts of instigation and complicity have been « assimilated » to t rrorist acts, and criminalized as separate crimes : art. 33 par. 1, letter g) law n.535/2004 which penalizes « all acts committed with the intention of aiding, abetting, fostering or favouring the accomplishment of terrorist acts »; Italy : cf. supra Chap. B, par. .2 and par. 1.3 letter B, for certain activities deemed as « prepar tory » and currently pu ished as separate crimes ( per se).
173 In Germany, the special indictment of criminal and terrorist association, as established by § 129 a StBG, introduces the possi ility of pursuing instigation and/or complicity to 4 different criminal offences explicitly outlined, namely forming, membership, support and promotion of a terrorist association : infra 2. ).
174 Finally, aggravating circumstances are prescribed in other juridical orders for the commission of certain serious crimes which are realized « c njointly » (the Netherlands), or by a criminal organization or association (Croatia).
175 2.1. Wh t are their constituent or differential elements in respect of those concerning the objective and subjective element of complicity provided in common or corresponding offences ?
176 In all the aforementioned cases (with the exception of mere aggravating circumstances), the main difference which can be outlined with reference to common rules of liability of the acting in concert of individuals is that « acts» f participation to an offence are described by the law and punished as separate crimes independe tly of the actual complete realization of such offence.
177 Three basic consequences can be outlined in this respect :
A) Regarding the material element, the « contribution » required for com licity, stemming from its accessory character, and especially its « causal effectiveness» for crime realization (cf. supra chapt. A p r. 2.2.1. lett. C) is replaced by the commission of the indictment specifically described and punished only with respect to its mere « perpetrator ».
178 B) As for the moral element, its object falls within the scope of the constit tive act of the special offence. It is not necessary for the perpetrator of a special offence to foster the actual commission of the main crime, nor to promote the participation of other parties (on the complex structure of the moral element of participation, see supra chap. A par. 2.1.2 lett. D).
179 C) Finally, attempt of a special offence is lso punishable. Conversely, attempt to complicity is not deemed as relevant (Germany, Croatia et.), as well as that of instigation to the corresponding crime in many juridical orders (Austria, Italy, art. 115 CC; France, Brazil, Japan).
180 2.2. Are m re agreement or mere incitation (conspiracy) not followed by the commission of the offence in anyway punishable as separate offences or, possibly, as conspiracy ? Or are they punishable only in the case of terrorist offences and other very serious crimes ?
181 On the basis of the French report, it appears that the question of whether instigation (through provocation or instructions), which must be followed by an effect in order to be punishable, can be effectively applied to principals in the case of organized crime had already been examined during Section I of the XVI International Congress of Penal Law (1999), in Budapest, on penal systems against organized crime. Principals frequently escape repression, when offences already prepared are not realized, or even attempted.
182 Nowadays, we can observe that in these criminal fields, mere agreement and incitement ( r instigation) not followed by crime realization are punished as separate crimes or as conspiracy (cf. supra Cha. A, par. 2.1.2 and letter C-2) in the majority of juridical orders. However, these forms of liability are not contemplated for all offences, but only as exceptions to general rules (Austria, art. 277 CC; Italy, art. 302 and 304,414 CC; Romania, art. 29 CC, which punishes only mere instigation as a separate crime, while agreement not followed by crime realization has no effect, without the establishment of a terrorist or criminal organization; Brazil, where instigation and glorification of a crime are punished – art. 286 and 287 CC as w ll as drug abuse induction –: art. 33, par. 2 law n. 11,343/06; Croatia, art. 187 b CC criminalizing aid subsequently provided to the perpetrator of crimes against interests protected by international right, including terrorist crimes, and art. 173, par. 5, CC which punishes drug abuse induction, even though mere utilization is not punishable in itself), or can be related only to specific indictments provided by the law (Finland, the Netherlands, Spain, art. 579 CC, Japan, which punishes instigating arson, endangering transport with a political aim, as well as instigation and agreement to the use of explosives, in order to trouble order or cause harm or destruction).
183 2.3. Does th re exist a form of presumption or of simplification of the evidence of participation at a procedural level (or through the indictment itself)?
184 No form of presumption or of simplification of the evidence of participation at a procedural level is included in the majority of juridical orders examined (Austria, Romania, Finland, Japan, Brazil). However, through the separate criminalization of specific acts of participation as special crimes, it is possible to simplify the evidence of participation to the corresponding crimes (Germany, Spain, the Netherlands, Italy), especially with reference to the « contribution » required f r complicity (cf. supra cha. A par. 2.2.1. lett. C), which is replaced by the realization of the specifically punished conduct in the role of the « perpetrator », and with reference to the moral element (cf. supra chap. A par. 2.2.1 lett. D), whose object is proportionally reduced.
185 2.4. Is there an explicit punishment for preparatory or collateral conduct, such as support, assistance, « external» help (on the part of non-ass ciated individuals or through adequate social contributions, for example, on the part of a lawyer, a doctor...) to the activities and associations constituting very serious crime, or to an individual associated ?
186 Many reports highlight particular characteristics of punishment for preparatory or collateral conducts to the activities and associations constituting forms of very serious crime or to an individual associated.
187 A) It is possible to distinguish contributions related to the realization of specific crimes which can represe t the aims of the criminal association (such as trafficking in drugs or human beings, for associations pursuing those aims), or serve to provide means for the activities of the association (such as theft, in order to obtain money to buy weapons etc.), for which no particular problems can be outlined in relation to general rules of participation to these specific crimes. An exception is represented by the evaluation of the role and activity of organisers, directors and principals of associations, both as to acts of instigation or complicity to those crimes (for a general treatment see Bosnia Herzegovina), but we talk primarily of the liability of participants in the association as organisers or members depending on the different activity or role played.
188 B) On the contrary, as for possible « external» help to the ass ciation on the part of someone who is not a member, in the fields of participation to the same crime through preparatory or collateral conduct (such as support, assistance, « external » help by non-associated indi iduals or through adequate social contributions, for example, on the part of a lawyer, a doctor...), different solutions have been proposed.
189 B-1) On the basis of the French report, the question whether the scope of the indictment of complicity through aid or assistance was wide enough to include people who provide logistic assistance without being official members of an association had been already examined during the XVI International Congress of Penal Law, held in Budapest in 1999. This issue was raised, following interrogations of young penal lawyers concerning the liability of taxi drivers, pizza delivery men and lawyers of different members of a criminal group. The question is equally relevant for terrorist networks taking advantage of a variety of followers who will probably never establish contact with the activists.
190 According to the French rep rt, the limit to the extension of penal responsibility could be determined by the moral element, applying a sentence issued by the French Supreme Court on indirect complicity. An indirect accomplice, according to the aforementioned sentence, is someone who acts through the intermediation of another accomplice, is aware of the criminal plan and wants to have a part in it, for various possible reasons (financial, moral, religious). This will not be the case of pizza delivery men, or taxi drivers who do their job, either knowing or having doubts about the illicit activities of their clients. Followers or sympathisers who voluntarily offer their help, on the contrary, will be liable both for complicity (if their help is preparatory or collateral to the realization of the criminal act) and for crimes concerning special criminal law (if their help is provided after the fact), such as dealing in stolen goods and money laundering.
191 In Belgium, according to the general rules of criminal participation, it is also possible to punish someone who provides external help, such as a lawyer, provided that the conduct of that person corresponds to arts. 66 and 67 CC (it is necessary that he/she know that he/she is contributing to a criminal act and that he/she must intend to carry out that specific crime).
192 In Romania, it has been underlined that conduct of support, help or assistance to activities or criminal associations, which represent serious forms of crime, or to individual perpetrators, from non-members (lawyers, doctors, etc.), are not punished, provided that those persons perform their duty independently of the goals of a criminal association.
193 In Brazil (where, like in Japan, there are no special provisions, general rules of acting in concert are applied), the agent must pursue the same goal as those who are part of the same group, even though his individual action might be licit.
194 B-2) In other juridical orders, an objective lement at the basis of the possible penal responsibility of « external » acc mplices has been indicated, so that the latter can be distinguished from those who have a licit relationship with the members.
195 In Germany, acts of complicity of people who are not members of an association are criminalised as acts of « support » (« Unterstuzung »), in conformity to the special provision in § 129 a, par. 5, StGB. As a consequence, they must pro ide a « benefit » to the ssociation and remove the charges of instigation and complicity, which might actually be included in the category. In Croatia, the same solution is adopted, since no other provision has been introduced in this respect.
196 In Spain, a specific provision (art. 576 CC) has been introduced, which criminalises « cooperation » to the ctivities and aims of an armed group, an organisation or terrorist group. The latter can be carried out through different activities, a partial list of which is proposed in par. 2 (providing information or people control, goods or equipments; preparing a shelter or depot; harbouring people connected to those terrorist organizations, the organization of a plan of action or assistance) as autonomous crimes. It also includes « all forms equivalent to cooperation, aid or mediation either economical or of a different type ». In the latter case, the doctrine criticises the length of the legal provision applied to subjects who do not belong to a criminal organization, with the possible exclusion of mere moral support.
197 In the Netherlands, general punishment for « participation » in a crimin l organization is prescribed to individuals who are not formally members of that association, and who are not implicated in the commission of offences representing the aim of that association, but who « take part in » the activiti s of the organization or « support » it in the inte t of attaining its goals. By contrast, art. 140, par. 4 CC prescribes that participation to a criminal organization include providing financial or material assistance and recruitment of people to assist the association.
198 In Italy, criminal liability of participation and complicity in jointly commissioned crimes is especially applied by the Supreme Court of Cassation and Tribunals in the domains of mafia-association (art. 416-bis CC), drug trafficki g (art. 74 d.p.r. 309/1990) and other forms of crime (art. 416 CC). According to the general provision of art. 110 CC, anyone who contributes to the activities of those associations (for examples judges - of the Supreme Court of Cassation as well-, politicians, including ministers, entrepreneurs, doctor, lawyers etc. ), whatever his role might be, is indicted and often convicted on charges of complicity with that organization, on the assumption that he gave support to it, in the nowledge of its criminal nature, without being himself part of the group (i.e., without being subject to its disciplinary rules, and in general without being recognised as a member by the organization). (Italian Supreme Court, United Sections, 12.7.2005).
199 The practical difficulty of extending penal responsibility of « external » parti ipation to criminal associations - which could also be applied to terrorist ones, for example in the case of someone who produces counterfeit documents for the members - lies in the fact that, on the basis of the principles of monist systems (cf. supra Chap. A, par. .2.1, lett. A s.), it is necessary to present evidence that a particular person provided a « causal » contrib tion (which can also be « moral »: Austria, Italy), for the establishment and existence of the association, in the knowledge of its nature and goals, even though that person might also have acted in pursuance of individual goals, which might be different. As a consequence, his/her contribution cannot be merely related to specific acti ities or members (in this case, in Italy, special indictments as in art. 207 ter, 307 and 418 CC : cf. supra par. 1.3 lett. B) are applied).
200 C) Finally, countries (Finland) must be mentioned, where punishment of the conduct of support, assistance, aid to an association through contributions which are « socially adequate » in th mselves (for example by an advisor-lawyer or a financial advisor) is explicitly included as one of the a ts labelled as participation to an association, provided that there must be also a specific intention required by the law : that is the person at stake must have the intention to commit the crimes pursued by the association (Chap. 17 sec. 1 a, par. 1, n. 5 or 6, CC).
201 3. Is there a separate offence for « terrorist » association or orga ization or group, or for an organization addicted to very serious crime, with respect to the conspiracy or mere complicity in such crimes ? Or are common offences (if the case, aggravated) for criminal association applied ?
202 The majority of national reports, with the exception of Japan and Sweden, point out that one or more offences related to the association, organisation, « terrorist » group, or dev ted to forms of very serious crimes, different from mere agreement or joint participation in those crimes, have been introduced (Germany, § 129,129 a, 129 b StGB; Austria, art. 278 a for criminal organisation and 278 b CC for terrorist association, while art. 278 CC punishes criminal association in general; Belgium, art. 140 CC for t rrorist group and 324-ter for criminal organisation; France, art. 421-2-1, which punishes participation in a criminal association with terrorist intent; Italy, art. 270-bis and 416-bis CC, with a recently introduced aggravating circumstance for trans-national crimes committed with the contribution of an « organised criminal group »: art. 4 law 146/2006 of the United Nations Convention on Trans-national Organised Crime (2000); the Netherlands, art. 140 CC; Bosnia Herzegovina, art. 250 CC; Croatia, rt. 187 and – f r terrorist aim – art. 333 CC; Romania, art. 7 law n. 39/2003 on preventive and repressive measures against organised crime and art. 35 law n. 535/2005 introducing the indictment of terrorist associations; Hungary, art. 137, n. 8 CC; Finland, chap. 34, sec. 4 CC).
203 In some countries, on the contrary, common provisions in the matter of criminal associations are applied (Brazil, art. 288 CC), sometimes with aggravating circumstances (Spain, art. 515, especially n. 2, CC with aggravating circumstance of art. 516 CC; Poland, art. 258, par. 2, CC).
204 3.1. If specific ffences exist, how are these criminal associations identified ? Does this identification depend upon the status of the individuals involved, by his/her/their inclusion in lists drawn up by the government authorities, or in similar lists, or by (material and/or moral) elements described in abstract terms by the law ?
205 In all the countries examined, criminal associations are identified by the moral and material elements abstractly described in the provisions of the various offences (or aggravating circumstances) already mentioned (as well as in the first part of the Report, Chap. A, par. 3.1,3.2 and 3.3).
206 3.2. What are the requirements constituting and/or characterizing a terrorist or criminal association or group (a certain number of participants, organizing requirements, distribution of roles, stability or terms of the organization or of the group, nature of the criminal plan, specific purposes pursued etc.)?
207 There are different constitutive requirements of criminal associations.
208 A) As for objective elements, many countries establish a minimum number of accomplices (« more than two » r « three or more people », in conformity to the European Union Framework Decision against Terrorism (2002) and of the United Nations Convention against Trans-national Organized Crime (2000): Austria, Germany, Belgium, Bosnia Herzegovina, Croatia, Hungary, Finland, etc.; but in Brazil: « more than three people », art. 288 CC, while for the new indictment of association aimed at drug trafficking, two people are considered sufficient : art. 35 law 11.343/06). Two people are enough in other countries as well (France, Italy, art. 270-bis CC : terrorist association; New Guinea), even though for different types of criminal association at least three people are required (Italy, art. 416 CC : ordinary criminal association; 416-bis CC : mafia association; etc.).
209 The stability or the fa t that the organization lasts for a certain period (which is not necessarily long) is a prerequisite established in most juridical orders (Austria, Bosnia Herzegovina, art. 1.17 CC; Romania, art. 2, letter a, law 39/2003; Finland), sometimes not by the law, but by jurisprudence and doctrine (Germany, Belgium, Spain, France, Italy, Croatia, New Guinea), also representing one of the main elements which contribute to distinguish it from mere agreement not followed by crime commission (conspiracy).
210 The element of organization, even though marginal (as mere preparation of a plan, providing means, divisions of roles, etc.), can be explicitly required by the law (Bosnia Herzegovina, art. 1.17 CC for « organized group criminal »; Croatia, art. 89, par. 22, CC, which requires the members to be connected and to have their roles distributed) or recognized by jurisprudence and doctrine as implicitly included in the indictment (Germany, Belgium, Spain, Italy, the Netherlands, Croatia, New Guinea).
211 Finally, there are juridical orders, in which, at least four particular rimes of associations, action modalities (modus operandi: such that it uses intimidation, menaces, violence, fraudulent activities, etc.) of the association or organization can be outlined (Belgium, art. 324 b CC, before the law of 10 August 2005 applying the United Nations Convention against Trans-national Organized Crime 2000; Italy, art. 270-bis, terrorist association and art. 416-bis CC, mafia association, but not art. 416 CC, ordinary criminal association, or art. 74 D.P.R. 309/1990 association aimed at drug trafficking; Turkey, art. 7, law for the prevention of terrorism).
212 In addition to constitutive elements of criminal association, those related to individual participation in the association must also be considered (in this respect in France, the need for an « external » act has been underlined).
213 B) As for the moral element, in all the countries intent is required, that is the knowledge of the criminal nature of the association or organization and the willingness to take part in it (animus socii: in Germany, the term « common will » is employed).
214 The specific aims p rsued by the association or organization must be known and shared by all its members (many reports speak in this respect of « special intent », or « specific intent »: France, the Netherlands, Croatia, Finland), even though the typical aims characterizing the nature and structure of the offence (supra, Chap. A, par. 3.2, letters A and B-1; and par. 3.3), and specifically of associations as collective entities, mu t be distinguished from the moral element of individual members (individual intent).
215 Anyone who « participates » in the ass ciation or organization must « share » the aims of the association or organization of which he is member, and « make them his/her own », thus establishing a relationship « means/goal » between his activity or role inside the group and the conscientious pursuit of those goals.
216 However, it is not necessary for each member to know all the details about the organization and its plans, nor about the identity of (all) the other members (Bosnia Herzegovina, Croatia).
217 3.3. Is there a ifference in sentencing between mere participation and other more aggravating conduct (such as constitution, organization, direction etc.)? Are there specific rules or conditions concerning the responsibility of members or leaders of the association for the commission of offences representing the purpose of the criminal association if they did not take an active part in the commission of the offence ?
218 In the majority of countries, there is a great difference in sentencing in the case of mere participation to an association and other aggravating conducts (such as constitution, organization, direction, etc.).
219 For example, in Austria people directing a terrorist asso iation can be sentenced to a term of imprisonment between 5 and 15 years, and people taking part in it can be sentenced between 1 and 10 years of imprisonment (art. 278 b, par. 2, CC), while no difference is established between different crimes of association (art. 278 and 278 a CC). In Germany, a special rule of aggravation is prescribed for ringleaders and backers (« Rädelsführer » and « Hintermänner »: § 129 a, par. 4 StGB), while optional mitigation can be applied to members whose guilt is of minor degree and whose contribution is of minor entity (§ 129 a, ar. 6 StGB). In France, organization or direction of a terrorist network is a punished with a term not exceeding 20 years, while 10 years’ imprisonme t is prescribed for participation (art. 421-5 CC). In Spain, art. 516 prescribes between 8 and 14 years of prison term for ringleaders and backers, and between 6 to 12 years for participants. In the Netherlands, participation in a criminal organization is sentenced with a term of imprisonment not exceeding 6 years, while the maximum term of imprisonment for participation in a criminal organisation may be increased by one third in respect of its founders, leaders or directors (art. 140, par. 3, CC). Whereas, in the case of a terrorist organization (art. 140 a CC), the term prescribed is life imprisonment or 30 years’ imprisonme t for the latter, and not exceeding 15 years or a fine for participation. In Italy (art. 270 bis, par. 1 CC : imprisonment term between 7 and 15 years for founders, leaders and principals, etc. of terrorist associations; par. 2 : between 5 and 10 years for those who take part in it; art. 416-bis, par. 1 CC : the same penalties are prescribed for participants in a mafia-type association, while an imprisonment term between 7 and 12 years for founders, leaders and principals : par. 2), Poland (art. 258 CC), and Turkey (art. 314, par. CC), th re are important differences in the sanctioning of the two categories of conduct. In Finland, on the other hand, aggravating circumstances are prescribed only in case of people who direct or finance a terrorist group (Chap. 34 a, sec. 3), while in all the other cases outlined, general rules are applied on the basis of the extent of individual guilt (Chap. 6, Sec. 5, par. 2 CC).
220 On the contrary, in Hungary, Romania and New Guinea, no difference is envisaged between founders, leaders and principals and mere members in a criminal association. This condition has been preserved in Romania, also with reference to organized crime (law39/2003), while it has been recently changed in the case of terrorist crime, with the introduction of law 535/2004, criminalizing directors of a terrorist entity (defined and turned into a separate crime : art. 35) with life imprisonment or a term between 15 and 25 years. In the case of participation, support etc. the imprisonment term is between 10 and 15 years.
221 In other countries, only generic aggravating circumstances prescribed for the acting in concert of individuals are applied (Brazil, art. 6, n. I CC : support, organise, direct).
222 B) There are also some exceptional rules and specific conditions differentiating penal responsibility of members and directors of an association for the execution of crimes which constitute the aim of such a criminal association. They are all considered equally guilty of all the offences perpetrated by the association, while carrying out the original criminal plan, even though they did not materially carry out any act (Bosnia Herzegovina, Croatia). By contrast, in most juridical orders, general rules regarding the acting in concert of individuals are applied. It follows that only those who willingly and knowingly contributed to those crime are held responsible for those crimes, in addition to the penalty for associative crime (Germany, Belgium, Spain, Italy, the Netherlands, Croatia, Hun ary, Roma ia, where the possibility of co-occurrence of more offences with a crime of association is explicitly outlined : art. 323, par. 2, CC; for the difference between separate crimes of association and merely preparatory acts, such as conspiracy, which, on the contrary are « included » in the c mmission of the crime representing their aim, cf. supra, Chap. A, par. 2.1.2, letters C-1and C-2).
223 4. Are the rovisions and sanctions concerning the (penal or non-penal) liability of entities (legal persons), if they are in general provided in your national law, also applicable to the commission of acts of terrorism or other very serious crimes ? What is the relationship between such regulations and the criminal indictment of a terrorist or criminal association or group (subsidiary, alternative, cumulative etc.)? In most of the countries examined, provisions and sanctions concerning penal or non-penal liability of legal persons is applicable for the commission of acts of terrorism and of other serious crimes.
224 Four different situations can be o tlined.
225 A) In the majority of countries, general rules concerning the penal liability of leg l persons are applied to this typology of crimes. The latter have been recently introduced in the legislation, so as to put into effect international law and European provisions, In most juridical orders, this form of liability has a general character and is n t confined to specific indictments. However, it is also applied to terrorist and organized crimes (Austria, where if the author of a crime, abuse of the organization of a legal person, in order to realize the offence, specific sanctions are obligatorily applied by the law, which are cumulative and independent of the punishment prescribed for each individual; Belgium, art. 5 CC, introduced by the law of May 4,1999, prescribing that crimes committed « spontaneously and willingly » – as these ones– view penal liability of legal persons on the same conditions as the basis of physical persons; France, art. 121-2 CC and law 9.3.2004; the Netherlands, art. 51 CC; Bosnia Herzegovina chap. XIV, art. 122-144 CC; Croatia, law 24.3.2004; Poland, law 28.10.2002; Romania, law 278/2006; Hungary l w 2001).
226 B) In another group of countries, a special discipline has been introd ced for certain indictments, as in Finland, where Chap. 9 CC, introduced in 1995, prescribes liability which is both cumulative and independent for certain offences, including participation to the activities of a criminal organization (Chap. 17, Sec. 1a, par. 24) and terrorist crimes (Chap. 34a CC); or in Turkey, according to art. 8 of the law on the prevention of terrorism, reformed by law 29.6.2006. In Japan, on the contrary, where such a form of liability exists, it is not applied to terrorist crimes or those included in the criminal code (death, arson, etc.).
227 C) Other countries adopt a type of liability, also known as administrative. In Germany, according to §§ 30 and 130 OwiG (Regulatory Offence Act), the legal entity has to pay a fine when natural individuals who are authorized to represent the legal entity commit a regulatory offence that can be attributed to the legal entity; in Spain art. 129 pro ides the judge with the power to decide whether applying an accessory sanction to the legal entity, which can even include the dissolution (art. 520 CC) of the criminal association, prescribed in art. 515 CC; in Italy, the liability of legal entities (introduced by the d.lgs 231/2001, establishing pecuniary and in most serious cases, disqualifying sanctions leading to ban from job activities), which has an overall criminal and cumulative character, in relation to that of physical persons, is applied only to crimes explicitly listed by the law, including terrorist crimes (art. 416 CC), « trans-national » ffences in the domains of organized crime, i.e. both criminal associations and mafia associations (art. 416-bis CC : cf. rt. 10 law 146/2006 transposing the United Nations Convention on Trans-national Organized Crime (2000), prescribing ban from activity, which can also be definitive in most serious cases).
228 D) Finally, in Brazil and New Guinea, no form of liability of legal entities is applied for this typology of crimes, even though some cases of liability of legal persons have been already introduced (in drug-related crimes, in New Guinea, while concerning the environment in Brazil).
229 5. Do there exist specific indictments for conduct consisting of the expression and/or dissemination of thought or opinions linked to terrorism, distinguishable from the possible penal relevance of instigation to commit acts of terrorism or by other forms of moral participation or by assisting another to commit such acts ?
230 Special attention must be drawn to propaganda and proselytism activities, consisting mainly in the expression and/or dissemination of thought or opinions linked to terrorism or other crimes with a marked ideological content, in the expansion of both forms of preparation and of punishable participation.
231 In this respect, many countries include specific indictments for conduct consisting of the expression and/or dissemination of thought or opinions linked to terrorism, distinguishable from a possible incitement to commit terrorist crimes, as well as from other forms of moral participation or complicity in this field of crime (infra 5.1). Conversely, in other countries, there are no specific indictments, and general provisions concerning public incitement to the commission of crime and their glorification can be applied (Belgium, art. 66 CC, collective provocation; and law March 25 1891 criminalizing public provocation to commit crimes and offences; Croatia, art. 174, par. 3 and 4 CC on incitement to racial hatred and discrimination; the Netherlands, art. 131 and 132 CC, incitement and dissemination of seditious materials, as crimes per se; Poland, art. 255 CC exhortation and public approval of any crime; Finland, Chap. 17, sec.1 CC, public incitement to a crime; Brazil, New Guinea).
232 5.1. In p rticular, are glorification, ideological proselytism, the publication and circulation of papers and other matters, also audio-visual and on the internet, propaganda etc. linked to terrorism, separately punished ?
233 In Austria, art. 282 CC criminalizes encouragement and approbation of these crimes; in Germany § 126, par. , n. 2 and 6 punishes disturbance of public peace with the threat to commit those crimes; § 130 a punishes « instructions » to crimes; § 140 StGB pu ishes public approval; in Spain art. 578 CC punishes praise and justification for terrorist crimes; in France, art. 24, law July 29 1881 on freedom of the press punishes the fact of directly provoking those acts and their public glorification; in Italy, art. 414 CC punishes instigation and public glorification with aggravating circumstance introduced in 2005 in case of terrorist crimes or crimes against humanity; in Romania, art. 33 law 535/2004 punishes ideological proselytism, publication and dissemination of written or audiovisual material through the Internet or other media; in Turkey, arts. 6 and 7 of the law on the prevention of terrorism punishes several conducts related to propaganda, dissemination of information, organization of public demonstrations etc.
234 5.2. What are the objective and subjective elements required for the liability of each of such acts to be punished ? When are they consummated ?
235 In this case, we talk about formal offences, which do not require the sudden occurrence of the fact or of the crime, which is the object of the conduct of incitement (Belgium represe ts an exception, see art. 66 CC), since according to that hypothesis (moral) participation to the crime would be punishable. The moment of their consummation is therefore that of the execution of characteristic acts (communication, dissemination etc.).
236 An important material element which must be considered is the « public» dimension of the act (for the place where the conduct is re lized, or for the high number of people to which the act is directed, for the means of communication employed, such as press, radio, television, the Internet).
237 In a wide range of countries, it is also necessary that the communication be appropriate to incite the public to the action aimed at by the perpetr tor (Austria), in terms of its content, expression modality and context. In addition, it must represent a concrete danger for order and public peace (Italy), or more precisely it must be able to bring about a risk that specifically mentioned crimes be actually committed (Finland).
238 As for the subjective element, intent is required. The latter must include the possible aim that the crime be carried out by other people, as specifically outlined by the law (Romania, Turkey), in addition to willingness and awareness of the act, including possible danger caused by the offence.
239 5.3. What is their sentence, as compared with the one provided for other acts of terrorism and/or corresponding common offences ?
240 In the case of the aforementioned special indictments, most of the juridical orders examined prescribe more lenient punishments than those applied in case of terrorist crimes, which characterise their object (in Austria the term of imprisonment must not exceed 2 years, in Spain it is between 1 and 2 years, in France not exceeding 5 ye rs, in Italy n t exceeding 7 years and 6 months for terrorist crimes).
241 However, in Romania and in Turkey, the level of punishment prescribed is higher, similarly to that of committed crimes (in Romania, a term of imprisonment is between 5 and 10 years; even life imprisonment in Turkey), even though such punishment is not applied to the participation in these crimes.
242 The doctrine criticised those punishments, arguing that they run counter to principles expressed in the Constitution (Romania).
243 5.4. Wh t are their relationships and which problems may arise with respect to freedom of thought, freedom of opinion and expression, protected by international Charters and by democratic Constitutions ?
244 In the majority of countries, problems related to freedom of opinion, expression of thought, prote ted by International Laws and democratic Constitutions, are excluded f r two main typologies of reasons.
245 Firstly, it must be underlined that these liberties are not protected without restrictions. On the contrary, as explicitly stated in art. 10 (as well as 9) of the European Convention on Human Rights, 2nd paragraph « the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety or for the prevention of disorder or crime » (Belgium, the Netherlands, Croatia, Romania).
246 On the other hand, concrete danger of crime commission by the targ t recipients of the above-mentioned communication justifies (the Netherlands, Italy : Constitutional Court 65/1970) penal sanction, aiming at preventing the commission of particularly serious crimes and their possible extension.
247 The level of penalty (cf. supra par. 5..) and the imprecise legal description of indictments deserves attention, as emphasised in some reports (Spain, Romania, Italy).
248 6. Is there a difference in the sentencing of anticipated forms of preparation and participation ? What is their nature and measure (from the point of view of the type and term of the applicable penalties, of possible supplementary penalties or measures, of the criteria to be applied, of possible specific regulations derogating common law)?
249 Sentencing techniques and charge formulations must be compared with applicable sanctions.
250 Many of the reports considered underline that more severesanctions are ap lied in the case of anticipated forms of ordinary preparation and participation.
251 « Internal» comp rison among pro isions establishing applicable punishment for different crimes in this domain clearly displays that the principle stating that punishment of preparatory acts must be more le ient than those prescribed for consummated (or attempted) crimes, representing the aim of a criminal plan (Austria, the Netherlands, Finland, et. : cf. supra Chap. A, par. 2.1.4). However, new laws enacted brought about new aggravating circumstances, especially in the case when preparatory acts are punished as separate crimes, without any relation with the sanction applied to the « main » crime (Belgium, France).
252 In Germany, § 129 a StGB parti ipation in a criminal association is punished with imprisonment of 1 to 10 years, while the realization of one of the crimes which might be his/aim is punished more leniently (§ 305 StGB : impris nment up to 5 years).
253 In Spain, art. 579-1 CC establishes reduced penalty, or a penalty which varies according to the corresponding penalties for the crimes involved, in the case of conspiracy, offers and provocation. By contrast, separate crimes related to storing of weapons and munitions (art. 573 CC), cooperation with an armed group (art. 576 CC), criminal association (art. 515 and CC) are punished with imprisonment of 5-6 years to 10-14 years. In addition, aggravation is also prescribed for crimes committed with a terrorist intent (art. 574 and 575 CC), as opposed to ordinary crimes of the same entity.
254 In Italy, new offences such as recruitment and training of individuals (art. 270 quater and 270 quinquies CC) are punished with between 5 and 10 years’ imprisonment, while attempt with a terrorist aim is punished with at least 20 years’ imprisonment, if it concerns people’s life, and 6 years if related to people’s security (art. 280 CC). In Romania, the first technique of anticipating penal liability has to do with assimilating preparatory acts to attempt, and applying the corresponding punishment. Moreover, several separate crimes have been introduced which are punished with a prison term not exceeding 20 years. In Croatia, harsh aggravation for crimes of international terrorism was introduced by the law in 2006, doubling the minimum term of imprisonme t for preparatory acts of an attempt (prison term of 10 to 15 years : art. 169 par. 4 CC), while participation in a terrorist association is punished with imprisonment of 6 months to 5 years (art. 187 CC).
255 However, « external» comparison with pro isions established for « ordinary » crimes is especially helpful to show that penal sanctions are by far harsher than for the latter.
256 For example, in Austria the prison term can be incre sed by 50 percent (up to 20 years), if a crime was committed with terrorist modalities (art. 278 c, par. 2, CC); in Italy, subversive or terrorist intent by the perpetrator constitutes a ground for mandatory aggravation of the sentence for any crime (art. 1 d.l. 625/1979 turned into law 15/1980), and the prison term is increased by 50 percent. The same sanction is prescribed for crimes committed while taking advantage of the help of mafia-type associations, or in order to support them (art. 7 d.l. 152/1991 turned into law 203/1991).
257 In Croatia, the crime of terrorist attempt endangering people’s lives (art. 169, par. 1, CC) is punished with imprisonment of 5 to 15 years, as in the case when the final goal (death) is attained (art. 90 CC); etc.
258 Additional accessory sanctions are prescribed in a variety of countries (such as definite legal disqualification : Spain art. 579-2 CC; Belgium, where ordinary provisions are applied; New Guinea), as well as confiscation of one’s property (Austria, art. 20 CC; France; Italy art. 270 bis, par. 4 CC; the Netherlands).
259 As a conclusion, it can be argued, the ultimate message expressed by recently enacted reforms aimed at contrasting terrorist crimes more efficiently, with special reference to very serious forms of crime, is that this goal is attained by increasing the sanctions applied. This choice has been harshly criticised, on the assumption that proportion must be established and respected between the degree of penalty and the typologies of offences against juridical goods. Furthermore, political strategies must also be applied, not to counteract the need for personalized punishment, and to offer the possibility to withdraw from the criminal enterprise to those who have not yet committed a crime (Belgium, Croatia).
260 6.1. In the e forcement of the above-mentioned penal indictments, what is the importance of the withdrawal from and/or a possible compensation, or of reconciliation with the victim/victims ?
261 The importance of withdrawal in the enforcement of the above-mentioned penal indictments is challenged by the view that the conduct leading to immunity of attempt and preparatory acts can only have an effect after the realization of a crime, following the legislative choice of upgrading these acts to separate crimes (Belgium).
262 Therefore, the role of special provisions assuring mitigation of punishment, and in some cases also immunity (Italy, art. 308 and 309 CC; France, art. 132-78 CC) to those who withdraw from associations or criminal enterprises, divulge the necessary information to identify other accomplices or co-perpetrators and/or effectively cooperate to gather evidence and prevent the commission of other crimes or the achievement of the criminal goals has been underlined (Romania, art. 9 law 39/2003 in the field of organised crime; Turkey, art. 221 CC).
263 Sometimes, the term « withdrawal » is t chnically inappropriate, while, it has been argued that we should talk about « active repentance», leading the subject to cooperate with the police and judiciary authorities (Spain, art. 579, par. 3, CC).
264 The strategy of « pentiti » was tarted in Italy in the fig t against internal terrorism (art. 4 d.l. 625/1979 turned into law 15/1980 : cf. Chap. A, par. 3), and subsequently applied in the fight against organised crime and mafia (France, Romania). It has been recognized by the United Nations Convention against Trans-national Organised Crime (2000) (arts. 24 and 25).
265 On the contrary, possible compensation or reconciliation with the victim do not play any role in the case of these offences, due to their seriousness. Any decision regarding possible mitigation of the penalty prescribed is up to the judge (Austria, Belgium, the Netherlands, Croatia, Romania, Finland, Japan, etc).
266 6.2. Are there peculiarities concerning the actual enforcement of the penalty and of the sanctions or measures, particularly taking into account prison treatment and possible restrictions or conditions for the granting of prison benefits or other institutes in favour of prisoners ?
267 Peculiarities concerning the actual enforcement of the penalty and of the sanctions or measures, with special reference to prison treatment have been introduced in some countries (Spain, Italy, Pays Bas, Brazil, Turkey). In this respect two main typologies of requirements at the basis of special regulation can be outlined. The first one has to do with reducing the possibility of interactions between the offender charged with terrorism or mafia association with the organization or other convicts for safety reasons, in order to prevent propagation or possible contacts with other criminals or with the external world (in Italy art. 41-bis law 354/1975 pres ribes limitation of talks with personal relatives, solitary confinement during the day, and checking of correspondence, etc.). The other has to do with special detention regime, with important limitation for granting prison benefits (such as the possibility of working abroad, permissions, probation, etc.) which in Italy is subor inated to cooperation with judicial authorities and police to discover accomplices (art. 4 bis law 35 /1975, modified by law 279/2002).
268 1. Do th re exist specific preventive measures or other instruments having a non-penal nature to combat terrorist and very serious criminal activities and associations ? In particular, if non-nationals are involved ?
269 In addition to penal instruments, it seems also necessary to consider recourse to instruments having a different nature such as preventive measures, which represent a privileged way to fight terrorism and organized crime « in advance ».
270 However, very few countries have introduced specific non-penal instruments to fight against activities, terrorist associations and other forms of very serious crimes (with the exception of those concerning terrorism financing, see section II of the AIDP Congress).
271 In France the n w law of January 23,2006 includes a group of measures aimed at better detecting terrorist threats and organized crime, theft, dealing in stolen cars, contraband and specific customs crimes. The latter include reinforcing surveillance of critical areas and increasing the ability of administrative authorities to recognize specific people, when meeting them, surveillance of vehicles through automatic reading of matriculation codes, as well as with taking pictures of drivers and passengers, surveillance of passengers in international trains or flights, collection and storage of network connection data, freezing of assets, etc.
272 In Italy th re are a variety of preventive measures b th at a personal level (such as special surveillance by the police, prohibition to reside in one or more municipalities or provinces, obligation not to leave the municipality of residence, etc.) and in relation to goods (such as freezing or confiscation of one’s assets), which are applied by the administrative or judicial authorities to people who are suspected of being members of mafia-type associations (law 575/1965 and further changes) and are also extended to suspects of terrorism (art. 18 law 152/1975 modified by d.l. 374/2001 turned into law 438/2001, applied to those who are suspected of having committed « preparatory acts which are objectively relevant, aimed at the commission of terrorist crimes, which can also be international »). In this case it is also possible that a foreign citizen be expelled as an administrative sanction (art. 3 d.l.144/2005 turned into law 155/2005).
273 In Spain, the organic law 6/2002 can be mentioned which prescribes a specific procedure to declare a party or political group supporting the use of violence or terrorism as illegal.
274 In Romania, law 39/2003 confers specific competence to administrative authorities to create an organized crime database, while law 535/2004 focuses on terrorism prevention, with the aid of a national system collecting and coordinating information.
275 In the majority of countries general preventive measures are applied, such as the right of sanctuary, change of residence for foreign citizens etc. (Croatia), collecting information by the office fighting against corruption (Poland), or money laundering (Hungary), activities of intelligence (Japan, in relation to serous crimes) and cooperation with the authorities of foreign countries (Germany, Austria, Belgium, the Netherlands, Spain, Finland adhering to the Treaty of Prüm), etc.
276 2. What is the importance of the r le of victims in the formulation and enforcement of the above-mentioned penal indictments ?
277 Particular importance has been recognized from a general criminal law perspective, before procedure, to the role of victims f serious and organized crime as well as of terrorism. This occurs especially at an international level, where fundamental rights are frequently threatened and violated in particularly hideous ways, since they frequently concern innocent and helpless people.
278 Many countries (France, Croatia, Finland, Poland, Hungary, Turkey) introduce special regulation for compensation, also applying the European convention for the compensation of victims of violent crimes (7.4.2005).
279 On the contrary, the role of the victims from the point of view of the formulation of indictments is rarely recognized (for example in Spain, art. 578 CC punishes acts of misrepresentation of victims of terrorist crimes and their families)
280 1. Are there recent doctrinal or jurisprudential stances concerning the expansion of the forms of preparation and participation that might raise problems of compatibility with the fundamental rights acknowledged by international Charters and Conventions, as well as by the national Constitutions ?
281 In many countries (Germany, Belgium, Spain, France, the Netherlands, Italy, Finland) there are doctrinal stances concerning the expansion of the forms of preparation and participation that might raise problems of compatibility with the fundamental rights acknowledged by international Conventions, as well as by the national Constitutions.
282 The abandonment of a classical model of criminal law, where the foundation of penal incrimination rested on the unexpected occurrence of a harmful event or on concrete endangerment of protected interests. The anticipation of punishability to preparatory acts and the increased responsibility for participation in a crime would not conform to the « principle of the offensive threat» of the criminal offence (which in Italy is p rt of the Constitution), while legal formulations of indictment through the elements of the target aims can run counter to the requirement of precision, which derives from the principle of legality. In addition, the criminalization of conduct related to expression of thought, such as the incitement or public glorification, can be considered as contrary to the principles assuring freedom of expression and opinion (Belgium, Spain, Italy).
283 The doctrine also expresses doubts regarding the fact that the legitimacy of the fight against terrorism or organized crime could be used as a pretext by the legislature to extend exceptional rules to common right (France), which might in turn reinforce an authoritarian tendency in criminal law evolution, which can give rise to the « criminal law of the enemy » (Spain, Croatia).
284 The contribution of jurisprudence has been rarer, until the present moment, while there are some decisions by Constitutional Courts, where the limit of a regulation conforming to the rights and fundamental guarantees has been underlined (for example, the French Constitutional Council censored the danger of assimilation between terrorism and irregular migration).
285 2. Are th re requests as to the revision or modification of the provisions considered ? What is their nature ? Which basic needs are they taking into account ?
286 In some countries, there are requests for the revision or modification of the aforementioned provisions (Spain, France, Italy), in order to guarantee that fundamental rights be respected.
287 By contrast, in other countries, respect of normative requirements, stated by the European Union in the fight against very serious form of crimes (Croatia, Poland, where the new project for a reform of the criminal code reinforces a tendency towards the criminalization of preparatory acts), is required, together with more adequate harmonization with international right (Brazil, New Guinea, Taiwan).
288 Various legislative reforms are being discussed or in preparation in several countries (France, the Netherlands, Romania, Japan, Brazil, New Guinea, Taiwan). The latter sometimes have a wider scope and also entail a general reform of the criminal law system (Poland, Italy), possibly also by a group of experts (Spain, with the proposal of an « Alternativa a la actual política criminal sobre terrorismo » by the Grupo de Estu ios de Política Criminal, 2005).
289 In order to ensure that the fight against the most serious forms of crime threatening security, law and democracy, both at the level of society and of the individual, can effectively adapt the instruments provided by criminal law to the deep and pervasive evolution of the phenomena that must be both prevented and repressed, also assuring that fundamental principles of precision in a legal prevention, of penal liability and related to prescribing the sanction appropriate to the extent of individual guilt, be respected, it appears that our Association can propose an important contribution, also thanks to those works, through the knowledge and critical comparison of different juridical systems and legal experiences of the countries examined.
[ *] Pr fessor, University of Verona (Italy), ( (firstname.lastname@example.org).
PLAN DE L'ARTICLE
- Answers to the Questionnaire
- A) General Questions
- B) Characteristics of the Expansion of Forms of Preparation and Participation
- C) Other Questions
- Reform proposals
- Final remarks
POUR CITER CET ARTICLE
Lorenzo Picotti « Expanding forms of preparation and participation », Revue internationale de droit pénal 3/2007 (Vol. 78), p. 405-452.
URL : www.cairn.info/revue-internationale-de-droit-penal-2007-3-page-405.htm.
DOI : 10.3917/ridp.783.0405.