Commission of an offence as part of the activity of an organized criminal group as grounds for increasing the sentence
Diary number: R2018/222
Issue date: 21.12.2018
Background to the case and the question to be decided
A and B had stolen and attempted to steal outboard motors and, in so doing, had committed several aggravated thefts and attempted aggravated thefts. They had been sent by C from Latvia to Finland, and C had agreed with D that A and B would deliver the stolen outboard motors to D. In Finland, D had first kept the motors and then transported them to Latvia where C had sold them. Following appeals by A and B, the Supreme Court was seized with the question of whether, in sentencing, the aggravating criterion of committing an offence as a member of an organized criminal group (Chapter 6, section 5, subsection 1(2) of the Criminal Code) could be applied to them.
According to Chapter 6, section 5, subsection 1(2) of the Criminal Code, one aggravating factor in sentencing is commission of an offence as part of the activity of an organized criminal group. In accordance with the definition in subsection 2 of this section, an “organized criminal group" refers to a structured association of three or more persons, existing for a period of time and acting in concert with the aim of committing offences that are punishable by a maximum sentence of imprisonment for at least four years, or offences referred to in Chapter 11, section 10 or Chapter 15, section 9.
The Supreme Court held that the interpretation of the definition should also take account Article 1 of Framework Decision 2008/841/JHA of the European Union (referred to below as the Framework Decision) and Article 2 of the United Nations Convention against Transnational Organized Crime (referred to below as the Palermo convention).
Assessment by the Supreme Court
The Supreme Court noted that the definition in Chapter 6, section 5, subsection 2 of the Criminal Code sets out five conditions that are to be met in order for a criminal group to be deemed an “organized criminal group". In addition, the offences should be committed as part of the activity of the organized criminal group.
The Supreme Court held that the three or more persons who form the group may be different persons at different times. In the present case, the group had had three permanent members A, C and D during the entire period of its activity and, at different times, several so-called assistants, such as B. Thus, during the entire period of the commission of the offences, there had been at least three persons involved in the activity of the group.
The Supreme Court stated that the purpose of the criterion regarding the duration of the group's activity is in part to distinguish between an organized criminal group and a group that has been randomly formed for the immediate commission of an offence or offences. In the present case, the group had committed offences from the spring of 2015 until the autumn of 2016 in accordance with the same principle of operations. The Supreme Court held that the condition relating to the duration of the group's activity had also been met.
According to Chapter 6, section 5, subsection 2 of the Criminal Code and Article 1 of the Framework Decision, an organized criminal group must be a structured association.
The Supreme Court stated that the usual co-operation among offenders in committing an offence does not, as such, indicate that the perpetrators had formed themselves into an organized criminal group. In view of the wording of the Framework Decision and the Palermo Convention, the condition referring to the structure of the group should not be interpreted too strictly. What is essential is to assess whether the structure of the group is such that the group is able to make decisions regarding its criminal activities and implement them.
The Supreme Court noted that, among other offences, A had been found guilty of a total of 23 aggravated thefts and two attempted aggravated thefts, as well as over 50 thefts and one attempted theft. During the period of the commission of the offences, A had made about 20 trips to Finland. B had, among other offences, been involved in more than ten aggravated thefts and almost 30 thefts. The division of labour among the members of the group in question had been quite differentiated, and it would not have been possible to commit the offences in the manner in question without each offender performing the role that he had been assigned. Thus the criminal group had been organized in the sense that it had been able to decide several times to commit an offence and to carry out the intended offences according to the plan. The group had also had some sort of hierarchical structure, although no evidence had been submitted that there would have been a strict chain of command in the group.
The Supreme Court held that this was not a case in which individual offenders would have abetted one another in the commission of a certain offence or offences, but a case involving a structured group.
The group had worked according to a common plan. All the participants in the group had been aware of one another and of the different roles in the commission of the offences. Taking also into consideration the high number of offences, their seriousness and the recurring way in which they had been committed, the Supreme Court held that the members of the group have had to have acted in concert within the meaning of the statutory definition.
The defendants had been found guilty of several aggravated thefts, which meet the condition in Chapter 6, section 5, subsection 2 of the Criminal Code regarding the seriousness of the offences.
In the light of the circumstances noted above, the Supreme Court held that it had been shown that the offences in question had been agreed upon by the group and committed on behalf of the group. All the offences of which A and B had been convicted had served the overall activity of the group. None of the offences in question had been separate from the activity of the group, and instead the thefts and forgery for which the offenders had been convicted had been committed either in accordance with the action plan of the group or in order to make it more difficult to investigate the principal offences of the group and to connect the offences to the members of the group.
The Supreme Court held that the group formed by A, C, and D as well as persons who at any one time served as assistants, met the definition of an organized criminal group provided in Chapter 6, section 5, subsection 2 of the Criminal Code. The Supreme Court further held that the offences for which A and B had been found guilty had been committed as part of the activity of this organized criminal group. For this reason, the aggravated grounds referred to in Chapter 6, section 5, subsection 1(2) of the Criminal Code could be applied when the offenders were being sentenced.