Max Planck Institute for Foreign and International Criminal Law

An empirical research project that concerns itself with the legal answers to organized crime should draw on a variety of sources. Two out of many are looked at here specifically: through the agency of the Office of Criminal Investigation in the State of Baden-Württemberg, interviews were arranged with ten perpetrators classed by the police as involved in organized crime, most of whom were in detention at the time the study took place. The principal subject of discussion was the view of organized crime. Since some of the offenders were in police witness protection programs, questions could also be asked about the practical aspects of witness protection.

At the heart of the study, however, lay an analysis of the files on 52 cases – or rather complexes – of organized crime. The classification of a complex of cases as organized crime is here a matter for the prosecuting authorities, the police and the public prosecutor’s office, who have for some while applied a working definition of organized crime.

It states that: “Organized crime constitutes the planned commission of criminal offences driven by the quest for acquiring profits or powers. Such criminal offences have to be, individually or in their entirety, of major significance and involve the co-operation of more than two participants acting with a common intent for a longer or indefinite period of time on a distributed-task basis
a.) by utilisation of commercial or business-like structures       
b.) by application of violence or other methods suitable for achieving intimidation or    
c.) by exerting influence on politics, the media, public administrations, the justice systems, or commerce and industry.”

The difficulties associated with this definition can here only be hinted at. Does it, for example, constitute a case of organized crime if one person in Germany steals a car, a second person makes false registration plates and a third sells the car abroad? If so, what distinguishes modern organized crime from classic gang crime of the kind we have known since the Middle Ages?

Since a complex case of organized crime almost always embraces several and often very many investigations, the project actually looked at over 200 criminal proceedings. The 52 cases studied were selected to include 26 with a high level (so-called Category A case complexes) and 26 with a low level (Category B) of organized criminal significance. Our aim was to ensure coverage of the whole spectrum of organized crime. Of the 52 case complexes analyzed, 20 – almost 40 percent – were centered on drug-related crimes. 15 of these were Category A complexes. The remaining cases covered a broad range of offences.

In terms of criminal groups, the study of the 52 sets of organized crimes provided a sobering picture. Combinations of offenders, which might be regarded as independent criminal organizations on grounds of their extensive membership, the specific scope and extended duration of their criminal activities, the resulting profits and a certain identity which goes beyond the interests of single individuals, were scarcely in evidence. Even among the specially selected Category A case complexes, in no case were more than 20 principal offenders charged. Surprisingly, more than half – 60 out of 110 – of the charges against the main suspects were leveled at one person only.

This leads to the conclusion that offences recorded as organized crime are frequently lacking in any structure which would make it practicable to combine the acts committed by several accused persons in one charge. This consideration is supported by the fact that organizational features on the part of groups of perpetrators are established only in very few verdicts. It was most likely that a concrete division of labor and a certain hierarchy were in evidence. The courts accordingly refrained from characterizing cases as organized crime and describing groups as criminal organizations.

Three case complexes – all of them involving drug crime – in which the verdicts contained the clearest structures, were analyzed in depth. Aspects common to all three situations were the core participation of persons closely linked by family or friendship who shared the same nationality or ethnic origin and who imported narcotics from abroad and sold them in Germany. Inasmuch, one might use the term criminal family businesses.

Where criminal cooperation between multiple persons persists over an extended period and thus exhibits a certain stability, over and above the profit motive, the parties involved are generally linked by factors that lend a group identity (membership of ethnic and/or linguistic minorities, intensive friendships and above all family relationships). In most cases, however, the relations between the participants – which by their very criminal nature are not legally codified – appeared to be determined by the individual intention of making a profit, which tends not to encourage the development of stable structures.

Indications of the accuracy of this thesis came from the interviews with organized criminals. They overwhelmingly denied the existence of organized crime in Germany. When questioned, these persons emphasized in some cases that theirs was a business operation in which each party operated on own account “just as in normal business” and was only independently “organized.” Accordingly, the financial interest of the individual predominated.

To summarize, the criteria that distinguish the cases under consideration from those classed as ordinary, non-organized crime might include victimless criminality, a high proportion of foreign nationals and the international nature of the offence. In addition and with a lower order of precedence one might list a certain division of labor and degree of permanence as well as method, professionalism and conspiracy. The term organized crime cannot, as previously supposed, be used in Germany to identify a particular form of criminality. It is, rather, the case that a new approach to investigation and prosecution has developed under this heading which deviates in certain important aspects from traditional criminal proceedings and which is only inadequately regulated by the Code of Criminal Procedure.

Investigative proceedings in the field of organized crime do not adhere to the pattern in which a criminal act is followed by the gathering of information, which, in turn, leads to the crime being solved. Investigations into organized crime are ideally determined by the prosecuting authorities themselves: they are actively instigated at the decision of the authorities. This new form of investigation is not primarily aimed at solving crimes which have been committed, but is directed towards persons or criminal groups. By transferring the focus of their activities to a point preceding a suspicion of a concrete criminal act, the police have acquired substantial powers of definition. Traditionally, one of the main focuses of police efforts to combat organized criminality is on drug crime.

The active initiation of proceedings is frequently associated with the use of covert means of investigation. Particularly in the extensive Category A cases, there was evidence of massive use of these methods, the most frequent being telephone tapping (used 38 times), gathering telephone call data (21 times), the use of confidants and informers often with a criminal background (29 times) and undercover investigators (21 times). On 15 occasions so-called fictitious bargains were undertaken in which drugs were purchased from suspects on the initiative of the police. Of lesser importance were police observations (ten cases) and eavesdropping – bugging outside of residential premises – which took place eight times. The prosecutory authorities use covert measures above all to combat drug crime.

Since one of the characteristics of organized crime is by definition the repeated commission of offences, the authorities in their investigations regularly come across a (criminal) situation that gives cause to expect both past and future criminal activity on the part of the target person(s). Because the indications of (victimless) crimes committed are generally very vague, the focus of investigation is changing. In the fight against organized crime, the traditional retrospective investigation of offences is no longer in the forefront. Rather it is a matter of observing, monitoring and on occasion even encouraging ongoing criminal activity.

On the other hand the legal program of investigative measures laid down in the Code of Criminal Procedure (StPO) is tailored to suit their traditionally intended function: solving crimes that have already been committed. There is, therefore, a diverging gap between the actual objective of the measures employed – the documentation of crimes, which have generally yet to happen and the detection of other parties to criminal transactions – and the prerequisites laid down by law, which are aimed at establishing past acts. As a result a large number of the court orders usually completed by examining judges are inappropriately formulated because the object of, and the legal prerequisite for the action ordered are not coincident.

Over and above the lack of congruence between the prerequisites for and the actual objective of these interventionary measures, in the case of telephone tapping for example, it was evident from a whole series of necessary court orders that, at present, these orders do not ensure the wholly effective protection of constitutional rights. In many cases the examining judges found it sufficient to fill out an order preformulated by the public prosecutor’s office, for which reason it cannot be assumed that there was either any independent justification or possibly even adequate examination of these measures. The present considerations of the ministry of justice as to how the requirement for judicial authorization can be more efficiently delineated are therefore to be welcomed.

As was to be expected, at just less than two years, the average overall duration of proceedings in the cases analyzed was relatively long. Nevertheless, the time was frequently kept within tolerable bounds only because the parties to the proceedings concerned extensively availed themselves of procedural “arrangements.” This was also evident from the fact that in almost two thirds of the proceedings the verdict was based on a confession by the accused or a codefendant. This is counter to the generally prevailing opinion that organized crime investigators are confronted with a wall of silence.

These consensual arrangements in court are, to a large extent, favored by the special nature of organized crime proceedings: the extent of the investigations – in one case up to 40 000 telephone calls were tapped – is conducive to an agreed result, as is the mass of material to be processed which results from long-term criminal activity involving multiple parties.

The incomplete revelation of the full circumstances can be of benefit to all parties to the proceedings, as the accused and the defense team do not run the risk of an intensive quest for the truth, bringing previously unknown offences to light. The methods of investigation employed by the prosecutory authorities frequently entail legal problems that extend as far as the participation of government agencies (for example confidants and informers led by the police) in criminal acts. Ultimately, all those involved gain substantially in terms of working resources. Consequently, this leads to the large-scale management of organized crime.

This would be less of a problem were these arranged results regulated. However, that is not the case. A detailed analysis of cases brought to a mutually agreed conclusion did show that the acceleration of proceedings was frequently mentioned as a mitigating factor. However, it did not appear that any consideration was given to the time of the confession and the associated saving in judicial resource. On the contrary, in individual cases a particularly promising strategy on the part of the defense seems to be to first argue the point and, in so doing, make the court aware of the potential scope of the main hearing if the accusations were to be aired in full detail.