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German Criminal Code

Criminal law and trafficking in human beings/exploitation

Criminal offences and the penalty incurred are mainly provided for by the German Criminal Code [Strafgesetzbuch]. This also applies to trafficking in human beings and exploitation.

The implementation of the EU Directive on Combating Trafficking in Human Beings and Protecting its Victims (2011/36/EU) led to a comprehensive rework of criminal legislation in the field of trafficking in human beings.

Before the revision, provisions regarding trafficking in human beings were set out in Section 232 (“Trafficking in human beings for the purpose of sexual exploitation”), Section 233 (“Trafficking in human beings for the purpose of labour exploitation”) and Section 233a (“Assisting in human trafficking”).

The revisions broadly fall into three categories:

1. There is now a specific offence covering trafficking in human beings (Section 232 of the German Criminal Code) which is largely based on the international interpretation of the offence, i.e. the act of transporting, accommodating and taking in individuals for the purpose of exploitation.

2. The second part of the new provisions defines as illegal the fact of influencing a person’s free will to prompt him or her to engage in exploitative activities such as exploitation through prostitution or labour exploitation. New headings have been chosen for these provisions, such as “forced prostitution” and “forced labour”. In cases of forced prostitution, “consumption”, as it is named in the explanatory memorandum, is defined as a punishable offence.

3. The third part completes the provisions by adding the offence of labour exploitation. In this case, no influence on the person’s free will is required as this provision focuses on exploitation as such.

Other forms of exploitation, such as forced begging, the exploitation of criminal activities and organ trafficking, have also been included. Additionally, various factors with an impact on sentencing, such as increasing the age of consent from 14 to 18, were added.

Overview of criminal provisions regarding trafficking in human beings and exploitation:

Section 232: Trafficking in human beings

Section 232 defines trafficking in human beings as follows:

(1) Whosoever recruits, transports, passes on, accommodates or takes in any another person by utilising this person’s personal or economic predicament or helplessness arising from being in a foreign country, or any other person under twenty-one years of age shall be liable to imprisonment from six months to five years

  1.  If this is done in order to exploit this person
    1. Through prostitution, sexual activities with or in the presence of the offender
      or a third person, or through this person having to tolerate to be subjected to sexual activities by the offender or a third person
    2. Through employment
    3. Through begging or
    4. Through this person having to commit punishable offences
  2.  If this is done in order to trap this person in slavery, servitude, debt bondage or similar situations corresponding or akin to these
  3.  If this is done in order to unlawfully remove an organ from this person. 

Exploitation using an activity pursuant to the 1st sentence no. 1 let. b has been committed if for reasons of ruthless pursuit of profit, the employment leads to work conditions which are strikingly different from the work conditions of employees engaging in the same or a similar form of employment (exploitative employment).

Constitutive elements of the offence:

Activity

Means used

Aim

 
  • Recruiting
  • Transporting
  • Passing on
  • Accommodating
  • Taking in
 
 
  • Exploiting a personal or economic predicament
  • Exploiting a person’s helplessness arising from being in a foreign country
 

Exploitation:

  • Through prostitution/sexual activities
  • Through employment
  • Through begging
  • Through the person having to commit punishable offences
  • Slavery, servitude, debt bondage or similar situations
  • Unlawful removal of organs
 

 

Section 232a: Forced prostitution

Section 232a (“Forced prostitution”) was created to replace the previous Section 232 (“Trafficking in human beings for the purpose of sexual exploitation”). Its content focuses on the act of influencing a person’s free will. The word chosen in this case was “to prompt”, which is indeed similar to the term used previously (“to cause to”). What is central here is therefore not primarily the exploitation in itself (which is provided for further down) but the act of exerting influence over a person in order to exploit him or her at a later stage.

The relevant section is worded as follows:

Whosoever prompts any other person by utilising this person’s personal or economic predicament or helplessness arising from being in a foreign country, or any person under twenty-one years of age to engage in any of the subsequent points shall be liable to imprisonment from six months to ten years

  1. Taking up, or carrying on engaging in, prostitution or
  2. Engaging in sexual activities through which this person is exploited with or in the presence of the offender or a third person, or tolerating to be subjected to sexual activities by the offender or a third person

Constitutive elements of the offence:

Activity

Means used

Aim

 
  • Unfairly influencing the free will of a person,
    e.g. by convincing, applying pressure, using authority
 
 
  • Exploiting a personal or economic predicament
  • Exploiting a person’s helplessness arising from being in a foreign country
 
 
  • Taking up, or continuing to engage in, prostitution
  • Engaging in or tolerating to be subjected to sexual activities through which the person is exploited
 

 

Section 232b: Forced labour

Section 232b (“Forced labour”) was created to replace the previous Section 233 (“Trafficking in human beings for the purpose of labour exploitation”). Its content focuses on the act of influencing a person’s free will. The word chosen in this case was “to prompt”, which is indeed similar to the term used previously (“to cause to”). What is central here is therefore not primarily the exploitation in itself (which is provided for further down) but the act of exerting influence over a person in order to exploit him or her at a later stage.

The relevant section is worded as follows:

Whosoever prompts any other person by utilising this person’s personal or economic predicament or helplessness arising from being in a foreign country, or prompts any person under twenty-one years of age to engage in any of the subsequent points shall be liable to imprisonment from six months to ten years

  1. Taking up, or carrying on engaging in, any exploitative employment (Section 232 para. 1 sentence 2),
  2. Entering into slavery, servitude, debt bondage or situations corresponding or akin to these or
  3. Taking up, or carrying on engaging in, begging through which the person is exploited

Constitutive elements of the offence:

Activity

Means used

Aim

Prompting a person to

• Take up an exploitative activity

• Slavery, servitude, debt bondage or situations corresponding or akin to these

• Begging

 
  • Exploiting a personal or economic predicament
  • Exploiting a person’s helplessness arising from being in a foreign country
 
 
  • Exploitative employment
  • Slavery
  • Begging  
 

 

Section 233: Labour exploitation

Whosoever exploits in any of the subsequent ways any other person by utilising this person’s personal or economic predicament or helplessness arising from being in a foreign country, or any other person under twenty-one years of age shall be liable to imprisonment up to three years or a fine

  1. Through employment pursuant to Section 232 para. 1 no. 2,
  2. Through begging or
  3. Through this person having to commit punishable offences

Constitutive elements of the offence:

Activity

Means used

Aim

Exploitation of a person through:

  • Exploitative employment
  • Begging
  • Having to commit punishable offences
 
 
  • Exploiting a personal or economic predicament
  • Exploiting a person’s helplessness arising from being in a foreign country
 
 
  • Labour exploitation  
 

Section 233a: Exploitation by the use of unlawful restraint

(1) Whosoever confines any other person or deprives any other person of freedom in any other way and exploits this person in this situation through any of the subsequent points shall be liable to imprisonment from six months to ten years

  1. Through prostitution
  2. Through employment pursuant to Section 232 para. 1 no. 2,
  3. Through begging or
  4. Through this person having to commit punishable offences

This section aims to cover particularly serious cases of exploitation in which the affected person is deprived of his or her freedom. In such cases, the perpetrator utilises the situation created through restraint to exploit the victim in various ways. Once again, this offence covers all forms of exploitation and specifically includes engaging in prostitution in point 1, as the legislator believes that the injustice of this behaviour focuses on the deprivation of freedom, which is not already covered by Sections 180a and 181a of the German Criminal Code.

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