GERMAN TIP CONVICTION AND SENTENCING STATISTICS

UNCLAS SECTION 01 OF 02 BERLIN 001094

SIPDIS

SENSITIVE
SIPDIS

DEPT FOR EUR/AGS, EUR/PGI, G/TIP, DRL/IL, INL/HSTC, AND PRM

E.O. 12958: N/A
TAGS: KCRM PHUM KWMN KJUS SMIG ELAB PREL PGOV GM
SUBJECT: GERMAN TIP CONVICTION AND SENTENCING STATISTICS

REF: A. BERLIN 601


B. 05 STATE 229099

C. FISHER/CONWAY EMAIL 4/20/2006


1. (U) This message is sensitive but unclassified. Please
handle accordingly.

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Summary
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2. (SBU) German prosecutors seek maximum sentences for
traffickers by whatever means they can, according to a recent
Max Planck Criminological Institute study. For TIP crimes,
this means the Ministry of Justice's published trafficking
statistics do not fully capture TIP sentences. In some
cases, prosecutors focus on the non-TIP related crimes of
traffickers if they determine the chances of a successful
prosecution are higher than proceeding with TIP charges.
Moreover, MOJ statistics do not include cases where
traffickers were convicted on multiple charges and one of the
charges, such as rape or murder, carried a higher maximum
penalty. In cases that do fall in the "trafficking" category
as the MOJ has it set up, statistics report only the sentence
handed down for the trafficking violation and not the
aggregate sentence for all convictions. Therefore the
published trafficking statistics under-represent the total
number of traffickers sentenced and under-report the severity
of sentences handed down. The Max Planck study notes
trafficking sentences were generally more severe than those
handed down for similarly serious crimes. The MOJ statistics
also give the mistaken impression that a high percentage of
traffickers receive suspended sentences. However, the Max
Planck study supports German prosecutors' claims that those
who receive suspended sentences often played auxiliary roles
in the overall trafficking operation, e.g., telephone
operators, whereas TIP ringleaders received the harshest
sentences. END SUMMARY.


3. (U) A study released in March 2006 by the Max Planck
Criminological Institute indicates statistics on trafficking
convictions compiled by the German Ministry of Justice do not
fully capture the extent to which Germany prosecutes
traffickers or the severity of sentences handed down. The
study analyzed court documents from trafficking cases between
1996 and 2002; conviction data for trafficking cases listed
in the non-public Federal Central Register between 1996 and
2000; 49 court files of trafficking investigations from ten
different federal states in the period 1994-2002; responses
gathered from written questionnaires completed by 550 police,
prosecutors, and judges; and personal interviews with police,
prosecutors, and judges.

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Most Traffickers Charged with Non-TIP Crimes
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4. (SBU) According to the study, courts convicted individuals
on charges of trafficking in only 21 percent of
trafficking-related court cases between 1996 and 2002.
However, in 72 percent of the trafficking-related cases (22
percent pre-trial; 50 percent during the actual trial)
prosecutors dropped the trafficking charge and, instead,
charged suspected traffickers with human smuggling, tax
evasion, or other crimes in order to improve the chances of
successful prosecution. The study also notes police reported
shifting the focus of approximately one-quarter of
trafficking investigations to human smuggling or other
violations before the case was even assigned to a prosecutor.
According to Petra Leister, a senior prosecutor who has
spent the past eight years prosecuting TIP cases in Berlin,
prosecutors tend to focus on outcomes and, therefore, pursue
charges which are easiest to prove and will result in jail
time. For instance, she said, human smuggling is much easier
to prove than TIP. Leister noted the frequent unfortunate
lack of credible testimony from victims plays a key role in
prosecutors' decisions to charge traffickers with other
crimes.


5. (SBU) The Max Planck study reached similar conclusions,
stating successful prosecution of traffickers often hinges on
victim testimony. To prove a trafficking crime has been
committed, prosecutors must convince the court the accused
exploited or coerced the victim by violence or threat of
violence. A case can be made or broken, therefore, on a
victim's willingness to testify or a victim's credibility on
the witness stand, including under possibly unpleasant
cross-examination. Respondents cited psychological pressure
and fear of retribution as key factors in victims' refusal to
testify. When victims do testify, Leister explained, their

BERLIN 00001094 002 OF 002


testimony is often inconsistent, sometimes contradicts
testimony offered by other victims, and, as a result, is
easily picked apart by defense attorneys. (NOTE: Germany has
well established victim protection programs to facilitate
victim testimony )- these include access to court-appointed
translators, temporary housing, and counseling services.
That said, law enforcement and NGO representatives often
state that the trauma TIP victims have suffered makes some of
them unwilling or unable to testify despite all the support
they receive. END NOTE.)

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Statistics Do Not Reflect Severity of Sentences
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6. (SBU) According to Guntram Hahne, another senior Berlin
prosecutor, the MOJ's methodology does not consider multiple
convictions or tally aggregate sentences for multiple
convictions. As a result, MOJ statistics fail to capture the
full scope of German efforts to bring traffickers to justice
or the actual penalties handed down. To address shortcomings
in the MOJ's statistical analysis, the Max Planck study
reviewed a second set of data published in the Federal
Central Register (BZR),a non-public register compiled by the
Federal Prosecutor General that lists legally binding
criminal court convictions. The BZR data revealed 87 percent
of persons convicted of aggravated trafficking between 1996
and 2000 were also convicted on other offenses. According to
Leister, prosecutors often charge traffickers with drug or
weapons crimes, human smuggling, tax evasion, and forgery.
As a result, the total prison sentence a trafficker receives
is generally underreported because MOJ statistics only list
the sentence handed down for the actual TIP conviction and
not/not the aggregate sentence for multiple convictions.


7. (SBU) Other MOJ statistical conventions also mask TIP
convictions: the MOJ statistics group cases involving
multiple convictions under the conviction with the highest
maximum penalty (not/not the highest sentence actually handed
down) and, again, list only the sentence for that conviction,
rather than the aggregate sentence. For instance, if an
individual is convicted of both TIP and rape, MOJ lists the
conviction as rape, not TIP. According to the BZR data used
in the Max Planck study, 13 percent of persons convicted on
trafficking charges were also convicted for rape. However,
these convictions are not listed among TIP convictions in MOJ
statistics. After factoring in the high number of multiple
convictions, along with the high precedence of convictions on
non-TIP charges, the Max Planck study concluded German
efforts to prosecute traffickers are "relatively vigorous"
and, in comparison to other similarly serious crimes,
characterized the rate of non-suspended prison sentences for
traffickers as being "strikingly" high.

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Number of Suspended Sentences Misleading
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8. (SBU) The Max Planck study supports what German
prosecutors have long maintained: suspended sentences are
generally handed down to individuals, such as drivers and
telephone operators, who played an auxiliary role in the
crime. The study's analysis of BZR data revealed MOJ
statistics group together and do not differentiate between
convictions for trafficking, aiding and abetting trafficking,
and attempted trafficking. Indeed, the study revealed 11
percent of those the MOJ statistics refer to as "traffickers"
were actually not traffickers, but auxiliary personnel
convicted on charges of aiding and abetting and nine percent
for attempted trafficking. Of the remaining 80 percent,
Leister explained, courts generally hand down suspended
sentences to drivers, telephone operators, absentee property
owners, and, less frequently, to individuals who confess and
subsequently agree to testify against traffickers or who,
prior to their arrest, provided some sort of assistance to
TIP victims. Leister said TIP ringleaders receive the
harshest sentences or, in the absence of victim testimony,
are charged with other crimes.


9. (SBU) Leister confirmed it is standard German practice for
judges to suspend prison sentences of two years or less for
all crimes, not just TIP crimes. She explained those who
receive suspended sentences are generally required to perform
community service, pay penalties, and/or meet regularly with
a parole officer. Furthermore, German authorities enter the
names/fingerprint records of these individuals into law
enforcement databases.

TIMKEN JR