What makes a criminal gang

OK, union, gangOrganized crime, association, gang


Initiator, helper and accomplice
  instigator
  attempted incitement to crime
  mate
  Helpers and followers
  Accomplices
  indirect perpetrator
  Sideline
band
Union
  Total will
  horizontal organization
  hierarchy
  cartel
  syndicate
Organized crime
  Definition in the RiStBV
  Situation report OK (BKA)
  Periodic safety report (BMI)
  features
  Exchange of experiences
  Edge offenders, backers
  Initiative investigations
 


Criminal self-organization harbors a particular risk potential, whereby the term organized crime - OK - is based on a general organizational term, without excluding hierarchical forms, division of labor, group-internal forms of justice ("association penalties").

The (criminal) association ( Section 129 of the Criminal Code) has been limited by the case law to the fact that it must have a horizontal structure in which all those involved must submit to a uniform group will with the aim of committing criminal offenses. The gang differs from this if it has a vertical management structure with a charismatic leader or a management level that prefers to enforce its own and changing interests within the organization.

The classic robber and pirate gangs are therefore usually "gangs" and not "associations".
 

The initiator, the helper and the accomplice 

 
German criminal law knows very different ways in which several people can work together criminally.

In advance you can Initiators Act. This is above all the "cowardly"instigator ( 26 StGB), who does not want to commit an act himself, but determines someone else to do so (pushes, chooses, buys). With regard to particularly serious offenses (crimes, Section 12 (1) of the Criminal Code), not only is the attempt always a criminal offense ( § 23 Abs. 1 StGB), but also the "contract initiation", i.e. the attempt to instigate ( Section 30 (1) of the Criminal Code).

The initiators also include advertisers for criminal ( Section 129 of the Criminal Code) or terrorist organizations ( Section 129a of the Criminal Code) or those who reward and approve of criminal offenses ( § 140 StGB) or with detailed descriptions to try out and carry out criminal offenses ( Section 130a of the Criminal Code). These special criminal provisions affect the criminal law of convictions and must therefore be limited to particularly blatant cases in which freedom of expression ( Art. 5 GG) must take a back seat to the general public's interest in peace (an unspoken prerequisite for any state order, a natural right to general security, so to speak).


Also the helper, Accomplices and supporter can be punishable by law.

It starts with that Assistants ( 27 StGB), which helps a little, but is not privy to the complete crime plan and does not want to realize it as a whole.

From a moral point of view, the other helpers and followers are no better. This refers to those who present themselves as civil servants (acceptance of benefits, Section 331 of the Criminal Code; Bribery, § 332 StGB) or let decision-makers in business life bribe ( § 299 StGB), help to make assets disappear (money laundering, § 261 StGB), or the liars and silent ones who withhold their knowledge (favoritism, Section 257 of the Criminal Code; Thwarting punishment, § 258 StGB) or incriminate innocent persons (pretending to be a criminal offense, § 145d StGB). Most of them are not upright and self-confident citizens and democrats - let me say that.
 


 

Perpetrators who have a common crime plan and carry it out together or in a division of labor are Accomplices and are punished equally ( Section 25 (2) of the Criminal Code).

In connection with the majority of perpetrators, there are two more peculiarities: The indirect perpetrators has his own plan of action and acts on his helpless helper (child, insane, helpless or inexperienced) in such a way that he carries out the deed in his place. He is punished like a handwritten perpetrator. Indirect perpetration differs from incitement in that the incited person draws up and executes his own crime plan, while the assistant in indirect perpetration becomes a tool in the perpetrator's plan.
 

Finally, a seldom encountered constellation is thatSideline, in which two perpetrators independently form and carry out a plan of action in order to violate the same law. They are both punished as perpetrators. This could be, for example, two murderers who are trying to kill the same person using different methods at the same time. Secondary perpetrators can also be two company managers who pollute a river at the same time and in close proximity to one another. In the area of ​​property crimes, I have occasionally noticed secondary perpetrators (especially in connection with bankruptcy).
 

The gang 


The law often classifies the gang-wise commission of a crime as a particularly serious case (e.g. gang-type fraud, Section 263 (3) No. 1 StGB) or independent offense in the foreground (e.g. serious human trafficking, Section 232 Paragraph 3 No. 3 StGB; Gang theft, Section 244 (1) No. 2 StGB).

Clarity about what a gang is has due to the Order for reference of the 4th Criminal Senate of October 20, 2000 - 4 StR 284/99 - the Grand Senate of the Federal Court of Justice with its Resolution of March 22nd, 2001 - GSSt 1/00 ​​- created (guiding principles):

1. The concept of a gang presupposes the union of at least three people who have joined forces with the will to commit several independent, individually still uncertain offenses of the type of crime specified in the law for a certain period of time. It is not necessary to have "established gang will" or to "act in an overriding gang interest".
 


2. The offense of gang theft does not require that at least two gang members commit the theft together locally and temporally. It is sufficient if one gang member as the perpetrator and another gang member cooperate in some way during the theft. The removal act itself can also be carried out by an offender who is not part of the gang.

This makes it clear that a gang must consist of at least 3 participants, but they do not necessarily have to be involved in the direct execution of the crime. The assistant who scouts the scene of the crime (baldowert) or procures escape vehicles also acts as part of the gang, as does the assistant who removes the stolen property or uses it for profit (in individual cases there may be difficulties in distinguishing between stolen goods and stolen goods, §§ 259, 260, 261 StGB).

The principles developed by the BGH using the example of gang theft apply to every gang if the law particularly emphasizes their criminal liability.
 

The Union 


In contrast, the case law for the criminal ( Section 129 of the Criminal Code) and the terrorist organization ( § 129a StGB) a special group identity and a common will, without the association actually having to carry out its planned crimes ( Promoting a terrorist group, Criticism of semantic evidence, terrorist group).

The BGH has developed the applicable principles in various decisions. Because of the question of group will, the most detailed explanation seems to me in the Judgment of the BGH of October 21, 2004 - 3 StR 94/04 -, p. 7 f., To have been made:
 


An association is then directed to the commission of criminal offenses if this is the binding purpose which the members have undertaken to achieve. The organization of the association must be designed for the purpose of the joint commission of criminal offenses (Rudolphi in SK-StGB § 129 marginal note 9; the other in FS for Bruns p. 321; cf. also Bubnoff in LK 11th ed. § 129 32; Lenckner in Schönke / Schröder, 26th edition, Section 129, marginal 7; Tröndle / Fischer, StGB 52nd edition, Section 129, marginal 13). Only then can the activities of the association develop the dynamic of its own, which justifies its particular dangerousness and which is the reason for the forward shift of criminal protection determined by Section 129 of the Criminal Code (BGHSt 28, 147, 148 f.). It follows from this that the common will to commit criminal offenses must be firmly defined and not only vaguely or, in particular, dependent on the result of further decision-making processes.


 

Not every group that agrees to commit crimes is, according to this, an "association".

Rather, case law calls for a unifying group identity, i.e. for a collective will to which all members submit at the same time (see right column, Judgment of the BGH of March 16, 2004 - 5 StR 364/03 -, p. 6 f.).

Classic criminal gangs do not fit into the scheme described by the BGH because they are usually headed by a charismatic "captain", under whose private will the other gang members submit. But that's only one thing band and not already an (independently punishable) association.

The quotation on the right also characterizes the difficulties with the delimitation. The BGH recognizes that an association can also have a governing body if its establishment is supported by the common group will.

In other words: The BGH demands one from the association horizontal organizationto which all those involved submit with the same will and the same powers. Hierarchical structures and especially a vertical division of labor therefore fundamentally rule out a union.

The regional court rightly denied the requirements of Section 129 StGB. A criminal organization within the meaning of Section 129 (1) of the Criminal Code is a permanent organizational association of at least three people who, if the will of the individual is subordinate to the will of the whole, pursue common (criminal) purposes or have common goals within the territorial scope of the Basic Law Develop (criminal) activities and are related to one another in such a way that they feel as one unified association with one another. Such a union implies the subordination of the individual to the Will of the whole ahead. If the individual only submits to the will of another individual, the other person here always only represents his own will, not that of a majority standing behind him. The mere will of several people to commit crimes together, because the will of the individual remains decisive and there is no subordination to a group will, does not yet create a criminal organization. This also applies when one person is used as a leader by whom the others act. The detection of criminal manifestations of this kind serve criminal provisions, which threaten the gang-like commission of certain crimes with higher punishment. This does not exclude that this group will is aimed at assigning decision-making powers to one of the members, with the result that the other members submit to his will (BGHR StGB § 129 group will 1 with further references).


 

Organized crime in its most common manifestations, on the other hand, is based on the division of labor and isolation of the groups based on the division of labor, as well as on hierarchies that preclude the formation of joint opinions. As a rule, its members do not form an association, but rather a company with a central management instance (comparable to the Group and especially the Holding).

Criminal associations in economic life are therefore generally excluded because commercial enterprises and associations are in principle constructed hierarchically and have a central management instance (GmbH: managing director, Section 35 (1) GmbHG; Aktiengesellschaft: Board of Directors, Section 76 (1) AktG).

The BGH explains clearly ( Judgment of April 6, 2001 - 2 StR 356/00, p. 12 f.):

The established system of fraudulent activities that has only developed over time lacks, among other things, the prerequisite for an overarching group will that is binding for all parties involved. This can also be the case if the members of the association assign decision-making powers to another member and subordinate themselves to his will (BGH NJW 1992, 1518; NStZ 1999, 571; BGHR StGB § 129 group will 1). But that is not the case here. Because the defendants R., E. and Gl. Although they occupied a prominent position in the factories, they had to submit to the authority of the managing partner, the Defendant W., whose consent they had to obtain before all important decisions, who gave the instructions for false declarations and the money for the "loading aids" "provided. According to the findings, this was not based on a shared group will, but on their position as employees under labor law. That Dr. J. and W. have formed a criminal association with people outside of their company association, do not substantiate the findings.


 

A horizontal structure shows that in connection with economic lifecartel on. Its members are basically independent companies from the same industry, which, because of a spatially limited market, coordinate either with regard to sales, pricing or the purchase of raw products and thus, similar to that Monopoly, want to achieve a dominant position. Such agreements are after Law against Restraints of Competition - GWB - fundamentally prohibited and only permitted to a very limited extent (e.g. as a medium-sized cartel as a counterweight to dominant companies, Section 3 GWB).

This is a special form of cartel syndicatebecause it is not an amalgamation of companies in the same market segment, but rather has a vertical structure. In its pure form, it connects all stages of production through to sales:
 

  1. Production of raw materials
  2. Delivery of raw materials (logistics)
  3. Finishing, manufacture of goods
  4. Delivery of the goods
  5. Sales, e.g. in shops
  6. Distribution of profit

Syndicate-like structures can often be seen in connection with criminal organizations, e.g. in connection with narcotics, gang theft, in Phishing or the Skimming.

According to jurisprudence, the vertical structure of the syndicate basically excludes it from being viewed as a criminal organization. A different assessment can only be possible if all of its participants bear the common will of the cartel without exerting economic influence on one another, i.e. without any pressure of domination.
 

Organized crime 

 
Organized crime - OK - is mostly gang crime. It is defined by the AG Police and the judicial administrations of the German federal states in Annex E to the guidelines for criminal and administrative fine proceedings - RiStBV - as

the planned commission of criminal offenses, determined by the pursuit of profit or power, which, individually or in their entirety, are of considerable importance, if more than two participants share the work for a longer or indefinite period

  • using commercial or business-like structures,
  • using force or other intimidating means, or
  • influencing politics, the media, public administration, the judiciary or the economy

work together.
(please refer Organized crime)

 
The law does not recognize the OK as an independent form of crime. For this reason, there is not always agreement in individual cases as to whether a criminal manifestation is to be attributed to the OK or not. The Federal Criminal Police Office therefore takes the justified position that all criteria from the introductory definition and at least one feature from the list below must be met (see Organized crime situation 2005 Federal Republic of Germany (short version, p. 8).

The shows the difficulties with the delimitation Periodic safety report of the Federal Ministry of the Interior (2006), in which among other things is performed:


 

Professional groups of perpetrators and organized crime

Organized crime is characterized by particularly tight isolation from outsiders. ...
Organization "alone is not a sufficient criterion to differentiate between other types of majorities involved in criminal offenses: All perpetrator communities, groups, more firmly established gangs and criminal associations require a certain degree of organization if their actions or projects are to succeed in the long term and bring financial success. The constant threat of persecution pressure on the part of the authorities also requires organizational precautions to maintain protection against discovery, evidential eviction and punishment.
Violence is inseparable from every form of organized crime. However, it is mainly about forms of latent or, for the initiated, open threats with their immediate use. Current violence is generally used relatively rarely. If this happens, it serves reprehensible purposes by law, but from an internal point of view it serves rational purposes in the sense of a kind of parallel justice.

Empirical studies on organized crime in Germany have been carried out since the late 1960s. According to their results, the most highly developed form of this crime has been predominantly so-called networks of professionally organized perpetrators in this country, who act in a business-like manner, plan all aspects of criminal offenses rationally in advance, from preparation to exploitation, and are consistently supraregional or internationally oriented.
There are signs of the establishment of primarily foreign, strictly hierarchically structured criminal groups in Germany. As an example, groups of Italian organized crime (Cosa Nostra and ’Ndrangheta) as well as Turkish or Kosovar-Albanian structures can be used. Due to the immigrant communities that have been based there for a long time, they have appropriate contact points in Germany.
Also such Groupings shouldregularly Not as bureaucraticor even quasi-militarily full well-organized syndicates misunderstoodbecome.


 

The most recognized features for defining OK are addressed in the quote.

The focus is on the - often unspoken - threat of violence against outside parties and against its own group members, with which the OK expresses itself. Isolation can lead on the one hand to the group's own sanction systems and on the other hand to support the relatives if a group member dies or is temporarily prevented (hospital, correctional facility, hiding).

These manifestations - together with a regular hierarchical structure - predominantly exclude OC organizations as criminal organizations.

Incidentally, the characteristics for OK depend on the type of crime ("nightlife", drug trafficking) and the modalities of its commission (central exploitation of the loot, professional execution of the crime, use of modern techniques and scientifically demanding procedures, cross-border division of labor in the execution and exploitation of loot) .

The characteristics for OK essentially concern the internal competence of police authorities and public prosecutors.
 

However, three special features from Annex E to the RiStBV should be emphasized:

  1. All law enforcement (public prosecutor, police, customs, tax investigation) and investigative authorities (secret services, constitutional protection) are obliged to exchange experiences and to inform each other.
     
  2. In OK matters, the public prosecutor is empowered, regardless of the principle of legality ( § 152 Abs. 2 StPO) to put the prosecution of "fringe offenders" on hold in order to determine the structure of the organization and its backers.
     
  3. In addition, the public prosecutor's office in OK matters tooInitiative investigations empowered. They serve to clarify the question if a There is an initial suspicion. You have to limit yourself to such knowledge that can be obtained without compulsion (no sovereign acts, no authority to intervene for initiative investigations). However, they also include the findings from other investigative proceedings, even if they were collected there with coercive measures.

The regulatory authority (highest state authority) can restrict and control the discretion of administrative authorities by means of an ordinance. This has been done nationwide and with a sense of proportion because of the OC crime in Annex E to the RiStBV.

This is also one of the main reasons that I am aware of the AG Offenburg's latest decision on I am somewhat angry with the disproportionate nature of provider inquiries to IP addresses.
 

Cyber ​​investigators 

 

 

 

 

 

 

 

 

 

 

© Dieter Kochheim, March 11th, 2018