Federal Court of Justice (BGH), Judgment as of 4/22/1997
File number 1 StR 701/96

Summary

The highest appellate court (BGH) upheld the trial court’s conviction of the accused for wage usury. This judgment affirmed, for the first time ever, the so-called 2/3-threshold according to which a "striking incongruity", and therefore wage usury, will be found to exist when a wage being paid is less than two thirds of the union wage.

The accused, a building contractor, employed two Czech border-crossing commuters as brick layers from 1991 to 1993. He paid them an hourly wage of DM 12.70, although the union wage at that time was DM 19 and his other workers were being paid DM 21. He provided the employment office with false information in this regard, which enabled him to obtain the necessary work permits.

In its review, the BGH affirmed that the criminal offence of usury also extends to employment relationships, because the work performed generally represents a material gain for the employer. In judging whether there is a "striking incongruity" between the work performed and the payment for it, the advantage must be on the side of the perpetrator. Any advantages on the side of the victims, such as the higher buying power of the lower wage in the Czech Republic as compared to the buying power of the union wage in Germany, are irrelevant.
The BGH was of the opinion that the trial court had correctly equated the value of the work performed for the employer with the effective union wage and had then compared this to the wage being paid. The question as to whether an imbalance here constitutes a "striking incongruity" within the meaning of wage usury (in the old section 302a (I) sent. 1 no. 2 of the German Criminal Code (StGB)) is a decision for the trial judge and may only be revised by the appellate court if there has been an error in law. It would be an error in law if, for example, the judgment made by the judge was incompatible with the fundamental intention of the law. In this case, the exploitation of the weak position of one person for another person’s own material gain had been stopped. This was not an error in law. The trial court had presumed that a “striking incongruity” exists when only two thirds of the union wage was being paid. The BGH took no objection to this threshold.

Decision in full text: