Trafficking in persons

Case No. 1685/2010

Fact Summary

This case was initiated following a TV show in which the issue of the marriage of young Egyptian girls to aged men coming from the Gulf States was addressed. The TV program showed that some of these cases occurred in the locality of Abu El-nomros. Subsequently, the Ministry of Family and Population filed a complaint before the public prosecution, supported by a CD of the aforementioned TV program. The public prosecution initiated a judicial investigation which demonstrated that an aged man from a Gulf State used to visit Egypt to fulfill his desire to have sexual intercourse with young girls.

The present case involved the sexual abuse of a minor girl (below the legal age of marriage), chosen by an aging rich man among many young girls he was offered through a mediator. The defendant married the victim against the law, after luring her parents with financial gains.

The investigation in this case further provided that the offender had entered an agreement with the fourth defendant, who was well known for facilitating such specific services for clients like the defendant. The fourth defendant enticed the parents of the victims, taking advantage of their financial needs by promising them money and financial privileges in return for those marriages. Accordingly, the second and third defendants (the parents of the victim in this case) agreed to this offer.

Based on a prior agreement with the second and third accused (the victim’s parents) the intermediary, the fourth defendant, displayed the victim along with a number of other young female children before the first defendant. Defendant 1chose the victim, a minor, knowing that she was underage, after offering her parents a sum of money to obtain their approval for this unlawful marriage. The fifth accused wrote an Orfy contract, a non-official paper to document the marriage between the first defendant and the victim in order to give a sense of legitimacy to this criminal act against the Egyptian law, which forbids such types of marriages. The first defendant, then, paid substantial sums of money to the remaining accused parties totaling an aggregate fourteen thousand pounds. In exchange for the money he paid, the first defendant took the young girl to his house and “consummated the marriage”, sexually abusing the victim.

Commentary and Significant Features

Evidence submitted in the case:

1) Testimonies and statements

The Victim: The child victim repeated what was stated in the above-mentioned facts. She added that the first defendant used to sexually abuse and beat her; and that when she sought help from her parents they denied her assistance, despite the fact that she even threatened to commit suicide.  

The first witness: A neighbor of the first defendant testified that he saw him brining young girls to his house regularly.

The second witness: The victim’s uncle testified that he knew about the whole incident from his sister, the third defendant. He confirmed what was stated in the facts and added that the fourth defendant used to work as a "marriage broker" specialized in marrying young girls to men from the Gulf States, and that she had left town after this incident was discovered.

Confession of the parents of the victim: Both the mother and father of the victim confessed to committing the above-mentioned acts for financial gain. The mother affirmed that she and her husband consented to such type of marriages for their girls in return for financial gains. The father withdrew his confession and challenged it before the Criminal Court.  

2) Documentary evidence

- The victim’s official ID showed that she was a minor at the time of the crime.

- It was proven by an official letter from the Passports, Immigration and Nationality Sector of the Ministry of Interior that the first defendant was born on 10 October 1934.

3) Religious official opinion

Before referring the case to the Criminal Court, the public prosecution requested the fatwa[1] (religious opinion) of the Grand Mufti of the Arab Republic of Egypt concerning the marriage of minor girls with Orfy contracts (un-official marriage contracts).

On the 2nd of February 2010, Dar al-Eftaa al-Mysria, issued the following religious opinion: “Islam observed, rather than suppressed, natural human instincts. Meanwhile it legitimized marriage, holding it in high esteem to deter human beings from yielding to acts of [bestial] instinct and lust. It thus reaffirmed the woman’s dignity and acknowledged her esteem. Accordingly Islam built the marital relationship on the basis of compassion and mercy, and to this end gave consideration to requirements of harmony and compatibility of the spouses."

He added: “There is Ijmaa  among Islamic scholars that righteousness is a requirement for guardianship, such that guardianship cannot be established for an immoral (corrupt) parent, and that forcing his daughter to marry an incompatible person  is a sign of a guardian’s immorality, and that such a kind of marriage disregards compatibility, and even lacks the minimal respect for humanity, is a sign of the guardian’s immorality, which consequently renders his guardianship void and annuls this type of marriage contract, for lack of the requirements and real foundations of marriage”.

He has also stressed that: “The exhibiting of the minor girls together by the mediators for a man to pick whoever appealed to him, in such degrading manner, which humiliates and strips them of their humanity as though they were slaves or commodities to be traded with, when all know that this is just a temporary indulgence, is tantamount to prostitution in disguise, in addition to the sexual abuse of the minor whom the aged man had married”.

Condemning the behavior of the parents towards their daughter, he stated: “When the daughter sought her parents' protection (as a result of the sexual abuse she was suffering from), they let her down terribly".

The Grand mufti concluded that this practice is merely severe exploitation of the helpless minor, requiring the infliction of sanctions upon the exploiter, the parents as well as everyone who facilitated her exploitation or participated in the commission of such abhorrent acts.

4) Forensic Evidence

 The forensic medical report found that the victim had lost her virginity a long time ago.  

5) Police enquiry

 The police inquiry verified the facts included in the victim’s version of the story. It also affirmed that the fourth defendant used to exploit the financial needs of the families of the victims, by promising them money and financial privileges.

General Observations

Age of minority

In cases of molestation and sexual abuse of children, Egyptian law presumes that the offender knows the age of the minor child. Accordingly, in cases where the age of the victim is uncertain and there are reasons to believe that the victim is a child, the offender’s responsibility will be established.

Abuse of power

This case reflects a stark case of abuse of power represented in the authority of the guardian (the father) over his young daughter, through facilitating her sexual exploitation in exchange for financial gains, compromising her dignity and rights.

The case also reflects another heinous case of abuse of power associated with the person of the first defendant against the victim by subjecting her to sexual exploitation, relying on the authority he acquired over her through marriage, even though the marriage contract was null, since his authority over her in this case is based on de facto circumstances.

Moreover, this case gives a realistic example of abuse of power, based on both de jure and de facto aspects, over the child victim, given the authority of her guardian father and her aging husband which enabled them to exploit her, each for his own purpose. This case also raises the issue of abuse of the position of vulnerability of the victim as a minor.

The principle of complementarity and support of evidence

We have seen in this case, that a flaw in deduction of facts or legal reasoning relating to one piece of evidence can lead to the collapse of the whole case. According to the rulings of the Egyptian Court of Cassation, the different pieces of evidence in criminal matters complement/support one another, and from the entire evidentiary framework, considered as a whole, the judge shall reach a conviction. If one piece of evidence becomes void or is eliminated, it would be impossible to find out the effect of such invalid evidence on the opinion reached by the court.

Deficiency in the reasoning of the criminal courts: a problematic issue

We have seen in this case that despite the fact that the case contained a wealth of evidence; the judgment of the Criminal Court of Giza was reversed due to the deficiencies in the reasoning of the Court. This fact illustrates the importance of strengthening the capacity of judges to write such type of judgments.             

Sentence Date:
2010-05-20
Author:
UNODC

Keywords

Trafficking in Persons Protocol:
Article 3, Trafficking in Persons Protocol
Article 5, Trafficking in Persons Protocol
Acts:
Recruitment
Transfer
Harbouring
Receipt
Means:
Fraud
Abuse of power or a position of vulnerability
Giving or receiving payments or benefits to achieve the consent of a person having control over another person
Purpose of Exploitation:
Exploitation of the prostitution of others or other forms of sexual exploitation
Sector in which exploitation takes place:
Commercial sexual exploitation

Cross-Cutting Issues

Liability

... for

• completed offence

... based on

• criminal intention

... as involves

• principal offender(s)
• participant, facilitator, accessory

Gender considerations

Details

• Gender considerations

Procedural Information

Legal System:
Mixed System
Latest Court Ruling:
Appellate Court
Type of Proceeding:
Criminal
 

1st Instance: 

Court: Criminal Court of Giza
Location: Giza
Date of decision: 20-05-2010

2nd Instance:

Court: Court of Cassation
Date of decision:  12-02-2011
Reference: Appeal No. 9801, Judicial Year 80, Session 12 February 2011

 
 

Victims / Plaintiffs in the first instance

Victim:
Anonymous child
Gender:
Child

Defendants / Respondents in the first instance

Defendant:
Defendant 1
Gender:
Male
Born:
1934
Legal Reasoning:

On the 20th of May 2010, the Criminal Court of Giza issued its verdict. The Court convicted the first defendant of sexual exploitation, and convicted the victim’s parents, the intermediaries and the lawyer who oversaw the marriage formalities for assisting in the commission of the crime, under Article 291 of the Penal Law which criminalizes the exploitation of children and facilitation of such acts.

It sentenced the fourth defendant, in absentia, to two years imprisonment, with labor plus a fine of fifty thousand Egyptian pounds for the acts attributed to her. It also convicted the second and third defendant to one year detention with labor plus a fine of fifty thousand Egyptian pounds for each of them. The court ordered the stay of execution of the detention punishment for defendants 2 and 3 only, by virtue of article 17 of the Penal Code.

The court based its decision on the certainty provided by the diverse of evidence submitted to it: on the testimonies of the victim and other witness; on the forensic report of the victim; the documentary evidence, the police inquiry; and in particular, on the fatwa (religious opinion) of the Grand mufti which annulled the marriage of the victim and turned it into prostitution in disguise. In its factual analysis the court mentioned each of these pieces of evidence in detail, and based its conviction on the entirety of the evidence and the corroboration of the witnesses’ and the victim’s testimonies.

Because the crimes committed by the first defendant are overlapping, and constituting one criminal enterprise, the court applied article 32 of the penal code and punished him according to the provisions of article 291 of the Penal Law, which encompasses a more severe punishment.

Egyptian law considers young age as a condition that aggravates punishment in crimes of rape and sexual molestation, as it constitutes a sufficient position of vulnerability to render the victim’s consent irrelevant. This is why the age of the minor must be proved according to official documents.      

The Criminal Court also applied article 17 of the Penal Code, with regard to the second, third and fifth defendants, which allows the judge to mitigate the penalty.  

Defendant:
Defendant 2
Gender:
Male

Defendants 2 and 3 were the victim’s parents.

Defendant:
Defendant 3
Gender:
Female

Defendants 2 and 3 were the victim’s parents.

Defendant:
Defendant 4
Gender:
Female
Defendant:
Defendant 5

Charges / Claims / Decisions

Defendant:
Defendant 1
Verdict:
Guilty
Charge / Claim:

Sexual Exploitation of a Child

Legislation / Statute / Code:

Article 291/1,2,3 of the Penal Code in connection with Article 32/2 of the Penal Code

Verdict:
Guilty
Charge / Claim:
Sexual Abuse and Molestation of a Child
Legislation / Statute / Code:

 Article 32/2 of the Penal Code

Appellate Decision:
Reversed

The defendants (who were convicted in their presence) appealed against the decision of the Criminal Court before the Court of Cassation on the following basis:

The Criminal Court judgment convicted them of committing the crime of facilitating the sexual exploitation of a child while the first and second appellants were her parents. The appellants argued that the judgment was tarnished with insufficiency and ambiguity in its reasoning, deficiency in deduction, and infraction of the law. The appellants argued that their deed was legitimate as it implied the exercise of a right determined pursuant to the Islamic Sharia’ah Law: this is concluding a contract of marriage in accordance with the provisions of Articles 7 and 60 of the Penal Code. The appellants claimed that the contract was permissible in Islamic law, and argued that the relationship resulting from such a contract does not fall within the scope of the sexual exploitation deed criminalized by the legislator. The appellants claimed that the judgment had inadequately dismissed such argument by establishing, without sufficient evidence, that the victim’s marriage contract was null and void because it was concluded without the presence of any witnesses. The first instance court found that there was no evidentiary basis for such claim, and that the contract had been concluded in the absence of a guardian whose guardianship is recognized as valid by Sharia’ah law, in pursuance of the probable opinion of the Grand Mufti. Further, the judgment omitted to reply to the argument that the second appellant’s confession was void, as it was exacted as a result of coercion.  

On the 12 of February 2011, the Criminal Chamber of the Court Cassation accepted the defendants’ appeal. It reversed the judgment of Criminal Court of Giza and returned the case to another circuit for re-trial. 

The Court of Cassation based its ruling on the shortcomings and flaws that affected the reasoning of the Criminal Court.

Deficiency in the reasoning of the Criminal Court

1)     The first flaw that affected the judgment of the Criminal Court of Giza is the deficiency in its reasoning. The Criminal Court of Giza annulled the marriage due to the fact that this marriage lacked the conditions required for the validity of marriages which are the presence of witnesses to verify the marriage. In other words, the Criminal Court concluded that no witnesses had attended the marriage ceremony. Nonetheless, the Criminal Court did not support this allegation with factual evidence. This means that the judgment lacked that piece of evidence that it relied upon - assuming that such evidence was valid – and therefore the obligation imposed by the legislator on the court to sufficiently specify the reasons on which its decisions are based was not fulfilled.

2)     While the judgment completely relied on the fatwa issued by the Grand mufti, it responded to the appellants’ defense by claiming that it would not examine Islamic jurisprudence, as this is a task that falls outside its duties. The Court of Cassation considered this a kind of contradiction in the reasoning of the Criminal Court.

3)     In addition to the foregoing, the challenged judgment was based on the opinion of the Grand mufti of Egypt who stated that "the incident is considered sexual exploitation which necessitates the punishment of the perpetrator, parents, mediator and any person who has facilitated or exerted his best efforts to consummate such a marriage" and made it a pillar of his judgment. The Appellate Court held that the judge had erred in doing this, because the judge in criminal matters must establish proved legal facts based on the evidence he is convinced of, either convicting the accused or acquitting him as issued from his own beliefs, which must be formed based on his own investigations (of the facts). Further, the judge must be independent in forming such beliefs, and no one may participate or influence him in this process. Also, in law, the judge must base his opinion on his own beliefs, not on any other opinion belonging to anyone else – as is the case in this judgment.

4)     Further, the judgment has relied on the second defendant’s confession, while omitting to reply to the argument raised by his defence (that the confession of the second appellant was void as it had been given as a result of coercion). This constitutes another deficiency in the reasoning of the Criminal Court.

Defendant:
Defendant 2
Verdict:
Guilty
Charge / Claim:
Facilitating the Sexual Exploitation of a Child
Legislation / Statute / Code:

Articles 96, 116 (bis) of the Law of the Child No. 12 of 1996 on the Child as amended by Law No. 126 of 2008 and Articles 40/2,3, 41/1 and 291/1,2,3 of the Penal Code in connection with art. 17 of the Penal Code

Term of Imprisonment:
1 year
 
Fine / Payment to State:
Yes  50000  EGP  (Up to 10,000 USD)  
Defendant:
Defendant 3
Verdict:
Guilty
Charge / Claim:
Facilitating the Sexual Exploitation of a Child
Legislation / Statute / Code:

Articles 96, 116 (bis) of the Law of the Child No. 12 of 1996 on the Child as amended by Law No. 126 of 2008 and Articles 40/2,3, 41/1 and 291/1,2,3 of the Penal Code in connection with art. 17 of the Penal Code

Term of Imprisonment:
1 year
 
Fine / Payment to State:
Yes  50000  EGP  (Up to 10,000 USD)  
Appellate Decision:
Reversed
Defendant:
Defendant 4
Verdict:
Guilty
Charge / Claim:
Facilitating the Sexual Exploitation of a Child
Legislation / Statute / Code:

Articles 96, 116 (bis) of the Law of the Child No. 12 of 1996 on the Child as amended by Law No. 126 of 2008 and Articles 40/2,3, 41/1 and 291/1,2,3 of the Penal Code in connection with art. 17 of the Penal Code

Term of Imprisonment:
2 years
 
Fine / Payment to State:
Yes  50000  EGP  (Up to 10,000 USD)  
Defendant:
Defendant 5
Verdict:
Guilty
Charge / Claim:
Facilitating the Sexual Exploitation of a Child
Legislation / Statute / Code:

Articles 96, 116 (bis) of the Law of the Child No. 12 of 1996 on the Child as amended by Law No. 126 of 2008 and Articles 40/2,3, 41/1 and 291/1,2,3 of the Penal Code in connection with art. 17 of the Penal Code

Court

Court of Cassation

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