The government’s anti-trafficking focus remains primarily on child victims of commercial sexual exploitation and transnational sex trafficking. Protection of forced labor and adult internal sex-trafficking victims has ranged from insufficient to nonexistent. Because neither form of trafficking was criminalized until March 2011, traffickers knew that the penalties would be light. With Chile’s passage of the comprehensive 2011 Migrant Smuggling and Trafficking Law, if and when properly implemented, the potential exists for the identification of all victims and the investigation, prosecution, and conviction of their traffickers. The remaining challenge is ensuring that in practice all forms of human trafficking are identified; that traffickers are adequately investigated, prosecuted, and convicted; and that all identified victims have equal access to services. For now there continue to be positive changes, but they are slow and still leave many victims marginalized and traffickers with a mere slap on the wrist.
CHAPTER 20
Germany
When recognized by the authorities, those without legal status run a high risk of being deported to their country of origin without being able to claim their rights.
—HEIKE RABE, GERMAN INSTITUTE FOR HUMAN RIGHTS
The number of human trafficking investigations in Germany has significantly risen since 2005, the year the anti-trafficking laws were added to the Penal Code. Jorg Ziercke, the chief commissioner of the Federal Criminal Police Office (Bundeskriminalamt; BKA), says the number of investigations rose from 317 in 2005 to 534 in 2009. “This means an increase of 70 percent over five years and 11 percent last year alone,” Ziercke said. “We attach great importance to this form of criminal activity because the human dignity of the victims is violated” (Press TV, 2010). While the rise in human trafficking investigations could reflect an increase in human trafficking, it more likely indicates an increase in anti-trafficking awareness among law enforcement. What is worrying is that roughly 20 percent of the 534 preliminary investigations in 2009 involved alleged trafficking victims under the age of 21, with 8 percent of the overall cases involving children younger than 14 (Press TV, 2010).
Heike Rabe of the German Institute for Human Rights (DIMR) said the increase in underage victims may be in part a result of the 2005 Offenses Against Personal Freedom Amendment to the criminal law. Under the amendment, said Rabe, persons under the age of 21 are considered trafficking victims if they are persuaded into prostitution: “No force or physical/mental abuse or even taking advantage of a helplessness arising from being in a foreign country is required. In comparison all these actions are required when a victim is older than 21. This makes it easier to prosecute and convict perpetrators [of trafficking persons under 21]. Therefore, cases that involve victims younger than 21 are more often reflected in statistics.”
1
Before 1995 only trafficking for the purposes of sexual exploitation was defined as human trafficking in Germany. Today the law also prohibits forced labor, deprivation of liberty, severe forms of coercion, and transplantation (Zündorf-Hinte, 2010).
GERMANY AS A DESTINATION AND CHILD SEX TOURISM
The most identified form of human trafficking in Germany is that for commercial sexual exploitation. In 2008, 676 sex-trafficking victims were identified, with women and girls making up 89 percent of the victims. Identified foreign victims of sex trafficking were primarily from Romania (20 percent), Bulgaria (18 percent), Poland (5 percent), and Hungary (5 percent). There was a particularly large increase in the number of Romanian, Bulgarian, and Nigerian victims between 2007 and 2008—a 108 percent, 55 percent, and 32 percent increase, respectively. Experts believe the increase in Romanian and Bulgarian trafficking victims into Germany is in part a result of the accession of the two nations into the European Union (EU) in 2007. This has made it easier for citizens of Romania and Bulgaria to enter, stay, and work in Germany (Bundeskriminalamt, 2009: pp. 8, 9).
There are four primary ways in which persons are trafficked into the German sex industry. Some victims are violently forced to migrate and perform sex work. Others voluntarily migrate on the basis of false promises of legitimate employment as a domestic worker, caretaker, restaurant employee, or dancer. Upon arrival they are charged exorbitant fees and are forced to prostitute by their traffickers in order to pay off the alleged debts. Some other victims voluntarily migrate to Germany with the knowledge that they will be working in the sex industry but are unaware of the conditions they will face—abuse, limited movement and choice, and threats of physical harm to their family. Lastly, some women travel to Germany under a fictitious marriage with a German national and are forced to prostitute upon arrival. The BKA stated that in 2010, 36 percent of sex-trafficked persons knowingly signed on to perform sex work. This statistic dropped to 27 percent in 2011. These persons were all deceived about the actual circumstances they would face (Bundeskriminalamt, 2011: p. 10; Bundeskriminalamt, 2012: p. 11).
Forced labor, which is prohibited under Section 233 of the Penal Code, is also a significant problem in Germany. Persons face forced labor in various sectors such as the food industry (catering), cleaning, agriculture, food processing, construction, fairground entertainment, transportation, and labor in private households (au pairs/nannies, caretakers, and domestic help) (Follmar-Otto & Rabe, 2009: p. 62). Over the past decade at least 1,000 persons from China have been brought to Germany for forced labor in restaurants (U.S. Department of State, 2010). The BKA identified 27 cases of forced labor in 2008. This is a significant drop from the 92 cases identified in 2007. The 2008 cases involved 96 victims—55 males and 41 females. Most of the victims were trafficked into domestic work or into the catering industry (Bundeskriminalamt, 2009: p. 11). In 2010 most of the 41 victims were male (76 percent) and most were from China (30), Romania (6), and Vietnam (2) (Bundeskriminalamt, 2011: p. 12). In 2011 most of the 32 victims identified were female (75 percent) and most were from Poland (14) and Romania (10). The victims were primarily exploited in the agricultural (18), domestic (4), and catering (3) sectors (Bundeskriminalamt, 2012: p. 13). Heike Rabe stated that these statistics probably do not accurately reflect the amount of labor trafficking that actually occurs: “The relevant actors—counseling centers, police, prosecutors, judges, and labor inspectors—are still not that familiar with how to apply the section [Section 233 of the 2005 Offenses Against Personal Freedom Amendment]. Second, the BKA report began to count and analyze the offense only in 2007. The statistics are young and therefore are probably still poorly developed.”
2
The largest population of sex-trafficking victims in Germany consisted of German citizens until 2011, when there were more identified Romanian victims than German victims. In 2008, 28 percent of identified sex-trafficking victims were German; in 2009 the share was 24.8 percent. In 2010, 19.8 percent of identified sex-trafficking victims were German, which was just slightly higher than the 19.5 percent of such victims who were Romanian (Bundeskriminalamt, 2009: p. 8, 2010: p. 12, 2011: p. 8). In 2011, the first year German citizens did not make up the largest group of identified victims, Romanians made up 26 percent of identified sex-trafficking victims, while Germans made up 22 percent (Bundeskriminalamt, 2012: p. 9). Among sex-trafficking victims who were minors, German citizens made up 56 percent of identified victims (Bundeskriminalamt, 2012: p. 11; Zündorf-Hinte, 2010). As stated by Rabe and affirmed by the BKA, the large number of identified minors may reflect the fact that provisions of the Penal Code, specifically Section 232, allow for easier identification of underage persons than of any other group (Bundeskriminalamt, 2009: p. 9). The prosecution need only to demonstrate that the trafficker induced the underage person to participate or continue to participate in a sexually exploitative activity. The burden of proof is much heavier to demonstrate that a foreign adult has been trafficked for commercial sexual exploitation.
Child-sex tourism involving Germans who go abroad to pay for sex with young girls and boys is also a problem. One such case involved an HIV-infected 66-year-old German sex tourist who went to Thailand to sexually abuse young girls at least 400 times; one of the victims was just 11 years old, and several others were 14 (BNO News, 2011). Another case involved an HIV-positive German sex tourist who sexually abused children in Cambodia. Since 1994 he has served multiple sentences for child sex tourism; the most recent sentence began in 2008 in Germany. In 2007, before his last arrest, he allegedly had sex with several boys aged 11 to 13 and tried to rape one of them (ECPAT, 2009). In December 2011 German authorities charged a 51-year-old German citizen with nine counts of sexually abusing children in Thailand. Although some sex tourists are prosecuted in Germany, most German sex traffickers face prosecution in the countries where the offenses took place (U.S. Department of State, 2012).
WHAT HAPPENS TO VICTIMS AFTER TRAFFICKING
Experts believe that labor trafficking is a significant problem in Germany. But of the 772 victims identified in 2008, 676 were identified as sex-trafficking victims and only 96 were identified as forced-labor victims. In 2009 the number of identified sex-trafficking victims increased to 710 and the number of identified forced-labor victims decreased to 23. In 2010 the number of identified sex-trafficking victims decreased to 610 and the number of identified forced-labor victims increased to 41. In 2011 the number of identified sex-trafficking victims increased to 640 and the number of identified forced-labor victims decreased to 32 (Bundeskriminalamt, 2009: pp. 10, 11, 2010: p. 12, 2011: pp. 8, 12, 2012: pp. 9, 13; Zündorf-Hinte, 2010). One potential reason for the low number of identified forced-labor victims is that there is no system in place to identify and assist trafficked persons other than those of commercial sexual exploitation. As a remnant of earlier anti-trafficking criminal law, human trafficking police units still focus mainly on “red-light crime” and forced prostitution (Follmar-Otto & Rabe, 2009: p. 27). It is customs officials, not police, who typically encounter trafficking victims outside the sex industry such as those in catering, cleaning, and construction. As a result, these victims are often perceived as undeclared workers and illegal migrants—not trafficking victims (Follmar-Otto & Rabe, 2009: p. 27).
Despite Germany’s overall anti-trafficking efforts, there has not been enough emphasis on victim rights. This is an issue for nearly all nations. “[National anti-trafficking policies] usually build on the model of three P’s—Protection, Prevention and Prosecution (with great emphasis on prosecution)—without adequate consideration for the three R’s—Rehabilitation, Reintegration and Redress for victims,” Special Rapporteur Joy Ngozi Ezeilo said at the May 13, 2009, General Assembly Interactive Thematic Dialogue Debate “Taking Collective Action to End Human Trafficking” (OHCHR, 2009).
One significant issue is the overall under-identification of trafficking victims without legal status. According to Heike Rabe, unidentified victims without legal status who are arrested by German police commonly face potential detainment and deportation:
Those without legal status who do not want to cooperate or are fearful of cooperating with the authorities are very likely to be deported to their country of origin without being able to claim their rights—for example, their right to compensation and remuneration. They are legally entitled to claim their rights in courts, but there are legal and factual barriers, so that this rarely ever happens. For example, one crucial barrier is that judges have to report the plaintiff to the immigration authorities when they discover that a plaintiff does not have a residence permit.
3
Victims are granted a reflection period to decide whether they want to cooperate in the investigations against their traffickers. The duration of the reflection was increased from one month to three months in 2011 (U.S. Department of State, 2012). Police and NGOs report that victims are commonly fearful of retribution and thus reluctant to aid law enforcement. Those victims who agree to be witnesses are granted renewable temporary residence permits for the duration of the trial proceedings against their trafficker(s). They also are eligible to receive shelter, legal assistance, vocational support, medical services, and psychological care through 39 NGOs that are fully funded by the Federal Family Ministry. Victims who face retribution—such as severe threats in their country of origin—may obtain long-term residence permits (Follmar-Otto & Rabe, 2009: pp. 60, 64; U.S. Department of State, 2012).
NGOs focus primarily on adult females (U.S. Department of State, 2012), so men are often left without equal access to services and shelters. Rabe said that she did not know of any shelter in Germany that is accessible to men:
The overwhelming majority of counseling centers that provide specialized services for trafficked person exclusively support women. Migrant and refugees organizations as well as trade unions provide services to both men and women, but they are not specialized in trafficking. Trade unions do not run shelters. Their services focus on labor law and the representation of their members in out-of-court settlements and in labor court proceedings.
The government does pay the basic cost of victim repatriation under the Reintegration and Emigration Program for Asylum-Seekers in Germany and the Government Assisted Repatriation Program. The program is administered by the International Organization for Migration and offers payment for transportation, gas, and travel costs to victims. It also provides start-up cash assistance for victims of 35 select nations—among them Nigeria, Russia, and China. However, some of the excluded nations are primary source nations for trafficking into Germany—such as Romania, Bulgaria, Poland, Slovakia, Czechoslovakia, and Thailand (IOM, 2012). The right to compensation is specified under the Council of European Convention on Action Against Trafficking in Human Beings. While Germany signed the convention in 2005, the government has not yet ratified it (Council of Europe, 2012). According to Rabe, this will soon change, as the government is about to ratify the convention.
4
Regardless, German law allows victims to participate in criminal court proceedings and to claim wages, compensation, and damages. But, says Heiner Bielefeldt, United Nations special rapporteur on freedom of religion or belief and former director of the DIMR, advisory services and assistance to aid those victims in their claims are inadequate.