Strafrecht und Strafprozessrecht

The lower court issued an expedited injunction against the petitioner. The petitioner filed, inter alia, a constitutional complaint appealing the injunction, which prohibited him from approaching or contacting his partner and from re-entering the flat he shared with her to protect her from his domestic violence. The Court did not allow the constitutional complaint, inter alia, on the grounds that the injunction did not breach the complainant’s constitutional rights.

BGH 4 StR 29/23 Germany v. Offender; German Federal Supreme Court (Bundesgerichtshof); decision dated August 17, 2023

Aggravated rape with weapons, which is punishable under Section 177 Para 7 No. 2 StGB (Strafgesetzbuch – StGB) with a prison sentence of no less than 3 years (sexual assault, rape), requires that the perpetrator carries an instrument to prevent or overcome the resistance of another person by force or threat of force.

The defendant was convicted of trafficking in persons for the purpose of prostitution after the lower court found that he lured the victims from Hungary into Austria under the false pretext that they could work as cleaners in an Austrian Hotel and then threatened them with injury or death to force them to work as prostitutes. The Austrian Supreme Court upheld the conviction on appeal. The Regional Court of Vienna’s decision from May 25, 2011 [021 Hv 8/11i-48] was not available at the time of publication.

The decedent’s husband shot and killed her in front of their two daughters in 2002. Before her death, the decedent had obtained three expulsion and prohibition-to-return orders against her husband in response to repeated episodes of domestic violence. The Vienna Public Prosecutor denied police requests to detain the decedent’s husband, and stopped the prosecution against him on the basis of insufficient grounds two days before the murder. Police reports show that the law enforcement failed to respond in a timely fashion to the dispute that resulted in the decedent’s murder.

The petitioners were found guilty of violating several provisions of the Austrian Criminal Code after the regional court found that they acted as a criminal organization to recruit victims by means of extortion, massive violence, penalties for not performing sex work, and threats, and arranged for the victims’ transfer and accommodation in brothels in Austria. After an appeal on procedural grounds, the Austrian Supreme Court upheld the convictions. The Regional Court Leoben’s decision from April 28, 2009 [13 Hv 122/08x-492] was not available at the time of publication.

The decedent sought to divorce her husband who threatened to kill her and her children if she ever initiated divorce proceedings. In response to the decedent’s numerous reports of assault and dangerous criminal threats, the Austrian police issued an expulsion and prohibition-to-return order against her husband. The police also recommended that her husband be detained, but the Vienna Public Prosecutor twice denied the request.