BGH affirms the existence of a criminal organization within the meaning of § 129 StGB in two recent decisions

§ Section 129 of the German Criminal Code (StGB) makes the forma­tion of a criminal orga­niza­tion a punis­hable offense.

Pursuant to Section 129 (1) of the Criminal Code, anyone who estab­lishes an asso­cia­tion or parti­ci­pates as a member in an asso­cia­tion whose purpose or acti­vity is directed toward the commis­sion of criminal acts punis­hable by a maximum term of impri­son­ment of at least two years shall be liable to a custo­dial sentence of up to five years or to a mone­tary penalty. In addi­tion, anyone who supports such an asso­cia­tion or recruits members or supporters for it is liable to a custo­dial sentence not excee­ding three years or to a mone­tary penalty.

Accor­ding to Section 129 (2) of the Criminal Code, an asso­cia­tion is an orga­nized group of more than two persons in pursuit of an over­ri­ding common inte­rest that is desi­gned to last for a longer period of time and is inde­pen­dent of any defi­ni­tion of the roles of the members, the conti­nuity of the member­ship and the charac­te­ristics of the struc­ture.

Groups of perpe­tra­tors from the field of orga­nized crime can fall under the defi­ni­tion of a criminal orga­niza­tion, as can other asso­cia­tions from the field of white-collar crime. In addi­tion to the other requi­re­ments, it is neces­sary for the asso­cia­tion to pursue an over­ri­ding common inte­rest that goes beyond the indi­vi­dual inte­rests of its members. In parti­cular, this inte­rest must go beyond the intended commis­sion of specific criminal acts and acting for the sake of personal mate­rial gain.

In order to deter­mine the over­ri­ding common inte­rest consti­tu­tive of an asso­cia­tion, the external circum­s­tances of the crime can be used within the frame­work of an overall assess­ment (cf. BGH, decision of June 2, 2021 — Case No. 3 StR 61/21, judgment of June 2, 2021 — 3 StR 21/21, para. 21 et seqq.) Of importance in this regard are, among other things, the scope and extent of orga­niza­tional struc­tures used — inclu­ding cross-border struc­tures, if appli­cable — as well as mate­rial resources, a defined uniform forma­tion of wills, the number of members, an exis­tence that is detached from the specific indi­vi­duals, a possible joint treasury and the use of quasi-govern­mental autho­rity.

The Federal Supreme Court has had to deal with the ques­tion of the exis­tence of a criminal orga­niza­tion on several occa­sions in the recent past.

Hawala banking orga­niza­tion: convic­tions for invol­vement in criminal orga­niza­tion

The so-called “hawala banking” is a profes­sio­nally operated, world­wide informal system for sending money abroad. The tran­sac­tion works anony­mously and without a bank transfer; depo­sits and with­dra­wals are made exclu­si­vely in cash.

In its judgment of May 23, 2022, the Cologne Regional Court found three defen­dants guilty of inten­tional unaut­ho­rized provi­sion of payment services in conjunc­tion with member­ship of a criminal orga­niza­tion and, in some cases, embezz­le­ment (Cologne Regional Court, judgment of May 23, 2022 — 109 KLs 5/21 — 115 Js 295/21 — 115 Js 500/21). Total prison sentences of three years and two years and eight months as well as a prison sentence of two years and eight months were imposed.

In a judgment dated December 6, 2022, the Cologne Regional Court sentenced a defen­dant to a total term of impri­son­ment of two years and six months for the inten­tional unaut­ho­rized provi­sion of payment services in combi­na­tion with member­ship in a criminal orga­niza­tion and money laun­de­ring (Cologne Regional Court, judgment dated December 6, 2022 — 109 KLs 7/22 — 115 Js 897/18).

Accor­ding to the findings made by the Cologne Regional Court in both procee­dings, the defen­dants joined forces with other persons from 2016 onwards to form a conspi­ra­to­ri­ally opera­ting group orga­nized on the basis of a divi­sion of labor under the leader­ship of a sepa­ra­tely prose­cuted person. The orga­niza­tion was aimed at performing commis­sionable finan­cial services outside the state-super­vised finan­cial sector in the form of money trans­fers in the manner of so-called hawala banking, while guaran­te­eing abso­lute anony­mity. During the period of the crime, they trans­ferred assets with a total value of over 356 million euros from Germany to Turkey.

The Regional Court found that there was a long-term, orga­nized group of more than two persons pursuing an over­ri­ding goal. Thus, the continued exis­tence of the hawala system — in the opinion of the court — repre­sented an inde­pen­dent goal of the asso­cia­tion that went beyond indi­vi­dual profit crea­tion.

The Federal Court of Justice essen­ti­ally dismissed the appeals lodged against this, with which the defen­dants had each complained of a viola­tion of substan­tive law (Federal Court of Justice, decision dated June 1, 2023 — 3 StR 414/22 and decision dated June 28, 2023 — 3 StR 4003/20).

The BGH has thus once again confirmed the legal quali­fi­ca­tion 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 did in its decis­ions of June 2, 2021 (3 StR 61/21) and June 28, 2022 (3 StR 403/20). The verdicts of the Regional Court are now final.

Prison sentences for members of the “Goyim Party” legally binding

The so-called Goyim Partei Deutsch­land (GPD) is a right-wing extre­mist and anti-Semitic asso­cia­tion that has existed since August 2016. Accor­ding to the Federal Prose­cu­tor’s Office, this “mass and syste­matic disse­mi­na­tion of right-wing extre­mist ideas and the National Socia­list world­view” via its website

The Düssel­dorf Higher Regional Court had sentenced the three defen­dants to prison terms of between two and five years for member­ship in a criminal orga­niza­tion and nume­rous counts of inci­te­ment of the people. Further­more, the defen­dant C., whom the court considered to be the founder and ringleader of the anti-Semitic party, was convicted of foun­ding the grou­ping (OLG Düssel­dorf, judgment of May 27, 2022 — 6 StS 2/21).

Accor­ding to the OLG’s findings, from 2014 onwards, the defen­dant C. set up a commu­ni­ca­tion infra­struc­ture consis­ting of Internet forums and chat groups through which like-minded non-Jews around the world were to network with each other online. The goal was the mutual exch­ange of infor­ma­tion about the alleged world­wide oppres­sion of non-Jews by Jews. At the same time, members were to be recruited for the grou­ping.

C. disse­mi­nated anti-Semitic, racist and Nazi-glori­fying contri­bu­tions on the Russian Internet plat­form “vk.com.” He used a swas­tika-like logo for the party. Accor­ding to the OLG’s findings, he used the name “Goyim Party” to create the impres­sion of a globally active poli­tical move­ment.

For at least 30 alleged national subgroups of the “Inter­na­tional Goyim Party”, he created his own social media pages on vk.com, inclu­ding for the “Goyim Party Germany”. All pages were publicly acces­sible and were heavily frequented by national and inter­na­tional users.

His two co-defen­dants were united by right-wing extre­mist senti­ments. In addi­tion to other persons from abroad, the two co-defen­dants joined the defen­dant C. in order to spread as much anti-Semitic content as possible via the Goyim pages.

The defen­dants posted nume­rous contents discrediting and defa­ming Jews, and in some cases inci­ting violence against Jews, on the goyim pages. They denied and trivia­lized the Holo­caust.

In its findings, the OLG came to the conclu­sion that the defen­dants wanted to stir up anti-Semitic hatred, incite violence against Jews and destroy Jews world­wide. They had even written down these goals in a mani­festo.

The Federal Supreme Court rejected the appeal against the verdict of the Düssel­dorf Higher Regional Court (BGH, Beschl. v. 28.06.2023 — Az. 3 StR 424/22), so that the prison sentences imposed on the members of the so-called “Goyim” party are now legally binding.

In its decision, the BGH found that the Higher Regional Court had rightly clas­si­fied the grou­ping as a criminal orga­niza­tion within the meaning of Section 129 (1), (2) of the Criminal Code. The fact that the parti­ci­pants had only commu­ni­cated with each other via the Internet did not prevent this.

The legal requi­re­ments of Section 129 StGB could — accor­ding to the BGH in its decision of 28.06.2023 — also be met in the case of purely online commu­ni­ca­tion.