Participation in an Organized Criminal Group or Association of a Terrorist Nature

The literature on the subject generally emphasizes the threat arising from the activities of structured groups of a terrorist nature; even contem- porary terrorism is sometimes identified with group action. W. Filipkows-ki and R. Lonca note that “the perpetrators of both traditional and suicidal

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terrorist acts make the decision to attack within a group; also, the group chooses targets and plans the attack, makes the necessary preparations and carries out the attack together, often simultaneously … A modern ter-rorist is a classic example of �a man of organisation’ as its most crucial element.”²³ The recognition of terrorism as a form of group crime calls for the criminalization of the sole membership in such structures, which is intended to avert the accomplishment of their members’ intent of com-mitting a terrorist offence. The obligation for Poland to outlaw the acts of directing a terrorist group and participating in its activities arises from the provision of Article 2(2) of the framework decision.

The 16 April 2004 amendment to the Penal Code adjusted the liability for participating in an organized criminal group or association (Article 258 of the PC) by introducing two new types of this offence:

1. participation in an organized group or association seeking to commit a terrorist offence, punishable by deprivation of freedom from 6 months to 8 years (§ 2);

2. establishment and directing a group or an association seeking to commit a terrorist offence regarded as a crime punishable by deprivation of freedom from 3 to 15 years (§ 4).

In the Polish literature and case law, the “organized group” is assumed to be composed of at least three people who show a certain degree of or-ganization, involving leadership and assigned roles.²⁴ In its decision of 5 June 2002, the Court of Appeal in Krakow expressed the view that “the hallmarks of an organized criminal group are: certain internal organiza-tional structure (even with a low degree of organization), its permanence, the existence of organizational ties through a joint agreement, planning of crimes, acceptance of objectives, the sustainable satisfaction of the group’s needs, the collection of tools to commit crimes, finding places for the stor-age of loot and its distribution, the division of roles, coordinated action and the socio-psychological relationships between the group members.”²⁵ On the other hand, the “association seeking to commit an offence” is char-acterized by a higher degree of organization than the “organized group.”²⁶

23 Filipkowski, W., Lonca, R. „Zorganizowane grupy o charakterze terrorystycznym. Stu- Stu-dium kryminologiczno-prawne,” WPP 4 (2006), p. 49.

24 Cf. Marek, A. Kodeks karny, p. 540, and the decision of CA in Krakow of 8 October 2008, II Aka 92/08, KZS 11 (2008), item 52.

25 Decision of CA in Krakow of 5 June 2002, II Aka 123/02, KZS 7-8 (2002), item 46,

26 Cf. Górniok, O. In: Górniok, O., Hoc, S., Przyjemski, S. M. Kodeks karny. Komentarz, t. III, Gdańsk 2001, p. 312, Piórkowska-Flieger, J. In: Kodeks karny. Komentarz, Bojarski, T., ed., Warsza-wa 2008, p. 525, Michalska-Warias, A. Przestępczość zorganizowana, p. 266.

 Criminalization of “Pre-Terrorist” Acts The “criminal association” is a group consisting of at least three people and displaying a lasting form of organization, having its leadership, and established rules of membership and discipline.²⁷ G. Rejman points out that “the difference between a criminal group and association is discern- ible in that the association forms a lasting and complex, large-scale orga-nization, and thus more dangerous from the criminal alliance, ordinary complicity and even acting in a criminal group.”²⁸

The concept of “participation” in an organized group means accepting the rules governing that group or association, and following orders and objectives set by the persons superior in the hierarchy; it may also involve joint criminal actions, the engineering of such actions, joint meetings, de-vising and agreeing on the structure, finding hideouts, using nicknames, acquisition of supplies, taking steps to prevent detection of perpetrators, as well as sharing the loot.²⁹ Thus, the participation in a personal structure united by an agreement to commit only one specific offence of a terrorist nature overlaps with the constituent elements of the offence under Article 258 § 2 of the PC. There is no room for doubt that to be held liable the per- petrator should be aware of the group’s objective. The criminalization un- der Article 258 § 2 of the PC also embraces the so-called “sleeper” terror-ists who do not maintain direct contacts with the organization for a long time, but remain on stand-by, waiting for instructions or an agreed signal to act. The literature on the subject indicates the existence of such dormant Islamic units in Western Europe, though their exact number remains un-known. Their members try not to arouse suspicion in their business and lifestyle and maintain a semblance of integration with the society.³⁰

A stricter criminal liability is assumed by a person who establishes or directs a group or association seeking to commit a terrorist offence. The

“founder” is considered to be the person who creates, organizes, builds, and arranges the basic structure of a group. It can be assumed that this description fits not only the originator of a group or association, but also those cooperating in its creation, co-defining the objectives and

co-ap-27 Cf. Góral, R. Kodeks karny, pp. 143-144. Górniok, O. In: Górniok, O., Hoc, S., Przyjemski, S. M. Kodeks karny, s. 312, Michalska-Warias, A. Przestępczość zorganizowana, p. 267, Piórkowska -Flieger, J. In: Kodeks karny, Bojarski, T., ed., p. 525, decision of SC of 27 October 1995, III KRN 122/95, Orz. ProkPr 5 (1996), item 5.

28 Rejman, G. In: Kodeks karny, Rejman, G., ed., p. 609.

29 Ćwiąkalski, Z. In: Kodeks karny, t. 2, Zoll, A., ed., Kraków 1999, p. 926.

30 Cf. Allison, G. Nuclear Terrorism, New York 2004, pp. 24-25, Rapoport, D. C. The Four Waves of Modern Terrorism, p. 65.

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pointing the leadership or authoring the group’s programme.³¹ According to Z. Ćwiąkalski, the causative act of “establishing” includes searching for candidates, submitting proposals of participation, devising the structure and mode of operation, selecting the seat, agreeing on the means of com-munication, appointing the leaders, gathering tools, introducing security measures.³² Undoubtedly, the liability under Article 258 § 4 of the PC is also borne by the one who creates a new “cell” of the existing terrorist or-ganization. The research on contemporary terrorist groups has shown that such a cell may be yet another “link” in a more sophisticated centralized structure, as well as enjoying a considerable autonomy, while “network-ing” with the reminder of the structure or even starting an independent activity.

The “director” is a person who is the head of a group or association and acts in a supervisory capacity. Therefore, it is vital, from the viewpoint of establishing liability, to determine whether such a person exercises effec-tive control over the activities of the group, has the ability to give orders, and bears responsibility for fundamental decision-making.³³ The same cri-teria also apply to a person who directs an isolated structure of a larger group or association, and performs short-term or even one-time duties.³⁴ However, they do not apply to one who serves as a “liaison” and carries orders from the person heading the group down to the subordinates.

The provisions of Article 258 § 2 and 4 of the PC criminalize the sole participation in an organized criminal group or association. Committing an offence of a terrorist nature while being a member of a terrorist group results in the concurrence of these two offences. As regards such perpe-trators, they will be subject to the punishment as meted out for multiple recidivists and having twofold legal basis: the terrorist nature of the act and participation in an organized criminal group or association (Article 65

§ 1 of the PC).

31 Cf. Flemming, M, Kutzmann, W. Przestępstwa, p. 85, Marek, A. Kodeks karny, p. 541.

32 Ćwiąkalski, Z. In: Kodeks karny, t. 2, Zoll, A., ed., Kraków 1999, p. 926.

33 Cf. Marek, A. Kodeks karny, p. 12, and the decision of CA in Krakow of 24 January 2008, II Aka 396/07, KZS 9 (2008), item 28. Marek, A. Kodeks karny, p. 541, Michalska-Warias, A. Prze-stępczość zorganizowana, pp. 303-304, Piórkowska-Flieger, J. In: Kodeks karny, Bojarski, T., ed., p. 527.

34 Cf. Flemming, M., Kutzmann, W. Przestępstwa, p. 86, Michalska-Warias, A. Przestępczość zorganizowana, p. 305, Skała, J. „Normatywne mechanizmy zwalczania przestępczości zorgani-zowanej w świetle przepisów kodeksu karnego (część 2),” ProkPr 9 (2004), pp. 45-46.

 Criminalization of “Pre-Terrorist” Acts 2.3. Criminalization of the Financing of Terrorism

The thesis of the existence of a strong correlation between the degree of threat from terrorist groups and the financial resources at their dispos-al gains universal approval in the literature on the subject.³⁵ It provides grounds for proposals of instituting special measures aimed to prevent the provision or collection of funds assisting in the commission of terror- ist offences. To some extent, the existing legal solutions adopted to obvi-ate money laundering could work as a model for the relevant legislative work. There is no doubt, however, that the financing of terrorism goes beyond the mentioned offence, since it often draws on funds from legiti-mate sources, which is not the case in standard money laundering. There is also a clearly distinct aetiology of this practice, let alone the motivation of perpetrators.

Suppressing the financing of terrorism involves both the application of norms of an administrative nature, including banking law and related fields, as well as measures under penal law. The Act of 25 June 2009 in-troduced a new provision contained in Article 165a. In accordance with this provision, that person is held criminally liable who collects, transfers or offers means of payment, financial instruments, securities, foreign ex-change values, property rights, or other movable or immovable property in order to finance an offence of a terrorist nature. This offence is punish-able by 2 to 12 years of deprivation of freedom.

The provision of Article 165a of the PC contained in Chapter XX “Of-fences Against Public Safety” among the generic types of bringing about a danger to life or health of people or to property of a very important value (Article 165 of the PC) and taking control of a watercraft or an aircraft (Ar-ticle 166 of the PC). The legislator decided that the protected legal interest is common safety threatened by terrorism, and strictly, by the possibility of performing a prohibited act punishable by deprivation of freedom of the maximum of at least 5 years, committed to achieve one of the goals set out in Article 115 § 20 of the PC. The rationale for such a solution seems to be the conviction that criminalized conduct nears, facilitates or furnishes

conditions for committing a terrorist offence, thereby causing some dan-35 Cf. Biersteker, Th. J., Eckert, S. E. The Challenge of Terrorist Financing, in: Countering the Financing of Terrorism, Biersteker, Th. J., Eckert, S. E., Passas, N. Taylor and Francis 2007, pp.

6-8, Hopton, D. Money Laundering. A Concise Guide for All Business, Gower 2006, p. 4, Winer, J. M. “Globalization, Terrorist Finance, and Global Conflict – Time for a White List?” In: Finan-cing Terrorism, Pieth, M., ed., Dordrecht 2003, p. 23, Wójcik, J. W. Przeciwdziałanie finansowaniu, p. 79.

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ger to the legal interest to such an extent that justifies the introduction of a separate prohibition subject to penalty.

The offence under Article 165a of the PC consists in the perpetra-tor taking action to finance an offence of a terrorist nature by collecting, transferring or offering means of payment, financial instruments, securi- ties, foreign exchange values, property rights or other movable or immov-able property. “Collection” means gathering, concentrating in one place, accumulating,³⁶ i.e. activities that lead to the perpetrator’s obtaining or coming into possession of certain items or information.³⁷ The collection of assets, as referred to in Article 165a of the PC, may take various forms, such as an income out of conducting a legitimate business, the proceeds of committed offences (e.g. armed robberies, drug trafficking) or the so-called revolutionary tax. The collector can either be a person intending to commit a terrorist offence or a member of a terrorist organization, as well as a “sympathizer” who does not belong to such structures.

“Transfer” is effected when the offender entrusts another person (hands over, forwards)³⁸ with the assets listed in Article 165a of the PC.

“Offer” should be understood as it is in its colloquial meaning, namely as

“propose a service, submit a proposal.”³⁹

The objects of the causative act under Article 165a of the PC are means of payment, financial instruments, securities, foreign exchange values, property rights, or other movable or immovable property. That same list can be found in the description of the constituent elements of the offence of money laundering in Article 299 § 1 of the PC.

In accordance with Article 32 of the Act of 29 August 1997 on the Na-tional Bank of Poland,⁴⁰ the legal tender (means of payment) in the Repub-lic of Poland is the currency issued by the NBP.

Financial instruments in the meaning of Article 2(1) of the Act of 29 July 2005 on trading in financial instruments⁴¹ are:

36 Słownik, vol. III, Warszawa 1988, p. 699.

37 Buchała, K. In: Kodeks karny, t. 2, Zoll, A., ed., Kraków 1999, p. 356, Hoc, S. In: Górniok, O., Hoc, S., Przyjemski, S. M. Kodeks karny, p. 47, Kardas, P. In: Kodeks karny, t. 2, Zoll, A. Kraków 1999, p. 90, Michalska-Warias, A. In: Kodeks karny. Komentarz, Bojarski, T., ed., Warszawa 2008, p. 233.

38 Słownik, vol. II, Warszawa 1988, p. 979, cf. Ćwiąkalski, Z. In: Kodeks karny, t. 2, Zoll, A., ed., Kraków 1999, s. 953, Górniok, O. In: Górniok, O., Hoc, S., Przyjemski, S. M. Kodeks karny, p. 323, Zawłocki, R., In: Kodeks karny. Część szczególna, t. II, Wąsek, A., p. 1278.

39 Słownik, vol. II, Warszawa 1988, p. 487.

40 JL of 2005, No. 1, item 2 as amended.

41 JL No. 183, item 1538 as amended.

 Criminalization of “Pre-Terrorist” Acts 1) securities;

2) not being securities:

 a) participation titles in joint investment institutions,  b) money-market instruments,

 c) financial-future contracts and other equivalent cash-settled finan-cial instruments, forward interest-rate contracts, share, interest rate swaps and currency swaps,

 d) options to buy or sell financial instruments, interest-rate options, currency options, options on the previously mentioned options, and other equivalent cash-settled financial instruments,

 e) property rights, the price of which depends, whether directly or indirectly, on the value of things designated as to type, on specific kinds of energy, on measures of and limits on production volumes or pollutant emissions (derivatives on commodities),

 f) other instruments, if admitted to trading on a regulated market on the territory of a Member State or are the object of application for such admission.

The term “securities” was defined in Article 3(1) of the Act of 29 July 2005 on trading in financial instruments as follows:

a) shares, subscription rights within the meaning of the Act of 15 Sep-tember 2000 – the Commercial Companies Code,⁴² the right to shares, sub-scription warrants, depositary receipts, bonds, mortgage bonds, invest-ment certificates and other negotiable securities, including those incor-porating property rights corresponding to the rights arising from shares or incurrence of debt, issued under the relevant provisions of Polish or foreign law,

b) other transferable property rights, which emerge by emission, in-corporating the right to purchase or acquire securities referred to in (a), or exercised by a cash settlement (derivatives).

“The foreign exchange” is, according to Article 2(1)(8) of the 27 July 2002 Foreign Exchange Law,⁴³ foreign currency (foreign currencies and foreign exchange) and foreign exchange gold and platinum (gold and platinum in an unprocessed form and as bullion, coins minted after 1850, semi-finished products, except those used in dentistry, as well as items made of gold and platinum usually not produced of these ores).

Property rights are individual rights that are, directly or indirectly, conditioned by the economic interest of the entitled entity. These include

42 JL No. 94, item 1037 as amended.

43 JL No. 141, item 1178 as amended.

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material rights, liabilities, matrimonial and property rights, rights to intan-gible property of a financial character, such as the right to remuneration for a literary work of art.⁴⁴ The term “movable property” denotes an object in a physical sense that corresponds to the term “movable property or an object” (Article 115 § 9 of the PC)⁴⁵ and “immovable property” should be understood according to Article 46 § 1 of the CD.

For the establishment of criminal liability under Article 165a of the PC, it is required that the offender’s conduct intended to finance an offence of a terrorist nature. It is therefore mandatory to demonstrate that the collec- tion, transferring, or offering of assets served the payment, that is, cover-ing of expenses associated with the performance⁴⁶ of an offence satisfying the criteria of Article 115 § 20 of the PC. At the same time, a specific intent (dolus directus coloratus) is required.