Transnational
Organised Crime as
Miroslav Scheinost,
What we may find asking for
the economic and social roots of organised crime? Let’s start with a glance at
different concepts of organised crime. For instance Sutherland stressed the
mutual collaboration of offenders that takes place in the criminal setting. According to the
Sutherland’s concept organised crime means the co-operation of professional
criminals. According to the Katzenbach committee
organised crime is characterised more by economic features :
it is a criminal corporation (this category itself refers to the economic
background) that supplies illegal goods and services outside of the control
state mechanisms. Contemporary definitions
of Finckenauer, Kenney and Abadinsky
are consistent in defining organised crime by
several concurrent criteria that may be divided into three levels : general
characteristics (non-ideological character and orientation to the profit
via providing illegal goods and services); characteristics
of „entrepreneurial activity„ (division of labour, continual activity,
planning, hierarchy, discipline, effort for monopolisation), associated
characteristics consequent upon the illegal character of activity
(conspiracy, corruption, violence). Maltz adds one
significant feature, not usually cited in the organised crime definitions: the
specific position of victim consequent upon its function in the process of committing crimes
when the victim usually figures at the customer position making use of provided goods and services, taking part in
this way in the criminal activity and de facto enabling it. Ianni´s
speak on the triangle of conditions that enable the functioning of organised
crime. This triangle consists in three simultaneously operating factors:
criminal subject (organisation that provides illegal goods and services),
public (at the position of customer) and the part of public administration that tolerates
and covers these relations for its own profit.
Based on these concepts of
American authors organised crime appears to be an activity developed on the
economic basis and operating as a complement of the market, which meets a
public demand for illegal goods and services. A number of features of organised
crime therefore
principally comport with the features of legal corporations;
criminal features result from the fact that organised crime activities take
place in the illegal market sector.
American criminologists
utilise the long-lasting experience of a society with functional market
relations. Criminologists from the former socialist countries notice that
organised crime can develop not only as a complement of a functional market providing goods and
services in the illegal sector of demand but even in the conditions of non-existing market when normal market
relations are stifled and normal goods and services that are
legal but hardly available are distributed through shadow economy (e.g. Andres Anvelt from Estonia or Arpad Eördögh from Hungary who calls attention to the attribute
of organised crime consisting in the interconnection of professional criminals
with non-professional accomplices and to the preference of so-called
„victimless crime“; that is analogous to Maltz´ concept of
complicity of victims as customers or the role of public as defined by Ianni´s).
The above-mentioned
criminological concepts try to characterise organised crime as a specific
category of criminal activity and clearly encompass the area of phenomena that
could be defined as organised crime. On the other hand, international legal
documents as the UN Convention against Transnational
Organised Crime or the EU Joint Action from 1998 more or less disclaim the
definition of organised crime as a phenomenon incorporated in certain social context and try to
define only the subject, i.e. criminal association or organisation and the
membership or partnership in its activities.
It is obvious that the
criminological concept determined by several conceptual characteristics does
not fully suite the purpose of the instrumental application of penal
law, especially when the legislative
definition of relevant phenomenon must be acceptable in the
international context. On the other hand, the concept of organised crime
accepted at present in the international legal documents eliminated the
distinctive qualification of organised crime as a special phenomenon in a
certain social context. Due to this simplification this legal concept is
applicable to a relatively broad spectrum of criminal activities. According to
the definitions of UN and EU it is possible to regard all serious crimes
committed for material profit by group as organised crime provided that the
group comprises at least
three members and proves some continuance and some internal more
exactly non-differentiated structure. In consequence of this concept it would
be possible to view as organised crime at the same level e.g. a substantial
part of economic crime including
so-called white-collar crime if there are several offenders acting in concert
for longer time, as well as members of motorcycle gangs if they are involved
e.g. in selling drugs. This concept probably enables more efficient fight
against a broader spectrum of serious form of crime, because it allows the
application of special means of their detection and investigation and broader
international collaboration; it seems that the seriousness of some forms of
international crime and,
at the same time, the necessity to reach broad acceptance of such
a concept and its application in practice demand such an extensive concept.
Nevertheless, this does not mean that criminology should give up the effort to
determine the phenomenon of organised crime by criminological means as a
special category of crime within the broader social and economic context,
respecting the practical needs of law and being aware that the criminological
concept will be evidently partly different and more narrow than the concept of
international legal norms.
Trying to incorporate
organised crime into a broader social and economic context we may come out the
fact that the interest in maximal return of invested effort and means while
spending as minimum expenses as possible
is general and natural. The most simple way to achieve
this goal consists in the collaboration with others on the basis of certain
division of labour and functional differentiation. In the law abiding society,
this effort represents the basic reason for organising any enterprise or
business, for co-ordination of the specific activities in order to reach the
maximum level of production, to capitalise the products etc. The same
incentives represent the key to understand organisation inside the crime world
(see Vold and Bernard, 1986). Even crime organises itself in the sense of co-operation of
offenders, continuation and organisation of
activities in order to achieve the maximum return of spent effort. Of
course, it is accompanied by the organisation of operations that are not
necessary for law-abiding activities, i.e. operations that serve to protect
against detection and punishment. These covering activities require additional
costs but these higher costs are more than sufficiently recompensed by the
higher profitability of criminal activities and also by the fact that organised
crime does not deliver a part of profit to the state in the form of taxes and
other fees that burden the legal enterprise.
Effective organisation and a
ready market for supply are the pre-requisites of prosperous enterprise both
legal and illegal. Therefore organised crime became a part of the structure of
supply and demand in society. It meets the illegal demand or demand for goods
and services which are legal but bestowed or acquired by illegal way. In this
way it represents a complement of legal market, because the legal market
excludes persons concerned with certain kinds of goods and services, or it
compensates for the malfunctions of the legal market which is not able to meet
legal demands. It means that organised crime profits from the symbiosis with
customers. The social holdfast of organised crime and problems to counter it
therefore do not stem only from the blunt covering practices of organised crime
and its penetration into the official structures but also from the acceptance
of supplied goods and services by a part of the public.
This essential characteristic
of organised crime steers also for its another important feature mentioned by some of the above
cited authors, i.e. its drive for victimless crime. The prevalent part of
organised crime activities are really more customer/client-targeted than
victim-targeted (for instance the buyer of smuggled, stolen or falsified goods,
illegally transported migrant, drug consumer, erotic club visitor may be
designated as customer/client). Of course, organised crime misuses the unequal
position of the consumer, his or her distress or any similar disadvantageous
situation, or stipulates this situation itself. But the substantial attribute
of this relationship consists in the personal and active interest of the customer
to get the goods and services supplied by organised crime - this situation is
fundamentally different from the position of the classic crime victim. The client/customer becomes an active
„team-mate“ not in the sense of being an
accomplice, but still in the extent that substantially decreases the risk for
organised crime, because this customer is not interested in disclosure of its
supplier and being disabled to use the
bestowed goods and services. The relationship between organised crime and clients is of the consensual
type (see Albanese, 1955). Those who are situated at the other side of the chain of
activities of organised crime, this means the suppliers of initial products -
e.g. small producers of coca etc. - are in the similar situation. They also are
not interested in
fighting organised crime and by this way
in liquidation of the source of their, however minimum, income. The effort of organised crime to prefer
victimless crime and to function on the basis supplier - customer is therefore
quite rational, because it decreases the risk, ensures the distribution of
products and permanent profit, and creates also the spawn of organised crime in
the non-criminal society
whose members are, as clients and sometimes suppliers, involved
in the nets of organised crime.
To say it simply, traditional
crime - violent, property and in some extent economic crime - has as a target a
directly damaged victim who is not offered anything while the target of
organised crime is a client who is always offered something and who is for some
reason interested in getting it. This is a specific context, because the
client/customer is not situated in an equal position; organised crime may even
intrude upon customers undesired services, such as racketeering; nevertheless, the
existence of supply and demand and the active role of customer remains to be
one of substantial characteristics of organised crime. It also does not mean
that organised crime does not produce the typical victims. But these victims
represent some kind of by-product and organised crime produces them in
consequence of illegal gathering of goods (by robbery, theft, fraud etc.; even
the victim himself or herself may constitute goods, speaking of trafficking in
people or of forced slave labour), in consequence of associated covering and security activities
(against public administration or in underworld conflicts) and, finally, in
relation to the state when state itself represents the damaged victim (because
organised crime does not pay taxes and fees, breaks the immigration laws
etc.).
It is beyond dispute that
organised crime is based on an economic foundations.
It is incorporated into the market structure, into the structure of demand and
offer, its operations are often consensual with the customer and it deeply
infringes upon the legal economics. The intersection with legal economics does
not consists only in money laundering or investing
proceeds of crime into the legal economics. It consists above all in covering
demand for goods and services that are not available through the legal market
or which is covered insufficiently.
The question
therefore arise about the differences between the organised crime and
the economic crime. I think that we may say that organised crime operates as a
complement of the legal economy and primarily is targeted on the customer while
economic crime attacks and damages the legal market subjects directly and
usually has not any customers, it does not offer anything. Typical modus
operandi of economic crime is fraud or embezzlement in contrast to organised
crime that, after all, offers something to the client on the basis of his/her
interest. We may also say that organised
crime complements the legal economy from the „outside“ while economic crime attacks from the
„inside“ of legal economy. Of course, organised crime damages legal economics
as well, but usually indirectly. The interests of legal economic subjects are
damaged more by unfair competition, by comparative advantages based on the
offer of attractive goods, on the illegal methods of offer, on non-payment of
taxes and fees, on the cumulating of illegally gained and easily dispensable
capital. Legal economic subject are therefore handicapped as compared with
organised crime just for keeping the regulations of trade.
Another difference may be
found in the fact that economic crime, or financial
crime as well, does not necessarily need the existence of organised subject -
structured and hierarchised group founded for
committing crime. Economic crime is generally qualified and well-organised but rather
in the sense of effective organisation
of consecutive action than the existence of criminal organisation as a
condition. Offenders of economic crime may act individually, may misuse the
legal institutions from the inside or outside, may collaborate on the
basis of mutual advantages or corruption without necessarily being forced to
create organised criminal groups or
associations.
The congruent characteristic
features of organised crime and legal economics may be found in the similar principles of
behaviour. The purpose of both is to integrate and co-ordinate activities and
sources, effectively exploit existing market chances, to create a smoothly
functioning organism in order to gain maximum possible profit. Organised crime
operates on the rational economic principles - even using some „entrepreneurial
ethics“ when respecting the fact that the customer
must be given the goods that he is interested in. In this sense, organised
crime is business that functions at the basis of profit and can be profitable
only if it offers to the customer what meets his demand for the price he is
willing to pay. This price can be very high but legal entrepreneurial subjects
behave in this way too. This similarity ends in the relation to the norms
regulating the behaviour of economic subjects - the profitability of organised
crime is based on non-keeping these norms.
In fact, a substantial part of
organised crime represents a complement of legal economics that operates in the
demand sector oriented on forbidden or limited goods and services. Of course,
this approach to organised crime does not give account of all its attributes
and activities but it shows its deep structural economic roots and
substantially deeper penetration into economics and society than it looks to
be.
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