|Institutions||New Forms of Trafficking||Community Based Assistance|
Austrian Criminal Code
Human Trafficking – § 104a. (inserted in 2004)
(1) any person who recruits, houses or otherwise accommodates, transports or offers or passes on to a third party a minor (under 18 years of age) or an adult using dishonest means (paragraph 2) against this adult with the deliberate intention of the minor’s or adult’s sexual exploitation, exploitation through organ transplantation or labour exploitation, is to be punished with a prison sentence of up to three years.
(2) Dishonest means are defined as deceit regarding the facts, exploitation of authority, of situations of distress, of mental disease or any condition rendering the person defenceless, the intimidation or the granting or accepting of an advantage for surrendering control over that person.
(3) A person who commits the criminal act using force or severe threats is to be punished with a prison sentence of a minimum of six months up to five years.
(4) A person who commits the criminal act against a minor below the age of 14 years, in the context of a criminal association, under the use of severe violence or in such a way that the life of the person is severely endangered deliberately or by gross negligence or in such a way that particularly serious harm is caused to the person, is to be punished with a prison sentence of at least one year up to ten years.”
Cross-border prostitution – § 217.
(1) Whoever recruits or coerces someone into prostitution, regardless of whether the victim is already involved in prostitution, in a country different from the one, where the victim lives or has citizenship, will be deprived of freedom for the period of six months up to five years, and if he commits this crime as profession, he will be deprived of freedom for one up to ten years.
(2) Whoever intentionally misuses the fact that a person is involved in prostitution in a country different from the one, where he lives or has citizenship, or by using violence and dangerous threats coerces the victim to stay in the country, or by using violence and misusing the fallacy of the victim transfers him/her for prostitution in another country, will be deprived of freedom for the period of one up to ten years.
Austrian Civil Code
§ 213 ABGB – transfer of custody to child/youth welfare authorities (in case of no relative/other suitable person available)
Entry into force: 1812
(no translation available)
§ 213 Ist eine andere Person mit der Obsorge f?r einen Minderj?hrigen ganz oder teilweise zu betrauen und lassen sich daf?r Verwandte oder andere nahe stehende oder sonst besonders geeignete Personen nicht finden, so hat das Gericht die Obsorge dem Jugendwohlfartstr?ger zu ?bertragen. Gleiches gilt, wenn einem Minderj?hrigen ein Kurator zu bestellen ist.
Additional legal information on trafficking in human beings in Austria
(Provided by LEF?-IBF)
Austrian Criminal Code (StGB)
Trafficking in women is covered under the Austrian Criminal Code Article 104a on trafficking in persons and under Article 217 on cross-border prostitution trade. Trafficking in persons is defined as a dishonest premise on the basis of which a person’s sexual integrity is violated, their labor is exploited or organs are extracted. A dishonest premise, for example, is understood as deceit, intimidation, abuse of authority or coercion that leads to a situation or condition in which a person is rendered helpless. Depending on the degree of force, threat and endangerment of a person’s life, the punishment can be a maximum of 10 years imprisonment. Crossborder prostitution trade takes place when persons are forced to work in prostitution outside their country of origin. The punishment for this is also up to 10 years imprisonment, particularly in cases where deceit was employed for personal gain.
Criminal Procedure Code (StPO)
The Criminal Procedure Code concerns the rights of victims during the legal procedure:
During the legal procedure: Article 66 confirms that victims of violence, lifethreatening danger or violation of sexual integrity have the right to psychosocial and legal services throughout the entire legal procedure. The services covered here include support during stressful procedures, assistance in translating the logic of the court and legal procedures into everyday language for better understanding and legal counsel to ensure the person’s rights are upheld.
Sensitive interrogation procedures: Article 47a ensures that all officials involved in the criminal procedure must treat the person with respect and dignity, and must particularly respect their personal sphere. This also protects persons from having their identity revealed and prohibits the circulation of photographs. Victims of sexual violence generally have the right to sensitive interrogations and examinations and to exclude cameras and the press throughout the preliminary procedures and entire court case.
Translation assistance: Article 38a ensures those affected by trafficking the right to translation assistance, regardless of the situation.
Information: Article 195 guarantees the right to immediate information upon the release of one’s perpetrator and specific information about warrants issued, for example, a warrant that the perpetrator is not to come near the victim.
Law on residency and settlement rights in Austria (NAG)
Under Article 69, victims and witnesses of trafficking in persons and transnational prostitution trade may apply for a “special protection” residence permit. To receive such a permit, the offense must have been reported to and recorded by a government agency; it has, however, been expressly noted that the outcome of the court case is not considered relevant for issuing such a permit. This type of permit seeks to ensure civil rights protection while in Austria. The duration of the permit for “special protection” is a minimum of 6 months and can be extended over the entire period of the legal procedure.
There is the possibility to change the permit form of “special protection” to the permit “Red-White-Red – Card plus”, which will provide unlimited access to the labour market. The prerequisites of the “special protection” permit still have to be adhered.
Furthermore the first Module of the Integration agreement has to be fulfilled. Inaddition adequate Job offers and minimum wages are requirements for a successful application for a “Red-White-Red – Card plus”.
Security Police Law (SPG)
Article 56, paragraph 1 of the Security Police Law extends the right to police authorities to convey information about the victim to institutions with victim protection programs, particularly in the case that protection is deemed necessary.
The 2nd Protection Against Violence Law came into effect on 1st June 2009, ensuring free psychosocial counseling throughout the entire procedure. Victims who received psychosocial counseling during the procedure have the right to continue this counseling during civil court cases (in cases of a violation under Civil Law), provided the court case is related to the criminal procedure.
It is possible to bring cases where payment and/or wages for work have been withheld to the Labor Court or the Social Welfare Court. This can be done on a variety of grounds, depending on the activity (wage agreements, employment laws etc.). After an assessment of the probability of the case’s outcome (and it is highly probable that the plaintiff will win the case), the official representation of employees in Austria (Arbeiterkammer) will provide legal counsel for the court case.
Compensation for Damages / Compensation for Pain and Suffering
The right to compensation for damages / pain and suffering are regulated by different laws. Victims of crimes may take the perpetrators to court as a private person if the disadvantages they experienced are considered applicable under Civil Law. If the perpetrator is found guilty, she/he will be required to pay compensation for damages / compensation for pain and suffering. It is also possible to receive the right to payment through a trial in the Civil Court.
According to Article 373a of the Criminal Procedure Code the state may also administer an advance payment of the full sum. State compensation is regulated under the Victims of Crime Law. A problem that arises here, however, is that according to penal law, the victim must have been in possession of a valid permit to stay in Austria at the time of the crime.
Links to Documents
- The European Council Directive 2004/81/EC of 29 April 2004 on the residence