Committing a criminal offence within the framework of a criminal organization with particular emphasis on Illegal Immigrant Smuggling - an outline of the Hungarian legislation

https://doi.org/10.63189/FBSO1163

Prof. Dr. Judit Jacsó^[1] – Dr. Ferenc Sántha^[2] – Dr. Bence Udvarhelyi^[3]

1. Introduction

Illegal transnational migration poses serious risks to the European countries. Even more dangerous are the conducts of those who, with the appearance of legality, tries to illegally assist the migrants in illegally crossing the state borders, mostly for financial benefit. The illegal immigrant smugglers usually do not operate alone, but create well-functioning, highly profitable transnational criminal organisations. The countries of origin of those who act as organizers and leaders in these criminal organizations are mostly the same as those of the trafficked persons, while the members of organizations are present in all the countries located on the route of illegal migration. These criminal groups are usually not very structured, the leader is connected to a few trusted persons who maintain direct contact with persons in the countries of origin, transit and destination. The transnational criminal organizations operate in a well-coordinated and regular manner, e.g. they recruit illegal migrants in the country of origin, they help them crossing the green border and move further, provide the accommodation etc. The leaders of criminal organizations usually do not directly participate in the commission of the crimes, nor do they give direct instructions for its execution, they try to stay in the background, therefore it is extremely difficult to prove their involvement in the immigrant smuggling.

In can be seen that criminal organizations participating in illegal immigrant smuggling pose a great challenge to law enforcement agencies in both domestic and international level. Therefore, most countries, including Hungary, tries to create an effective legal framework against criminal organizations.

2. Criminal organization in the Hungarian criminal law

In the Hungarian Criminal Code (HCC), the criminal organization is one of the so-called joint perpetrations, in addition to the criminal conspiracy and the group perpetration. The common characteristic of joint perpetrations is that two or more persons are involved in the commission of the crime, which implies a particular division of activities and a certain degree of organization. However, there are essential differences: criminal conspiracy and group perpetration have existed for a long time in Hungarian criminal law, and these forms are regulated as aggravated cases with a more severe punishment of certain criminal offences (e. g. robbery committed in a group perpetration, or drug trafficking committed in criminal conspiracy).

On the other hand, criminal organization were incorporated into the HCC only in 1997 in order to create an enhanced framework for the fight against serious organized crimes. The definition of a criminal organization has undergone several modifications over time. Until 2019 it consisted of the following elements: i) a group of three or more person; ii) the group is organized for a longer period of time; iii) the group is operating in concert; iv) the purpose of the group is to commit intentional crimes punishable with imprisonment of at least five years or more. The latest amendment of the definition entered into force on 10 July 2019. According to the explanatory report of the amending act, ‘the purpose of the present amendment is to more clearly distinguish the concept of the criminal organization from that of criminal conspiracy, in response to the inadequate jurisprudence, and at the same time to provide guidance for the application of the law about the determination of the commission of a criminal organisation. The existing definition is therefore supplemented by the elements of hierarchy and conspiracy.’

3. The conceptual elements of the criminal organization

Under Point 1 of Art. 459(1) criminal organization is: ‘a group of at least three persons, organized for a longer period in a hierarchical manner and operating conspiratorially in order to commit an intentional criminal offence punishable with imprisonment of at least five years or more.’ As the prosecutor bears the burden of proof, he/she is required to prove the elements of the criminal organization, which are as follows:

a) The HCC requires a minimum of three members for a criminal organization. They may be criminally liable as a principal perpetrator, an instigator or an abettor, but a minimum of one principal perpetrator is a necessary condition. There may be a change in the composition of the members: such mobility usually does not itself affect the existence of the organization and is irrelevant to the establishment of the criminal organization and its legal consequences.

b) Criminal organization is a group established over a longer period of time. A commission of only one or two crimes occasionally does not constitute a criminal organization; the term ‘longer period’ concerns the relative stability of the organization's structure. Though it is not possible to determine precisely, according to the court practice, a few months of the operation can be considered as a ‘longer period’, in particular where it is clear that the members of the organization intended to commit further crimes, additional to those already committed (e.g., when the perpetrators intended to use the large quantities of weapons acquired by illegal arms trafficking for the showdown of the rival gangs). An important feature is that the criminal organization itself must be organized over a longer period rather than the involvement of individual participants. It means that the more serious legal consequences connected to a criminal organization can be applied to the participant even if he/she commits only one crime within the framework of the criminal organization.

c) The third element, the hierarchical organizational structure, means that the perpetrators are subordinate to each other, and the decision-making levels are separate; thus, the organizational structure is vertical. It should be added, however, that hierarchy and subordination also imply that the organization has a leader, that there are persons only with executive functions, that there is a system of issuing orders/instructions, and that the executors act on the instructions of the leader. According to the judicial practice, a direct link between the members of the organization is not necessary, and it is irrelevant whether they know each other or not. This element can be established even if a leader and the executing members coordinate the activities of the perpetrators and are unaware of each other's activities.

d) Conspiratorial operation is a form of clandestine organization and covert operation, the purpose of which is to conceal the actual activities of the group, to prevent detection by the authorities, and to prevent the perpetrators and the commission of the crime from being recognized by the outside world. The conspiracy must go beyond the concealment of the offence committed and not be limited to the commission of the offence.

According to the court practice, several facts can confirm that this condition is fulfilled, e.g.

- taking measures to conceal the results of the crimes and impede the detection of the criminal activities;

- conspirative methods of communication between the members, the use of encoded language, e.g. using particular words and terms during the phone calls and other forms of communication, use of so-called work phones and frequent changes of phone numbers;

- coordinated action against the authorities, e.g. in case of arrest of a member, the organization provides a defense lawyer and covers the costs;

- the involvement of companies with no real economic activity, the use of a strawman.

e) The purpose of the criminal organization is the commission of a minimum of two criminal offences that are punishable with five years of imprisonment or more. This does not mean that the perpetrator must know about the measures of punishment, but he/she must understand that the purpose of the criminal organization is to commit serious crimes.

A criminal organization already comes into existence if the members have not committed such a crime yet. It is another question that the serious legal consequences mentioned later (e. g. the doubled maximum penalty) can only be applied if the members attempt to commit at least one criminal offence. A criminal organization can be organized for the commission of any intentional criminal offence punishable with five years or more (there is no exhausted list of the relevant crimes). The purpose to obtain a financial or another material benefit is not required (though this is a typical case).

Finally, it should be emphasized that the perpetrator must not only be aware of the objective elements of the criminal offence(s) committed in the criminal organization, but he/she also must know the above-mentioned factual elements of a criminal organization.

4. Legal consequences of committing a crime within the framework of a criminal organization

Perpetration within the framework of a criminal organization is not an aggravated case of a crime. However, several serious legal consequences provided by the General Part of HCC shall be applied, which are the following:

- the maximum imposable penalty is to be doubled (however, this punishment must not exceed twenty-five years);

- all assets obtained by the perpetrator during his involvement in a criminal organization have to be regarded as subject to confiscation until proven otherwise;

- the perpetrator is excluded from the possibility of a suspended sentence of imprisonment or release on parole;

- the sentence of imprisonment shall be carried out in a high-security prison if the imprisonment imposed is two years or more;

- a ban on entering certain areas as a punishment can be imposed for any crime committed within a criminal organization.

5. Summary

In summary, compared to the previous legislation, the current definition of the criminal organization contains additional elements, namely the hierarchical nature of the organisation and its conspiratorial functioning. As mentioned above, the conceptual elements must be proven, which places an additional burden on the prosecution. The criminal organization means not only the collective action of persons but requires a kind of qualitative extra characteristics. Simply committing crimes in an organized manner is insufficient; it requires a higher level of coordination, a clear hierarchy, conspiracy, division of tasks, planning, and direction.

^[1] Full professor, University of Miskolc, Faculty of Law, Institute of Criminal Sciences, Department of Criminal Law and Criminology

^[2] Associate professor, University of Miskolc, Faculty of Law, Institute of Criminal Sciences, Department of Criminal Law and Criminology

^[3] Associate professor, University of Miskolc, Faculty of Law, Institute of Criminal Sciences, Department of Criminal Law and Criminology

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