Organised criminal groups in Romanian criminal law – a 2025 practitioner’s guide
1. Introduction: why the offence of participation in an organised criminal group matters today
Over the last two decades, the expression “organised criminal group” has moved from specialist jargon into mainstream public discourse. It appears constantly in DIICOT press releases, in high-profile indictments and final judgments, and in media narratives about corruption, tax fraud or drug trafficking. For anyone under investigation, the qualification that certain acts were committed by an “organised criminal group” fundamentally changes the stakes: penalties increase, competence shifts to specialised prosecutors, intrusive investigative tools (interceptions, undercover investigators, controlled deliveries) become easier to justify and the reputational impact is dramatic.
Under Article 367 of the Romanian Criminal Code, the initiation or formation of an organised criminal group, joining such a group or providing support “in any form” is a separate offence, punishable even if the offence pursued by the group is never completed. The basic form of the offence is sanctioned with imprisonment from one to five years, while the aggravated form reaches three to ten years when the group pursues an offence punishable by life imprisonment or more than ten years of imprisonment. [Article 367 Criminal Code, as reproduced in “Art. 367 Noul Cod Penal – Constituirea unui grup infracţional organizat”, LegeAZ].
At the same time, the notion of “organised criminal group” in Romanian law must be read against the background of European instruments. Council Framework Decision 2008/841/JHA on the fight against organised crime requires Member States to criminalise participation in a criminal organisation, defined as a structured association of at least three persons acting in concert to commit serious offences. [Council Framework Decision 2008/841/JHA of 24 October 2008, OJ L 300/42, available on EUR-Lex]. Later, Regulation (EU) 2017/1939 establishing the European Public Prosecutor’s Office (EPPO) and Directive (EU) 2017/1371 (the PIF Directive) placed organised groups targeting the EU’s financial interests – particularly complex VAT fraud schemes and subsidy fraud – at the centre of EU criminal policy. [Council Regulation (EU) 2017/1939 of 12 October 2017, OJ L 283/1; Directive (EU) 2017/1371 of 5 July 2017].
This article aims to provide a practitioner-oriented, up-to-date overview of the offence of participation in an organised criminal group in Romanian law: the domestic legal framework, the key cumulative elements required by Article 367, the relationship with other offences and with EU law, and the main practical issues that defence lawyers and defendants face. It does not constitute legal advice and cannot replace a case-specific assessment, but it is designed as a roadmap for those who need to understand, in concrete terms, what is really at stake when the “organised criminal group” label appears in an indictment.
2. Domestic legal framework: from Law no. 39/2003 to the current Criminal Code
Modern Romanian legislation on organised crime started with Law no. 39/2003 on preventing and combating organised crime. The law defined an “organised criminal group” as a structure of three or more persons, set up for a period of time and acting in concert in order to commit one or more “serious offences” to obtain, directly or indirectly, a financial or other material benefit. The core offence was criminalised in Article 7, which punished the initiation or formation of such a group, joining it or supporting it in any way. [Law no. 39/2003, Articles 2 and 7, as published on the Portal Legislativand in legal databases; see also the doctrinal notes quoted by Delia Tișman in her commentary on Article 367 NCP on LegeAZ].
With the entry into force of the new Criminal Code (Law no. 286/2009, applicable as of 1 February 2014), the legislator decided to abandon the dual system (Criminal Code plus special act). The offence was absorbed into Article 367 Criminal Code, while Articles 7 and 8 of Law no. 39/2003 were expressly repealed by Law no. 187/2012 on the implementation of the new Criminal Code. [Law no. 187/2012, Article 126; Law no. 39/2003, as consolidated and annotated on the Portal Legislativ]. Importantly, Law no. 39/2003 has not vanished from the legal landscape: it continues to regulate preventive measures, specialised structures and certain procedural aspects, even though the core criminalisation has migrated into the Criminal Code. [Law no. 39/2003, updated text 2025].
A second key pillar was Law no. 508/2004, which established the Directorate for the Investigation of Organised Crime and Terrorism (DIICOT) within the Public Prosecutor’s Office, granting it competence for organised crime offences, including those under Law no. 39/2003 and, later, Article 367 Criminal Code. This law was repeatedly amended and eventually replaced by Government Emergency Ordinance (GEO) no. 78/2016, which now governs DIICOT’s organisation and jurisdiction. [Law no. 508/2004 and GEO no. 78/2016, as summarised on the Portal Legislativand LegeAZ]. Consequently, the present system is a composite one: the Criminal Code, the Code of Criminal Procedure, GEO no. 78/2016 on DIICOT, the statutes of the National Anticorruption Directorate (DNA), and, where applicable, the EPPO Regulation together determine which authority is competent in a given organised crime case.
3. The legal definition of an organised criminal group: cumulative elements
Article 367(6) Criminal Code defines an organised criminal group as “a structured group, formed of three or more persons, constituted for a certain period of time and acting in a coordinated manner for the purpose of committing one or more offences”. [Article 367(6) Criminal Code, as reproduced on LegeAZ]. Four cumulative requirements follow from this definition, which Romanian doctrine has consistently underlined: (i) the existence of a structured group; (ii) a minimum of three persons; (iii) some degree of stability over time; and (iv) coordinated action with the specific purpose of committing one or more offences. [Delia Tișman, commentary on Article 367 NCP, LegeAZ; Av. Iugan, Codul penal adnotat – parte specială].
The notion of “structured group” is modelled on the definition of “criminal organisation” in Council Framework Decision 2008/841/JHA, which refers to a structured association, existing for a period of time, of more than two persons acting in concert to commit serious offences. [Council Framework Decision 2008/841/JHA, Article 1, EUR-Lex]. Romanian law, however, no longer restricts the scope of Article 367 to groups pursuing “serious offences” or material benefits; it suffices that the group aims at the commission of “one or more offences”, regardless of their statutory gravity, while the seriousness of those offences is reflected in the aggravated form under Article 367(2).
In practice, distinguishing a “structured group” from simple co-perpetration or occasional complicity is often the core contentious issue. Courts look for indicators such as a relatively stable membership, some degree of internal role-allocation (leaders, recruiters, logisticians, “soldiers”), continuity of activity, and a plan that goes beyond the single offence examined in the case file. The High Court has repeatedly emphasised that the mere fact that three or more persons act together in committing one offence does not automatically mean that an organised criminal group exists. [See, for instance, HCCJ Decision no. 18/2017 and the case-law synthesised in the annotated Criminal Code]. This is particularly relevant in economic crime and fraud cases, where contractual relations or routine cooperation can easily be confused with “organised crime” if the analysis is superficial.
4. Autonomy of the offence and its relationship with other crimes
Article 367 creates an autonomous offence, separate from the offences that constitute the group’s objective. Paragraph (3) states that if the conduct described in paragraphs (1) and (2) is followed by the commission of an offence, the rules on concurrence of offences apply. [Article 367(3) Criminal Code]. A defendant can therefore be convicted both for participation in an organised criminal group and for the predicate offences (e.g. drug trafficking, aggravated tax evasion, EU funds fraud), provided that the legal and factual requirements of each offence are met. Romanian scholars describe Article 367 as a “framework incrimination” that sanctions the additional danger created by the existence of an organised structure, on top of the danger associated with each individual offence. [Delia Tișman, LegeAZ; Av. Iugan, Codul penal adnotat].
The High Court of Cassation and Justice has clarified, by Decision no. 10/2015 (preliminary ruling on matters of law), what happens when the offence pursued by the group has been decriminalised with the entry into force of the new Criminal Code. The Court held that if the predicate offence is no longer incriminated, the essential requirement of “typicality” for Article 367 is no longer met; as a result, criminal liability for participation in an organised criminal group cannot be upheld. [HCCJ Decision no. 10/2015, published in Official Gazette no. 389/2015, with summaries available on the Court’s website and in Universul Juridic]. The decision confirms the conceptual link between the existence of a criminal group and the existence, in parallel, of at least one offence that remains criminalised under current law.
Later, by Decision no. 20/2019, the High Court examined the aggravated form under Article 367(2) and its relationship with specific aggravating circumstances of the predicate offence, an issue that frequently arises in economic and corruption cases. [HCCJ Decision no. 20/2019]. Combined with the high penalties for certain predicate offences, the cumulative application of Article 367 and of special aggravating circumstances can lead to very severe overall sentences, which makes the analysis of the more favourable criminal law particularly important in cases spanning multiple legislative regimes. Doctrinal analyses, such as the article on avocat-coldea.ro regarding limitation periods for Article 367, highlight how the maximum penalty and the concept of “continuous offence” influence both prescription and the assessment of which law is more favourable. [“Termenul de prescripţie a răspunderii penale pentru săvârşirea infracţiunii de grup infracţional organizat…”, avocat-coldea.ro].
5. Sanctions, special impunity clauses and sentence reductions
The basic form of the offence under Article 367(1) is punishable by imprisonment from one to five years and the prohibition of certain rights; the aggravated form under paragraph (2) carries three to ten years of imprisonment when the group pursues offences punishable by life imprisonment or by more than ten years of imprisonment. [Article 367(1)-(2) Criminal Code]. In multi-offence cases, where Article 367 appears alongside drug trafficking, tax fraud, money laundering or EU funds fraud, the cumulative sentences reached under the rules on concurrence can be very substantial.
At the same time, the legislator has provided two important mechanisms of criminal policy: a special cause of impunity and a special cause of mitigation. Under Article 367(4), a person is not punished if he or she denounces the organised criminal group to the authorities before it has been discovered and before any of the offences pursued by the group have been started. Under Article 367(5), the limits of the penalty are reduced by half for the person who, during the criminal investigation, facilitates the discovery of the truth and the bringing to justice of one or more members of the group. [Article 367(4)–(5) Criminal Code].
These provisions operate in parallel with Law no. 682/2002 on witness protection, in particular Article 19, which allows the reduction by half of the statutory penalties for a “denouncing witness” who significantly facilitates the discovery and prosecution of other participants. In Decision no. 79/2021, the High Court clarified the conditions under which this benefit may be granted to a defendant who is also a denouncer, stressing that prosecution in personam must be opened in the case in which the person has the status of denouncing witness and that all statutory conditions must be cumulatively met. [HCCJ Decision no. 79/2021, widely commented in Universul Juridic and INM practice materials]. In organised crime cases, combining Article 367(5) with Article 19 of Law no. 682/2002 can radically change the sentencing outlook, especially for lower-ranking members willing to cooperate with the authorities.
From a defence perspective, deciding whether and when to cooperate is a strategic choice, not a purely moral one. It requires a realistic assessment of the strength of the evidence, the role actually played by the client within the group, the potential overlap between DIICOT, DNA and EPPO jurisdiction, and the likelihood that cooperation will be valued in sentencing. At EU level, both the PIF Directive and the EPPO Regulation underscore the importance of cooperative defendants in dismantling cross-border criminal networks, which is also reflected in EPPO’s annual reports and guidelines. [Directive (EU) 2017/1371; Regulation (EU) 2017/1939; EPPO Annual Report 2023].
6. The European dimension: PIF offences and EPPO practice
As an EU Member State, Romania’s approach to organised crime is also shaped by supranational obligations. The PIF Directive sets minimum rules on the definition of criminal offences and sanctions in the area of fraud and other illegal activities affecting the Union’s financial interests, including serious forms of VAT fraud and complex subsidy schemes. [Directive (EU) 2017/1371, recitals 10, 22–28 and Articles 7–9; see also C. Di Francesco Maesa, “Directive (EU) 2017/1371 on the Fight Against Fraud to the Union’s Financial Interests by Means of Criminal Law”, European Papers, 2018]. Many of these PIF offences are, in practice, committed by organised criminal groups which operate simultaneously in several Member States, making purely national investigations largely ineffective.
The establishment of the EPPO by Regulation (EU) 2017/1939 was a direct response to this reality. The Regulation grants the EPPO competence over PIF offences and “inextricably linked offences”, a category that often includes participation in an organised criminal group when the group’s activity is focused on defrauding the EU budget. [Regulation (EU) 2017/1939, Articles 22–25]. According to EPPO’s 2023 Annual Report, at the end of that year the Office had 1,927 active investigations, with an estimated damage to the EU budget of EUR 19.2 billion – 59% of which related to serious cross-border VAT fraud, typically involving sophisticated, multi-jurisdictional criminal organisations. [EPPO, “Annual Report 2023: EPPO warns that serious organised crime continues to feast on EU revenue”, press release and “2023 in numbers” section].
For Romanian practitioners, this means that certain cases which, from a domestic perspective, would be seen as “classic DIICOT cases” under Article 367 Criminal Code and tax or subsidy fraud provisions may actually fall within the EPPO’s competence. This has very tangible consequences: joint investigation teams with other Member States, coordination with OLAF, different expectations on the speed and scope of investigations, and, in some instances, a higher level of transparency in reporting due to the public nature of EPPO’s annual statistics. Recent analyses – such as the European Commission’s 2023 compliance assessment of national implementation of the EPPO Regulation and the Eucrim article “Compliance with the EPPO Regulation” – show that the interaction between national prosecutors and the EPPO is still evolving, and organised criminal groups targeting EU funds are one of the main testing grounds. [European Commission, “Compliance assessment of measures adopted by the Member States to adapt their systems to Council Regulation (EU) 2017/1939”, 2023; Eucrim, “Compliance with the EPPO Regulation”, 2024].
7. Practical challenges: evidence, limitation periods and over-extension of the concept
On the ground, three clusters of practical problems tend to dominate organised crime litigation in Romania.
First, evidence. Proving the existence of a “structured group” and of coordinated action over time is inherently difficult. Prosecutors typically rely on interceptions and other forms of technical surveillance, undercover operations, financial tracing, and the testimony of co-defendants who turn cooperating witnesses. In economic and cybercrime cases, the analysis of payment flows, shell companies, crypto-assets and digital infrastructure (servers, communication platforms, VPNs) plays a central role in demonstrating that what may look like isolated transactions are in fact part of a long-term, organised scheme. Risk-based guidance issued by Romanian AML authorities, such as the National Office for Preventing and Combating Money Laundering’s manual on risk-based approach, describes typologies in which organised groups repeatedly use the same corporate and banking structures; these analytical tools are increasingly relied upon in criminal proceedings. [ONPCSB, “Manual privind abordarea pe bază de risc și evaluarea riscurilor de spălare a banilor și finanțare a terorismului”].
Second, limitation periods. Because Article 367 is often charged in conjunction with offences committed over many years, questions inevitably arise as to when the offence is considered completed or exhausted and which version of the law is more favourable. This is particularly sensitive in cases that straddle the entry into force of the new Criminal Code and subsequent amendments, including Constitutional Court rulings on limitation periods. The High Court’s case-law (including Decisions no. 10/2015 and 20/2019) and doctrinal commentaries stress that the offence’s continuous or continued character, the applicable maximum penalty and the timing of the last relevant act must all be carefully assessed. [HCCJ Decisions no. 10/2015 and 20/2019; avocat-coldea.ro, op. cit.].
Third, there is a recurrent concern in practice that the “organised criminal group” label is sometimes used too broadly, in cases involving small-scale offences and loosely coordinated participants. Both doctrine and case-law warn that diluting the concept in this way undermines legal certainty and leads to disproportionate use of special investigative techniques and harsher sentencing regimes. [Dorin Ciuncan, “Constituirea unui grup infracţional organizat”, 2019; Delia Tișman, LegeAZ]. For defence lawyers, challenging the existence of a genuine organised criminal group – as opposed to a temporary, ad hoc association – often becomes the central line of argument.
8. Conclusions: defending against an Article 367 charge
From a defendant’s point of view, being charged under Article 367 Criminal Code is rarely a minor detail in an indictment. It dramatically increases sentencing exposure, justifies the use of invasive investigative powers and carries a heavy symbolic weight. At the same time, the legal definition of an organised criminal group is demanding: it requires proof of a structured, relatively stable association, acting in a coordinated manner over time, with a specific criminal purpose. Where the evidence is weak or ambiguous, there is room for robust defence strategies that focus on dismantling the alleged “structure” of the group and re-characterising the facts as ordinary co-perpetration or complicity.
A serious defence strategy must therefore integrate several layers: (i) a meticulous reading of the normative framework (Article 367 Criminal Code, Law no. 39/2003, GEO no. 78/2016, EPPO Regulation, PIF Directive); (ii) a close analysis of the High Court’s case-law (Decisions no. 10/2015, 18/2017, 20/2019 and 79/2021, among others); (iii) a forensic review of the evidence used to prove the existence of the group and each client’s role; and (iv) a forward-looking risk assessment regarding limitation periods and the possible application of more favourable law. In some situations, strategic cooperation under Article 367(5) Criminal Code and Article 19 of Law no. 682/2002 may be in the client’s best interest; in others, a firm, well-documented contestation of the organised-crime qualification will be more appropriate. This article is not a substitute for legal advice. Each case involving an alleged organised criminal group has its own internal logic, evidentiary structure and human dynamics. Anyone under investigation or indictment should seek assistance from a lawyer experienced in organised crime and EU-related financial crime, capable of reading not only the indictment and domestic case-law, but also the evolving practice of EPPO and other European actors in this field.
References and useful links
Annual PIF Reports – overview page (European Commission/OLAF) – https://anti-fraud.ec.europa.eu/about-us/reports/annual-reports-protection-eus-financial-interests-pif-report_en
Council Framework Decision 2008/841/JHA on the fight against organised crime (EUR-Lex) – https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32008F0841
Council Regulation (EU) 2017/1939 establishing the EPPO (EUR-Lex) – https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32017R1939
Directive (EU) 2017/1371 on the fight against fraud to the Union’s financial interests (EUR-Lex) – https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32017L1371
Directive (EU) 2017/1371 – analysis by Costanza Di Francesco Maesa, European Papers – https://www.europeanpapers.eu/europeanforum/directive-EU-2017/1371-on-fight-against-fraud-to-union-financial-interests
Compliance with the EPPO Regulation – Eucrim article (Engelhart, 2024) – https://eucrim.eu/articles/compliance-with-the-eppo-regulation/
Compliance assessment of measures adopted by the Member States to adapt their systems to the EPPO Regulation – Final Report (PDF) – https://op.europa.eu/webpub/olaf/pif-report-2023/en/
EPPO – Annual Report 2023 press release – https://www.eppo.europa.eu/en/media/news/annual-report-2023-eppo-warns-serious-organised-crime-continues-feast-eu-revenue
EPPO – 2023 in numbers overview – https://www.eppo.europa.eu/en/documents/2023-numbers
European Commission – PIF Report 2023 news – https://anti-fraud.ec.europa.eu/media-corner/news/pif-report-2023-progress-legislation-and-increased-transparency-2024-07-25_en