A Licence to Torture

Facing lenient sentences, human traffickers are learning how to use Austrian law to their advantage. Indifferent public prosecutors may be making themselves complicit

Top Stories | Anneliese Rohrer | May 2012

The police officer touched his index finger to his lips, signalling silence. With his other hand he shooed pedestrians away. The quiet gloom of a foggy November night had just been disrupted. At 1:00, 15 police cars with glaring lights had barricaded the residential street in the 2nd District, and dozens of troopers, including heavily armed special forces, had taken their positions.

It was the night of 19 November 2011, the night of the big raid to bust a human trafficking organisation in an operation called "Montana" – a reference to Bulgaria’s most impoverished region where most of the women came from. They had been trafficked into the sex industry in Austria, and two men had been drafted into the begging business on the streets of Vienna. Victims were rescued; arrests were made.

Four months later, on 21 March, the sound of applause echoed in the halls of a Viennese courtroom, sending shivers down the spines of the victims who had just testified against the perpetrators. Six of the traffickers arrested that night in November had just received lenient sentences, handed down by a female judge. The prosecutor remained silent; he did not appeal. "He seemed to be happy with the verdicts," recalls a police officer who attended the proceedings.

"Trafficking is torture," states the Helen Bamber Foundation, a British charity that works with "survivors of cruelty". In Vienna, the torturers, five men and one woman, got off lightly. One of them was convicted to four years because he was a repeat offender; the maximum could have been ten years. Others got a few months, and two walked out of the courtroom as free men. In the media, the case was largely ignored.

The weakest link is the judiciary

"Verdicts like these confirm what we have known for a long time: the judicial system is one of the weakest points in the fight against human trafficking. This verdict is an invitation to belittle such crimes and a signal to the criminals that they have little or nothing to fear legally. It is high time that judges and prosecutors inform themselves more substantially about human trafficking," says expert Helga Konrad, a former Special Representative on human trafficking to the Organisation for Security and Cooperation in Europe (OSCE), an international organisation.  A year ago a seminar for judges and prosecutors on human trafficking had to be cancelled due to a lack of interest. A second attempt has been more successful, but hardly sufficient, reports a member of the special force against trafficking of the Vienna police. He does not want to be identified.

The soft verdict is also an "invitation" to organised crime to recruit at least one member younger than 21 in order to be tried in a juvenile court, as was the case in March. "It is the law," Judge Ulrich Nachtelberger explains why five adults were tried in a juvenile court. If members of a group are all indicted for the same crime, the defendants cannot be tried separately: Hence the juvenile court. "Criminals are usually smart enough to use the law to their greatest advantage," added Nachtelberger, who was designated last September to be the sole presiding judge in human trafficking cases in Austria.

"Verdicts like these send a fatal signal to the traffickers," comments a policeman involved in the case on condition of anonymity. "Word gets around very fast in those circles." Not only can offenders minimise their risk by having a young member in the group, he said, it will also be very hard to find victims in the future who are willing to testify against their traffickers. In this case, some survivors returned from Bulgaria just for the court appearance. What their lives will be like in their hometowns now is anybody’s guess, and judging from the verdict, appears to be nobody’s concern. Helga Konrad deplores the outcome: "The opportunity to send a different signal by handing down harsh, pre-emptive sentences has been missed."

Institutional xenophobia

While declining to comment on the Montana case itself, Heinz Patzelt, the general secretary of the Austrian chapter of Amnesty International, a human rights watchdog, highlights the case’s wider social and political context. "Foreigners are generally considered undesirable in Austria. [So] no door will be open to them," he says. Therefore, victims of human trafficking seldom get the protection they need; they are under constant suspicion of visa fraud, are denied credibility, and are threatened with deportation at the earliest opportunity. Even victims who agree to testify in court – sometimes at the risk of their own lives – are rarely granted the right to stay in Austria. And pictures of their injured bodies are considered insufficient evidence for the brutality they suffered.

Patzelt is convinced that a tough pre-emptive verdict is paramount to challenging the underlying attitudes within Austrian culture. "The state is not willing to honour evidence against traffickers by granting victims residence rights because it fears a pull-effect," he notes. "This is extremely cynical." The assumption that people would voluntarily submit themselves to brutal treatment just to blag residency in Austria is inhuman, he suggested, an even more dubious assumption when reporting to the police or testifying in court could lead to immediate deportation.

"The ignorant, embarrassing and shameful attitude in Austria totally ignores the reality of human trafficking," Patzelt says. Survivors should be granted permanent residence in order to encourage them to press charges against their traffickers.

Currently, survivors of human trafficking who agree to cooperate with the police are granted a three-month stay only. Still, there has been one positive change: Survivors now have the right to apply for a work permit during their limited stay in Austria.

There are alternatives: In Italy or the U.S., for instance, victims of human trafficking who cooperate with the police and identify their tormentors, automatically receive a residency permit.

No pressure from civil society

In Austria, however, as elsewhere in the West, there is no effective pressure from civil society for politicians to get serious about the fight against human trafficking – despite the fact that human trafficking has boomed in the economic crisis. The demand for cheap labour and services (including those in the sex trade) is growing. Nevertheless civil society in Austria and elsewhere turns a blind eye to modern day slavery.

In the absence of pressure from the public, decision makers find it easy to ignore the problem. There is little sense of urgency in the media, among politicians, and consequently in the justice and law enforcement systems to come to grips with the issue.

Even if the police does its best to arrest perpetrators – and the Vienna police indeed registers frequent successes – its efforts are frustrated in the courtroom, as prosecutors are indifferent towards or ignorant of the issue.

Rumour has it that more than once, a prosecutor, who is asked to charge a trafficker on the strength of one victim’s testimony, turned the law enforcement agencies down: "One victim? Not worth my time!"

In such cases, the victim is simply deported, and there are no "cumbersome" legal proceedings. The prevailing attitude seems to be that there is little to be gained, politically or professionally, by putting traffickers behind bars and protecting victims; they are all "foreigners" anyway. Reports from the police officers involved support that assessment.

The irony in Austria’s case: Ten days prior to that infamous applause in the Viennese courtroom, a hearing had taken place in the Austrian parliament on how to combat human trafficking. Most of the speakers called for a swift implementation of the necessary steps. After the Montana arrests in November, the Minister of the Interior Johanna Mikl-Leitner had demanded that the perpetrators face "the full rigour of the law."  Her demand was ignored.

Shortly afterwards, however, a 15-year-old Romanian girl was rescued from enslavement in brothels in Carinthia. Now, there is another opportunity to prove that torture is not seen as a trivial offense in Austria.


Anneliese Rohrer was a long-time correspondent for the Austrian daily Die Presse, and variously section head for domestic and international politics. She produced the 2009 documentary Fatal Promises about human trafficking with director Kat Rohrer.

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