In a decision of March 7, 2017, the Swiss Federal Supreme Court confirmed the conviction by the first instance Swiss Federal Criminal Court against two Iraqi men for being member of a criminal organization. The convicted were in the view of Switzerland's highest court active members of the "Islamic State" (IS) which the court considered a terrorist organization. Conversely, the first instance Swiss Federal Criminal Court must reconsider and lower its March 18, 2016, decision in terms of the four-year and eight-month imprisonment sentences imposed.
"It was disputed as to whether subordinated criminal contributions are sufficient to make a person a member of a criminal organisation."
The Swiss Federal Supreme Court dismissed the complaints of the two convicted Iraqi men with regard to the conviction of "participation in a criminal organization" (Art. 260ter of the Swiss Criminal Code). The bone of contention was as to whether their subordinated criminal contributions were sufficient to make them a member of the criminal organisation, whilst the highest court in Switzerland considered it as established that the IS remains an obvious criminal organization.
According to the Swiss Federal Supreme Court, a participation in a criminal organization does not require that a criminal perpetrator belongs to the inner circle of a criminal group, i.e., even those who are part of the extended circle and who are willing to follow the orders given in the long term are involved in the criminal organization - this regardless of their formal position in the organization.
"A criminal organisation is structured group of at least three persons, who have decided to operate on a permanent basis regardless of their current personal composition."
In the view of the Swiss Federal Supreme Court, Art. 260ter of the Swiss Criminal Code requires a structured group of at least three, in general, more persons, who have decided to operate on a permanent basis regardless of their current personal composition. A criminal organisation is also characterized by the submission of their members under systematic instructions, a division of labor, and a sort of professionalism which prevails in all stages of the criminal activities. In addition, the concept of a criminal organization requires the confidential preservation of the criminal organisation's structure. All these tests were met according to the Swiss Federal Supreme Court.
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