On the basis of art. 189a k.k. the crime of trafficking in human beings has been distinguished. The particular need to penalize this crime is additionally emphasized by the fact that paragraph 2 of the above-mentioned The provision deals with punishable preparation to commit the above prohibited act. The staged form in the form of preparation is not automatically sanctioned in the case of every type of crime.
The provision in the form of Art. 189a k.k. was worded quite succinctly. This leads to the observation that he creates a norm only in conjunction with Art. 115 pairs 22 k.k., which contains a legal definition of „trafficking in human beings”. Therefore, in order to convict someone for committing (or preparing for) the above-mentioned of the act, it should first be examined whether his behavior fulfilled the features provided for in Art. 189a k.k. in relation to joke. 115 pairs 22 k.k. The second of these provisions states that „trafficking in human beings is the recruitment, transport, delivery, transfer, storage or reception of a person using:
- violence or unlawful threats,
- abductions,
- deceit,
- misleading or exploiting an error or inability to properly understand the action taken,
- abuse of the relationship of dependence, exploitation of a critical situation or state of helplessness,
- granting or accepting a financial or personal benefit or a promise thereof to a person exercising care or supervision over another person
– for the purpose of its use, even with its consent, in particular in prostitution, pornography or other forms of sexual exploitation, forced labor or services, begging, slavery or other forms of exploitation degrading human dignity or for the purpose of obtaining cells, tissues or organs contrary to the provisions of the Act.
If the behavior of the perpetrator concerns a minor, it constitutes trafficking in human beings, even if the methods or means listed in points 1-6 have not been used.”
Quoting the full wording of Art. 115 pairs 22 k.k. is of considerable importance in the context of the analysis of trafficking in human beings in terms of the specificity of the phenomenon intended by the legislator. Until 2010, the lack of a legal definition caused problems of interpretation. As of today, the legislator requires that behaviors that are carried out alternatively in the form of: recruiting, transporting,
the delivery, transfer, storage or receipt of the victim. This catalog, in contrast to the list of motives driving the offender (which is further discussed in Article 115(22) of the Penal Code), seems to be a closed catalog. More than one verbal feature means that the crime of trafficking in human beings can be considered multivariate, i.e. to fulfill the features it is enough to undertake at least one of the behaviors specified by the legislator.
Another aspect worth paying attention to is the directional nature of the act under consideration. In the current legal status, the criminal’s action must be marked by a goal. The subjective side is therefore to be characterized by the motivation of the perpetrator in the form of the intention of subsequent use of the victim. An exemplary catalogue, as mentioned above, was distinguished by the legislator on the basis of art. 115 pairs 22 k.k.
It is also important to point out the previously ambiguous jurisprudence as to whether trafficking in human beings constitutes a crime also when the subject of the act is one person. Interpretation of Art. 189a k.k. in relation to joke. 115 pairs 22
k.k. leads to the clear conclusion that the answer to this question should be affirmative. Literally, in the provision, the legislator treats an action directed against a „person” (singular). However, the lack of a legal definition previously caused a judiciary ferment, which is why the introduction of Art. 115 pairs 22 k.k. considered a legislative success. A positive example is the line of jurisprudence represented in the judgment of SA in Lublin of 18.12.2001, II AKa 270/01, where the court pointed to the possibility of recognizing as trafficking in human beings a transaction made in connection with one victim.
Finally, it is also worth considering the issue of how the criminal acts. The legislator lists the methods used by the perpetrator when trafficking in human beings. Therefore, it is important not to forget about this issue when examining the implementation of signs.
