Abuse of vulnerability Criminal liability Forced labour Human trafficking
Section 104a criminalises human trafficking, defined as the recruitment, harbouring, transportation or transfer of an adult to a third party using dishonest means — including using force or severe threats, deception, abuse of a position of authority or a situations of distress, or mental disease or any condition rendering the person defenceless, intimidation or the granting or accepting of benefits for surrendering control over that person— for the purpose of exploitation. This offence is penalised with 6 months to 5 years of imprisonment. Under this provision, exploitation encompasses sexual exploitation, organ trafficking, labour exploitation, begging and exploitation for the commission of criminal activities.
This provision also criminalises child trafficking, defined as the recruitment, harbouring, transportation or transfer of a minor to a third party, for the purpose of exploitation.
Exploitation within the meaning of section 104a includes labour exploitation, which is defined in Austrian jurisprudence as the ruthless and lasting oppression of the vital interests of the victim. The perpetrator must have had the intention to oppress the vital interests in the long term. It is irrelevant whether the perpetrator or a third person benefits from the exploitation.
An additional important element of the concept of exploitation, is the significant disproportionality between the services delivered by the exploited person and the reward received in exchange. Not only can lack of payments amount to exploitation, but also particular working conditions can be assessed as an infringement of vital interests. This would include inter alia circumstances in which the person either did not receive any, or received entirely inadequate remuneration for his or her work for a lengthy period of time. Exploitation also includes instances where regular working hours were excessively exceeded or where working conditions were unacceptable. Payments that are considered as falling slightly under the minimum wage, as well as the occasional exceeding of average working hours would not be considered exploitation on their own.
Section 104a (unofficial translation)
(1) Any person who recruits, houses or otherwise accommodates, transports or offers or passes on to a third party and adult using dishonest means (paragraph 2) against this adult with the deliberate intention of the adult’s exploitation (paragraph 3), is to be punished with a prison sentence of at least six months up to five years.
(2) Dishonest means are defined as using force or severe threats, 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 taht person.
(3) Exploitation encompasses sexual exploitation, exploitation through organ transplantation, labour exploitation, begging and exploitation of conducting criminal activities.
(4) A person who commits the criminal act 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 tot he person, is to be punished with a prison sentence of at least one year up to ten years.
(5) A person who recruits, houses or otherwise accommodates, transports or offers or passes on to a third party a minor (under 18 years of age with the deliberate intention of the adult’s exploitation (paragraph 3), is to be punished with a prison sentence of at least one year up to ten years.
/Austria / Criminal Code
The Austrian Criminal Code criminalises slavery and trafficking in human beings. The Code was amended by the Criminal Amendment Act in 2013, with the purpose of transposing EU Directive 2011/36/EU on Combating Trafficking in Human Beings.
The amendment entered into force on 1 August 2013, and included changes such as a more comprehensive enumeration of forms of exploitation (including begging and criminal activities explicitly); an increase of the penalties for the basic human trafficking offence from up to three years of imprisonment to between six months and five years of imprisonment; and an increase of the penalties for trafficking of children between 14 and 18 years of age from up to three years to one to ten years.