Two Polish men – Ł.S. and D.W. – who both had criminal pasts were sentenced for trafficking in women. The victims were two Polish women, one of them 16 years old. The older woman was contacted by D.W., who knew her before. She consented to travel from Poland to Germany with Ł.S. to work there as a prostitute. The juvenile victim was in conflict with her parents and wished to go abroad to work as a cleaner or a waitress; she was an acquaintance of Ł.S.’s partner. She was taken by Ł.S. and his partner (who was a prostitute in Germany), and crossed the border between Poland and Germany under a fake name. In Germany, the young victim fully depended on Ł.S. and his partner, and was probably sexually abused. After some time, she was transported to a brothel in Hamburg.
The District Court established that, in 2000, Ł.S., who lived in Hamburg (Germany), visited his cousins in Poland, D.W. being one of them. He informed them that he knew people in a German escort agency who were interested in engaging women from Poland. D.W. contacted Anonymous 1, who wanted to work in that character. While travelling to Germany with Ł.S., Anonymous 1 was informed how much she would receive and that she would be sharing the money with the owner of the brothel and Ł.S. After some time, D.W. called Anonymous 1 in Germany, learned that she had serious nosebleeds and told her that someone from Poland would come get her, although she had to be prepared to give that person 30% of the money she had received from prostitution. Before that happened, Anonymous 1 was detained by German police and sent to Poland, without permission to re-enter Germany. Ł.S. visited Anonymous 1 in Poland to find out whether she told the German police about Ł.S. and his cousins.
Ł.S. explained to the court, inter alia, that he had expected to receive some benefit for putting his cousins in touch with those people in Germany, but he never received such benefits from Anonymous 1 or his cousins.
The District Court further established that Ł.S. and his live-in partner came to Poland in 2001. Ł.S.’s partner met Anonymous 2, who was 16 at the time. Anonymous 2 had a difficult relationship with her parents. Ł.S.’s partner offered to help her find a job as a cleaner or a waitress in Germany. Ł.S. found and used a false passport to let Anonymous 2 cross the border between Germany and Poland. While Anonymous 2 was staying in an apartment owned by Ł.S.’s acquaintances, Ł.S. took some photos of her which he intended to publish on the Internet, offering a “girl for sale.” At some point, Ł.S. told Anonymous 2 that she would work as a prostitute at the same place where Ł.S.’s partner worked. Ł.S. abused Anonymous 2 sexually, saying that since she was going to work as a prostitute she was no longer innocent. She received lingerie and was transported to a brothel. Initially, she did not receive money, which changed after some time. Anonymous 2 had to share the money with Ł.S. and the brothel’s owner. Anonymous 2 escaped from the agency before the arrival of the police, stayed in Germany for some time (making a living also from prostitution). Anonymous 2 returned to Poland in 2002.
Anonymous 2 testified that at some point she refused to continue working as a prostitute, but she was threatened by Ł.S. with a gun. Ł.S. made Anonymous 2 call her mother several times to tell her that she was fine.
The court also established that D.W. persuaded Anonymous 1 to go to Germany for prostitution with direct intent. It was found that the role of D.W. was to hand over to Ł.S. a woman who wished to travel to Hamburg and become a prostitute. The District Court also found that after persuading Anonymous 1, D.W. engaged in trafficking in persons acting together with other individuals. It was logical to assume that D.W. expected to obtain a profit for that service (for himself or for someone else). This assumption was confirmed by the witness testimony of Anonymous 1 concerning her telephone call with D.W. when he announced that someone would come get her and take her to Poland in return for 30% of her money from prostitution. D.W. did not transport Anonymous 1 to Germany because, as he explained, he did not have a passport. Even so, he facilitated Anonymous 1’s engaging in prostitution by putting her in contact with Ł.S.
Before the District Court sentenced Ł.S. for trafficking in women, he was deprived of liberty (probably temporarily arrested).
GermanyPoland
1st Instance:
On September 23, 2005, the District Court in Słupsk (Poland) sentenced Ł.S. and D.W. for trafficking in persons. Two female victims were transported from Poland to Germany to engage in prostitution. One of the victims consented to work as a prostitute; the other victim was underage and unaware of the real purpose of the travel to Germany. Apart from the Polish Penal Code, the court also applied the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others of 1950. The judgment was appealed by both defendants.
2nd Instance:
Following an appeal lodged by Ł.S. and D.W., on December 21, 2005, the Appellate Court in Gdańsk (Poland) upheld the judgment of the District Court, finding the appeal obviously without merit.
The District Court gave a detailed account of how the witness testimony was analyzed in order to establish the facts of the case. The District Court found that Ł.S.’s actions were aimed at obtaining an economic benefit and that he intended to transport both victims to Germany for prostitution. In analyzing the term “economic benefit”, the court referred to the ruling of the Supreme Court dated January 30, 1980 (Case No. VII KZP 41/78, published in OSNKW 1980/3/24). The term “aimed at obtaining an economic benefit” was analyzed in light of the judgment of the Supreme Court dated February 10, 1973 (Case No. I KR 271/72, published in OSNPG 1974/1/11). The District Court pointed out that the defendant was aware that Anonymous 2 was underage and that his actions undoubtedly constituted luring, as Anonymous 2 was promised a job not involving prostitution.
The District Court regarded the crime committed by Ł.S. as trafficking in persons under Art. 253 § 1 of the Polish Penal Code. That provision was enacted in order to fulfil Poland’s international obligations resulting from the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others of 1950. The scope of that Convention was limited to trafficking in persons for the exploitation of prostitution. The District Court held that the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime did not apply to the case at hand. The scope of that act was limited to practices where the offense is transnational in nature and involves an organized criminal group (Art. 5 of the Protocol). The District Court pointed out that the crimes were committed before Poland ratified the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (the ratifying act has been in force since February 16, 2003) and that the crimes did not involve an organized criminal group. The District Court also determined that the United Nations Convention against Transnational Organized Crime did not prevent Poland from applying stricter measures with respect to transnational organized crime; therefore, that act and Art. 253 of the Polish Penal Code do not conflict with each other.
The District Court concluded that, for the above reasons, every action involving the recruitment, transportation, transfer, harbouring or receipt of persons for the purpose of exploitation is equal to trafficking in persons, even if it involves none of the methods listed under letter (a) [of Art. 3 of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime]. The District Court added that there is no contradiction between Art. 253 of the Polish Penal Code and the United Nations Convention against Transnational Organized Crime.
See the legal reasoning applied by the District Court with respect to Ł.S.
Art. 253, Art. 204 § 2 in connection with Art. 11 § 2 and 3 of the Polish Penal Code. Charged with trafficking in women in Poland and Germany in 2000 by transporting Anonymous 1 to a brothel in Hamburg for prostitution, obtaining and drawing economic benefits from these practices.
Art. 253, Art. 204 § 2, 3 and 4 in connection with Art. 11 § 2 and 3 of the Polish Penal Code. Charged with trafficking in women together with other persons in Poland and Germany in 2001 by luring [juvenile] Anonymous 2 to Germany for prostitution under the guise of finding her a job as a cleaner, obtaining and drawing economic benefits from these practices.
Art. 270 § 1, Art. 275 § 1 and Art. 272 in connection with Art. 11 § 2 of the Polish Penal Code
2nd instance:
The Appellate Court in Gdańsk (Poland) upheld the judgment of the District Court, finding the appeal lodged by Ł.S. obviously without merit.
The Appellate Court confirmed, among others, that Art. 253 § 1 of the Polish Penal Code should be interpreted in accordance with Art. 3 of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime from February 16, 2003, when the ratifying act came into force. The Appellate Court agreed with the court of first instance and stated that a single transaction could also be regarded as trafficking in persons since trafficking in persons was not limited to “transactions” within the meaning of the civil law. It added that Art. 253 § 1 of the Polish Penal Code also penalizes crimes committed with the victim’s consent, regardless of their purpose (including for the exploitation of the prostitution of others).
Cassation appeal:
The cassation appeal filed by Ł.S. was dismissed by the Supreme Court as obviously without merit. The appellant claimed that the courts should have applied the definition of “trafficking in women” contained in the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime. The appellant explained that the provisions of the Protocol should be applied, even though that act was not in force in Poland at the time of the crime, as the Protocol would be more lenient with regard to the defendant. None of the methods listed in Art. 3(a) of the Protocol were used on the victims. The Supreme Court confirmed the accuracy of the legal reasoning of the lower courts and the application of Art. 253 § 1 of the Polish Penal Code and the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others.
Art. 253, Art. 204 § 2 in connection with Art. 11 § 2 and 3 of the Polish Penal Code
2nd instance:
The Appellate Court in Gdańsk (Poland) upheld the judgment of the District Court, finding the appeal lodged by D.W. obviously without merit.
The Appellate Court confirmed, among others, that Art. 253 § 1 of the Polish Penal Code should be interpreted in accordance with Art. 3 of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime from February 16, 2003, when the ratifying act came into force. The Appellate Court agreed with the court of first instance and stated that a single transaction could also be regarded as trafficking in persons since trafficking in persons was not limited to “transactions” within the meaning of the civil law. It added that Art. 253 § 1 of the Polish Penal Code also penalizes crimes committed with the victim’s consent, regardless of their purpose (including for the exploitation of the prostitution of others).
The Supreme Court (Sąd Najwyższy)
http://www.lexpolonica.pl/ (LexPolonica No. 2100788); judgment of the Appellate Court in Gdańsk (Poland) dated December 21, 2005, Case No. II AKa 325/05 (unpublished); judgment of the District Court in Słupsk (Poland) dated September 23, 2005, Case No. II K 16/05 (unpublished)
The definition of “trafficking in persons” provided in the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime was included in the Polish Penal Code by the act of May 20, 2010, in force from September 8, 2010 (Art. 115 § 22 of the Polish Penal Code). The crime of “trafficking in persons” is penalized by Art. 189a of the Polish Penal Code.
Until September 8, 2010, Art. 253 § 1 of Polish Penal Code criminalized the conduct of “trafficking in persons,” although until 2010 it did not provide a legal definition of the term. The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime was ratified by Poland in 2003. The ratifying act entered into force on February 18, 2003, but the legislation was not published in Poland until January 31, 2005; the courts usually recognize it as a part of Polish domestic law from February 18 (or 16), 2003.
Before February 18, 2003, courts usually relied on other binding international instruments concerning that issue to establish the meaning of the term “trafficking in persons” (the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others of 1950; the International Convention for the Suppression of the White Slave Traffic from of; Article 3 of UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children).