Criminal organizations, criminal groups,and conspiracy to commit crime. Towards the definition of criteria for their delimitation

Abstract

  The introduction of the crimes of organization and criminal group in the Spanish Penal Code, as a result of LO 5/2010, 22th June, has motivated a broad debate on the difference, not only among both figures, but also about the delimitation of both with the preparatory act of the conspiracy to commit a crime. In this paper it is tried to pose in detail the aforementioned problem, and analyze the criteria given by the courts to solve it, finally introducing a series of personal reflections on it. In this way, it has been highlighted howthe Spanish Supreme Court applies the conspiracy to commit a crime to groups of at least two people whose aim is to commit a specific crime. When the group has more than two people and its purpose is to perpetrate multiple crimes, the organization or criminal group is applied. The High Court bases the difference between the two on the level of sophistication of its structure. In this paper it is proposed a more rigid of the concepts, in this way: conceive the criminal organization as a criminal group of the mafia type, which systematically uses corruption and money laundering, and the criminal group as a group that, without this mafia character, is engaged in crime.