Federal Court of Justice (BGH), Decision as of 7/7/2009
File number 3 StR 132/09

Summary

The highest appellate court (BGH) modified the judgment of the trial court and remitted the case on account of missing facts to the lower court. The accused had been convicted by the trial court of aiding human trafficking, exercising control over a prostitute, and of smuggling of foreign nationals injurious to six female Brazilian nationals. Four of the women concerned had already worked as prostitutes in Brazil, two of them only began working as prostitutes in Germany.

The BGH did not consider the acts committed by the main perpetrator G. to constitute human trafficking. And in the absence of the principal act of human trafficking, there could be no aiding of it. A “recruiting” within the meaning of the old section 181 (1) no. 3 StGB, which was in force at the time of the offence, must be interpreted narrowly and must involve an intense influencing of the victim, in the opinion of the court. The trial court had, however, failed to establish any facts in support of this. For an "inducement" within the meaning of the new (in force since February 2005) section 232 StGB, the BGH held that the cause of the victim’s decision to begin or to resume working as a prostitute must also have been elicited through the influence exercised by the perpetrator. Here too the trial court had failed to find any facts in support of this. The other findings of the trial court upon which the judgment is based rather suggest, in the opinion of the BGH that the women concerned had already decided to begin or to resume working as prostitutes. Although the trial court had found that G. had sometimes used force against the women and had taken their passports away, it had not established that this had been done to induce them to work as prostitutes.

The BGH therefore modified the conviction of the accused from “aiding in human trafficking” to “aiding in the exercising of control of a prostitute and smuggling of foreign nationals”, because there had been no error in law in the findings of the trial court regarding these. The BGH remitted the case to the trial court for a re-assessment of the sentence.

Decision in full text: