Section 129 of the German Criminal Code criminalizes the formation of a criminal organization.
Pursuant to Section 129 (1) of the German Criminal Code, a prison sentence of up to five years or a fine shall be imposed on anyone who establishes an organization or participates as a member in an organization whose purpose or activity is directed at the commission of criminal offenses punishable by a maximum prison sentence of at least two years. Furthermore, a prison sentence of up to three years or a fine shall be imposed on anyone who supports such an organization or recruits members or supporters for it.
According to Section 129 (2) of the German Criminal Code, an organization is an organized association of more than two persons, established for a longer duration, independent of a fixed allocation of roles among members, continuity of membership, and the specific structure, for the pursuit of an overarching common interest.
Offender groups from the field of organized crime, as well as other associations from the field of white-collar crime, can fall under the definition of a criminal organization. In addition to the other prerequisites, it is required that the association pursues an overarching common interest that extends beyond merely individual interests of the members. This must, in particular, go beyond the intended commission of specific criminal acts and acting for personal material gain.
To determine the overarching common interest constitutive of an organization, the external circumstances of the offense can be considered as part of an overall assessment (cf. BGH, decision of 02.06.2021 – Az. 3 StR 61/21, judgment of 02.06.2021 – 3 StR 21/21, paras. 21 et seq.). Relevant factors include the scope and extent of utilized – possibly cross-border – organizational structures and material resources, a defined unified decision-making process, the number of members, an existence detached from specific individuals, a possible common fund, and the claim to quasi-state authority.
In the recent past, the Federal Court of Justice has repeatedly had to address the question of the existence of a criminal organization.
Hawala Banking Organization: Convictions for Participation in a Criminal Organization
So-called “Hawala banking” is a professionally operated, globally existing informal system for sending money abroad. The transaction works anonymously and without a bank transfer; deposits and withdrawals are made exclusively in cash.
By judgment of May 23, 2022, the Regional Court of Cologne convicted three defendants of intentionally providing unauthorized payment services in conjunction with membership in a criminal organization, and in some cases also of embezzlement (LG Köln, Urt. v. 23.05.2022 – 109 KLs 5/21 – 115 Js 295/21 – 115 Js 500/21). Total prison sentences of three years, two years and eight months, and a prison sentence of two years and eight months were imposed.
By judgment of December 6, 2022, the Regional Court of Cologne sentenced a defendant to a total prison sentence of two years and six months for intentionally providing unauthorized payment services in conjunction with membership in a criminal organization and money laundering (LG Köln, Urt. v. 06.12.2022 – 109 KLs 7/22 – 115 Js 897/18).
According to the findings of the Regional Court of Cologne in both proceedings, the defendants, starting in 2016, joined with other individuals to form a conspiratorial and division-of-labor organized group under the leadership of a separately prosecuted person. The organization was designed to provide commission-based financial services in the form of money transfers, similar to so-called Hawala banking, outside the state-supervised financial sector, while ensuring absolute anonymity. During the period of the offenses, they transferred assets totaling over 356 million euros from Germany to Turkey.
The Regional Court found that there was an organized association of more than two persons, established for a longer duration, which pursued an overarching goal. Thus, the continued existence of the Hawala system – in the court’s view – represented an independent goal of the organization, extending beyond individual profit generation.
The Federal Court of Justice largely dismissed the appeals filed against these judgments, in which the defendants had each challenged violations of substantive law (BGH, decision of 01.06.2023 – 3 StR 414/22 and decision of 28.06.2023 – 3 StR 4003/20).
The Federal Court of Justice has thus once again confirmed the legal classification of an organization operating a Hawala banking system as a criminal organization within the meaning of Section 129 (2) of the German Criminal Code – as it had already done in its decisions of June 2, 2021 (3 StR 61/21) and June 28, 2022 (3 StR 403/20). The judgments of the Regional Court are now final.
Prison Sentences for Members of the “Goyim Party” are Final
The so-called Goyim Partei Deutschland (GPD) is a right-wing extremist and anti-Semitic organization that has existed since August 2016. According to the Federal Prosecutor’s Office, it disseminated “massively and systematically right-wing extremist ideology and the National Socialist worldview” via its website.
The Higher Regional Court of Düsseldorf had sentenced the three defendants to prison terms ranging from two to five years for membership in a criminal organization and numerous cases of incitement to hatred. Furthermore, defendant C., whom the court found to be the founder and ringleader of the anti-Semitic party, was convicted for establishing the group (OLG Düsseldorf, Urt. v. 27.05.2022 – 6 StS 2/21).
According to the findings of the Higher Regional Court, defendant C. established a communication infrastructure consisting of internet forums and chat groups starting in 2014, through which like-minded non-Jews worldwide were to connect online. The goal was the mutual exchange of information about the alleged global oppression of non-Jews by Jews. At the same time, members were to be recruited for the group.
C. disseminated anti-Semitic, racist, and National Socialism-glorifying posts on the Russian internet platform “vk.com”. For the party, he used a swastika-like logo. According to the findings of the Higher Regional Court, he used the name “Goyim Partei” to create the impression of a globally active political movement.
He created separate social media pages on vk.com for at least 30 alleged national subgroups of the “International Goyim Party,” including for the “Goyim Partei Deutschland.” All pages were publicly accessible and heavily frequented by national and international users.
His two co-defendants shared a right-wing extremist ideology. Along with other individuals from abroad, the two co-defendants joined defendant C. to jointly spread as much anti-Semitic content as possible through the Goyim pages.
The defendants posted numerous contents on the Goyim pages that discredited and defamed Jews, and in some cases incited violence against Jews. They denied and trivialized the Holocaust.
The Higher Regional Court concluded in its findings that the defendants incited anti-Semitic hatred, instigated violence against Jews, and sought to annihilate Jews worldwide. They had even documented these goals in a manifesto.
The Federal Court of Justice dismissed the appeal against the judgment of the Düsseldorf Higher Regional Court (BGH, decision of 28.06.2023 – Az. 3 StR 424/22), making the prison sentences imposed on the members of the so-called “Goyim” party now final.
In its decision, the Federal Court of Justice found that the Higher Regional Court had rightly classified the group as a criminal organization within the meaning of Section 129 (1), (2) of the German Criminal Code. The fact that the participants only communicated via the internet did not preclude this.
The legal requirements of Section 129 of the German Criminal Code could – according to the Federal Court of Justice in its decision of June 28, 2023 – also be met in the case of purely online communication.