RESOURCE MATERIAL SERIES No. 58

PRINCIPAL WITNESS REGULATIONS TO SUPPRESSORGANIZED CRIME IN GERMANY
Johan Peter Wilhelm Hilger *I. INTRODUCTION
The history of the principal witness
regulation in Germany is turbulent from alegal policy point of view, but notexcessively long. I will start by explaining
to you what principal witness regulations
have previously existed, and which remain
today. In doing so, because of the context
of the regulations, I will also touch briefly
on the principal witness regulation relating
to terrorism. Following that, I will briefly
explain the factual and political discussionin Germany.
II. THE INDIVIDUALREGULATIONS
A. Section 129 of the Criminal Code(StGB)
Section 129 of the Criminal Code governs
the punishability of the formation ofcriminal organisations and membershiptherein.
“Whoever forms an organisation, theobjectives or activity of which are directed
towards the commission of crimes, or
whoever participates in such anorganisation as a member, recruits for it or
supports it, shall be punished withimprisonment for not more than five years
or a fine.”
This criminal offence is an offence
relating to membership of proscribedorganisations. In accordance with thisprovision, a (criminal) organisation is anorganisational union for a certain duration* Former Head of Division of Judicial System,
Federal Ministry of Justice, Germany

106of at least three individuals who, whilst
subsuming the will of the individual to thatof the whole, pursue common goals(commission of criminal offences) and arelinked such that they feel themselves toconstitute a unit together. This goal
distinguishes such an organisation frommere complicity. Furthermore, anorganisation is dependent on a minimum
degree of permanent organisation; a meregang does not fulfil this precondition as arule.
Subsection 6 of this provision contains a“minor principal witness regulation”, or to
put it better, a contribution by the offender
towards prevention of an offence. The court
may mitigate the punishment at its
discretion or dispense with punishment inaccordance with section 129 if the offender(1.) voluntarily and earnestly attempts toprevent the continued existence of theorganisation or the commission of acriminal offence consistent with its goals,or (2.) voluntarily discloses his/herknowledge to a competent agency in goodtime that further criminal offences, where
he/she is aware of their planning, may still
be prevented.
This provision was and is relatively
unattractive. It is restricted to the criminal
offence defined by section 129, andretroactive assistance in detecting offences
already committed may not be rewarded.
The provision has therefore not assumed
any major significance in practice.

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B. Section 31 of the Narcotics Act(BtMG)
In accordance with this provision, thecourt may, at its discretion, mitigate ordispense with punishment in respect ofspecific narcotics-related criminal offences
if the offender
(i)

(ii)

by voluntary disclosure of his/her
knowledge has substantiallycontributed to the offence being
detected beyond his/her own
contribution to the offence, orvoluntarily discloses his/her
knowledge of planned offences to
a competent agency so timely thatspecific narcotics-related criminal
offences, where he/she is aware of
their planning, may still beprevented.

This provision, which entered into force
in 1981, was the subject of muchcontroversy at the time. Its aim is toprovide special privileges to narcotics
offenders in the non-organized crime area
who, beyond the confession of their own
offences, disclose their knowledge of clientsand criminal organisations. The fear that
this principal witness regulation, which isrestricted to narcotics-related crime, mightprove detrimental to the principle ofmandatory prosecution and lead toundesirable trading between criminal
prosecution authorities and accused
persons was at that time put aside infavour of the expectation that one would
be able to break up internationalorganisations effectively trafficking innarcotics through granting privileges tooffenders willing to testify and cooperate(“detection helpers”) and to convict major
dealers.
The provision finds particularly
inflationary application in Germany today.
The provision makes it possible to provide
comprehensive information on a part of thedrug scene and to apprehend offenders
dealer by dealer until the thread of thedetection assistance breaks. The provisionpermits an unusually high success rate indetection, particularly in the area oforganized narcotics crime. Of decisive
significance for the overall success is that,at the outset, a central gang member iswilling to testify, and that there is initiallyno outside knowledge of theircomprehensive, detailed statement. If a
special commission of the police is then able
to collect evidence on a large number of thedealers described without being noticed
and in separate sets of proceedings, and toapprehend these suspects in a raid, thepersons apprehended as a rule compete
against one another with theircomprehensive confessions. If a special
commission has the staff to also evaluate
these statements quickly and in relation
to persons, and to convict the suspects,
there is a chain reaction of confessions,which unravel the links between thedealers like running balls of wool and open
up a part of the drug scene like a net. The
information provided by the detection
helpers directly after their apprehension
is as a rule much more reliable than after
a long period of detention, when they have
had time to brood and imagine alleged
backgrounds and supporters of theorganisations. Detection helpers may, forinstance, be able to give a detailed
description of procedures in the drug sceneusing seized address books and photographalbums. In cities in particular, detection
helpers have in individual cases blown thecovers on 20, 50 and more suspects. The
provision also encourages dealers who havebeen frequently apprehended, and who
expect a severe sentence, to disclose to theinvestigating authorities their narcotics
stashes and deposits which have not yet
been discovered. No one is now thinking
about rescinding this provision in light ofthis experience.

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C. Art. 5 of the Principal Witness
Act (Kronzeugengesetz)
The actual principal witness regulation
to detect and suppress organized crime wasgoverned by Art. 5 of the Principal Witness
Act. The provision was introduced in 19941
and ceased to apply on 31 December 1999.
It read as follows: “Article 4 sections 1to 5 (of this Act) shall apply mutatis
mutandis to disclosing by an offender orparticipant in a criminal offence inaccordance with section 129 of the Criminal
Code or of an offence related to such offence
in respect of which time-limited
imprisonment of at least one year is
imposable if the objectives or activity of theorganisation are directed towards thecommission of offences in respect of which
extended forfeiture (section 73 d of theCriminal Code) may be ordered. In
accordance with Article 4 sections 1 and 2
second sentence, the public prosecution
office and the court are responsible which
would be responsible for the main trial.”
Article 4 sections 1 to 5, to which theprovision refers, was the principal witness
regulation for terrorist offences. It read as
follows:“If the offender or participant in aterrorist criminal offence (section 129
a of the Criminal Code) or in acriminal offence related to such offence
him/herself or through the mediationof a third party discloses his/her
knowledge of facts to a criminal
prosecution authority which is likely(1) to prevent the commission ofsuch a criminal offence,(2) to promote the detection of sucha criminal offence, if he/she wasinvolved therein, beyond his/her own contribution to the1Verbrechensbekämpfungsgesetz vom 28.10.1994 BGBl. I S.3186.

108offence, or(3) to lead to the apprehension of anoffender or participant in sucha criminal offence,
the Federal Public Prosecutor General,with the agreement of the Criminal
Panel of the Federal Court of Justice,
may dispense with prosecution if thesignificance of what the offender orparticipant disclosed, in particular inconnection with the prevention offuture offences, justifies this in relation
to that individual’s offence.”
Once the charge had been filed, the court
was able in such cases to dispense with asentence in the judgment, or to mitigate
the punishment at its discretion; in doingso, it was able to exhaust the minimum
statutory punishment to be ordered, or toimpose a criminal fine in place ofimprisonment. Furthermore, the court once the charge had been filed, but prior to
the initiation of the main trial - was able
to discontinue the proceedings with thepermission of the Federal Public Prosecutor
General.2
If one applies these provisions mutatis
mutandis to specific criminal offences oforganized crime - as stated in Article 5 this means:“If the offender or participant in acriminal offence in accordance withsection 129 of the Criminal Code(membership of a criminalorganisation) or the offender/
participant in a major crime connectedwith this offence, if the objectives oractivity of the organisation are
directed towards the commission ofoffences in respect of which extended
forfeiture may be ordered, he/herself
or through the mediation of a third
2Restrictions in § 3.

116TH INTERNATIONAL TRAINING COURSE
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directed towards the commission ofsuch major crimes, in other words tooffences in respect of which aminimum prison sentence of one yearis imposable, where, additionally,extended forfeiture may be ordered inaccordance with section 73 d of theCriminal Code.
These arecounterfeiting money in accordancewith sections 146 and 152 a of theCriminal Code, grievous trafficking inhuman beings in accordance withsection 181 of the Criminal Code,grievous gang theft in accordance withsection 244 a of the Criminal Code,blackmail resembling robbery inaccordance with section 255 of the
Criminal Code, handling stolen
property on a commercial and gangbasis in accordance with section 260
a of the Criminal Code, as well as
specific narcotics-related offences,
commercial and gang smuggling ofaliens, commercial and gang
incitement to file wrongful asylum
applications, offences in accordancewith the Act Governing Control ofW e a p o n so f
W a r
(Kriegswaffenkontrollgesetz), inaccordance with the Firearms Act(Waffengesetz) and in accordance with
the Foreign Trade and Payments Act(Außenwirtschaftsgesetz). The
intention here is to apply this principal
witness regulation, in addition to thesuppression of serious narcoticsrelated crimes which are regarded as
typical of organized crime, to also
suppress holding to ransom,
smuggling of human beings, illegalarms trade and technology transfer.”party discloses his/her knowledge offacts to a criminal prosecution
authority which is likely,(1) to prevent the commission ofsuch an offence,(2) to promote detection, or(3) to lead to the apprehension of an
offender of such an offence,thecompetent public prosecution
office, with the agreement of thecompetent court, may
discontinue the proceedings
before a charge has been filed
and if the charge has been filed, thecourt may discontinue the proceedings
prior to the main trial, or mitigate thesentence by judgment or dispense withpunishment.”
The aim3 of this provision, which wasinserted by the 1994 Act on the Suppressionof Crime, is to prevent the continued
existence of a criminal organisation, or atleast to prevent the commission of offences
consistent with its goals. By linking tosection 129 of the Criminal Code, thecriminal offence of forming a criminalorganisation, it has been made possible torestrict the provision to participants incriminal offences which are or are to becommitted by organisations. Here, afurther restriction applies by virtue oflimiting to specific serious criminaloffences.
The individual preconditions:“An offence in accordance with section
129 of the Criminal Code, or a major
crime linked to such an offence, must
be disclosed by a member of thecriminal organisation. The
application of the provision is however
restricted to organisations theobjectives or activity of which are“Corruption crimes” are not covered.
Whilst there were calls in theparliamentary debate on the Act to Combat
43BT-Dr 12/6853, S.119 ff.

5BGBl. I S. 2038..
Korte NStZ 1997, S.513.

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RESOURCE MATERIAL SERIES No. 58
Corruption of 13 August 1997 4 for a
principal witness regulation for corruptionrelated crimes5, it was rejected because oflegal policy reservations.
In contrast to the situation with theprincipal witness regulation for terrorist
offences, it is not the Federal Public
Prosecutor General and the Federal Courtof Justice who are responsible for taking
the necessary decisions, but the publicprosecution office and the court withrespective competence. This therefore
means, as a rule, a Great Criminal Panelof the Regional Court.
Whether the provision is used is at thediscretion of the public prosecution officeand the court. In deciding, the degree andsignificance of the disclosed knowledge
must be balanced against the nature andsignificance of the legal interests whichhave been injured 6 . In this process,application of the regulation will be deemed
to be particularly suitable if thecontribution made towards detection
makes it possible to prevent thecommission of another criminal offence oforganized crime. In other respects, theprinciple applies that assistance indetection must be all the greater the more
serious the offence of the “principalwitness” is. Granting a privilege ishowever not dependent, in personal terms,
on a hierarchical relationship and, from afactual point of view, on a difference in theseverity of wrongdoing. It is therefore notnecessary for the accomplice who has been
betrayed to be more important or at least
as important as the principal witness andfor the offence in respect of which freedom
from punishment is granted to be lessserious than the offence disclosed.

If the public prosecution office wishedto avail itself of the provision, it would have
two possibilities: either to discontinue theproceedings if the contribution towards
detection were to justify such an action onweighing up all relevant circumstances, orfiling a charge and applying for mitigationof punishment by the court in the main
trial. In its judgment, the court could
dispense with punishment or could
mitigate the punishment at its discretion,and exhaust the statutory minimum of theimposable punishment, or impose acriminal fine instead of imprisonment.
Discontinuation by the publicprosecution office was not final andbinding, so that the office could resume its
investigations at any time. The decisionof the court by virtue of a judgment, on theother hand, was final and led to exhaustionof the available criminal action. The
principal witness regulation was the
subject of much controversy in Germany
from both factual and political points ofview.
From a factual point of view, it gave riseto problems, for instance, because in theory
several principal witness regulations
existed in proximity and might apply to thesame case. Furthermore, disagreement
existed as to the list of crimes covered,corruption, for instance, not being covered.7
Politically, the following in the main8 waslevied at the principal witness regulation:(i)(ii)
7
6

Bernsmann NStZ 1989, S.46o ; Hilger NJW 1989,
S. 2377.

110

8It violates the principle of equality(Art. 3 of the Basic Law [GG]), theprinciple of the rule of law (Art. 20
III of the Basic Law), is notcompatible with the principle ofmandatory prosecution.
It is detrimental to the citizen’s

Korte NStZ 1997 ,S. 513.
Kleinknecht / Meyer- Goßner , Kronz.G. ,Vorb. Rn
5. Pro :Schlüchter ZRP 1997, S.65.

116TH INTERNATIONAL TRAINING COURSE
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confidence in the inviolability of
the law and of the judiciary.
(iii) In particular, it weakens thecitizen’s willingness to abide by thelaw if he/she sees that the state
allows itself to buy witnesses bytrading with serious criminals.
(iv) It is prone to abuse by virtue of thediscretion provided.
(v) It reduces the significance of themain trial and makes things moredifficult for the defence. The truthof the statement of the detectionhelpers is dubious.
(vi) I t i s q u e s t i o n a b l e f r o m acriminological point of view
because, on the one hand, serious
doubts must arise as to theplausibility of information
provided by a principal witness
who hopes to buy considerable
advantages through his/herstatement, and for another, theentire regulation may be
counterproductive in that thedanger of betrayal tends to bring
the group together rather than todivide it, and that the failure of theregulation could be regarded as a
success by large organized crimeorganisations.

It is being examined in Germany atpresent whether a new, different principal
witness regulation should be created,which for instance could be inserted into
the Criminal Code (among sections 46 etseqq. as a regulation on assessment ofpunishment). The examination is howeverstill very much in its initial stages, and noconclusion is to be expected in theimmediate future.

The expectations linked to the regulation
appear not to have been fully met inGermany. No significant improvement indetecting and suppressing organized crime
is visible. It cannot be ruled out that theregulation has been useful in individualcases.
III. OUTLOOKThe application of the principal witness
regulation was time-limited from the outset- it was in other words a temporary statute.
By statute of 19 January 1996 9 , its
application was extended to 31 December
1999, and has hence expired.

9BGBl. I , S 58.

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