Federal Court of Justice (BGH), Decision as of 1/13/2010
File number 3 StR 507/09

Key issues

Criminal proceedings regarding human trafficking for the purposes of labour exploitation and the commercial smuggling of foreign nationals the element of "inducement"; comments on determining when, pursuant to section 233 of the German Criminal Code (StGB), a person will be regarded as having been induced to work in an exploitative employment relationship.

Summary

On the accused’s appeal, the highest appellate court (BGH) quashed the court of first instance’s conviction for human trafficking for the purposes of labour exploitation and for the commercial smuggling of foreign nationals. The matter was remitted to the first instance trial court for a new hearing.
The court of first instance had sentenced the accused to three years and six months for human trafficking for the purposes of labour exploitation and for the commercial smuggling of foreign nationals. He was forbidden for three years from working in the folklorist/ethnical, cultural, and artistic events branch.
Beginning in the summer of 2003, the accused concluded with at least 25 Moroccan nationals engagement contracts for folklore artistes (performers) pursuant to which EUR 33 was to be paid per performance plus room and board. The contracts were limited to one year and then renewed thereafter. He paid eight of these persons either no wages or only irregular wages due to the fact that no spectators showed up, and he did not provide medical insurance for most of them. These persons were housed in accommodations with inadequate sanitation facilities that were unsuitable for human occupancy.
The court regarded this as being "strikingly incongruous" with the working conditions of other employees.
The Moroccan nationals spoke no German and had virtually no money at their disposal. Their residence permits were tied to the business operations of the accused. They were in fact and in law dependent on the accused. Viewed as a whole, the court found that this situation amounted to a “foreign-country-connected-vulnerability” within the meaning of section 233 StGB.
The BGH was of the opinion that the reasons given by the court of first instance were insufficient to support a conviction of human trafficking. It found that the judgment had not clearly demonstrated that the perpetrators had "induced" the concerned parties to work in the exploitative employment relationship. The BGH provided the trial court with guidelines for the new hearing for interpreting “inducing another person to work in an exploitative relationship” (section 233 StGB). According to these, it suffices that the perpetrator creates a favourable situation or makes an offer on the basis of which a person ends up in an exploitative employment relationship. What is not a criminal offence, however, is if the person was already being exploited before the actual job offer was made and the perpetrator merely continues on with, but does not create, this situation. What is also not a criminal offence in the opinion of the BGH is when an employee, despite his/her difficult situation, has willingly decided in favour of the exploitative employment relationship.

The BGH indicated that in the new hearing before the trial court it had to be decided whether the exploitation of the Moroccan men and women had come about through the accused’s offer to contract. The BGH was of the opinion that this had not been adequately demonstrated.
The injured parties had renewed their contracts with the accused at a point in time at which they already knew about the insufficiency of the payment. The court of first instance had found that they had done so in order to obtain a residence permit allowing them to reside uninterrupted in Germany for five years.
This indicated to the BGH that the injured parties had intended from the outset to accept the employment offer regardless of the payment. The accused would therefore not have induced the concerned parties to work in the exploitative relationship and his conduct would not attract criminal liability under section 233 StGB.

Decisions in full text:

BGH_13_01_2010 (PDF, 76 KB, not barrier-free, in German)

LG_Hannover_04_03_2009 (PDF, 9,5 MB, not barrier-free, in German)

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