Tag Archives: Offence

Rights of victims of crime

Rights of victims of crime

Outline of the Community (European Union) legislation about Rights of victims of crime

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Judicial cooperation in criminal matters

Rights of victims of crime (Proposal)

Proposal

Proposal for a Directive of the European Parliament and of the Council establishing minimum standards on the rights, support and protection of victims of crime [COM(2011) 275 final – Not published in the Official Journal].

Summary

The Commission proposes a Directive aimed at ensuring that victims * of crime have the same level of protection, support and access to justice in all European Union (EU) countries. It will replace Framework Decision 2001/220/JAI on the standing of victims in criminal proceedings and forms part of a series of measures aimed at strengthening victims’ rights.

The Directive will accord the status of victim not only to persons harmed by the offence, but also to certain family members * if the person dies as a result of the offence.

Information and support for victims

To enable them to fully access their rights, victims must receive sufficient information in a comprehensible form. They must also have access to psychological support and practical assistance. The Proposal aims to guarantee:

  • the right to receive information from first contact with a judicial authority, specifically on how to make a complaint of a criminal offence, details of the proceedings and how to obtain protection if required;
  • the right to receive information about their case, in particular on the decision to end or proceed with an investigation, on the time and place of the trial, and, under certain conditions, on the release of the person prosecuted for the offence;
  • the right to understand and to be understood;
  • the right to interpretation and translation: if victims do not speak the language of the criminal proceedings, they shall be provided with interpretation free of charge and shall receive a translation of the complaint made, of any decision ending the proceedings, and of information concerning their rights;
  • the right to access victim support services: these services must be free of charge and also accessible to certain family members. They provide emotional and psychological support, as well as practical assistance, for example concerning financial issues and the role of the victim in criminal proceedings.

Participation of victims in criminal proceedings

Victims have a legitimate interest in seeing that justice is done. Furthermore, they should be able to participate in the criminal proceedings which concern them. To this end, the Commission’s Proposal includes a number of rights which victims should be assured of:

  • the right to have their complaint acknowledged;
  • the right to be heard during the proceedings;
  • the right to request a revision in the event of a decision not to prosecute;
  • rights to safeguards in the event of using mediation and other restorative justice services; the aim is to protect victims from any intimidation or further victimisation during the process. These services can only be used with victims’ consent and after they have been properly informed. Consent may be withdrawn at any time;
  • the right to legal aid and to reimbursement of costs where the victim participates in criminal proceedings;
  • the right to the return of property seized in the course of criminal proceedings;
  • the right to a decision on compensation from the offender in the course of criminal proceedings;
  • concerning victims resident in another EU country, the difficulties connected with these cases should be reduced, specifically by taking a statement from the victim immediately after the complaint of the criminal offence is made and by using video conferencing and telephone conference calls as much as possible for the purpose of interviewing victims. Where victims were unable to make a complaint of a criminal offence in the State where the offence took place, they should be able to do so in their Member State of residence which will then send the complaint to the Member State concerned.

Recognition of vulnerability and protection of victims

The Commission proposes that measures should be available to protect the safety of victims and their family members from possible retaliation or intimidation by the offender. The authorities will therefore ensure that contact with the latter is reduced, particularly in premises where the criminal proceedings are conducted.

During the investigation, victims will be interviewed quickly and only as many times as is necessary. If they wish, they may be accompanied by a legal representative or by a person of their choice. Their private life as well as that of their family must be protected.

The Proposal for a Directive recognises that certain people have a particularly high risk of suffering further during criminal proceedings. After an assessment of their individual needs, these vulnerable victims shall be accorded certain additional rights and services. This Proposal considers children, disabled people and victims of sexual violence or human trafficking to be vulnerable victims.

It is important that justice professionals, police officers and members of the victim support services receive appropriate training so that they are better able to meet the needs of victims.

Key terms of the Act
  • Victim: any natural person who has suffered harm, including physical or mental injury, emotional suffering or economic loss directly caused by a criminal offence; also any family members of a person whose death has been caused by a criminal offence.
  • Family member: the spouse, non-marital cohabitee, registered partner, the relatives in direct line, the brothers and sisters, and the dependants of the victim.

Reference

Proposal Official Journal Procedure

COM(2011) 275

2011/129/COD

Related Acts

Proposal for a Regulation of the European Parliament and of the Council on mutual recognition of protection measures in civil matters [COM(2011) 276 final – Not published in the Official Journal].
The aim of the proposed Regulation is that any protection measure issued by a Member State will be easily recognised in the rest of the EU without any further formality other than a standardised, multi-lingual certificate.

Co-decision procedure (2011/0130/COD)

Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions of 18 May 2011 – Strengthening victims’ rights in the EU [COM(2011) 274 final – Not published in the Official Journal].

Defining the facilitation of illegal immigration

Defining the facilitation of illegal immigration

Outline of the Community (European Union) legislation about Defining the facilitation of illegal immigration

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Free movement of persons asylum and immigration

Defining the facilitation of illegal immigration

Document or Iniciative

Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence.

Summary

With a view to creating an area of freedom, security and justice, the European Union (EU) must take measures to combat the aiding of illegal immigration. To this end, EU countries’ legal provisions regarding such offences must be harmonised.

Consequently, this directive provides a common definition for the “facilitation of illegal immigration”, thus improving the application of the penal framework for preventing the facilitation of illegal immigration.

Infringements

The directive defines the following as infringements:

  • assisting intentionally a non-EU country national to enter or transit through the territory of an EU country, in breach of laws;
  • assisting intentionally, and for financial gain, a non-EU country national to reside in the territory of an EU country, in breach of laws;
  • instigating, assisting in or attempting to commit the above acts.

EU countries must adopt effective, proportionate and dissuasive sanctions for these infringements. However, for the first above infringement, where the aim is to provide humanitarian assistance EU countries are not obliged to impose sanctions.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Directive 2002/90/EC

5.12.2002

5.12.2004

OJ L 328 of 5.12.2002

Preventing and combating trafficking in human beings

Preventing and combating trafficking in human beings

Outline of the Community (European Union) legislation about Preventing and combating trafficking in human beings

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Fight against trafficking in human beings

Preventing and combating trafficking in human beings

Document or Iniciative

Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA [OJ L 101 of 15.4.2011].

Summary

Trafficking in human beings is globally considered to be one of the most serious of criminal offences. It constitutes a violation against human rights and is a modern form of slavery. The new Directive adopted by the European Union (EU) defines the minimum common rules for identifying and sanctioning offences of trafficking in human beings.

Definitions

The following are considered as punishable acts: the recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, for the purpose of exploitation.

Exploitation shall include, as a minimum:

  • exploitation for prostitution or other forms of sexual exploitation;
  • forced labour or services (including begging, slavery or practices similar to slavery, servitude, exploitation for criminal activities, or the removal of organs).

Exploitation exists when a constraint has been exerted on a person (by means of threat or use of force, abduction, fraud, deception, etc.), whether or not the victim has given his/her consent.

When the victim is a child (a person below 18 years of age), these acts of exploitation are automatically deemed to be an offence of trafficking in human beings, even if none of the means of constraint set forth in the paragraph above has been used.

Penalties

Incitement to undertake trafficking in human beings, as well as the aiding and abetting, and attempt to do so shall be punishable.

The Directive sets the maximum penalty for these offences to at least five years of imprisonment and to at least ten years when the following aggravating circumstances can be identified:

  • the offence was committed against a victim who was particularly vulnerable (children always come under this category);
  • the offence was committed within the framework of a criminal organisation;
  • the offence deliberately or by gross negligence endangered the life of the victim;
  • the offence was committed by use of serious violence or has caused particularly serious harm to the victim.

Legal persons can also be held liable if the offences are committed for their benefit by a person who has a leading position. The same applies if a lack of supervision or control on the part of this person enabled another person placed under his/her authority to commit these offences.

Penalties against legal persons include criminal and non-criminal fines, and other sanctions such as placing them under judicial supervision, or judicial winding-up.

Member States may decide not to prosecute or impose penalties on victims of trafficking in human beings for their involvement in criminal activities which they have been compelled to commit.

With regard to the prosecution of offenders, the Directive provides for the possibility for Member States to prosecute their nationals for offences committed in another EU country and to use the same means of investigation as usually used for combating organised crime, such as phone tapping.

Assistance, support and protection for victims

Member States must ensure that assistance and support are provided to victims before, during and after criminal proceedings in order to enable them to exercise the rights conferred upon them by the standing of victims in criminal proceedings. In particular, this support may consist of the provision of accommodation, medical treatment including psychological assistance, as well as information, and interpretation and translation services, if necessary. As particularly vulnerable victims, children must receive additional measures such as physical and psycho-social assistance, access to education, and, where appropriate, the option to appoint a guardian or a representative.

During the investigation and criminal proceedings, victims must receive appropriate protection including access to legal counselling and representation, free of charge if necessary, and access to a witness protection programme, where appropriate. Any further trauma to the victim should be avoided, for example by sparing him/her any contact with the accused. Children must benefit from specific measures, particularly concerning the conditions of their hearings. Specifically, they will be interviewed without delay, in adapted premises, and by professionals trained for that purpose.

Victims of trafficking in human beings must have access to compensation for victims of violent crimes of intent.

Prevention

In order to prevent trafficking in human beings, the Directive requests that Member States:

  • discourage demand through education and training;
  • lead information and awareness-raising campaigns;
  • train the officials likely to come into contact with victims of trafficking;
  • take the necessary measures to establish as a criminal offence the use of services, sexual or other, of a person who is a victim of trafficking.

The position of a European anti-trafficking Coordinator is established in order to ensure a consistent approach to combating this phenomenon in the EU.

Denmark is not taking part in the adoption of this Directive.

Context

Trafficking in human beings is explicitly prohibited by the Charter of Fundamental Rights of the European Union and the EU has made combating this phenomenon one of the priorities of the Stockholm Programme.

This new Directive replaces Framework Decision 2002/629/JHA on combating trafficking in human beings. It adopts a wider definition of this phenomenon by including other forms of exploitation.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Directive 2011/36/EU 15.4.2011 6.4.2013 OJ L 101 of 15.4.2011

Related Acts

Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: The EU strategy towards the Eradication of Trafficking in Human Beings 2012-2016 [COM(2012) 286 final – Not published in the Official Journal].
The Communication presents a strategy designed to focus on concrete measures that will support the transposition and implementation of Directive 2011/36/EU, bring added value and complement the work done by governments, international organisations and civil society both in EU and non-EU countries. The strategy identifies the following five priorities for the EU to focus on:

  • identifying, protecting and assisting victims of trafficking;
  • stepping up the prevention of trafficking in human beings;
  • increased prosecution of traffickers;
  • enhanced coordination and cooperation among key actors and policy coherence;
  • increased knowledge of and effective response to emerging concerns related to all forms of trafficking in human beings.

Within the above priorities, the Communication outlines a number of actions which the European Commission proposes to implement over the next five years, alongside EU countries, European External Action Service, EU institutions, EU agencies, international organisations, non-EU countries civil society and the private sector.

Commission Decision 2007/675/EC of 17 October 2007 setting up the Group of Experts on Trafficking in Human Beings [OJ L 277 of 20.10.2007].

EU plan on best practices, standards and procedures for combating and preventing trafficking in human beings [Official Journal C 311 of 9.12.2005].

Group of Experts on Trafficking in Human Beings

Group of Experts on Trafficking in Human Beings

Outline of the Community (European Union) legislation about Group of Experts on Trafficking in Human Beings

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Fight against trafficking in human beings

Group of Experts on Trafficking in Human Beings

Document or Iniciative

Commission Decision 2011/502/EU of 10 August 2011 on setting up the Group of Experts on Trafficking in Human Beings and repealing Decision 2007/675/EC [OJ L 207 of 12.8.2011].

Summary

This Decision establishes a Group of Experts on Trafficking in Human Beings responsible for advising the European Commission on all anti-trafficking matters.

The Group’s main tasks are:

  • to provide the Commission with written contributions on matters related to trafficking in human beings, ensuring a coherent approach to the subject;
  • to help the Commission to assess the evolution of policy in the field at national, European and international levels, and to identify possible measures;
  • to provide a forum for discussion on matters related to trafficking in human beings.

The group shall be composed of fifteen members appointed by the Commission for four years on the basis of a call for applications. Its members shall be individuals with expertise and experience in the prevention of and fight against trafficking in human beings. They shall be citizens of a Member State of the European Union (EU), a candidate or potential candidate country or a European Economic Area country.

The group shall be chaired by the EU Anti-Trafficking Coordinator. Experts and observers may be invited to participate in meetings.

Neither group members nor experts and observers will receive any remuneration for their services.

Context

Set up in 2003, the group has enabled the Commission to develop its anti-trafficking policy. This Decision repeals the previous Decision establishing the group of experts, in order to take account of the new European Directive on the prevention of and fight against trafficking in human beings and the creation of the position of EU Anti-Trafficking Coordinator. The latter has the task of improving the coordination of action at European, national and international levels and of participating in the development of EU policies in the field of anti-trafficking.

References

Act Entry into force Deadline for transposition in the Member States Official Journal

Decision 2011/502/EU

1.9.2011

OJ L 207, 12.8.2011

Combating trafficking in human beings

Combating trafficking in human beings

Outline of the Community (European Union) legislation about Combating trafficking in human beings

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Fight against trafficking in human beings

Combating trafficking in human beings

This framework decision aims to approximate the laws and regulations of European Union (EU) countries in the field of police and judicial cooperation in criminal matters relating to the fight against trafficking in human beings. It also aims to introduce common framework provisions at European level in order to address issues such as criminalisation, penalties and other sanctions, aggravating circumstances, jurisdiction and extradition.

Document or Iniciative

Council Framework Decision 2002/629/JHA of 19 July 2002 on combating trafficking in human beings.

Summary

Since the adoption in 1997 of a joint action by the Council concerning action to combat trafficking in human beings and the sexual exploitation of children, a considerable number of initiatives have been developed at both national and regional levels. The Vienna Action Plan and the Tampere European Council called for additional provisions to further regulate certain aspects of criminal law and criminal procedure.

Moreover, in December 2000, at the signing conference in Palermo, Antonio Vitorino, a Member of the Commission acting on behalf of the Community, signed the United Nations Convention against Transnational Organised Crime and the two Protocols against trafficking in persons and the smuggling of migrants by land, air and sea.

With this framework decision, the Commission wishes to complement the existing instruments used to combat trafficking in human beings, including the:

  • French initiatives on facilitation of unauthorised entry, movement and residence relating to the smuggling of migrants (Directive 2002/90/EC and Framework Decision 2002/946/JHA);
  • STOP and Daphné action programmes;
  • European Judicial Network;
  • exchange of liaison magistrates.

The Commission takes the view that trafficking in human beings is a crime against the person with a view to the exploitation of that person.

Article 1 defines the concept of trafficking in human beings for the purpose of labour or sexual exploitation. EU countries must punish any form of recruitment, transportation, transfer or harbouring of a person who has been deprived of his/her fundamental rights. Thus, all criminal conduct that abuses the physical or mental vulnerability of a person will be punishable. The victim’s consent is irrelevant where the offender’s conduct is of a nature that would constitute exploitation within the meaning of the framework decision, that is, involving the:

  • use of coercion, force or threats, including abduction;
  • use of deceit or fraud;
  • abuse of authority or influence or the exercise of pressure;
  • offer of payment.

Instigating trafficking in human beings and being an accomplice or attempting to commit a crime will be punishable.

Penalties provided for by national legislation must be “effective, proportionate and dissuasive.” By setting the maximum penalty at no less than eight years of imprisonment, the Commission makes it possible to apply other legislative instruments already adopted for the purpose of enhancing police and judicial cooperation, such as Joint Action 98/699/JHA on money laundering, the identification, tracing, freezing, seizing and confiscation of the instrumentalities and the proceeds from crime and Joint Action 98/733/JHA on making it a criminal offence to participate in a criminal organisation. A custodial sentence will only be imposed in the circumstances where the:

  • victim’s life has been endangered;
  • victim was particularly vulnerable (for example, due to his/her age);
  • crime is committed within the framework of a criminal organisation as defined by Joint Action 98/733/JHA.

In addition, the framework decision introduces the concept of criminal and civil liability of legal persons in parallel with that of natural persons. Legal persons will be held liable for offences committed for their benefit by any person acting either individually or as part of the organ of the legal person, or who exercises a power of decision.

Penalties on legal persons will be “effective, proportionate and dissuasive”; they will include criminal or non-criminal fines and specific sanctions, such as a temporary or definitive ban on commercial activities, a judicial dissolution measure or the exclusion from public benefits or advantages.

Child victims of trafficking are entitled to special assistance, in accordance with Framework Decision 2001/220/JHA on the standing of victims in criminal proceedings.

In order that the crime does not go unpunished because of a conflict of jurisdiction, the decision introduces criteria on jurisdiction. An EU country will have jurisdiction where the:

  • offence is committed on its territory (territoriality principle);
  • offender is a national (active personality principle);
  • offence is committed for the benefit of a legal person established in the territory of that EU country.

The second criterion is particularly important for countries that refuse to extradite their nationals, since they must take the necessary measures to prosecute their nationals for offences committed outside their territory.

This framework decision repeals Joint Action 97/154/JHA as regards combating trafficking in human beings.

The framework decision is applicable to Gibraltar.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Framework Decision 2002/629/JHA

1.8.2002

1.8.2004

OJ L 203 of 1.8.2002

Related Acts

Report from the Commission to the Council and the European Parliament of 2 May 2006 based on Article 10 of the Council Framework Decision of 19 July 2002 on combating trafficking in human beings [COM(2006) 187 final – Not published in the Official Journal].

Communication from the Commission to the European Parliament and the Council of 18 October 2005 – Fighting trafficking in human beings: an integrated approach and proposals for an action plan [COM(2005) 514 final – Not published in the Official Journal].
This communication aims to strengthen the commitment of the EU to preventing and combating trafficking in human beings. The Commission is seeking to further reinforce the commitment of the EU and its countries to preventing and combating trafficking in human beings committed for purposes of sexual or labour exploitation, and to protect, support and rehabilitate victims. It believes that trafficking in human beings cannot be effectively tackled unless an integrated approach is adopted, based on respect for human rights and taking into account the global nature of the problem. Such an approach calls for a coordinated policy response particularly in the areas of freedom, security and justice, external relations, development cooperation, employment, gender equality and non-discrimination.

Terrorist offences

Terrorist offences

Outline of the Community (European Union) legislation about Terrorist offences

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Fight against terrorism

Terrorist offences

Document or Iniciative

Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism [See amending act(s)].

Summary

The framework decision harmonises the definition of terrorist offences in all EU countries by introducing a specific and common definition. Its concept of terrorism is a combination of two elements:

  • an objective element, as it refers to a list of instances of serious criminal conduct (murder, bodily injuries, hostage taking, extortion, fabrication of weapons, committing attacks, threatening to commit any of the above, etc.);
  • a subjective element, as these acts are deemed to be terrorist offences when committed with the aim of seriously intimidating a population, unduly compelling a government or international organisation to perform or abstain from performing any act, or seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation.

The framework decision defines a terrorist group as a structured organisation consisting of more than two persons, established over a period of time and acting in concert, and refers to directing a terrorist group and participating in its activities as offences relating to a terrorist group.

Furthermore, EU countries must ensure that certain intentional acts are punishable as offences linked to terrorist activities even if no terrorist offence is committed. These include:

  • public provocation to commit a terrorist offence;
  • recruitment and training for terrorism;
  • aggravated theft, extortion and falsification of administrative documents with the aim of committing a terrorist offence.

To punish terrorist offences, EU countries must make provision in their national legislation for effective, proportionate and dissuasive criminal penalties, which may entail extradition. In addition, EU countries must ensure that penalties are imposed on legal persons where it is shown that the natural person has the power to represent the legal person or authority to exercise control within the legal person that has committed a terrorist offence.

EU countries must take the necessary action to:

  • establish their jurisdiction with regard to terrorist offences;
  • establish their jurisdiction where they refuse to hand over or extradite a person suspected or convicted of such an offence to another EU country or to a non-EU country;
  • coordinate their activities and determine which of them is to prosecute the offenders with the aim of centralising proceedings in a single EU country, when several EU countries are involved.

They will also ensure appropriate assistance for victims and their families (in addition to the measures already provided for in Framework Decision 2001/220/JHA).

Background

The terrorist attacks of September 2001 have led the EU to step up action in this field. This framework decision is thus designed to make the fight against terrorism at EU level more effective. This problem was already discussed at the European Council meetings in Tampere in October 1999 and in Santa Maria da Feira in June 2000.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Framework Decision 2002/475/JHA

22.6.2002

31.12.2002

OJ L 164 of 22.6.2006

Amending act(s) Entry into force Deadline for transposition in the Member States Official Journal
Framework Decision 2008/919/JHA

9.12.2008

9.12.2010

OJ L 330 of 9.12.2008

Related Acts

Report from the Commission of 6 November 2007 based on Article 11 of the Council Framework Decision of 13 June 2002 on combating terrorism [COM(2007) 681 final – Official Journal C 9 of 15.1.2008].
This second report notes that most EU countries evaluated for the first time have satisfactorily achieved implementation of the main provisions contained in the framework decision. Nevertheless, some major issues stand out. Concerning the EU countries evaluated for the second time, the additional information they have sent has allowed the Commission to generally conclude that there is a higher level of compliance. However, most of the main deficiencies identified in the first evaluation report remain unchanged.
The main concerns of the Commission are the deficient implementation, by some EU countries, of the provisions that establish a common definition of terrorism and the harmonisation of penalties for offences related to a terrorist group and of criminal liability of legal persons for terrorist offences.

Report from the Commission of 8 June 2004 based on Article 11 of the Council Framework Decision of 13 June 2002 on combating terrorism [COM(2004) 409 final – Official Journal C 321 of 28.12.2004].
This report reviews the measures taken by EU countries to comply with the framework decision on combating terrorism. According to it, most EU countries have taken the necessary measures to comply with the main provisions of this legal instrument. However, certain deficiencies were pointed out.

Fight against organised crime: participation in a criminal organisation

Fight against organised crime: participation in a criminal organisation

Outline of the Community (European Union) legislation about Fight against organised crime: participation in a criminal organisation

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Fight against organised crime

Fight against organised crime: participation in a criminal organisation

Acts

Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime.

Summary

The aim of this Framework Decision is to harmonise Member States’ definitions of crimes related to a criminal organisation * and to lay down corresponding penalties for these offences. There are two types of conduct of which Member States must recognise at least one as an offence:

  • active participation in an organisation’s criminal activities, with the knowledge of its aim or of its intention to commit crimes;
  • an agreement on the perpetration of crimes without necessarily taking part in committing them.

The Member States must take steps to penalise the above offences in that the first results in a maximum term of imprisonment of a minimum of two to five years, and the second in a maximum term of imprisonment equivalent to that of the planned activities or in a maximum term of a minimum of two to five years. The Member States may reduce, or allow for an exemption from, these penalties if the offender relinquishes criminal activity and assists the authorities by providing them with otherwise unobtainable information on the offence and the other offenders.

The Member States must also hold any legal person * accountable for the above offences that have been committed on its behalf by a person who has a central role in the legal person in question, even if that person has acted in an individual capacity. An offence committed, as a result of lack of supervision, by a person under the authority of the former may also be held against the legal person.

The legal persons held accountable for offences must be punished by effective, proportionate and dissuasive penalties. These should include both criminal and non-criminal fines. The penalties may also include the following:

  • ending the right to public aid;
  • temporarily or permanently prohibiting commercial activities;
  • placing under judicial supervision;
  • judicial winding-up;
  • temporarily or permanently closing the establishments used for the offences.

A Member State’s jurisdiction must cover the offences if they are committed on its territory, in whole or in part, by its national or on behalf of a legal person set up on its territory. If the offence is committed outside a Member State’s territory, it may choose whether or not to apply the last two rules. If the offence falls within the jurisdiction of several Member States, they must collaborate, for example via Eurojust, in order to decide on the prosecuting country and thus to centralise the proceedings. However, in doing so, the Member States must give due consideration to where the offence was carried out, the nationality or place of residence of the offender, the country of origin of the victim and the territory where the offender was found.

If a Member State does not extradite or surrender its nationals, it must revamp its jurisdiction and take steps to prosecute its nationals when they commit an offence outside its territory. Simultaneously, the Member State may continue to apply its jurisdiction to criminal matters as stipulated in its national law.

For offences that have been committed on the territory of a Member State, the investigations and prosecutions by that Member State must be carried out without requiring a report or an accusation from a victim.

Background

The need to improve the measures used to combat organised crime was acknowledged in the Commission Communication of 29 March 2004 on measures to be taken to combat terrorism and other forms of serious crime, in particular to improve exchanges of information. Hence, the Commission simultaneously informed of its intention to draw up a Framework Decision that would replace Joint Action 98/733/JHA of 21 December 1998 on making it a criminal offence to participate in a criminal organisation in the Member States of the European Union. This Framework Decision 2008/841/JHA therefore repeals the Join Action 98/773/JHA.

Key terms used in the act

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  • Criminal organisation: a structured association, established over a period of time, of more than two persons acting in concert with a view to committing offences that are punishable by deprivation of liberty or a detention order of a maximum of at least four years or a serious penalty, to obtain, directly or indirectly, a financial or other material benefit.
  • Structured association: an association that is not randomly formed for the immediate commission of an offence, nor does it need to have formally defined roles for its members, continuity of its membership, or a developed structure.
  • Legal person: any entity having legal personality under the applicable law, except for States or public bodies in the exercise of State authority and for public international organisations.

References

Act

Entry into force

Deadline for transposition in the Member States

Official Journal

Framework Decision 2008/841/JHA

11.11.2008

11.5.2010

OJ L 300 of 11.11.2008