Trafficked and Abused. A Survey of the Possibilities of Legal Protection of Trafficked Persons in Germany

Term Paper, 2016
12 Pages, Grade: 1,7



1. Introduction

2. Outlining Human Trafficking

3. Securitization vs. Human Rights Approach

4. Policies
4.1 'Palermo Protocol'
4.2 'Council of Europe Convention on Action against Trafficking in Human Beings'
4.3 German Legislation
4.4 Critics and Shortcomings

5. Grounds to Claim Asylum

6. Conclusion

7. Bibliography

1. Introduction

“Working as a prostitute on the street is very dangerous. If you don't make enough money, you're not allowed to go home. My madam hit me, and even threatened my family. After I already paid off 80 000 euros, she just wanted more. But I just couldn't do it anymore, I had hit rock bottom. So I decided to turn to [...] authorities and to give a testimony against my trader. I've learnt german, visited courses, tried to integrate myself [...], nevertheless, I was deported.” (NGO EXIT 2015: 1)

A hardly estimable number of persons experience the same fate as the above mentioned women (UNODC 2014: 30). They are forced to work in the underground economy or are sexually exploited. They lead invisible lives, are moved across borders, exposed to physical and psychological violence, threatened by their exploiters and fear the police because of the possibility of expulsion (Raffaeli 2009: 205).

Even though there exist a number of conventions and protocols by international organisations all aspiring to fight 'trafficking in human beings' the plight of its victims still appears to be insufficiently tackled. Germany as a member of the United Nations and European Union ratified the major conventions and protocols and is therefore obliged to integrate them into its legal framework.

Therefore I would like to investigate how the German legislation contributes to or neglects the protection and rights of trafficked persons.

In order to adequately survey this question I will define 'trafficking in human beings' and distinguish it from migrant smuggling. Furthermore I will criticize the theoretical approach of securitization of trafficking in human beings and illustrate the legitimacy of the human rights approach. In the fourth chapter I will describe the most important international legal conventions on which the German legislation is based to subsequently mark its shortcomings and critics in regard to the rights and protection of trafficked persons. Lastly I will outline the possibilities of trafficked persons to claim for asylum.

I will base my research mainly on the study of legislative texts, academic articles and publications of international and German governmental organisations.

2. Outlining Human Trafficking

The United Nations provides a comprehensive definition of 'trafficking in human beings' as: “the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of aperson having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of theprostitution ofothers or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal oforgans“ (UN 2000: Article 3a)

The constituting aspects of trafficking in human beings are therefore the act which in different ways move persons within or across borders, the means of some form of coercion or deception and the purpose of ultimately exploiting persons for the profit of another. In these aspects trafficking in human beings differs from smuggling of human beings (Baird 2013: 7) since smuggled persons are only defined as such if their act is to move across borders, if they voluntarily seek to move and if the purpose is not exploitation but simply facilitation of movement (Adams/Iselin 2003: 4-5). In practice the two phenomena often overlap, especially in the case that a trafficked person initially consented into the crossing of borders but not in the exploitation that occurs afterwards. Similarly smuggled persons may encounter exploitation and abuse while being smuggled (Lobasz 2009: 329).

Earlier estimates of the United Nations considered 2.5 million victims of trafficking in human beings (Christensen 2011: 1). But it is characteristic that the United Nations currently releases no official estimates since the formerly published numbers may only be the 'tip of the iceberg' (UNODC 2014: 30). This is due to the clandestine nature of trafficking in human beings, the reluctance of the victims to report and the still prevalent conceptual confusion on trafficking in human beings (Lobasz 2009: 324). Of the detected trafficked persons in the 'Global Report on Trafficking in Persons 2014' 70% were female, 36% were trafficked over national borders, and 53% were trafficked for sexual exploitation (UNODC 2014: 5-9). Concerning Western and Central Europe the numbers slightly vary with 78% of female victims, 49% not being local nationals (mainly from the Balkans and West Africa) and 65% being trafficked for sexual exploitation (UNODC 2014: 60-62).

Traffickers derive immense profit from the exploitation of their victims with a low risk of prosecution. They use multiple methods to force their victims into exploitation and to prevent them from escaping. They deceive the victims with promised jobs or threats of punishment by the law. Furthermore they use violence or threats of violence against the victim or its family, hold the victim in debt bondage and/or use religious or cultural beliefs to prevent them from escaping (Christensen 2011: 1-2).

Victims of human trafficking are often not identified as such and until the 1980s were often rather treated as criminals who committed violations of immigration status, unauthorized employment and prostitution than as victims of a crime and humans rights violations (Haynes 2004: 238).

3. Securitization vs. Human Rights Approach

To theoretically approach trafficking in human beings, securitization has traditionally been the dominant frame of perception. It evolves around the sovereign state and its survival picturing traffickers and trafficked persons as security threat and demands enhanced border security, migration controls, immediate deportations and stronger international law enforcement (Lobasz 2009: 321). Therefore the driving force of states to combat trafficking in human beings is not to protect trafficked persons and their rights but rather the elimination of internal security threats such as transnational organized crime and the movement of trafficked persons being perceived and criminalized as undocumented migrants (Lobasz 2009: 326-328). This approach appears to be inadequate since researches claim that restrictive border and migration policies increase the vulnerability of potential migrants to traffickers due to the limitation of legal options to migrate and the deportation of trafficked persons is likely to increase the occurence of re-trafficking (Lobasz 2009: 322).

To adequately approach trafficking in human beings it is essential to internalize a concept of security that evolves around the individual which is situated in a broader social context (Tickner 2001: 48) focusing on the trafficked persons and their protection needs. It is legally and ethically accurate to perceive trafficking in human beings not only as a crime but also as a violation of human rights of trafficked persons. According to the 'United Nations Universal Declaration of Human Rights' (1948) individuals have a right to liberty (Article 3), freedom from slavery (Article 4), freedom from torture, cruel or degrading treatment (Article 5), freedom to move in ones country (Article 13,1) and safe and healthy working conditions (Article 23,2). Many of these human rights are to some extent violated in the course of trafficking in human beings. This shifts the perception of trafficked persons from criminal undocumented migrants to victims of human rights violations and therefore it is accurate to reframe trafficking in human beings from a matter of states security to a matter of victims security (Lobasz 2009: 329-331).

Additionally a discursive approach helps to identify that authorities create „hierarchies amongst victims, dependent upon the nature of the activity for which they were trafficked and their level of consent there to“ (Munro 2008: 243) and that „prevalent constructions of human trafficking rely upon and reproduce gender and racial stereotypes“ (Lobasz 2009: 322) which leads to discreditation and disbelief of the claim to victimization of trafficked persons who can not meet with the created 'prototypical' trafficking victim. As a consequence they are more likely to be recognised as immigration offenders than as victims of a crime and human rights abuse which they ultimately are (Munro 2008: 243).

4. Policies

Being a member state of the United Nations and the European Union Germany is obliged to implement the legal policies it ratified. In order to outline the German legislation concerning the rights and protection of trafficked persons an overview about the recent international and European policies that Germany ratified seems necessary.

4.1 'Palermo Protocol'

The most recent United Nations Protocol is the 'Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime' (2000) also called 'Palermo Protocol'. Its main aspects concerning the rights and protection of trafficked persons are a comprehensive definition of trafficking in persons (Article 3,1) and the criminalization of human trafficking (Article 5,1). Most importantly it highlights the protection of trafficked persons. They should be appropriately informed about their legal situation and possibilities (Article 6,2), receive support by provision of „appropriate housing“, „medical, psychological and material assistance“ and „employment, educational and training opportunities“ (Article 6,3). Furthermore they should have the possibility to obtain some kind of residence permit (Article 7) and the repatriation should be with „due regard for the safety of that person“ and „preferably be voluntary“ (Article 8.2).

4.2 'Council of Europe Convention on Action against Trafficking in Human Beings'

The purpose of the 'Council of Europe Convention on Action against Trafficking in Human Beings' ('Council of Europe Convention') (2005) is among others „to protect the human rights of the victims of trafficking [and] design a comprehensive framework for the protection and assistance of victims and witnesses“ (Article 1,1b). It derives its definition of trafficking in human beings from the 'Palermo Protocol' and attempts to continue its protectory measures.

The assistance to victims physical, psychological and social recovery should include „appropriate and secure accommodation, psychological and material assistance“ (Article 12, la), „emergency medical treatment“ (Article 12, 1b), „translation and interpretation services“ (Article 12, lc) and legal assistance (Article 12, d-e).

Furthermore victims of trafficking in human beings are entitled to a 'recovery and reflection period' of at least 30 days in which they can recover and decide about their cooperation with the authorities in a criminal proceeding against their traffickers. During this period they can not be expulsed and are entitled to the measures of Article 12 (Article 13, 1-2). After the reflection period the trafficked person should receive a renewable residence permit in case of cooperation in a criminal proceeding or if the authorities decide so due to the personal situation of the victim (Article 14, 1).

The repatriation of trafficked persons should be with „due regard for the rights, safety and dignity of that person“ and „preferably be voluntary“ (Article 16, 2). In regard to the especially vulnerable situation in which trafficked persons find themselves after they turned to the authorities Article 12, 6 states that „[e]ach Party shall adopt such legislative or other measures as may be necessary to ensure that assistance to a victim is not made conditional on his or her willingness to act as a witness“ and Article 26 urges to „provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities“.

4.3 German Legislation

The German legislation defines trafficked persons as any natural person who is subject to the offences described in §232, §233 and §233a of the German Criminal Code ('Strafgesetzbuch'). Their rights and protection are mainly regulated in the Residence Act ('Aufenthaltsgesetz').

In accordance to the regulation of the European Union the Residence Act grants trafficked persons a 'recovery and reflection period' of at least three months in which they are informed about their legal situation, possibilities and specific programs and have time to decide whether to cooperate with the authorities in a criminal proceeding against their traffickers or not (§59, 7).

The Residence Act entitles trafficked persons to claim a temporary residence permit if the authorities deem their presence as relevant to the criminal proceedings relating to the crime, if they are no longer in contact with the accused trafficker and if they are willing to testify as a witness in the criminal proceedings (§25, 4a). Consequently trafficked persons who are not German nationals are supposed to be repatriated after the recovery and reflection period if they decide to not testify against the accused trafficker. In practice trafficked persons are not usually repatriated (GRETA 2015: 42). §25, 3 entitles to a residence permit in case of „specific or individual danger to life and freedom in case of expulsion“ (Hoffmann 2013: 11) and §25, 5 in case of impossibility of departure in fact or in law and if the reason of the impossibility does not cease in a measurable period.

Trafficked persons who are holders of a residence permit under §25, 4a and §59,7 are eligible to assistance in basic services such as food, accommodation, emergency medical treatment and financial support according to the Asylum Seekers Benefit Act ('Asylbewerberleistungsgesetz') (Hoffmann 2013: 18).

4.4 Critics and Shortcomings

The shortcomings and critics of the German legislation will be perceived firstly in regard to its fulfilment of the 'Council of Europe Convention' and secondly in surveying to what extent it meets the human rights approach.

The shortcomings towards the 'Council of Europe Convention' start with the definition of trafficked persons in the Residence Act which does not necessarily include all forms of trafficking in human beings as stated in the 'Council of Europe Convention' because it omits victims of organ transplantation (GRETA 2015: 21). It can be stated that in practice the German authorities focus strongly on victims of sexual exploitation while neglecting other forms of exploitation of trafficked persons (GRETA 2015: 12). Furthermore the German legislation does not contain a specific law which ensures the non-punishment of trafficked persons leaving the victims in uncertainty (GRETA 2015: 48-49) and it still links the entitlement of a residence permit strongly to the willingness of trafficked persons to cooperate (GRETA 2015: 42). In practice the assistance of victims of trafficking in human beings still lacks consistency due to the federalist system of Germany resulting in discriminatory treatment of trafficked persons in the different Länder (GRETA 2015: 25). Also, trafficked persons are often deprived of an adequate psychological treatment in the 'recovery and reflection period' (Hoffmann 2013: 20) and safe and appropriate accommodations are not sufficiently available and if so than mostly for women who were sexually exploited and not for male victims or victims of other forms of exploitation (GRETA 2015: 40; Hoffmann 2013: 19).


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Trafficked and Abused. A Survey of the Possibilities of Legal Protection of Trafficked Persons in Germany
Free University of Berlin
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Asyl, Human Trafficking, Legal Protection
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Leonie Brandl (Author), 2016, Trafficked and Abused. A Survey of the Possibilities of Legal Protection of Trafficked Persons in Germany, Munich, GRIN Verlag,


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