Criminal liability for participation in an organized criminal group

Organized criminal group in the Polish Penal Code

The prevailing view in Polish court jurisprudence is that an organized criminal group is formed by at least three people who share a common goal of committing crimes. An organized crime group is characterized by having a basic internal organizational structure, even if it has a low degree of organization. The aim of such a group may be to commit only one crime.

The features that distinguish an organized criminal group, for example from simple complicity in committing a crime, include:

• durability of the criminal group and its internal structure,
• the existence of organizational relationships between group members under a common understanding,
• crime planning,
• agreeing on the goals of the criminal group,
• durability of meeting the needs of the criminal group,
• division of roles and coordinated actions of members of a criminal group,
• sociological and psychological connections between group members.

Forms of participation in an organized criminal group

Polish law provides for the following forms of participation in an organized criminal group:

1. establishing a criminal group,
2. managing a criminal group,
3. participation in a criminal group.

Establishing an organized criminal group means creating and organizing this group, including activities such as: acquiring new group members, establishing group structures, defining the method of operation, selecting leaders. An organized criminal group may be established by one or more people acting together or as a result of the division of roles.

Managing an organized criminal group involves actually exercising control over the group’s activities, issuing important decisions and orders to group members. Group leadership may be permanent or temporary, individual or collective.

In turn, the lightest form of participation in an organized criminal group is taking part in this group, which should be understood as group membership. In order to attribute membership to a criminal group to a given person, it must at least be stated that the person joined the group being aware of its purpose and forms of operation, and was willing to submit to the group’s rigors, discipline and rules and to participate in its activities. Membership in a group also occurs when a person does not perform any function in the group or does not perform any important tasks, but excercises auxiliary activities.

Premise of the intentional participation in an organized criminal group

The crime of participation in an organized criminal group requires proof that the perpetrator of the crime committed it intentionally.

The Polish Penal Code does not allow for the above-mentioned crime to be committed unintentionally.

Moreover, the crime of establishing or managing an organized criminal group may be committed only with direct intent, while in order to assume ordinary participation in a criminal group, it is sufficient to establish the existence of a possible intent.

Sentence of punishment

The Polish Penal Code provides for the following penalties for the crime of participation in an organized criminal group:

• participation in an organized criminal group – imprisonment from 6 months to 8 years,
• if the criminal group is armed or aims to commit a terrorist offense – imprisonment from one to 10 years,
• establishing or managing a criminal group – imprisonment for a term of 2 to 15 years,
• establishing or managing a criminal group of a terrorist nature – imprisonment from 3 to 20 years.

A conviction for participation in an organized criminal group also has certain additional, negative legal consequences related to the penalty, in particular the following shall be noted:

1. the impossibility of converting a prison sentence into a penalty of restriction of liberty or a fine,
2. the possibility of applying more stringent, specific regulations regarding the sentence of punishment, penal measures and probation measures, including, for example, the possibility of imposing an increased penalty, on principles analogous for a multi-recidivist.

Consequences in the execution of punishment

Persons convicted of participating in an organized criminal group must also face specific, negative regulations regarding the execution of imprisonment:

1. a person convicted of a crime committed in an organized group is, as a rule, imprisoned in a closed prison,
2. the possibility of conditionally suspending the execution of a prison sentence is generally excluded
3. the possibility of applying for conditional early release occurs only after serving 3/4 of the sentence, and the probation period for conditional release cannot be shorter than 3 years,
4. inability to serve a prison sentence under electronic monitoring.

Criminal liability for participation in an organized criminal group applies both to criminals who established or managed this group, as well as to ordinary members of the group, even if they did not perform any important function and only performed auxiliary activities – to be convicted of this crime, the fact of intentional and conscious membership in the criminal group related to the acceptance of its goals and consent to participate in its activities, is sufficient. Persons convicted of participating in an organized criminal group shall take into account additional consequences in terms of punishment and the method of its execution, which are more stringent. Particularly severe consequence of a conviction is, in principle, the inability to serve a prison sentence under electronic monitoring.