Distinctia dintre grupul infractional si asocierea în vederea savarsirii de infractiuni
Criminal Organized Group vs. Conspiracy: Legal Borderlines

Summary/Abstract: The present study aims at drawing distinctions between the offence settled by art. 7 of Act no. 39/2003, the one set out in art. 8 of the same act and the offence provided by art. 323 in the Penal Code. The urge of such an approach resides in the contradictory decisions to be found in case-law as well as in the apparent insufficiency of criteria expressly defined by the legislator, which should be specific for each said offence. Such analysis is compulsory since the different legal qualifications of criminal acts entail not only different legal limits of penalties, but also different jurisdictions, both as regards the investigation authorities and the law-courts. The essential borderline is that between the criminal organized group, which is the structured group, made up of three or more persons, lasting for a given period of time and acting by coordination with the aim of committing several serious offences (felonies), in order to obtain directly or indirectly some financial gain or other valuable consideration and the criminal group occasionally formed with the aim of immediately committing one or several offences, having no continuity, no determined structure and no preestablished roles for each member and within the group. A distinctive feature of organized crime, which is not provided by its legal definition, is especially the use of violence and constraints of any type, in order to achieve the purpose of the group, ensure internal discipline and secrecy of operations. An important element, though not essential in proving the nature of the offence as being perpetrated by an organized group is the use of such methods, accordingly identified by the courts. In case the criminal organized group aims at committing a single offence, this situation calls for a more attentive distinction between conspiracy, i.e. plural offenders acting with the precise purpose of committing offences and collusion (an understanding between two or more persons to commit an illegal act). The legal doctrine has established that, when such distinction is aimed at, three legal hypotheses should be taken into account, namely: a) several persons have associated and agreed to commit several offences, either determined or not; b) several persons have previously agreed to commit a single offence (occasional conspiracy/unlawful agreement); c) there has occurred a simultaneous agreement between the persons taking part at the commission of the offence, i.e. without prior reflection or association before committing the offence (simultaneous conspiracy/unlawful agreement); The doctrine also states that in the first two situations, courts should rule on concurrence of offences, thus including the standalone offence of conspiracy and only in the last case the courts should rule on collusion. Although the quoted author addresses the offence of conspiracy, the same legal comments could also be made in case of the criminal organized group. What needs to be added to this statement is that not all offences committed by several persons acting on prior unlawful agreement necessarily lead to the conclusion of conspiracy, but it is essential for the other requirements to be fulfilled as well, i.e. structure, hierarchy etc.

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