Trafficked persons often sustain physical injuries from violent treatment by perpetrators, lack of healthcare or malnutrition, as well as psychological damage, such as trauma. Many victims of human trafficking and labour exploitation have some or often all of the wages for their work withheld (whether in the sex industry or in other fields). Meanwhile, perpetrators derive vast profits from the activities trafficked persons perform for them.
“Compensation” refers to financial redress for any damages ensuing from incurred or suffered loss. Financial redress may take the form of an indemnity (Schadensersatz), of damages for pain and injury (Schmerzensgeld) or compensation for unpaid wages. As trafficked persons suffer great harm, be it material or immaterial, it is important to provide them with adequate legal remedies so that they can effectively enforce their claim not just to wages, but also to appropriate compensation. Although Germany does provide a legal basis for compensation and the payment of unpaid wages, a whole series of reasons may prevent trafficked persons from enforcing their rights in practice. These are addressed in the feasibility study "Human Trafficking in Germany. Strengthening Victim's Human Rights", from the German Institute for Human Rights (Deutsches Institut für Menschenrechte, DIMR) and the EVZ Foundation, written by Dr. Petra Follmar-Otto and Heike Rabe, published in September 2009. The study also came to the conclusion that despite the existing legal framework, only a few trafficked persons actually managed to enforce their rights.
To improve the situation of trafficked persons, the German Institute for Human Rights is carrying out the project, “Forced labour today – Empowering trafficked persons” in collaboration with the EVZ Foundation. In place since June 2009, it is planned for an initial period of three years. The project aims to empower trafficked persons, to encourage them to assert their rights independently and to support them (also financially) while they enforce their claims.
At an European level, the project, “COMP.ACT (European Action for Compensation for Trafficked Persons)”, which was coordinated by La Strada International and Anti-Slavery International in collaboration with 14 other project partners, fought to ensure that trafficked persons can assert their right to receive compensation and remuneration for their work. The project began in January 2010 and was successfully concluded in December 2012. All project partners conducted research on the legal framework in their own countries guaranteeing trafficked persons can claim compensation and unpaid wages, as well as on factors that may prevent them from doing so. The results of the research can be found in the final report Findings and Results of the European Action for Compensation for Trafficked Persons. The members of the project also compiled the Research template for collecting and analysing data on the access of trafficked persons to compensation, as well as the Guidance on representing trafficked persons in compensation claims, as useful resources for lawyers, specialist counseling centers, and various service providers.
At an international level, lobbying was carried out to bestow more meaning upon the theme of compensation. An example of this effort is a PR video.
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The KOK and the German Institute for Human Rights have created a poster compiling action guidelines on compensation in collaboration with the European project COMP.ACT. The KOK’s share was financed by restricted funding from a private donor group, while the DIMR’s was funded by the EVZ Foundation as part of the project “Forced labour today” and by the European Commission as part of the programme “Prevention of and Fight against Crime”. The poster presents an overview of the rights of trafficked persons, victims of violence and labour exploitation. The poster can be downloaded as a PDF or a paper copy can be ordered free at info(at)kok-buero.de. It is also available for download in English and Russian.
KOK has, in the framework of COMP.ACT, developed a leaflet on compensation. It gives an overview on the existing possibilities for trafficked persons to receive compensation in Germany. The leaflet can be used by KOK's member organisations to inform trafficked persons about their rights. It is available as a PDF and can be downloaded in German, English, French, Bulgarian, Romanian, Polish and Hungarian.
Consolidated civil and criminal procedure (Adhäsionsverfahren)
As trafficking in human beings is a criminal offense, trafficked persons have the option of enforcing their claims for wages and for damages before a criminal court as part of a criminal proceeding. In a consolidated civil and criminal proceeding (Adhäsionsverfahren, as stated in §§ 403 et seqq. of the German Code of Criminal Procedure/Strafprozessordnung, StPO), a criminal court can, on request of the claimant, rule on compensation claims for immaterial and material damage. This process requires that a criminal proceeding has been started, charges have been brought and the perpetrator has been convicted. The advantage of this procedure is that the civil claims of the trafficked persons can be examined during the criminal proceedings and that evidence is presented, e.g. to show that the person has suffered physical harm.
Wage entitlement in accordance with labour law
Wage claims can be made in compliance with § 611 of the German Civil Code (Bürgerliches Gesetzbuch, BGB), as long as a work contract was concluded, either orally or in writing. The person’s residency and employment status is irrelevant. People without a residence or work permit are also entitled to use German labour courts. However, it should be noted that the immigration or tax authorities may be notified, in compliance with the reporting duties laid down in § 87 of the German Residence Act (Aufenthaltsgesetz, AufenthG), of a missing residence status of the plaintiff. This can be problematic, particularly if the plaintiff does not hold a valid residence permit. In this case, the trafficked person runs the risk of being deported or may have to fear other consequences for her/his residency status.
German labour courts have jurisdiction if either the company headquarters, the place of employment or the place where the job is to be carried out is in Germany.
In the case of civil proceedings, the plaintiff, in this case the employee, is responsible for substantiating the claim. In the case of legal action before a labour court, prima facie evidence is sufficient, i.e. if the trafficked person states her/his claims convincingly, it is for the employer to prove that there was no such employment contract.
The wages to be claimed depend on the salary paid to employees in similar positions, according to collective agreements in the sector for example. For jobs requiring no special qualifications, it can be very difficult to establish wage entitlement, as it depends e.g. on working hours and conditions.
Claims under labour law resulting from a breach of the employment contract by the employer
If, in a case of breach of an employment contract on the part of the employer, any further damage has ensued, the employee may claim financial compensation in accordance with §§ 280, 249 et seqq. of the German Civil Code. Compensation may be paid to compensate unpaid wages or lost leave days, or it may take the form of an injury pension or cover the costs of therapy or treatment. In accordance with § 2 para. 1 Labour Court Act (Arbeitsgerichtsgesetz. ArbGG), these rights can also be asserted before a labour court.
Civil claims can be made, as stated in § 823 I of the German Civil Code (BGB). In accordance with § 823 I BGB, any person who, intentionally or negligently, unlawfully injures the life, body, health, freedom, property or another right of another person is liable to compensate the other party for the damage arising from this. As the objects stated enjoy special protection, no employment contract is required for the enforcement of § 823 I BGB.
Moreover, redress can also be claimed, as specified in § 823 II BGB. § 823 II BGB compels any person guilty of having violated a law protecting other persons to make compensation.
In accordance with § 253 II BGB, financial compensation may be claimed for any injury to body, health, freedom or sexual self-determination.
The Federal Social Court of Germany (Bundessozialgericht, file number: 9 RVg 2/78) has ruled that the state has a duty towards all its citizens to protect them from any acts of violence or criminality. If the state fails to do so, it is compelled to pay compensation to victims. This type of compensation is laid down in the German Crime Victims Compensation Act (OEG) (link in German).