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Секция 18. Юриспруденция
Section 18. Science of law Секция 18. Юриспруденция
Dzhansarayeva Rima Yerenatovna, Al-Farabi Kazakh National University, Head, Chair of Criminal Law, Criminal Process and Criminalistics,
Doctor of Law, Professor E-mail: jansarayeva@mail.ru Romashov Roman Anatolyevich, the Samara Law Institute of the Federal Penitentiary Service of the Russia, Head, Doctor of Law, Professor E-mail: romashov_tgp@mail.ru
Issues of understanding of organized crime
The article was prepared within the grant of Ministry of Education and Science of the Republic of Kazakhstan
FNI0575 GF 2 «Penitentiary safety and problems of its provision» Abstract: The article analyzes the phenomenon of «organized crime». Being a specific element of social culture, organized crime fills the lacunas in the spheres related to provision of goods and services, which, for some reasons, are not supplied to the legal market and form shadow (criminal) sector of social economy.
Keywords: organized crime, organized crime group, criminal organization, criminal community.
Viewing organized crime as a system of organized crime activity of criminal organizations, major attention is paid to functional component, the idea of which is determined by goals that direct efforts and means of organized crime groups and crime organizations.
We suppose that main goals uniting professional criminals into criminal organizations and determining functional direction of their activity are the following:
- obtaining of illegal incomes within performed criminal business. The given goal is perceived by most authors considering the phenomenon of organized crime as main goal of creation and functioning of criminal groups [1, 33; 2, 31; 3, 7-9];
- anti-constitutional seizure of power or other forceful counteraction towards state authorities;
- spread of terrorist threat.
Criminal business is related to obtaining of incomes from criminal (shadow) economy. In the given case, organized criminal groups perform activity aimed at production and sale of prohibited goods and services forming criminal (black) market. The directions of criminal business can be: drug and weapons trade, prostitution, kidnapping of people for the purpose of ransom, counterfeiting, fraud, corruption crimes etc. Common
purpose in all these crimes is obtaining of maximal income as a result ofperformed operations. Herewith, legal and shadow economies coexist as mutually explanatory of each other segments the impact of which on each other is determined by both economic principles (correlation of demand and supply, price and quality) and effectiveness of state legal mechanisms of economic regulation and resistance to organized crime.
It should be noted that in most sources the understanding of organized crime narrows down to the very criminal business community. In such understanding «an organized crime group is a union or a group of people, who united for a long-term period or uncertain time in order to completely or partially obtain income, other equivalents of money or economic benefit for themselves or others with the help of illegal means, hiding their illegal activity from criminal prosecution...» [4, 38].
We suppose that narrowing of functional peculiarities of organized crime to mainly criminal economy is absolutely wrong. As it was mentioned earlier, the goals oforga-nized criminal activity along with obtaining of income can be coup detats and armed riots (rebellions, revolts), as well as terrorist threats, which are by nature the crimes of «a different order» unlike classic criminal activity, which in turn,
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predetermines the specifics of formation and activity of organizations specialized in this types of criminal activity.
Organized crime groups, having their goal a violent seizure of power (article 278 of the Criminal Code of the Russian Federation, article 168 of the Criminal Code of the Republic of Kazakhstan) or armed revolt (article 279 of the Criminal Code of the Russian Federation, article 169 of the Criminal Code of the Republic of Kazakhstan), are principally different from formations of criminal business community. If for the latter income from criminal activity determines the idea of the very existence of an organization, the groups trying to seize power or expressing open armed protest against the existing order of public management, view material and financial resources as means, a financial resource, required to provide solutions ofthe main task—seizure ofpower or other form offorce-ful resistance to the state. The very public political power is the main value, possessing of which provides full-scale control ofall resources ofthe state to the winners. The specific of the set goal defines peculiarities of structuring of a criminal organization, forms and methods of its activity.
In the structure of a modern organized crime there is a special place for terrorist organizations. It is noted that among concrete manifestations of organized crime posing threat to national security «activity of terrorist organizations and groups aimed at change of basics of constitutional regime and disorganization of normal functioning of state bodies stands apart» [5, 3].
Unlike criminal business communities organized in order to obtain incomes from criminal activity and structures pretending to win state power or entering open forceful confrontation with the state, modern terrorism sets terrorist threat as main goal. Community as a whole is viewed as the object of such threat. Task solved by terrorists is to persuade people with the help of certain examples (terrorist acts) that they are vulnerable and that the state with its law-enforcement structures is not able to provide safety [6, 40]. «Depending on the object of the offense, a terrorist act can be directed against certain people or anonymous victims, who have nothing to do with terrorists and have never come across them (explosions and planes hijacking, hostages, explosions of residential buildings etc.)... a terrorist act has a goal to destabilize the situation in the society, provoke panic in people. The terror in such case becomes addressless; its victims are accidental ordinary citizens. Terrorists. take into account public uproar followed by accusations towards law-enforcement and power bodies unable to protect citizens. Keeping population in fear and uncertainty is a peculiar kind of power manifestation of the society as a whole» [7, 17].
Terrorist act is a kind of advertising campaign aimed at creation of a wider circle ofpeople informed about the incident. The more terror the information provokes, the more effective and meaningful the terrorist organization taking responsibility for the committed terrorist crimes is.
In modern criminology it is proposed to differentiate independent kinds of crime — political/state, economic, organized [8,: 495, 497]. Moreover, «different national and foreign authors distinguish «general criminal activity», «respectable crime», «power and elite crime», «cybercrime», «nuclear mafia» etc. [8, 499].
In our opinion, in such systematization there are obvious violations of main principle of systematization — use of a unified criterion of consistency in respect of systematized phenomena. In case of organized crime, as it was mentioned earlier, organized aspect is such criterion (in both, procedural and formal understanding). If we talk about other kinds of crimes, their determination is based on subject and goal (nuclear, cyber, political, state crime) or subjective and attributive (power and elite, state crime), criteria. Herewith, it is not clear, how these criteria re associated with each other. We reckon that organized factor takes place in all listed kinds of crime. Consequently, at such approach, distinguishing organized crime as an independent kind of a criminal organization and criminal activity bears no sense.
It should be noted that many authors propose exclusion of this category from conceptual framework of criminology and criminal law on the basis of characteristic of organized crime. Thus, V. Yustitsky claims: «In modern conditions, when activity of any public or private institution is inevitably related to the violations of criminal law, the notion «organized crime» is a synonym of the notions «society», «state», «social phenomenon». performs social function of «personification of social evil». One should renounce the notion «organized crime» as craniological and criminal-legal and recognize it as a domestic notion [9, 46-47].
Ya. I. Gilinsky holds the same position and reckons that «only tradition makes us keep this term» [10, 108]. Believing that it is pointless to argue or support these points of view, it should be once again noted that organized aspect mainly characterizes not the specific of crime as it is, but only puts an emphasis on the objective ambition of any social community (including criminal) towards systematic consistency of its social structure and activity performed with the help of this structure.
In spite of the significant differences between kinds of organized crime activity and kinds of criminal organizations, they are united by an ambition to seize or gain
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control of the management resource. Such resource, depending on a kind of criminal activity, can be money, state power, reproductive uncontrollable fear (terror).
Despite the existing differences, all criminal organizations are similar in one aspect — in any case, their activity is aimed at obtaining and seizing this or that resource that ensures own safety of a criminal organization and allows satisfying the needs of people involved in criminal activity as well as performing counteraction towards rival criminal structures and state law-enforcement agencies.
Distinguishing communication component as a form of organized crime uniting various kinds of interactions of organized crime formations on ensuring criminal interests, one should take into account two sphere of criminal communication:
- inter-systematic, related to interaction ofseparate representatives of criminal world and organized crime groups in the scale of one criminal organization (group);
- intra-systematic, including both criminal communications between different criminal organiza-tions/groups (on national and trans-national levels) and corruption connections and interaction of criminal organizations with legal business structures, representatives of state and municipal bodies, court and law-enforcement systems.
Communicative form of organized crime unites all kinds of interaction into two groups: consensual partnership and conflict. Partnership as a way of interaction is based on mutual consideration of interests of the parties and search for a compromise solution. Conflict is a consequence of inter-systematic or intra-systematic contradiction and, at the same time, a solution with the help of conscious, will confrontation of the parties within which infliction of harm to each other determines direction and dynamics of a conflict interaction.
In the whole, analysis of forms of organized crimes allows distinguishing three formal incarnations of the studied phenomenon: material — organized crime as statistical combination of organized crime groups and criminal organizations/gangs; substantial — organized crime as a system of organized crime activity expressed in statistical commonness of organized crimes and communicative, within which the attention is focused on inter-systematic and intra-systematic connections and interactions, which generally form organized crime activity as well as criminal groups and organizations that perform this activity.
Perception of organized crime as «state in a state» [11, 656] enables to talk about criminal organizations as specific social organizations formed and acting both in
the sphere of state jurisdiction and being trans-national structures.
Attitude towards organized crime in the context of theory of organizations determines critical attitude towards the positions of authors believing that «organized character is gained by the crime only when it becomes an alternative to a state» [11, 656].
If the society (social relations) generates crime, the organized character appears from the moment of manifestation of signs of an organization, independent from the fact whether this social unity reached the level of statehood or not. Moreover, for most criminal organizations the issue about alternative to a state is not considered. Criminal element does not confront (if we don’t take into account criminal activity in the sphere of forceful contradiction to state authorities and spread of terrorist threat) to the state itself, but certain citizens (corporations). Herewith, criminal offense is not aimed at political and legal fundamentals, but material values, the presence of which for any state is of secondary character and, in any case, does not pose danger to state security.
Stability of state power is profitable for organized crime in the whole, because it ensures certain consistency in correlation and interaction of law-enforcement and criminal structures as well as guarantees adherence to the rights and awful interests of the representatives of criminal world made criminally and legally accountable and subject to punishments.
Particularly, V. S. Razinkin, analyzing organized crime, states quite calmly that organizers and managers of criminal communities strive to «optimally integrate with state authority to create criminally state conglomerate of mafia type for deeper implementation of trans-national criminal community of other states and strengthening in the market of international organized crime» [3, 9].
Such integrative dynamics can be of planned nature and, to a certain extent, pretend for some success only in the conditions of political and legal stability based on steadiness and predictability of positions and behavior of both representatives of state authority (including law-enforcement sphere) and «elite organized crime».
Quite an interesting point of view on interaction of crime with the state is expressed by B. M. Nurgaliev and V G. Tataryan. According to the authors, «modern organized crime is characterized by planning of organized criminal activity, distribution of roles and non-participation of leaders in commitment of concrete crimes. Law-enforcement bodies are forceless in respect of the latter, even though they know them, keep records on them and hold them criminally liable for petty offences » [2, 31].
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In fact, presence of a certain compromise is recognized between the state and organized crime. In the conditions of social-political instability such compromise is either impossible or fragile just like the state power itself that strives to strengthen its authority in the eyes of the population at the expense of large-scale demonstration of force. At the same time, lawfulness and rightfulness of such demonstrations doesn’t interest anyone as a rule.
Same authors note that the main difference of Kazakh organized crime from the Russian one lies in the fact that in Kazakhstan «many leaders and active participants of criminal structures were liquidated during the first years of struggle with organized crime» or «disappeared among state officials (including law-enforcement agencies), continuing racketeering commercial structures at already higher level and in new positions» [2, 31].
Summarizing the above, one should formulate several general conclusions.
Being a specific element of social culture, organized crime fills the lacunas in the spheres related to provision of goods and services, which, for some reasons, are not supplied to the legal market and form shadow (criminal) sector of social economy.
Moreover, organized crime parasitizes in a social organism «eating» it like a malignant tumor. Thus, the goal of a criminal organization is to eliminate traditional
order of management and create a managerial system in which opposite legal polarity is set (what was earlier qualified as a crime, in new conditions is considered as heroism and earlier lawful behavior is on the contrary considered criminal).
Depending on main goals, organized crime formations can be divided into three types:
a) performance of criminal activity for the purpose of obtaining incomes and satisfaction of egoistic and corporate interest related to the prosperity of members of criminal structures;
b) striving for anti-constitutional seizure of power or entry into forceful confrontation with existing political regime;
c) producing terrorist threat and spreading it in social environment.
Criminal communication is one of the forms of manifestation of organized crime and in such understanding characterizes it as combination of connections and interactions both between professional criminals, organized crime groups and gangs and criminal (illegal) and official (legal) sectors of social system. All criminal communications can be united into two groups: partnership and conflict. Depending on circumstances criminal gangs can form coalition unions or enter conflict relations with each other.
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