The following cases are examples of cases in which debt bondage appears:
In the case of Farrell United States,
452
the workers’ debts increased progressively. First the employers charged each worker an excessive sum of 1,200 as the purported cost of a
processing fee, although this was the sum they had paid for all the workers together. They also charged workers for transportation to and from the Philippines and subsequently began
to charge them for transportation to and from work and for personal items that they supplied, but that the workers neither requested nor desired. All this transpired along with a drastic
reduction of the salary workers had been promised, so that they were required to obtain outside employment in order to repay the debt. In addition, even though the employers paid
only a sum of 375 per month for renting premises which housed the workers, they charged the seven workers who resided there 150 each, thus reaching a total of 1,050 per month.
The defendants were convicted of peonage and other charges.
In Ho and Anor Australia,
453
in convicting the defendants of slavery offences, the court stressed that they had contracted with the victims by means of “highly exploitative debt
arrangements”. This pattern recurs in Wei Tang Australia,
454
where the defendants were convicted of slavery offences. Here the victims signed a contract with the defendants promising
to work as prostitutes in Australia. The contracts stated that each of the victims would owe a debt of between 40,000–45,000 to the defendant. The victims were required to work six
days a week, receiving no money for their services as this was seen as payment for their debts; only on the seventh day of each week were they permitted to receive payment for
services. A similar case from Australia is Seiders Australia,
455
where the defendants were convicted of servitude charges.
In Ministerio Publico Federal v. Gilberto Andrade Brazil,
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19 workers were exploited and housed in slave-like conditions at the defendant’s farm. All the workers incurred an initial
debt that was impossible to repay. This was because the defendant artiicially maintained the debt, including through charging excessive prices for clothes, food, medicines and even
working tools. The defendant was convicted of charges including slave labour and fraudulent recruitment.
In Ibarra Argentina,
457
the court noted that the defendants created a situation of debt bondage for the victims. They did not pay the victims and they charged them for food, clothes
and other necessities. In addition, the victims were ined as punishment for bad behaviour. The defendants were convicted of aggravated human traficking and economic exploitation
of the prostitution of others through the use of coercion and intimidation.
In ECLI:NL:RBGRO:2000:AA8975 Netherlands,
458
a Nigerian victim was told that she could work as a hairdresser in the Netherlands. The victim was told she had a debt of 35,000
and threatened by means of “juju” that if she did not pay, horrible things would happen to
452
See Index of all cases. For detailed facts, see the in-depth analysis in section 5.4 of the Case Digest.
453
See Index of all cases.
454
R. v. Wei Tang, 2009 23 VR 332; 2009 233 FLR 399; [2009] VSCA 182 17 August 2009. For detailed facts, see the in-depth analysis in section 5.3 of the Case Digest.
455
Sieders v. R.; Somsri v. R. [2008], NSWCCA 187, 13 August 2008, Court of Criminal Appeal, Australia. The case is available in the UNODC Human Traficking Case Law Database UNODC Case No. AUS005.
456
See Index of all cases.
457
Ibarra, Defeis, Sosa, y Córdoba, Expte. 1811, No. 2 Oral Criminal Federal Court of Rosario, 2012-06-29, Argentina. The case is available in the UNODC Human Traficking Case Law Database UNODC Case. No. ARG058.
458
Groningen District Court, 12 December 2000, ECLI:NL:RBGRO:2000:AA8975, Netherlands. Information on this case was supplied by an expert from the Netherlands.
her and her family. She was forced to work as a prostitute. The defendants were convicted of traficking.
In Borisov Israel,
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a Moldovan victim was exploited as a prostitute in Israel. Debt bondage was expressly mentioned by the Supreme Court as an important factor in the
conviction for traficking for the purpose of prostitution.
Non-exhaustive examples of how to establish debt bondage
• Establishing an initial debt not related to actual expenses • Charging exorbitant prices for items or services supplied by employer
• Forcing victim to purchase items he does not want or need • Charging victims for services for which the employer never paid
• Increasing the debt as a form of punishment
When these actions are coupled with reduced salaries, they ensure a continual state of growing debt, which can never be fully paid.
3.2.14 Climate of fear
Several cases use the term “climate of fear” to describe the situation of alleged victims. In jurisdictions which adopt the Traficking in Persons Protocol’s deinition of traficking, this
circumstance may be relevant to prove the MEANS used by the trafickers; in other jurisdictions, it may be relevant to establishing the ACT or the PURPOSE OF EXPLOITATION.
In a labour exploitation case Ministerio Publico Federal v. Gilberto Andrade Brazil,
460
the defendant kept the workers in a climate of fear and violence, conspicuously wielding a gun to intimidate them. He fostered his reputation of being a violent man accustomed to
beating workers. In consequence, workers were afraid to escape. The defendant was convicted of slave labour, fraudulent recruitment and hiding cadavers. The court mentioned the climate
of fear as an aggravating circumstance.
The term “climate of fear” appears in Farrell United States,
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where the government expert testiied that several warning signs attesting to non-voluntary labour were present in
the case and that the workers were working in a “climate of fear”.
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The term also appears in the court’s summary of the facts of the case. Circumstances which contributed to this
climate included the following: employers would summon workers who violated their arbitrary rules to the hotel ofice and reprimand them; under those circumstances the workers testiied
that they were afraid of one of the employers. Furthermore, employers regularly held meetings with workers during which they reproached them for various transgressions such as spending
money without permission. During these meetings workers were threatened. The meetings
459
Borisov et al v. State of Israel, 10 October 2003, Criminal Appeal 1609,229303 before Supreme Court, Israel. The case is available in the UNODC Human Traficking Case Law Database UNODC Case No. ISR008.
460
See Index of all cases.
461
See Index of all cases. For detailed facts, see the in-depth analysis in section 5.4 of the Case Digest.
462
Ibid. Section III of case. See also description of facts supporting the peonage conviction in section IIA of the case, which included the workers’ subjective fear of the Farrells and section IB of case dealing with background
facts according to which one worker was “paralyzed with fear”.
became increasingly hostile as time progressed. Meetings were called late at night and workers were required to attend even if they had previously gone to sleep. Meetings often lasted until
the early hours of the morning and would include continuous yelling if workers did not follow orders. On one occasion a worker testiied that one of the employers was so angry that he
feared he would punch him. He also said he was paralyzed by fear. A police oficer who visited the workers testiied that the workers were terriied of the employers and refused to
speak in front of them. The defendants also represented themselves as friends of people in power, which added to the atmosphere of fear. The defendants were convicted of peonage.
In Webster United States,
463
the defendant forced victims to watch him beat other victims. The court noted that, by doing so, he created an environment of fear of physical harm if
victims violated any of his rules or refused to do as he asked.
464
The court found that this environment of fear was coercive and provided suficient evidence to sustain a conviction of
sex traficking through the use of coercion.
See also D.A.and A.M. Israel,
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in which the Court noted this climate of fear as part of the background facts to the conviction of “holding a person under conditions of slavery”.
3.2.15 Duration of abuse
The Traficking in Persons Protocol does not require that traficking in persons take place over any speciied minimum period of time. In fact, the Protocol does not require that the
actual exploitation ever transpire in order that the crime of traficking be committed. It is suficient to prove that the victim was recruited, transported, harboured, etc., by the illegal
MEANS for the PURPOSE OF EXPLOITATION. The Protocol does not require that the PURPOSE OF EXPLOITATION be realized.
However, while a short course of exploitation does not necessarily preclude a conviction for traficking in persons or allied crimes, it may make it more dificult for the prosecution to
persuade the court to convict. In addition, the duration of abuse may be an appropriate consideration for sentencing, once the crime has been established.
Please note that a separate section is dedicated to evidential issues in traficking cases in which the actual exploitation never occurred see section 4.3 on “How to prove traficking
where the intended exploitation never transpired”. Therefore, this section does not analyse the full ambit of this issue but rather addresses the principles which govern the relevance of
duration and the application of these principles to convictions and sentencing.
Principle governing the relevance of duration
The principle governing the relevance of duration is established in Kunarac International Criminal Tribunal for the former Yugoslavia.
466
There, the court mentions duration as one of the factors that need to be taken into consideration in determining whether enslavement
was committed. However, the court also notes that duration should not be a conclusive indica- tor. In this case, two defendants were found guilty of “enslavement as a crime against humanity”
463
See Index of all cases.
464
Ibid. at 4.
465
Previously cited, page 47, para 50. It should be noted that this case is pending appeal in the Supreme Court.
466
Previously cited.
