Bulgarian legislation provides for a number of crimes which, if committed by persons acting on behalf of an organized criminal group or in execution of a decision of such a group, are punished more severely than in ordinary cases. These include intentional murder, causing bodily harm, kidnapping, including for the purpose of subjecting the kidnapped person to sexual abuse, pimping, the creation and distribution of pornographic materials, human trafficking, national and cross-border drug trafficking, robbery, treasure hunting, extortion, smuggling, money laundering, etc.
Based on the fact that the very formation of an organized criminal group, its management, or participation in it reveals a high degree of public danger, the Penal Code elevates these acts to separate crimes. It is precisely these that we will focus on in today’s article.
When is there an organized criminal group?
The term “organized criminal group” has a legal definition. According to the Criminal Code, such a group exists when the following conditions are met:
- structure of the association;
- durability;
- participation of three or more persons;
- the specific purpose of establishing the association, namely the coordinated commission of crimes in the country and abroad;
- for crimes for which the group was formed, a punishment of imprisonment for more than three years shall be provided.
What are the conditions, in the presence of which it can be assumed that yes it can be accepted that each one of the following is a necessary condition for the existence of the existence of the existence of the existence of the be accepted that each one of these prerequisites is fulfilled?
In first place, the association is structured, when there is an internal organization in place, revealing specific relationships between members, hierarchy or distribution of functions by leadership and participation in it.
Secondly, with regard to the prerequisite of “durability” of an existing organized criminal group, it is important to note that this does not refer solely to the application of the “time” criterion in assessing its fulfillment. Case law is categorical that an association is durable when the links between its members can be defined as such, even if the association itself has existed for a relatively short period of time.
Thirdly, the most important element of the concept of an organized criminal group is the participation of three or more persons. For this prerequisite to be met, it must be proven that these persons have special organizational ties with each other and that they are aware of their participation in the association. Case law accepts that for this element to be present, it is not necessary for all persons to know each other. It is sufficient for each person to be aware that they are a member of such a group.
In practice, the most – frequent reason for issuing acquittal judgments on charges for initiation, leading or participating in an organized criminal group is precisely the absence of three or more persons.
Fourthly, it is necessary for these three or more persons, who are in a permanently structured association with each other, to participate in it for the purpose of committing crimes. In order to incur criminal liability for forming, leading, or participating in such an organization, it is not necessary for the crime to have begun, much less been completed.
Finally, it is necessary that the crimes targeted by the group carry a prison sentence of more than three years.
The absence of any of these prerequisites always leads to the absence of an organized criminal group and, accordingly, to the absence of a crime.
IMPORTANT!
The commission of a crime on behalf of or in execution of a decision by an organized criminal group is often confused with actions under the conditions of ordinary complicity. When, however, it will be established such punishment for the crime committed will be be determined according to the basic composition of the crime, i.e. it will be less severe.
In order for there to be an organised criminal group whose formation or leadership, as well as participation in it, may be subject to criminal liability, the prosecution must establish that this group aims to commit two or more crimes. “Two or more crimes” does not mean “two or more types” but “two or more” in number. In other words, if the group is organised for the purpose of distributing narcotic substances on two or more occasions and the other characteristics described above are present, then it can be assumed that an organised criminal group exists.
In the event that there is a common preliminary agreement to commit only one crime, it is considered simple complicity, and not an organized criminal group.
Forming or leading an organized criminal group – penalties and protection
Firstly, the law provides for criminal liability for persons who form an organized criminal group. “Forming” refers to the activity of creating or initiating such a group. This may consist of recruiting participants, coordinating the will of specific individuals regarding the type of crimes for which the group is formed, creating conditions for the group to “work,” etc.
In order for criminal liability to be incurred for forming an organized criminal group, the act must be completed, i.e., the group must be created. If, despite the efforts made to form it, this has not happened, the organizer may still be charged, but for attempted formation. In this case, when determining the severity of the punishment, the court will have to take into account the stage reached by the attempt, as well as the reason why it was not completed. If the evidence in the case shows that the organizer voluntarily abandoned the formation of the group, he will not be punished.
In second place, the law provides for criminal liability also for persons who lead already a10> formed organized criminal group. “Leading” represents activity in heading, directing the actions of the members of the group. It most – often is expressed in setting tasks and giving instructions on their implementation.
Interesting! In practice, the prosecution often takes the approach of bringing charges simultaneously for forming and leading an organized criminal group, assuming that the person who formed it subsequently led it. This approach is considered incorrect, as criminal charges cannot be based on assumptions. Case law accepts that it is permissible to bring charges for both offences simultaneously, but only if the evidence gathered indicates that the person who formed the criminal group also led it.
The two acts of forming or leading an organized criminal group are provided for in the same legal provision. Therefore, the punishment for committing them is the same – imprisonment for a term of three to ten years.
Thus, the penalties provided for indicate that it is not possible for the organizer or leader to be exempted from criminal liability by imposing an administrative penalty. Nor is it possible, if they are found guilty, for the penalty of imprisonment to be replaced by probation.
However, if multiple or exceptional mitigating circumstances are found, the court may impose a sentence of less than three years’ imprisonment. In practice, these circumstances are established and proven by the defense attorney.
Also, if the person has a clean criminal record, a suspended sentence may be imposed. This is possible if the court decides that the organizer or manager does not need to serve an effective prison sentence in order to be rehabilitated and re-educated to obey the law.
Participation in an organized criminal group – penalties and protection
Unlike forming and leading an organized crime group, simple participation in one is punishable by a lighter sentence. The punishment provided for by law is imprisonment for a term of one to six years.
“Participation” refers to the performance of part of an activity that is assigned for joint performance by some or all members of the group or that aims to achieve a single result.
Example from practice
An organized criminal group formed for the purpose of distributing narcotic substances, consisting of 10 people. Three of the individuals were assigned the task of being “street dealers.” Three others were tasked with collecting debts from delinquent “customers” and tracking down and eliminating competition. Two were assigned to supply the drugs by contacting suppliers and physically delivering the “merchandise.” These are the participants in the group. The money earned is reported to two individuals, who also determine which of the remaining eight individuals should perform which tasks. These are the leaders.
The penalty provided for in the law shows that if the defendant is found guilty, it is not possible to be released from criminal liability with the imposition of an administrative penalty. Also thus it is not possible, when pronouncing a conviction sentence, the imposed punishment deprivation of liberty to be replaced with probation.
By analogy with the formation and leadership of an organized criminal group, upon conviction for participation in such a group, a prison sentence below the minimum provided for by law may be imposed if numerous or exceptional mitigating circumstances are established. Here too, in practice, this determination is made by the defense attorney, if he or she is sufficiently experienced and qualified.
If, when handing down a guilty verdict, the court imposes a sentence no heavier than imprisonment for up to three years, and the defendant has no previous convictions, it is possible for the execution of this sentence to be suspended, i.e. a suspended sentence may be imposed.
Privileges and more severely punishable offenses
As with almost any crime, the formation, leadership, and participation in an organized criminal group are subject to scenarios in which these acts represent a lower degree of public danger, and certain privileges are provided accordingly. At the same time, there are also cases in which these acts pose a higher degree of public danger, which is reflected in the higher penalties provided for.
According to – serious punishable offenses
The law provides for a more severe punishment in cases where the organized criminal group is armed or created for profit, as well as when a public official participates in it. The same provision also provides for more severe penalties when the group is formed for the purpose of committing one or more of the following crimes: kidnapping, unlawful deprivation of liberty, hostage-taking with conditions, counterfeiting money and putting it into circulation, money laundering, illegal smuggling of people across borders, illegal production, import, and export of weapons and acquisition thereof, production, distribution, and incitement to use drugs.
It contains within itself two subcomponents.
The first subparagraph provides for imprisonment of between five and fifteen years in cases where the person forms or leads an organized criminal group that meets the above criteria.
The second subparagraph provides for punishment deprivation of liberty for three to ten years for participants in such a group.
A selfish motive is present when the group is focused on achieving material gain for its members from committing crimes.
An “official” is defined as a person who is entrusted with performing, for remuneration or without remuneration, a service in a state institution or a managerial position, or other work related to the safekeeping or management of property that is not his or her own.
Privileges
In addition to more severe penalties, the law also provides for certain privileges, the purpose of which is to encourage members of organized criminal groups to cooperate with the competent state authorities in exposing such groups and bringing their members to justice.
The first privilege is granted to a member of the group who voluntarily surrenders to the police or the prosecutor’s office and reveals everything he knows about the group. If he fulfills these conditions, he will not be punished. However, in order for this option to be activated, they or the group must not have committed a crime yet.
The second privilege is provided for cases in which crimes have already been committed by the group. In this situation, the participant may surrender and disclose everything they know about the group, thereby facilitating the investigation and prosecution of these crimes. This behavior will be interpreted as an extremely mitigating circumstance, which may result in a sentence below the minimum prescribed.
These are the privileges granted to so-called informants.
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More information on the protection of the rights of accused and convicted persons for crimes committed, as well as on the protection of the interests of victims of such crimes, can be found in the section “Criminal Law”.
Silvia Petkova Sole Proprietorship Law Firm has a team of established criminal lawyers who provide qualified legal assistance in connection with charges brought for crimes committed.
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