As criminal lawyers, we are very often faced with cases in which there is criminal organization on the one hand or an association of criminals on the other.
But what is the difference between the two?
Association of criminals:
What constitutes an association of criminals is defined in Section 322 Sw.
In it one reads:
“Any association with the intent to commit an attack on persons or property is a crime or a malpractice, existing by the mere fact of furnishing the gang.”
According to established Supreme Court case law, it is sufficient that the association in question has the purpose of committing a crime.
This does not even require that the crime was actually committed.
A mere preparatory act will suffice.
In other words, is it enough that plans are forged to commit a crime to be prosecuted for gang affiliation.
It is obvious that one must be at least two to talk about an association.
However, this is not enough.
In addition, there must be a certain duration, a structure and concrete agreements.
Criminal organization:
A criminal organization is distinct from the association of criminals.
What constitutes a criminal organization is defined in Section 324bis of the Sw.
“By criminal organization is meant any structured association of more than two persons lasting over time, for the purpose of committing, in concert, crimes and misdemeanors punishable by imprisonment for three years or a more severe penalty, in order to obtain, directly or indirectly, pecuniary benefits.”
First, there must be an association of more than two people.
In addition, unlike the case of an association of criminals, there must be a clearer structure with a hierarchy.
In other words, there needs to be a clearer division of roles between the various participants.
Punishment:
In accordance with Sw. 324ter, the role of the member of a criminal organization affects the possible punishment.
Thus, Article 324ter distinguishes between the following categories of members:
- Paragraph: any person who participates in the preparation or execution of an activity of a criminal organization shall be punished by imprisonment for a term of one year to three years and a fine of EUR 100.00 to EUR 5,000.00.
It is not important here that that particular activity is permissible. - Participation in the decision-making process: any person who participates in making any decision whatsoever in the periphery of the activities of that criminal organization knowing that his participation contributes to the purpose of the organization shall be punished by imprisonment from five years to ten years and by a fine from EUR 500.00 to EUR 100,000.00.
- Leadership: finally, a leader of the criminal organization is punished with imprisonment from 10 years to 15 years and with a fine of EUR 1,000.00 to EUR 2,000.00.
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As You can see, the difference between membership in an association of criminals or criminal organization is particularly relevant to sentencing.
Therefore, if you are being prosecuted for membership in a criminal organization or an association of criminals, you should be assisted by a specialized lawyer.
With more than 20 years of experience as a lawyer in Antwerp, Mr.
Peterfreund will gladly assist you here.
If you have any questions: feel free to contact us.
