Criminal collectives displaying different structures of association pose serious challenges to traditional criminal law. Responses to some of these challenges can be found in the traditional models of conspiracy and participation in a criminal association. The goal of this project is to identify similarities and differences between the two models, explain how the two approaches are combined in international models, and examine how their elements get transferred to the legislation of transitional countries.

The sys­tem of crim­in­al law, as we know it today, was tra­di­tion­ally de­signed to re­act to a crime com­mit­ted by an in­di­vidu­al. However, every­day real­ity has shown that, today, crimes are com­mit­ted by crim­in­al col­lect­ives, too. The vary­ing or­gan­isa­tion­al struc­tures of these col­lect­ives as well as the strategies they de­ploy in or­der to be as pro­tec­ted and at the same time as ef­fi­cient as pos­sible pose some ser­i­ous chal­lenges for the tra­di­tion­al crim­in­al law. The chal­lenges can be seen, for ex­ample, in the fact that the in­di­vidu­als who ac­tu­ally per­pet­rate a crime might not be those primar­ily re­spons­ible for it or in the fact that group crimin­al­ity is char­ac­ter­ised by the di­vi­sion of la­bour, which means that some in­di­vidu­als may con­trib­ute to the com­mis­sion of an of­fence by lend­ing lo­gist­ic­al sup­port or by per­form­ing some oth­er activ­it­ies that are bey­ond the scope of pro­vi­sions on com­pli­city or in­di­vidu­al crim­in­al li­ab­il­ity. At the same time, there is a gen­er­al, al­though de­bat­able, as­sump­tion that a crime com­mit­ted by a crim­in­al col­lect­ive is more dan­ger­ous to so­ci­ety than a crime com­mit­ted by an in­di­vidu­al of­fend­er so the re­ac­tion to this sort of crime should take place even in the early stages of pre­par­a­tion. The tra­di­tion­al crim­in­al law pro­vi­sions on pun­ish­able pre­par­a­tions do not, however, seem to provide for such early re­ac­tion.

For the pur­pose of fight­ing such col­lect­ives, coun­tries have tried to ad­just their crim­in­al le­gis­la­tion by modi­fy­ing ex­ist­ing and/or by de­vel­op­ing new in­stru­ments to ad­dress the prob­lem. Ob­ject of the re­search in this dis­ser­ta­tion are two dif­fer­ent tra­di­tion­al na­tion­al crim­in­al law mod­els de­signed for that pur­pose, namely, par­ti­cip­a­tion in a crim­in­al or­gan­isa­tion (Ger­many) and con­spir­acy (Eng­land and Wales). As it is ar­gued that the con­cep­tu­al dif­fer­ences between these two tra­di­tion­al mod­els are sig­ni­fic­ant, the two mod­els are com­bined in both European (EU) and in­ter­na­tion­al (UN) leg­al in­stru­ments. Con­sequently, the so-called in­ter­na­tion­al mod­els of par­ti­cip­a­tion in a crim­in­al or­gan­isa­tion and con­spir­acy have de­veloped. The main idea be­hind this de­vel­op­ment was the sub­sequent trans­fer of the ele­ments of these in­ter­na­tion­al mod­els in­to the le­gis­la­tion of trans­ition­al coun­tries that had not de­veloped such in­stru­ments them­selves (Bos­nia and Herzegov­ina, Ser­bia, or Croa­tia). Thereby, so it was thought, the fight against crim­in­al col­lect­ives would be fa­cil­it­ated not only na­tion­ally but in the in­ter­na­tion­al arena as well.

The aims of the re­search are, first, to ana­lyse two tra­di­tion­al, two in­ter­na­tion­al, and three trans­ition­al mod­els of par­ti­cip­a­tion in a crim­in­al or­gan­isa­tion and con­spir­acy in or­der to de­scribe the con­stitutive ele­ments there­of; second, to eval­u­ate the trans­fer of the con­stitutive ele­ments of the mod­els from the tra­di­tion­al to the in­ter­na­tion­al mod­els and from the in­ter­na­tion­al to the trans­ition­al mod­els; and third, to com­pare two tra­di­tion­al mod­els of par­ti­cip­a­tion in a crim­in­al or­gan­isa­tion and con­spir­acy based on the con­stitutive ele­ments and to ex­plain their sim­il­ar­it­ies and dif­fer­ences.

The main meth­od to be ap­plied is that of norm­at­ive ana­lys­is by means of which crim­in­al le­gis­la­tion of Ger­many, Eng­land and Wales, the UN, the EU, Bos­nia and Herzegov­ina, Croa­tia, and Ser­bia will be ana­lysed. In or­der to achieve a bet­ter un­der­stand­ing of both the evol­u­tion of the mod­els as well as of the ef­fect of the trans­fer of ele­ments on the tra­di­tion­al-in­ter­na­tion­al-trans­ition­al mod­els re­la­tion­ship, the his­tor­ic­al meth­od will be ap­plied. The meth­od of com­par­at­ive leg­al ana­lys­is will be ap­plied for the pur­pose of com­par­ing sim­il­ar­it­ies and dif­fer­ences between leg­al solu­tions found in the tra­di­tion­al, in­ter­na­tion­al, and trans­ition­al mod­els. In the end, in or­der to test the res­ults of the ab­stract leg­al com­par­is­on between the tra­di­tion­al mod­els based on their con­stitutive ele­ments, a hy­po­thet­ic­al case will be de­veloped and the prac­tic­al leg­al ana­lys­is there­of per­formed through the prism of the con­stitutive ele­ments of the mod­els.