Max Planck Institute for Foreign and International Criminal Law

The system of criminal law, as we know it today, was traditionally designed to react to a crime committed by an individual. However, everyday reality has shown that, today, crimes are committed by criminal collectives, too. The varying organisational structures of these collectives as well as the strategies they deploy in order to be as protected and at the same time as efficient as possible pose some serious challenges for the traditional criminal law. The challenges can be seen, for example, in the fact that the individuals who actually perpetrate a crime might not be those primarily responsible for it or in the fact that group criminality is characterised by the division of labour, which means that some individuals may contribute to the commission of an offence by lending logistical support or by performing some other activities that are beyond the scope of provisions on complicity or individual criminal liability. At the same time, there is a general, although debatable, assumption that a crime committed by a criminal collective is more dangerous to society than a crime committed by an individual offender so the reaction to this sort of crime should take place even in the early stages of preparation. The traditional criminal law provisions on punishable preparations do not, however, seem to provide for such early reaction.

For the purpose of fighting such collectives, countries have tried to adjust their criminal legislation by modifying existing and/or by developing new instruments to address the problem. Object of the research in this dissertation are two different traditional national criminal law models designed for that purpose, namely, participation in a criminal organisation (Germany) and conspiracy (England and Wales). As it is argued that the conceptual differences between these two traditional models are significant, the two models are combined in both European (EU) and international (UN) legal instruments. As a result, the so-called international models of participation in a criminal organisation and conspiracy have developed. The main idea behind this development was the subsequent transfer of the elements of these international models into the legislation of transitional countries that had not developed such instruments themselves (Bosnia and Herzegovina, Serbia, or Croatia). Thereby, so it was thought, the fight against criminal collectives would be facilitated not only nationally but in the international arena as well.

The aims of the research are, first, to analyse two traditional, two international, and three transitional models of participation in a criminal organisation and conspiracy in order to describe the constitutive elements thereof; second, to evaluate the transfer of the constitutive elements of the models from the traditional to the international models and from the international to the transitional models; and third, to compare two traditional models of participation in a criminal organisation and conspiracy based on the constitutive elements and to explain their similarities and differences.

The main method to be applied is that of normative analysis by means of which criminal legislation of Germany, England and Wales, UN, EU, Bosnia and Herzegovina, Croatia, and Serbia will be analysed. In order to achieve a better understanding of both the evolution of the models as well as of the effect of the transfer of elements on the traditional-international-transitional models relationship, the historical method will be applied. The method of comparative legal analysis will be applied for the purpose of comparing similarities and differences between legal solutions found in the traditional, international, and transitional models. In the end, in order to test the results of the abstract legal comparison between the traditional models based on their constitutive elements, a hypothetical case will be developed and the practical legal analysis thereof performed through the prism of the constitutive elements of the models.