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.
of passport, fear of arrest and lack of free time, isolation, absence of pay, dificult work conditions, dificult living conditions, signs of ownership in that one family lent her to another
without her consent and duration of abuse. Weaknesses in the mosaic of evidence include freedom to come and go, returning to an abusive employer, a family support system whom
she did not complain to, no violence or lock and key imprisonment. A particularly dificult issue was the seeming consent of the victim to her exploitation.
In this case, the European Court of Human Rights ruled that the victim had been held under forced labour or servitude.
A female minor aged 15 years and 7 months was sent from Togo to France by her father in order to work for a Togolese family, with the understanding that they would regularize her
immigration status and allow her to study in school once she had repaid them for the price of her air ticket. Instead, this family took away her passport and made her an unpaid house-
maid. After a few months this family “lent” her to another family to assist with household work and this family “decided to keep her.”
In this second family, she worked 7 days a week, 15 hours a day from 7:30 a.m. until 10:30 p.m.. In addition to doing all the household work, she also had to clean a studio lat
in the same building. She slept on a mattress on the loor of the baby’s room and was expected to look after him if he woke up. She was occasionally allowed to go out of the
house in order to attend mass on Sundays, to take the children to their activities or to go shopping. She was not paid for this work, though on occasion she was given small gifts of
money for family celebrations. Her passport continued to be in the possession of the family. This situation continued for about a year and a half.
The victim escaped with the aid of a Haitian citizen and worked in her house where she looked after her two children and received adequate accommodation and payment.
In obedience to her uncle, the victim returned to the family for whom she had worked with the understanding that they would regularize her immigration status. However, the situation
remained essentially unchanged. She was in this situation for several years.
The victim had met with her uncle and father during her time as a housemaid and she also had the opportunity and funds to call her uncle from outside the home of her employers.
According to her uncle, she did not complain about her situation to him and he said he had offered to give the victim money but that she had never asked for any.
At some point, she managed to recover her passport and conided in a neighbour who alerted a specialized NGO Committee against Modern Slavery that iled a complaint to the pros-
ecutor’s ofice.
It is noteworthy that the Siliadin case was heard by four French instances and was thereafter deliberated upon by the European Court of Human Rights, which ruled that the victim had
been held under forced labour or servitude—both of which are severe offences entailing deprivation of basic liberty. The following is additional legal background to assist in under-
standing the case.
• French Law: At the time of the case, France did not have legislation which criminal-
ized forced labour, slavery or servitude and the family was indicted according to two French sections of the Criminal Law criminalizing: performance of services without
payment or in exchange for payment that is manifestly disproportionate to the amount
of work carried out by taking advantage of a person’s vulnerability—with a punish- ment of two years imprisonment and subjecting an individual to working or living
conditions which are incompatible with human dignity by taking advantage of that individual’s vulnerability or state of dependence—with a punishment of two years
imprisonment. The four French courts who dealt with the case analysed it according to these sections.
• European Convention of Human Rights: Article 4 of the European Convention of
Human Rights prohibits slavery, servitude and forced labour. States who are parties to the convention are obligated to ensure that their legislative system is effective in
giving effect to these prohibitions. The European Court of Human Rights analysed if the case fell into “slavery”, “servitude” or “forced labour” and then ruled on the
question if France’s legislation fulilled her obligations to effectively prohibit these phenomena.
The analysis below is based upon the ruling of the European Court of Human Rights which also alludes to the rulings of the French courts and the evidence presented before them.
Court ruling 1. Conviction though no overt threats or violence: In this case there were no overt threats
or violence. However the court did not ind these to be necessary elements of the crimes. The victim did not claim that the defendants physically assaulted her or
threatened her with physical harm. However, they nurtured her fears of arrest and deceived her about regularizing her immigration status and allowing her
schooling. The court found that although she was not threatened explicitly her reality put her in the “equivalent situation in terms of the perceived seriousness of
the threat”.
654
2. The importance of the victim’s vulnerability, including family complicity: The victim’s position of vulnerability as a minor was relevant to the court which stated that “as
a minor, she had no resources and was vulnerable and isolated”.
655
Another interesting facet of the case, though it was not addressed explicitly by the court, was the victim’s
family’s complicity in her traficking in that her father made the initial arrangement and her uncle encouraged her to return to the abusive situation. At least one of these
family members subsequently testiied in a way beneicial to the defence. Even
if family members had the best of intentions, their involvement made the victim more vulnerable to exploitation. It is noteworthy that the defence attempted to
counter the victim’s vulnerability by claiming that the victim knew French and was familiar with Paris. However, the court did not accept this as a counter to the above
vulnerabilities.
3. Broad understanding of restrictions of freedom: The victim was not under lock and key imprisonment and she was permitted to leave the house to do speciic tasks and
errands for the family and to go to Mass on Sundays without being supervised. Despite this, the court ruled that the supervision over her movements, the lack of
free time and fears of arrest by police, can be factors in viewing a victim’s movements as restricted.
654
Ibid. at para. 118.
655
Ibid. at para. 126.
