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.