Formation of criminal associations

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The formation of criminal organizations is a criminal offense that is standardized in Germany in Section 129 of the German Criminal Code and is punishable by imprisonment for up to five years or a fine . A criminal organization in the sense of the regulation is understood to be a permanent association of at least three people whose purpose or activity is aimed at committing criminal offenses.

Legal situation in Germany

Background and details

The Basic Law deals with the criminal association in an abstract declaration of prohibition ( Article 9, Paragraph 2 of the Basic Law), the public association law , which regulates the regulatory implementation of the prohibition and the dissolution of the criminal association ( § 3 VereinsG ), and the criminal law , the criminalizes both the formation of and participation in a criminal organization.

The offense can be found in the Criminal Code in the section on offenses against public order and is primarily intended to cover organizational offenses .

For particularly severe cases, the fourth paragraph of the standard provides for tightening. In the first half of the sentence, the minimum punishment for two named (ringleaders and backers) and unnamed cases is increased to six months, while the maximum remains unchanged. If, on the other hand, the purpose of the association is aimed at particularly serious crimes, which are listed in the catalog of Section 100c (1) No. 1 of the Code of Criminal Procedure , the maximum penalty is ten years.

According to the prevailing opinion , the association must pose a significant threat to public safety in order for the offense to occur. For example, determined squatters who barricaded themselves in order to secure their (unlawful) property were not considered to be criminally liable for planned economic crimes with a company or for associations that wanted to organize illegal gambling . The considerable risk, however, was affirmed in one case in which people had come together for the purpose of high- profile , xenophobic property damage .

Function and development

According to the prevailing opinion, the legal interest of the norm is public safety and order . It is in the nature of organized crime that its actors often cannot factually be proven to have actually contributed to the crimes actually committed. The more the rule of law claims to a positive proof of guilt developed, the more unsatisfactory the results of criminal prosecution, especially those of the masterminds and backers of crimes committed by gangs, became. In most legal systems, attempts were therefore made to create catch- all offenses for this type of crime .

In the USA, for example, they managed to criminalize the so-called “conspiracy to steal” or the like, in Germany the problem was solved by submitting membership in a criminal organization in 1871 with the creation of the Reich Criminal Code in Section 129 Punished.

Soon after, however, the offense was also used to prosecute socialists and social democrats . During National Socialism , the abuse of the rule to combat opposition members reached its peak. Practically every dissident who got together with others was criminalized on the grounds that he was planning to form a criminal organization.

The criminal offense has been expanded several times in the course of its history. Originally only the formation of a criminal organization was a criminal offense, later the support and in 1964 the recruitment of new members or supporters for a criminal organization was made a criminal offense.

In the early years of the Federal Republic, those affected by preliminary investigations and convictions were primarily opponents of rearmament and communists . In the period from 1950 to 1968 there were over 100,000 preliminary investigations and around 10,000 convictions for involvement in a criminal organization.

In the 1970s the criminal offense was used against members of the Red Army Faction (RAF). In 1976, Section 129a of the Criminal Code was introduced in order to limit the sometimes unlimited application of the provision and to differentiate between associations with a criminal background and those with political terrorist motives . In it the formation of and participation in a terrorist organization is made a criminal offense; a delimitation of the terms is still open.

The 34th Criminal Law Amendment Act of August 22, 2002 changed the scope of application and partially restricted it. In the course of the fight against terrorism after the terrorist attacks on September 11, 2001 , the support of foreign criminal and terrorist organizations was also included in the scope of the norm through the newly created Section 129b of the Criminal Code .

Today the importance of the regulation has decreased compared to before. In particular, the number of convictions is falling. In about five percent of all inquiries for membership of a criminal organization will charge levied about one percent leads to conviction. For this reason, the standard is sometimes also referred to as a " snooping paragraph ", since the vast majority of the procedures legalize state surveillance in the milieu of those affected who can be selected at will, without the latter being able to defend themselves against it (due to lack of knowledge of the procedure). A slight initial suspicion is sufficient to obtain extensive investigative powers. Often the investigations lead to so-called chance discoveries .

Legal situation in Austria

In Austrian criminal law, criminal organization is regulated in § 278 ff. Of the Austrian Criminal Code. The formation of a criminal organization is one of the victimless crimes .

The criminal organization is defined with a penalty of up to three years in § 278 StGB. Company-like connections are threatened in § 278a StGB as criminal organizations with a penalty of up to five years. These two offenses are tailored to organized crime. The application of Section 278a of the Criminal Code in Austria already resulted in massive public and professional criticism in two cases, the “ Operation Spring ” and the “ Wiener Neustädter Tierschützerverfahren ”.

Critics are calling for it to be revised because its scope is too broad. In December 2009 a revision and a further tightening was announced. For example, approving a terrorist offense (such as murder, bodily harm , coercion , dangerous threat , serious damage to property and willful public endangerment offenses ) should itself be made a criminal offense.

The terrorist organization § 278b StGB is designed to combat and prevent terrorist offenses.

literature

  • Philipp H. Schulte: Terrorism and anti-terrorism legislation - a legal sociological analysis , Waxmann-Verlag, Münster 2008, ISBN 978-3-8309-1982-7 .

Web links

Individual evidence

  1. ↑ Thomas Fischer , § 129, Formation of Criminal Organizations , Rn. 6, in: Criminal Code and ancillary laws, CH Beck, Munich 2012, p. 914
  2. ↑ Thomas Fischer, § 129, Formation of Criminal Organizations , Rn. 12–13, in: Criminal Code and ancillary laws, CH Beck, Munich 2012, pp. 915–916
  3. ↑ Thomas Fischer, § 129, Formation of Criminal Organizations , Rn. 2, in: Criminal Code and ancillary laws, CH Beck, Munich 2012, p. 913
  4. ↑ BGBl. I p. 3390.
  5. ↑ Terrorism Prevention Act 2010