4. Transnational Organised Crime (TOC)

ntv.de, Rubrik Wirtschaft (2012): Organisierte Kriminalität boomt—Mafia is the largest bank in Italy. Available from: https://​www.​n-tv.​de/​wirtschaft/​Mafia-ist-groesste-Bank-Italiens-article5179561.​html (Accessed on 15th November 2016).

Europol [5].

Springer Gabler Verlag [4].

Emperor, Günther (1996): Kriminologie. In order to record the organised crime, the BKA has developed a comprehensive system of indicators, which clearly highlights the description elements of the planning, preparation and implementation of the criminal acts as well as the exploitation of the prey. The following indicators point to the forms of organised crime: [...] a long-term consolidation of a plurality of persons as a profit-oriented solidarity of interests, with a high degree of exchangeability of their members and systematic foreclosure to the outside [...]. p. 410.

Soine and Gehl (Hg.) [12, p. 9].

Eurostat [6].

Note from the author: In this case, regulation should be understood as an instrument for overseeing and at the same time suppressing the society by means of normative constraints.

Southwell [13, p. 9].

Ibid. Blair [1].

Thurich, Eckart (2011): pocket politik. Demokratie in Deutschland (Revised edition Bonn: Federal Centre for Civic Education 2011). Free and Democratic Order—the designation for the highest fundamental values of democracy in Germany. “The Constitution uses twice the concept of a free and democratic order [Art. 18, Art. 21 (2) GG]. This refers to the democratic order in Germany in which democratic principles [Art. 20 GG] and supreme basic values, which are inviolable. Above all, the dignity of the individual person [Art. 1 GG]. In German democracy freedom and equality prevail over the law. A dictatorship is excluded. In regular general elections, the people themselves determine who should rule it. It has the choice between competing parties. Those who receive the majority of electors will then be governed—but only for a certain period of time. For democracy is only rule on time. A party that is once at the helm must also be able to be descended.” Available from: https://​www.​bpb.​de/​nachschlagen/​lexika/​pocket-politik/​16414/​freiheitliche-demokratische-grundordnung (Accessed on 15th November 2016).

Soine and Gehl (Hg.) [12, p. 13].

Southwell [13, p. 8].

Ibid.

Ibid. Retrospective Summary.

“Over long periods of time, self-proclaimed and non-state-legitimate structures exerted power relations on society, almost as in the exertion of the state's power monopoly. In the nineteenth century large landowners took over this role and equipped their workers with weapons to protect their interests, in order to violently counteract the misery and the competing rebellion. These armed men then very quickly learned to take advantage of the power given to them in order to extort their sacrifices and make financial profit from them. The decisive step towards the Mafia was carried out until the second half of the nineteenth century, since the Italian central government, which was then responsible, was unable in enforcing an effective state control over Sicily. The landowners and their armed subordinates gained so consequently more and more influence and control in the region, society and structures such as church, government and newspaper publishers. This is how the organisation of the Mafia came about as part of this development process, just as it is known to a large extent today. Nevertheless, a clear definition of the term Mafia cannot be derived so easily since there are quite different description approaches”.

Bossert, Oliver (2006): Cosa Nostra–Die Geschichte der Mafia. Available from: https://​www.​krimlex.​de/​artikel.​php?​BUCHSTABE=​M&​KL_​ID=​118 (Accessed on 15th November 2016).

Runciman, Stevenson (1976): Universal Encyclopaedia—Revolt of the citizens of Palermo against the rule of Karl I of Naples-Sicily (from the house of Anjou), which on Easter Monday broke out into Vespers in 1282 and spread throughout Sicily. Available from: https://www.universal_lexikon.deacademic.com/301913/Sizilianische_Vesper (Accessed on 15th November 2016).

Schüler-Wahrig (2008): Foreign words dictionary, related words. p. 228.

Southwell [13, p. 12].

Southwell [13].

“Ya-Ku-Za” is originally a dialectical term for the number combination 8-9-3, a series of numbers from a Japanese card game, which is the epitome of worthlessness. Thus, it is to be understood that the Yakuza proudly consider themselves as the 'worthless' of the society and take out people who have been expelled from the Japanese society. Characteristic for the Yakuza are extensive tattoos, as well as often missing fingertips, which Yakuza members have to separate themselves in case of misconduct. The more fingers are missing, the more wrongs were internally condemned. p. 90.

Ibid. p. 92.

Gehl, Günter (2006): Europa im Griff der Organisierten Kriminalität? Examples are the Sicilian Mafia, the Neapolitan Camorra, the Ndrangheta, the American Cosa Nostra, the Chinese triads such as Kung Lock, Wo Hop To, Sun Yee On, 14K. p. 9.

Jäger, Thomas (2013): Transnationale Organisierte Kriminalität. Available from: https://​www.​bpb.​de/​apuz/​168912/​transnationale-organisierte-kriminalitaet?​p=​all (Accessed on 15th November 2016).

Ibid.

Kerner, Hans-Jürgen (1973): Professionelles und organisiertes Verbrechen. Versuch einer Bestandsaufnahme und Bericht über neuere Entwicklungstendenzen in der Bundesrepublik Deutschland und in den Niederlanden.

Article 129 of the Criminal Code (StGB)—Formation of criminal associations. Section 7—Offenses against public order. Available from: https://​dejure.​org/​gesetze/​StGB/​129.​html (Accessed on 15th November 2016).

Bundesgerichtshof (2001): BGH GSSt 1/00, Beschluss v. 22.03.2001, HRRS-Datenbank, Rn. X.

(Federal Supreme Court (2001): BGH GSSt 1/00, Decision of 22nd March 2001, HRRS-Data Base, Rn. X.).

Federal Bureau of Investigation (2016): Definition „organised crime“. Available from: https://​www.​fbi.​gov/​about-us/​investigate/​organizedcrime/​glossary (Accessed on 16th November 2016).

Isak, Redi (2011): Der Kanun in Albanien—Gewohnheitsrecht im modernen Staat? Diploma thesis submitted at the University of Vienna: The Kanun in Albania—Habitual Law in the Modern State? pp. 37–39. Available from: https://​www.​design.​kyushu-u.​ac.​jp/​~hoken/​Kazuhiko/​2011DerKanun.​pdf (Accessed on 16th November 2016).

EUR-Lex (2013): Communication from the Commission to the Council and European Parliament. Stepping up the fight against cigarette smuggling and other forms of illicit trade in tobacco products—A comprehensive EU Strategy. Available from: https://​eur-lex.​europa.​eu/​legal-content/​EN/​TXT/​?​uri=​CELEX:​52013DC0324 (Accessed on 16th November 2016).

Meinrado, Robbiani (2000): Inquiry to the Swiss National Council regarding international cigarette smuggling in connection with OC. Rationale: “[…] It is true, on the other hand, that the smuggling of cigarettes in Switzerland does not meet any conditions for legal aid in criminal matters. This is, however, always granted if the foreign procedure concerns a treaty, which would be qualified as a tax fraud in fiscal matters in Switzerland (Article 3 (3), second sentence, of the Federal Law on International Acts in Criminal Matters, IRSG, SR 351.1). Article 24 (1) of the Regulation on international legal assistance in criminal matters (IRSV, SR 351.11) defines the tax fraud as the tax fraud as defined in Article 14 (2) of the Federal Law on Administrative Criminal Law (VStrR, SR 313.0). The fraudulent withdrawal of duties using falsified or false documents fulfils the facts of the tax fraud, for which legal assistance may be granted. In the case of large cigarette smuggling attributable to organised crime, the Customs Administration has always been able to provide legal assistance.[…].” Available from: https://​www.​parlament.​ch/​de/​ratsbetrieb/​suche-curia-vista/​geschaeft?​AffairId=​20003441 (Accessed on 16th November 2016).

Justiz Online (2016): Gemeinsame Richtlinien der Justizminister/–senatoren und der Innenminister/–senatoren der Länder über die Zusammenarbeit bei der Verfolgung der Organisierten Kriminalität. Available from: http://​www.​jvv.​nrw.​de/​anzeigeText.​jsp?​daten=​510&​daten2=​Vor, https://​www.​gesetze-im-internet.​de/​englisch_​stgb/​englisch_​stgb.​html#p1204 (Accessed on 16th November 2016).

German Criminal Code Article 129—Forming Criminal Organisations. Section 7—Offences against public policy. Available from: https://​www.​gesetze-im-internet.​de/​englisch_​stgb/​englisch_​stgb.​html#p1204 (Accessed on 16th November 2016).

German Code of Criminal Procedure (StPO), as amended by the notice of 7 April 1987 (Law Gazette I, 1074, 1319), which was last amended by Article 2 (3) of the Law of 21 January 2015 (Federal Law Gazette I, p. 10) has been amended. The translation includes the amendment(s) to the Act by Article 3 of the Act of 23rd April 2014 (Federal Law Gazette Part I p. 410). Available from: https://​www.​gesetze-im-internet.​de/​englisch_​stpo (Accessed on 16th November 2016).

Bundeskriminalamt-BKA German Federal Criminal Office (2015): Organised crime. National Situation Report 2014, pp. 11–17. Available from: https://​www.​bka.​de/​SharedDocs/​Downloads/​DE/​Publikationen/​JahresberichteUn​dLagebilder/​OrganisierteKrim​inalitaet/​organisierteKrim​inalitaetBundesl​agebild2014.​html (Accessed on 16th November 2016). Note from the author: The ‘General Indicators for Detecting OC-Relevant Issues’ are listed in Annex 10.

Ibid.

United Nations Convention against transnational organised crime ad the protocols thereto (2004): Adopted by the UN General Assembly Resolution 55/25 on 15 November 2000—United Nations Office on Drugs and Crime (UNODC). Available from: https://​www.​unodc.​org/​documents/​middleeastandnor​thafrica/​organised-crime/​UNITED_​NATIONS_​CONVENTION_​AGAINST_​TRANSNATIONAL_​ORGANIZED_​CRIME_​AND_​THE_​PROTOCOLS_​THERETO.​pdf (Accessed on 16th November 2016).

Ibid.

Note from the author: The Palermo Convention was submitted for signature by the Member States at the political conference in Palermo, Italy from 12 to 15th December 2000 and entered into force on 29th September 2003.

Ibid.

Note from the author:

German Criminal Code, Section 12—Felonies and misdemeanours

Note from the author: The Council of Europe is the leading organisation for human rights in Europe, with a total of 47 member states, 28 of which are also members of the European Union. All 47 member states of the Council of Europe have signed the European Convention on Human Rights as a treaty for the protection of human rights, democracy and the rule of law.

Council of Europe (2001): Recommendation (2001) 11 of the Committee of the Ministers to the member states concerning guiding principles in the fight against organised crime (adopted by the Committee of Ministers on 19th September 2001 at 756th meeting of the Ministers’ Deputies).

Note from the author: German Criminal Code, Section 12—Felonies and misdemeanours.

Council of Europe (2006): A Council of Europe report detailing trends in organised crime in 2005 is now open to the public.

The report provides facts and figures on organised criminal activities in Europe, ranging from drug trafficking, to trafficking in human beings, cybercrime and money laundering. p. 21.

Treaty on the Functioning of the European Union—Consolidated Versions of the Treaty on European Union and the Treaty on the Functioning of the European Union (2016/C 202/01). Article 67.

The creation of the area of freedom, security and justice (AFSJ) is based on the Tampere (1999–04), Hague (2004–09) and Stockholm (2010–14) programmes. It derives from Title V of the Treaty on the Functioning of the European Union, which regulates the “Area of freedom, security and justice”.

Official Journal of the European Union (2000): Acts adopted pursuant to Title VI of the Treaty on European Union, 2000/C 124/01. The prevention and control of organised crime: a European Union strategy for the beginning of the new millennium.

Council Regulation (EC) No 2666/2000 of 5th December 2000 on assistance for Albania, Bosnia and Herzegovina, Croatia, the Federal Republic of Yugoslavia and the Former Yugoslav Republic of Macedonia, repealing Regulation (EC) No 1628/96 and amending Regulations (EEC) No 3906/89 and (EEC) No 1360/90 and Decisions 97/256/EC and 1999/311/EC.

Council Joint Action 98/245/JHA of 19 March 1998 establishing a programme of exchanges, training and cooperation for persons responsible for action to combat organised crime (Falcone programme 1998–2002) [Official Journal L 99, 31.03.1998]. https://​eur-lex.​europa.​eu/​legal-content/​EN/​TXT/​?​uri=​URISERV:​l33044 (Accessed on 18th November 2016).

Hippocrates [7].

Grotius (1996–2000): Joint action 96/636/JHA of 28 October 1996, adopted by the Council on the basis of Article K.3 of the Treaty on European Union, on a programme of incentives and exchanges for legal practitioners [Official Journal L 287 of 08.11.1996]. Available from: https://​eur-lex.​europa.​eu/​legal-content/​EN/​TXT/​?​uri=​URISERV:​l14014 (Accessed on 18th November 2016).

OISIN I (1997–2000) und OISIN II (2001–2002): Joint Action 97/12/JHA of 20 December 1996 adopted by the Council on the basis of Article K.3 of the Treaty on European Union providing a common programme for the exchange and training of, and co-operation between, law enforcement authorities (Oisin) [Official Journal L 7, 10.01.1997]. Objective to prevent, detect and combat terrorism and crime by improving co-operation between law enforcement authorities in order to provide greater insight into and understanding of the legal systems and law enforcement practices in other Member States as well as upgrading the skills of those working in law enforcement. Available from: https://​eur-lex.​europa.​eu/​legal-content/​EN/​TXT/​?​uri=​URISERV:​l33066 (Accessed on 18th November 2016).

STOP I (1996–2000) and STOP II (2001–2002): Joint action 96/700/JHA, of 29 November 1996, adopted by the Council pursuant to Article K.3 of the Treaty on European Union, establishing an incentive and exchange programme for persons responsible for combating trade in human beings and the sexual exploitation of children [Official Journal L 322, 12.12.1996]. Incentive and exchange programme for persons responsible for combating trade in human beings and the sexual exploitation of children (STOP). Available from: https://​eur-lex.​europa.​eu/​legal-content/​EN/​TXT/​?​uri=​URISERV:​l33015 (Accessed on 18th November 2016).

Note from the author: The creation of the area of freedom, security and justice (AFSJ) is based on the Tampere (1999–04), Hague (2004–09) and Stockholm (2010–14) programmes. It derives from Title V of the Treaty on the Functioning of the European Union, which regulates the “Area of freedom, security and justice”.

AGIS ((2002): Council Decision 2002/630/JHA of 22 July 2002 establishing a framework programme on police and judicial cooperation in criminal matters (AGIS) [Official Journal L 203 of 01.08.2002]. Objective is to establish a single framework programme for the co-financing of projects presented by promoters in the Member States and candidate countries in the areas of justice and home affairs, thereby enabling a coordinated multidisciplinary approach to the various activities relating to the creation of the area of freedom, security and justice as well as preventing and fighting organised crime in the European Union. Available from: https://​eur-lex.​europa.​eu/​legal-content/​EN/​TXT/​?​uri=​URISERV:​l33177 (Accessed on 18th November 2016).

European Parliament (2013): Directive 2013/40 / EU of the European Parliament and of the Council of 12 August 2013 on attacks on information systems and the replacement of Council Framework Decision 2005/222 / JHA, pp. 1–2. Available from: https://​db.​eurocrim.​org/​db/​en/​doc/​1938.​pdf (Accessed on 18th November 2016).

European Union (2005): Proposal for a Council Framework Decision on the fight against organised crime,

COM/2005/0006 final—CNS 2005/0003. Article 1 (Definitions) The first paragraph of Article 1 partly takes over the definition of “criminal organisation” from the first paragraph of Article 1 of Joint Action 98/733/JHA.

European Council (2006): Friends of the Presidency. Report by the Friends of the Presidency on concrete measures to be taken to effectively enhance the fight against organised crime originating from the Western Balkans of 13th October 2004.

EUROPOL (2016): Council Decision of 6th April 2009 establishing the European Police Office (Europol) (2009/371/JHA). The establishment of a European Police Office (Europol) was agreed in the Treaty on European Union of 7 February 1992 and regulated in the Convention based on Article K.3 of the Treaty on European Union, on the establishment of a European Police Office (Europol Convention).

Council of Europe (2001): Recommendation (2001) 11 of the Committee of the Ministers to the member states concerning guiding principles in the fight against organised crime (adopted by the Committee of Ministers on 19th September 2001 at 756th meeting of the Ministers’ Deputies).

Note from the author: German Criminal Code, Section 12—Felonies and misdemeanours.

INTERPOL [8].

INTERPOL (2016): Breakdown of funding 2015. For the year 2015, INTERPOL’s consolidated budget income amounted to EUR 79.8 million, excluding in-kind contributions. This comprises (a) regular budget—member country statutory contributions: EUR 52.8 million, (b) regular budget—other contributions: EUR 3.5 million, (c) trust fund and special account contributions: EUR 23.5 million. Available from: https://​www.​interpol.​int/​About-INTERPOL/​Funding (Accessed on 19th November 2016).

Nesbitt, Paul/Von Lampe, Klaus (ed.) (1993): Head of Organised Crime Group, cit. in Bresler, Fenton, INTERPOL, London. p. 319.

Von Lampe, Klaus (2008): Organised Crime in Europe: Conceptions and Realities. Associated Professor at the John Jay College of Criminal Justice in New York. Published in: Policing: A Journal of Policy and Practice, 2(1). p. 2.

Mayring [9].

Note from the author: The menaced minimum sentence for murder according to Article 211 of the German Criminal Code is life-long. In practice, after 15 years of imprisonment, the offender is released from custody as long as no other reasons (for example, the safeguarding of security) are opposed. […] for intangible reasons is thus an additional exclusion criterion of the OC since all other definitions show the profit striving as a qualification feature.

Note from the author: Influence is the capacity or power of persons or things to be a compelling force on or produce effects on the actions, behaviour, opinions, etc., of others.

European Parliament [10].

European Council (2004): The Hague Programme from 2005 to 2009. The European Council reaffirms the priority it attaches to the development of an area of freedom, security and justice, responding to a central concern of the peoples of the States brought together in the Union. Available from: https://​ec.​europa.​eu/​home-affairs/​doc_​centre/​docs/​hague_​programme_​en.​pdf (Accessed on 22nd November 2016).

European Council (2010): The Stockholm Programme from 2010 to 2014. The European Council has defined in the Stockholm Programme—an open and secure Europe serving and protecting the citizens, according to article 68 TFEU, the strategic guidelines for legislative and operational planning within the area of Freedom, Security and Justice for the period 2010–2014. Available from: https://​www.​statewatch.​org/​news/​2010/​jun/​eu-jha-council-jun-10-stockholm-programme-action-plan-conclusions.​pdf (Accessed on 22nd November 2016).

Note from the author: Germany has 16 regional police services (Länderpolizeien), federal police and additionally the BKA as an independent police authority.

Section 100a—Conditions Regarding Interception of Telecommunications

Available from: https://​www.​gesetze-im-internet.​de/​englisch_​stpo/​englisch_​stpo.​html#p0483 (Accessed on 24th November 2016).

Ibid.

Section 110a—Undercover Investigators

Available from: https://​www.​gesetze-im-internet.​de/​englisch_​stpo/​englisch_​stpo.​html#p0483 (Accessed on 24th November 2016).

Heinrich, Bernd/Reinbacher, Tobias (2010): Conceptual distinctions between police officers and investigators working in the underground:

Available from: https://​heinrich.​rewi.​hu-berlin.​de/​doc/​strpr/​21_​verdeckte_​ermittler.​pdf (Accessed on 24th November 2016).

Schmidt [11].

Duhaime’s law dictionary (2016): Burden of proof definition. A rule of evidence that imposes on a participant in a court case the initial obligation to prove a certain thing or the contrary will be assumed by the court. For example, in a criminal law matters, the prosecution has the burden of proving the accused’s guilt because innocence is presumed. Available from: https://​www.​duhaime.​org/​LegalDictionary/​B/​BurdenofProof.​aspx (Accessed on 24th November 2016).

Section 3—Offences committed on the territory of the Federal Republic of Germany.

German criminal law shall apply to acts committed on German territory.

Section 7—Offences committed abroad—other cases

Ibid.

Section 261—Money laundering; hiding unlawfully obtained financial benefits

International Compliance Association—ICA (2016): Money laundering is the generic term used to describe the process by which criminals disguise the original ownership and control of the proceeds of criminal conduct by making such proceeds appear to have derived from a legitimate source.

Money laundering offences have similar characteristics globally. There are two key elements to a money laundering offence:

Available from: https://​www.​int-comp.​org/​careers/​a-career-in-aml/​what-is-money-laundering/​ (Accessed on 24th November 2016).

BPB [2].

OSCE Decision No. 5/06 Organized Crime. MC.DEC/5/06 OSCE (2006).

Note from the author: From 2005 to 2009, the author was the Senior Border Adviser in the OSCE Secretariat and present in all relevant meetings as the leading OSCE expert.

Behrens, Timo/Brombacher, Daniel/Jäger, Thomas (Hg.) (2015): Handbuch Sicherheitsgefahren. Transnationale Organisierte Kriminalität, pp. 135–145.

European Commission (2016): The European Arrest Warrant (EAW), is applied throughout the EU since 1st January 2004. It replaced lengthy extradition procedures within the EU's territorial jurisdiction. It improves and simplifies judicial procedures designed to surrender people for the purpose of conducting a criminal prosecution or executing a custodial sentence or spell in detention. Available from: https://​ec.​europa.​eu/​justice/​criminal/​recognition-decision/​european-arrest-warrant/​index_​en.​htm (Accessed on 25th November 2016).