ESTABLISHING, MASTERMINDING AND SUPPORTING A CRIMINAL GROUP

#52Establishing, Masterminding and Supporting a Criminal Group

Section 296 of Act No. 300/2005 Coll. Penal Code as amended (Penal Code) defines the Establishing, Masterminding and Supporting of a criminal group as a criminal offence committed by the person who establishes or masterminds a criminal group, is its member, participates in it or supports it. Such an offender shall then be punished by imprisonment for five to ten years. The aim of this criminal offence is to protect society from a certain organized form of crime. There is no doubt that this is a very dangerous criminal offence, because organized crime is involved in several types of crime.

In order to know what this crime actually means, it is necessary to define the concept of a criminal group. This is defined in Section 129 (4) of the Penal Code as follows:

„For the purposes of this Act, a criminal group shall mean a structured criminal association of at least three persons, existing for a certain period of time, acting in a coordinated manner with the objective of committing one or more felonies, the criminal offence of legalization of proceeds of crime pursuant to Section 233, or any of the corruption criminal offences referred to under the Chapter Eight, Title Three of the Special Part of this Act, for the purposes of obtaining, directly or indirectly, a financial benefit or other advantage.“

The structuring of this act is characterized by the fact that it is usually based on several stages of management, to which a system of hierarchy applies. This is the case, for example, with the so-called cell structure, where certain cells work relatively independently from other cells, or have only some information about them. However, it may also be a network structure in which members act as separate units which can work for a certain umbrella person.

If the organized group and the criminal group appear to you to be similar, this issue has been clarified by the Supreme Court of the Slovak Republic in case R 51/2013, in such a way that a criminal group is a much more serious - the highest form of organized crime and that the achievement of the objective of such a group (as opposed to an organized group) is subject to far more sophisticated management comparable to that of stable organizations and businesses.

The specific characteristics of a criminal group are therefore its coordination, its existence over a longer period of time (at least six months), the division of activities, the commission of well-defined offences and the purpose of which is to obtain a certain financial or other advantage

One of the crimes that must be committed in order for us to be able to talk about a criminal group is the legalization of the proceeds of crime. This is defined in § 233 as the acquisition, possession or use of a thing which is the proceeds of a crime committed by another person in the territory of the Slovak Republic or abroad.

However, in addition to this crime, some of the crimes of corruption can also be committed when a crime is committed by a criminal group. This concept is not regulated in the legal order, but it can be understood as a certain unlawful conduct in a particular sector, which may be the taking of a passive bribery, active bribery or the taking and giving of an undue advantage in relation to the position of a public figure.