Clan Crime and Organized Crime: Extreme Zeal in Law Enforcement?

The series “4 Blocks,” “Dogs of Berlin,” or “Skylines” enjoy a wide audi­ence. Almost ever­yone knows these series, which capti­vate their viewers with the “unvar­nished” portrayal of the lives of clan members and their struc­tural and fami­lial rela­ti­onships. But are these merely fictional series, or do they truly reflect reality in Germany?

So-called clan crime is garne­ring incre­asing atten­tion in broader society. One reason for this is the strong media presence of this topic, as well as public inte­rest, which in turn puts pres­sure on law enforce­ment agen­cies.

The term “clan crime” has incre­asingly entered ever­yday language in recent years, although it is often used sensa­tio­nally as a hook for media reporting.

It is evident that in the past, an incre­asing number of crimes in the area of orga­nized crime are said to have been committed by members of a clan. In North Rhine-West­phalia, for instance, about one in five cases in the realm of orga­nized crime is reported to have a clan connec­tion. As a result, stan­dar­dized raids, as well as personal and busi­ness checks, are already being conducted in these areas.

Many suspects, who are alleged to be members of a clan, are confronted with inves­ti­ga­tive measures that raise ques­tions about their lega­lity.

Clan Crime – Does It Even Exist in Germany?

So-called “clan crime” refers to a form of orga­nized crime.

The term “clan” describes a group of people who are connected by a common ethnic origin, usually through fami­lial ties. A purely (blood) rela­tion among the group’s members is not neces­s­a­rily assumed; rather, other specific criteria for belon­ging are reco­gnized, such as social obli­ga­tions or economic bene­fits. Accor­ding to law enforce­ment agen­cies, clan crime is charac­te­rized by a clan acting as a social unit, promo­ting crimes through fami­lial rela­ti­onships, preven­ting their clari­fi­ca­tion, and thus calling into ques­tion the legal order in Germany.

The groups referred to as clans in Germany are mostly large fami­lies from the Turkish-Arabic region. Their origin lies with the Mhal­la­miye Kurds, who come from parts of Turkey, Syria, and Lebanon, and migrated to Western Europe during the Leba­nese Civil War (1975–1990). Other well-known clans include the Remmo clan, the Miri clan, the Al-Zein clan, the Abou-Chaker clan, as well as the “biker clans” Bandidos and Hells Angels. Their presence is prima­rily concen­trated in the federal states of Berlin, North Rhine-West­phalia, Bremen, and Lower Saxony.

The legal sectors in which clan crime is repre­sented include gastronomy—particularly (shisha) bars, gambling and betting offices, the auto­mo­bile trade, martial arts clubs, secu­rity services, the prosti­tu­tion industry, and the biker scene. Clas­si­cally, offenses in the areas of drug traf­fi­cking and smugg­ling, bodily harm, property crimes (robbery, theft, money laun­de­ring, and fraud) are pursued. Alleged clan members are often also accused of offenses against personal freedom and sexual self-deter­mi­na­tion, as well as tax and customs offenses.

Threat to Internal Security or Populist Exaggeration?

Accor­ding to law enforce­ment agen­cies, the beha­vior of clans is charac­te­rized by their refusal to reco­gnize state struc­tures, living in rela­tive isola­tion (nearly in a parallel society), being hier­ar­chi­cally struc­tured, having a parti­cu­larly prono­unced sense of honor, and being influenced by an increased desire for power and profit.

They are said to present them­selves outwardly offen­si­vely, united, and aggres­si­vely, forcefully asser­ting their goals and plans. The strength of the clan is attri­buted to its internal cohe­sion and delinea­tion from the outside. Clan members are expected to be loyal to each other, provide alibis, and show soli­da­rity even if they have already been punished/convicted.

Law enforce­ment agen­cies believe that clan crime in Germany poses several risks. Most notably, it affects the secu­rity feelings of the popu­la­tion. Espe­ci­ally those living in areas “claimed” by the clan often feel unsafe and inti­mi­dated. Further­more, there is a poten­tial danger to internal secu­rity, as the clans do not accept the funda­mental rights and values in Germany. Thus, it is the duty of the state and its insti­tu­tions to fend off this threat. However, a problem is that inves­ti­ga­tions are made more diffi­cult by the clans’ isola­tion, mutual protec­tion of their members, and the inti­mi­da­tion of poten­tial witnesses, making complete clari­fi­ca­tion of the crimes only rarely successful.

Another risk is the networ­king of clans with each other, parti­cu­larly across state borders. This results in a high poten­tial for mobi­liza­tion and soli­da­rity, which nega­tively affects inves­ti­ga­tive work. Addi­tio­nally, there is still too little know­ledge about the internal struc­ture and the extent of clan crime.

This leads, on one hand, to a signi­fi­cant overe­sti­ma­tion and subse­quent stig­ma­tiza­tion of indi­vi­duals from foreign fami­lies who commit crimes regard­less of their clan affi­lia­tion, and on the other hand, to an unde­re­sti­ma­tion of the extent of crimes committed by clans.

Curr­ently, however, one can assume a strong popu­list exag­ge­ra­tion of the topic.

Accor­ding to media reports, the impres­sion is created that every second crime is committed by a clan member. In reality, cases of clan crime still account for a very small portion of total crime in Germany. In North Rhine-West­phalia, for instance, the share of crimes cate­go­rized as clan crime is 0.48% of all regis­tered crimes. Thus, there is a signi­fi­cant discrepancy between the actual crime committed by clans and the alleged threat posed by them. Further­more, media reporting on clan crime occurs on a much larger scale than for “ordi­nary crimes,” as spec­ta­cular acts or those carried out on a larger scale are some­times committed in the context of clan crime. This creates the impres­sion that this type of crime repres­ents the norm.

Increased Senten­cing Due to Clan Affi­lia­tion?

Law enforce­ment agen­cies complain that they cannot act against clan crime with the effec­ti­ve­ness that they believe is neces­sary. Due to the comple­xity of the clan struc­ture, when a crime is committed by a clan member, a penalty enhance­ment (increased senten­cing beyond what is legally prescribed for an offense) is some­times demanded solely based on clan affi­lia­tion, prima­rily intended for deter­rence. But can this be lawful?

Funda­men­tally, criminal law does not reco­gnize the term clan as such, nor does it impose special criminal liabi­lity based on clan affi­lia­tion. Member­ship in a specific group would only be punis­hable if the asso­cia­tion was speci­fi­cally directed at commit­ting crimes. In this case, there would also be the possi­bi­lity (if the clan also consti­tutes an asso­cia­tion as per Article 9, Para­graph 1 of the Basic Law) to prohibit the asso­cia­tion. Accor­ding to Article 9, Para­graph 2 of the Basic Law, asso­cia­tions can be prohi­bited if they do not adhere to criminal laws or act against the consti­tu­tional order. However, the crime itself must be proven solely against the indi­vi­dual accused and poten­ti­ally any further parti­ci­pants. The clan is not criminal without the criminal beha­vior of its indi­vi­dual members. Anything else would contra­dict the prin­ci­ples of Sections 25 et seq. of the Criminal Code.

Moreover, incre­asing penal­ties solely based on clan affi­lia­tion signi­fi­cantly raises the risk of stig­ma­tiza­tion for indi­vi­duals with a migra­tion back­ground or those belon­ging to a large family with a migra­tion back­ground or connected to a “clan.” A higher penalty would also consti­tute a viola­tion of Article 3 of the Basic Law, which prohi­bits discri­mi­na­tion based on descent.

This also ties into the exis­ting problem of diffe­ring stan­dards in the prose­cu­tion of alleged clan crime versus “normal” crimes. It has been observed that, for instance, during sear­ches and even routine checks invol­ving a suspected clan member, a more thorough, inten­sive, and “rougher” approach by offi­cers occurs compared to other indi­vi­duals. This diffe­ren­tiated approach does not align with the presump­tion of inno­cence prin­ciple.

This also partly conti­nues in the main procee­dings when it comes to the possi­bi­lity of dismissing the case for oppor­tu­ni­stic reasons or the justi­fi­ca­tion for issuing an arrest warrant.

In prin­ciple, law enforce­ment offi­cers as well as judges and prose­cu­tors are expected to main­tain a certain level of objec­ti­vity and impar­tia­lity. However, this is not always prac­ticed in reality.

Revo­ca­tion of Resi­dency and Asset Forfeiture as Effec­tive Inves­ti­ga­tive Measures?

The revo­ca­tion of resi­dency and asset forfeiture of clan members are being discussed and applied.

The goal of the revo­ca­tion of resi­dency by the Federal Ministry of the Inte­rior is to enable the expul­sion of members of orga­nized crime commu­ni­ties, regard­less of whether they have committed crimes or been crimi­nally convicted. It is suffi­cient, for example, if a foreign national belongs to an asso­cia­tion that has donated money to a terro­rist group. Whether such an approach is lawful and propor­tio­nate must be discussed in detail.

The stig­ma­tiza­tion of the issue is also proble­matic here. Indi­vi­duals who may have a rela­ti­onship or contact with an alleged criminal orga­niza­tion are to be deported.

In prac­tice, this approach is also unli­kely to succeed from the perspec­tive of law enforce­ment, as the resi­dence law does not apply to German citi­zens and because the actual iden­tity of the affected indi­vi­dual may not be ascer­tainable.

Asset forfeiture under Sections 73 et seq. of the Criminal Code is already a prac­ticed measure against clan members. Accor­dingly, what is obtained through an unlawful act is confis­cated.

The under­lying thought is that the clan’s assets repre­sent the central factor and driving force of the clan. By confis­ca­ting assets, the opera­tional capa­bi­li­ties of the alleged perpe­tra­tors and ulti­m­ately the entire criminal orga­niza­tion are intended to be rest­ricted. Law enforce­ment agen­cies view this as an effec­tive means of comba­ting clans sustain­ably.

However, the clan’s opaque struc­ture is also proble­matic in this regard, as it cannot be proven who owns the assets and whether they were actually obtained through an unlawful act. There is also often a mixing of “legal” and “illegal” assets, making proof diffi­cult.

Criminal Defense in Clan Crime and Orga­nized Crime

If you are confronted with alle­ga­tions of crimes from so-called orga­nized crime or are desi­gnated by law enforce­ment agen­cies as a member of a so-called clan, we can assist you.

The procee­dings in these areas require a substan­tial personnel and tech­nical inves­ti­ga­tive effort. Conse­quently, there exists a larger volume of files that we must address to be able to defend accor­dingly.

The effects of public percep­tion on the process should not be unde­re­sti­mated. As mentioned, there is a signi­fi­cant public inte­rest in the topic of “clan crime,” as well as orga­nized crime in general. The public usually expects a convic­tion of the accused and a harsh punish­ment. This expec­ta­tion increases pres­sure on law enforce­ment agen­cies, causing the actual aim of the process—the estab­lish­ment of truth—to some­times be forgotten. Our task is to coun­teract this.

A current tool within the procee­dings is the so-called base defense. In this context, multiple defen­dants are accused of jointly commit­ting or parti­ci­pa­ting in crimes. We, as defen­ders, will colla­bo­rate with the defen­ders of other defen­dants to develop a joint defense stra­tegy and tactics to achieve the best outcome for you.

Parti­cu­larly signi­fi­cant in such procee­dings are so-called crown witnesses. These are indi­vi­duals from the envi­ron­ment of the alleged perpe­tra­tors who are to testify in court about facts related to the crime. Co-defen­dants are also considered crown witnesses. These indi­vi­duals are parti­cu­larly important for the course of the trial. Accor­dingly, there is a strong need for the judi­ciary to reach a compro­mise with crown witnesses. In many cases, there is a reduc­tion in punish­ment or even a waiver of punish­ment when the crown witness testi­fies against the accused. Should you wish to make use of the crown witness arran­ge­ment, we will prepare you accor­dingly and accom­pany you to inter­ro­ga­tion appoint­ments.

You will find that there is much to consider in these procee­dings. However, our lawyers are fami­liar with this and will provide you with the best possible support.

We have many years of expe­ri­ence in criminal defense and possess special inves­ti­ga­tive tech­ni­ques that can give us an advan­tage over the state criminal police and the public prose­cu­tor’s office.

If you have any further ques­tions or if you are a suspect in a criminal case, please do not hesi­tate to contact us.