Clan-related Crime and Organized Crime: Excessive Prosecutorial Zeal by Investigative Authorities?

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

So-called clan-related crime is attracting increasing attention in society. One reason for this is the strong media presence of this topic, as well as public interest and the resulting pressure on law enforcement agencies.

Thus, the term “clan-related crime” has increasingly entered everyday language in recent years, often used sensationally and as a headline for media reporting.

It has been observed that in the past, an increasing number of offenses in the field of organized crime are alleged to have been committed by members of a clan. In North Rhine-Westphalia, for example, approximately one in five organized crime cases is said to have a clan connection. Therefore, standardized raids, as well as personal and commercial checks, are already being carried out in these areas.

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

Clan-related Crime – Does it even exist in Germany?

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

The term “clan” describes a group of people connected by a common ethnic origin, usually through kinship. Pure (blood) relationship among group members is not necessarily a prerequisite; other specific criteria for belonging are also recognized, such as social obligations or economic benefit. According to investigative authorities, clan-related crime is characterized by a clan, as a social unit shaped by kinship, promoting criminal acts, hindering their investigation, and thereby challenging the legal order in Germany.

The groups referred to as clans in Germany are mostly extended families from the Turkish-Arab region. Their origin lies with the Mhallamiye Kurds, who came from parts of Turkey, Syria, and Lebanon 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 “rocker clans” Bandidos and Hells Angels. Their presence is concentrated primarily in the federal states of Berlin, North Rhine-Westphalia, Bremen, and Lower Saxony.

The legal sectors in which clan-related crime is represented include gastronomy – especially (shisha) bars, gambling and betting offices, car dealerships, martial arts clubs, security services, the prostitution industry, and the biker scene. Typically, offenses in the areas of drug trafficking and smuggling, assault, property crimes (robbery, theft, money laundering, and fraud) are prosecuted. Alleged clan members are also frequently 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 investigative authorities, the behavior of clans is characterized by their non-recognition of state structures, their largely secluded existence (almost parallel societies), their hierarchical structure, a particularly strong sense of honor, and an influence by an increased drive for power and profit.

They are said to mostly appear outwardly offensive, united, and aggressive, and to enforce their goals and intentions violently. The internal cohesion of the clan and its demarcation from the outside are identified as its strengths. Clan members are expected to be loyal to each other, provide alibis for one another, and show solidarity even after being punished or convicted.

Law enforcement agencies believe that clan-related crime in Germany poses several risks. Above all, it affects the public’s sense of security. Especially the part of the population living in the area “claimed” by the clan often feels insecure and intimidated. In addition, there is a potential danger to internal security, as clans allegedly do not accept the fundamental rights and values prevailing in Germany. Therefore, it is the task of the state and its institutions to avert this danger. A problem, however, is that investigations by authorities are made difficult by the clans’ seclusion, the mutual protection of their members, and the intimidation of potential witnesses, which is why a complete clarification of crimes is rarely successful.

Another risk is the networking of clans among themselves, particularly across national borders. This results in a high potential for mobilization and solidarity, which does not positively influence investigative work. Furthermore, too little is still known about the internal structure and extent of clan crime.

This could lead, on the one hand, to a strong overestimation and associated stigmatization of members of foreign families who commit crimes independently of clan affiliation, and on the other hand, to an underestimation of the extent of crimes committed by the clan.

Currently, however, a strong populist overstatement of the issue must be assumed.

According to media reports, the impression is created that every second crime is committed by a member of a clan. In reality, cases of clan-related crime still constitute a very small part of overall crime in Germany. In North Rhine-Westphalia, for example, the proportion of crimes categorized as clan-related crime is 0.48% of all registered crimes. Thus, there is a clear disproportion between the actual criminality of clans and the alleged threat posed by clans. Moreover, media reporting is also much more extensive than for “ordinary crimes,” as spectacular acts or acts committed on a larger scale/style are sometimes involved in clan-related crime. This creates the impression that this type of crime represents the norm.

Higher Penalties Due to Clan Affiliation?

Law enforcement agencies complain that they cannot act against clan-related crime with the effectiveness they deem necessary. In some cases, due to the opaque structure of the clan when a crime is committed by a clan member, a penalty surcharge (a higher penalty than legally provided for an offense) is demanded solely based on clan affiliation, primarily intended for deterrence. But can this be lawful?

Fundamentally, criminal law recognizes neither the concept of a clan as such nor a special criminal liability based on membership in a clan. Membership in a specific group would only be punishable if the association with that group were specifically directed at committing crimes. In this case, there would also be the possibility (if the clan also constitutes an association (Art. 9 Para. 1 GG)) to ban the association. According to Art. 9 Para. 2 GG, associations are to be banned if they disregard criminal laws or are directed against the constitutional order. However, the criminal act as such must be proven solely against the individual accused and, if applicable, other participants. Without criminal behavior by individual members, the clan is not criminal. Anything else would also contradict the principles of §§ 25 ff. StGB.

Furthermore, increasing penalties solely due to clan affiliation would significantly raise the risk of stigmatizing individuals with a migration background or those belonging to a large family with a migration background, or who are connected to a “clan.” A higher penalty in this case would also constitute a violation of Art. 3 GG This prohibits discrimination based on origin.

This is accompanied by the existing problem of differing standards in the prosecution of alleged clan-related crime and “normal” offenses. It is observed that, for example, during searches, but also during routine checks involving an alleged clan member, a more thorough, intensive, and “harsher” approach is taken by officers than is the case with other individuals. This differentiated approach does not comply with the principle of presumption of innocence.

It also partially continues in the main proceedings when it comes to the possibilities of discontinuing proceedings for reasons of expediency or the justification of an arrest warrant.

Fundamentally, investigative officers, as well as judges and public prosecutors, are expected to maintain a certain degree of objectivity and impartiality. In practice, however, this is not always applied.

Withdrawal of Residence and Asset Forfeiture as Effective Investigative Measures?

The withdrawal of residence and asset forfeiture of clan members are discussed and applied.

The Federal Ministry of the Interior’s goal for the withdrawal of residence is to enable the expulsion of members of organized crime communities, regardless of whether they have committed criminal offenses or have been criminally convicted. For example, it would be sufficient if a foreigner 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.

Here, too, the stigmatization of the issue is problematic. Unaffected individuals who may have a relationship or contact with an alleged criminal organization are to be deported. I

n practice, this approach will have little success, even from the perspective of investigative authorities, because, on the one hand, the Residence Act does not apply to German citizens, and on the other hand, the actual identity of the affected person cannot be determined.

Asset forfeiture according to §§ 73 ff. StGB is an already practiced measure against members of a clan. Accordingly, what is obtained through an unlawful act is confiscated.

The background to this is the idea 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 to be restricted. Investigative authorities see this as an effective means to take sustained action against clans.

However, the opaque structure of the clan is also problematic here, as it cannot be proven who owns the assets and whether they were actually obtained through an unlawful act. In some cases, there is also a commingling of “legal” and “illegal” assets, making proof difficult.

Criminal Defense in Clan-related Crime and Organized Crime

If you are confronted with allegations of crimes related to so-called organized crime or are designated by investigative authorities as a member of a so-called clan, we can help you.

Proceedings in these areas require extensive personnel and technical investigative efforts. This entails a larger volume of files that we must analyze in order to provide an appropriate defense.

Furthermore, the impact of public perception on the process should not be underestimated. As already mentioned, there is significant public interest in the topic of “clan-related 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 investigative authorities, sometimes causing the actual goal of the process – the search for truth – to be forgotten. Our task is to counteract this.

A current tool within these proceedings is the so-called “base defense” (Sockelverteidigung). In this approach, several accused individuals are charged with jointly committing or participating in crimes. As defense attorneys, we will collaborate with the defense attorneys of the other accused and develop a common defense strategy and tactics to achieve the best possible outcome for you.

So-called crown witnesses also play a special role in such proceedings. These are individuals from the alleged perpetrators’ environment who are expected to testify in court about facts related to the crime. However, co-defendants are also considered crown witnesses. These individuals are particularly important for the course of the trial. Therefore, the judiciary has a great need to find a compromise with crown witnesses. In many cases, a reduction in sentence or even a waiver of punishment may occur if the crown witness testifies against the accused. Should you wish to avail yourself of the crown witness regulation, we will prepare you accordingly and accompany you to interrogation appointments.

As you can see, there is much to consider in these proceedings. However, our lawyers are familiar with them and will be able to 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 Office and the public prosecutor’s office.