The Leadership Charge — a Legal Map
When a charge concerns leadership of an organized criminal group, the case usually proceeds under Article 223 — creation or leadership of an unlawful formation — while the concept of the leader is supplied by Article 24 of the General Part of the Code: an organizer is one who arranged the commission of the crime or directed its execution, and equally one who created an organized group or led it. This page explains the full content of both articles — with their sanctions, enumerations, and the real tactical points of the defence.
Article 223 — Creation, Leadership and the Ladder of Parts
Under the first part of Article 223, the creation or leadership of an unlawful formation — a host, association, detachment or other group — is punishable by deprivation of liberty for a term of 6 to 12 years. The second part regulates membership, participation, organized training by such a formation, recruitment, training or gathering of persons — deprivation of liberty for 3 to 7 years. Under the third part, the dissemination or use of information materials or symbols connected with the formation is punishable by deprivation of liberty for a term of up to 3 years, if it creates a clear, direct and substantial danger of an unlawful result. The fourth part concerns the financing of an unlawful formation — collecting or providing funds or other property with prior knowledge that they will or may be used for the formation's activity — for which 5 to 8 years is provided. The fifth part aggravates acts committed through the use of an official position — 8 to 15 years; the sixth part regulates public calls to commit these crimes under the same danger condition — up to 2 years.
What an 'Unlawful Formation' Is — the Definition and Its Boundaries
The note to the article defines: an 'unlawful formation' means any formation — other than one under the authority of a state body — armed with firearms, ammunition, explosive or inflammable substances, an explosive device, lachrymatory, radioactive, nerve-paralytic or poisonous substances, cold weapons, or such a device or object as may be used to damage or destroy a living or other object, provided the formation was created for a criminal purpose. This definition is decisive for the defence: the combination of armament and criminal purpose must both be proven, and the failure of either element undermines the whole qualification. The second part of the note releases from liability the person who voluntarily ceased the act and surrendered the object — if the conduct contains no signs of another crime; under the third part a legal person is punished by liquidation or deprivation of the right to carry on activity and a fine.