Human Trafficking

Human trafficking according to § 104a StGB refers to the targeted exploitation of a person through recruitment, transportation, reception or transfer with the intention of exploitation. The perpetrator uses unfair means such as violence, dangerous threats, deception or taking advantage of a personal emergency. Exploitation includes sexual exploitation, organ removal, labor exploitation, begging and exploitation for the commission of criminal acts. The offense is particularly complex because it often takes place in secluded structures, is organized across borders and those affected usually have significant dependencies and fears. Investigations are particularly challenging due to covert processes, manipulated employment relationships and limited ability to testify.

objective elements of the offence

The objective element of the offense of § 104a StGB Human trafficking includes all external, clearly recognizable actions by which a person is brought into or kept in an exploitative situation. The focus is on procuring, recruiting, transporting, accommodating or receiving a person with the aim of exploiting them. This refers to situations in life in which a person’s economic, professional or sexual self-determination is no longer really given because they are effectively under the control of another. The standard protects personal freedom, sexual integrity and economic self-determination.

Any situation in which a person is brought into or finds themselves in an exploitative situation through recruitment, mediation, transportation, accommodation or reception is an element of the offense. The decisive factor is the objectively perceptible relationship of dependence or control, which is based on sustained exploitation, exertion of pressure or economic or sexual power of disposal. The inner motivation of the perpetrator is irrelevant for the objective element of the offense. Only the external circumstances and the actually existing state of dependence, unfreedom and exploitation are decisive.

Steps of legal assessment

Perpetrator:

The perpetrator can be any person who, through their behavior, contributes to another person being brought into or kept in an exploitative situation. No special characteristics or roles are required. Even people who only organize, mediate, transport or work “in the background” can be considered as perpetrators or participants if their contribution actually enables or facilitates the exploitation.

Object of the Offense:

The object of the offense is every human being who gets into a situation in which their labor, sexuality, physical integrity or economic freedom is abused.

For adults, exploitation must have been made possible by unfair or abusive means, such as violence, threats, deception or the exploitation of dependencies.
In the case of minors, it is sufficient to influence the person because they are particularly vulnerable.

Act:

An extortionate kidnapping exists if a person is taken against or without their will to a The objective element of the offense is any behavior by which a person is brought into, mediated to, transported to, received, accommodated or passed on to others in such a situation.

Typical actions include:

• Recruiting a person for work, services or “opportunities” that actually amount to exploitation.
• Receiving or accommodating if this prepares or secures the exploitation.
• Transporting people to places where they are exploited.
• Passing on or “handing over” to third parties who carry out the actual exploitation.

The decisive factor is that the action visibly leads to a person coming under control and being used for external purposes.

Unfair Means:

In the case of adult victims, the objective element of the offense includes in particular unfair or abusive methods, such as

• Violence or threats,
• Deception about essential circumstances,
• Exploitation of an emergency, dependence or position of authority,
• Intimidation or
• the “selling” or “passing on” of a person in exchange for advantages.

A clear power imbalance is always externally recognizable, in which the person concerned effectively no longer has equivalent decision-making or withdrawal options.

Exploitation Situation and Success of the Act:

The objective success of the act exists if the person concerned is in a situation in which they are

• sexually exploited,
• abused through their labor,
• used for begging,
• forced to commit criminal acts or
• can be used or is already being used for organ removal.

It is sufficient that the external circumstances enable a real use for these purposes or are already realizing it. A merely short-term, easily resolvable dependency is not sufficient. A stable, burdensome external control is required, which significantly restricts real freedom of choice.

Causality:

Causal is any action without which the exploitation situation would not have existed in this form. This also includes preparatory or organizational steps.

Objective Attribution:

The success is objectively attributable if the behavior creates or reinforces a typical risk situation for exploitation. Normal, socially customary dependencies (such as a normal employment relationship with fair conditions) are not covered by this.

Qualifying Circumstances

Slavery does not distinguish between classic qualifications. The structure results from the two § 104a StGB contains several particularly serious case constellations:

Qualification According to Paragraph 4

A prison sentence of one to ten years will be imposed on anyone who commits the act

• within the framework of a criminal organization,
• using severe violence,
• with intentional or grossly negligent endangerment of life of the person or
• with a particularly serious disadvantage for the victim
• commits.

These cases are characterized by an increased risk or particularly serious consequences of the act.

Minors According to Paragraph 5

Likewise, a prison sentence of one to ten years will be imposed on anyone who recruits, accommodates, receives, transports, offers or passes on a minor person with the intention of exploitation.

The decisive factor here is:

• The protection of minors applies absolutely because any advertising or forwarding action creates a particular risk of exploitation.
• No unfair means required.

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Distinction from other offences

The offense of human trafficking exists if a person is brought into or kept in an exploitative situation and thereby loses their economic, sexual or personal freedom to a significant extent. The injustice lies in the exploitation of a particular vulnerability or in the establishment of a relationship of dependence that enables continued exploitation. The decisive factor is the actual influence on the lifestyle of the victim, not the outward appearance.

• § 99 StGB – Deprivation of liberty: Covers the mere detention or imprisonment without further use of the person. The objective content is limited to freedom of movement. If no exploitative use is established, it remains § 99 StGB. Only when the detention turns into an exploitation situation is human trafficking added.
• § 102 StGB – Extortionate kidnapping: Requires an appropriation or kidnapping that is aimed at exerting pressure on a third party. In human trafficking, however, the not the transfer as such, but the exploitation of the person concerned is in the foreground.
  However, a kidnapping can become a preliminary act if it leads to an exploitative situation.
• § 269 StGB – Hostage-taking during liberation attempts: Covers endangering acts against third parties in order to prevent a liberation. § 104a StGB, on the other hand, concerns the permanent use of the person for exploitative purposes. In principle, both offenses do not overlap; § 269 is only added if additional endangering acts are committed in the context of the exploitation.

Concurrences:

Genuine Concurrence:

Exists if further independent offenses are added to human trafficking, such as deprivation of liberty, dangerous threats or bodily harm.

Spurious Concurrence:

Only comes into consideration if a special offense covers the injustice completely.
Since § 104a StGB describes the injustice independently, the displacement of other offenses is rare.

Multiple Offenses:

Several exploited persons or several separate exploitation processes lead to several independent offenses.

Continued Action:

A longer-lasting exploitation remains a single act as long as the dominant and exploitative situation is maintained without interruption.
The act ends with the end of the factual control over the victim.

Burden of proof and evaluation of evidence

Public Prosecutor’s Office:

The public prosecutor’s office bears the burden of proof for the existence of an exploitation situation, its establishment, maintenance or causation, as well as for the unfair means or other circumstances through which the victim was brought into the situation. It proves that the person concerned without effective consent, through violence, dangerous threats, deception, exploitation of an emergency, intimidation or through another suitable means came into a situation in which they were externally controlled and exploitable. It must also be proven that the perpetrator side exercised an actual influence or access to the victim’s labor, sexuality, freedom of movement or other living conditions, which actually enabled the exploitative use.

Court:

The court examines and assesses all evidence in the overall context. It does not use any unsuitable or illegally obtained evidence. The decisive factor is whether the victim was actually brought into a lasting dependency and exploitation situation and whether the objective actions were suitable to establish or maintain this form of externally determined control. The court determines whether an exploitation mechanism existed that supports the offense and significantly undermines the protected personal or economic freedom of the victim.

Accused Person:

The accused person has no burden of proof. However, they can raise doubts about the alleged dependency, the alleged involuntariness, the use of unfair means or the actual act of exploitation. They can also point to contradictions, gaps in evidence or unclear expert opinions.

Typical evidence includes video or surveillance material on control actions, digital location and movement data, communication logs, documents on working and living situations, documentation on financial or organizational dependencies, as well as traces at places or objects that indicate a factual influence and use of the person.
In special cases, psychological, medical or socio-pedagogical reports may also be considered, especially if the victim was a minor, mentally impaired, defenseless or particularly vulnerable due to an emergency and it is to be assessed whether effective consent was excluded.

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Practical example

• Deception and gradual subjugation: A perpetrator lures the victim with a seemingly harmless pretext, such as an alleged job opportunity, accommodation or a “helpful opportunity”. The victim follows voluntarily, but ends up in an environment that the perpetrator completely controls. There, they are brought into an exploitative situation, for example through complete dependence, surveillance, withdrawal of identity documents, artificially created debts or social isolation. The deception is sufficient if it serves to create a situation in which the victim effectively no longer has any decision-making or withdrawal options.
  The decisive factor is the continued use of the person for exploitative purposes, not whether the victim resisted at the beginning.
• Exploitation of defenselessness: A minor, mentally impaired or incapacitated person is taken by a person of trust into an environment in which they are controlled, exploited or forced to perform labor, begging or sexual services. The victim does not recognize the implications and cannot prevent the process.
  Since the person enters an exploitation situation without effective consent, the offense is clearly fulfilled.

These examples show that already the creation or maintenance of a stable dependency, which enables economic, sexual or other use, constitutes human trafficking within the meaning of § 104a StGB is fulfilled. The decisive factor is the targeted and sustainable influence on the living conditions of the victim, regardless of whether a kidnapping, deception or other transfer action has taken place beforehand.

subjective elements of the offence

The perpetrator acts intentionally. He knows or at least accepts that he is bringing a person into or keeping them in an exploitative situation, and that the person concerned is under his actual control or under the control of a third party. He recognizes that the victim thereby largely loses his economic, sexual or personal freedom and enters into a relationship of dependence that enables use for exploitative purposes.

The intention to bring about a permanent situation of exploitation is essential. The perpetrator wants to ensure that the victim can no longer freely dispose of their labor, their movements, or their social and economic decisions, and they seriously accept the associated third-party use. Whether the victim is actually fully exploited later on is irrelevant for criminal liability, as long as the intent is directed towards establishing or maintaining an exploitative situation.

There is no intent if the perpetrator believes that the victim freely, informedly, and earnestly consents to the specific living, working, or residence situation, or if they mistakenly assume that no exploitative or abusive position arises. Anyone who assumes that the person concerned is independently shaping their living conditions and is only seeking temporary support does not fulfill the subjective element of the offense.

It is crucial that the perpetrator consciously creates or exploits the victim’s situation in order to establish de facto control that goes far beyond mere dependencies or organizational support. Anyone who recognizes that the victim is dependent, defenseless, intimidated, or socially isolated and deliberately uses this situation to enable ongoing exploitation acts intentionally and thus fulfills the subjective element of the § 104a StGB.

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Culpability and mistakes

Mistake of prohibition:

A mistake of prohibition only excuses if it was unavoidable. Anyone who engages in conduct that recognizably interferes with the rights of others cannot claim that they did not recognize the illegality. Everyone is obliged to inform themselves about the legal limits of their actions. Mere ignorance or a reckless error does not absolve one of responsibility.

Principle of culpability:

Only those who act culpably are punishable. Intentional offenses require that the perpetrator recognizes the essential events and at least accepts them as a possibility. If this intent is lacking, for example, because the perpetrator mistakenly assumes that their behavior is permitted or is voluntarily supported, at most negligence exists. This is not sufficient for intentional offenses.

Incapacity to be held accountable:

No guilt is attributed to someone who, at the time of the offense, was unable to recognize the injustice of their actions or to act in accordance with this insight due to a severe mental disorder, a pathological mental impairment, or a significant inability to control their actions. In case of corresponding doubts, a psychiatric assessment will be obtained.

Excusable state of necessity:

An excusable state of necessity may exist if the perpetrator acts in an extreme situation of duress in order to avert an acute danger to their own life or the lives of others. The behavior remains unlawful but can have a mitigating or excusing effect if there was no other way out.

Putative self-defense:

Anyone who mistakenly believes that they are entitled to an act of defense acts without intent if the error was serious and comprehensible. Such an error can reduce or exclude guilt. However, if a breach of duty of care remains, a negligent or mitigating assessment comes into consideration, but not a justification.

Extinction of punishment and diversion

Diversion:

Diversion is only possible in § 104a StGB in very rare exceptional cases.
The reason for this is that human trafficking constitutes a serious impairment of personal, economic, or sexual freedom and is considered one of the most serious exploitation offenses in Austrian criminal law.

A diversionary settlement can only be examined if

• the guilt of the perpetrator is minor,
• the victim was not exposed to any significant danger or exploitation,
• there was no violence, no threat, and no exploitation of extreme defenselessness,
• the victim was freed from the exploitative situation,
• and the facts are generally manageable and clear.

If a diversion comes into consideration, the court can order, for example, monetary payments, community service, or a settlement of the offense.
A diversion leads to no conviction and no entry in the criminal record.

Exclusion of Diversion:

Diversion is excluded if

• the victim was significantly endangered, mistreated, or exploited,
• the perpetrator used violence or made serious threats,
• an exploitative situation has already been created or maintained,
• or if the behavior as a whole constitutes a serious violation of personal protected rights.

Only in the case of minor guilt, a clear misunderstanding, or if the perpetrator is immediately remorseful, can the court even examine whether an exceptional case exists.

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Sentencing and consequences

The court assesses the penalty according to the severity of the exploitative impact, the nature and intensity of the control over the victim, and the extent to which the exploitative situation had actually progressed. It is crucial whether the perpetrator consciously brings or keeps the victim in a situation in which their economic, personal, or sexual freedom is largely eliminated. The question of how deliberately the perpetrator proceeds and what means they use also influences the amount of the penalty.

Aggravating Factors Exist in Particular If

• the victim is kept in an exploitative situation for a longer period of time,
• the perpetrator proceeds deliberately, in an organized manner, or commercially,
• the control and influence had already progressed far or was fully established,
• the victim is subjected to physical or mental stress,
• violence, dangerous threats, deception, or the exploitation of a situation of duress are used,
• or the perpetrator has already been previously convicted of a similar offense.

Mitigating Factors Include

• if the perpetrator is of good character,
• if they confess and show remorse,
• if they voluntarily release the victim and recognizably end the exploitative situation,
• if they make efforts to provide restitution,
• if there is an extraordinary psychological burden,
• or if the proceedings take an excessively long time.

The court may conditionally suspend a prison sentence if it does not exceed two years and the perpetrator is considered socially stable. For longer sentences, a partially conditional suspension may be considered. In addition, the court may order instructions, such as therapy, compensation for damages, or supervision requirements.

Penalty Range

In the case of human trafficking, the penalty range in the basic case is between six months and five years imprisonment. This penalty range always applies if the perpetrator brings an adult person into an exploitative situation by unfair means or maintains such a situation. It is crucial that the victim gets into a situation in which their economic, sexual, or personal freedom is significantly impaired and their way of life is determined by others.

For particularly serious cases, such as the use of severe violence, significant endangerment of the victim, within the framework of a criminal organization, or involving minor victims, the penalty range is one to ten years imprisonment.

• § 104a para. 4: 1 to 10 years
• § 104a para. 5 (Minors): 1 to 10 years

A milder penalty range does not exist. § 104a StGB does not provide for any further downgrading for less serious cases. The legislator treats all factual forms of human trafficking as a significant injustice, regardless of whether the exploitation was realized in varying intensities in individual cases.

Since the offense does not contain any additional qualified success case, the threat of punishment does not increase further, even if additional burdens or dangers occur in connection with the act. Due to its exploitation-typical subjugation of the victim, the act always remains a serious crime.

A statutory mitigation of punishment through voluntary release is not provided for in § 104a StGB. The court can only take a voluntary termination of the exploitative situation into account within the framework of sentencing, not in the penalty range itself.

Monetary Penalty – Day-fine System

Austrian criminal law calculates monetary penalties according to the day-fine system. The number of day-fines depends on the guilt, the amount per day depends on the financial capacity. In this way, the penalty is adapted to the personal circumstances and yet remains noticeable.

• Range: up to 720 day-fines – at least 4 euros, at most 5,000 euros per day.
• Practical formula: Approximately 6 months imprisonment corresponds to around 360 day-fines. This conversion serves only as orientation and is not a rigid scheme.
• In case of non-payment: The court can impose a substitute custodial sentence. As a rule, the following applies: 1 day of substitute custodial sentence corresponds to 2 day-fines.

Note:

In the case of human trafficking according to § 104a StGB, a monetary penalty is legally possible, but hardly plays a role in practice due to the regularly serious content of injustice.

Imprisonment and (partially) suspended sentence

§ 37 StGB: If the statutory penalty threat reaches up to five years, the court can impose a monetary penalty instead of a short prison sentence of no more than one year.
This possibility exists in § 104a StGB in principle in the basic case, because the penalty range lies between six months and five years.

§ 43 StGB: A prison sentence can be conditionally suspended if it does not exceed two years and the perpetrator has a positive social prognosis.
This possibility exists in § 104a StGB in principle in the basic case, because penalties of up to two years are possible.
In practice, however, it is applied cautiously, because human trafficking is typically associated with significant exploitation, pressure, or deception and therefore frequently an unconditional prison sentence is imposed.

§ 43a StGB: The partially conditional suspension allows the combination of an unconditional and a conditional part of a prison sentence. It is possible for penalties between more than six months and up to two years. Since the basic offense of human trafficking can allow penalties in this area, an application is quite possible in individual cases, especially in the case of shorter or less intensely pronounced exploitation. A partially conditional suspension is therefore not excluded, but will be realistic only in exceptional cases, especially in qualified cases.

§§ 50 to 52 StGB: The court can additionally issue instructions and order probation assistance.
Typical instructions concern compensation for damages, therapy or counseling, contact bans, restrictions on residence, or other measures that serve stabilization.
The goal is a permanent legal probation and the avoidance of further criminal offenses, even if in § 104a StGB due to the exploitation-typical situation there is regularly an increased need for protection and control.

Jurisdiction of the courts

Subject-matter Jurisdiction

In the case of human trafficking according to § 104a StGB, the Regional Court as a court of lay assessors regularly decides as soon as the qualifying penalty range of one to ten years is applied and thus a crime with a penalty threat of more than five years exists.
A jurisdiction of the individual judge is only possible in the basic offense, since this provides for a penalty range of six months to five years. However, if a qualified case according to para. 4 or para. 5 exists, the individual judge is excluded.

A jury court is not provided for. Although the act is serious, the legislator sees in § 104a StGB no mandatory life imprisonment, which is why the jurisdiction remains with the court of lay assessors as soon as a criminal offense is opened.

Local Jurisdiction

The court of the place of the offense has jurisdiction. The following is particularly relevant:

• where the act of exploitation began,
• where the victim was brought into an exploitative situation or held there,
• or where the focus of the maintained exercise of influence or control lay.

If the place of the offense cannot be clearly determined, the jurisdiction is based on the residence of the accused person, the place of arrest, or the seat of the materially competent public prosecutor’s office.

The proceedings are conducted where a practical and orderly implementation is best guaranteed.

Hierarchy of Courts

An appeal to the Higher Regional Court is possible against judgments of the Regional Court.
Decisions of the Higher Regional Court can subsequently be challenged by means of a plea of nullity or further appeal to the Supreme Court.

Civil claims in criminal proceedings

In the case of human trafficking according to § 104a StGB, the victim themselves or close relatives can assert civil law claims as private parties in the criminal proceedings. These include compensation for pain and suffering, therapy and treatment costs, loss of earnings, care costs, costs for psychological support as well as compensation for emotional suffering and other consequential damages caused by the exploitative use, the associated interventions in personal and economic freedom, or the psychological burden.

The private party connection inhibits the statute of limitations of all asserted claims as long as the criminal proceedings are ongoing. Only after a legally binding conclusion does the limitation period begin to run again, insofar as the claim has not been fully awarded.

A voluntary compensation for damages, for example through an apology, financial compensation, or active support of the victim, can have a mitigating effect on the penalty if it is done in a timely, credible, and complete manner.

However, if the perpetrator deliberately placed the victim in an exploitative situation, created massive dependency, caused significant psychological or physical harm, or exploited the situation with particular ruthlessness, any subsequent reparation will generally lose its mitigating effect. In such cases, it can no longer compensate for the wrong committed.

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Overview of criminal proceedings

• tart of investigation: formal suspect status upon concrete suspicion; from that point onward, full rights of the accused apply.
• Police / Public Prosecutor: the public prosecutor directs the proceedings, the criminal police conduct the investigation; objective: dismissal of the case, diversion, or indictment.
• Interrogation of the accused: prior instruction on rights; involvement of a defense attorney leads to postponement; right to remain silent remains unaffected.
• Access to the case file: available at the police, public prosecutor’s office, or court; also includes evidence items (insofar as the purpose of the investigation is not jeopardized).
• Main hearing: oral taking of evidence and judgment; decision on civil claims joined to the criminal proceedings.

Rights of the accused

• Information & defense: right to notification, legal aid, free choice of defense counsel, translation assistance, and submission of evidence motions.
• Silence & counsel: right to remain silent at any time; if a defense attorney is requested, the interrogation must be postponed.
• Duty to inform: prompt notification of suspicion and rights; exceptions only permitted to safeguard the purpose of the investigation.
• Practical access to files: investigation and trial records; access by third parties is restricted to protect the accused.

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Practical guidance and behavioural advice

1. Maintain silence.
   A brief statement is sufficient: “I am exercising my right to remain silent and will first speak with my defense counsel.”
   This right applies from the very first interrogation by the police or the public prosecutor.
2. Contact defense counsel immediately.
   No statement should be made without access to the investigation files. Only after reviewing the files can the defense assess which strategy and evidence preservation measures are appropriate.
3. Secure evidence immediately.
   Obtain medical reports; take photographs with date and scale and, where appropriate, X-ray or CT images. Store clothing, objects, and digital records separately. Prepare a witness list and contemporaneous recollection notes within two days at the latest.
4. Do not contact the opposing party.
   Your own messages, calls, or posts may be used as evidence against you. All communication should take place exclusively through your defense counsel.
5. Secure video and data recordings in time.
   Surveillance videos from public transport, venues, or property management systems are often automatically deleted after only a few days. Requests for data preservation must therefore be submitted immediately to the operators, the police, or the public prosecutor’s office.
6. Document searches and seizures.
   In cases of house searches or seizures, you should request a copy of the warrant or record. Note the date, time, persons involved, and all items taken.
7. In case of arrest: make no statements about the matter.
   Insist on immediate notification of your defense counsel. Pre-trial detention may only be imposed if there is strong suspicion of guilt and an additional ground for detention. Less severe measures (e.g., pledge, reporting duty, contact ban) must take precedence.
8. Prepare compensation for damages strategically.
   Payments or offers of reparation should be handled and documented exclusively through defense counsel. Structured compensation for damages has a positive effect on diversion and sentencing.

Your Benefits with Legal Assistance

Proceedings for slavery or slavery-like exploitation are among the most legally challenging areas of criminal law. The accusations concern the core areas of personal freedom, deeply encroach on human dignity, and regularly involve complex evidentiary issues. Proceedings for human trafficking are among the most challenging areas of criminal law. The accusations concern central areas of personal freedom and are frequently characterized by complex questions of exploitation, dependence, deception, and voluntariness. It is often disputed whether an exploitative situation actually existed or whether economic, social, or personal factors influenced the behavior of both parties.

Whether human trafficking constituting a criminal offense exists depends largely on whether the victim was actually controlled by others and a free decision was impossible. Minor differences in living and working conditions can significantly alter the legal assessment.

Early legal representation ensures that evidence is collected correctly, dependencies or false accusations are properly classified, and solid arguments are developed. Only a precise legal analysis shows whether criminal trafficking exists or whether the accusation is based on misunderstandings or unclear living circumstances.

Our law firm

• examines whether an exploitative situation existed legally or whether voluntariness or contractual relationships argue against it,
• analyzes statements, communication logs, and life situations for contradictions or exaggerations,
• protects you throughout the proceedings from one-sided representations,
• and develops a structured defense strategy that realistically reflects your actual situation.

Clear, professional representation ensures that the accusation of human trafficking is legally examined correctly and the actual living circumstances are fully considered.

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FAQ – Frequently Asked Questions

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