3. Testimony of similarly situated workers who testiied they had not been exploited, forced to live on site or prohibited from leaving after work.
4. Photographs of the premises showing that the factory was surrounded by a 16-foot- high, barbed wire capped wall. The photos also showed the housing in which the
victims lived and that this housing was inside the wall of the compound. This case is of particular interest because it highlights typical issues in cases of traficking
by means of different assessments of the evidence by the trial court and the court of appeals. These revolve around the following weaknesses in the mosaic of evidence:
1. Testimony of other similarly situated workers: A central weakness in the mosaic of evi- dence concerned similarly situated workers who testiied that they were not exploited,
were not forced to live on site and could leave the factory after work. The trial court did not view these testimonies as central in discounting the prosecution’s case in
view of the alleged victims’ testimonies and the photographs adduced by the prosecu- tion. However, the court of appeals did view these testimonies as strong evidence
militating against conviction. 2. Inconsistencies in alleged victim testimony: The testimony of the alleged victims included
some inconsistencies. The trial court did not consider that these inconsistencies impugned the credibility of the alleged victims, because the core of the alleged
victims’ testimonies was consistent and because the inconsistencies could be explained in light of the long delay between the rescue and the court hearing. In addition,
there was also support in the form of photographic evidence and testimony of police and social workers. However, the court of appeals viewed the inconsistencies as
impugning the credibility of the victims, especially in view of the testimony of similarly situated workers.
3. Alleged victim consent to their situation: In its exoneration of the defendants, the court of appeals relied heavily on the seeming consent of the alleged victims to their situ-
ation and on the innocent behaviour of the defendants. Thus, the court stressed that the alleged victims had voluntarily crossed the border into Thailand in order to work;
that there was no indication of unwillingness to work during the police raid on the premises; that it was agreed that the defendants pay transportation costs from the
alleged victims’ villages which would then be deducted from the victims’ wages; that there was no restriction of freedom on the alleged victims’ freedom beyond what was
done in the case of other workers and that the motivations of the defendants were innocent in this regard see next subsection.
4. Restrictions of freedom or innocent caution: Whereas the trial court considered the alleged victims’ residence within the walls of the factory and prohibition to exit
after work hours to be a restriction of freedom, the court of appeals found innocent explanations for this. For example, the defendants provided accommodation to all
workers, and not only to the victims, not for the purpose of restricting freedom, but merely for convenience, as the nature of work required the workers to stay in
the factory many hours; the defendants did not allow the alleged victims to leave the factory because they feared they would be arrested by police due to their illegal
status. In addition, it was pointed out that the defendants did occasionally allow the alleged victims and other workers to leave the factory to visit temples and go
to hospitals.
5.8 Case No. 8959—2012 Egypt
649
Case No. 8959-2012 Egypt involves a diverse chain of actors who carried on a traficking for prostitution ring, with each defendant fulilling a different role. While some were profes-
sional criminals, others were the parents of the victims and clients who desired to engage in sexual relations under the screen of false Orfy marriage contracts.
650
The case raises various issues including victim consent and how to prove the intentional involvement of a chain of
defendants in the traficking. It also raises the issue of when family members of victims can be considered complicit in traficking them.
The case involved a variety of evidence which included testimonies—of victims, their parents, two police oficers and two neighbours; expert evidence—in the form of a medical report
and a report of a forgery expert; documentary evidence in the form of bogus marriage contracts, receipts between two defendants, information and lists of the names of the victims
found in the home of the third defendant; “real evidence”, including a photograph of one of the victims, was also found in the third defendant’s home.
The mosaic of evidence included vulnerabilities some victims were minors and all were young; they were poor; and parents were complicit in the traficking; a complex web of
deception and severe exploitation in prostitution.
A criminal organization colluded to arrange false marriages between young girls in dire economic straits, some of whom were minors, and men from the Gulf States in order to
prevail upon the girls and their parents to allow them to give sexual services to these men under cover of false marriage contracts. In addition to this basic deception, there were others
used to support it. One defendant pretended to be a lawyer, which enabled him to issue false Orfy marriage certiicates. Yet another defendant was responsible for constructing an artiicial
hymen for the victims so that they could appear to be virgins. This was done in order to be able to charge higher fees and enable the girls to attract new customers. Two of the defend-
ants prepared two private apartments for the purpose of prostitution. The case also included four defendants who were men from the Gulf States who desired to engage in sexual relations
with the young women. Another three defendants were the parents of victims who facilitated the prostitution of their daughters in return for inancial gain and took them to the apart-
ments used as brothels to offer them to the other defendants.
Kinds of evidence in this case included: 1. Testimonial evidence:
a Victims’ testimony – One victim testiied that one defendant had arranged more than one marriage for her in exchange for proits which were divided between
them. She added that one of her marriages had only lasted for 10 days and that she had remarried before the lapse of the period required by law.
b Police witnesses – testiied regarding the investigation and search warrant which revealed victims and clients in the house of the irst defendant and 95 false
649
Case No. 8959-2012, Criminal Court of Haram and Appeal No. 6772, Judicial Year 82, Egypt. This case is based on a summary and analysis of the decisions of the Criminal Court of Giza Province and the Court of
Cassation submitted by an Egyptian expert. The case is available in the UNODC Human Traficking Case Law Database UNODC Case No. EGY001.
650
See deinition of Orfy marriage contracts in previous footnote in section 2.5 on “Defendants’ out-of-court confessions”.
marriage contracts in the home of the third defendant. They also testiied regard- ing the defendants’ statements whereby they admitted that they facilitate this
type of marriage. 2. Neighbours’ testimonies: Neighbours to the premises in which prostitution took place
testiied that they noticed numerous girls and men regularly come to the house. 3. Documentary evidence: The most important form of documentary evidence was
95 “oficial marriage” contracts discovered in the home of the third defendant, which were used to deceive the victims that they were entering into marriages when, in
fact, they were prostituting themselves. Other documentary evidence included receipts between two defendants and lists of information and names of victims discovered in
the third defendant’s home. Another interesting piece of documentary evidence was a document provided by a Gulf Embassy in Cairo which attested to the fact that
one of the men from the Gulf States had oficial permission allowing him to marry in Egypt, thus conirming his innocence of any criminal intent.
4. “Real evidence”: A photograph of one of the victims was discovered in the home of the third defendant.
The trial criminal court convicted the professional criminals who had colluded at recruiting the girls, arranging the apartments, preparing the false marriage contracts and constructing
artiicial hymens of traficking in women for the purpose of prostitution in exchange for inancial awards. It exonerated the parents of the girls and the men from the Gulf States
who engaged in the sexual relations. Both the convicted defendants and the public prosecution appealed the case before the court of cassation.
The court of cassation conirmed the acquittal of the men from the Gulf States, but ordered a retrial of the others because the evidence did not justify differentiating between the parents
of the girls and the other defendants. Core issues raised in the case included:
1. How to prove knowledge of all defendants in the chain of traficking: The Trial Court addressed the issue of mens rea or criminal knowledge of the defendants regarding
the criminal purposes of the operation in a few contexts. The defendants, who by their own admission, knew of the actions of the fourth defendant, who was responsible
for constructing an artiicial hymen for the victims, demonstrated by this their intent to exploit the victims. On the other hand, in acquitting the clients, the court relied
on a document provided by a Gulf Embassy by which at least one client had oficial permission allowing him to marry in Egypt, which, being issued before the initiation
of criminal proceedings, proved his innocent intentions and that of his brother and friends in that they intended real marriage contracts. This court also acquitted the
parents of the victims, apparently in view of their testimony by which they were persuaded that the girls would be married and on the basis of fact that the network
had exploited their dificult inancial situation. The trial court considered that this fact negated the special intent required in traficking crimes. The trial court also
based its exoneration of the parents on the assumption that, as parents, they would want their daughters to be married through legitimate channels and would not inten-
tionally collude at engaging them in prostitution. This assumption was reversed by the court of cassation.
The court of cassation conirmed the acquittal of the clients on the basis of the trial court reasoning, whereby the document submitted by the Gulf Embassy was issued
before the initiation of criminal proceedings, thus proving that the clients had no criminal intent. However, it ordered a retrial in respect of the other defendants in
view of the following:
• The trial court had based its acquittal of the parents on mere assumptions and
speculations without any solid evidence to support it, and •
The evidence presented before the Trial Court should have produced a uniied conviction or acquittal of the professional criminals and parents alike, as the
evidence showed the parents knew the girls had been exploited in sham marriages several times.
2. Victim consent: Seemingly, the victims knew they would be called upon to engage in sexual relations with the men from the Gulf States. Even if they were initially deceived
and thought they would be married, when this transpired a few times, with little time elapsing between the marriages as testiied by one of the victims, they could seem-
ingly be viewed as consenting to their prostitution. In its decision, the court refers to Egyptian law which states that the consent of the victim to exploitation in any of
the forms of human traficking shall be irrelevant as long as any of the means stipu- lated in Article 2 of this law have been used and, in regard to minors, consent is
irrelevant even if no means have been used.
651
Since some of the victims were minors, even if they seemingly consented, this is irrelevant. As to the others—the trial court,
in convicting the defendants, may have relied on the MEANS of “deception” or “exploitation of a position of vulnerability or need”.
652
Such a position of vulnerability might be the victims’ poverty, their youth, or even the complicity of their parents in
the traficking. 3. When can parents be considered complicit? This complex case relects the heightened
dificulties present when family members of victims participate in the traficking process. In these cases, it is particularly dificult to decide if the family should be
convicted as perpetrators or seen as quasi victims whose vulnerabilities are being exploited. The trial court apparently accepted the parents’ claim that they did not
know the marriages were a sham and may have also considered the parents’ own inancial vulnerability. In addition, it seems to adopt an assumption that as parents,
they would want their daughters to be married through legitimate channels and would not intentionally collude at engaging them in prostitution. The court of cassation
ordered a retrial. In this, it seems to be expressing a doubt about the parents’ inno- cence, perhaps in view of the fact that the victims were exploited several times.
5.9 Siliadin European Court of Human Rights
653
The mosaic of evidence in this case includes subtle threats, deception, vulnerabilities consist- ing of immigration status, age, and lack of familiarity with language and culture, family
relationships, restrictions of freedom including by means of constant supervision, detention
651
See Law No. 64 of 2010 regarding Combating Human Traficking, Article 3.
652
Ibid. Article 2.
653
Siliadin v. France App. No. 7331601 ECHR, 26 July 2005, European Court of Human Rights. The case is available in the UNODC Human Traficking Case Law Database UNODC Case No. FRA010.
