Participation in a criminal organization

Participation in a criminal organization is punishable under Article 140 paragraph 1 of the Dutch Penal Code (DCP). This article reads as follows:

"Participation in an organization aimed at committing crimes shall be punishable by imprisonment not exceeding six years or a fine of the fifth category."

Participation in a criminal organization is punishable by a maximum prison term of six years or a fifth category fine.

If an organization aims at committing crimes punishable by imprisonment of twelve years or more according to the legal description, a higher penalty maximum applies. Then a prison sentence of up to ten years or a fine of the fifth category may be imposed.

The founders, leaders or directors of a criminal organization are also subject to an increased penalty maximum: their sentences can be increased by one-third.

In the case of an organization whose purpose is to commit terrorist crimes, the maximum prison term is even 15 years. The founders, leaders or directors of such an organization risk a maximum prison term of thirty years or a fifth category fine.

An organization within the meaning of article 140 DPC exists if there is a cooperative relationship with a certain degree of structure and permanence between the accused and at least one other person. Thus, an organization need not be large. Two persons are enough. For structure, hierarchy is not a requirement.

The purpose of the organization must be to commit crimes. It is not necessary for criminality that the crimes have already been committed; it is sufficient that there is an intention (intent) to do so. The structured nature of the organization and any crimes already committed can serve as evidence of this intent.

According to the Supreme Court, there is participation in a criminal organization if the defendant belongs to the partnership and if the defendant has a share in, or supports, conduct that is aimed at or directly related to the commission of crimes.

Any contribution to a criminal organization may be punishable. Such a contribution may consist of the (co-)commission of crimes, as well as the performance of services that are not in themselves punishable, as long as one can speak of support or share.

For participation, it is sufficient that the suspect knows that the purpose of the organization is to commit crimes. In addition, the defendant's intent must be to participate in the organization.

It is not always clear whether conduct qualifies as participation in a criminal organization. This is regularly discussed in case law. The judge tests the circumstances of the case.

Under circumstances, the following acts may qualify as participation:

• directing a criminal organization engaged in large-scale hemp cultivation (HR April 23, 2024, ECLI:NL:HR:2024:619);

• allowing the creation and maintenance of a corporate culture within which offenses were committed (HR Feb. 10, 2015, ECLI:NL:HR:2015:264);

• receiving and transmitting data from catcatchers within a criminal organization engaged in bank card fraud (HR May 23, 2023, ECLI:NL:HR:2023:739); and

• participating in meetings of a (now banned) motorcycle club designated as a criminal organization, (co-)determining the course of that motorcycle club and imposing fines on members of that motorcycle club (HR July 5, 2022, ECLI:NL:HR:2022:969).