Page 79 - AEI Insights 2020 - Vol. 6, Issue 1

Bajrektarevic, 2020b

• the number of participants –at least three persons;
• the duration – a flexible requirement of existing for a period of time;
• the aim: to commit offences for the purpose of financial or other material benefits;
• the type of crime they commit, serious crime as defined by the Convention
• Criminalization of participation in a criminal organized group: Article 5 of the
Convention requires States Parties to foresee the introduction into their criminal law
systems of a number of offences relating to participation in an organized criminal group
that must be a common minimum standard for all States parties, without prejudice to
the differences among their common law or continental law systems and the possibility
of adopting stricter provisions.
• Each State Party shall adopt such legislative and other measures as may be necessary
to establish as criminal offences, when committed intentionally:
o Either or both of the following as criminal offences distinct from those involving
the attempt or completion of the criminal activity:
o Agreeing with one or more other persons to commit a serious crime for directly
or indirectly to the obtaining of a financial or other material benefit and, where
required by domestic law, involving an act undertaken by one of the participants
in furtherance of the agreement or involving an organized criminal
o Conduct by a person who, with knowledge of either the aim and general
criminal activity of an organized criminal group or its intention to commit the
crimes in question, takes an active part in:
▪ Criminal activities of the organized criminal group
▪ Other activities of the organized criminal group in the knowledge that
his or her participation will contribute to the achievement of the above
o Organizing, directing, aiding, abetting, facilitating or counselling the commission
of serious crime involving an organized criminal group.
• Confiscation, Seizure and Disposal of Proceeds of Organized Crime and the
International Cooperation for Confiscation: Article 12 and 13 deal with confiscation
and seizure calling on State Parties to adopt legislation to enable them to carry out
confiscation of both proceeds from crime and all instrumentalities used during the
commission of the offences. Article 12 focuses on domestic measures and Article 13
with international cooperation agreements.
• Legal persons and organized crime: Article 10 of the Convention requires States to
adopt measures to establish the liability of legal persons for participation in serious
crimes involving an organized criminal group and for the offences defined in the
Convention. Paragraph 2 states that, “subject to the legal principles of the State Party,
the liability of legal persons may be criminal, civil or administrative” leaving the States
Parties the possibility of choosing among these three possible liability regimes
considering their legal systems and the prevalence of the principle “societas delinquere
non potest”. However, States Parties must “ensure that legal persons held liable in
accordance with this article are subject to effective, proportionate and dissuasive
criminal or non-sanctions, including monetary sanctions.”
• Extradition: The Organized Crime Convention establishes a supple legal framework for
extradition in its Article 16 that relies on the domestic law of State Parties for most of
the conditions, procedures and requirements. However, in a limited number of areas the
UN Convention establishes some principles and conditions to be respected by State
Parties: the dual criminality principle, rules on provisional arrest, extradition of

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