Supreme Court – The definition of a criminal organization

The Supreme Court has further refined the concept of a criminal organization in one of our Firm’s cases.

On the 14^th of April 2021, the Supreme Court, in its order declining a review motion, gave guidance - although not comprehensive - on the interpretation of the new definition of a criminal organization. According to our reasoning, the court of appeal made a mistake when they determined that the acts of the III. defendant met the new definition of a criminal organization.

The Supreme Court repeatedly ruled that the ascertainment of a criminal organization, is only a ground for review on the basis of Cp. 649.§ (1) subsection ba) point (due to the unlawful classification of the crime and the violation of the Criminal Code’s regulations), if the court imposed a punishment which is possible only in the case of a criminal organization – meaning that the crime’s maximum sentence doubles – i.e. the time of the sentence wasn’t determined within the standard, undoubled limit.

Although with this the Supreme Court could have settled the issue of the criminal organization, in its order Bfv.I.752/2020/17., it has used more resources than usual in the justification and dealt with the new concept of a criminal organization in detail.

In the reasoning of our review motion, we pointed out that, according to the Supreme Court’s conference of presiding judges, the conspiratorial operation of the group essentially corresponds to the previous concept of coordinated operation. However, this interpretation is inconsistent with the ministerial motivations, since the legislator explicitly states that the conspiratorial operation means a qualitative plus and the concept was introduced because the practicing lawyers’ interpretation of the coordinated operation was oversimplified. The interpretation may violate the Constitution’s 28^th article and XXVIII. article’s (1) subsection and it could result in constitutional appeals under AB decision 23/2018. (XII.28.).

The Supreme Court has recognized the danger of this. It made it clear that they expressed their standpoint in the light of AB decision 23/2018. (XII.28.). In the case of conspiratorial operation, it pointed out that it could not only be carried out through secret calls and cryptic messages, but through the circumstances of the specific crime. In this instance, conspiratorial operation was carried out in the sense that the people involved in the crime did not know each other’s specific roles and the fake importing companies and their locations were constantly changed. The aim of this was in fact (intended) to conceal from the outside observer – and from the market players – the companies actually involved in the economic activity and their coordinated operations, as well as to prevent those involved in the crime – other than the leader – from knowing the other participants and their specific tasks. These criteria go beyond the organization and create ground for the establishment of a conspiracy. (141)

The Supreme Court agreed with our suggestion that the court can’t claim the right to continue an expanded practice in relation to the legislator’s objective intent and in the 143. section of the order it stated that “the applier of the law can’t carry on a practice based on an interpretation of the law, that would otherwise undermine the legislator’s intent and aim”.