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Considering the provisions of the Hungarian criminal code, we have to talk about the criminal formations separately, because they are more dangerous for the community, and for this reason the legislator puts more serious sentence into perspective. There is no full agreement in which formations fit into this definition. In our opinion mob violence, commission in mass, criminal conspiracy and criminal organization all belong to the definition, but someone ranks the terroristic group with the others. The crime is committed jointly when at least two persons are engaged in the commission. This is the simplest type of a joint formation. The HPC itself contains the description of the definition of group, which practice has further refined. In this way we talk about a group when at least three persons participate in the commission. Both the perpetrator and the accomplice belong to the group, but not everybody shall be punishable e.g. a punishable perpetrator, an insane, and a juvenile can belong to the group in the same time. In addition, it is not necessary to all perpetrators stand on one side, so if three persons compete a group can be determined. The main point is that the three persons have to stay at the crime scene. A mass means 15-20 people, if the number of the participants cannot be established at first sight. The law also describes the definition of a criminal conspiracy at the end of the general part among the special provisions. At this place we find definitions created by the legislator which accompany the whole special part. So a criminal conspiracy is when two or more persons are engaged in criminal activities under arrangement, or they conspire to do so and attempt to commit a criminal act at least once, however, it is not considered a criminal organization. To establish this formation of joint

Modes of perpetration and complicity in Hungarian and Croatian criminal law

commission, an advance arrangement is necessary to exist. By the previous expressions this was not a stipulation, they came about ad hoc. According to the Supreme Court, the agreement between the perpetrators cannot only be explicit, but implicit, too. This statement is fulfilled when the perpetrator’s conduct is consistent and planned, and a united will exists between them, but of course we have to examine the degree of the organization and the preliminary agreement in the commission. It is not essential that everybody appears in preparative classification. To establish a criminal conspiracy it is not necessary that all perpetrators possess the condition to become a subject. The difference between a criminal conspiracy and criminal organization is that in an organization more persons collaborate, it presumes a constant structure, control and a share in duties. In case of criminal conspiracy it is enough that the commission of a serious crime remains just an aim, not needed to venture that, until in case of criminal organization that is an essential element. When we would like to distinguish criminal conspiracy from co-perpetrators we find some governing viewpoints: organization, interim agreement, and how many crimes were committed.11 Criminal conspiracy is established when the perpetrators preliminarily agree to commit more crimes and they know they will act in an organized way. Criminal organization occurs when a group of three or more persons collaborate to deliberately engage in an organized fashion in criminal acts, which are punishable with 5 years of imprisonment or more. This is the most dangerous formation of a collective commission, since a coordinated group wants to commit serious crimes. We can find the criminal organization in the general part, but the case stated in the special part means a participation in a criminal organization. It became part of the law with an amendment from 1997. The legislator attaches some detriments in case of a criminal organization: all assets gained during the participation in a criminal organization must be confiscated, suspension of sentence on probation is not possible, imprisonment of three years or longer with participating in criminal organization must be carried out in penitentiary, imprisonment of two years or longer with committing an act in criminal organization also must be carried out in penitentiary, release on probation cannot be applied, the upper value of the sentence doubles when the perpetrator

11

M. Tóth, Bőnszövetség, bőnszervezet [Criminal conspiracy, criminal organization] (Budapest, Complex Kiadó 2009) p. 124.

Igor Bojanić – Piroska Rózsa

commits a willful act in criminal organization that is sentenced with imprisonment of five years or more, ban must enforced. The legislator determines the definition of the terroristic group in the special part, case stated of act of terrorism, so accordingly a terroristic group shall mean a group of three or more persons operating in an organized and harmonized way for a longer term aiming to commit crimes determined in the law.

In the Hungarian criminal law special attention is given to differentiation of perpetrators which is based on the number of committed criminal offenses. Consequently we can talk about recidivism, recidivist, repeat offender, habitual recidivist and a repeat offender with history of violence. The creation of these categories was really essential, in order to punish those perpetrators who can not mend one’s way, either from a special or a general preventive reason. In case of a recidivism we cannot talk about a recidivist, because one of the crime was negligent, or the perpetrator has been sentenced with a non- enforceable imprisonment for a previous crime, or sentenced with enforceable imprisonment, but more than three years have passed since the last term of punishment. A lot depends on judicial discretion that can assess an aggravating circumstance. Recidivist shall mean the perpetrator of a premeditated criminal act, if such person was previously sentenced to imprisonment without probation for a premeditated criminal act, and three years have not yet passed since the last day of serving the term of imprisonment or the last day of the term of limitation until the perpetration of another criminal act. Its consequence is a more serious penal law degree, in many times an aggravating circumstance. The conditions by both occasions are two intentional crimes that have to be committed, a previous sentence with enforceable imprisonment and three years have not yet passed since the last term of punishment, or the cessation of enforceability. Habitual recidivist shall mean any recidivist who commits on both occasions the same crime or a crime similar in nature. The same crime can be established even when that same crime is not realized, but its base, qualified or privileged case occurs what can be once a crime than a misdemeanor, or the stages and criminal formations differ, or as a summarized unit it contains the statutory approach of the last crime. Repeat offender shall mean a person who has been sentenced to imprisonment without probation as a recidivist prior to the perpetration of a premeditated criminal act, and three years have not yet passed since the last day of serving the term of imprisonment or the last

Modes of perpetration and complicity in Hungarian and Croatian criminal law

day of term of limitation until the perpetration of another criminal act punishable by imprisonment. So three willful crimes materialize and between the individual crimes three years have not yet passed. That is why the law lays down the prospect of serious sentences e.g. in case of imprisonment the new crime’s upper degree of sentence expands with half of the original sentence. Repeat offender with a history of violence shall mean a repeat offender convicted for violent crimes against persons on all three occasions. By this point the law determines what crimes qualify as violent acts against persons.

In addition to the mentioned provisions on perpetration and complicity in Croatian criminal law, related to the participation in wider terms, it is worth to emphasize interpretative provisions from the general part of CCC on the group of people and criminal organization, as well as provisions of special part on criminal offense of the agreement to commit a criminal offense and a criminal offense of association for the purpose to commit criminal offenses. A group of people, according to Article 89 paragraph 22 of the CCC, is a group of at least three persons who are connected for the purpose of the regular or occasional perpetration of criminal offenses, whereby each of them exercises his share in perpetration of a criminal offense. When it comes to organized crime it is necessary to point out the legal definition of a criminal organization from Article 89 paragraph 23 of the CCC:

‘[a] criminal organization is a structured association of at least three persons existing in the course of a certain period and acting with the common aim of committing one or more criminal offences for the purpose of direct or indirect financial and other material gain or with an aim to realize and keep supervision over certain economic and other activities, and these criminal offences for which imprisonment for not less than four years or harsher punishment may be imposed. The criminal organization is the basis of the notion of organized crime’.

This provision is significant for the interpretation of a number of provisions from the special part of the criminal code in which criminal offences committed within a criminal organization appear as an aggravating circumstance, or for criminal offenses of association for the purpose of committing criminal offences. Criminal offences where the perpetration of the criminal offence within a group or criminal organization is an aggravating circumstance are numerous: unlawful deprivation of freedom, kidnapping, coercion, threat, trafficking in persons and slavery, illegal transfer of persons across the state border,

Igor Bojanić – Piroska Rózsa

robbery, larceny by coercion, extortion, money laundering, self-help and illegal debt collection. Some authors emphasize that perpetration of an offence within a group or criminal organization should be taken into consideration as aggravating circumstance for some other criminal offences that are typical of organized crime: corruption, taking of hostages, international prostitution, fraud, concealing, counterfeiting of money, securities and value tokens and forgery of documents. With one of the manifestations of the criminal offence of abuse of narcotic drugs instead of perpetration of a criminal offence within a group or criminal organization the legislator has marked as aggravating circumstance the perpetration of an offence by ‘more persons who conspire to commit such offences or the perpetrator of this criminal offence has organized a network of resellers or dealers’ (Article 173 paragraph 3 of the CCC). Such a formulation of aggravating circumstance has been criticized since the definition of ‘more people’ given by the law (Article 89 paragraph 20 of the CCC) assumes at least two and more persons. It is, namely, not clear why the perpetration of that offence is not connected to the action of the criminal organization. As for special provisions in reference to participation of more persons in perpetration of criminal offences in the special part of the criminal code it must be emphasized that they neither modify or derogate the provisions of the general part but supplement them, taking into consideration extreme danger of the offences connected with organized crime, terrorism and other serious criminal offences. Agreement to commit a criminal offense, as a criminal offense against public order, commits

‘whoever agrees with another to commit a serious criminal offense for which, according to the law, imprisonment for three years or more severe punishment may be imposed’.

The prescribed punishment is a fine or imprisonment not exceeding three years. This is an autonomous criminal offense of preparation for which a question arises whether the perpetrator is liable for that offense or concurrence with other criminal offenses exists. This agreement to commit a criminal offense in Article 332 of the CCC keeps its autonomy only under the condition that perpetrators do not transfer into the realization of the agreed offense, since in that case the agreement gains non-autonomous or subsidiary nature in comparison to the offense that is in preparation (apparent concurrence). Associating for the purpose to commit criminal offenses is of particular significance when it comes to

Modes of perpetration and complicity in Hungarian and Croatian criminal law

preparatory acts as autonomous criminal offences. Such criminal offence is of dual nature: on the one hand it is a preparatory act sui generis, and on the other hand it is a form of extension of general provisions of the CCC on participation. Associating for the purpose of committing a criminal offence is regulated by Article 333 of the CCC:

‘(1) Whoever organizes a group of people or in some other way connects three or more persons in joint action with an aim to commit a serious criminal offence for which, according to the law, imprisonment for three years or more severe punishment may be imposed shall be punished by imprisonment for six months to five years. (2) Whoever organizes a criminal organization or manages it shall be punished by imprisonment for one to eight years. (3) A member of the group referred to in paragraph 1 of this Article shall be punished by a fine or by imprisonment not exceeding three years. (4) A member of the group referred to in paragraph 2 of this Article shall be punished by imprisonment for six months to five years. (5) If a member of a group or a criminal organization uncovers such a group or criminal organization prior to committing a criminal offense as a member of it or for it, the court may remit his punishment.’

The act of perpetration under Article 333 paragraphs 1 and 2 is the organization of a group or criminal organization (lesser and more serious form of associating for the purpose of committing a criminal offence). By Article 89 paragraph 22 of the CCC, as mentioned before, a group of people is made out of at least three persons connected for the purpose of permanent or temporary perpetration of criminal offenses where each of these persons has his share in the perpetration of an offense. In regard of the formulation of Article 333 the notion of a group under Article 89 paragraph 22 is considered inadequate in its part where it requires that members of the group should take their share in the perpetration of a criminal offence because this leads to the conclusion that the legislator did not have in mind this criminal offence but only situations in which the perpetration of offences within a group appears as an aggravating circumstance. The realization of conditions under Article 89 paragraph 22 is unthinkable prior to the perpetration of an offence. The law, further on, makes the group and persons connected in some other way equal but remained inconsistent in this case because these persons are not mentioned in paragraphs 3 and 4. The notion of a group matches the earlier traditional notion of a ‘gang’ which understood as continuous and higher level of organized association of more persons (at least three) for the purpose of common perpetration of criminal offenses that are not defined in details in advance. Between the

Igor Bojanić – Piroska Rózsa

notion of the group and legal figure of co-perpetrators there exists a difference in content because co-perpetrators do not require the element of continuity (permanent or temporary perpetration of criminal offenses). The highest level or form of criminal association according to the CCC is criminal organization as defined in the above mentioned Article 89 paragraph 23. The members of the group or criminal organization were required to accept the goals and organizational elements of associating so that for their liability animus sociandi is required, i.e. the consciousness of and acceptance of group aims. The structure of a criminal organization is usually marked by the fact that members have lower or the lowest status. A key (dominant) figure is the organizer who directs the entire activity of the association and who in the hierarchy is the supreme cohesive power in internal relationships. The important issue in practice is if concurrence of associating for the purpose of committing criminal offenses and criminal offenses deriving from such associating is possible. This criminal offense is not of subsidiary significance. That means that perpetration of criminal offenses within a group or criminal organization does not exclude punishability of the organizer and members for the mere association and membership. Inter alia, this is a standpoint of the Supreme Court of the Republic of Croatia. More complex is the problem in cases when circumstances that adequate criminal offenses committed within a group or criminal organization represent the aggravated form of criminal offense or the description of aggravating circumstances applies adequate synonymous formulation. In principle such aggravated forms exclude concurrence of criminal offenses of associating with criminal offense committed within a group or criminal organization because this could mean that perpetrator is punished twice for associating. But some of the aggravated forms of criminal offenses in certain circumstances could, however, be in concurrence with criminal offenses of associating, depending on the prescribed penal scope. First of all this refers to more serious form of associating under Article 333 paragraph 2 of the CCC for which relatively severe punishment is prescribed so that concurrence of that form of associating with criminal offenses where perpetration as criminal organization is an aggravating circumstance is possible if lesser punishment is prescribed for these offenses. It is necessary in every single case to compare the penal frame prescribed for the aggravating form of criminal offense with the one that the court disposes with in the case of concurrence of criminal offense of associating for the purpose of

Modes of perpetration and complicity in Hungarian and Croatian criminal law

committing a criminal offense and basic form of criminal offense committed in a group or criminal organization. If for such concurrence a higher penal frame is reached than for the aggravated form it would be unjustifiable to punish only the aggravated form which in that case could mean that the aggravated form is advantageous for the perpetrator, which certainly is not ratio legis. In this case it would be right to take concurrence of the aggravating form of criminal offence committed in a group or criminal organization and the criminal offense of associating for the purpose to commit criminal offenses. The opposite is advisable if for the described concurrence a lower framework is reached than for the aggravated form because in that case the aggravated circumstance in itself ensures the desired aggravation of penalty. The application of concurrence would be excessive.12 Among possible perpetrators of a criminal offense in Article 333 of the CCC the legislator has not included individuals who are not members of a group or criminal organization though they support (occasionally or continuously) its activity by multipurpose logistic support. Their activities can be legally marked as aiding and abetting within the very association organization. The possibility for the punishment to be remitted is connected with a legal figure of so called active repentance. The valid solution in Article 333 paragraph 5 of the CCC is considered insufficient since the stimulative measure in form of obligatory remission is connected only with the conduct of the group members or members of the criminal