B) Characteristics of the Expansion of Forms of Preparation and
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
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.
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.
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
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).
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).
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).
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 ?
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
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.).
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.
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;
1.3. Do more reparatory and/or accessory offences exist, in relation to the
commission of these offences ?
There are also additional accessory indictments r lated to the commission of
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.
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; (...) ».
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 ».
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 ».
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)?
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 »).
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).
In this case, we talk about « the actual 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 ».
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,
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).
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 ?
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).
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.
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
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.
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.
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
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.
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).
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).
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. ).
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).
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 ?
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.
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 ».
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).
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).
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 ?
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.
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).
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)?
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.
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 ?
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.
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.
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.
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.
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.
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).
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.
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.
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
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.
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.
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
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).
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).
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
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 ?
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).
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).
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
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).
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.)?
There are different constitutive requirements of criminal associations.
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.).
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).
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).
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).
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).
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
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).
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.
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).
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 ?
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.).
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).
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.
In other countries, only generic aggravating circumstances prescribed for the
acting in concert of individuals are applied (Brazil, art. 6, n. I CC : support,
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).
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.
Four different situations can be o tlined.
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).
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.).
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).
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).
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 ?
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.
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).
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 ?
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.
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 ?
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.).
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).
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).
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.
5.3. What is their sentence, as compared with the one provided for other acts of
terrorism and/or corresponding common offences ?
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
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.
The doctrine criticised those punishments, arguing that they run counter to
principles expressed in the Constitution (Romania).
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 ?
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.
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).
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.
The level of penalty (cf. supra par. 5..) and the imprecise legal description of
indictments deserves attention, as emphasised in some reports (Spain, Romania,
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
Sentencing techniques and charge formulations must be compared with
Many of the reports considered underline that more severe sanctions are ap lied
in the case of anticipated forms of ordinary preparation and participation.
« 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).
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
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.
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).
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.
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).
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.
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).
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).
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 ?
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
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).
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).
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).
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).
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 ?
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