Higher Regional Court (OLG) - Hamm, Decision as of 5/11/2010
File number 2 Ws 86/10

Key issues

Criminal proceedings regarding human trafficking for the purposes of sexual exploitation; element of “inducement”; the mere renting of a room to a 21 year old for the purposes of prostitution (Glossary: prostitution) does not suffice; discussion of the decisions of the criminal division of the highest appellate court and the German Prostitution Act (ProstG).

Summary

In this guiding decision, the court held that the elements of the offence of human trafficking are not satisfied merely by renting a room to a person under 21 years of age for prostitution usage. Rather, an "inducement" within the meaning of section 232 of the German Criminal Code (StGB) requires that the decision to begin or to resume working as a prostitute be attributable to the influence exercised by the perpetrator, i.e. the decision must be elicited by the perpetrator. Citing the decisions of the criminal division of the highest appellate court and the Prostitution Act (ProstG), the court held that the same applies in the case of those persons who especially merit protection, i.e. those under 21 years of age.

The public prosecutor laid charges against two men who had rented rooms in 2009 in their brothel to three female foreign nationals, who were under 21 years of age, for prostitution purposes. The women had already worked as prostitutes and had moved to the accused’s brothel because there was a chance they could earn more there, without having been recruited or approached in any way by the accused. The public prosecutor was of the opinion that, solely on the basis of age, the renting of the rooms to persons under 21 years of age for prostitution usage constituted human trafficking.

The court, however, refused to open the main proceedings because in its view the elements of the offence of human trafficking had not been satisfied. It held that an “inducement” within the meaning of section 232 (1) sent. 2 StGB must be interpreted narrowly. Not every offer to work as a prostitute, such as the commercial renting of a room, will amount to an inducement. Even in the case of a person under 21 years of age, the offer to rent a room to him/her will not be regarded as a criminal offence if the person had already decided on their own free will to work as a prostitute. The court cited the decisions of the criminal division of the highest appellate court, whose inquiries also examine whether the person had decided to work as a prostitute even without the influence of the perpetrator. It is only if the taking up of the work as a prostitute or the resuming to work as a prostitute is attributable to the acts of the perpetrator will an “inducement” be found.
The court found support for this interpretation in the Prostitution Act. The legislator, with a reference to the autonomy of prostitutes, abolished the criminal offence of promoting prostitution. The operating of a brothel is only a criminal offence if rooms are rented to persons under 18 years of age. The 21-year-old age limit is found neither in the ProstG nor is it an element of the offence of exercising control over a prostitute. Although persons between the ages of 18 and 21 are especially in need of protection, this only applies with respect to an encroachment on their right of sexual self-determination.

The appellate court agreed with the interpretation of the trial court and denied the public prosecutor’s appeal. The court confirmed that an “inducement”, and thus human trafficking, will only be found when a decision - that had not already existed up to that point - to begin or to resume an exploitative job was elicited by the perpetrator. On this point, it cites a decision of the criminal division of the highest appellate court from January 2010 in a case involving human trafficking for the purposes of labour exploitation.

It is inconsistent with the intention of the Prostitution Act to penalize, as human trafficking, the mere renting of a room for the purposes of prostitution to persons who are of legal age albeit not yet 21 years old. The accused were therefore not convicted.

Decision in full text:

OLG_Hamm_11_05_2010 (PDF, 122 KB, not barrier-free, in German)

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