Federal Court of Justice (BGH), Judgment as of 5/19/2010
File number 3 StR 56/10

Summary

On the appeals brought by the accused and by the public prosecutor, the BGH overturned the judgment of the court of first instance and remitted the case for a retrial.

According to the findings of the court of first instance, the co-prosecutor was a woman from Bulgaria who had already worked on the street in Germany as a self-employed prostitute for a period of time before being procured by the accused to work in a variety of brothels. She lived with the accused, who also had her passport in his possession. One day the woman told the accused that she no longer wanted to work as a prostitute but wanted to have a steady relationship with him, otherwise she would go back to Bulgaria. The accused declined this and told her that she had to earn the money for the trip back herself and had to move out of his apartment if she no longer wanted to work as a prostitute. The woman then resumed her work. On one occasion when the accused collected her from the brothel in order to organize her working papers, a fight broke out in his apartment in the course of which he hit the woman and locked her in the apartment. Although the court of first instance was unable to clarify the origins of the fight, it had nothing to do with the work of the co-prosecutor.

The accused was convicted by the court of first instance of exercising control over a prostitute with serious human trafficking, bodily harm, and unlawful detention and sentenced to imprisonment for a term of two years, enforcement of which was suspended and the accused put on probation. But because neither the bodily harm nor the locking up of the woman in the apartment were done to exercise control over the work of the co-prosecutor, the BGH saw no connection between these acts, the exercising of control over a prostitute, and human trafficking and in this respect allowed the appeal of the public prosecutor.

The accused’s appeal was also successful because the BGH saw no “threatening with an apprehensible malice” in the accused’s announcement that the woman had to move out of his apartment if she no longer wanted to work as a prostitute and therefore no criminal liability under section 232 (4) no. 1 of the German Criminal Code (StGB). In the opinion of the BGH, a threat of such a kind will only be found if the harm being threatened with is so severe that “the communication of it appears capable of motivating the threatened person to do what the perpetrator is demanding and it cannot be expected of such threatened person, in his/her actual situation, to stand up to such a threat.” And even if the accused had known that the woman was afraid of being left without means and without a place to live and had used his announcement to get her to resume working as a prostitute, the court was of the opinion that the difficulty of her situation had less to do with the announcement made by the accused than with her vulnerability due to her lack of knowledge of the German language and the fact that she could neither read nor write properly.

The BGH was also unable to find criminal liability pursuant to section 232 (1) sent. 1 StGB on account of an exploitation of a “foreign-country-connected-vulnerability”, because the court of first instance had failed to determine why the accused had the woman’s passport in his possession and that he wanted to use this to exploit her situation as a foreign national. Also the fact that she had, at an earlier time, organized her work as a prostitute herself for a period of time without the help of the accused spoke against a finding of such “foreign-country-connected-vulnerability”.

The BGH therefore quashed the accused’s conviction for human trafficking. For the retrial, the BGH pointed out that the retention of the passport could amount to an exercising of control over a prostitute pursuant to section 180a (1) no. 2 StGB if the accused wanted to use it to prevent the woman from giving up her work as a prostitute.

Decision in full text: