Participación en un grupo delictivo organizado

Delitos

• Participación en las actividades delictivas de un grupo delictivo organizado

Grado de participación

• Acto manifiesto para llevar adelante el acuerdo

Palabras clave

• Asociación para delinquir (asociación delictiva)

Trata de personas

Delitos

• Trata de personas (adultos)

Actos realizados

• Transporte
• Acogida

Medios utilizados

• Amenaza del uso de la fuerzo u otras formas de coercion
• Engaño
• Abuso de poder o de una situación de vulnerabilidad

Fines de explotación

• Explotación de la prostitución ajena u otras formas de explotación sexual
• Trabajos o servicios forzosos

Palabras clave

• Explotación
• Explotación sexual comercial
• Trabajos o servicios forzosos
• Grupo delictivo organizado

(513 Kls) 255 Js 637/18 (38/18)

Resumen de los hechos

Subject of the case were criminal proceedings brought against four individual offenders, a father (G.A) and three of his children (E.A, K.A, and S.A). The defendants were accused of having recruited and transported five homeless polish citizens across the German-Polish border to Berlin, where the victims were forced to steal from several convenience stores. The two female victims were additionally forced into prostitution under the pretense that their travel has caused a significant debt which needed to be repaid. Upon arrival in Germany, offenders confiscated the polish identity cards of the five polish citizens. The victims were then brought to an apartment belonging to a previously uninvolved German citizen (P). Over a period of two weeks, victims were forced to steal food, alcohol, cosmetics, electronics, and other valuables following the clear instruction of all four offenders. During the day, victims were not allowed to leave the apartment by themselves and at night the apartment was locked with a key by P. Victims were regularly beaten, threatened, and insulted, as well as forcibly detained in P.’s apartment, which three of the offenders and the five victims shared with P. On several occasions, E.A., S.A. and G.A. accompanied the two female victims to multiple bars for the purpose of soliciting sexual services. On one such occasion, the two women were brought to the home of a perspective user of sexual services, who, however, did not engage in any sexual activities with either of the victims. One of the female victims was further forced to perform sexual acts with both P (in exchange of the continued use of the apartment for the criminal activities of the group) as well as with one of the male victims (for the purpose of humiliating, degrading and controlling the two victims). Two of the defendants (E.A. and the underaged K.A.) recorded the rape with their phones while insulting the victims and while giving instructions. The trafficking ended when the four victims were arrested by the police after an attempt to steal goods from a supermarket.
The case is related to the criminal proceedings against P, the owner of the apartment who was not otherwise involved in the organized criminal activities. P’s trial was terminated before the pronouncement of this judgment, a fact that was considered by the court. (513 KLs) 255 Js 637/18 (38/18) Trb1 https://sherloc.unodc.org/cld/case-law-doc/traffickingpersonscrimetype/deu/2019/513_kls_255_js_63718_3818_trb_1.html?lng=en&tmpl=sherloc

Comentario y aspectos destacados

The case examines specific vulnerabilities of each victim and touches upon the principle of non-punishment for the committed offences. As it relates to the matter of forced prostitution, the court considered it sufficient that the female victims were brought to the house of a potential user of sexual services to constitute a completed criminal act. According to the court, there is no necessity to actually engage in sexual services to violate the forced prostitution provision.
Fecha de la Sentencia:
2019-06-25
Autor:
This case has not been shared by official sources.

Palabras clave

Trafficking in Persons Protocol:
Artículo 3, Protocolo contra la la trata de personas
Hechos:
Translado
Acogida
Medio:
Amenaza o al uso de la fuerza u otras formas de coacción
Engaño
Abuso de poder o de una situación de vulnerabilidad
Fines de explotación:
Explotación de la prostitución ajena u otras formas de explotación sexual
Trabajos o servicios forzados
Otro
Forma de la Trata:
Transnacional
Grupo delictivo organizado
Sector en el que la explotación se lleva a cabo:
Explotación sexual comercial
Otros sectores

Cuestiones transversales

Responsabilidad

Responsabilidad por

• Delito consumado

Base de responsabilidad

• Intención dolosa

Responsabilidad implica

• Delincuentes principales

Delincuente/Delito

Detalles

• Participa en el grupo delictivo organizado (Articulo 2(a) CTOC)
• Ocurrió a través de uno (o más) de las fronteras internacionales (transnacional)

Países interesados

Alemania

Polonia

Consideraciones relacionadas con el género

Detalles

• Consideraciones relacionadas con el género

Información sobre el procedimiento

Sistema jurídico:
Derecho continental
Última sentencia judicial:
Tribunal de primera instancia
Tipo de Proceso:
Penal
 

The court gave a detailed reasoning on the abuse of the offenders of the situation of vulnerability of each victim, such as alcohol dependency, homelessness, social exclusion, poverty, or the fact that neither of them spoke German or English. It further assessed that due to these circumstances, the victims were prone to exploitation and cannot be made responsible for the criminal acts they were forced to commit. Further, the Court assessed that victims could not be reproached for not taking actions against offenders or for remaining in an abusive situation. Due to the interplay of different vulnerabilities, victims lacked the intellectual capacity to successfully plan and execute an escape.  The Court concluded that all four offenders formed an organized criminal group and that their behavior constituted human trafficking for forced criminal activity and sexual exploitation. Next to several other criminal violations, S.A. was found guilty for harboring victims of trafficking while the other three dependents were also found guilty for transporting victims. One of the offenders (K.A.) was aged between 14 and 15 years old when violations took place. He was sentenced under the specific criminal provisions applicable to underaged offenders.

Please note that decisions of courts of the federal states are not directly binding nationwide.

 
 

Víctima / Demandantes de primera instancia

Víctima:
A.B.
Sexo:
Mujer
Nacionalidad:
polonés
Edad:
26
Nacimiento:
1993
Víctima:
Zi.R.
Sexo:
Hombre
Nacionalidad:
polonés
Edad:
36
Nacimiento:
1983
Víctima:
M.Z
Sexo:
Mujer
Nacionalidad:
polonés
Edad:
32
Nacimiento:
1987
Víctima:
W.B.
Sexo:
Hombre
Nacionalidad:
polonés
Edad:
40
Nacimiento:
1979
Víctima:
J.W.
Sexo:
Hombre
Nacionalidad:
polonés
Edad:
28
Nacimiento:
1991

Acusado / Demandado de primera instancia

Acusado:
G.A.
Sexo:
Hombre
Edad:
44
Nacimiento:
1975
Acusado:
E.A.
Sexo:
Hombre
Edad:
26
Nacimiento:
1993
Acusado:
K.A.
Sexo:
Hombre
Edad:
16
Nacimiento:
2003
Child. Defendant was underaged at the time of violations. His sentences was executing according to the youth criminal code.
Acusado:
S.A.
Sexo:
Mujer
Edad:
23
Nacimiento:
1996

Cargos/Acusaciones/Decisiones

Acusado:
G.A.
Veredicto:
Guilty
Ley:
German Criminal Code § 232 al. 1 No. 1 lit. a and d § 232a al. 1 No. 1 Alt. 1 § 233 al. 1 No. 3

Human Trafficking for forced labour and forced prostitution (transport and harbouring)

https://sherloc.unodc.org/cld/legislation/deu/german_criminal_code/special_part_-_chapter_eighteen_/section_232-233a/article_232-233.html?lng=en

Section 232
Human trafficking

(1) Whoever recruits, transports, transfers, harbours or receives another person by taking advantage of that person’s personal or financial predicament or helplessness on account of being in a foreign country, or that person is under 21 years of age, incurs a penalty of imprisonment for a term of between six months and five years if

1.   that person is to be exploited by way of

a)  engaging in prostitution or performing sexual acts on or in the presence of the offender or a third person, or having sexual acts performed on them by the offender or a third person,

d)  committing criminal offences, 

Section 232a
Forced prostitution

(1) Whoever, by taking advantage of another person’s personal or financial predicament or helplessness on account of being in a foreign country, causes that person or causes another person under 21 years of age

1.   to engage in or continue to engage in prostitution

Section 233
Exploitation of labour

(1) Whoever, by taking advantage of another person’s personal or financial predicament or helplessness on account of being in a foreign country, exploits that person or exploits a person under 21 years of age, by way of that person

3.  committing criminal offences,

Guilty
Acusación/Reclamación:

Human Trafficking for forced labour and forced prostitution (transport and harbouring)

Veredicto:
Guilty
Ley:
German Criminal Code § 244 al. 1 No. 2

Gang Theft

Armed theft; gang theft; theft by burglary of dwellings

(1) Whoever

2.  steals as a member of a gang whose purpose is the continued commission of robbery or theft with the participation of another member of the gang or

Guilty
Acusación/Reclamación:

Gang Theft

Pena de prisión:
4 años 6 Meses
 
Acusado:
E.A.
Veredicto:
Guilty
Ley:
German Criminal Code § 232 al. 1 No. 1 lit. a and d § 232a al. 1 No. 1 Alt. 1 § 233 al. 1 No. 3

Human Trafficking for forced labour and forced prostitution (transport and harbouring)

Section 232
Human trafficking
(1) Whoever recruits, transports, transfers, harbours or receives another person by taking advantage of that person’s personal or financial predicament or helplessness on account of being in a foreign country, or that person is under 21 years of age, incurs a penalty of imprisonment for a term of between six months and five years if
1.   that person is to be exploited by way of
a)  engaging in prostitution or performing sexual acts on or in the presence of the offender or a third person, or having sexual acts performed on them by the offender or a third person,
d)  committing criminal offences,
Section 232a
Forced prostitution
(1) Whoever, by taking advantage of another person’s personal or financial predicament or helplessness on account of being in a foreign country, causes that person or causes another person under 21 years of age
1.   to engage in or continue to engage in prostitution
Section 233
Exploitation of labour
(1) Whoever, by taking advantage of another person’s personal or financial predicament or helplessness on account of being in a foreign country, exploits that person or exploits a person under 21 years of age, by way of that person
3.  committing criminal offences,

 

Guilty
Acusación/Reclamación:

Human Trafficking for forced labour and forced prostitution (transport and harbouring)

Veredicto:
Guilty
Ley:
German Criminal Code § 244 al. 1 No. 2

Gang theft

Armed theft; gang theft; theft by burglary of dwellings

(1) Whoever

2.  steals as a member of a gang whose purpose is the continued commission of robbery or theft with the participation of another member of the gang or

Guilty
Acusación/Reclamación:

Gang theft

Veredicto:
Guilty
Ley:
German Criminal Code § 177 al. 6 sentence 2 No. 1

Sexual Assault; Sexual Coercion; Rape

Section 177
Sexual assault; sexual coercion; rape

(1) Whoever, against a person’s discernible will, performs sexual acts on that person or has that person perform sexual acts on them, or causes that person to perform or acquiesce to sexual acts being performed on or by a third person incurs a penalty of imprisonment for a term of between six months and five years.

(6) In especially serious cases, the penalty is imprisonment for a term of at least two years. An especially serious case typically occurs where

2.   the offence is committed jointly by more than one person.

Guilty
Acusación/Reclamación:

Sexual Assault; Sexual Coercion; Rape

Pena de prisión:
6 años
 
Acusado:
K.A.
Veredicto:
Guilty
Ley:
German Criminal Code § 232 al. 1 No. 1 lit. a and d § 232a al. 1 No. 1 Alt. 1 § 233 al. 1 No. 3 Human Trafficking for forced labour and forced prostitution (transport and harbouring)
Section 232
Human trafficking
(1) Whoever recruits, transports, transfers, harbours or receives another person by taking advantage of that person’s personal or financial predicament or helplessness on account of being in a foreign country, or that person is under 21 years of age, incurs a penalty of imprisonment for a term of between six months and five years if
1.   that person is to be exploited by way of
a)  engaging in prostitution or performing sexual acts on or in the presence of the offender or a third person, or having sexual acts performed on them by the offender or a third person,
d)  committing criminal offences,
 
Section 232a
Forced prostitution
(1) Whoever, by taking advantage of another person’s personal or financial predicament or helplessness on account of being in a foreign country, causes that person or causes another person under 21 years of age
1.   to engage in or continue to engage in prostitution
Section 233
Exploitation of labour
(1) Whoever, by taking advantage of another person’s personal or financial predicament or helplessness on account of being in a foreign country, exploits that person or exploits a person under 21 years of age, by way of that person
3.  committing criminal offences,

 

Guilty
Acusación/Reclamación:
Human Trafficking for forced labour and forced prostitution (transport and harbouring)
Veredicto:
Guilty
Ley:
German Criminal Code § 244 al. 1 No. 2

Gang Theft

Armed theft; gang theft; theft by burglary of dwellings

(1) Whoever

2.  steals as a member of a gang whose purpose is the continued commission of robbery or theft with the participation of another member of the gang or

 

Guilty
Acusación/Reclamación:

Gang Theft

Veredicto:
Guilty
Ley:
German Criminal Code § 177 al. 6 sentence 2 No. 1

Sexual Assault; Sexual Coercion; Rape

Section 177
Sexual assault; sexual coercion; rape

(1) Whoever, against a person’s discernible will, performs sexual acts on that person or has that person perform sexual acts on them, or causes that person to perform or acquiesce to sexual acts being performed on or by a third person incurs a penalty of imprisonment for a term of between six months and five years.

(6) In especially serious cases, the penalty is imprisonment for a term of at least two years. An especially serious case typically occurs where

2.   the offence is committed jointly by more than one person

Guilty
Acusación/Reclamación:

Sexual Assault; Sexual Coercion; Rape

Pena de prisión:
4 años 6 Meses
 
Youth Detention
Acusado:
S.A.
Veredicto:
Guilty
Ley:
German Criminal Code § 232 al. 1 No. 1 lit. a and d § 232a al. 1 No. 1 Alt. 1 § 233 al. 1 No. 3

Human Trafficking for forced labour and forced prostitution (harbouring)

Section 232
Human trafficking
(1) Whoever recruits, transports, transfers, harbours or receives another person by taking advantage of that person’s personal or financial predicament or helplessness on account of being in a foreign country, or that person is under 21 years of age, incurs a penalty of imprisonment for a term of between six months and five years if
1.   that person is to be exploited by way of
a)  engaging in prostitution or performing sexual acts on or in the presence of the offender or a third person, or having sexual acts performed on them by the offender or a third person,
d)  committing criminal offences,
 
Section 232a
Forced prostitution
(1) Whoever, by taking advantage of another person’s personal or financial predicament or helplessness on account of being in a foreign country, causes that person or causes another person under 21 years of age
1.   to engage in or continue to engage in prostitution
Section 233
Exploitation of labour
(1) Whoever, by taking advantage of another person’s personal or financial predicament or helplessness on account of being in a foreign country, exploits that person or exploits a person under 21 years of age, by way of that person
3.  committing criminal offences,

 

Guilty
Acusación/Reclamación:

Human Trafficking for forced labour and forced prostitution (harbouring)

Veredicto:
Guilty
Ley:
German Criminal Code § 244 al. 1 No. 2

Gang Theft

Armed theft; gang theft; theft by burglary of dwellings

(1) Whoever

2.  steals as a member of a gang whose purpose is the continued commission of robbery or theft with the participation of another member of the gang or

Guilty
Acusación/Reclamación:

Gang Theft

Pena de prisión:
1 año 9 Meses
 

Tribunal

Landgericht Berlin

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