When the representative of the Government of Serbia announced the amendments to the so-called Organised Crime Act (Act on Organisation and Jurisdiction of State Bodies in Suppressing Organised Crime), he said that the new legal definition of “organised crime” would be fully in compliance with the UN Convention against Trans-national Organised Crime. This, unfortunately, is not the case. The new definition is much broader and in contravention of the Convention and other international standards. Under the Convention and under the new Serbian Act, organised crime entails the commission of crimes by an organised criminal group or its members. The Serbian Act, however, also introduces “other organised groups”, a concept which does not exist in the Convention. Under Art. 2a of the Convention, an “organised criminal group” is 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”. Article 2c defines in the word “structured” in greater detail: a “structured group” shall mean a “group that is not randomly formed for the immediate commission of an offence and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure”. The Convention, therefore, does not apply to every structured group but only to criminal structured groups.
The new Serbian Act (Art. 2(1)) mirrors the Convention definition of an organised criminal group (albeit it leaves out the word “structured”), but in Art. 2(2), it incriminates the commission of crimes by members of “another organised group” which it defines in the following manner: “a group that is not formed for the immediate commission of an offence nor has a developed structure, defined roles for its members, continuity of its membership, but that is in the function of organised crime”.
This definition is vague and dangerous as the expression “in the function of” is not used in national criminal legislation; it has been “borrowed” from the erstwhile (communist) party, military and police (“security”) vocabulary. National criminal law differentiates between a sufficient number of forms of complicity, including accessory before, during and after the fact, aiding and abetting, criminal association etc. The introduction of this phrase can only give rise to confusion and encourage the prosecution of social groups and organisations which are not criminal in any respect.
As far as we are aware, an amendment was submitted that this unnecessary and damaging provision be left out. The public was not told why the amendment was not upheld. The BCHR and the CAA call for the deletion of Art. 2(2) from the Act, as it constitutes a threat to the human rights and freedoms of Serbia’s citizens.
Belgrade 14 April 2003 On behalf of the Belgrade Centre for Human Rights
Vojin Dimitrijević, Director
On behalf of the Centre for Anti-War Action
Ivan Janković, President
