Legal Framework in Gemany

Regarding the legal framework on trafficking and exploitation in Germany there have been extensive changes resulting from the implementation of the EU-Directive against trafficking (2011/36/EU) in October 2016.

There have also been changes in the residence law, asylum seekers laws and social security codes regarding the situation if trafficked persons which could not yet be included in our english website.

We work on a translation of the corresponding german contents our our website and will update this section soon.

Provisions defining criminal offences

Trafficking in human beings and exploitation are defined as criminal offences by Chapter 18 (“Offences against Personal Freedom”) of the German Criminal Code [Strafgesetzbuch].

The following statutory offences were created to protect the personal freedom of human beings:

  • Section 232 of the German Criminal Code: Trafficking in Human Beings
  • Section 232a of the German Criminal Code: Forced Prostitution
  • Section 232b of the German Criminal Code: Forced Labour
  • Section 233 of the German Criminal Code: Labour Exploitation
  • Section 233a of the German Criminal Code: Exploitation through the Use of Unlawful Restraint

The underlying principles of Section 291 para. 1 no. 3 of the German Criminal Code (“Usury”) and Section 266a of the German Criminal Code (“Non-payment and Misuse of Wages and Salaries”) must also be mentioned.

In addition to these provisions, some aspects of the legislation on sex offences might also be relevant, such as Section 179 of the German Criminal Code (“Abuse of Persons who are Incapable of Resistance”), Section 180a of the German Criminal Code (“Exploitation of Prostitutes”) or Section 181 a (“Controlling Prostitution”, i.e. procuring).

Provisions relating to right of residence

Trafficking in human beings often affects migrants (both male and female). In Germany, the applicable piece of legislation for entry into the territory, as well as temporary and permanent residence, is the Residence Act [Aufenthaltsgesetz]. Trafficked persons without a residence permit are required to leave the country or may be deported. Fear of having to leave or of being deported often explains why trafficked persons are unwilling to turn to the authorities or to sue their employers.

The three-month reflection and stabilisation period provided for by Section 59 para. 7 of the Residence Act and the temporary residence permit provided for in Section 25 para. 4a is a potential protection mechanism granted to victims of trafficking in human beings.

In the case of EU citizens, however, the Freedom of Movement for EU Citizens Act takes precedence over the Residence Act. In this case, the residence issue is negligible.

You will find more detailed information regarding these pieces of legislation and their implications for trafficked persons in the section on the Residence Act.

Provisions regarding entitlement to benefits

Under certain conditions, individuals who are unable to earn a living can claim for benefits pursuant to the Asylum-Seekers Benefits Act [Asylbewerberleistungsgesetz] or the German Social Code, Parts II or XII [Sozialgesetzbuch II/XII].

You will find more detailed information regarding these pieces of legislation in the sections on the Asylum-Seekers Benefits Act and the German Social Code, Part II and XII.

Provisions regarding criminal proceedings

The German Penal Procedure Code [Strafprozessordnung] includes important provisions which can be enforced by victims testifying during criminal proceedings. Trafficking in human beings is an offence that allows a “private accessory prosecutor“ (Nebenkläger-status in German).

In addition, there are various proceedings through which unpaid wages and compensation for damages can be claimed from perpetrators, which is known as a consolidated civil and criminal/penal procedure [Adhäsionsverfahren] as provided for by Sections 403 et seqq. of the German Penal Procedure Code. This type of procedure allows criminal courts to render judgments regarding damages for injury and compensation claimed by the plaintiff. In theory, these claims would have to be enforced through another procedure, but consolidation has the effect that the proceedings and therefore the decisions can take place within one and the same procedure.

You will find more detailed information regarding these pieces of legislation in the Section on the German Penal Procedure Code.

Provisions regarding civil claims

Trafficked persons have a right to a decent wage even without a written work contract, as set out in Section 612 of the German Civil Code [Bürgerliches Gesetzbuch]. According to Section 823 of the German Civil Code, any other damages must be compensated. However, asserting these rights is difficult. It is often challenging for trafficked persons to prove the existence of an employment relationship. In addition, many victims are discouraged from enforcing their claims by the unclear residence situation. However, it is important to know that labour claims can be enforced even if the person involved does not hold a residence permit.

The Directive providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals (2009/52/EC) came into force on 18 June 2009 (referred to here as “the Directive”).

A new provision was added to the Residence Act: Section 25 para. 4b, which provides for a temporary residence permit for foreign nationals affected by specific criminal offences.

Provisions regarding the protection and compensation of victims

The Act Reforming the Protection of Victims’ Rights [Opferrechtsreformgesetz] and the Crime Victims Compensation Act [Opferentschädigungsgesetz] are two examples of such provisions. You will find more detailed information regarding these pieces of legislation in the sections on the Act Reforming the Protection of Victims’ Rights and the Crime Victims Compensation Act.

 

Last changed: October 2021
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