Organized Crime: Recent German Legislation and the Prospects for a Coordinated European Approach

3 Colum. J. Eur. L. 243 (1997)

Jirgen Meyer. Prof. Dr., University of Freiburg i. Br.; Member of the German Bundestag.

When we speak of “organized crime,” we are referring to something other than traditional, individual criminal activity; that is, short-term behavior confined to a single offender. Organized crime includes among other things international drug trafficking, money laundering, traffic in persons, the illegal arms trade, protection and extortion, the production and distribution of counterfeit money and forged credit cards, as well as serious criminal offenses against the environment and, more recently, illegal trade in radioactive and nuclear materials.

The offenses concern all activities that promise high earnings. Along with drug crime, the figures show that car theft and international car smuggling have evolved into big business endeavors. In the year 1994, for example, some 300,000 cars are said to have disappeared permanently in EU states. This amounts to a loss of some 6 billion marks) Groups of offenders from Central and Eastern European states have long been key players in this area (and in the new threat posed by the illegal trade in radioactive and nuclear substances). Less spectacular cases involve organized offenses in the field of normal business and economic life. Nonetheless, these too can give rise to considerable losses for the public purse if, for example, the offenses involve smuggling and employing illegal immigrants. In the construction industry, industrial production, or even certain service areas (hotels and restaurants), illegal immigrants are employed at very low wages. The smugglers and intermediaries charge some DM 5,000 to 6,000 a head for their “services.”

Behind organized crime we find an array of structures and enterprises that have made the commission of crimes their business, the very essence of their being. Penetrating these complex enterprises can be a difficult task. One typical feature of organized crime is that it often cannot be precisely defined, therefore making it difficult to demarcate it clearly from the world of legitimate business. Like a business, the purpose of organized criminal activity is to obtain maximum pecuniary profit, albeit by illegal means. This goal is pursued over the very long term, and there is often a mix of different transactions including some legitimate and some illegitimate activities. This dual structure in the nature of these transactions points to a distinguishing feature of organized crime: the methods used by the offenders have become highly intricate and economically sophisticated. Legal and illegal acts form a skein that is difficult to disentangle. Altogether, the trend is toward much greater flexibility and, hence, a presence of complex criminal enterprises in all areas of economic and social life.

A study completed last year on the inner structures of organized crime makes the problem of disentangling clear.3 The planning, coordination and commission of the offenses concerned follow strict economic criteria. This is true of all aspects of these operations, such as the channels for buying and selling stolen goods, subsequent transport systems, storage facilities, accommodation for those persons involved, and outlets. Before new lines of business are developed, professional marketing studies are even commissioned in some cases.

Besides compartmentalizing the various logistical steps, the leaders of criminal organizations attend meticulously to sealing-off the individual members of the criminal group. On the one hand, this sealing off process closes the window to investigating officers operating from the outside. On the other, the individuals concerned must not know one another, in order to minimize the overall risk of discovery for the organization. As a result, detained individual offenders can often offer little useful information about their accomplices, let alone about the inner structures of the organizations.

This compartmentalization raises problems in the application of the “equal weapons” principle in criminal prosecution in Germany. This principle can be explained as follows. The defendant is charged by the state with having committed a criminal act. The “weapons” of the state are its entire investigatory apparatus. The “weapons” of the defendant are his defenses. In a fair procedure, this relationship must be balanced, above all when especially serious criminal acts are concerned. However, when we compare the methods of “everyday crime” and those of criminal organizations marked by structured planning, this principle of equal weapons assumes a completely new character. The procedures used by the investigatory authorities must be adapted to take account of the new criminal logistics if they are to have any real chance of adequately addressing organized crime. This being so, there is no sense in being content with the investigatory success against one single criminal act; the prosecution of a single offense can only have the desired long-term effect if the prosecution leads to the core structures of criminal organizations.