Federal Court of Justice (BGH), Decision as of 4/7/2005
File number 2 StR 524/04

Summary

On the accused’s appeal, the highest appellate court (BGH) quashed the conviction entered by the court of first instance for consummated human trafficking but held that attempted human trafficking had been committed.

R., who was under 21 years of age and befriended with F., the daughter of the accused, had contemplated working as a prostitute in 2002. The accused, who worked as a pimp, showed her a club where she could possibly work. When the young woman later informed him that she did not want to work as a prostitute, the accused reacted angrily and said that everything had already been organized. On account of this, the court of first instance convicted him in January 2004 of (among other things) human trafficking - under section 180b (2) no. 2 StGB, which was still in force at the time of the offence. The BGH found, however, that there had been no “influencing” within the meaning of section 180b StGB. The court was of the opinion that such an influencing required a certain degree of persistency, such as repeated insistence and persuasion. The court did not see such in the once-only reaction of the accused, especially since it had been R. that had approached the accused.

By contrast, an "inducement" within the meaning of the new section 232 StGB (human trafficking), which has been in force since February 2005, does not require something as strong as an “influencing”, a mere offer to work as a prostitute or a procuring for it will suffice. The BGH therefore saw such in the fact that the accused had visited a club with R. to look at it as a possible work place. But because it never came to the actual practicing of prostitution, this only amounted to an attempt.

Although the general rule is that the law in force at the time of an offence is the law that applies (here the old section 180b StGB), if the new law provides for a milder punishment then according to section 2 (3) StGB this law is to be applied. Since there was the possibility of a milder punishment under section 232 StGB, the BGH held that the new law could apply and remitted the case to the first instance trial court.

Decision in full text: