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3 St Js 723/05

Germany
UNODC No.:
DEU005
Decision/Verdict Date:
2008-02-28
Sentence Date:
2008-02-28
Author:
UNODC
Court:
Amtsgericht Tiergarten [District Court Tiergarten]

Keywords

Form of Trafficking:
Transnational
Sector in which exploitation takes place:
Domestic servitude
Hotel/Restaurant/Bar
Purpose of Exploitation:
Forced labour or services
Trafficking in Persons Protocol:
Article 3, Trafficking in Persons Protocol
Acts:
Recruitment
Transfer
Harbouring
Receipt
Means:
Threat or use of force or other forms of coercion
Deception
Abuse of power or a position of vulnerability
Giving or receiving payments or benefits to achieve the consent of a person having control over another person

Procedural Information

Legal System:
Civil Law
Latest Court Ruling:
Court of 1st Instance
Type of Proceeding:
Criminal

Court: Amtsgericht (District court) Tiergarten

Location: Berlin/Germany                   Date of decision: 2008-02-28

Reference: http://www.institut-fuer-menschenrechte.de/uploads/pics/ag_berlin_tiergarten_20_02_2008.pdf

Victims / Plaintiffs in the first instance

Victim:
T.S.H.
Gender:
Female
Nationality:
Ethiopian

Defendants / Respondents in the first instance

Defendant:
M.Y.M.
Gender:
Male
Nationality:
Ethiopian

Fact Summary

The defendant was running an Ethiopian Restaurant with his wife. From June 27th 2004, they employed the victim as a cook. The victim, after being mediated through her brother in Addis Abeba, signed an employment contract with the restaurant. She agreed to work in the restaurant for a monthly wage of 200USD, the weekly working times not being specified. She was promised to receive shelter, food and medical care from the defendant.

The defendant and his wife made the victim work 85.5 hours a week and in addition 24 hours a week for domestic services. They threatened her that the authorities are racist and if she would seek help she would be deported and then tortured or killed. In addition they took her passport.

Because the victim had no command of the German language and the German system of law , she was therefore helpless.

She continued working in the restaurant until she fled on December 5th 2005.

The victim never got paid her promised wage except for one single payment of 100EUR. The family of the victim received payments of 400EUR through the victim’s brother.

If the victim would have received the minimum wage of 10.41EUR for her work as cook and 7.00EUR for keeping the household, she would be able to claim a monthly gross wage of 4.432EUR which for the total time the victim worked at the restaurant would have amounted to 72.000EUR.

Charges / Claims / Decisions

Defendant:
M.Y.M.
Verdict:
Guilty
Charge / Claim:
Trafficking for the Purpose of Forced Labour
Legislation / Statute / Code:

§233 StGB(German Criminal Code)

(1) Whosoever exploits another person’s predicament or helplessness arising from being in a foreign country to subject them to slavery, servitude or bonded labour, or makes him work for him or a third person under working conditions that are in clear discrepancy to those of other workers performing the same or a similar activity, shall be liable to imprisonment from six months to ten years. Whosoever subjects a person under twenty-one years of age to slavery, servitude or bonded labour or makes him work as mentioned in the 1st sentence above shall incur the same penalty.

Verdict:
Guilty
Charge / Claim:
Usury
Legislation / Statute / Code:

§291 StGB (German Criminal code)

(1) Whosoever exploits the predicament, lack of experience, lack of judgment or substantial weakness of will of another by allowing material benefits to be promised or granted to himself or a third person

1.for the rent of living space or additional services connected therewith;

2.for the granting of credit;

3.for any other service; or

4.for the procurement of one of the previously indicated services,

which are in striking disproportion to the value of the service or its procurement, shall be liable to imprisonment of not more than three years or a fine. If more than one person contribute as providers of benefits, procurers or in other ways, and if the result is thereby a striking disproportion between the sum of the material benefits and the value of the services the 1st sentence above shall apply to each of the persons who exploits the predicament or other weakness of the other for himself or a third person in order to obtain excessive material benefits.

Verdict:
Guilty
Charge / Claim:
Fraud
Legislation / Statute / Code:

§263 StGB(German Criminal Code)

(1) Whosoever with the intent of obtaining for himself or a third person an unlawful material benefit damages the property of another by causing or maintaining an error by pretending false facts or by distorting or suppressing true facts shall be liable to imprisonment of not more than five years or a fine.

Term of Imprisonment:
 6 Months
Fine / Payment to State:
Yes      Court Fees 
Legal Reasoning:

The court convicted the defendant of Trafficking for the Purpose of Forced Labour for the time since the provision entered into force on February 19th. It found that the defendant exploited the victim’s helplessness arising from being in a foreign country to make the victim work under working conditions that are in clear discrepancy to those of other workers performing the same or a similar activity as she did paid only 100EUR instead of the 72.000EUR that she should have earned with minimum wage.

Furthermore, the defendant got convicted of Usury and Fraud concerning the unpaid wages.

Sources / Citations

http://www.institut-fuer-menschenrechte.de/uploads/pics/ag_berlin_tiergarten_20_02_2008.pdf

Attachments