Summary

Seven years ago, the provisions governing criminal organisations in the Penal Code were amended once again. Until the end of 2014, several special provisions, in addition to § 255 (Criminal Organisation) and § 256 (Organising a Criminal Organisation), were found in the Penal Code, which treated involvement in a criminal organisation as a qualifying element. In some cases, a criminal organisation constituted an aggravating circumstance alongside commission by a group, while in others it constituted a separate, particularly aggravating circumstance. During the revision of criminal law, it was concluded that treating a criminal organisation as a separate element of an offence in some provisions but together with commission by a group in others could result in unequal treatment. Therefore, the amendment to the Penal Code removed involvement in a criminal organisation from the Special Part as an aggravating or particularly aggravating circumstance. The characteristics of a criminal organisation have been analysed in dozens of court decisions over the past dozen years. In light of the extensive case law, the author provides an interim summary and analyses which circumstances courts have regarded as sufficient to establish the existence of a criminal organisation and when they have considered it appropriate to speak only of a more highly organised group of co-perpetrators.