Slavery

Slavery under § 104 StGB exists when a person treats another like an object and deprives them of their personal freedom completely or largely. This refers to situations in which individuals are under the complete control of another, can no longer make self-determined decisions, and are factually at their mercy. It encompasses both classic slavery and slavery-like situations, meaning conditions where someone is brought into a relationship equivalent to dominion over a person through coercion, deception, or exploitation of a predicament. Furthermore, effecting enslavement, bringing about a slavery-like situation, or causing a person to enter such a situation falls within the scope of the offense.

objective elements of the offence

The objective elements of the offense of slavery under § 104 StGB encompass all external, clearly recognizable acts by which a person is completely or largely deprived of their personal freedom. The focus is on a state in which a human being is treated, controlled, or exploited like an object, effectively abolishing their self-determination. This norm protects fundamental human dignity and draws the line where a person can no longer dispose of their life, body, or labor.

Any situation in which a person is brought into or finds themselves in slavery or a slavery-like situation constitutes the offense. Crucial is the objectively perceptible relationship of domination, based on permanent control, exploitation, or disposal power. The perpetrator’s internal motivation is irrelevant for the objective elements of the offense. Only the external circumstances and the real existing state of subjugation and loss of freedom are decisive.

Steps of legal assessment

Perpetrator:

The perpetrator is any person who enslaves another human being, creates a slavery-like situation, or engages in slave trade. No special characteristics are required. Co-perpetrators, accomplices, or persons who knowingly provide organizational support are also included.

Object of the Offense:

The object of the offense is any human being who is brought into a relationship of domination that practically eliminates their exercise of freedom. The victim does not have to be physically imprisoned. Factual control over living conditions, freedom of movement, labor performance, or social contacts is sufficient if the overall dependency relationship amounts to slavery.

Actus Reus:

The actus reus encompasses all actions that lead to or maintain a slavery-like situation. These include, in particular:

• Creating or maintaining a relationship of domination that completely or predominantly subjects the affected person to the perpetrator’s control.
• Slave trade, such as buying, selling, brokering, transporting, or transferring a person with the aim of exploitation.
• Bringing about a slavery-like situation, for example, through forced labor, debt bondage, total economic dependence, or social isolation.
• Exploiting an existing state of helplessness, when the victim, due to their situation, factually no longer has the possibility to escape.

Mere exploitative relationships that do not reach the quality of a slavery-typical total subjugation do not constitute the offense. Decisive is whether the overall circumstances amount to complete external determination.

Result of the Offense:

The result of the offense exists when the victim is actually in a state that can objectively be classified as slavery or a slavery-like situation. Decisive is the actual control over the person, not the legal designation or the perpetrator’s subjective self-assessment. A merely short-term restriction is not sufficient. It requires a stable, continuous subjugation that deprives the victim of their self-determination.

Causality:

Causal is any action without which the state of slavery or a slavery-like situation would not have occurred. This also includes preparatory steps, organizational measures, or supportive actions if they enable or intensify the situation.

Objective Attribution:

The result is objectively attributable if the perpetrator deliberately creates a situation that leads to actual external domination. A lawful or socially customary dependency is never attributable. § 104 StGB always applies when the perpetrator creates a situation that deprives the affected person of all real freedom and massively impairs human dignity.

Qualifying Circumstances

Slavery does not distinguish classic qualifications. The structure results from the two paragraphs:

Aggravated Offense under Paragraph 1

The basic offense exists if the perpetrator

• engages in slave trade, or
• deprives a person of their personal freedom in the form of slavery or a slavery-like situation.

This is the particularly serious case, as the victim is completely dehumanized and degraded to an object.

Equivalent Case under Paragraph 2

Paragraph 2 equally severely covers causing that

• a person is enslaved,
• a person is brought into a slavery-like situation, or
• a person enters such a situation themselves as a result of manipulation, deception, or pressure.

The structure clarifies that any form of bringing about or enabling a slavery-like situation fully satisfies the objective elements of the offense.

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Distinction from other offences

The offense of slavery exists when a person is brought under the complete or extensive power of disposal of another and thereby loses their personal freedom permanently or at least substantially. The wrong consists in the abolition of self-determination and the creation of a situation that amounts to ownership-like control. Decisive is the actual control over the victim’s life, not the outward appearance.

• § 99 StGB – Deprivation of Liberty: Covers the mere detention or imprisonment without change of location. The objective content is limited to the restriction of freedom of movement. If no slavery-like permanent or total domination is established, it remains § 99 StGB.
• § 102 StGB – Extortionate Kidnapping: Requires seizure or abduction aimed at exerting pressure on a third party. With § 104 StGB, the focus is not on the intent to extort, but on the continuous subjugation to the perpetrator’s power of domination. Both offenses can coincide if a seizure transitions into a slavery-like situation.
• § 269 StGB – Hostage-taking during attempted liberation: Covers acts endangering authorities or third parties to prevent liberation. § 104 StGB, however, concerns the continuous deprivation of personal freedom in the form of slavery or a slavery-like situation. Both offenses do not overlap. § 269 only applies additionally if additional acts of endangerment are committed in the course of the slavery-like subjugation.

Concurrences:

True Concurrence:

Exists when additional independent offenses, such as deprivation of liberty, dangerous threats, or bodily harm, are added to slavery. Each legal interest is violated separately.

False Concurrence:

Only occurs when a specific offense fully encompasses the entire wrong.
This is rare, as § 104 StGB concerns an independent, particularly serious protected legal interest.
Therefore, the displacement of other offenses is the exception.

Plurality of Offenses:

Multiple enslaved persons or several separate incidents lead to multiple independent offenses.

Continuing Offense:

A prolonged subjugation or deprivation of liberty remains a single offense as long as the intent to maintain the slavery-like situation persists.
The offense only ends with the cessation of factual dominion 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 slavery or a slavery-like situation, its establishment, maintenance, or bringing about, as well as for the circumstances under which the victim was deprived of personal freedom. It must prove that the affected person was without effective consent, through violence, dangerous threats, deception, or other suitable means brought into a situation where they were at the mercy of the perpetrator’s power of domination. It must also be proven that there was actual dominion and power of disposal that actually enabled the slavery-like subjugation.

Court:

The court examines and evaluates all evidence in its overall context. It does not utilize unsuitable or unlawfully obtained evidence. Decisive is whether the victim was actually brought into a continuous state of domination and dependence and whether the act was objectively suitable to establish or maintain this slavery-like control. The court determines whether a slavery or slavery mechanism existed that supports the offense and completely undermines the victim’s protected personal freedom.

Accused Person:

The accused person has no burden of proof. However, they can point out doubts regarding the alleged exercise of domination, the purported dependency situation, the involuntariness of the stay, or the claimed slavery-like control. Likewise, they can point to contradictions, gaps in evidence, or unclear expert opinions.

Typical evidence includes video or surveillance material related to control acts, digital location data, communication traces, access control or movement data, proof of work and living situations, documentation of financial or organizational dependencies, as well as traces at locations or on objects indicating factual domination of the victim. In special cases, psychological, socio-pedagogical, or medical expert opinions may also be relevant, particularly if the victim was underage, mentally weak, mentally ill, or incapable of resistance, and it needs to be assessed whether effective consent was precluded.

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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 or supposed accommodation. The victim follows voluntarily but ends up in an environment completely controlled by the perpetrator. There, they are brought into a slavery-like situation, for example, through complete dependence, surveillance, deprivation of identification documents, or systematic isolation. The deception is sufficient if it serves to create a situation in which the victim factually no longer possesses freedom of decision. Decisive is the permanent transfer of power of domination, not whether the victim previously resisted.
• Exploitation of helplessness: An underage, mentally weak, or resistance-incapable person is brought by a person of trust into an environment where they are controlled, exploited, or forced into service. The victim does not recognize the implications and cannot prevent the process. Since the person is placed into slavery or a slavery-like situation without effective consent, the offense is clearly fulfilled.

These examples show that merely creating or maintaining a situation of complete dependence fulfills the definition of slavery within the meaning of § 104 StGB. Decisive is the targeted and sustained exercise of domination, regardless of whether a kidnapping, deception, or other act of seizure occurred beforehand.

subjective elements of the offence

The perpetrator acts intentionally. They know or at least accept the possibility that they are bringing a person into a situation where their personal freedom is completely or largely abolished, and that this person is under their actual power of domination or under the domination of a third party. They recognize that the victim is thereby deprived of their autonomous conduct of life and brought into a slavery-like or slavery-related dependency.

Essential is the intent to bring about permanent subjugation. The perpetrator intends to ensure that the victim can no longer freely dispose of their whereabouts, labor, or social environment, and seriously accepts the associated complete domination. Whether the victim is later actually exploited in every respect is irrelevant for criminal liability, as long as the intent is directed at the establishment or maintenance of such a situation.

No intent exists if the perpetrator believes that the victim freely, informed, and genuinely consents to the specific life and dependency situation, or if they mistakenly assume that no slavery-like or slavery-related position arises. Anyone who assumes that the affected person autonomously shapes their living circumstances and is only temporarily seeking help or accommodation does not fulfill the subjective elements of the offense.

Decisive is that the perpetrator deliberately creates or exploits the victim’s situation to establish an actual relationship of domination that goes far beyond mere restrictions of freedom. Anyone who recognizes that the victim is dependent, helpless, or intimidated and deliberately uses this situation to establish permanent control over their life acts intentionally and thereby fulfills the subjective elements of the offense under § 104 StGB.

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Culpability and mistakes

Mistake of Law:

A mistake of law only excuses if it was unavoidable. Anyone who engages in conduct that evidently infringes upon the rights of others cannot claim that they did not recognize its unlawfulness. Everyone is obliged to inform themselves about the legal limits of their actions. Mere ignorance or a careless error does not absolve responsibility.

Principle of Guilt:

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

Incapacity to be held accountable:

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

Excusable emergency:

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

Putative self-defense:

Anyone who mistakenly believes 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 remains, a negligent or mitigating assessment comes into consideration, but not a justification.

Extinction of punishment and diversion

Diversion:

A diversion is possible in § 104 of the Criminal Code only in very rare exceptional cases.
The reason for this is that slavery and slavery-like situations particularly severely interfere with the personal freedom and dignity of the person and are considered one of the most serious offenses against freedom.

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 quickly freed from the slavery-like 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:

A diversion is excluded if

• the victim was significantly endangered, mistreated, or exploited,
• the perpetrator used violence or made serious threats,
• a slavery-like 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 insightful, 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 slavery-like influence, the nature and intensity of the exercise of power over the victim, and how far the enslavement or slavery-like situation had actually progressed. It is crucial whether the perpetrator consciously brings or keeps the victim in a situation in which their personal freedom is completely or largely abolished. 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 held in slavery or a slavery-like situation for a longer period of time,
• the perpetrator proceeds deliberately, in an organized manner, or commercially,
• the exercise of power was already far advanced or fully established,
• the victim is subjected to physical or mental stress,
• Violence, dangerous threats, or deception are used,
• or the perpetrator has already been previously convicted for similar offenses.

Mitigating Factors are, for Example,

• if the perpetrator is unblemished,
• if they make a confession and show insight,
• if they voluntarily release the victim and recognizably end the slavery-like situation,
• if they make an effort to make amends,
• if there is an extraordinary psychological burden,
• or if the proceedings take an excessively long time.

The court can conditionally suspend a prison sentence if it does not last longer than two years and the perpetrator is considered socially stable. For longer sentences, a partially conditional suspension comes into consideration. In addition, the court can order instructions, such as therapy, compensation for damages, or an obligation to stabilizing measures, provided they appear suitable.

Penalty Range

In the case of slavery, the penalty range in the basic case is between ten and twenty years of imprisonment. This penalty range always applies if the perpetrator either engages in trafficking in enslaved people or deprives a person of their personal freedom in the form of slavery or a slavery-like situation. It is crucial that the victim is permanently subjected to the power of the perpetrator and deprived of their actual freedom.

A milder penalty range does not exist. § 104 of the Criminal Code does not provide for a graduated penalty threat for less serious cases. The legislator treats all factual forms of slavery as particularly serious injustice, regardless of whether the deprivation of liberty is structured differently in individual cases.

Since the offense does not contain a qualified case of success, there is no further increasing penalty threat, even if there are additional burdens or dangers in connection with the act. The act remains a serious crime due to its mandatory subjugation of the victim.

A statutory mitigation of penalty through voluntary release is not provided for in § 104 of the Criminal Code. The court can only consider a voluntary termination of the slavery-like situation within the framework of the sentencing, not in the penalty range itself.

Fine – Day-fine System

Austrian criminal law calculates fines 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 of imprisonment correspond 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 prison sentence. As a rule, the following applies: 1 day of substitute imprisonment corresponds to 2 day-fines.

Imprisonment and (partially) suspended sentence

§ 37 of the Criminal Code: If the statutory penalty threat extends up to five years, the court can impose a fine instead of a short prison sentence of no more than one year.
This possibility does not exist in § 104 of the Criminal Code, because the mildest penalty range is at ten years.
A fine is excluded, even if the specific case would be located in the lower range of the injustice.

§ 43 of the Criminal Code: A prison sentence can be conditionally suspended if it does not exceed two years and the perpetrator has a positive social prognosis.
This form of penalty remission is fundamentally only considered in extreme exceptional cases in § 104 of the Criminal Code, because the penalty threat lies far above the threshold at which typical individual cases fall within the range of penalties of up to two years.
Only in the case of exceptionally minor fault and a significant reduction in burden or constellation is a conditional remission theoretically conceivable.

§ 43a of the Criminal Code: The partially conditional remission 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 penalty range of slavery only begins at ten years, an application only comes into question if the specific penalty is unusually low despite the high penalty range.
A partially conditional remission is therefore not excluded, but realistically only conceivable in extreme exceptional cases.

§§ 50 to 52 of the Criminal Code: The court can additionally issue instructions and order probation assistance.
Typical instructions concern compensation for damages, therapy or counseling, contact bans, residence restrictions, or other measures that serve stabilization.
The goal is a lasting legal probation and the avoidance of further criminal offenses, even if in § 104 of the Criminal Code, due to the particular severity of the act, there is regularly a high need for security.

Jurisdiction of the courts

Subject-matter Jurisdiction

In the case of slavery according to § 104 of the Criminal Code, the regional court regularly decides as a lay judge court, since the statutory penalty range in the basic case provides for ten to twenty years of imprisonment and thus a serious crime is given.
A jurisdiction of the individual judge is excluded because the penalty threat is significantly above five years.

A jury court is not provided for. Although the act is serious, the legislator does not provide for a mandatory life imprisonment in § 104 of the Criminal Code, which is why the jurisdiction remains with the lay judge court.

Local Jurisdiction

• The court of the place of the offense is responsible. What is decisive in particular is,
• where the act of enslavement began,
  where the victim was brought or held in a slavery-like situation,
  or where the focus of the maintained exercise of power 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 with a plea of nullity or further appeal to the Supreme Court.

Civil claims in criminal proceedings

In the case of slavery according to § 104 of the Criminal Code, the victim themselves or close relatives can assert civil 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 slavery-like subjugation, the deprivation of personal freedom or the associated 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 has consciously brought the victim into a slavery-like situation, created massive dependence, caused significant psychological or physical damage, or exploited the situation particularly ruthlessly, a later compensation for damages will generally lose its mitigating effect. In such cases, it can no longer outweigh the injustice 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 demanding areas of criminal law. The accusations concern the core areas of personal freedom, deeply interfere with human dignity, and regularly have complex evidentiary questions regarding the actual exercise of power, dependence, and voluntariness. It is often disputed whether a slavery-like situation actually existed, whether the victim voluntarily chose their situation, or whether dependence, deception, or structural pressure shaped the decision.

Whether a punishable slavery exists depends decisively on whether the victim was actually subjected to the power of the perpetrator and whether this situation excludes voluntary, informed consent. Even minor differences in living conditions, working conditions, financial or personal dependencies can fundamentally change the legal assessment.

Legal representation from the beginning is therefore essential. It ensures that evidence is properly collected, communication processes are correctly classified, and structural dependencies or false accusations are clearly worked out. Only with a precise legal analysis can it be determined whether a punishable slavery actually existed or whether the accusation is based on misunderstandings, intra-family conflicts, economic tensions, or incorrect assumptions.

Our law firm

• examines whether a slavery-like situation was legally given or whether voluntariness, contractual relationships, or a lack of dependence speak against criminal liability,
• analyzes statements, message histories, work and living situations, as well as structural dependencies for contradictions and actual bonds,
• accompanies you through the entire investigation and court proceedings and protects you from one-sided or incomplete representations,
• develops a defense strategy that precisely and comprehensibly presents your actual role, the living conditions, and the nature of the relationship to the victim,
• and ensures that your rights in the proceedings are consistently protected against the police, public prosecutor’s office, and court.

A professionally sound, structured, and objective defense ensures that the accusation of slavery is legally correctly examined and the actual living conditions are comprehensively taken into account. In this way, you receive a clear and professional representation that aims at a fair and comprehensible solution.

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FAQ – Frequently Asked Questions

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