Bond University
Faculty of Law
MASTER THESIS
ORGANISED CRIME IN THE 21ST CENTURY: ARE THE STATES EQUIPPED TO FACE THE GLOBAL CRIME THREAT?
Frederic Libert Supervisor: Prof. John Farrar Student ID: 13041746
August 2010 - Semester 102 1
ACKNOWLEDGEMENTS
I would like to express my truthful gratitude to my supervisor, Professor John Farrar, whose guidance and support from the preliminary to the concluding level enabled me to develop an understanding of the subject.
I wish to express my warm and sincere thanks to Nadine Mukeba Ntumba for her continued encouragement.
I am indebted to my parents, Claude Nepper and Eric Libert, for their unconditional support.
I owe many thanks to my friends Marco le Carolo and Jean-Claude. 2
TABLE OF CONTENTS
AKNOWLEDGEMENTS ...... 1
TABLE OF CONTENTS ...... 2
INTRODUCTION ...... 9
1. THE CONCEPT OF ORGANISED CRIME ...... 11
1.1. Understand the Threat Posed by OC ...... 11
1.2. Historical Perspectives on the Concept of Organised Crime ...... 13 Preliminary Statement ...... 13 1.2.1. US ...... 13 1.2.1.1. The Original Concept of Organised Crime ...... 13 1.2.1.2. Current Situation ...... 14 1.2.2. Europe ...... 16 1.2.2.1. Past Situation: Events that Led to the Increasing of Organised Crime in Europe ...... 16 1.2.2.1.1. Single European Act (1986) ...... 16 1.2.2.1.2. Collapse of Communism in 1989 ...... 16 1.2.2.1.3. Inefficiency of the Police Forces of the Commonwealth of Independent States (CIS) Countries and Russia ...... 17 1.2.2.2. Current Situation ...... 17
1.3. Debate about the Relation that Exists between Organised Crime and White Collar Crime ...... 19 1.3.1. Organised Crime Encompasses White Collar Crime ...... 19 1.3.2. Organised Crime is Distinguished from White Collar Crime ...... 19
1.4. Absence of a Widely Accepted Definition of the Notion of Organised Crime ...... 21
1.5. Definitions: Common Characteristics ...... 23 3
2. ORGANISED CRIME GROUPS: A WORLDWIDE OVERVIEW ...... 24
2.1. Italian Organised Crime Groups ...... 24 2.1.1. The Calabrian Mafia (‘Ndrangheta) ...... 24 2.1.2. Sicilian Mafia ...... 26 2.1.3. La Cosa Nostra ...... 27 2.1.4. Camorra ...... 27 2.1.5. Sacra Corona Unita ...... 28
2.2. Asian Organised Crime Groups ...... 30 2.2.1. Chinese Organised Crime Groups ...... 30 2.2.1.1. Overview of the Structure ...... 30 2.2.1.2. Triads ...... 31 2.2.2. Japanese Organised Crime Groups ...... 32 2.2.2.1. Yakuza ...... 32
2.3. Outlaw Motorcycle Gangs ...... 34 2.3.1. US Situation ...... 34 2.3.1.1. Overview ...... 34 2.3.1.2. Structure ...... 36 2.3.1.2.1. In the US Local-Level ...... 36 2.3.1.2.2. Regional-Level ...... 36 2.3.1.2.3. National Level ...... 36 2.3.1.3. The Hells Angels ...... 37 2.3.1.4. Bandidos ...... 37 2.3.2. Australian OMGs Situation ...... 38 2.3.2.1. Overview ...... 38
2.4. Latino Organised Crime Groups ...... 39 2.4.1. Colombian Cartels ...... 39 2.4.2. Mexican Cartels ...... 40 2.4.3. Mara Salvatrucha (MS-13) ...... 43
2.5. Russian Organised Crime Groups ...... 45 2.5.1. The Russian Mafiya...... 45
2.6. West African Organised Crime Groups ...... 47 4
3. LEGISLATIVE RESPONSES TO ORGANISED CRIME ...... 49
Preliminary Statement ...... 49
3.1. United Nations Level ...... 49 3.1.1. UN Priority ...... 49 3.1.2. United Nations Convention against Transnational Organized Crime (UNTOC) ...... 50 3.1.2.1. The Role of the UN ...... 50 3.1.2.2. The Adoption of the UNTOC Convention and its Three Supplementary Protocols ...... 50 3.1.2.3. Analysis of the Organised Crime Notion and the Definition of ‘organized criminal groups’ ...... 51 3.1.2.4. Scope: Analysis ...... 53 3.1.2.5. Implementation: Analysis ...... 55 3.1.2.6. Possible Future Instruments ...... 56
3.2. US Level ...... 57 3.2.1. Omnibus Crime Control and Safe Streets Act of 1968 ...... 57 3.2.1.1. Overview ...... 57 3.2.1.2. Analysis of the Definition of ‘Organized Crime’ ...... 57 3.2.2. Organized Crime Control Act of 1970 (OCCA) with a Particular Attention to the Racketeer Influenced and Corrupt Organizations Act (RICO) ...... 58 3.2.2.1. Analysis ...... 58 3.2.2.2. Effectiveness of the RICO Act ...... 59 3.2.2.3. Analysis of the Notion of Organised Crime ...... 60 3.2.3. Post RICO Situation ...... 61
3.3. European Level ...... 62 3.3.1. Joint Action 98/733/JHA of 21 December 1998 on Making it a Criminal Offence to Participate in a Criminal Organisation in the Member States of the European Union ...... 62 3.3.1.1. Analysis of the Definition of Criminal Organisation...... 62 3.3.2. Council Framework Decision 2008/841/JHA of 24 October 2008 on the Fight against Organised Crime ...... 63 3.3.2.1. Improve the Instruments Used to Combat Organised Crime ...... 63 3.3.2.2. Analysis of the New Definition of Criminal Organisation ...... 65
3.4. Australian Level ...... 66 Preliminary Statement ...... 66 3.4.1. Overview ...... 66 3.4.2. Categories of Legislation ...... 67 3.4.3. Commonwealth Level ...... 67 5
3.4.3.1. Debate on the Introduction of New Legislation Combating Organised Crime ...... 67 3.4.3.2. Proceed of Crime Laws ...... 72 3.4.4. States level ...... 72 3.4.4.1. South Australia ...... 72 3.4.4.2. New South Wales ...... 74 3.4.4.3. Queensland ...... 75 3.4.4.4. Victoria ...... 76 3.4.4.5. Western Australia ...... 77 3.4.4.6. Tasmania ...... 77 3.4.4.7. Australian Capital Territory ...... 78 3.4.4.8. Northern Territory ...... 78 3.4.4.9. Reactions to ‘Anti-Bikie Laws’ ...... 79 3.4.4.9.1. Totani’s Case ...... 79 3.4.4.9.2. Campaign against ‘Anti-Bikie Laws’ ...... 80
4. ANALYSIS OF THE TRENDS AND FUTURE PERSPECTIVES IN ORGANISED CRIME ...... 81
4.1. Globalisation’s Influence on Organised Crime ...... 81
4.2. Nature of the Groups Involved in Organised Crime: Moving towards Loose Networks rather than Pyramidal Monoliths ...... 83
4.3. Prevalence of the Illicit Market ...... 86
4.4. UN Latest Lines of Enquiry in the Fight against Organised Crime ...... 88
4.5. Relation between Organised Crime and Terrorism ...... 91
4.6. Problems Encountered by Police Forces when Criminal Activity Crosses National Boundaries ...... 94 4.6.1. Obstacles to Cooperation ...... 94 4.6.1.1. Police Corruption ...... 94 4.6.1.2. Geographical ...... 94 4.6.1.3. Police Structure and Styles ...... 94 4.6.1.4. Police Forces in Transition ...... 95 4.6.1.5. Intelligence Sharing ...... 95 4.6.1.6. Language ...... 95
4.7. Cyber Crime ...... 96 6
4.8. Money Laundering ...... 98 4.8.1. Presentation of the Concept ...... 98 4.8.2. Ways to Launder Money ...... 99 4.8.2.1. Bars and Clubs ...... 99 4.8.2.2. Cash Businesses ...... 99 4.8.2.3. Large Businesses ...... 99 4.8.2.4. Shell Companies ...... 99 4.8.2.5. Offshore Systems ...... 100 4.8.3. The Global Financial Crisis: A Once-in-Generation-Opportunity ...... 101
CONCLUSION ...... 102
APPENDIXES ...... 104
Appendix 1: Global Transnational Organised Crime Threats ...... 105
Appendix 2: List of Definitions ...... 106
Appendix 3: The Structure of Organised Crime Groups ...... 107 1. Mafia ...... 107 2. Chinese Triads ...... 110 3. Japanese Yakuza ...... 112 4. Outlaw Motorcycle Gangs ...... 114
Appendix 4: Italian Organised Crime Groups – Geographical Origins ...... 119
Appendix 5: Australia’s most Active Bikers Gangs ...... 120 1. Rebels ...... 120 2. Hells Angels ...... 120 3. Bandidos ...... 121 4. Finks...... 122 5. Comancheros ...... 122
Appendix 6: Cocaine Flows ...... 124 1. From the Andean Region to North America ...... 124 2. From the Andean Region to Europe ...... 126
Appendix 7: Results against Drug Traffic in Colombia ...... 128
Appendix 8: Mexican Cartels ...... 129 7
1. Cartel Territories and Drug Routes ...... 129 2. Rise and Fall of Mexican Cartels ...... 130
Appendix 9: MS 13 Activity Zone ...... 131
Appendix 10: Organised Crime in West Africa ...... 132 1. West African Region ...... 132 2. Cocaine ...... 133 3. Oil ...... 134 4. Cigarettes ...... 135 5. Counterfeit ...... 136 6. Sexual Exploitation ...... 137 7. Arms and Ammunition ...... 138 8. Toxic Waste ...... 139
Appendix 11: Offences Established by the UNTOC Convention and Protocols ...... 140
Appendix 12: List of the Tools Developed by the EU to Fight Organised Crime ...... 141
Appendix 13: Organised Crime in Australia ...... 143
Appendix 14: Commonwealth Agencies for Combating Serious and Organised Crime and their Relevant Legislative Tools ...... 144
Appendix 15: Current Legislative Provisions on Outlaw Motorcycle Gangs in Australia ...... 146
Appendix 16: Globalisation Figures ...... 148 1. Growth in International Trade (1948-2008) ...... 148 2. Number of Twenty-Foot Container Equivalent Units (TEU) Moved through Shanghai Port (2002-2007) . 149 3. Millions of Mobile Phones Subscribers (1997-2007) ...... 150 4. Millions of Internet Users (1997-2007) ...... 151
Appendix 17: Identity Theft...... 152
Appendix 18: Nigerian Antifraud Scam - Examples of Scams ...... 153
Appendix 19: The Money Laundering Cycle ...... 155
BIBLIOGRAPHY ...... 156
1. Articles/Books/Reports/Speeches ...... 156 8
2. Case Law ...... 165
3. Legislation ...... 166
4. Treaties ...... 168 9
INTRODUCTION
Since time immemorial, organised crime has represented a threat for the society. Back in Ancient Rome,1 Publius Clodius Pulcher was taking advantage of high connections in the Senate to control gangs of armed slaves to terrorise the city.2 Approximately fifteen centuries later, the Spanish poet Miguel De Cervantes, made a reference to a criminal organisation called Guarduna.3 This confraternity, founded in 1417 in Sevilla, appears to be the first documented criminal organisation. Its specialisation was the organisation of homicide on commission and the collection of bribes on any sort of economic activity.
For centuries the focus was mainly on conventional crime, that is to say offences against individuals and assets, in the forms of murder, theft and fraud.4 In the last decades, the nature of crime has been subjected to a major change; it has become organised and transnational.5 Consequently, as recently stressed by US President Obama, ‘states are facing a global security threat that ‘can undermine stability and security, fuel violence and corruption, weaken the rule of law, and subvert legitimate economies’.6
The purpose of this study is to examine some international perspectives on organised crime.
The first chapter will introduce the concept of organised crime. First, some elements aiming to provide a better understanding of the threat posed by organised crime will be mentioned. Then, the concept of organised crime will be considered from an historical perspective. Then, a quick overview of the debate about the relation that exists between organised crime and white-collar crime will be presented. Finally, the absence of a widely accepted definition of the notion of organised crime will be considered and the characteristics shared by various
1 59 BC. 2 He was also prosecuted by Cicero but won an acquittal almost certainly by heavy corruption. 3 In the tale entitled Riconete Y Cortadillo. 4 A.M. Costa (Director General, United Nations Office of Drugs and Crime), ‘The Global Crime Threat – We Must Stop it’ (Speech delivered at the 18th Session of the Commission on Crime Prevention and Criminal Justice, Vienna, 16 April 2009). 5 See Appendix 1. 6 US President Barack Obama, (Speech at the Opening of the Trans-Pacific Symposium, Honolulu, Hawaii, 9 November 2009). 10 definitions of organised crime will enumerated.
The second chapter will focus on a worldwide overview of organised crime groups. Italians, Americans, Asians, Colombians, Mexicans, Salvadorian, Russians and Africans groups, as well as outlaw motorcycle gangs will be reviewed. Whereas the third chapter will highlight a number of legislative responses to organised crime through the analysis of the legal tools developed by the United Nations, the United States, Europe and Australia.
The last chapter will consider trends and future perspectives in organised crime. First, the influence of globalisation on organised crime will be assessed. Subsequently, a major shift in the nature of the groups involved in organised crime will be mentioned. Next, the importance of addressing the dynamics of the market in order to efficiently fight organised crime will be emphasised. Then, various strategies to combat organised crime will be provided. Afterwards, the relation that exists between organised crime and terrorism will be clarified. Then, a number of problems encountered by police forces when criminal activities straddle across national borders will be stated. Finally, the issues of cyber crime and money laundering will be examined.
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1. THE CONCEPT OF ORGANISED CRIME
1.1. Understand the Threat Posed by OC
In November 2009 US President Obama emphasised the challenge posed by OC in these terms: In recent years, the world has seen a convergence of transnational threats and networks, which are more dangerous and destabilizing than ever. These threats and networks are becoming more fluid and sophisticated; are able to cross borders; and involve elements of international organized crime, particularly illicit finance and trafficking in drugs, arms and persons. This can undermine stability and security, fuel violence and corruption, weaken the rule of law, and subvert legitimate economies. Addressing these 21st century transnational threats is an important priority of the United States.7
In April 2009, Antonio Maria Costa, Director General of the United Nation Office on Drugs and Crime8, summarized his worries concerning the global crime threat as follows:
in the firmament of our society the stars are now lined up in an adverse constellation that causes anxiety, even fear… globally, I believe we face a crime threat unprecedented in breadth and depth. The warning signs are everywhere:
Drug cartels are spreading violence in Central America, Mexico and the Caribbean. The whole of West Africa is under attack from narco-traffickers, they are buying economic assets as well as a political power; Collusion between insurgents and criminal groups threatens the stability of West Asia, the Andes and parts of Africa, fuelling the trade in smuggled weapons, the plunder of natural resources and piracy; kidnapping is rife from the Sahel to the Andes, while modern slavery (human trafficking) has spread throughout the world; in so many urban centres, in rich as much as in poor countries, authorities have lost control of the inner cities, to organized gangs and thugs; the web has been turned into a weapon of mass destruction, enabling cyber•crime, while
terrorism • including cyber-terrorism • threatens vital infrastructure and state security.
7 Ibid. 8 UNODC. 12
The threat created by organised crime is frequently misunderstood. There is a propensity to oversimplify and associate the damage caused by organised crime with the amount of violence linked with the market. Dreadfully though, as this loss of life may appear to be, the menace posed is much profound than a body count.
Many forms of organised crime do imply violence or the threat of violence.10 Professional criminals may aim to minimize the degree of violence to guarantee the smooth stream of profits and to keep away from unwanted attention, but only a small number would be able to run their business without recourse to a firearm. Relying on homicide statistics as a proxy for the threat would be a huge mistake, nevertheless, because some of the sectors most troubled by organised crime have extremely low violence level, just as some authoritarian societies have very low crime rates. Typically, the better organized the crime, the less violence associated with it.11
Crime groups occasionally offer support and social services that the state does not, captivating them popular support. If law enforcement is ever stirred into action, the violence linked with this disturbance of the criminal stability can even fuel calls for enforcement to stop. Thus, the authentic threat of organised crime cannot be reduced to the violence related with criminal markets. Rather, it is best expressed under two titles: direct impacts, that are basically the reasons each criminal activity was proscribed in the first place; and indirect impacts, especially the manners organised crime as a category legitimate commercial activity and undermines the state.12
9 A.M. Costa, above n 4. 10 For example, to subjugate human trafficking victims, violence or the credible threat of violence is almost always present. In other markets, violence is needed to ensure contract compliance and to resolve disputes. The groups concerned have paid off the appropriate officials, resolved intra- and inter-group tensions, and terrified the public to the extent that very little additional violence is required. 11 The groups concerned have paid off the appropriate officials, resolved intra- and inter-group tensions, and terrified the public to the extent that very little additional violence is required. 12 For a comprehensive analysis of the direct and indirect impacts see, UNODC, The Globalisation of Crime: Transnational Organized Crime threat Assessment, (2010) 35
1.2. Historical Perspectives on the Concept of Organised Crime
Preliminary Statement
Organised crime is made of a myriad of mostly clandestine, complex and diverse aspects of the social universe that do not fall into place to form a simply identifiable entity. Rather in order for us to perceive these phenomena as interrelated, it takes a cognitive and linguistic construct.13
Consequently, it seems appropriate to analyse a question like organised crime not exclusively as an empirical issue. Investigating the notion of organised crime, particularly in its historical dimension, offers an insight into the inconsistencies and contradictions as well as the breadth and the depth of the significance attached to the term ‘organised crime’. Furthermore it alerts us to some of the political and social factors that may play a role in determining the perceptions on organised crime.14
1.2.1. US
1.2.1.1. The Original Concept of Organised Crime
Despite doubts about the time and place of its creation, it can be argued that the term ‘organised crime’ is initially an American concept. Interestingly, the original notion of organised crime was quite the contrary of the imagery of worldwide mafias that lead the current understanding of organised crime.
According to Michael Woodiwiss, Senior Lecturer in the School of History at the University of the West of England, the term was first used in 1896, in the annual report of the New York Society for the Prevention of Crime. The phrase was used to refer to prostitution and gambling operations that were protected by public officials. 15In that period, as suggested by
13 K. von Lampe, The Concept of Organized Crime in Historical Perspective (1999) Organized Crime Research
Woodiwiss, ‘organised crime had no fixed meaning and could be understood only in context’. Initially the term was used by American commentators to refer to illicit business deals involving lawyers, politicians, police officers, or professional thieves and to imply that their crimes were organised. Furthermore, ‘Only a few would have associated organised crime almost exclusively with conspiratorial groups among foreign career criminals’. 16
According to Klaus von Lampe, assistant professor in the Department of Law, Police Science and Criminal Justice at John Jay College of Criminal Justice, the term organised crime first came into regular use in the Chicago Crime Commission, a civic organisation created in 1919 by lawyers, bankers and businessmen to encourage changes in the criminal justice system in order to better deal with the crime problem.17 The view of the Commission was that organised crime referred ‘not to criminal organisations but in a much broader sense to the orderly fashion in which the so-called ‘criminal class’ of an estimated 10,000 professional criminals in Chicago allegedly could pursue crime as a business’.18
1.2.1.2. Current Situation
In recent years, the focus on prison gangs and outlaw-motorcycle gangs has decreased while groups of criminals from Europe19 and Asia have received more attention.20 The importance of these groups is now evaluated to be at least of equal importance as Cosa Nostra.21
Nowadays, the notion of organised crime is applied to domestic crime groups as the Cosa Nostra and to what is now known as ‘international organised crime’, that is criminal organisations considered to be operating on an international scale, including the Russian Mafia and the Chinese Triads. Currents debates on whether the Cosa Nostra is losing ground
16 Ibid. 17 K. von Lampe, ‘Not a Process of Enlightenment: The Conceptual History of Organized Crime in Germany and the United States of America’ in United Nations Office for Drug Control and Crime Prevention - Centre for International Crime Prevention, Forum on Crime and Society (2001) 104. 18 H.B. Chamberlin, ‘Crime as a business in Chicago’ (1919) 6 Bulletin of the Chicago Crime Commission 1. 19 Especially criminals from the former Soviet Union. 20 K. von Lampe, above n 13. 21 A series of RICO trials since the mid 1980s leading to the successful prosecution of many Cosa Nostra members has certainly contributed to that result. 15 appear to be a question of international politics rather than a matter of immediate relevance. The American public has lost much of its prior interest in the subject.22
22 K. von Lampe, above n 13. 16
1.2.2. Europe
1.2.2.1. Past Situation: Events that Led to the Increasing of Organised Crime in Europe
1.2.2.1.1. Single European Act (1986) It is only in the last 15 years of the twentieth century that the concept of organised crime became accepted in the European scientific and public debate, prior to this period; it was a highly controversial notion. 23 The reasons for an increased interest in organised crime are varied. One of the most prevalent reasons was the signing and the introduction of the Single European Act in 1986. The adoption of this piece of legislation facilitated the development of organised crime because it virtually removed national borders. Indeed; article A states ‘an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured’.
Thus, the total removal of frontiers across Europe made possible collusion for organised crime. Criminal groups from the East could collaborate with those in the West. Western organised crime groups rapidly moved into the East and Russia to tap into the newly rising markets for luxury consumers goods and drugs, to provide technical support for sophisticated criminal methods as well as protect their position in the lucrative drugs trafficking routes running from Asia through Turkey into Eastern Europe and Russia.24
1.2.2.1.2. Collapse of Communism in 1989 Even though organised crime existed during the Communist years, the end of that regime offered more favourable conditions for organised criminal groups to operate more efficiently. With constraints inherent to the nature of Communism such as high level of state intervention and control in people’s lives through the secret police, organised crime did not have the same opportunity to flourish in the way it had been capable to expand for years, in the Western capitalist states. For example, the Cosa Nostra in America provides a good
23 L. Paoli and C. Fijnaut, Organised Crime in Europe: Concepts, Patterns and Control Policies in the European Union and Beyond (2004) 21. 24 University of Exeter – Politics Department, Why Has Organised Crime Increased?
In Eastern European countries and Russia there was a significant change in the role of the state which now appears to be diminished both socially and economically. Thus, in 1989, when Gorbachev successfully dismantled Communism, both of Eastern European and Russian pre-existing organised criminal network, were quick to take advantage of the new opportunity that the economically and politically weak country provided.25
1.2.2.1.3. Inefficiency of the Police Forces of the Commonwealth of Independent States (CIS) Countries and Russia Countless of the police forces of the new CIS26 countries and Russia have been left to some extent in the wilderness, and are inadequate because of the deficiency in training, resources, and low morale. Due to their former function as agents of the state, 27 their self and public- image is confused and far from the 'service' function that has been promoted by the UK police, for example.28
1.2.2.2. Current Situation
Nowadays, the notion of organised crime has gained almost total academic and political legitimacy in Europe. It has become politically legitimate through the issuing by most European domestic governments and numerous international organisations of ad hoc conventions, laws and plans especially targeting organised crime. Even though there is some resistance coming from northern European countries, organised crime is now achieved the status a legitimate scientific research subject and one that catches a lot of attention among criminologists and other social scientists.29
25 Ibid. 26 Free association of sovereign states formed in 1991, comprising Russia and 11 other republics that were formerly part of the Soviet Union. The Commonwealth's functions are to coordinate its members' policies regarding their economies, foreign relations, defence, immigration policies, environmental protection, and law enforcement. 27 Their role was to enforce ideology. 28 University of Exeter – Politics Department, above n 24. 29 L. Paoli and C. Fijnaut, above n 23. 18
The European Union currently depicts organised crime as an increasing threat to democracy, to the safety of its citizens and to the functioning of economic markets. This phenomenon is presented by the EU as a uniform external aggressor that is making the most of the free movement and mechanisms provided by the Single Market, of technological advances and of globalisation in general.30
European societies are perceived as vulnerable victims and their traditional responses are no longer able to deal with this issue efficiently. Following this analysis, the EU has adopted protection measures based on a common understanding of the phenomenon in order to protect citizens and society against organised crime. Consequently there were has been a strengthening of the judicial and police cooperation, comprehensive programmes and strategies as well as the creation of new working groups and bodies to face this issue.31
National competences have been europeanised for the sake of efficiency. This tendency has been progressively emphasized through the introduction of new legislation and the occurrence of particular events such as terrorist strikes of September 2001, March 2004 and July 2005. The result of this process has been the establishment of a complex structure made of various preventives and repressive instruments. Moreover, increased powers have been gained by law enforcement agencies and the stress has been put on the safety instead on the liberty of European citizens. 32
30 H. Carrapico, ‘Speaking Organised Crime at EU Level…’ (2008) 7 Standing Group Organised Crime Newsletter, 6. 31 Ibid. 32 Ibid. 19
1.3. Debate about the Relation that Exists between Organised Crime and White Collar Crime
1.3.1. Organised Crime Encompasses White Collar Crime
The view of some scholars and government official is that white-collar crime is a type of organised crime. In 1998, the Solicitor General of Canada proposed the following definition of organised crime:
Economically motivated illicit activity of two or more individuals, whether formally or informally organized, where the negative impact of said activity could be considered significant from an economic, social, violence generation, health and safety and/or environmental perspective.33
In several ways, that definition fits the notion of corporate fraud. Other factors not present in this definition include the conspiracy of individuals involved, the on-going nature of the criminal activity, and the potential to use corruption as a means.34
1.3.2. Organised Crime is Distinguished from White Collar Crime
Other definitions differentiate organised crime from white-collar crime by focusing their attention on the non-violent characteristic of the latter. For example:
Non-violent crime for financial gain committed by means of deception by persons whose occupation status is entrepreneurial, professional or semi-professional and utilizing their special occupational skills and opportunities; also, non-violent crime for financial gain utilizing deception and committed by anyone having special technical and professional knowledge of business and government, irrespective of the person’s occupation.35
33 S. Porteous, Organized Crime Impact Study: Highlights (1998) 2. 34 B. Lyndon, Barriers to Corporate Fraud: How They Work, Why They Fail (2004) 41 Policy Archive
White-collar crime is classified as a subset of organised crime, characterised by criminal acts related to the perpetrators’ professional skills and occupations, not by violence. In the perspective of corporate fraud, it usually refers to a pattern of dishonest acts, not a single, isolated transgression.36
36 B. Lyndon, above n 34, 42. 21
1.4. Absence of a Widely Accepted Definition of the Notion of Organised Crime
First of all it is important to notice that some scholars such as Michael Levi, professor of criminology at Cardiff University, and Adam Edwards, senior lecturer in the Centre for Crime, Law and Justice at the same University reject the term ‘organised crime’. According to Edwards this term is a ‘political construct, first and foremost, ... driven by concerns of policymakers rather than by scientific evidence’. The opinion of Levi is that the term should be replaced by ‘to organise crime’ because ‘it pushes you in the direction of thinking ‘what does it take to make a really harmful set of social problems?’ and it focuses you not on some mythical Mister Big or Ms Big, but on how people get together, how they conduct a process from recruitment of personnel to the execution of a crime’. Edwards and Levi consider that research into the phenomenon, and by extension against it, could be best served by centring the attention on the activity not the actors.37
According to Dr Andreas Schloenhardt, an expert in organised and transnational criminal law, Associate Professor at the University of Queensland:
The concept of organised crime remains contested and there is widespread disagreement about what organised crime is and what it is not… Generalisations about organised crime are difficult to make and many attempts have been undertaken to develop comprehensive definitions and explanations that recognise the many facets and manifestations of organised crime.38
Reviewing the literature on the definition of organised crime, one can distinguish two demands to be met by a definition.
37 C. Leviev-Sawyer, ’The Meaning of ‘organised crime’’ (2010) The Sofia Echo
Firstly, there is a demand for a universally shared, or at least largely accepted, definition of organised crime for the purpose of harmonising law enforcement effort and strategic (policy) research. This need is linked to the more practical goals of fighting crime and, accessory to that, strategic analysis.39 As Fijnaut et al. put it:
*…+ the way organised crime is defined, determines to a great extent the view on this phenomenon, but also has far-reaching consequences for the (required) policy fighting this phenomenon.40
Although the latter goal is policy-driven, it is principally achieved through legal tools. Mutual legal assistance and cooperation in the fight against organised crime necessitate both a communally accepted (legal) definition and, in support of that, the political agreement on the range of the assistance.41
Secondly, a demand for an accurate, unequivocal definition exists for the purpose of determining the concept of organised crime, principally for research purposes. The single adjective ‘univocal’ combined both demands. The present situation is such that ‘we are now left with an ambiguous and conflated concept’.42
39 M. van Dijck, ‘Discussing Definitions of Organised Crime: Word Play in Academic and Political Discourse’ (2007) 1 HUMSEC Journal 67. 40 C. Fijnaut, ‘Over de Opzet, de Uitvoering en de Resultaten van het Onderzoek’ in F. Bovenkerk (ed), In De Georganiseerde Criminaliteit in Nederland (1996) 57. 41 M. van Dijck, above n 39. 42 L. Paoli and C. Fijnaut, above n 23, 22.
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1.5. Definitions: Common Characteristics
Due to the Absence of a Widely Accepted Definition of the Notion of Organised Crime there are numerous definitions of the concept.43 Rather than focusing on one particular definition, a number of common characteristics44 shared by a multitude of definition of the notion of organised crime will be identified below.
Violence: the group utilises its force to threaten to use or to use intimidation or violence.45
Enterprise: the central goals of the group are power and profit. These are typically chased through the production and/or exchange of illegal goods and/or services and illegal markets.46
Immunity: the group can corrupt or exercise influence on other subjects (judicial authorities, politicians, media, and enterprises administrators) in order to protect its activities from any type of sanctions.47
Continuity: The group must have a firm structure suitable for the indefinite and continuous commission of crimes, independently of its membership.48
43 See Appendix 2. 44 F. Calderoni, Organized Crime Legislation in the European Union (2010) 42. 45 K. von Lampe et al ‘Organised Crime Is… Findings from a Cross-National Review of Literature’ in P.C. van Duyne, A. Maljevic, M. van Dijck, K. von Lampe, J.L. Newell (ed) The Organisation of Crime for Profit: Conduct, Law and Measurement (2006) 36. 46 F.E. Hagan, ‘‘Organised Crime’ and ‘organised crime’: indeterminate problems of definition’ (2006) 9 Trends in Organized Crime 127. 47 J.O. Finckenauer, ‘Problems of definition: What is organized crime?’ (2005) 8 Trends in Organized Crime 63. 48 Ibid. 24
2. ORGANISED CRIME GROUPS: A WORLDWIDE OVERVIEW
2.1. Italian Organised Crime Groups
The genesis of the Italian organised crime groups is traced to a tale and a veil of secrecy. A popular legend claims that three knights from Spain, Osso, Mastrosso, and Carcagnosso, ran away from their country after having killed a nobleman who raped a female relative. They ran to Sicily, Naples, and Calabria, respectively, founding the Sicilian Mafia, The Camorra, and the ‘Ndrangheta.49
2.1.1. The Calabrian Mafia (‘Ndrangheta) The ‘Ndrangheta was rooted in the culture and remoteness of villages and towns of Calabria.50 In that region, where government involvement or interest was minimal, it was not surprising that some men emerged to control citizens’ activities.51 Some leaders were tyrannical; others were benevolent, but all were violent because they strived to prove their manliness by perpetrating homicides, sometimes in public. Unfortunately they managed to be exonerated from resulting charges and legal consequences.52
Current estimations reveal that there are around 160 ’Ndrangheta53 cells54 with approximately 6,000 members. They specialize in kidnapping and political corruption, but
49 See Appendix 3; A. Nicaso and L. Lamothe, Angels, Mobsters & Narco-Terrorists, The Rising Menace of Global Criminal Empires (2005) 10. 50 See Appendix 4. 51 ‘Ndranghetisti followed rules of behaviour, ceremonies and oaths were conducted to initiate new recruits and councils were held to discuss criminal operations in diverse regions. 52 A. Nicaso and L. Lamothe, above n 49. 53 The word ‘Ndrangheta means courage or loyalty in Greek. The ’Ndrangheta founded its origins in the 1860s when some Sicilians were banished from the island by the Italian government. They settled in Calabria and created small criminal groups. 54 Cells are loosely connected family groups based on blood relationships and marriages. In the US, there are an estimated 100-200 members and associates, primarily in New York and Florida. 25 also engage in murder, drug trafficking, frauds, thefts, bombings, labour racketeering, counterfeiting, gambling, loan sharking, and alien smuggling.55
In 2004, the Italian interior minister announced the arrest of more than a hundred suspects after a long investigation. According to him the ‘Ndrangheta is ‘the most powerful and dangerous criminal organization in Italy because of its viciousness’.56 Fighting the ‘Ndrangheta is particularly difficult because unlike the Sicilian and American mafias, the ‘Ndrangheta was based on the family nucleus of blood relatives and intermarriages. Consequently, it was almost impenetrable; for a brother to inform on a brother would be infamy.
In 2004, police revealed connections between ‘Ndrangheta and terrorists. It was alleged that the mafia was involved with ETA terror group in Spain and paramilitary groups in Columbia. Those factions had traditionally focused their attention on the drug trade by providing protection for traffickers. But, the view of the national anti-mafia prosecutor Pierluigi Vigna is that Ndrangheta’s role changed ‘Once, the terrorist groups financed themselves by protecting the drug traffickers’. He added ‘now they directly participate in the trade operations and profits from those activities’.57
By 2005, on Calabria’s east coast, the region of Locri was considered as the narco-capital of Italy. Links were discovered between the Eastern ‘Ndrangheta and Turkish, Columbian, Belgian58, German, Dutch, and French criminal organisations. 59
55 FBI, Organiszed Crime
2.1.2. Sicilian Mafia
Although ‘Ndrangheta has possibly become the most active Italian-based crime group, the Sicilian Mafia60 has started to resurge mainly in the international narcotic trade, After more than a decade of police crackdowns, infighting and disarray, the Sicilian Mafia has created new collaborations61 and drawn much of its profits from ‘outpost’ families positioned all around the World.62Today, some specialists estimate that it is the second biggest organisation in Italy.63
The Sicilian Mafia specialises in heroin trafficking, military arms trafficking—and is also known to engage in arson, counterfeiting, political corruption, frauds, and other racketeering crimes. With about 2,500 Sicilian Mafia members, it is the most active and the most powerful Italian organised crime group in the U.S.64 The Sicilian Mafia is infamous for its violent assault on Italian law enforcement officials made the. High-ranking victims include Parliament members, judges, mayors, police commissioners, police colonels and generals.65
60 See Appendix 4; In Sicily, the term ‘Mafia’ means ‘manly’. The Sicilian Mafia was created in the mid-1800s to bring together the Sicilian peasants against their opponents. The Sicilian Mafia, which was initially a group of respectable Sicilian men, became an organised criminal group in the 1920s. 61 Notably with the ‘ndrangheta as well as other international criminal organisations. 62 In Europe, Eastern Europe, North America, South America, the Caribbean and South Africa, members of the Sicilian Mafia are re-emerging in crimes ranging from drug trafficking to money laundering, and from migrant smuggling to the trade of military weaponry. 63 FBI, above n 55. 64 Ibid. 65 On May 23, 1992, the Sicilian Mafia hit Italian law enforcement with revenge. At around 6 p.m., a bomb attack (the bomb made a 9 meters in diameter crater in the road) killed Italian Magistrate Giovanni Falcone, his wife, and three police bodyguard. The assassination became known as the Capaci Massacre. (Giovanni Falcone was the director of Criminal Affairs in Rome. Under Judge Falcone’s tenure the FBI and Italian law enforcement established a close working relationship aimed at dismantling Italian organized crime groups operating in both countries. That relationship has intensified since then. Less than two months later, On July 19, 1992, in Palermo, Sicily, the Sicilian Mafia killed Falcone’s new subsitute, Judgde Paolo Borsellino, and five bodyguards. The attack was perpetrated outside the building of Borsellino’s mother when a car full of explosives was exploded by remote control. 27
2.1.3. La Cosa Nostra
Although La Cosa Nostra66 has its origins in the Italian organised crime system, it has been a distinct organisation for many years. Nowadays, La Cosa Nostra collaborates in diverse criminal activities with various criminal groups that are headquartered in Italy.67
LCN is depicted by the FBI as the main organised criminal threat to American society.68 It is a US nationwide coalition of criminals69 devoted to pursuing crime and protecting its members.70 This criminal organisation is made of different ‘families’71 engaged in significant and organised racketeering activity as well as international crimes. Even if this criminal organisation is present all over the US, it is mainly active in the New York City area, Chicago, Philadelphia, parts of New Jersey, Detroit, and New England.72
2.1.4. Camorra
The Camorra has now more than 100 clans and around 7,000 members, making it the biggest of the Italian organised crime groups.73 After an earthquake devastated the Campania region in 1980, the Camorra made a fortune in rebuilding the area. Nowadays, the Camorra is specialised in cigarette smuggling and get payoffs from other criminal factions for any cigarette traffic throughout Italy. This criminal organisation is also involved in extortion, money laundering, alien smuggling, blackmailing, robbery, political corruption, counterfeiting and kidnapping.74
The Camorra has recently been active in a violent gang war that killed hundreds of people. Naples suburbs as Secondigliano and Scampia are crime-infested and resemble war zones due to gang’s battles attempting to take the control of the region. The source of the conflict is supposed to be the issue of succession:
66 La Cosa Nostra means ‘this thing of ours’. 67 FBI, above n 55. 68 See Appendix 4. 69 Linked by blood ties or through conspiracy. 70 FBI, above n 55. 71 that are usually arranged geographically. 72 FBI, above n 55. 73 See Appendix 4. 74 FBI, above n 55. 28
When Paolo di Lauro, known as “Ciruzzo the Millionaire”, went into hiding to avoid police in 2002, he left his 25-year-old son, Cosimo, in charge of his organization, the Alleanza di Secondigliano Cartel. Other gang leaders, unimpressed with Cosimo’s leadership, broke away for the Secondigliano and formed a group loosely called the Secessionists. At stake was a drug trade that reportedly brought in more than USD $ 650,000 a day.75
The conflict rushed into a three-year wave of murders, disappearances, arson and bombings. Six people died in one battle which lasted less than two days. The killings had an enormous impact, indeed; numerous victims’ relatives swore out vendettas and consequently carried out the cycle of violence.76
2.1.5. Sacra Corona Unita
Based on the east coast of Italy, in Apulia, SCU has adopted elements from other Mafia groups, thus, for instance, the early SCU imitated kidnapping operations from the ‘Ndrangheta and copied the religious elements of the Camorra. The SCU is made of around 50 clans with approximately 2,000 members.77In the US, only a small number of members have been identified, even though some individuals in Florida, Illinois, and New York have link to the organisation.78
Unlike the better-known Mafia groups, Sacra Corona Unita was created as a criminal enterprise driven entirely by profit and is not a group established in the cultural legacy of community support. Today, the SCU is engaged in drug trafficking, human smuggling, trafficking of women, colossal money laundering, arms trafficking, the smuggling of stolen goods, currency counterfeit, cigarette smuggling, and corruption, particularly of the Italian political sphere. SCU is involved in extortion by collecting money from less significant criminal groups in Puglia.79
Police have recorded acquaintance with the Colombian cocaine cartels and Asian and Eastern European criminals. In 1994, a SCU operation that brought in money USD $ 3.2
75 A. Nicaso and L. Lamothe, above n 49, 69. 76 Ibid 69. 77 See Appendix 4; FBI, above n 55. 78 FBI, above n 55. 79F. Shanty and P.P. Mishra, Organized Crime: From Trafficking to Terrorism (2008) 465. 29 million a month was uncovered; it consisted in migrant smuggling operation transporting thousands of Albanians into Italy. In addition, the SCU forced the women into prostitution and men into workforce obliged to do menial labour. Furthermore, a report made by the Italian Ministry of the interior stated that the SCU added value by using the ships transporting migrants to smuggle drugs into Italy and all around Europe.80
The SCU, which 15 years ago was given a short life expectancy because of police crackdowns, territory wars with other organised crime groups, and the apparently incessant stream of informants, has proven itself to be flexible and adaptable.81
80 C. Walker, ‘Special Report: Mob Murders Cool Off in Italy…And other Historical Stories about the Sicilian Mafia’ (2007) New Criminologist
2.2. Asian Organised Crime Groups
2.2.1. Chinese Organised Crime Groups
2.2.1.1. Overview of the Structure
The scope of Asian Organized Crime82 goes from the Chinese Triads established in China, Hong Kong and Taiwan to street gangs located to small territories of Chinatowns and Asian neighbourhood of cities in the US, Australia, Canada, South America, the UK, and even South Africa.83
At the top of the structure of AOC sit the Triads, hundred-million-dollar criminal empires with a worldwide reach in heroin smuggling operations. The syndicates84 are equally powerful but without the Triad’s long-established titles and trappings. Thus, the most active syndicate is the Big Circle Boys.85 In that organisation there are no rules of conduct further than the informal expectations of all criminal groups.86 By the mid-1980s the Big Circle Boys had developed beyond Asia into North America and they are today viewed as the most active and powerful Asian crime threat locally and internationally. Their activities are international, and they have built connexions with other syndicates and Triads in the credit card counterfeiting industry, the migrant smuggling trade, the counterfeit goods manufacture, heroin importation, organized global sex trade and hydroponic marijuana and Ecstasy production and trafficking.87
In the middle are the Tongs, self-declared benevolent organisations structured on the basis of family clans, social fraternities or business, or political lines. Thus, the majority of the
82 Hereinafter AOC. 83 A. Nicaso and L. Lamothe, above n 49, 81. 84 Primarily the Big Circle Boys, a loose confederation of crime groups based in and around the Guangzhou, formerly Canton, area of China. 85 BCB or Dai Huen Jai. The ‘term Big Circle’ is from the prisons around the city of Guangzhou, formerly Canton, which are often, delineated by a large circle on maps. 86 Not to cooperate with the police, no to poach on one another’s turf, not to cheat each other. 87 A. Nicaso and L. Lamothe, above n 49, 86. 31 tongs are respectable organisations but some members became involved in criminal activities and consequently their groups can be identified as organised crime organisations.88
At the base of the structure are street gangs with a local territory, often of the size of blocks of a neighbourhood. Within their turfs the gangs are capable to eke out a living, but always taking an eye on a possible alliance with a bigger, more influential criminal leader. On street level arises the majority of public violence due to the fact that gangs try to encroach on each other territories or fights break out on small matters. Any reason for violence is good for street level gangs; indeed, it contributes to the building of their reputation. 89
2.2.1.2. Triads
The Triads constitute the older and most secretive Chinese organised crime groups.90 The Triads or similar groups seem to have always been present throughout the history of China.91 They were initially created as secret societies in reaction to corrupt government, outside invaders, or as political movement. Today, there are hundreds of Triads groups but four are prevalent: The Chiu Chau, the Wo Group, the 14K and the Big Four. Inside the network of these main Triads are smaller factions of varying sizes and independent or semi- independent groups that operate in Singapore, Taiwan, Bruma and Malaysia.92
On the international scale, the Triads’ main activity is heroin smuggling but the organisation is also involved in money laundering, gambling, prostitution, loan-sharing, extortion, alien smuggling, pornography and various protection shemes.93
88 S.L. Mallory, Understanding Organized Crime (2007) 133. 89 A. Nicaso and L. Lamothe, above n 49, 81. 90 See Appendix 3.2. 91 According to some researches the precursors of the current Triads was established in the second half of the 17th century in a province in eastern china called Fujian. By the late 1950s Triads were productive all over Asia; Hong-Kong alone was the centre of numerous varying sizes and persuasions. In the 1950s, following the communist victory, lots of Triad members and Chinese criminals fled to Southern China into Thailand and Bruma, where they were numerous poppy fields. The Chiu Chau Triads91 were the first factions to get into the already effective heroin trade. They are similarly prominent in Indonesia, Vietnam and Malaysia.91 Today, Chiu Chau members are owners of casinos, banks, shipping lines, brokerages, pharmaceutical companies, constructions companies and import-export firms. They are also either public or hidden owners of international conglomerations and they are established in cities such New York, Hong-Kong, Toronto and Sao Paulo. 92 A. Nicaso and L. Lamothe, above n 49, 81. 93 K.M. Hess and C. Hess Orthmann, Criminal Investigation (9th ed, 2010) 568. 32
As explicated by a US Senate report, Triads and organisations such as Italian organised crime groups have different structure:
Although hierarchical in nature, triads tend not to be strictly controlled from the top, in contrast to more familiar crime groups such as La Cosa Nostra. Instead, triad members frequently branch out into their own criminal enterprises. While the triad leadership does not always initiate and direct the activities of all the triad members, triads clearly serve as international networking associations that facilitate such activity. Moreover, monetary profits from criminal activity of triad members often flow to the top in indirect ways, such as through gifts.94
2.2.2. Japanese Organised Crime Groups
2.2.2.1. Yakuza
In Japan, organised crime groups named Yakuza95 are engaged in all sorts of criminal activities.96 With around 150,000 members, it is the biggest functioning criminal organisation in the world.97 Unlike the majority of criminal groups, the yakuza are not confined to the shadows. They have business cards, office buildings and even fan magazines.98
From a domestic perspective, they make profit by getting from Japan’s significant fraudulent bank loans99 as well as corporate extortion100. In addition to blackmailing, gambling and prostitution; they are continuous providers of income streams. From an international
94 US Senate - Permanent Subcommittee on Investigations of the Committee on Governmental Affairs, The New International Criminal and Asian Organized Crime (1992) 3. 95 Yakuza is a word for the lowest possible combination dealt in a three-card hand in the game of hana-fuda. Being dealt, for example, 8-9-3 (ya-ku-za) equals 20, the worst score possible. In essence, they saw themselves as losers and outcasts, misfits and antisocial, hands of cards to be thrown away. 96 It is considered that the Yakusa is coming from Machi-Yokko, common people in the 1600s who took up weapons to defend their villages against the Kabuki-Mono, violent factions of plundering samurai who had been unemployed and relocated during a period of peace. The Machi-Yokko was composed of everyday people: shopkeepers, hostellers, tradesmen and few former samurai who wanted to live ordinary lives. They received a folk hero status because they defended the victimised and poor against better-trainer and better- armed Kabuki-Mono. 97 See Appendix 3.3. 98 J. Adelstein, ‘The Last Yakusa’, (2010) 27 World Policy Journal 65. 99 They often use civilians to front their operations, taking out small business loans offered by the Japanese government and de- faulting on payment. A financial analyst for a major investment bank in Japan estimates that 40% of all small business loans made nationwide went to companies created by the yakuza. 100 Yakuza shakes down important corporations for money in return for not disturbing shareholder’s reunions or not fiddling with the stocks of the companies. 33 perspective, their activities focus on the trafficking of sex workers, financial crimes, gun smuggling and importation and the sale of synthetic drugs; particularly Ice, a smokable form of methamphetamine.
They are not a key drug-manufacturer, but Japan has one of the most prolific methamphetamine markets in Asia in addition to 600,000 hardcore addicts and more than two million occasional users. This makes it profitable and feasible for Yakuza to form joint ventures with crime groups in the Philippines, China and Taiwan and got multi-kilos shipment for supply.101
The proceeds are invested worldwide, mainly in the western part of the US; California, Nevada and Hawaii, and to a smaller extent on the West Coast of Canada. The Yakuza have also made some investments in America’s casino industry and have organised international trip for gaming purposes for Asian gamblers. Casinos frequently lend money to the losers, who think their debt will not be collected once they go back to Japan. However, due to strong links between the Yakuza and La Cosa Nostra money lenders, collections are rapidly realised and the money send back.102
101 A. Nicaso and L. Lamothe, above n 49, 111. 102 Ibid 112. 34
2.3. Outlaw Motorcycle Gangs
2.3.1. US Situation
2.3.1.1. Overview
The phrase ‘outlaw motorcycle club’ was created in 1908, indeed; it was a motorcycle club ‘that did not belong to the clubs who formed the American Motorcyclists’ Association’.103 It was a pride for some ‘outlaw’ clubs not to belong to the national body, thus, they gladly describing themselves as ‘bad boys’.104
Outlaw Motorcycle Gangs105 are extremely structured criminal organisations in which their members use their motorcycle club as a mean to conduct criminal activities such as weapons trafficking, violent crime and drug trafficking.106 Outlaw gangs preserve a powerful centralised leadership that applies rules controlling conduct, criminal activity, and membership. In the US there are around 300 OMGs from single chapters of five members to hundreds of chapters with thousands of members internationally.107 In the US, current law enforcement intelligence assesses that there are around 20,000 OMG validated members.108
In the US, the territory is divided into West and East Coast sectors, with regional officers who settle disputes and coordinate activities. The International chapters, including those in Australia, New Zealand, Europe, South America and Canada are separate entities. Even if Ralph Hubert ‘Sonny’ Barger109 is the godfather, no official international president exists, and no chapter alleges to speak on behalf of the regional, national, or international organisation.
103 A. Veno, The Brotherhoods: Inside the Outlaw Motorcycle Clubs (2nd ed, 2009) 21. 104 Ibid. 105 OMGs. 106 See Appendix 3.4. 107 In the US there are 5,000 members, and at least 10,000 regular hangers-on. 108 US National Gang Intelligence Center, National Threat Assessment 2009 (2009)
Recruitment is careful and meticulous. A would-be member must ride a Harley-Davidson and be nominated by a member. First, he must serve as a prospect’,110 for around a year and a half, cleaning up, guarding clubhouses and bikes, and cruising in the rear during ‘runs’, when clubs ride in groups to party. The prospects join the Hells Angels to be recognised as part of the most vicious bikers in the world, not necessarily to become criminals. However, to become full members they have to commit crime.111
The Hells Angels are certainly the most notorious OMG members but other groups such as Bandidos, Mongols, Sons of Silence and Outlaws cause a severe domestic threat in the US and run most of the criminal activities related to OMGs as drug-trafficking with a particular involvement in cross-border drug smuggling. Their transnational scope enables these OMGs to organise drug smuggling operations in association with the main international drug- trafficking organisations.112
In the US, according to Federal law enforcement agencies,113 after the Mafia and Asian gangs, OMGs are one of the nation’s biggest organised criminal networks. OMGs are also in business; US federal officials think that large outlaw gangs such as Hells Angels and Bandidos make up to USD 1 billion a year worldwide from murder, prostitution, theft, dealing, gunrunning and extortion. That is far less than La Cosa Nostra that earn around USD 50 billion a year only in the US, but the difference is that OMGs are growing faster and are more vibrant.114
110 Or probationary member. 111 A.E. Serwer, THE Hells Angels’ Devilish Business While many Angels and other Outlaw Bikers Are just Rowdies, a disturbing number are involved in crime. Police say they make big money in the drug trade (1992) CNN
2.3.1.2. Structure
2.3.1.2.1. In the US Local-Level Local-level OMGs have fewer than 50 members and usually function in only one state or in a few neighbouring states. They usually represent support points for regional and national- level OMGs. In addition they are not generally involved in deals with DTOs or any other criminal organisation.115
2.3.1.2.2. Regional-Level From 50 to hundreds members, regional-level OMGs are well-structured organisations. In the US gang investigators have identified 109 regional-level OMGs. They usually support national-level OMGs and few of them have independent connections with transnational DTOs and other criminal organisations.116
2.3.1.2.3. National Level National-level OMGs represent a severe national domestic menace. They are a great concern to law enforcement due to the fact that they are extremely structured organisations with thousands of members, having strong connections with transnational DTOs and other criminal organisations. Furthermore, they maintain criminal networks of local and regional OMGs117, who are a source for new members and whose members perform criminal activities in support of the national-level OMGs. According to open source and published law enforcement information; some members of support clubs have obtained employment with government agencies or private businesses, which facilitates them to provide national- level OMGs with government, business, and financial information that can be utilised to protect their criminal activities.118
115 US National Gang Intelligence Center, above n 108. 116 Ibid. 117 Commonly referred to as ‘support,’ ‘puppet,’ or ‘duck’ clubs. 118 US National Gang Intelligence Center, above n 108. 37
2.3.1.3. The Hells Angels
Some former members of the 358th Bomber Squadron created the Hells Angels Motorcycle Club.119 It is now an OMG with more than 250 chapters in the US and 32 foreign countries120 with a total of 2,000 to 2,500 members.121 It represents a criminal menace on six continents by producing, transporting and distributing cocaine, heroin, marijuana, methamphetamine, LSD, PCP, MDMA122 and diverted pharmaceuticals. HAMC123 is also involved in other criminal activities such as homicide, money laundering, extortion, and assault and motorcycle theft.124
2.3.1.4. Bandidos
Bandidos Motorcycle Club, with 2,000 to 2,500 members worldwide125, is considered as a growing criminal threat to the US nation. In the US alone, Law enforcement authorities have identified about 900 members spread in around 90 chapters in 16 states.
Bandidos is implicated in the transport and the distribution of cocaine and marijuana and in the manufacturing-processing, transport and distribution of methamphetamine. Bandidos are mainly active in the Pacific, south-western, south-eastern, and west central regions. They are expanding in these regions by creating new chapters and accepting members of support
119 In 1930 Howard Hughes produced a war film entitled Hell’s Angels, then during World War II, there were a number of military factions called the Hell’s Angels. Thus, the now famous emblem of the Hell’s Angels death’s head wearing a helmet, that was patent by the Hell’s Angels Motorcycle Club, was initially represented on the fuselage of the US Air Force 350th Bomber Squadron. In 1950, during the Korean War, the 188th Airborne Paratroopers also took the name of Hell’s Angels and utilized the same symbol. 120 According to the Hell’s Angels official website, the motorcycle club is present in U.S.A, Canada, Brazil, Argentina, Australia, South Africa, New Zealand, Spain, France, Belgium, Holland, Germany, Italy, Switzerland, Liechtenstein, Austria, England/Wales, Finland, Norway, Sweden, Denmark, Greece, Russia, Bohemia, Portugal, Chile, Croatia, Luxembourg, Northern Ireland, Hungary, Dominican Republic, Turkey and Poland. (see http://www.hells-angels.com/?HA=charters) 121 A. Veno, above n 103, 20; Many members are veterans and most of them are coming from working-class backgrounds. Some run small businesses as tattoo parlors and bike shops, others are working in marginal blue- collar jobs. One common denominator is that many are rootless; having no links to the community they happen to live in. For a lot of Angels the club is their family. Thus, they are solidly bonded men with a strong code of mutual support.121 They are usually in their 40s and 50s and have a tendency to think they are okay; that is the rest of the society that is off track. There are no African Americans; according to one ‘Angel’ ‘none has ever tried to get in’. The club has severe rules with strict penalties; from suspension for members who do not pay dues to expulsion for those caught injecting narcotics, dealing substandard drugs, or using crack. 122 Ecstasy 123 Hells Angels Motorcycle Club. 124 US National Gang Intelligence Center, above n 108. 125 See http://www.bandidosmc.dk/chapters.asp for a comprehensive list of chapters. 38 clubs to build or join Bandidos chapters. Thus, the members of support clubs do the dirty work of the mother club.126
2.3.2. Australian OMGs Situation
2.3.2.1. Overview
OMGs are considered as a real and current threat to the Australian community and are therefore targeted throughout the country.127 Despite ongoing targeting, there are approximately 39 OMGs with more than 3300 members that maintain highly efficient complex and powerful criminal networks.128 According to Andrew Scipione, the New South Wales Police commissioner: ‘in the past six months, 185 gang members and associates have been charged with 572 offenses, most of them related to violence, drugs and weapons’.129
The Gladiators130 are considered as the number one Australia’s US-style OMG. However, when their president, Frederic Steven ‘Jan’ Celovic, was murdered, the international Hells Angels revoked the club’s charter. That is in 1973 that new Hells Angels chapters were formally launched in Sydney and Melbourne.131
Prior to the events of March 2009 Australia's OMGs used to have a code of conduct; they prosecuted their territory wars and refrained discussing and executing their criminal activities publicly. Criminal activities could not be discussed in front of women or children, at work or at home. But on March 22, 2009 in the terminal of the airport of Sydney, one OMG member was bashed to death in front of horrified children, women and bystanders.132
126 US National Gang Intelligence Center, above n 108. 127 See appendix 5 for some information related to Australia’s most active bikers gangs. 128 Australian Crime Commission, Organised Crime (2009)
2.4. Latino Organised Crime Groups
2.4.1. Colombian Cartels
Generally, organised crime groups tend to focus on a wide variety of illegal activities. In contrast, the drug business is the primary, if not exclusive, activity of the Colombian and Mexican cartels.133 They have joined criminal and corporate culture with more success than other groups, building an industry based on sound management principles including division of labour and specialisation.134
The main Colombian cartels are articulated around different tight knit families in Cali and Medellin. Large agricultural ventures spread135 all over the Andes mountain range enable the principal drug trafficking families to control considerable production and distribution networks.
The cartels utilize an elaborate accounting and financial structure to keep track of thousands of tons of merchandise and billions of dollars in profit. Then, they launder the profit in the banking and financial networks and send back in Colombia a part of the laundered money. Then a large part of these funds are invested in Europe, the US and elsewhere. 136
A US government report137 revealed that the transit flow of cocaine has changed:
A smaller but growing cocaine smuggling method is to use small civilian aircraft from clandestine airstrips in south-eastern Columbia to fly cocaine to Brazil, Suriname or Guyana. From these countries the cocaine is either consumed locally, as in Brazil, or transferred to maritime vessels for shipment to the United States or Europe.
133 See Appendix 6. 134 C. Arvantides and J. Butcher, Global Organized Crime, American University
Another trend is the use of ‘go-fast’ boats, thus; small speedboats are used to transport loads from mother ships offshore. 138
According to US intelligence reports Columbia is the source of 90 percent of the cocaine and 50 percent of the heroin incoming the US. In addition, Columbia tops the list of all the states in the world that import precursor chemical.139 Nevertheless, crops planes sponsored by American frequently spray chemicals140 to eradicate cocoa plants.141
The latest focus of Colombian and US police and security agencies is the trafficker-terrorist nexus.142 Accordingly, American officials have described narco-terrorists143 as ‘high-value targets’. For example, in December 2004, Juvenal Ovidio Ricardo Palmera Pineda, a leader of the Revolutionary Armed Forces of Colombia144 was extradited to the US on both drug and trafficking and terrorism charges. Furthermore, the chief of finance for FARC, Omaira Rojas Cabrera, was extradited and tried in 2007 in Washington DC. She was sentenced to 200 months in prison. Despite these efforts, the cartels still controls the production and distribution of huge loads of cocaine, sending shipments to the US, Canada and Western and Eastern Europe.
2.4.2. Mexican Cartels
With a 2,000 miles border the US is the world’s biggest consumer of drugs. Mexican organised crime groups have an exceptional geographical advantage. It is estimated that between 50 and 70 percent of the South America’s cocaine that enters the US and around 80 of the foreign grown marijuana that is consumed in the US is passing through Mexico. Mexican Cartels are also involved in heroin production and opium poppy cultivation, currently producing 20 to 30 percent of the heroin distributed in the US. In addition, these
138 The go-fast boats employ refuelling ships at sea to extend their range and allow them to reach Central American countries. 139 Precursor chemicals are used in the production of many illegal drugs. 140 See Appendix 7. 141 Many fields are so well hidden, however, that even satellite surveillance fails to locate them. 142 From the cocaine trade has emerged anti-government and rebel groups that are seen by the US as a threat to the stability of the state. 143 The US Drug Enforcement Agency (DEA) defines narcoterrorism as the “participation of groups or associated individuals in taxing, providing security for, otherwise aiding or abetting drug trafficking endeavors in an effort to further, or fund, terrorist activities. 144 Also known as the FARC. 41 criminal organisations are more and more dominant in the manufacturing and distribution of Ecstasy, illegal steroids and methamphetamine.145
Mexican cartels are one of the beneficiaries of the change to narco-terrorism in Colombia. For years, they have worked as transit groups for the Colombians and transported their products over the US, but Mexicans organised crime groups have now grown wealthier, becoming more and more dangerous and important.146 Mexican cartels are now running wide-ranging drug trafficking rings, a criminal ground that was in the past monopolised by Colombian cartels.147
Each year, USD 25 – 30 billion worth of illegal drugs come through Mexico through US between.148 In addition, according to the Public Security Minister, proceeds of the sale of illegal drugs on the Mexican market have jumped from 431 to 811 USD millions for a period from August 2009 to January 2010. 149
A large variety of drugs is concerned by that traffic: heroin, cocaine, marijuana and methamphetamines. The majority of heroin and cocaine load come from other countries and pass throughout Mexico on the way to the US; consequently the proceeds must be divided between Mexican traffickers and foreign producers. However, Marijuana and meth150 are made in great quantities in Mexico so Mexican cartels perceive a bigger part of the sales profits.151
145 C. Arvantides and J. Butcher, above n 134. 146 Ibid. 147 UN, Tenth United Nations Congress on the Prevention of Crime and the Treatment of Offenders (2000)
Mexican organised crime groups can be described as supply chain entities that are competing for suppliers in South and Central America, quick and safe transit route in Mexico and across borders and consumers in the US.152 Thus, there is a massive competition between the major Mexican cartels to control the most lucrative trade paths. Consequently, it leads to warfare that can also strike the civilian population. From then end of 2006 to the beginning of 2010, there has been an astonishing number of 16205 assassinates linked to the cartels, thus; 2009 was the most violent year with an average of 21,2 assassinates per day.153
The Mexican drug cartels have a hierarchical leadership organisation. This structure shows efficiency and sophistication, hence; a lot of criminal activities are compartmentalized with specific groups concentrating on specific duties. Top cartel supervision is primarily based on geography. High and mid-level members154 are responsible for cartel activities in a specific state or city. This top-down structure makes the organisation vulnerable because the entire chain of command can collapse if a key leader is killed or arrested. Nevertheless, leadership vacuums are rapidly filled as the cartels keep working to take possession of the most profitable drug routes.155
Other organised criminal activities are multiple but do not produce as much money as drug trafficking. These activities include: extortion, human trafficking, kidnapping, and weapons trafficking. Usually, the major cartels use these activities in a limited way to increase drug profits or to support the entire organisation.156
152 See appendix 8; Long distance movement of illicit drugs necessitates more than a great deal of coordination; that is to say, official complicity. Consequently, a large part of cartel management implies intimidation and brides of government officials, police officers and military personnel. 153 F. Saliba, ‘Les Cartels de la Drogue Devastent le Mexique’ (2010) Le Monde: Bilan Geostrategique 119 154 Known as gatekeepers. There appears to be little oversight as to how gatekeepers choose to manage their territories, as long as they succeed with the overall business plan. 155 STRATFOR Global Intelligence, above n 149. 156 Ibid. 43
2.4.3. Mara Salvatrucha (MS-13)
Mara Salvatrucha, or MS-13, is a Latino gang infamous for its extreme violence that has been labelled the newest ‘most dangerous gang in America’ by a 2005 Newsweek article. In the 1990s, as a result of civil war, more than one million Salvadorans fled to the US, mainly to Los Angeles and Washington DC. Because they were not well accepted by Latino communities in Los Angeles and were often the target of local Latino gangs, these Salvadorans created a mechanism for self-protection: the Mara Salvatrucha. MS-13 comes from the merger between immigrants involved with La Mara157, and former members of the FMNL158.159
MS-13 is mostly El Salvadoran, but encompassed other Latino members mainly from Central America. Mara Salvatrucha enrols heavily school age160 Latinos and gives them protection and a sense of belonging, but at the end of the day an initiation to a life of crime and violence.161 The US Justice Department attests that MS-13 presently has around 8,000 members in 27 states and thousands more in El Salvador.162 The gang is engaged in smuggling and distributing illegal drugs.163 MS members are implicated in murder, aggravated assault, narcotic sales, home-invasion robberies, weapons smuggling, burglaries, rape, vehicle thefts, car jacking, extortion, witness intimidation and illegal firearm sales.164
The arrest of a leader of the MS-13, called ‘the smuggler’, led to suspicions that the gang might be in league with al-Qaeda. Thus, according to John Naland, Chief Officer at the American Consulate in Matamoros:
157 A street gang in El Salvador. 158 A paramilitary group of Salvadoran guerrilla fighters. 159 University of Maryland, Mara Salvatrucha, or MS-13 (2004)
There has been some intelligence that al-Qaeda has talked with Maras to help smuggle someone into the US. The Maras are certainly a threat to the United States ... it’s kind of the logical open door that could be used and the Maras are just ruthless enough to do it.165
165 A. Nicosa and L. Lamothe, above n 49, 211. 45
2.5. Russian Organised Crime Groups
2.5.1. The Russian Mafiya
The Russian Mafiya is one of the prominent networks of organised crime in the world. Thus, with criminal organisations controlling 40% of Russia’s economy and more than 50 000 businesses, and with 70% of companies paying protection fees to criminal organisations, it appears that organised crime poses a threat to the prospect of a democratic Russia and to global security, stability and safety. 166
The post-Soviet Era has produced the most prolific ground for the increase of organised crime. The recognition of the right of property gave the underground tycoons and party barons reasons to find a lawful outlet for their secret wealth. Capitals accumulated in the black market economy found its way into joint ventures, banks, stock exchanges, cooperatives, and stock companies. At the end of the 1990s, the greedy former party bosses and oligarchs became Russia’s new class of capitalists. With their colossal wealth and shares in many legitimate businesses, they took a commanding control over the Russian economy.167
A number of Mafiya organisations are fronts for the former Soviet party elites168 who have been involved in illicit activities such as bank fraud, to become prosperous monopoly holders. In addition, during 1993 successive bribery scandals paralysed the Boris Yeltsin administration. Police officials and cabinet ministers were caught working for shady commercial companies while senior commanders of the Red Army were found in smuggling rings. 169
The Georgian Mafiya constitutes a major group based in Russia. Under the Communist system, the Georgian Mafiya controlled a large part of the black market and has now expanded its range of activities. Furthermore, the Chechens and the Azerbaijani, two other
166 F. Shanty, Mafia: The Necessary Reference to Organized Crime (2009) 246. 167 Ibid 178. 168 Known as the ‘nomenklatura capitalists’. 169 C. Arvantides and J. Butcher, above n 134. 46 ethnically oriented organisations, have participated to a major revival in the illegal trafficking of drugs, body organs, nuclear material, weapons and metals. Additionally, the Russian banking system has been infiltrated by several Mafiya group members who have used violence and intimidation tactics against businessmen and bankers that do not cooperate. 170
A gray area between legal and criminal business activity has facilitated the Mafiya to infiltrate a good number of areas in the Russian economy and has provided them with a disproportionate amount of control. It is estimated that between 5,000 and 6,000 organised crime groups operate in Russia, including hundreds of organisations171 having activities spanning the territory of the CIS172 countries, Western and Central Europe Central and the US.173
Its capacity to infiltrate key sections of the government bureaucracy makes the Russian Mafiya unique. Thus, according to government investigators, the majority of Russian’s criminal groups have links with the government. Therefore, organised criminal groups are more and more moving into legitimate government and business even as they maintain ties with their criminal base. But, according to Russian officials, the groups are increasingly fighting among themselves due to the absence of a single authority.174
Thus, major characteristic of the Russian Mafiya is its structural system. Russian organised criminal groups are not structured as the Italian Mafia, the Triads, or the Yakuza. There are no bosses sitting on the top of the gang hierarchy. Rather, it is highly fractured and diverse.175 Thus, the loose organisational structure and diversity, combined with the absence of a tradition of honor, make Russian organised crime groups extremely dangerous and hardly predictable.
170 Ibid. 171 These transnational groups are regarded as very sophisticated and are believed to be operating in approximately 29 countries. 172 Commonwealth of Independent States. 173 C. Arvantides and J. Butcher, above n 134. 174 P. Goble, ‘Moscow’s Criminal Groups Playing by New and More Dangerous Rules’ (2009) New Criminologist < http://www.newcriminologist.com/article.asp?cid=116&nid=2166> 10 July 2010. 175 F. Shanty, above n 166, 246. 47
2.6. West African Organised Crime Groups
West Africa is amongst the poorest and least stable regions on earth and according to Mr. Costa ‘has everything that criminals need: resources, a strategic location, weak governance and an endless source of foot soldiers who see few viable alternatives to a life of crime’. 176
Criminals are making the most of these circumstances to traffic a variety of products throughout the region: drugs177; cigarettes; weapons and ammunition; people178; counterfeit medicines; toxic waste (including e-waste179); oil; and natural resources180. In several cases, the value of trafficking flows puts down to local economies.181
Various criminal groups are involved in diverse types of traffics that strike the region: Latin American traffickers operate drug smuggling, Niger Delta militants are the groups most frequently associated with illegal oil bunkering182. Small group of local businessmen seems to run most of the fraudulent importation of cigarettes. Numerous agents are involved on the supply chain of counterfeit medicines from Asia to West Africa183. Nigerians (mainly Edo), Sierra Leonean and Guinean criminal groups are engaged in the traffic for sexual exploitation from West Africa to Europe, Small groups or companies having legal activities in industrialized states are involved in the movement of toxic waste from industrialized countries to Nigeria and Ghana and more than 20 smuggling rings are operating human
176 UNODC, ‘Organized Crime Plundering West Africa, Says UNODC Report’ (2009)
184 UNODC, above 176, 72; In addition, Nigerian criminal groups are heavily involved in the execution of advance-fee scams over the Internet, disguised as business proposals.
49
3. LEGISLATIVE RESPONSES TO ORGANISED CRIME
Preliminary Statement
In the late 1960s, the US was the first country to adopt strong legislation to fight organised crime. The lack of international responses until the late 1990s seems to come from the fact that organised crime was not perceived as a global threat.185
3.1. United Nations Level 3.1.1. UN Priority Six major security challenges, among which transnational organised crime, are registered as the leading challenges of the contemporary age in the UN Secretary-General’s High Level Panel on Threats, Challenges, and Change.186 The panel concluded that now ‘threats are from non State actors as well as States and they target both human security as well as State security’187. 188
In 2000189, UN Member States agreed on two criminal law conventions: one against transnational organised crime190 and another against corruption.191 The United States, the European Community and Australia signed the Convention and are Party to it.
185 (As exposed in point 2.2.1.) prior the adoption of the Single European Act in 1986 and the collapse of communism in 1989, the notion of organised crime did not have neither scientific nor political legitimacy in Europe. 186 These are economic and social threats, including poverty, infectious disease, and environmental degradation; interstate conflicts; internal conflict, including civil war, genocide, and other large-scale atrocities; nuclear, radiological, chemical, and biological weapons; terrorism; and transnational organized crime. 187 In the words of the UN Secretary General, human security is ‘freedom from want, freedom from fear, and the freedom of future generations to inherit a healthy natural environment’ (UNIS/SG/2555,9) 188 UN, Challenges and Change, a more Secured World: Our Shared Responsibility (2004)
3.1.2. United Nations Convention against Transnational Organized Crime (UNTOC)
3.1.2.1. The Role of the UN
From its creation in 1945, the UN has been involved in the fight against organised crime. Its mandate for this action stems from Article 1 of the UN Charter and Articles 28, 29 of the Universal Declaration of Human Rights. The UN has continually interpreted organised crime as a menace to the social and economic well being of the world’s population.192
The UN does not and cannot perceive its role as one imposing the same penal code all over the world. Instead, the organisation aims to offer a global legal framework made of a set of agreed rules, which may support states in international law enforcement and judicial cooperation. Consequently, the UN has been a major actor in the development of international criminal law.193
3.1.2.2. The Adoption of the UNTOC Convention and its Three Supplementary Protocols
The UN has constantly played a key role in the fight against organised transnational crime in all forms. Despite the existence of multilateral agreements to control the transnational drug smuggling for a century194, until 2000 there was no convention concerning the way transnational organised crime should be addressed.
The fast growth in the scope and the scale of the issue in the post-Cold War world led to the adoption of the United Nations Convention against Transnational Organized Crime195, the central international tool to counter organised crime.196 This international instrument
192 F. G. Madsen, ‘Organized crime’ in T.G. Weiss and S. Daws (ed), The Oxford Handbook on the United Nations (2007) 611. 193 An area in which Member States are typically extremely reluctant to relinquish sovereignty as they often interpret criminal laws as if it were the visual emanation of regal power. 194 For example, the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. 195 Also known as Palermo Convention. 196 UNODC, UNODC and Organized Crime (2010)
The states that ratified it have therefore committed themselves to its exceptional structure for cooperation including extradition, mutual legal assistance, and uniform obligations for criminalising serious crimes committed by organised crime groups. Even more important, states are more and more employing the Convention for law enforcement purposes.199
It is also important to note that three supplementary protocols were attached to the Convention in order to target particular manifestations of transnational organised crime: The Protocol on Trafficking in Persons, Especially Women and Children, that entered into force in December 2003; the Protocol on Smuggling of Migrants, that entered into force in January 2004; and the Protocol on Illicit Manufacturing of and Trafficking in Firearms, that entered into force in July 2005.
3.1.2.3. Analysis of the Organised Crime Notion and the Definition of ‘organized criminal groups’
Interestingly, neither precise a definition of organised crime, nor a list of the types of crimes that could fall under this heading are contained in this UN Convention. This problem seems to come from the lack of consensus on the definition of organised crime among either theorists or practitioners. In fact, a very broad range of criminal activities can be carried out transactionally in an organized way, and new forms of crime appear continually as local and global conditions change over time. A precise definition seems to have been omitted to accommodate this complexity. As an alternative, the ‘organized criminal group’ is defined because the UN Convention requires parties to criminalise participation in organised criminal group. But the goal of the Convention is to ‘prevent and combat transnational organized
197 Except Czech Republic, all the members states of The European Union had in July 2005 ratified the convention and the United States had ratified the convention in 2006. 198 See Appendix 11 for a review of the offences established by the UNTOC Convention. 199 E. Verville, ‘UN Convention Against Transnational Organized Crime’ (speech delivered at the High-Level Meeting of the UN General Assembly, New York City, 17 June 2010). 52 crime’, not organised crime groups.200 So, fighting the groups is just one method towards this end.201
Accordingly to the article 2 of the United Nations Convention Against Transnational Organized Crime an ‘Organized criminal group’
shall mean a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit.
This definition rejects only randomly formed groups and does not necessitate formally defined roles or continuity of membership or a developed composition. It is mainly a negative definition. The only positive obligations are the concert between the members of the group and the existence for a period of time. Both elements are particularly vague.202
While such a definition provides a general framework of understanding, it can undermine effective law enforcement responses. Indeed, through this definition, an organised crime group can consist of ‘anything from a four-person, low-level racketeering outfit to high complex, international networks engaged in human trafficking or money laundering’. 203 However, as most ‘groups’ of any kind comprise of three or more people working together and most exist for a period of time, the essential characteristics of organised crime groups under the UN Convention are their profit-driven character and the magnitude of the offences they commit.204
From a comparative perspective, it appears that the definition is extremely wide and similar
200 Nevertheless, the definition has become an international standard. 201 UNODC, The Globalisation of Crime: Transnational Organized Crime threat Assessment, (2010) 25
3.1.2.4. Scope: Analysis
The policy is to exclude cases of a solely domestic nature208 but not to exclude the possibility that where an element of transnationality was merely suspected, some provisions might be applied.209 In addition, the instruments are not applicable to other crimes that are not organised crimes.210
Where the following conditions are met, the Convention applies:211
(a) Claims must be related to the prevention, investigation or prosecution of a least one offence established by the Convention or one of the Protocols or that are ‘serious crimes’ as defined by the Convention;212
205 Hereinafter ‘JA’; See below point 4.3.1. for an analysis of the Joint Action 98/733/JHA of 21 December 1998 on Making it a Criminal Offence to Participate in a Criminal Organisation in the Member States of the European Union. 206 D. McLean, Transnational organized crime: a commentary on the UN convention and its protocols (2007). 207 A.V. Orlova and J.W. Moore, ‘“Umbrellas” or ‘Buildings Blocks?’ Defining International Terrorism and Transnational Organized Crime in International Law’ (2005) 27 Houston Journal of International Law 267. 208 For which an international instrument was seen unnecessary. 209 In order to determinate if there were or not an element of transnationality. 210 See Appendix 11; Although this excludes some areas, notably corruption and computer-related crime, where transnational crimes committed by individuals have become a problem that may require further international attention. 211 See article 2 (Use of Terms) and 3 (Scope of application) of the UNTOC. 212 The article 2 (b) of the UNTOC provides that ‘serious crime’ shall mean conduct constituting an offence punishable by a maximum deprivation of liberty of at least four years or a more serious penalty. 54
(b) The offence must be ‘transnational in nature’. In general, this encompasses offences that are committed or planned in more than one country or that are committed in one country, but have considerable effects in another;
(c) An ‘organised criminal group’ must be involved in the offence. An ‘organised criminal group’ shall mean a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit;
(d) The article 3 of the Convention related to the general scope provision establishes general rules that apply only where different rules are not integrated into individual articles of the UNTOC and Protocols. Under article 18 of the Convention, paragraph 1, it is possible to request assistance where there are ‘reasonable grounds to suspect’ that one of the offences involved is transnational in nature.213 Thus, article 18 modified the general rule stating that transnational organised crime must be ‘involved’.
It is important to notice that ‘the scope provisions of the Protocols follow the same pattern as the Convention, with some modifications appropriate for the subject matter involved.’214 For instance, article 4 of the Protocol on the Trafficking in Persons specifically encompasses the protection of victims from trafficking. In addition, some transactions that involve States acting in the interests of their own national security are excluded by Article 4 of the Firearms Protocol.215
213 This allows for legal assistance requests to be used to gather evidence to determine whether transnational elements are actually ‘involved’ or not. 214 UNODCCP, Forum on Crime and Society (2001) 140
3.1.2.5. Implementation: Analysis
According to Antonio Maria Costa:
The blueprints for a global response to organised crime already exist, but they are not being used. So far, one third of all UN Members States, including some members of the G8, are not yet parties to the Palermo216 and Merida217 Convention.218
But there is more:
Two out of three of the UNTOC protocols are inactive. The Firearms Protocol has few state parties, none among the major arms producers: a hand-gun is cheaper than a cellular phone. The Smuggling of Migrants Protocol is also neglected, despite the daily tragedy of tens of thousands of desperate people who pay a small fortune to cross perilous seas, deserts and mountains - and very often end up paying with their lives. Let's bring these two Protocols to life.219
Therefore, his intention is to encourage UN Members States to close the gaps between ratification and implementation by passing national laws coherent with international commitments. He also encourages UN Members States to start using these national laws to prosecute and convict.220 Accordingly, it is clear that the ratification of the convention is a necessary but not sufficient condition for actual implementation.
There is a lack of data regarding the implementation of the UNTOC. This deficiency comes from the lack of agreement amongst state parties on a monitoring mechanism. Thus, Looking at the prevalence of organised crime and the general police performance can be a fruitful approach for assessing progress made by party states concerning the implementation of the Convention. According to organised crime Index’ figures released by
216 UNTOC. 217 UN Convention against Corruption. 218 A.M. Costa, above n 4. 219 Ibid. 220 Ibid. 56 the United Nation Office for Drugs Control and Crime Prevention,221 organised crime is less dominant among state parties.222 However, that is the view of the UNODCCP that there is no evidence that this is due to the poor implementation of the UNTOC.
In the future, state parties to the Convention could use the current figures of the Index as a point of reference to evaluate their progress in the fight against organised crime. Indices of state parties should reveal better improvement than those of non-state parties. If it was the case, it would indicate that the UNTOC had a real impact.223
3.1.2.6. Possible Future Instruments
One interesting characteristic of the Convention and its Protocols is that their structures leave open the possibility that additional protocols could be added to address concerns related to other particular forms of transnational organised crime.
A considerable benefit of this approach is that various general provisions, such as those dealing with extradition and mutual legal assistance, could be applied to new issues with no or little modification, hence allowing Governments to focus on questions and options particular to the subject matter at hand.
Another advantage could be the reduction of negotiation time; it would allow the international community to counter more rapidly the evolving issues of transnational organised crime.
221 UNODCCP. 222 The average score on UNODCCP Composite organised crime Index of the state parties to the UNTOC convention in 2005 is somewhat better (37.2) than that of the non-state parties (42.6). 223 J. van Dijk, above n 191, 176. 57
3.2. US Level
3.2.1. Omnibus Crime Control and Safe Streets Act of 1968
3.2.1.1. Overview
This Act was one of the first key pieces of legislation to directly tackle organised crime. This instrument created the Law Enforcement Assistance Administration (LEAA)224 to combat organised crime. In the Act was the congress findings concluded that:
Organized criminals make extensive use of wire and oral communications in their criminal activities. The interception of such communications to obtain evidence of the commission of crimes or to prevent their commission is an indispensable aid to law enforcement and the administration of justice.225
Thus, title III of this Act has allowed the conversations of suspected criminals, including suspects of organised crime, to be wiretap by federal law enforcement agencies.226
3.2.1.2. Analysis of the Definition of ‘Organized Crime’
The sole definition of organised crime in a US statute is that of the Omnibus Crime Control and Safe Streets Act of 1968:
Organized crime means the unlawful activities of the members of a highly organized, disciplined association engaged in supplying illegal goods and services, including but not limited to gambling, prostitution, loan sharking, narcotics, labor racketeering, and other unlawful activities of members of organizations.227
224 The LEAA administered federal funding for state and local law enforcement agencies, educational programs, research, and crime initiatives. It is no longer in existence and has since been succeeded by the Office of Justice Programs (OJP). 225 US statute is that in Public Law 90–351, the Omnibus Crime Control and Safe Streets Act of 1968. 226 The Omnibus Crime Control and Safe Streets Act was later amended by the Violent Crime Control and Law Enforcement Act of 1994. This amended Act addressed organized crime in that it expressed the sense of the Senate that “the United States should encourage the development of a United Nations Convention on Organized Crime.” Five years later in 1999, the United Nations began developing a Convention against Transnational Organized Crime. The Omnibus Crime Control and Safe Streets Act was also amended by the Electronic Communication Privacy Act (ECPA) of 1986 (P.L. 99-508), which substantially revised Title III and related provisions. 227 Omnibus Crime Control and Safe Streets Act 1968 Public Law 90-351, Title I, Part F (b). 58
Organised crime is defined in terms of the illegal activities rather than in terms of what constitutes a criminal organization. As such, this conception of organised crime could include the activities of not only organised criminal groups, but of corrupt businesses and terrorist groups as well.228
3.2.2. Organized Crime Control Act of 1970 (OCCA) with a Particular Attention to the Racketeer Influenced and Corrupt Organizations Act (RICO)
3.2.2.1. Analysis
At the end of the 1960s, the US Congress found that organised crime had weakened the strength of the American economy by penetrating lawful businesses and Labour unions and threatening to corrupt and subvert the US democratic processes. Consequently, the Congress enacted the OCCA under its power to regulate interstate and foreign commerce.229 This legislation is considered, by far, as the most effective measure to combat organised crime.
Title IX of the OCCA, entitled Racketeer Influenced and Corrupt Organizations (RICO), has been called the ‘most sweeping criminal statute ever passed by Congress’230 and constitutes the centrepiece of the OCCA. The purpose behind Rico was to:
Seek the eradication of organized crime in the United States by strengthening the legal tools in the evidence-gathering process, by establishing new penal prohibitions, and by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime.231
228 K.M. Finklea, Organized Crime in the United States (2010) 3 Federation of American Scientists
RICO’s core part is section 1962, which makes unlawful certain pursuits by an entity or person. First, section 1962(a) prohibits the investment or use of any income obtained from a pattern of racketeering activity to gain an interest in an enterprise that is engaged in, or the activities of which affect, foreign or interstate commerce. Second, section 1962(b) outlaws the maintenance or acquisition, through a pattern of racketeering activity, of an interest in such an enterprise. Third, section 1962(c)232 prohibits people from conducting the affairs of such an enterprise through a pattern of racketeering activity.233 Finally, section 1962(d) proscribes conspiracy to violate any of these proscriptions.
To establish a breach of section 1962, three elements must be proven: the existence of an enterprise affecting foreign or interstate commerce, a pattern of racketeering activity, and a link between the enterprise and the pattern of racketeering activity.234 RICO provides for a maximum of twenty years’ imprisonment,235 or a heavier punishment than various predicate offenses on which a RICO conviction can rely. Moreover, RICO does not criminalise an individual for being a racketeer; it criminalizes that person’s conduct of an enterprise through a pattern of racketeering. Therefore, a jury that considers a defendant has perpetrated the required predicate acts must still find that these acts were performed in relation with a pattern of racketeering or collection of an unlawful debt.236
3.2.2.2. Effectiveness of the RICO Act
According to Dr Schloenhardt, ‘over nearly forty years of operation, RICO has been used successfully to prosecute a number of high profile leaders of criminal organisations and incapacitated a diverse range of criminal syndicates’. Thus RICO has been successfully applied through various high-profile prosecutions concerning members of La Cosa Nostra, Asian organised crime groups and Russian Mafia.237However, attempts to utilize the RICO Act to prosecute members of the Hells Angels238 failed because the jury was not persuaded
232 This subsection has become the most frequently used provision by prosecutors. 233 W.C. Tyson and A.A. August, ‘The Williams Act After RICO: Has the Balance Tipped In Favor Of Incumbent Management?’ (1983) 35 Hasting law journal 74. 234 Ibid; United States v. Indelicato, 865 F .2d 1370 (2d Cir. 1989). 235 Prison sentences are double or triple the usual amount. 236 J.H. Scheb, above n 229, 263. 237 Parliament Joint Committee on the Australian Crime commission, above n 38, 66. 238 Including its founder Sonny Barger. 60 that a 'pattern of racketeering activity was part of the club's policy'.239
3.2.2.3. Analysis of the Notion of Organised Crime
RICO describes organised crime in terms of ‘enterprise’ and a ‘pattern of racketeering activity’. As defined in Title 18, section 1961 of the United States Code:
an ‘enterprise’ includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated ... although not [necessarily] a legal entity’, and a ‘pattern of racketeering activity’ requires at least two acts of ‘racketeering activity’ to occur within 10 years of one another for a criminal organization to be prosecuted for racketeering. Racketeering is defined as any number of violations, including an act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, or dealing in a controlled substance. 240
Although RICO provides a definition for an ’enterprise’, it does not explain the characteristics of a criminal enterprise to differentiate it from a legal enterprise. In addition, this definition depicts organised crime more in terms of the unlawful activities than in terms of the criminal organisation.241
Concerning the meaning of ‘pattern’ The United States Supreme Court in H.J. Inc v. North- western Bell Tele. Co., 409 U.S.299 (1989) ruled that:
Criminal actions constitute a "pattern" only if they are related and continuous. In order to be "related," the criminal acts must involve the same victims, have the same methods of commission, involve the same participants, or be related in some other fashion. A pattern may be sufficiently continuous if the criminal actions occurred over a substantial period of time or posed a threat of indefinite duration.242
239 Parliament Joint Committee on the Australian Crime commission, above n 38, 66. 240 K.M. Finklea, above n 228, 3; The crimes are listed in section 1961(1). 241 K.M. Finklea, above n 228, 3. 242 J.E. Grell, The RICO Act
3.2.3. Post RICO Situation
Since the passage of RICO, in order to increase the US federal government’s ability to fight organised crime, the US Congress has enacted legislation concerning asset forfeiture and money laundering.243 These instruments have suggested to US government useful methods to further strike the financial organisation and assets of organised crime groups.244
After a ten year period, there seems to be a shift of enforcement priorities from traditional crime fighting to counterterrorism, a renewed interest in fighting organised crime, particularly the transnational nature of organised crime.245 In fact, for the first time since 1993, the Organized Crime Council met in April 2008.246
243 The Asset Forfeiture and Money Laundering Statues are composed by the Comprehensive Forfeiture Act of 1984, the Civil Asset Forfeiture Reform Act of 2000 and the Money Laundering Control Act of 1986.It appears that these laws have all provided effective tools, as the Department of Justice and Federal Bureau of Investigation have indicated that the three most prominent tools relied upon when investigating and prosecuting organized crime are RICO, money laundering, and asset forfeiture statutes. 244 K.M. Finklea, above n 228, 6. 245 Though organised crime has arguably always been transnational, it was not until the 1990s, following the Cold War and the spread of globalisation, that the transnational nature of organised crime surged and criminals expanded their operations across increasingly open borders. 246 M. B. Mukasey, ‘Remarks on International Organized Crime’ (Speech delivered at the Center for Strategic and International Studies, 23 April 2008). 62
3.3. European Level
3.3.1. Joint Action 98/733/JHA of 21 December 1998 on Making it a Criminal Offence to Participate in a Criminal Organisation in the Member States of the European Union
3.3.1.1. Analysis of the Definition of Criminal Organisation
The JA 733 of 1998247 was the first international instrument to deal with the meaning of organised crime.248 Thus, Article 1 of the JA presents a very wide notion of criminal organisation, practically corresponding to the mere participation in a crime.249
Within the meaning of this joint action, a criminal organization shall mean a structured association, established over a period of time, of more than two persons, acting in concert with a view to committing offences which are punishable by deprivation of liberty or a detention order of a maximum of at least four years or a more serious penalty, whether such offences are an end in themselves or a means of obtaining material benefits and, where appropriate, of improperly influencing the operation of public authorities.250
Thus, a particularly large collection of crimes committed by at least three individuals with a minimum degree of coordination may fall within this definition.251Furthermore, no reference is made to the major characteristics of organised crime. Consequently, as it is demonstrated by the following statement made by the Belgian delegation, the definition given by Article 1 of the JA did not completely satisfy all EU member States:
The Belgian delegation considers that the definition of ’criminal organisation ‘given in Article 1 includes the modi operandi used by the perpetrators of the offence. The modi operandi cover the use of intimidation, threats, violence, fraudulent manipulation or corruption or the use of commercial or other structures to dissimulate or facilitate the
247 It has been the legal instrument in force within the EU until the entry into force of the Framework Decision (2008/841/ JHA), on 11 November 2008. 248 F. Calderoni, above n 44, 27. 249 A. Weyembergh, ‘Approximation of Criminal Laws, the Constitutional Treaty and the Hague Programme’ (2006) 42 Common Market Law Review 1567. 250 Art. 1 paragraph 1. 251 L. Paoli and C. Fijnaut, above n 23, 41. 63
perpetration of offences.252
It is also possible to deduce from that definition that the criminal nature of a group derives from its intention of committing crimes and that the criminal plan must involve offences carrying a punishment of a least four years; it provides a quantitative threshold determining what the EU considers as a serious crime. The quantitative threshold could cause some problems since there is no EU framework for criminal sanction and the levels of penalties differ considerably among UE Member States. Indeed, as stated by Professor Vinvenzo Militello from the University of Palermo: ‘proportionality between criminal acts and respective penalties is not an absolute concept but only a relative one measuring the scale of reaction of a particular legal order’.253
3.3.2. Council Framework Decision 2008/841/JHA of 24 October 2008 on the Fight against Organised Crime
3.3.2.1. Improve the Instruments Used to Combat Organised Crime
Different factors are at the origin of the need for a new EU instrument but the most significant boost came from the change in international cooperation after the 9/11 terrorist attacks. Indeed, terrorism became the top priority on the international agenda, consequently; many anti-organised crime measures were brought in so as to combat terrorism.
The need to improve the instruments used to fight organised crime was recognised in the Commission’s Communication of 29 March 2004 on measures to be taken to combat terrorism and other forms of serious crime, in particular to improve exchanges of information.254 Consequently, the Commission’s Communication stated that ‘a link should be
252 European Union (1998) Joint action of 21 December 1998 adopted by the European Council on the basis of Article K.3 of the Treaty on European Union, on making it a criminal offence to participate in a criminal organisation. 98/733/JHA. OJ L 351 of 29/12/1998. 253 V. Militello and B. Huber, Towards a European Criminal Law against Organised Crime: Proposals and Summaries of the Joint European Project to Counter Organised Crime (2001) 25. 254 See Communication from the Commission to the Council and the European parliament on measures to be taken to combat terrorism and other forms of serious crime, in particular to improve exchanges of information, Proposal for a Council Decision on the exchange of information and cooperation concerning terrorist offences, COM (2004) 221; See appendix 12 for a list of the tools developed by the EU to fight organised crime. 64 established between measures to combat organized crime and terrorism.’255 Accordingly, the notion of criminal organisation introduced by the Joint Action (98/733/JHA) should also operate against terrorist groups. Hence:
The Union legislation on criminal organizations must therefore be toughened and made consistent with Union legislation on the fight against terrorism: a Framework Decision to supersede Joint Action 1998/733/JHA will be a major step forward in the fight against the most serious forms of crime. This will also be the most effective way of tackling the overall terrorist phenomenon.256
The Commission immediately informed of its will to take a Framework Decision. That new instrument would make it a criminal offence to participate in a criminal organisation in the Member States of the European Union and it would replace Joint Action 98/733/JHA of 1998.257 The Framework Decision 2008/841/JHA therefore repeals the Join Action 98/773/JHA.
This Framework Decision intends to ‘harmonise Member States’ definitions of crimes related to a criminal organisation and to lay down corresponding penalties for these offences’.258 There are two types of conduct of which Member States must identify at least one as an offence:
- Active participation in an organisation's criminal activities, with the knowledge of its aim or of its intention to commit crimes; - An agreement on the perpetration of crimes without necessarily taking part in committing them.259
255 Ibid. 256 Ibid. 257 European Council, ‘Fight against Organised Crime: Participation in a Criminal Organisation’ (2008) Europa.EU
3.3.2.2. Analysis of the New Definition of Criminal Organisation
The definition provided by the Framework decision is a blend of the Joint Action 1998 and the UNTOC Convention. Consequently it provides the following definition of a criminal organisation:
‘criminal organization’ means a structured association, established over a period of time, of more than two persons acting in concert with a view to committing offences which are punishable by deprivation of liberty or a detention order of a maximum of at least four years or a more serious penalty, to obtain, directly or indirectly, a financial or other material benefit.260
It appears that this definition does not differ considerably from the definitions established by the previous international instruments. Some minor problems with the Joint Action (98/733/HA) are remedied by the importation of solutions from the UNTOC Convention.261
Another difficulty is that the definition of ‘structured association’ is a nebulous oxymoron that challenges legal certainty because the Council has failed to address the key characteristics of organised crime,262 Furthermore, Due to the difference in penalties amongst national systems, the quantitative selection of the predicate offences does not contribute to make the concept more precise. This wide ranging approach to the concept finally adulterates it in order to expand its application and actually reduce divergences among EU Member States. Consequently, the analysis of the Framework Decision (2008/841/JHA) reveals that the European legislator has ignored criticisms made regarding the meaninglessness and the vagueness of the JA.263
260 Art. 1, Council Framework Decision 2008/841/JHA. 261 In particular, the simple clause introduced by the Palermo Convention (‘to obtain, directly or indirectly, a financial or other material benefit’) substitutes for the somewhat problematic description of the ultimate objectives of the organisation in the JA (‘[. . .] whether such offences are an end in themselves or a means of obtaining material benefits and, where appropriate, of improperly influencing the operation of public authorities.’). Article 1 paragraph 2 of the JA providing a superfluous and unclear cross-reference to the offences contained in the Europol Convention has not be been maintained. 262 F. Calderoni, ‘A definition that could not work: the EU Framework Decision on the Fight against Organised Crime’ (2008) 16 European Journal of Crime, Criminal Law and Criminal Justice 265. 263 J. Backman, ‘The inflation of crime in Russia’ In Report of the Scandinavian Research Council for Criminology, Organised Crime & Crime Prevention – What Works? (1998) 35. 66
3.4. Australian Level
Preliminary Statement
The purpose of the present section is to outline the major relevant pieces of legislation dealing with organised crime in each Australian jurisdiction.
3.4.1. Overview
In Australia, each jurisdiction has a distinct set of legislative instruments to combat organised crime.264 These legislative tools include criminal laws, proceeds of crime laws and a range of policing powers.
On the one hand, the development of diverse legislation in each jurisdiction can be seen as an advantage, indeed; it allows law enforcement to efficiently respond to the issues confronting their particular jurisdiction. On the other hand, that multitude of legislation can be seen as a weakness. In fact, having diverse laws in each jurisdiction can render the national fight against organised crime difficult because of the rising complexity of organised crime and taking into account its reliance on national as well as transnational networks.265
Concerning the concept of organised crime; except the Australian Crime Commission Act 2002 (Cth) and the Crime and Misconduct Act 2001 (Qld), Australia does not have a lot of statutes clearly defining and directed against organised crime.
264 See Appendix 13. 265 Parliament Joint Committee on the Australian Crime Commission, above n 38, 51; Indeed, there are often loopholes and weak points created by the variety of legislative approaches in Australia, and criminals will often move to, or store their assets in, jurisdictions with 'weaker' laws.
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3.4.2. Categories of Legislation
First, there are laws that intend to prevent organised crime groups’ members from associating with one another.
Secondly, there are asset confiscation or proceed of crime laws that remove illegally obtained assets with the goal of removing the stimulus for criminal activity and preventing those assets from being utilized to fund further organised criminal activities.
Thirdly, there are policing laws that give additional powers to police to allow them to investigate more easily and establish organised crime offences, for instance surveillance powers and telecommunications interception, the aptitude to conduct controlled operations or assume false identities and coercive questioning powers.
Besides these three types of legislation, there are various other laws as well as policy and administrative arrangements that influence the ability of law enforcement to efficiently respond to organised crime. For instance, information sharing arrangements and cooperation between police forces and governments, together with anti-corruption measures, have a strong influence on the success of efforts to fight organised crime.266
3.4.3. Commonwealth Level
3.4.3.1. Debate on the Introduction of New Legislation Combating Organised Crime
According to Dr Schloenhardt, The Commonwealth Parliament has authority to make laws regarding transnational organised crime thanks to its ratification of the United Nations Convention against Transnational Organised Crime. However, there are presently no offences concerning organised crime in the Criminal Code Act 1995.
266 Parliament Joint Committee on the Australian Crime commission, above n 38, 35. 68
Nevertheless, there is an ongoing debate on the Commonwealth has the power to legislate generally concerning domestic organised crime. Both Professor George William267 and Dr Ben Saul268 argue that ratification of the UNTOC would not validate such laws related to domestic crimes:
the source of power is not immediately obvious, though to the extent that it involves transnational organised crime the external affairs power in section 51(xxix) would provide a suitable basis for that. But that would result in legislation which is focused upon organised crime which crosses Australian borders rather than legislation which is just generally cast, as the net is in South Australia. That is often the way with Commonwealth legislation—it needs to speak to the sources of its legislative power, which state legislation does not have to concern itself with. But in that context, if that is the particular activity that is giving rise to concern at the Commonwealth level, that seems to present itself as an obvious support for the enactment.269
Moreover, the Australian Crime Commission270 considers that even if the Commonwealth could legislate about domestic organised crime it would not be the most efficient way of combating the problem:
It seems to us that the South Australian legislation is very much a matter for the local jurisdiction. It is perhaps easy to see the rationale for their development of that piece of legislation and their intent to apply it. Our perspective nationally is that it would be tremendously hard to replicate that across the national environment and that to have Commonwealth legislation of similar impact would be unwieldy and perhaps difficult to maintain. As we said earlier, the majority of our targets do not readily self-identify as
267 From the Gilbert & Tobin Centre of Public Law. 268 From the Sydney Centre for International Law. 269 A. Lynch, Gibert & Tobin Centre of Public Law, Committee Hansard (2008) 2. 270 See appendix 14 for a comprehensive list of the Commonwealth agencies for combating serious and organised crime and their relevant legislative tools; At the Federal level, the Australian Crime Commission (ACC) was established to address federally relevant criminal activity, which section 4 of the ACC Act defines as: • an offence against a law of the Commonwealth or a territory; or • an offence against a law of a state that has a federal aspect. In practical terms, federally relevant criminal activity generally equates to serious and organised crime. The ACC contributes to the 'fight against nationally significant crime' through 'delivering specialist capabilities and intelligence to other agencies in the law enforcement community and broader government'. The ACC works collaboratively with the AFP, state and territory law enforcement agencies, the Australian Attorney General's Department and a range of Australian Government agencies such as the Australian Customs and Boarder Protection Service, the Australian Tax Office, the Australian Securities and Investments Commission, the Australian Security Intelligence Organisation and AUSTRAC. 69
being organisations and I think one of the risks that we see in any move to proscription of any sort is that you simply change the nature of the target and perhaps arguably make it more difficult for you to identify the targets that you are most interested in.271
According to the Law Council of Australia there is no need to pass further legislation to combat organised crime because the existing criminal legislation of the Commonwealth is sufficient:272
The Law Council believes that the existing principles of extended criminal liability set out in the Part 2.4 of the Criminal Code correctly demarcate the limits of criminal culpability. It is true that those provisions may place an onus on law enforcement agencies to establish a nexus between a particular individual and the commission or planned commission of a specific offence, but that is entirely appropriate, whatever challenges it may present to investigators and prosecutors…273
However, throughout Australia, there is a widespread call for a coordinate approach to organised crime. As stated by the Australian Crime Commission: ‘reducing the harm caused by serious and organised crime is a complex composite of policy and intelligence issue that is beyond the capacity of any one jurisdiction or agency’.274
Moreover, the view of the Attorney-General’s Department is as follows:
In our federal system of government, law enforcement responsibilities and interests overlap, so national coordination and cooperation between the Commonwealth and the states and territories is vital. In considering the possible legislative approaches to serious and organised crime groups in Australia, we also need to be mindful that this is a complex problem that requires a multifaceted approach.275
Similarly, as stated in 2009 by the Joint Committee on the Australian Crime Commission:
271 K. Kitson, ACC, Committee Hansard (2008) 19. 272 Parliament Joint Committee on the Australian Crime Commission, above n 38, 37. 273 Ibid 37. 274 Ibid 130. 275 D. Heriot, Attorney-General’s Department, Committee Hansard, (2008) 35. 70
with the increasing complexity of organised crime, including its reliance on national and transnational networks, having different laws in each jurisdiction can make the national fight against serious and organised crime in Australia complex. The committee heard that there are often loopholes and weak points created by the variety of legislative approaches in Australia, and that criminals will often move to, or store their assets in, jurisdictions with 'weaker' laws.276
3.4.3.2. Criminal Laws
The opinion of the Police Federation of Australia about Commonwealth Criminal laws is unambiguous:
…the Commonwealth does not have in place specific legislation or effective legislation to deal with the transnational and organised crime operational environment. Commonwealth legislation traditionally focuses on predicate offences and the involvement of the persons committing those offences. Commonwealth legislation does not adequately cover all levels of involvement in organised crime. Commonwealth conspiracy and other accessorial type of offences are difficult to prove. The AFP has to rely upon cobbling together various aspects of existing laws in an attempt to prosecute persons involved in this type of activity. Although transnational organised crime is now considered a national security threat there is no definitive law to outlaw the activity. Specific Commonwealth organised crime legislation is required to enable police to effectively prevent, disrupt, investigate and prosecute organised crime activities. The AFPA submits that there is an obligation on the Commonwealth to enact specific Organised Crime legislation.277
It is undeniable that at the Commonwealth level there are presently numerous disparate criminal laws that either aim at one particular element of organised crime or, although not restricted to organised crime, were introduced to combat it. These include the Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Act 2002278 and the Measures to Combat Serious and Organised Crime Act 2001279.
276 Parliament Joint Committee on the Australian Crime Commission, above n 38, 51. 277 Ibid 39. 278 The Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Act added offences to the Criminal Code of trafficking in persons and firearms. Both of these offences are subject to the general provisions in the Criminal Code which provide that a person who aids, abets, counsels or procures the 71
Organised crime is defined in the Australian Crime Commission Act 2002, yet the Act does not establish any criminal offence relying on the definition.
‘Serious and organised crime’ is defined by the Australian Crime Commission Act 2002 (in Part I, s 4(1)) as an offence: (a) that involves 2 or more offenders and substantial planning and organisation; and (b) that involves, or is of a kind that ordinarily involves, the use of sophisticated methods and techniques; and (c) that is committed, or is of a kind that is ordinarily committed, in conjunction with other offences or a like kind; and (d) that is a serious offence within the Proceeds of Crime Act 2002, an offence of a kind prescribed by the regulations or an offence that involves any of the following: i. theft; ii. fraud; iii. tax evasion; iv. money laundering; v. currency violations; vi. illegal drug dealings; vii. illegal gambling; viii. obtaining financial benefit by vice engaged in others; ix. extortion; x. violence; xi. bribery or corruption of, or by, an officer of the Commonwealth, an officer of a State or an officer of a Territory; xii. perverting the course of justice; xiii. bankruptcy and company violations; xiv. harbouring of criminals; xv. forging of passports; xvi. firearms; xvii. armament dealings; commission of an offence by another person is taken to have committed that offence, that it is an offence to incite another person to commit an offence and provides for the separate offence of conspiracy. 279 The Measures to Combat Serious and Organised Crime Act 2001 expanded the controlled operations provisions in the Crimes Act 1914 by exempting law enforcement officers who commit narcotic drug offences from liability if the offences are committed in the course of obtaining evidence. It also introduced a new scheme for the conduct of controlled operations and established a framework to govern the use of assumed identities by Commonwealth law enforcement and intelligence officers.
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xviii. illegal importation or exportation of fauna into or out of Australia; xix. cybercrime
Moreover, section 4(2) of the Act provides that:
If the head of an ACC operation/investigation suspects that an offence (the incidental offence) that is not a serious and organised crime may be directly or indirectly connected with, or may be a part of, a course of activity involving the commission of a serious and organised crime (whether or not the head has identified the nature of that serious and organised crime), then the incidental offence is, for so long as the head so suspects, taken, for the purposes of this Act, to be a serious and organised crime.
3.4.3.2. Proceed of Crime Laws
The Proceeds of Crime Act 2002 established a civil forfeiture system. That regime provides that criminal convictions are not necessary for illegally acquired property to be seized, and a court must only be persuaded that the property was obtained illegally on the balance of probabilities. This renders it easier for organised criminal groups to be dispossessed of the proceeds of their crimes.
3.4.4. States level
3.4.4.1. South Australia
Through the Criminal Assets Confiscation Act 2005 (SA), the State of South Australia has proceeds of crime legislation that, like the Commonwealth laws permit for the confiscation of assets demonstrated on the balance of probabilities to have been obtained through criminal activity.280
The Serious and Organised Crime (Control) Act 2008 (SA) has been described by South Australia Premier Mike Rann as ‘the world’s toughest anti-bikie laws’. The Act was especially created to strike the organised crime activities of OMGs of whom Premier Rann said:
We know that they are involved in numerous and continuous criminal activities from the organised theft and re-identification of motor vehicles and motor-cycles through to drug
280 Parliament Joint Committee on the Australian Crime Commission, above n 38, 48. 73
manufacture, importation and distribution, murder, vice, fraud, blackmail, assaults, public disorder and intimidation, firearms offences and money laundering.
The new laws are aimed at trapping these thugs at every turn. We don't just want to try to run them out of town and turn them into someone else's problem. We want to lock them up - but we also want to break them up.281
This Act has established a legislative framework282 under which a group can be recognized as ‘organised crime group’. This in turns allows several orders to be pronounced to restrict the associations and movement of members of such a group’s.283
281 M. Rann, 'New Laws to Dismantle Criminal Bikie Gangs' (2007) Media Release. 282 In the 2008 package of legislative amendments, South Australia also enacted the Firearms (Firearms Prohibition Orders) Amendment Act 2008 (SA) which amended the Firearms Act 1977 (SA). The amendments provide that people with a history of violence or serious criminal behaviour and their associates may be made subject to a firearms prohibition order which allows police to stop and search those individuals on sight, and their place of residence to be inspected for firearms at any reasonable time. 283 The SA Premier cited the following as highlights of the Act: gang members who engage in acts of violence that threaten and intimidate the public will be guilty of serious offences and will find it harder to get bail; police will be able to prohibit members of a bikie gang from attending a place, event or area where this would pose a serious threat to the public; the old law of consorting will be replaced with a new law of criminal association that prohibits telephone calls as well as meetings in the flesh; stalking a person with the intention of intimidating a victim, witness, court official, police officer or public servant will become a serious offence; it will be easier for police to secure orders to dismantle fortifications protecting gang clubrooms; and in addition, the legislation created new offences of violent disorder (maximum penalty of 2 years jail); riot (7 years, 10 years where aggravated); affray (3 years, 5 years where aggravated) and stalking of public officials by OMCG members (7 years)
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3.4.4.2. New South Wales
In 2006, New South Wales was ‘the first Australian jurisdiction to legislate specific offences against criminal organisations’284 through the adoption of the Crimes Legislation Amendment (Gangs) Act 2006 (NSW)285. Furthermore, in response to the increase of organized crime in Sydney the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) was passed.
The purpose of the gang legislation was to target a broad range of criminal organisations reflecting the diversity of gangs engaged in organized crime in New South Wales.
In recent years there have also emerged significant crime gangs based on common ethnicity. They include Vietnamese and Chinese gangs with a strong involvement in the drug trade, Pacific Islander groups who are specialised in armed robberies, and criminals of Middle Eastern origin who engage in firearms crime, drug trafficking and car rebirthing *…+ Many gangs have nothing to do with ethnicity. They are formed rather on the basis of common interest, for example motorbikes, geographical proximity, or, sadly, contacts made in the prison system.286
In 2009, to counter the increasing violence287 between outlaw motorcycle gangs (OMCGs)288, the New South Wales parliament passed the Crimes (Criminal Organisations) Control Act 2009 (NSW) which seeks to prevent gang members from utilizing the gang structure to support them in committing crimes. Through the process introduced by this legislation an organization can be declared ‘criminal organization’ by a judge.289
284 A. Schloenhardt, ‘Mafias and Motorbikes: New Organised Crime Offences in Australia’ (2008) 19 Current Issues in Crime and Justice 259. 285 That Act has amended the Crimes Act 1900 (NSW). The provisions make it an offence to participate in a criminal group, defined as three or more people who have as their objectives either to obtain material benefits from serious indictable offences or to commit serious violent offences. 286 Parliament Joint Committee on the Australian Crime commission, above n 38, 42. 287 In March 2009, Anthony Zervas was bludgeoned to death in a brawl at Sydney airport between members of the Comanchero and Hells Angels motorcycle clubs. Following the incident, on 2 April 2009, then NSW Premier Rees introduced the Crimes (Criminal Organisations Control) Bill 2009, which commenced on assent on 3 April 2009. The legislation is based substantially on the SA legislation and provides power for seeking to declare OMCGs as criminal organisations. 288 See appendix 15 for a comprehensive list of the legislative provisions on OMGs. 289 Parliament Joint Committee on the Australian Crime commission, above n 38, 43. 75
In addition, the Parliament has adopted the Criminal Assets Recovery Act 1990 (NSW) as well as legislation allowing the use by law enforcement agents of telecommunication interception, search warrant,290 assumed identities and witness identity protection291, surveillance devices292 and controlled operation.293
3.4.4.3. Queensland
The parliament of Queensland has passed the Criminal Organisation Act 2009.294 When introducing the Bill, to the Premier, Anna Blight and Attorney-General, Cameron Dick declared:
The government had taken the time to ensure the Bill represented the most robust legislation in the country, striking the proper balance between the rights of individuals and the safety of the community.295
The enactment of the Crime and Misconduct Act 2001 (Qld) has created the Crime and Misconduct Commission (CMC). This commission is responsible for investigating serious crimes such as organised crime and for dealing with integrity issues and misconduct within the public sector. The CMC is entitled to use and authorise the use of search and seize, assumed identities, conduct controlled operations and surveillance devices.296
290 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). 291 Law Enforcement and National Security (Assumed Identities) Act 1998 (NSW). 292 Surveillance Devices Act 2007 (NSW). 293 Law Enforcement (Controlled Operations) Act 1997 (NSW). 294 That legislation targets notably the OMGs. The key provisions are: enable the Police Commissioner to make an application to the Supreme Court to declare an organisation a criminal organisation; provide that the Supreme Court can make such a declaration where it is satisfied members of the organisation meet for the purpose of engaging in, or conspiring to engage in, serious criminal activity and the organisation is an unacceptable risk to the safety, order or welfare of the community; empower the Police Commissioner to make further applications to the Supreme Court in respect of a declared organisation that control orders be made against individual members of a criminal organisation; provide for public safety and fortification removal orders to be made; and create a new offence of contravening a control order, which carries a maximum penalty of three years' jail for the first offence and five years' jail for subsequent offences. 295 Australian Institute of Criminology, The Status of Laws on Outlaw Motorcycle Gangs in Australia (2010) 6 Australian Government
The schedule 2297 of the Crime and Misconduct Act 2001 (Qld), defines ‘organised crime’ as a criminal activity that involves:
(a) Indictable offences punishable on conviction by a term of imprisonment not less than 7 years; and (b) 2 or more persons; and (c) Substantial planning and organisation or systematic and continuing activity; and (d) A purpose to obtain profit, gain, power or influence.
In addition, the state of Queensland, through the adoption of the Criminal Proceeds Confiscation Act 2002 (Qld), has adopted proceeds of crime legislation.
3.4.4.4. Victoria
Through the adoption of the Confiscation Act 1997 (Vic), the Parliament of Victoria has proceeds of crime legislation.
The six years period between 1999 and 2005 was marked by a remarkable increase in organised crime activity in the state of Victoria.298 In response to that phenomenon, the Victorian Parliament passed a legislative framework designed to assist in the investigation of police corruption and organised crime, the axial element of which is the Major Crime (Investigative Powers) Act 2004 (Vic).299
An 'organised crime offence' is defined as an indictable offence against Victorian law that is punishable by 10 years imprisonment or more, and that: involves two or more offenders, and involves substantial planning and organisation, and forms part of systemic and continuing criminal activity, and has a purpose of obtaining profit, gain, power or influence.
Various other Acts interact with the Major Crime (Investigative Powers) Act 2004 (Vic) to form part of the package of legislation in Victoria to tackle organised crime. The Crimes
297 Entitled ‘dictionary’. 298 Including extreme violence between feuding organised drug criminals and approximately 27 'gangland' murders. 299 Parliament Joint Committee on the Australian Crime Commission, above n 38, 44. 77
(Assumed Identities) Act 2004 (Vic) formalised police practices of creating 'sting' operations using undercover officers. Similarly the Crimes (Controlled Operations) Act 2004 (Vic) makes the once unregulated police practices of undercover operations more transparent. Additionally, Victoria has legislation allowing the use of telecommunications interception and surveillance devices.300
3.4.4.5. Western Australia
In 2000, in adopting the Criminal Property Confiscation Act 2000 (WA), Western Australia was the first state to introduce unexplained wealth laws.301
The Corruption and Crime Commission Act 2003 (WA) established the WA Corruption and Crime Commission (CCC) to fight organised crime by allowing and supervising the use by the WA Police of exceptional powers in organised crime investigations such as telephone interception and surveillance powers, the ability to use and authorise the use of assumed identities, coercive powers, and running controlled operations.302
3.4.4.6. Tasmania
As noticed in 2004, by the Australian Crime Commission, Tasmania is the only state or territory without the presence of any ‘high treat organised crime groups’. 303
Tasmanian criminal law does not enclose any offences for connection with, or membership of, organised criminal groups. Nevertheless, various legislative amendments304 have been realised recently to address particular issues related to organised crime groups and none of the provisions have yet been used.305
300 Ibid 45. 301 Ibid 46. 302 Corruption and Crime Commission Act, 2003 (WA), section 46. 303 J. Sylvester and I. Munro, Organised Crime Groups 'Thriving' (2004) The Age
3.4.4.7. Australian Capital Territory
The Crimes Act 1900 (ACT), Confiscation of Criminal Assets Act 2003 (ACT) and Crimes (Controlled Operations) Act 2008 (ACT) manage the search warrants, the confiscation of proceeds of crime, and the use of controlled operations respectively. Concerning telecommunications interception and surveillance device, the Commonwealth legislation applies in the Australian Capital Territory.306
The ACT does not have any legislation permitting the utilisation of assumed identities, or permitting law enforcement to exercise coercive powers.307
3.4.4.8. Northern Territory
In 2003, unexplained wealth laws based on the West Australia legislation were introduced in the Criminal Property Forfeiture Act 2002 (NT).308
The Justice Legislation Amendment (Group Criminal Activities) Act 2006 (NT) has amended the Sentencing Act 1995 (NT) to grant courts the power to make 'non-association orders' and 'place restriction orders'. In addition, The Justice Legislation Amendment (Group Criminal Activities) Act 2006 (NT) has also introduced a consorting offence into the Summary Offences Act 64 and created a new offence of being part of a group involved in a violent act that creates fear.309
Northern Territory Police have the power to use surveillance devices,310 intercept telecommunications, conduct controlled operations and obtain search warrants.311
306 Parliament Joint Committee on the Australian Crime Commission, above n 38, 50. 307 Except the ACC when operating in the ACT. 308 The legislation essentially reverses the onus of proof in criminal assets confiscation matters, requiring an individual to prove that their assets were obtained legally. 309 Parliament Joint Committee on the Australian Crime Commission, above n 38, 50. 310 Surveillance Devices Act 2007 (NT). 311 Police Administration Act (NT). 79
3.4.4.9. Reactions to ‘Anti-Bikie Laws’
3.4.4.9.1. Totani’s Case On May 2009, the Finks Motorcycle Club was the first group to be declared as an organised crime operation under the Serious and Organised Crime (Control) Act 2008 (SA), and control orders were made against a number of its members.312
However, the orders were challenged before the Supreme Court of South Australia and as a result have been deactivated. Thus, On September 2009, the Supreme Court rendered its decision in Totani and Another v The State of South Australia [2009] SASC 301. A majority of the Court pronounced ‘section 14(1), which provides that the Court must make a control order against a person if the court is satisfied that the person is a member of a declared organisation, to be invalid’.313 Bleby and Kelly JJ also considered that a control order placed on Finks Motorcycle Club member Donald Hudson in May was 'void and of no effect'. 314
This ruling was described as a 'minor setback' and a 'temporary win for organised crime' by the SA Attorney-General, Michael Atkinson. He also said that Rann Government was ‘in control and we will amend the legislation as necessary to continue the war’.315 Then, in October 2009, the South Australia Government had sought special leave to appeal in the High Court the Full Court's decision. In February 2010, the High Court granted special leave to appeal to the SA Government against the decision.316
The constitutional battle is currently317 underway in the High Court.318 Apart from Tasmania and the Australian Capital Territory, all states are supporting South Australia in the High
312 See Appendix 15. 313 Australian Institute of Criminology, above n 295, 4. 314 A. Dowdell, South Australia's Laws to Control Outlaw Bikie Gangs Ruled Invalid by the Supreme Court (2009) Heraldsun < http://www.heraldsun.com.au/news/south-australias-laws-to-control-outlaw-bikie-gangs-ruled- invalid-by-the-supreme-court/story-e6frf7jo-1225779485393> at 12 July 2010. 315 G. Lower, Taxpayers to Foot Legal Bills for Bikies (2009) The Australian
Court, with their own legislation under severe threat if Totani wins. Consequently, The High Court's verdict seems set to be a cause celebre.319
3.4.4.9.2. Campaign against ‘Anti-Bikie Laws’ Interestingly, Ferret, a Finks sergeant -at-arms, has taken to the radio, the National Press Club and even to the Sydney Law School to argue that ‘ “anti-bikie” laws introduced in South Australia, New South Wales and Queensland represent a grave and dangerous attack on the public’s civil rights.’320 He is arguing that the NSW legislation ‘does not even contain the words biker or motorcycle club’ and ‘strips away fundamental legal rights such as freedom of association, the presumption of innocence, open court hearing and the right of appeal. Moreover, it can be used against any group of individuals’ before concluding that ‘It is an issue about human rights’.321
NSW Premier, Nathan Rees assured that legal safeguards would ensure the legislation is ‘specific to outlaw motorcycle gangs’.322 But one has to admit that there are no such safeguards and therefore a judge can target any organisation he deems criminal.
Another biker’s initiative was revealed on the 23 of July 2010 by The Australian; a senior Hells Angels member is appealing to the High Court of Australia to have the Crimes (Criminal Organisations) Control Act 2009 declared invalid.323 However, details of the application have not yet been made public. According to Mr Hirst, a spokesman for the United Motorcycle Council of NSW, ‘The basis of the writ is that the Act undermines the integrity of the Supreme Court and is beyond the power of the legislation in NSW’.324
318 State of South Australia v Totani & Anor. 319 S. Neighbour, When Justice is not Seen to be Done (2010) The Australian
4. ANALYSIS OF THE TRENDS AND FUTURE PERSPECTIVES IN ORGANISED CRIME
4.1. Globalisation’s Influence on Organised Crime
Globalisation has been a crucial factor in the evolution of organised crime. Some economic situations appear to favour the quick expansion of organised crime, indeed; the global political event that include the fall of the Berlin Wall and the collapse of the former Soviet Union still resonate in the criminal world. Thus, the end of the Cold War, the reduction in the quantity and severity of civil wars as well as the progress of globalisation have all impacted organised crime in unpredicted manners.325
The process of globalisation has outpaced the expansion of mechanisms for global governance, and this deficit has created the sort of regulation vacuum in which transnational organised crime can flourish. Goods and People can move more swiftly than ever before, and contraband and criminals can only be prohibited by national governments. Commercial and human streams are extremely intense, so it is almost impossible to differentiate the illicit from the licit. Furthermore, the open seas, that represent three quarters of the earth’s surface, remain ultimately ungoverned.326The enhanced movement of everything is clearly one of the key factors that influence the development of organised crime threats.
Over the last 30 years, the number of air passenger has increased at approximately 5% per year. This was facilitated by airline deregulation and by the introduction, in the 1970s, of large body jumbo jets.327 Around 30 million flights were flown in 2007, transporting more than 2.2 billion passengers between 3750 airports across the world.328
Regarding the movement of people, air transport prevails while most of the transport of goods is made by sea. More than 90 percent of the worldwide trade is moved by sea, and
325 UNODC, above n 201, 7. 326 W. Langewiesche, The Outlaw Sea: A World of Freedom, Chaos, and Crime (2004). 327 P.P. Belobaba and A. Odoni, ‘Introduction and Overview’ in P. Belobaba, C. Barnhart and A. Odoni (ed), The Global Airline Industry, (2009). 328 International Air Transport Association, ‘Fact Sheet: World Industry Statistics’ (2009). 82 these streams are quickly expanding: in 2007, 828 million tons of goods were transported worldwide for only 332 million tons in 1996. Moreover, the number of cargo moving throughout the top seven Chinese329 ports has tripled between 2002 and 2007, which renders the adequate control of each cargo almost impossible.330
Another factor that can benefit organised crime is the even more rapid development of global communication. For example the number of cellular phones subscribers331 has grown from 200 million in 1997 to 5 billion in 2010.332 In addition, in 1991, the Internet had a mere 10 websites but in 2010, the number of sites is close to 240 million.333 Consequently it is impossible to control these information streams.
Consequently, it appears that advances in transportation and communication technology have caused the development of organised crime to be the 21st century law enforcement nightmare. Nevertheless, it seems that the majority of the world’s states are struggling to keep up their legislation because they have not kept pace with progress in the world of crime.334
329 TEUs though Shanghai, Shenzhen, Qingdao, Ningbo, Guangzhou, Tianjin and Xiamen ports increased from 27,844 in 2002 to 86,990 in 2007, according to the AAPA’s (Alliance of the Ports of Canada, Carribean, Latin America and the United States) World Port Rankings. 330 See Appendix 16.2. 331 See Appendix 16.3. 332 International Telecommunication Union, ITU sees 5 Billion Mobile Subscriptions Globally in 2010 (2010)
4.2. Nature of the Groups Involved in Organised Crime: Moving towards Loose Networks rather than Pyramidal Monoliths
First, it is important to determine the meaning of the ‘hierarchical structures’ and ‘loose networks’. The term ‘Hierarchical structures’ may refer to the type of groups that comes out of low-governance regions around the world, that have an institutional identity of their own and typically involved in a broad range of criminal activities in the areas they control. The ‘loose networks’ seems to refer to the changeable commercial ties between sellers and buyers of smuggled goods in illicit markets all over the world.335
One common concept is that networks are an adaptive reply to law enforcement pressure. Therefore; the term can be considered as the ‘next generation’ in organised crime. As traditional groups are destabilized by repeated seizures and arrests, market gaps are rapidly filled by low-profile, agile groups. It is interesting to notice that this alleged evolution in organised crime could be similar to the development of ‘cell structure’ in terrorism.336
There is a general consensus that transnational organised crime involves both highly structured and loosely structured organisations. The view of the Professor Fijnaut, expert on organised crime field, is that in some states, for instance, Italy, Mexico, Russia, and Eastern Europe highly structured organisations still prevail337. Thus, in these regions, illegal activities seem to be monopolised by a limited number of key criminal groups.338
In the majority of other regions of the world, the organised crime scene ‘seems to be in a state of flux’. Most particularly in Columbia, the notoriously influential Cali and Medellin cartels have long since lost power and superseded by numerous more flexible, smaller and more sophisticated cocaine trafficking organisations. Nigerian organised crime is an
335 UNODC, above n 201, 5. 336 UNODC, above n 201, 6. 337 L. Paoli and C. Fijnaut, above n 23. 338 T. Bezlov, Crime trends in Bulgaria: Police statistics and victimization surveys (2005) Sofia: Center for the Study of Democracy. 84 extremely improvised and has consequently even been characterised as ‘disorganized organized crime’.339 In addition, smuggling of persons in mainland China appears also to be under the control of small to medium-sized, locally active factions that do not fit the traditional notion of the highly organised ‘Triad’.340
Nevertheless, the view of a various authorities is that loosely structured organisations are becoming prevalent.
For instance, in 2001, the European Commission stated: ‘traditional hierarchical structures are being replaced by loose networks of criminals’.341
In 2004, a United Nations High-Level Panel claimed: ‘Organized crime is increasingly operating through fluid networks rather than more formal hierarchies. This form of organization provides criminals with diversity, flexibility, low visibility, and longevity’.342
In its 2006 Organized Crime Threat Assessment, Europol noted: ‘OC groups are also becoming increasingly heterogeneous and dynamically organised in structural terms, moving towards loose networks rather than pyramidal monoliths’.343
In 2008, the US Department of Justice’s Strategy to Combat International Organized Crime stated: International organized criminals have evolved toward loose network structures and away from traditional hierarchical structures.344
339 M. Shaw, ‘West African Criminal Networks in South and Southern Africa’ (2002) 101 African Affaires 308. 340 S. Zang and K.L. Chin, ‘Chinese Human Smuggling in the United States of America’ in UNODC, Forum on Crime and society (2001) 53. 341 Commission of the European Communities, Towards a European strategy for preventing organised crime: Joint report from Commission Services and Europol (2001) 8. 342 UN, A more Secure World: Our Shared Responsibility- Report of the High-Level Panel on Threats, Challenges and Change (2004) 2. 343 Europol, Organized Crime Threat Assessment 2006 (2006) 7. 344 US Department of Justice, Overview of the Law Enforcement Strategy to Combat International Organized Crime (2008) 10
The division of organised crime seems to be a global trend. Often temporary and loose associations or alliances may be shaped around particular criminal ‘projects’, all responding to a shared purpose of making money. Today, organised criminal groups look like entrepreneurs’ network capable to mix together legitimate business and illegality. These loose networks are running their activities through many countries; either where authorities may have inadequate capacities and/or political commitment to fight global crime or where criminal opportunities exist.345
Roberto Saviano, in his ‘personal journey into the …Naples’ organized crime system’, argues, ‘The flexibility of today’s economy has permitted small groups of manager bosses operating in hundreds of enterprises in well- defined sectors to control the social and financial arenas. There is now a horizontal structure – much more flexible than the Cosa Nostra, and much more permeable to new alliances than the Calabrian ‘Ndrangheta – that … adopts new strategies in entering cutting-edge markets… Camorra groups no longer need to maintain widespread military-type control … because their principal business activities now take place outside Naples… The clans no longer need to organize in large bodies.’ R. Saviano, Gomorrah (2007) 44. 345 J. van Dijk, above n 192, 148. 86
4.3. Prevalence of the Illicit Market
According to the 2009 UNODC World Drug Report:
Today, organized crime seems to be less a matter of a group of individuals who are involved in a range of illicit activities, and more a matter of a group of illicit activities in which some individuals and groups are presently involved. If these individuals are arrested and incarcerated, the activities continue, because the illicit markets, and the incentives it generates, remain.
It seems clear that if the dynamics of the market stay unaddressed, tactics aimed at the groups will not end the illicit activities. It appears that law enforcement agencies have had difficulties making the leap from focusing on groups to focusing on markets.
The mission of prosecutors, investigators and officers is to make cases against individuals and groups of individuals in a specific jurisdiction. They do not have the tools and authority to fight an entire trafficking flow. Thus, rather than considering organised crime as a market with dynamism of its own, they have a propensity to conceptualise it as the activities of a collection of individual people.346
This focus on building cases has been a real obstacle to creating progress against criminal market because, in most states, the fight against organised crime has been perceived as
346 For example, the United States Department of Justice strategy to combat international organized crime identifies four priority areas of action: - Marshall information and intelligence - Prioritize and target the most significant international - Organized crime threats -Attack from all angles -[Apply] Enterprise theory But in explaining the concept of threat assessment, it suggests: ‘Select and target for high-impact law enforcement action the international organized crime figures and organizations that pose the greatest threat to the United States …’ (emphasis added) And in discussing enterprise theory, it recommends, ‘Develop aggressive strategies for dismantling entire criminal organizations, especially their leadership …’ (emphasis added) In short, while the document emphasises a non-traditional approach, it remains focused on the pursuit of individuals and organizations, rather than the dismantling of markets. See: United States Department of Justice, ‘Overview of the law enforcement strategy to combat international organized crime’ (2008). 87 nearly exclusively a matter of law enforcement. The situation is even more complicated because the scope of the question is international while the tools are intrinsically national. Penal law is an affair of national legislation, which itself is the codification of long-standing cultural norms. In addition, the criminal justice system is a vital mechanism for the preservation of internal stability. As every breaches of criminal law symbolises a sort of governance failure, especially when committed by an organised group, this activity is frequently regarded as a matter of national security.347
To sum up, the question is sensitive, making difficult multilateral interventions and international information sharing. Furthermore, historically, crime has been largely a local problem, so there has been little enthusiasm to collaborate across borders.
347 UNODC, above n 202, 7. 88
4.4. UN Latest Lines of Enquiry in the Fight against Organised Crime
While arresting and imprisoning individual perpetrator is imperative for its common deterrent consequence, doing so is not enough to neutralize illicit trade. It seems clear that, as long as there is standing demand and areas where illicit goods can be trafficked and sourced, the market will adapt to any loss of personnel. Since the issue of transnational organised crime cannot be solved exclusively through seizures and arrests, it cannot be condense to a criminal justice matter. The solutions will necessitate a much wider range of tools than those presently in the hands of law enforcement officials.348
Efficient action against transnational organised crime will demand two parallel sets of measures. First, there is a need to strengthen international resistance to it by creating both the international and national ability to chase and counter the issue. This is comparable to reinforcing the immune system, and represents long-standing commune project. Second, there is a need to build global schemes to collectively address transnational organised crime issues that have become so critical that they necessitate special intervention.349 This is comparable to a reaction to a specific infection, and would require global strategic planning. In both cases the intervention must take place systemically, engaging the whole organism. Accordingly, as it is stated by the UNODC ‘both supply side and demand side measures must be coordinated, and the problem must be approached at a global level’.350
It is not easy to discourage the marginal and desperate people with the threat of imprisonment. Indeed, these are usually people that are more attracted by the instantaneous rewards of participation in organised crime that feared by the possibility of being arrested. In addition, street gang members, Coca and opium poppy farmers, straw purchasers, drug-addicted sex workers, trafficking victims turned traffickers, bush meat poachers, the illegal immigrants who sell counterfeit goods and the small manufacturers
348 UNODC, above n 202, 277. 349 For example, the global scale of transnational organised crime markets requires global strategies to fight these markets. 350 UNODC, above n 202, 277. 89 who make them: most of these people who render illicit market possible either do not realise that what they are doing is wrong, or they no longer care.351
However, there is another group that makes the illicit market possible, a group of people with something to lose if they are found to be manoeuvring outside the law: those who work on the licit side of these same markets.
The lack of transparency concerning the origin of some goods let honest buyers352 to buy illicit merchandise. Consequently, there is a larger demand than there would generally be for smuggled goods. When merchandises are sold openly, the ordinary buyers assume they can be purchased in good faith. In addition, professionals buying agents are could be under pressure to obtain the lowest price source available, and globalised commerce has made it unfeasible to individually monitor each seller. Thus, a way to substantially reduce the demand for contraband goods would be to regulate these markets globally, it would eradicate the good faith buyer pool. All providers of the licit market worldwide must be vigilantly screened to make sure nothing illicit gets passed off as licit goods.
For instance, trafficked minerals and timber penetrate the legal supply chain and are exploited by corporations that can allege unawareness as to the ultimate origin of these merchandises. The same companies that create the licensed goods often produce counterfeit medicines and goods that may be sold from retail outlets and legitimate wholesale. Similarly, the trade in unlawful ivory is only profitable because there is an analogous lawful supply, and ivory can be traded and used openly. Ivory would lose a large amount of its marketability if purchasing it were unambiguously a prohibited act, or if ownership of these goods had to be hidden. In some situations, consumers are duped; in others, there is willing blindness. If the sources of these goods were undoubtedly documented globally, they would not be confronted with this issue.
The same reasoning may be true of services. Whatsoever option a national government
351 Ibid 278. 352 Including commercial firms. 90 takes on the legality of alien workers or the sex trade, this choice must be enforced. The line between the licit and the illicit must be unambiguous and consistently enforced. No grey area must persist, because that is this grey area that hides the workings of transnational organised crime.353
A way to counter the amount of smuggling goods transported worldwide would be to expand accurate accounting of containerized shipping. Indeed, the largest part of global commercial flows proceeds by sea, but currently, transnational shipping is a confused matter, with international waters a mostly lawless zone.
Most global commercial flows proceed by sea, but at present, transnational shipping is a chaotic affair, with international waters a largely lawless zone. However, it is worthy to notice that progress has been made in ensuring the licensing and monitoring of bulk carriers.354
Besides these ways of fighting organised crime some other techniques have to be found to combat forms of organised crime such as identity theft and privacy, which are predatory rather than market-based. Seizures and arrest are not much more likely to limit these activities than they are to reduce smuggled goods markets. In this field, solutions will be probably more technological, aiming at rendering it more difficult to obtain money in these ways.355
In the end, each flow is unique, and the actions needed to address it cannot be set without specified evaluation of the particularities, but the potential for overcoming the illicit by regulating the licit could be investigated in each instance.
353 Ibid. 354 Ibid. 355 Ibid. 91
4.5. Relation between Organised Crime and Terrorism
Organised crime and terrorism are now key threats to our national and international security. The single most vital current threat is the possible use by international terrorists of nuclear weapons, possibly with the assistance of organised crime groups.356
Sometimes, definitions of organised crime and terrorism overlap. Specialists usually differentiate the groups by motive: criminals are motivated by pecuniary gain and terrorists are driven by political or religious goals.357 But it can be challenging to clearly discern group’s motives. Indeed, Terrorists are more and more supporting themselves via criminal activities.358 The funds used for the March 2003 Madrid strikes, for example, came from drug dealing. It appears that a number of crime bosses dabble in terror. For instance, Aftab Ansari, a Dubai based mobster is suspected to have help finance the September 11 attacks with money earned from kidnapping.359
Here follow some Illustrations of the links that exist between organised crime and terrorism are multiple.
1) Terrorists engage in organised crime activity to support themselves financially.
The combination of the illegitimate and legitimate characterise the financing of their operations. The profits of transnational crime groups or the resources of the terrorists are blended with legitimate money making it hard to identify where the criminal ends and the legitimate funds begins; for instance, Al Qaeda uses charities to transfer money. A part of the charities funds are directed towards social welfare activities in the community whereas a tithe or more is used to support terrorists.360
356 J. Dijk, above n 191, 148. 357 J. R. Wagley, Transnational Organized Crime: Principal Threats and U.S. Responses (2006) 6 Federation of American Scientists
2) Terrorists and organised crime groups frequently function on network structures and these structures occasionally intersect, indeed; terrorists have the opportunity to hide themselves among criminal organisations.
Unlike the mafia-type organisation, which uses a top down hierarchical structure; terrorist groups such as the Al Qaeda and new organised crime groups such as Russian-speaking groups function as networks. The advantages of the networks are multiple: it reduces the possibility of penetration, it gives organisational flexibility, it provides greater efficiency and it makes it more complicated to identify leaders.361
The terrorist networks such as Al Qaeda are transnational so they can connect people from the Middle East with those in the Far East.362 Terrorist networks are not allied with any specific state. In contrast, organised crime group members are often on the same nationality, though they create alliances with other crime groups to run their activities.363
3) Both terrorists and organised criminals corrupt local officials to attain their objectives. Indeed, they are dependent on local officials who can be corrupted.364
4) Terrorists and organised crime groups frequently use similar means to communicate, exploiting new technology.365
5) Both terrorists and organised crime groups manoeuvre in sectors with weak enforcement of laws, little governmental controls, and open borders.
6) Terrorists and organised crime groups launder their money, habitually using the same techniques and often the identical operators to move their funds.366
361 Ibid. 362 Likewise, the organised crime groups from the Russian Far East work with North and South Koreans, Japanese, Chinese and Vietnamese among others. 363P. Padhy, above n 360. 364 L.I. Shelley, The Nexus of Organized International Criminals and Terrorism (2002) 3
Policymakers and analysts are concerned about the probable nexus between organised crime and terrorism.367 The principal distinction authorities make between organized crime groups and terrorist groups is motivation. While money encourages organized crime, ideology motivates terrorism. Because of this essential difference, the US National Intelligence Council assumes that between 2010 and 2020:368
[T]he relationship between terrorists and organized criminals will remain primarily a matter of business, i.e., that terrorists will turn to criminals who can provide forged documents, smuggled weapons, or clandestine travel assistance when the terrorists cannot procure these goods and services on their own. Organized criminal groups, however, are unlikely to form long-term strategic alliances with terrorists. Organized crime is motivated by the desire to make money and tends to regard any activity beyond that required to effect profit as bad for business. For their part, terrorist leaders have concerns that tie to non-ideological partners will increase the chance of successful police penetration or that profits will seduce the faithful.369
366 P. Padhy, above n 360, 165; Money laundering is a central part of organised crime activity in the Pacific Rim as well as elsewhere in the world. The problems of investigating this activity are particularly severe because of the widespread use of underground banking systems in the region such as hawala in the communities of the Asian sub continent and the gold exchanges of the Chinese community. Russian organised crime in the region has developed enormous varieties in the ways that it launders money. The absence of regulation of it its banking system has provided fertile ground for money laundering. Furthermore, the absence of controls in Japan over the banking system and the collusion between the banks and organised crime have aggravated this problem. 367 As stressed by Michael Levi in the Oxford Handbook of Criminology: ‘There is much debate in the literature as to the strength of the organised crime-terrorism nexus, some arguing that differences in motives mean there is little relationship, while others focus on similarities in methods.’ 368 K.M. Finkley, above n 228. 369 US National Intelligence Council, Mapping the Global Structure: Report of the National Intelligence Council’s 2020 Project, Based on consultations with nongovernmental experts around the world (2004) 96.
94
4.6. Problems Encountered by Police Forces when Criminal Activity Crosses National Boundaries
4.6.1. Obstacles to Cooperation
For law enforcement officials, a number of complications arise when criminal activity crosses national boundaries. Obstacles to cooperation can be related to police corruption, geography, police structure and styles, police forces in transition, intelligence sharing and even language.
4.6.1.1. Police Corruption
Police corruption can take place at any level but when it happens at the top levels, it constitutes one of the greatest obstacles to transnational police cooperation. Thus, states will not be inclined to enter into cooperative projects with countries that have corrupted police forces. 370
4.6.1.2. Geographical
A lack of manpower usually plagued states with long borders interrupted by deserts, water source, or mountains. 371
4.6.1.3. Police Structure and Styles
Police forces’ structures are different around the world, as a consequence it could be complex for officials in one state to identify which department in another state is competent to share information or deal with a particular case. 372
Furthermore, due to the difference in law enforcement styles across states, some police forces utilise interrogation methods that infringe what other states would consider civil liberties, even if these protections might not be present in all countries.
370 P. Reichel, Handbook of Transnational Crime & Justice (2004) 241. 371Ibid. 372Ibid. 95
4.6.1.4. Police Forces in Transition
Over the last 25 years, a vast range of assistance has been necessitated to assist in the transformation of the Eastern Europe policing system. Thus, since the end of the Cold War a number of links have been developed between Eastern and Western Europe thanks to the removal of political barriers. When Russia and Eastern Europe were under the communist regimes, police forces were only serving the ruling elites and rigorously controlled police contracts in Western Europe. 373
4.6.1.5. Intelligence Sharing
Intelligence and information sharing are known as the ‘Achilles heel’ of the cooperation.374 The transfer of sensitive information is frequently limited due to political, ideological and national concerns.375
4.6.1.6. Language
Even in the richest nation on earth, a challenging barrier to communication can occur due to the use of different languages. For example, there were, prior the 9/11 terrorist attack, a crucial lack of Arabic speakers in the US intelligence and policing. Thus, incapacity to communicate can discourage or even obstruct the communication.376
373Ibid 242; These connections have included the recent bilateral UK/Russia Federation Memorandum of Understanding on Serious Crime. Other linkages have been multilateral and region specific, such as the connections between the Baltic States. However, prior to September 11, 2001, Interpol was virtually the only bond that offered the former communist nations access to European and worldwide contacts. Interpol has played an important role in promoting dialogue between the police systems and Western Europe. 374 P. Reichel, above n 370. 375 However, this is often overstated. 376 P. Reichel, above n 370. 96
4.7. Cyber Crime
Cybercrime is generally classified as such based on three elements: ‘computers as the instrument of crime; computers as the target of criminal activity; and computers as incidental to criminal activity.’377
Global networking of computers fosters the increase of various underworld industries. Thus, gambling rackets have adapted well to the Internet. In 2006, an investigation revealed connections between the Bonanno Crime family of New York and an Internet sports gambling empire based in Costa Rica. This business, while making regular payments to the Bonanno family, has drawn approximately more than USD $1 billion a year from US bettors. In addition, organised criminal groups are suspected to be involved in the production and distribution of pornography.378
The storage of personal information on computers and the use of the Internet to conduct financial transactions have contributed to a boom of identity theft crime.379 Nigerian scams are well known in the industrialised world. Scammers send spam-like emails to various addresses asking for banking details mostly in Belgium, Switzerland, Australia, Germany, France, US, Italy and Japan. The modus operandi is always the same; the scammers send an email stating that a large sum of money will be paid to the recipients if they supply their account information.380 The Numbers of perpetrators is estimated to 250 000 with an annual expansion of 3%. Victims381 run into tens of millions with an estimated 650 000 victims in 2006. Total losses to victims of Nigerian emails have been estimated to USD $3 billion in 2006 alone.382
377 P. Grabosky, ‘The Internet, Technology, and Organized crime’ (2007) 2 Asian Journal of Criminology 147. 378 F. Shanty, above n 166, 234. 379 See Appendix 17. 380 See Appendix 18. 381 The know-how of Nigerian networks is quite impressive. Occasionally someone caught in the scam goes to Africa at the invitation of the network and is shown large sums of cash which is in fact fake money, just to induce him to pay more and more in ‘entry fees’. A number of years ago, certain individuals, among them two Swiss businessmen, made the trip to Lagos (Nigeria) in order to find out what was going on. They have since disappeared. 382 See www.ultrascan.nl 97
The networks are not all based in Nigeria. This criminal activity is also perpetrated from Ivory Coast, Senegal, Sierra Leone, Togo, Congo and Benin with a direct link to the Nigerian networks. In addition, the bogus proposals are now sent from other more ‘reputable’ locations such as England or South Africa.383
Organised crime groups are also involved in several other forms of cyber crimes, amongst which: electronic piracy, counterfeiting and forgery, communications in furtherance of criminal conspiracies, child pornography, fraud against electronic gaming technologies, intelligence and counterintelligence, money laundering, industrial espionage and cyber terrorism384.385
383 J. van Dijk, above n 191, 150. 384 Denning offers a precise definition of cyber terrorism: ‘unlawful attacks against computers, networks and the information stored therein when done to intimidate or coerce a government or its people in furtherance of political or social objectives’. 385 P. Grabosky, above n 377. 98
4.8. Money Laundering
4.8.1. Presentation of the Concept
Organised crime exists for profit. And the colossal earnings made from it have to be hidden and then distributed in such a manner that authorities are not aware or not capable to trace their sources and their owners. As stressed by Michael Levi: ‘Laundering in legal term is simply the concealment of proceed of crime but more analytically ought to be viewed as the cleansing of funds so that they can be used in a way indistinguishable from legitimate money.’386
Money-laundering is a dynamic three-stage process that requires:387
placement: it is the process of putting illicit funds into the financial system.
layering: it is the process of moving the money through the financial system in order to further conceal the connection between the money and the crime and,
integration: it is the final stage, in which the funds re-enter the legitimate economy;388 for example, building hotels, thus eliminating any traces of the tainted origins of the proceeds.389
The money is laundered through a variety of methods. Ideal business to hide financial gains are those that deal with a high cash flow and have products and/or services that can be manipulated or managed without difficulty. In 2005, Duyne and Levi showed that only a small number of convicted major criminals in the UK and the Netherlands have utilised very sophisticated laundering techniques. However, this should change as the financial investigation skills and resources of the authorities increase.390
386 M. Levi, ‘Organized Crime and Terrorism’ in M. Maguire, R. Morgan and R. Reiner (ed), The Oxford Handbook of criminology (2007) 771, 788. 387 See Appendix 19. 388 M. Levi and P. Reuter, ‘Money Laundering’ in M. Tonry (ed), The Oxford Handbook of Crime and Public Policy (2009) 356, 367. 389 A. Goldsmith, Crime across Borders in Crime and Justice: a Guide to Criminology (3rd ed, 2006) 232. 390 M. Levi, above n 386. 99
It has been estimated that money laundering represents 5% of the entire world’s gross domestic product.391
4.8.2. Ways to Launder Money
4.8.2.1. Bars and Clubs
Bar receipts are ideal to hide money, indeed; it can state that two bottles were sold when only one bottle were sold. With the extra bottle, the bar has the choice: it can be resold out of the bar or sent it out as a gift. Profits are bigger when the criminal organisation owns the bar and the company that supplies the bar with alcohol. In that case, the criminal organisation can produce false invoices for payments between the supply company and the bar to redirect the money. Furthermore, another way to channel the money is cover and admission charges to an establishment.392
4.8.2.2. Cash Businesses
The easiest businesses in which to launder money are enterprises were small individual sums of money are perceived but with a high cash flow.393 For example, dry cleaners; it is easy to declare that 10 shirts were cleaned when only five were cleaned and then funnel in dirty money for those five shirts.
4.8.2.3. Large Businesses
Casinos and brokerage firms are a particularly favourable ground since there are such huge amounts of money dealt with and shifted around, thus increasing the difficulty of keeping track of all financial transactions. The most efficient solution is to mix clean and dirty money.
4.8.2.4. Shell Companies
Because they do not conduct any business and do not have any assets, shell companies are perfect fronting companies for those who want to hide their financial gains or their identity.
391 About USD $1.5 trillion. 392 F. Shanty, above n 166, 279. 393 Ibid 280. 100
The ideal front is a consulting company, indeed; this kind of company has no product to keep records of other than giving advice and time. 394
4.8.2.5. Offshore Systems
In recent years, as government and agencies became more successful in their detection and tracking methods, criminal organisations had to develop more refined methods of hiding money.
Banks are playing a key role in the money laundering process. If a criminal organisation can exercise control or influence over the banks were they make their initial deposits, it considerably reduce the danger of being caught carrying out illegal transactions. However, if an organised crime group does not have any control or influence over a bank, the money will have to be moved through different entities until the trail is lost.
Generally, the first transaction is to offshore accounts such as Singapore or Cayman Island. Deposits are frequently made into multiple accounts. Once the money is in the first offshore bank, the country of original jurisdiction has no more authority. Then, transfers are made from Singapore, or wherever, to a Swiss bank, European or Panamanian bank accounts. Furthermore, deposits are often double backed between the different offshore banks, as a result; it creates an even more confusing web for the authorities to chase.
Another way to conceal the money is to purchase expensive items such as real estate and yachts or to infuse the money back into financial institutions of the original state, investing in legitimate businesses, bonds, stocks, and mutual funds. In addition, it is also possible to hide money by travelling and spending money in other countries. However, spending without attracting attention is not so easy because authorities will be curious how individuals who are, for example, running five dry cleaners are able to own luxury real estates, yachts, cars, jewellery and enjoy sumptuous vacations.395
394 Ibid. 395 Ibid 281. 101
In the future, the growth of electronic banking transactions is expected to facilitate money laundering. Indeed; it will allow anonymous and fast transfer of considerable amounts of money. Internet banking will be used more significantly to send money from jurisdiction to jurisdiction. Consequently, money laundering will progressively increase via online electronic banking, mobile-phone banking and prepaid cards. The high degree of difficulty to trace these transactions will enhance opportunities for organised crime. 396
4.8.3. The Global Financial Crisis: A Once-in-Generation-Opportunity
The global financial crisis constitutes a once-in-a-generation opportunity for organised crime groups. Indeed, while banks are afraid to lend their precious reserves and businesses are facing a dire need for cash, organised crime groups such as the Italian Mafia could make the most of their cash-based,397 debt free business model.398
As observed in 2009 by the Italian President Girgio Napolitano ‘there is a risk that Mafia organisations can profit from the current crisis by buying control of struggling businesses, infiltrating all regions of the country’. And according to Antonio Di Matteo, a fellow Mafia prosecutor, ‘the Mafia is ramping up its investing’ and ‘trying to invest now, while the time is right, so that they can launder their fortunes once and for all.’399
396 J. van Dijk, above n 191, 149. 397 In 2008, Italy’s three main organised-crime groups had combined net income of 70 billion euros, producing a 54% profit margin, according to Rome-based research institute Eurispes. Exxon Mobil Corp., the world’s biggest publicly traded oil company, had a profit of about half that at USD $45.2 billion. 398 J. Litle, A Raging Bull Market in Organized Crime (2009)
CONCLUSION
To the question of whether states are adequately equipped to face the global crime threat, the answer must be nuanced.
First of all, a proper and sound working definition of organised crime is much needed. Accordingly, it is not possible to respond effectively to the challenge of organised crime if it is not fully understood.
Since the late 1990s, and more particularly since the adoption of the first convention concerning the manner transnational organised crime should be addressed,400 Europe, US and Australia have shown a clear determination to tackle organised crime globally. However, one has to admit that there is almost no information on world crime and efforts to globally combat organised crime appear to have been disjointed. Thus, the implementation of UNTOC Convention and its three Protocols has been patchy and the systems to monitor compliance are therefore incomplete. As a result, crime has gone global while the potential of these legal tools has not been reached.
In the future, the organised crime wave that strikes the world is expected to continue to grow and there is no doubt that the current economic crisis will worsen the situation. Indeed, first; criminal groups that count on corruption and impunity are exploiting institutional weakness in fragile states. Secondly, tight household resources are calling for rising demand for cheap goods that are often counterfeited, pirated or produced by forced labour. Thirdly, the smuggling and trafficking in persons is encouraged by the return of migrants and the reduction of foreign remittances. Fourthly, an increasing number of hungry unemployed youth are susceptible to join criminal organisations. Fifthly, the Internet will also continue to create new opportunities for criminal organisations. So, it is likely that
400 UNTOC Convention. 103 organised crime groups are poised to exploit them. Finally, money laundering has never been practiced on such a large scale.401
Consequently, the evolving nature of organised crime menaces all facets of state security and international commerce from the subversion of international banking regulations to the smuggling of migrants, arms and nuclear weapons.
As stated by Michael Levi, ‘organised crime has become defined as a transnational threat requiring transnational actions’.402 Accordingly, there is a critical need for the states to cope with the growing global crime threat.
It is vital for nations to understand the key role that the harmonisation of their criminal law can play. First, it can suppress the contrasts between legal systems can eliminate obstacles to an efficient action against cross-border forms of criminality. Second, harmonisation can reduce inequalities of treatments. It can also play a decisive role of support to the functioning of judicial cooperation in criminal matters.403 Another key point to succeed in the fight against organised crime is the increasing of mutual assistance between states. Nations are often reluctant to undertake collaboration thinking that it would affect their sovereignty but in fact working together could be a proficient way to defend it.
Ten years after the adoption of the UNTC Convention, one has to admit that progress has been slow in dealing with organised crime. It is hoped that states will persevere in their efforts to combat this curse to cut its negative impact on communities and individuals all around the world.
401 A.M. Costa, above n 4. 402 M. Levi, above n 386, 779. 403 F. Calderoni, above n 44, 8. 104
APPENDIXES
105
Appendix 1: Global Transnational Organised Crime Threats
Source: United Nations Office on Drugs and Crime 106
Appendix 2: List of Definitions
Klaus von Lampe, assistant professor at John Jay College of Criminal Justice, has gathered more than 150 definitions of the notion of organised crime. To consult this collection visit http://www.organized-crime.de/OCDEF1.htm#black.
107
Appendix 3: The Structure of Organised Crime Groups
1. Mafia
108
Boss – The head of the family, usually reigning as a dictator, sometimes called the don or “godfather”. The Boss receives a cut of every operation taken on by every member of his family. Depending on the Family, the Boss may be chosen by a vote from the Caporegimes of the family. In the event of a tie, the Underboss must vote. In the past, all the members of a Family voted on the Boss, but by the late 1950s, any gathering such as that attracted too much attention.
Underboss – The Underboss, usually appointed by the Boss, is the second in command of the family. The Underboss is in charge of all of the Capos. The Underboss is usually first in line to become Acting Boss if the Boss is imprisoned or dies.
Consigliere – Consigliere is an advisor to the family. They are often low profile gangsters that can be trusted. They are used as a mediator of disputes or representatives or aids in meetings with other Families. They often keep the Family looking as legitimate as possible, and are, themselves, legitimate apart from some minor gambling or loan sharking. Often Consiglieres are lawyers or stock brokers, are trusted and have a close friendship or relationship with the Don. They usually do not have crew of their own, but still wield great power in the Family. They are also often the liaison between the Don and important ‘bought’ figures, such as politicians or Judges.
Caporegime (or Capo) – A Capo (sometimes called a Captain) is in charge of a crew. There are usually four to six crews in each family, possibly even seven to nine crews, each one consisting of up to ten Soldiers. Capos run their own small family, but must follow the limitations and guidelines created by the Boss, as well as pay him his cut of their profits. Capos are nominated by the Underboss, but typically chosen by the Boss himself.
Soldier – Soldiers are members of the family, and can only be of Italian background. Soldiers start as Associates that have proven themselves. When the books are open, meaning that there is an open spot in the family, a Capo (or several Capos) may recommend an up-and- coming Associate to be a new member. In the case that there is only one slot and multiple 109 recommendations, the Boss will decide. The new member usually becomes part of the Capo’s crew that recommended him.
Associate - An Associate is not a member of the mob, and an Associate’s role is more similar to that of an errand boy. They are usually a go-between or sometimes deal in drugs to keep the heat off the actual members. In other cases, an associate might be a corrupt labor union delegate or businessman. [19] Non-Italians will never go any further than this.
Source: Mafiatoday.com 110
2. Chinese Triads
111
The traditional triad structure consists of five tiers. The top two tiers consist of the leadership of the triad while the bottom tier, fifth, is more operational in nature. Each leader is assigned a number beginning with the number four which is the homonym for the words death or die in Chinese. In the fifth tier, the organisation section controls the subunits of the triads. These subunits, or fighting sections, operate at local level. Each fighting unit is headed by a leader or Red Pole. Other divisions of the fifth tier include General Affairs which handles day to day administrative affairs while Recruiting handles public affairs, propaganda, internal affairs, and recruitment. The Liaison section handle handles communications between headquarters and the subunits and the Education and Welfare section deals with schooling and burial for members and families.
Source: Mercyhurst College Institute for Intelligence Studies 112
3. Japanese Yakuza
113
Like the Mafia, the yakuza power structure is a pyramid with a patriarch on top and loyal underlings of various ranks below him. However, the yakuza system is more intricate. The guiding principle of the yakuza structure is the oyabun-kobun relationship. Oyabun literally means "father role"; kobun means "child role." When a man is accepted into the yakuza, he must accept this relationship. He must promise unquestioning loyalty and obedience to his boss. The oyabun, like any good father, is obliged to provide protection and good counsel to his children. However, as the old Japanese saying states, "If your boss says the passing crow is white, then you must agree." As the yakuza put it, a kobun must be willing to be a teppodama (bullet) for his oyabun.
The levels of management within the yakuza structure are much more complex than the Mafia's. Immediately under the kumicho (supreme boss) are the saiko komon (senior adviser) and the so-honbucho (headquarters chief). The wakagashira (number-two man) is a regional boss responsible for governing many gangs; he is assisted by the fuku-honbucho, who is responsible for several gangs of his own. A lesser regional boss is a shateigashira, and he commonly has a shateigashira-hosa to assist him. A typical yakuza family will also have dozens of shatei (younger brothers) and many wakashu (junior leaders).
Source: UNHCR 114
4. Outlaw Motorcycle Gangs
115
INTRODUCTION
Patch-wearing gangs have a formal hierarchy with a structure that is similar in most gangs. The positions of president, vice president, secretary, treasurer and sergeant at arms are known as ‘officers’.
A new officer is elected whenever an existing office-holder is unable to carry out his job properly, usually due to imprisonment or sikenss (motorcycle crashes etc.)
Most gangs hold regular meetings (which they call ‘church’) that all patchmembers must attend to discuss matters relating to the club. The majority of gangs are run as a democracy with every patchmember having one vote. Many gangs hold annual elections to select their officers while others vote on a specific position when it becomes vacant or when another member mounts a challenge.
Each chapter has its own set of officers. A ‘chapter’ is a group of gang members under the control of one president. Some gangs, such as the Black Power or Mongrel Mob, have numerous chapters throughout the country (often with more than one chapter in major cities) while others have only one or two nationally.
RANKS
PRESIDENT The prez is the leader of the chapter. He is the clubs figurehead and is usually the spokesman when dealing with the police or the media. The prez is the chairman at club meetings and represents the chapter at national meetings.
VICE PRESIDENT The vice president is second in charge and fills in when the president is away. The vice prez is often the heir apparent to the clubs leadership although this isn’t always the case. It’s his job to make sure that matters passed at club meetings are carried out satisfactorily.
116
SECRETARY The secretary is responsible for the clubs paperwork. He keeps minutes of meetings and records dates of significant events, such as anniversary dates (when prospects gain their patch). He corresponds with other gangs and it’s his job to keep members informed of upcoming events. The secretary is usually responsible for keeping records of club assets although the treasurer will do this in some gangs.
TREASURER The treasurer is the chapters’ money-man and he’s in charge of collecting club fees, run funds etc and paying the bills. The treasurer is responsible for collecting any debts owed to the gang and usually gets the job of checking out business opportunities prior to any decisions being made. The treasurer is usually the person who handles the proceeds of a gangs illegal activity. The positions of secretary and treasurer are often combined.
SERGEANT AT ARMS The sergeant at arms is basically the gangs ‘policeman’ although most would not like to be referred to in this way! He enforces club procedures and maintains order at club meetings. The sergeant is in charge of security at gang events and he is responsible for ‘back ups’ (attacks on rivals). The sergeant looks after the gangs’ firearms and other weapons.
The sergeant at arms is sometimes known as the ‘master of arms’, (although ‘sergeant at arms’ has become much more common). In some gangs, the sergeant wears a military style sergeant’s badge.
ROAD CAPTAIN Most motorcycle gangs have a position known as Road Captain. He is in charge of logistics during a club run. He plans the route and organises refuelling stops etc. The Road Captain rides at the front and leads the pack with the president. The position of Road Captain is usually a ‘non executive’ position.
117
PATCHMEMBERS Patchmembers are members of the club who have earned the right to wear the gangs colours, after a suitable period spent ‘prospecting’. They take part in the running of the club and attend the gangs weekly meeting (‘church’). They are commonly referred to as ‘members’ or, in some clubs, ‘patches’.
LIFE MEMBERS A few motorcycle gangs have life-membership which is awarded to long-standing patchmembers for their contribution to the club. Life-members have the right to take part in the running of the club, however, their attendance at meetings and club events isn’t compulsory. Life-members retain their patch even though they may no longer take an active part in the gang. Some life-members retire although they are still technically part of the gang until they die.
PROSPECTS A prospect is a ‘prospective’ member of the club who is yet to earn his patch. Prospects are expected to do what they are told and follow the orders of patchmembers. They must be prepared to engage in illegal activities to prove their loyalty to the gang. Prospects have no voting rights and do not attend meetings unless invited in.
HANGAROUNDS Some gangs have a stage before ‘prospect’ which is known as ‘hangaround’. The purpose of the hangaround stage is to become known by all members before being accepted as a prospect. The hangaround period can be up to six months.
EX-MEMBERS When gang members leave the gang it’s either on good terms or bad terms. Many ex- members who leave on good terms remain close associates of the gang.
FRIENDS OF THE CLUB ‘Friends of the Club’ are close supporters of a gang. They are often ‘regulars’ at the clubhouse and actively support the gang, attending functions and taking part in events. 118
ASSOCIATES An ‘associate’ of a gang is a (wide-ranging) law enforcement term for persons who are linked to a gang in some way. An associate can include persons who are connected through criminal activity, drugs, family or friends, motorbikes, vehicles, sport, legitimate business interests, social or other interests. source: www.gangscene.co.nz
119
Appendix 4: Italian Organised Crime Groups – Geographical Origins
120
Appendix 5: Australia’s most Active Bikers Gangs
1. Rebels
With 2000 members and an estimation of 70 chapters; it is the Australia’s largest OMG.
In 1997, the Rebels were linked to the shooting death of housewife Jane Thurgood Dove, who was chased and shot in front of her children at her home. The real target of the hit was another blonde woman in the same street.
1999 was an especially brutal year for the Rebels. Thus, three members were shot dead in an Adelaide ambush; former Rebel Sergeant-at-Arms Paul William Wheeler disappeared; and Rebel Paul Summers died in a machine-gun ambush while asleep at the Rebel’s clubhouse in Gosford, NSW.
In 2000, a Rebels nominee was charged with the murder of a couple in the ACT.
In 2001, convicted amphetamine dealer and Rebels associate Terry Falconer was abducted while on day-release from Silverwater prison and his dismembered remains were found in a river.
In 2009, two senior Rebels members were shot dead in Canberra, with a long-time Rebels member claiming shootings were a result from a bitter love triangle.
2. Hells Angels
Their number is estimated between 150 and 250, they are located in Sydney, Brisbane, Melboure, Adelaide and Darwin. Their motto is the following: ‘Three can keep and secret if two are dead’.
In 1998, Hells Angel David Newham was murdered in Sydney in a drive by shooting.
121
In 2006, five Hells Angels barged their way into a Kings Cross nightclub. After a bouncer questioned them, he copped a bullet, as did a woman waiting in line.
In 2007, Hudson fired six rounds of ammunition from a handgun at his model girlfriend Kaera Douglas and two bystanders who came to her aid. One bystander died at the scene.
In 2009, Angels member Peter Zervas was shot in the shoulder, chest, abdomen and foot. A police source has alleged that the shooting was orchestrated by the Comancheros.
In 2009, Hells Angels have put an AUD $100,000 contract on Comancheros president Mick Hawi after his alleged involvement in the Sydney airport brawl. In addition, Hells Angel leaders from the US have ordered their Australian club to restore the gang's tough reputation by shooting at any rival Comancheros member ‘on sight’.
3. Bandidos
Their number is estimated between 250 and 400 and their motto is ‘Fuck the world’ and ‘We are the people our parents warned us about’. There are 24 chapters spread in QLD, NSW, VIC and SA.
In 1995, Cairns bouncer Jason Tyler was allegedly lured from a nightclub to the Bandidos clubhouse and shot in the leg. A sock was stuffed down his throat and he was kicked to death.
In 1997, Bandidos Sergeant-at-Arms, Sasha Milenkovic and two fellow members were all shot dead by two Rebels in a nightclub.
- In 2000, drug runner and Bandidos associate Milad Sande, cousin of Danny Sande, the president of the Blacktown Bandidos chapter, was allegedly murdered on the orders of a senior Bandido.
122
In 2001, Kurri Kurri Bandidos president Rodney Partington was killed when a bomb blew up in his hands at a Gypsy Jokers404 Compound. Former Bandido Russell Oldham, the prime suspect in the point-blank shooting murder of Bandidos Sydney president Rodney Monk, put a gun to his head in knee-deep surf in Sydney’s Balmoral Beach.
4. Finks
The Finks M.C. Queensland chapter consists of about 25 members located on the Gold Coast. In New South Wales they are around 50 members with six separate chapters based in Blacktown, Coffs Harbour, Norther NSW, Riverina, Paramatta and Sydney.
Between 1967 and 2008, members of the organisation were convicted or found guilty of 162 offences of violence, including assault, malicious wounding, threaten to cause harm and robbery with violence. Of these 162 offences, 47 occurred after the offender attained membership of the organisation.
Between 1970 and 2008, members of the Finks were convicted or found guilty of 149 offences against public order, including disorderly behaviour, offensive language and behaviour, loitering, fighting and prohibited consumption of liquor. Of the 149 convictions or findings guilty, 44 occurred after the offender has attained membership of the Finks M.C.
In addition, members of the Finks have been suspected to be involved in numerous offences such as rape, murder, drug offence, shooting, blackmail, burglary, etc.
5. Comancheros
The Commancheros are between 80 and 100. There are three chapters in Sydney.
In 1983, the Comancheros called a meeting with the Loners motorcycle club to call a truce. Instead, the Loners were met by two carloads of Comancheros and beaten and forced to surrender their club emblems.
404 An OMG present in Australia. 123
In 1984, the Comancheros and Bandidos were involved in the Milperra massacre, a bloody shoot-out on Father’s Day which left seven people dead, including two Bandidos and a 14 year-old girl.
In 1999, the tortured body of Commanchero Peter Ledger was dumped at his estranged wife’s Sydney home. Comanchero ‘Sergeant-at-Arms’ Ian Raymond Clissold was jailed for manslaughter over Ledger’s death.
In March 2009, it was reported that the Comancheros were responsible for bashing the brother of a Hells Angels member to death with a metal bollard at Sydney airport. Four men have been charged over the brawl.
(Various Sources)
124
Appendix 6: Cocaine Flows
1. From the Andean Region to North America
125
Source: United Nations Office on Drugs and Crime 126
2. From the Andean Region to Europe
127
Source: United Nations Office on Drugs and Crime
128
Appendix 7: Results against Drug Traffic in Colombia
Source: Ministry of National Defence – Republic of Colombia
129
Appendix 8: Mexican Cartels
1. Cartel Territories and Drug Routes
Source: Strategic Forecast
130
2. Rise and Fall of Mexican Cartels
Source: Strategic Forecast 131
Appendix 9: MS 13 Activity Zone
The Los Angeles-born Street gang Mara Salvatrucha operates in 34 US states plus the District of Columbia and at least five other countries. States and countries with the largest concentrations (more than six cliques) of MS-13 are in yellow.
Source: US National Drug Intelligence Center
132
Appendix 10: Organised Crime in West Africa
1. West African Region
Source: United Nations Office on Drugs and Crime 133
2. Cocaine
Source: United Nations Office on Drugs and Crime
134
3. Oil
Source: United Nations Office on Drugs and Crime
135
4. Cigarettes
Source: United Nations Office on Drugs and Crime
136
5. Counterfeit
Source: United Nations Office on Drugs and Crime
137
6. Sexual Exploitation
Source: United Nations Office on Drugs and Crime
138
7. Arms and Ammunition
Source: United Nations Office on Drugs and Crime
139
8. Toxic Waste
Source: United Nations Office on Drugs and Crime 140
Appendix 11: Offences Established by the UNTOC Convention and
Protocols
The Convention will require States parties to create four new offences unless these already exist under their domestic law, in circumstances where the activities are linked in some way to transnational organized crime:
(a) Participating in the activities of an organised criminal group and organising, directing, aiding, abetting, facilitating or counseling serious crimes involving organized criminal groups (art. 5); (b) Certain activities relating to money-laundering (art. 6); (c) Activities relating to corruption (art. 8); (d) Obstruction of justice (art. 23). In addition, the Protocols require the establishment of offences dealing with their core subject matter and in some cases additional offences as well. Thus, for example, in addition to establishing the core offences of illicitly manufacturing and trafficking in firearms, their parts and components and ammunition, the Firearms Protocol also establishes an offence relating to the removal, alteration or defacement of firearm serial numbers in order to deter offenders from doing so to frustrate the Protocols requirements for record-keeping and the tracing of trafficked firearms. Similarly, the Migrants Protocol establishes offences relating to fraudulent travel or identity documents. Determining the exact scope of the offence of smuggling migrants proved complex. The intention of the Committee was to establish an offence that would include organized criminal offenders who smuggled migrants, but which would not criminalise mere migration or the actions taken by migrants in attempting to smuggle themselves. To accomplish this, the Protocol provides that migrants are not liable for Protocol offences for the mere fact of having been smuggled, but that nothing in the Protocol prevents States parties from establishing or maintaining non-Protocol offences relating to illegal entry or residence. The document offences also apply when committed for the purpose of smuggling migrants, which will generally not include cases where documents were prepared, possessed or used by the migrants themselves. Source: United Nations Office for Drug Control and Crime Prevention 141
Appendix 12: List of the Tools Developed by the EU to Fight
Organised Crime
GENERAL FRAMEWORK
The Stockholm Programme
The Hague Programme: 10 priorities for the next five years
European and international courts
Fight against organised crime: participation in a criminal organisation
Strategic concept on tackling organised crime
Organised crime: common framework for liaison officers
Mechanism for evaluating the application and implementation at national level of international acts and instruments in the fight against organised crime
Conclusion of the United Nations Convention against organised crime
Combating cross-border vehicle crime
Cooperation of individuals to combat organised crime
Fight against organised crime and terrorism: role of Eurojust and the European Judicial Network
European Police Office – Europol (from 1.1.2010)
Europol: European Police Office (until 31.12.2009)Archives
Protocol against the Smuggling of Migrants by Land, Air and Sea
European PNR
Specific programme: Preventing and combating crime (2007-2013)
Programme of exchanges, training and cooperation for persons responsible for action to combat organised crime (Falcone)Archives
CRIME PREVENTION
Comprehensive strategy for combating organised crime
Organised crime: strategy for the prevention and control of organised crime
Organised crime: crime prevention in the European Union
Crime prevention in the EU
European Crime Prevention Network (EUCPN) 142
HippocratesArchives ARMS TRAFFICKING
Firearms MONEY LAUNDERING
Money laundering: prevention of the use of the financial system
Money laundering: prevention through customs cooperation
FINANCIAL CRIME
Identification, tracing and confiscation of instrumentalities and the proceeds from crime
More cooperation between Member States in recovering assets
“Crime does not pay”
Corporate and financial malpractice
The prevention of and fight against organised crime in the financial sector
CYBERCRIME
Protecting Europe from large scale cyber-attacks and disruptions
Towards a general policy on the fight against cyber crime
Attacks against information systems
European Network and Information Security Agency (ENISA)
Fight against cybercrime
Combating child pornography on the Internet
Organised crime: contact points to combat high-tech crime
ENVIRONMENTAL PROTECTION
Protection of the environment through criminal law
Maritime safety: Ship-source pollution and criminal penalties
Source: www.europa.eu 143
Appendix 13: Organised Crime in Australia
144
Appendix 14: Commonwealth Agencies for Combating Serious and
Organised Crime and their Relevant Legislative Tools
145
146
Appendix 15: Current Legislative Provisions on Outlaw Motorcycle Gangs in Australia
South Australia
Statutes Amendment (Anti-Fortification) Act 2003 Statutes Amendment (Liquor, Gambling and Security Industries) Act 2005 Statutes Amendment (Liquor, Gambling and Security Industries) Act 2005 Statutes Amendment (Power to Bar) Act 2008 Serious and Organised Crime (Control) Act 2008
New South Wales
Crimes Legislation Amendment (Gangs) Act 2006 Crimes (Criminal Organisations Control) Act 2009
Western Australia
Corruption and Crime Commission Act 2003
Queensland
Criminal Proceeds Confiscation Act 2002 Police Powers and Responsibilities Act 2000
Victoria
Crimes (Assumed Identities) Act 2004 Crimes (Controlled Operations) Act 2004 Evidence (Witness Identity Protection) Act 2004 147
Major Crimes (Investigative Powers) Act 2004 Surveillance Devices (Amendment) Act 2004
Tasmania
Police Offences Amendment Act 2007
Northern Territory
Justice Legislation (Group Criminal Activities) Act 2006 Serious Crime Control Act 2009
Australian Capital Territory
Crimes (Controlled Operations) Act 2008 Crimes (Assumed Identities) Act 2009
Source: Australian Institute of Criminology 148
Appendix 16: Globalisation Figures
1. Growth in International Trade (1948-2008)
Source: World Trade Organisation 149
2. Number of Twenty-Foot Container Equivalent Units (TEU) Moved through Shanghai Port (2002-2007)
Source: United Nations Office on Drugs and Crime
150
3. Millions of Mobile Phones Subscribers (1997-2007)
151
4. Millions of Internet Users (1997-2007)
152
Appendix 17: Identity Theft
Source: United Nations Office on Drugs and Crime 153
Appendix 18: Nigerian Antifraud Scam - Examples of Scams
FROM THE OFFICE OF ANTIFRAUD COMMISSION OF NIGERIA DATE: 05/08/007 CALL US: +234-80-62-74-70-67
ATTENTION: SIR/MADAM THIS IS ANTIFRAUD COMMISSION OF NIGERIA AND WEST AFRICA HEADED BY MR AMINU BELLO OF ANTIFRAUD COMMISSION. THIS COMMISSION WAS CREATED BY THE PRESIDENT OF NIGERIA, UMAR YA ADUA TO FIGHT AGAINST CORRUPTION AND THE ACTIVITIES OF NIGERIAN FRAUDSTERS WHO HAVE PAINTED THE IMAGE OF NIGERIA BAD TO OTHER FOREIGN COUNTRIES.
SIR, YOUR NAME APPEARED IN THE LATEST FEDERAL GOVERNMENT RELEASED BULLETIN AND ALSO FROM OUR SECURITY MONITORING,WE HAVE DISCOVERED THAT YOU WERE DEFRAUDED BY NIGERIAN FRAUDSTERS WHO MADE YOU TO BELEIVE IN A TRANSACTION THAT WAS NOT IN EXISTENCE.
SIR, YOU ARE GOING TO HELP THIS COMMISSION TO GET THESE PEOPLE THAT DEFRAUDED YOU ARRESTED. SIR, YOU ARE TO DO THIS BY SENDING TO US THE NAME AND TELEPHONE NUMBERS OF THOSE THAT DEFRAUDED YOU SO THAT WE CAN EASILY GET THEM ARRESTED FOR PROSECUTION. WE HAVE SO MANY OF THEM LANGUISHING IN JAIL NOW BECAUSE OF THE CRIME THEY COMMITTED.
SIR, BECAUSE OF THIS, THE NIGERIAN GOVERNMENT HAS DECIDED TO COMPENSATE ALL FOREIGNERS THAT WERE DEFRAUDED BY NIGERIAN CON MEN WITH A TOTAL SUM OF $300,000,00.SIR,YOU STAND A GOOD CHANCE OF RECEIVING THREE HUNDRED THOUSAND US DOLLARS COMPENSATION FUND.
154
SIR, WE WANT TO EQUALLY INFORM YOU THAT THERE ARE SO MANY NIGERIAN FRAUDSTERS HERE IN NIGERIA AND OUTSIDE NIGERIA INCLUDING YOUR COUNTRY SIR YOU MUST BE VERY CAREFUL SO THAT THEY WILL NOT DECEIVE YOU AGAIN. SIR, YOU ARE TO HELP THIS HONOURABLE COMMISSION SO THAT WE CAN GET THESE CRIMINALS ARRESTED. SIR, I WILL ADVICE YOU TO SEND THE FOLLOWING INFORMATIONS TO US IMMEDIATELY SO THAT WE CAN COMMENCE OUR INVESTIGATIONS IMMEDIATELY.
1:YOUR FULL NAME AND ADDRESS.
2:YOUR BANKING INFORMATION.
3:YOUR PRIVATE TELEPHONE NUMBER FOR MORE DISCUSSION.
4:THE TOTAL AMOUNT YOU WERE DEFRAUDED.
5:THE NAMES AND PHONE NUMBERS OF THE FRAUDSTERS THAT DEFRUDED YOU.
SIR, UPON RECEIPT OF ALL THIS INFORMATIONS, WE SHALL COMMENCE OUR INVESTIGATIONS IMMEDIATELY AND WITH ADEQUATE SERIOUSNESS ON YOUR SIDE,WITHIN 7 WORKING DAYS,YOU WILL RECEIVE YOUR COMPENSATION FEE.
SIR, WE ARE LOOKING FORWARD TO RECEIVING YOUR IMMEDIATE RESPONSE SO THAT OUR INVESTIGATIONS CAN START OFF.
SINCERELY YOURS, AMINU BELLO
OFFICE OF ANTIFRAUD COMMISSION OF NIGERIA AND WEST AFRICA
Source: Identity Theft Resource Center
155
Appendix 19: The Money Laundering Cycle
Source: United Nations Office on Drugs and Crime
156
BIBLIOGRAPHY
1. Articles/Books/Reports/Speeches
AAP, Hells Angel to Go to High Court over NSW Police Bid to Outlaw Gang (2010) The Australian
Adelstein, J, ‘The Last Yakusa’, (2010) 27 World Policy Journal
Agron, E et al, Russian Mafia: Organized Crime, Outlaw, Contract Killing, Thief in Law, Identity Document Forgery (2009)
Arvantides, C and Butcher, J, Global Organized Crime, American University
Atkinson, J, ‘‘Racketeer Influenced and Corrupt Organizations,’ 18 U.S.C. && 1961-68: Broadest of the Federal Criminal Statutes’ (1978) 69 The Journal of Criminal Law & Criminology
Australian Crime Commission, Organised Crime (2009)
Australian Institute of Criminology, The Status of Laws on Outlaw Motorcycle Gangs in Australia (2010) 6 Australian Government
Bezlov, T, Crime Trends in Bulgaria: Police Statistics and Victimization Surveys (2005) Sofia: Center for the Study of Democracy
Backman, J, ‘The inflation of crime in Russia’ In Report of the Scandinavian Research Council for Criminology, Organised Crime & Prime Prevention – What Works? (1998)
Belobaba, P, Barnhart, C and Odoni, A, The Global Airline Industry (2009)
Berger, A N, Molyneux, P and Wilson, J, The Oxford Handbook of Banking (2010)
Bottom, B, Fighting Organised Crime: Triumph and Betrayal in a Lifelong Campaign (2009)
Calderoni, F, ‘A Definition that could not Work: the EU Framework Decision on the Fight against Organised Crime’ (2008) 16 European Journal of Crime, Criminal Law and Criminal Justice 265 157
Calderoni, F, Organized Crime Legislation in the European Union (2010)
Callinan, R, Outbreak of Biker Violence Leaves Australia on Edge (2009) TIME
Carrapico, H, ‘Speaking Organised Crime at EU Level…’ (2008) 7 Standing Group Organised Crime Newsletter
Chamberlin, H B, ‘Crime as a business in Chicago’ (1919) 6 Bulletin of the Chicago Crime Commission
Commission of the European Communities, Towards a European strategy for preventing organised crime: Joint report from Commission Services and Europol (2001)
Costa, A M,‘ The Global Crime Threat – We Must Stop it’ (Speech delivered at the 18th Session of the Commission on Crime Prevention and Criminal Justice, Vienna, 16 April 2009)
Daye, D D, A Law Enforcement Sourcebook of Asian Crime and Cultures: Tactics and Mindsets (1997)
Dowdell, A, South Australia's Laws to Control Outlaw Bikie Gangs Ruled Invalid by the Supreme Court (2009) Heraldsun < http://www.heraldsun.com.au/news/south-australias- laws-to-control-outlaw-bikie-gangs-ruled-invalid-by-the-supreme-court/story-e6frf7jo- 1225779485393> at 12 July 2010
Edwards, A and Gill, P, Transnational Organised Crime: Perspective on Global Security (2003)
European Council, ‘Fight against Organised Crime: Participation in a Criminal Organisation’ (2008)Europa.EU
Europol, Organized Crime Threat Assessment 2006 (2006)
Europol, ‘Project COLA: European Union Cocaine Situation Report 2007’ (2007)
FBI, Organiszed Crime
Feo, F, Coca and kidnappings: A War to Be Won (2007) Agenzia Informazioni e Sicurezza Interna
Moroney, M A, ‘anti-bikie laws’ (Speech delivered at the National Press Club, Canberra, 4 August 2009)
158
Fijnaut, C, ‘Over de Opzet, de Uitvoering en de Resultaten van het Onderzoek’ in F. Bovenkerk (ed), In De Georganiseerde Criminaliteit in Nederland (1996)
Finckenauer, J O, ‘Problems of definition: What is organized crime?’ (2005) 8 Trends in Organized Crime
Finklea, K M, Organized Crime in the United States (2010) 3 Federation of American Scientists
Goble, P, ‘Moscow’s Criminal Groups Playing by New and More Dangerous Rules’ (2009) New Criminologist
Goldsmith, Crime across Borders in Crime and Justice: a Guide to Criminology (3rd ed, 2006)
Gottschalk, P, Policing Organized Crime: Intelligence Strategy Implementation (2010)
Grabosky, P, ‘The Internet, Technology, and Organized crime’ (2007) 2 Asian Journal of Criminology
Grell, J E, The RICO Act
Guillatt, R, ‘Ferret’s Manifesto’ (2010) The Weekend Australian Magazine Hagan, F E, Introduction to Criminology: Theories Methods, and Criminal Behavior, (6th ed 2008)
Hagan, F E, ‘”Organised Crime” and ‘organised crime’: indeterminate problems of definition’ (2006) 9 Trends in Organized Crime
Hale, C et al, Criminology (2009)
Heriot, D, Attorney-General’s Department, Committee Hansard, (2008)
Hess, K M and Hess Orthmann, C, Criminal Investigation (9th ed, 2010)
Hill, P B E, The Japanese Mafia: Yakuza, Law, and the State (2006)
Hopton, D, Money Laundering: A concise Guide for All Business (2nd ed, 2009)
Hopwood, K, Organised Crime in Antiquity (1999)
International Air Transport Association, ‘Fact Sheet: World Industry Statistics’ (2009)
159
International Telecommunication Union, ITU sees 5 billion Mobile Subscriptions Globally in 2010 (2010)
Johnson, L K, The Oxford Handbook of National Security Intelligence (2009)
Kaplan, ‘Paying for Terror: How Jihadist Groups are Using Organized Crime Tactics — and Its Profits — to Finance Attacks on Targets around the Globe’ (2005) U.S. News and World Report
Kaplan, D E, and Dubro, A, Yakuza: Japan’s Criminal Underworld (2003)
Kitson, K, ACC, Committee Hansard (2008)
Lal, R, ‘Terrorists and Organized Crime Join Forces’ (2005) International Herald Tribune
Langewiesche, W, The Outlaw Sea: A World of Freedom, Chaos, and Crime (2004)
Levi, M, Fraud, Organization, Motivation, and Control (1999)
Levi, M, ‘Evaluating the 'New Policing': Attacking the Money Trail of Organized Crime’ (1997) The Australian and New Zealand Journal of Criminology
Levi, M, The Phantom Capitalists: The Organization and Control of Long-Firm Fraud (2008)
Levi, M, ‘Organized Crime and Terrorism’ in M. Maguire, R. Morgan and R. Reiner (ed), The Oxford Handbook of criminology (2007)
Levi, M and Osofsky, L, ‘Investigating, Seizing and Confiscating the Proceeds of Crime’ (1995) Police Research Group Paper 61, Home Office, London
Levi, M, and Reuter, P, ‘Money Laundering’ in M. Tonry (ed), The Oxford Handbook of Crime and Public Policy (2009)
Leviev-Sawyer, C, ’The Meaning of ‘organised crime’’ (2010) The Sofia Echo
Litle, J, A Raging Bull Market in Organized Crime (2009)
Lower, G, Taxpayers to Foot Legal Bills for Bikies (2009) The Australian
Lynch, A, Gibert & Tobin Centre of Public Law, Committee Hansard (2008)
Lyndon, B, Barriers to Corporate Fraud: How They Work, Why They Fail (2004) 41 Policy Archive
Mallory, S L, Understanding Organized Crime (2007)
McLean, D, Transnational organized crime: a commentary on the UN convention and its protocols (2007)
Militello, V and Huber, B, Towards a European criminal law against Organised Crime: Proposals and Summaries of the Joint European Project to Counter Organised Crime (2001)
Minus, J, Bikies Lodge High Court Challenge (2010) The Australian
Morgan, R and Reiner, R, The Oxford Handbook of criminology (2007)
Mukasey, M B, ‘Remarks on International Organized Crime’ (Speech delivered at the Center for Strategic and International Studies, 23 April 2008)
Neighbour, S, When Justice is not Seen to be Done (2010) The Australian
Obama, B, (Speech at the Opening of the Trans-Pacific Symposium, Honolulu, Hawaii, 9 November 2009)
Orlova, A V, and Moore, J W, ‘ “Umbrellas” or “Buildings blocks”?’ Defining International Terrorism and Transnational Organized Crime in International Law’ (2005) 27 Houston Journal of International Law
Padhy, P, Organized Crime (2006)
Paoli, L and Fijnaut, C, Organised Crime in Europe: Concepts, Patterns and Control Policies in the European Union and Beyond (2004)
Parliamentary Joint Committee on the Australian Crime Commission, Inquiry into the Legislative Arrangements to Outlaw Serious and Organised Crime Groups (2009)
Porteous, S, Organized Crime Impact Study: Highlights (1998)
161
Rann, M, 'New laws to Dismantle Criminal Bikie Gangs' (2007) Media Release
Reichel, Handbook of Transnational Crime & Justice (2004)
Renner, T C and Kirby, C, Mafia Enforced (1988)
Saliba, F, ‘Les Cartels de la Drogue Devastent le Mexique’ (2010) Le Monde: Bilan Geostrategique
Saviano, Gomorrah (2007)
Scherer, S and Silver, V, Mafia Cash Increases Grip on Sinking Italy Defying Berlusconi (2009)
Schloenhardt, A, ‘Mafias and motorbikes: New Organised Crime Offences in Australia’ (2008) 19 Current Issues in Crime and Justice
Serio J, Investigating the Russian Mafia: An Introduction for Students, Law Enforcement, and International Business (2008)
Serwer, A E, THE Hells Angels’ Devilish Business while many Angels and Other Outlaw Bikers Are Just Rowdies, a Disturbing Number Are Involved in Crime. (1992) CNN
Shanty, F, Mafia: The Necessary Reference to Organized Crime (2009)
Shanty, F and Mishra, P P, Organized Crime: From Trafficking to Terrorism (2008)
Shaw, M, ‘West African Criminal Networks in South and Southern Africa’ (2002) 101 Affrican Affaires
Scheb, J H, Criminal Law (5th ed, 2009)
Shelley, L I, The Nexus of Organized International Criminals and Terrorism (2002)
Stratfor Global Intelligence, Organized Crime in Mexico (2008)
Sylvester, J and Munro, I, Organised Crime Groups 'thriving' (2004) The Age
Tilyard, S, Tasmania Police, Committee Hansard (2008)
Tonry, M, The Oxford Handbook of Crime and Public Policy (2009)
Tyson, WC and August, A A, ‘The Williams Act After RICO: Has the Balance Tipped In Favor Of Incumbent Management?’ (1983) 35 Hasting law journal
UN, A more Secure World: Our Shared Responsibility- Report of the High-Level Panel on Threats, Challenges and Change (2004)
UN, Tenth United Nations Congress on the Prevention of Crime and the Treatment of Offenders (2000)
UN, Challenges and change, a More Secured World: Our Shared Responsibility (2004)
University of Exeter – Politics Department, Why Has Organised Crime Increased?
University of Maryland, Mara Salvatrucha, or MS-13 (2004)
UNODC, ‘Organized Crime Plundering West Africa, Says UNODC Report’ (2009)
UNODC, The Globalisation of Crime: Transnational Organized Crime threat Assessment, (2010) 35
UNODC, UNODC and Organized Crime (2010)
UNODCCP, Forum on Crime and Society (2001)
US Department of Justice, Dictionary of Criminal Justice Data Terminology (2nd ed, 1981)
US Department of Justice, Outlaw Motorcycle Gangs
163
US Department of Justice, Overview of the Law Enforcement Strategy to Combat International Organized Crime (2008)
US Department of State, Money Laundering and Financial Crimes (2004)
US National Gang Intelligence Center, National Threat Assessment 2009 (2009)
US National Intelligence Council, Mapping the Global Structure: Report of the National Intelligence Council’s 2020 Project, Based on consultations with nongovernmental experts around the world (2004)
US Senate - Permanent Subcommittee on Investigations of the Committee on Governmental Affairs, The New International Criminal and Asian Organized Crime (1992) van Dijck, M, ‘Discussing Definitions of Organised Crime: Word Play in Academic and Political Discourse’ (2007) 1 HUMSEC Journal van Dijk, J, The World of Crime: Breaking the Silence on Problems of Security, Justice, and Development Across the World (2008)
Varese, F, The Russian Mafia: Private Protection in a New Market Economy (2001)
Veno, A, The Brotherhoods: Inside the Outlaw Motorcycle Clubs (2nd ed, 2009)
Verville, E, ‘UN Convention Against Transnational Organized Crime’ (speech delivered at the High-Level Meeting of the UN General Assembly, New York City, 17 June 2010) von Lampe, K, ‘Not a Process of Enlightenment: The Conceptual History of Organized Crime in Germany and the United States of America’ in United Nations Office for Drug Control and Crime Prevention - Centre for International Crime Prevention, Forum on Crime and Society (2001) von Lampe, K, The Concept of Organized Crime in Historical Perspective (1999) Organized Crime Research
Wagley, J R, Transnational Organized Crime: Principal Threats and U.S. Responses (2006) 6 Federation of American Scientists
Walker, C, ‘Special Report: Mob Murders Cool Off in Italy…And other Historical Stories about the Sicilian Mafia’ (2007) New Criminologist
Weiss, T G, The Oxford Handbook on the United Nations (2010)
Weyembergh, A, ‘Approximation of Criminal Laws, the Constitutional Treaty and the Hague Programme’ (2006) 42 Common Market Law Review
Woodiwiss, M, ‘Transnational Organised Crime. The Strange Career of an American Concept’ in M. Beare (ed) Critical Reflections on Transnational Organized Crime, Money Laundering and Corruption (2003)
Zang, S and Chin, K L, ‘Chinese Human Smuggling in the United States of America’ in UNODC, Forum on Crime and society (2001)
165
2. Case Law
H J Inc v North-western Bell Tele Co, 409 US 299 (1989)
State of South Australia v Totani [2010] HCATrans 22
Totani and Another v The State of South Australia [2009] SASC 301
United States v. Indelicato, 865 F 2d 1370 (2d Cir 1989) 166
3. Legislation
Australian Crime Commission Act 2002 (Cth)
Confiscation Act 1997 (Vic)
Confiscation of Criminal Assets Act 2003 (ACT)
Council Framework Decision on the Fight against Organised Crime [2008] OJ L 300, 42
Corruption and Crime Commission Act 2003 (WA)
Crime and Misconduct Act 2001 (Qld)
Crimes (Assumed Identities) Act 2004 (Vic)
Crimes (Controlled Operations) Act 2004 (Vic)
Crimes (Controlled Operations) Act 2008 (ACT)
Crimes (Criminal Organisations) Control Act 2009 (NSW)
Crimes Legislation Amendment (Gangs) Act 2006 (NSW)
Criminal Assets Confiscation Act 2005 (SA)
Criminal Assets Recovery Act 1990 (1990)
Criminal Code Act 1995 (Cth)
Criminal Organisation Act 2009 (Qld)
Criminal Proceeds Confiscation Act 2002 (Qld)
Criminal Property Confiscation Act 2000 (WA)
Criminal Property Forfeiture Act 2002 (NT)
Joint Action of 21 December 1998 on Making it a Criminal Offence to Participate in a Criminal Organisation in the Member States of the European Union [1998] OJ L 351, 1 167
Justice Legislation Amendment (Group Criminal Activities) Act 2006 (NT)
Law Enforcement (Controlled Operations) Act 1997 (NSW)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
Law Enforcement and National Security (Assumed Identities) Act 1998 (NSW)
Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Act 2002 (Cth)
Major Crime (Investigative Powers) Act 2004 (Vic)
Measures to Combat Serious and Organised Crime Act 2001 (Cth)
Omnibus Crime Control and Safe Streets Act of 1968, 42 USC § 3789d
Organized Crime Control Act of 1970, Pub L No 91-452, 84 Stat 922-26
Police Administration Act 2009 (NT)
Proceeds of Crime Act 2002 (Cth)
Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961–1968
Sentencing Act 1995 (NT)
Serious and Organised Crime (Control) Act 2008 (SA)
Surveillance Devices Act 2007 (NSW)
Surveillance Devices Act 2007 (NT)
The Crimes Act 1900 (ACT)
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4. Treaties
United Nations Convention against Transnational Organized Crime, opened for signature 12 December 2000, 2225 UNTS 209 (entered into force 29 September 2003)
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, opened for signature 12 December 2000, UNTS No. 39574 (entered into force 25 December 2003)
Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organized Crime, opened for signature 12 December 2000, UNTS No. 39574 (entered into force 28 January 2004)
Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition, Supplementing the United Nations Convention against Transnational Organized Crime, opened for signature 2 July 2001, UNTS No. 39574 (entered into force 3 July 2005)