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Prof. Dr. Kinzig

The Judiciary and the Phenomenon

The Judiciary and the Phenomenon of Organized Crime: Processing Organized Crime Cases through the System

Participant: Jörg Kinzig (lawyer); phone: +49 (0)761/7081-289
Contact Person:
Time Frame: 1997 to 2004
Project Status: completed
Project Description:

 

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The phenomenon of organized crime has determined the criminal-political discussion, as well as all substantive and procedural penal legislation for quite some time now, both nationally and internationally - and shall continue to do so for an unforeseeable period of time. However, since a common level of terminology and communication does not exist so far, actors in the political discourse can use the term "organized crime" to their advantage. Additionally, the desolate basis for discussion is characterised by the fact that only rudimentary empirical findings on organized crime - regardless of the dark field problem - are available on its control and on the efficiency of the legal strategies already implemented by the national legislators.

Different dimensions of danger ascribed to organized crime are reflected in diverse attempts to define this phenomenon. However, there is no agreement upon what is to be regarded as organized crime.

The definition of organized crime currently dominating the practice in the Federal Republic of Germany, dating from 1986, is found in the "Common rules of the Ministers/Senators of Justice and the Ministers/Senators of the Interior of the Federal Länder for the co-operation between the prosecutors and the police in the prosecution of organized crime". According to this, organized crime is "the planned commission of crimes - which are of considerable importance, taken separately or as a whole - in the pursuit of gain and power, if more than two parties work together for a longer or indeterminate period of time by

a) employing commercial or business-like structures,
b) using force or other means suitable for intimidation or
c) exerting influence on politics, the media, the public administration, the judicial authorities or trade and industry."

This definition is being criticised for various reasons. On the one hand, it covers the broadest possible spectrum of organised crime, on the other hand, the catalogue is so broad and vague that it seems impossible to differentiate organized crime from other manifestations of conventional multiple-offender crimes. However, there is at present no prospect of a superior model - neither in Germany nor at the European level. Endeavours towards a definition of organised crime are not academic in this context, as a number of far-reaching reforms of substantive and procedural criminal law of the Federal Republic of Germany and of other countries have been carried out, on the grounds that they are necessary to effectively combat organized crime. The fact that little is known about the goal and the suitability of these legislative measures is responsible for a growing degree of uneasiness in Germany.

So far, the German legislators have refrained from linking the measures of substantive criminal law to the elements "organized crime" or "organized commission". In the case of the Organised Crime Control Act ("Law against Illegal Drug Trafficking and other Manifestations of Organized Crime" (OrgKG)) of July 15, 1992, the reason given for this course of action was that "the contours of organized crimes, particularly the differentiation from other forms of crime ... do not seem firm enough for an operative fact under a criminal law". In substantive criminal law particularly gang-based crimes and crimes committed for gain, and in the law of criminal procedure undercover methods of investigation constitute starting points. In so far, the law-makers have created new and expanded existing elements of crimes since the early 90s, and have partially laid the legal foundation for undercover methods of investigation. In German jurisdiction, the offence of forming a criminal organization (pursuant to § 129 German Penal Code (StGB)) is interpreted very restrictively, and hence it is hardly of any importance in the forensic practice. Undercover bugging/wiretapping of private homes was officially authorised only recently, after vehement parliamentary disputes.

The field of official statistics and criminological research in Germany is extremely modest, compared to the parliamentary activities in this area. The report of the Bundeskriminalamt (Federal Office of Criminal Investigation) on the situation of organized crime ("Lagebild OK") which furnishes basic data on proceedings the individual Federal Länder classify within the category of organized crime, ends with the completion of preliminary proceedings by the police, thus containing no information on how the judicial agencies handle such offences. Statistics of criminal prosecution do not reflect organized crime as a separate category. Isolated regional reports by the judicial authorities on the situation of organised crime lack uniformity. Moreover, the empirical findings of German research so far available on organized crime are essentially based on police-oriented research, which served to compile and analyse the specialised knowledge of agencies concerned with organized crime in practice. These almost exclusively interview-based works attempted above all to shed light upon the structures of possible connections between offenders connected with the scene of organized crime, and to gain insight into the underlying structures which are characterised by a division of duties.

Research projects traditionally strive to fill in the gaps which have opened in the chosen field of research, following the analysis of previous works. At least in Germany, this should not be the task of the empirical research "The Judiciary and the Phenomenon of Organized Crime: Processing Organized Crime Cases Through the System" which is to be conducted at the Max Planck Institute for Foreign and International Criminal Law during the next few years. Its perspective is briefly outlined in the present paper to answer a remainder of open questions, and moreover to compile a basic stock of empirical knowledge. It would, thus, also be presumptuous to investigate all approaches which strive to describe and explain organized crime.

Therefore, the focus of the research ought to be less on historical, economic, or sociological explanations of the emergence of organized crime, but rather on the question as to how the police and the judicial authorities handle proceedings they subsume under organized crime. Since the mere question which implications the penal reforms - that have been introduced by the law-makers on the grounds that they are necessary to combat organized crime - will have for the judicial practice is still not answered clearly to a large extent, this accentuation is justified.

Thus, it is the aim of this research to investigate how the penal judicial agencies take up and deal with the phenomenon of organized crime. Additionally, it inquires into the implementation of more recent substantive and procedural provisions against organized crime such as those contained in the Organised Crime Control Act of 1992.

The judicial handling of organized crime is above all reflected in police and criminal records.

Therefore, a record analysis constitutes the primary and most suitable research method. We are, nevertheless, aware of the problem and the existence of a possibly substantial dark field of organised crime. However, since the main subject of the research is the judicial handling of those crimes which are regarded as organized crimes by the police, a record analysis still constitutes the most suitable research method.

Procedures involving crimes, the police defines as organised pursuant to the above definition in the common rules, serve as a starting point due to the lack of methodical alternatives. In 2000, we began to examine 52 out of 153 cases which were classified as organized crime in Baden-Württemberg during the nineties. 26 of them represent a very complex form of criminality (regarding variables like the number of suspects, the number of crimes, the methods of investigation, the international character and the illegal profits), by way of contrast, 26 represent a low complexity. The different stages of the criminal procedure shall be investigated, beginning with the suspicion of a criminal act to a possible conviction. Furthermore, we will analyse in greater detail those procedures which are possibly indicators for a specific type of organized crime.
The research will be supplemented methodically by interviews with offenders which are seen as organized criminals. Hopefully, this will grant a better insight in the nature of organized crime in Germany and in the way of dealing with it by the police and the judicial authorities.

Selected Publications:

  • KINZIG, J. (forthcoming): Mesures de lutte contre la criminalité organisée en Allemagne. In: Criminalité organisée: vers und définition opérationnelle, Rapport scientifique de recherche pour le Fonds national suisse de la recherche scientifique, Programme national de recherche n. 40 "Violence au quotidien et criminalité organisée", Projet n. 4040-054320. Ed. M.L. Cesoni.
  • KINZIG, J. &. LUCZAK, A. (2003): El Manejo Del Crimen Organizado En La Unión Europea Y Alemania. Comprensión Y Repuesta A Una Presunta Amenaza. In: Delincuencia Organizada. Coord. R. Macedo de la Concha. Instituto Nacional des Ciencias Penales (INACIPE), 2003, 157-176.
  • KINZIG, J. (2001): Organised Crime in Germany: Areas of Activity and Influence on Politics, the Economic Sector, and the Judicial System (Summary). In: Towards a European Criminal Law Against Organised Crime. Proposals and Summaries of the Joint European Project to Counter Organised Crime. Eds. V. Militello & B. Huber. edition iuscrim, Freiburg i. Br., 61-66.
  • KINZIG, J. (1998): The Judicial Handling of Manifestations of Organized Crime. In: Research on Crime and Criminal Justice at the Max Planck Institute. Eds. H.-J. Albrecht & H. Kury. edition iuscrim, Freiburg i. Br., 77-80.

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