“I ind and I hold that the victims of the offences charged are not the only witnesses by which prosecution can prove the that the [sic] victim of a crime is the only person who can give material
evidence against [a defendant]. What if it’s a situation where the victim dies, will that be the end of the case? The answer is no.”
Attorney General of the Federation v. Constance Omoruyi, Case No. B31C2004, High Court of Justice Edo State of Nigeria, Benin Judicial Division, 22 September 2006, Nigeria.
In some cases, while some victims testify, some fail to do so. Does this inevitably lead to an exoneration? The answer is no, but this depends on the circumstances of the individual case.
On the one hand, the absence of testimony from one or more victims in cases with multiple victims can present an impediment to conviction because the court may ind that the prosecution
failed in its duty to present the full picture or failed to produce the evidence because of its inherent weakness. However, depending on the circumstances of the individual case, a conviction
can still be attained, even when one or several victims does not testify in court. This is, for example, illustrated by the case Anware Okwuede Nigeria.
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In this case the defendant was found guilty of procurement for prostitution, organizing foreign travel which promotes
prostitution and deceitful inducement, even though one of the victims did not testify in court because she had died before the beginning of the trial. The court admitted the victim’s previous
statement to investigators in evidence and relied on it along with testimonial evidence from another victim. In addition, the defendant confessed to all the elements of the crime. This
provided suficient grounds to support the conviction of the defendant. Nigeria has a mixed legal system of common law, Islamic law and customary law.
Tools to assist courts in the absence of victim testimony: lessons learned
1. Examine the reason for failure to produce testimony Is the victim still alive? Has the victim disappeared? Is otherwise unavailable?
2. Examine if there is other evidence available and, if so, how much and how persuasive. 3. Check if there is a way to submit the victim’s statements instead of testimony naturally this
will tend to be easier in civil law jurisdictions.
2.3 Testimonial evidence of persons other than victims
The testimony of individuals who observed or interacted with defendants or victims of traficking can provide support for a traficking in persons conviction. An example of such
evidence is testimony of customers served by victims of traficking or of neighbours who reside in the vicinity of the premises who may be able to provide facts about the victim’s
situation. In addition to neighbours or customers, there may also be individuals similarly situated to the victim and law enforcement oficials. These testimonies may serve in place of
victim testimony, if the victim is unavailable, or can provide support for victim testimony. On the other hand, such testimonial evidence may also be used in order to secure acquittals.
The wealth of testimonies described below can provide practitioners with food for thought when organizing testimonial evidence in a given case.
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See Index of all cases.
In Case 2832-A Argentina,
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which resulted in the conviction of four defendants for traficking in persons for forced prostitution, the victims testiied. However, in addition the
court heard testimony from customers who were “regulars” at the brothel. Other testimonial evidence included individuals who lived near the brothel. The court deemed the testimony
of these other witnesses to be particularly important.
In Desabato y Vargas Leulan Argentina,
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the alleged exploitation of the victims was supported by testimony of a woman who had worked previously at the bar owned by one of
the defendants. This testimonial evidence conirmed that the victims did not handle money, that they were required to ask for permission to leave the premises and that there was a
system of ines in place that the victims had to pay. The defendants were convicted of the crime of traficking in persons for sexual exploitation, where the victims were older than
18 years of age.
In Kil Soo Lee United States,
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a case that resulted in a conviction of the defendant for holding workers in involuntary servitude and related charges, eyewitnesses from outside the
compound where the Vietnamese victims were held, corroborated the victims’ imprisonment and starvation claims. These witnesses testiied, for example, that on at least two separate
occasions they heard Vietnamese women behind barbed-wire fences crying for food and help. The court denied the defendant’s appeal and upheld the conviction.
Case No. 1685—2010 Egypt
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revolves around sexual exploitation of a minor by a man in his eighties by means of a sham marriage contract, which was facilitated by the parents
of the minor, a mediator and a lawyer. The court based its conviction on an array of evidence, some of which was witness testimony, corroborating the victim’s testimony. In particular, a
neighbour testiied that he had seen the defendant bringing young girls regularly to his house. Furthermore, the uncle of the victim testiied about what he knew about the incident from
his sister, who was one of the defendants.
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During the trial in the Criminal Court of Giza the irst defendant was convicted of the crime of sexual abuse and molestation of a minor
girl, while the victim’s parents, the mediator and the lawyer who oversaw the marriage for- malities were convicted of the crime of facilitating her exploitation in accordance with Article
291 of the Penal Code on child traficking and exploitation.
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In the domestic servitude case Alzanki United States,
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there was an array of testimonies, including from the police oficer who interviewed the victim immediately after she led the
apartment, and several nurses and a respiratory health specialist who had been in the defend- ant’s home to care for the defendant’s ailing child.
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This testimonial evidence helped to support the defendant’s conviction for involuntary servitude.
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Carrizo, Alcalde, Mendoza, 17 May 2011, case 2832-A, Argentina. The case is available in the UNODC Human Traficking Case Law Database UNODC Case No. ARG019.
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Desabato y Vargas Leulan, 9 August 13, File D 312, CONVICTION, Córdoba, Argentina. The case is avail- able in the UNODC Human Traficking Case Law Database UNODC Case No. ARG057.
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U.S. v. Kil Soo Lee, 472 F.3d 638 9th Cir. 2006, United States of America. The case is available in the UNODC Human Traficking Case Law Database UNODC Case No. USA015.
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Case No. 1685-2010, Criminal Court of Giza, Appeal No. 9801, Judicial Year 80. A retrial was ordered by the Court of Cassation, Egypt. The case is available in the UNODC Human Traficking Case Law Database
UNODC Case No. EGY004.
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In Egypt the criminal court may rely on hearsay testimony, if it believes that it is true and faithful and is consistent with the case’s facts.
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The court of cassation ordered a retrial as a result of laws in the verdict and the case was accordingly sent for a retrial. No second appeal was submitted to the court of cassation.
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U.S. v. Alzanki, 54 F.3d 994 1st Cir. 1995, United States of America.
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The appeals court offered these facts as part of the background of the case.
Policelaw enforcement oficers as sources of testimonial evidence Law enforcement oficials can often be an important source of testimonial evidence in traf-
icking in persons case because they can give irst-hand accounts of the situation in which they found the victim when he or she was rescued and, for example, in the framework of an
entrapment operation. Furthermore, law enforcement oficials can be a good source of obser- vations that may shed light on the relationship between the victim and the traficker or other
incriminating or exculpatory evidence uncovered during the investigation.
In Mwakio Kenya,
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a police oficer testiied that he encountered both the victim and the defendant in Tanzania. During that encounter the defendant claimed to be the husband of
the victim, although the victim vehemently denied this and stated she was abducted. The court denied the defendant’s appeal for his convictions of deilement and child traficking for
sexual exploitation.
In Sanchez Philippines,
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a case concerning the prostitution of minor boys for homosexual relations, the defendant was arrested by police as a result of an entrapment operation. He
was convicted of traficking in persons and child abuse. Testimonies of several police oficers involved in the operation were a piece of key evidence in this case. In Hirang y Rodriguez
Philippines,
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another case concerning sexual exploitation of minors, there was an entrap- ment operation about which the police oficers testiied in court. The defendant was convicted
of qualiied traficking in persons i.e., aggravating circumstances.
In Case No. 8959—2012 Egypt,
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the testimony of the police oficer who conducted the investigation and executed the search warrant was crucial in convicting members of the
traficking network. He testiied that through the enquiry of the General Police Department for the Protection of Morals, it was established that some females were being enticed to
engage in prostitution in the context of false marriage promises. He added that he searched the irst defendant’s house, where he found the victims and clients and apprehended the irst
defendant. Upon searching the house of the third defendant, he seized a bag including Orfy contracts unoficial false marriage contracts
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and a photo of one of the victims.
In Farrell United States,
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the chief of police and county attorney both testiied about their encounter with the victims while they were still at the hotel owned by the defendants.
As part of the factual background the court highlighted the testimony of the county attorney
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George Hezron Mwakio v. Republic, [2010] eKLR, Criminal Appeal 169 of 2008, High Court of Kenya at Mombasa, 28 June 2010, Kenya. The case is available in the UNODC Human Traficking Case Law Database
UNODC Case No. KEN002.
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People of the Philippines v. Albert D.J. Sanchez, Criminal Case Nos. 05-239627-31, Regional Trial Court, National Capital Judicial Region, Branch 48, Manila, 29 October 2009, the Philippines. The case is available in the
UNODC Human Traficking Case Law Database UNODC Case No. PHL009.
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People of the Philippines v. Jeffrey Hirang y Rodriguez, Criminal Case No. 135682, Regional Trial Court of Pasig City, National Capital Judicial Region, 25 June 2011, the Philippines. The case is available in the UNODC
Human Traficking Case Law Database UNODC Case No. PHL049.
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Case No. 8959-2012, Criminal Court of Haram, Appeal No. 6771, Judicial Year 80. This case is based on a summary and analysis of the decisions of the Criminal Court of Giza Province and the Court of Cassation. The
case is available in the UNODC Human Traficking Case Law Database UNODC Case No. EGY001. Further details can be found in the in-depth analysis in section 5.8 of the Case Digest.
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According to the Glossary of The Marriage Contract in Islamic Law in the Shari’ah and Personal Status Laws of Egypt and Morocco, Orfy marriage is a customary marriage 1992, 165. In The Laws of Marriage in Islam, the
meaning of customary marriage is further explained as a customary marriage which is not oficially registered. See http:www.refworld.orgdocid3ae6ab8910.html for further information.
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U.S. v. Farrell, 563 F.3d 364 2009, United States of America. The case is available in the UNODC Human Traficking Case Law Database UNODC Case No. USA006. For detailed facts, see the in-depth analysis in sec-
tion 5.4 of the Case Digest.
