Autor: Alexandru TILICIU
Publicat în: Caiete de drept penal nr. 2/2014
Revistă disponibilă: aici.
Titlul lucrării în engleză: The offence of organized criminal group in article 367 from the new Criminal Code
Abstract: Our legal system knew, before the new criminal code entered into force on the 1st of February 2014, a large variety of offences that all had in common an “unlawful association”: a plot, a criminal group, a terrorist group, an organized criminal group and last, but not least, a much debated “unorganised criminal group”. We owed this variety mostly to the fact that the lawmaker, unable to effectively deal after 1989 with this remerging phenomenon, opted for the “easy way out” of just implying action by artificially increasing the number of offences. Moreover, like these offences were not enough, a few prosecutors successfully advanced the theory that a certain legal text, clearly meant only to point out the fact that an “unlawful associations” that does not satisfy the elements of an organized criminal group can be a plot or a common criminal group, contains, in fact, a separate offence. All these offences had a common, mostly forgotten, political origin that can be traced back to the French law from 1830 on „les asociations des malfaiteurs”. An “unlawful association” poses a threat not only to the public’s security, but also to the authority of the state, its capacity to enforce the law being hindered. Moreover, in some cases, greatly developed “unlawful associations” tend to act like independent “state-like” entities. In the last few decades, due to rapid technological development, a great number of “unlawful associations” tended not to limit their activity to the territory of a single state. What used to be exclusively a national problem quickly became the problem of a great number of states. In order to deal with it, states had to collaborate and in order to do so, they had to speak the same legal language. An organized criminal group, for example, should mean the same thing in a great number of states. We consider this to be the reason behind the international treaty on transnational organized crime signed, among a great number of other states, by our country in 2003. The new criminal code greatly reduced, bringing a much needed reform, the number of offences in regard to “unlawful associations”. The lawmaker maintained the general offence, that of participation in “unlawful associations” but named the latter, for foreign reasons, organized criminal group, giving it a much broader meaning than that from the U.N.D.O.C. treaty. An “unlawful association” can be qualified, in our current legal system, as an organized criminal group even if its actions are not directed to a material gain. Other offences, like participation in a plot or an “unorganised criminal group”, even though they were eliminated, are not depenalized. Those who have participated in such groups can still be held accountable, due to large scope of the offence described by article 367 of the new criminal code, for participation in an organized criminal group.
Keywords: unlawful association; a plot; a criminal group; a terrorist group; an organized criminal group; new Romanian Criminal Code; article 367; U.N.D.O.C. treaty.
