This case was initiated following a police enquiry by the General Police Department on the Protection of Morals, which provided that some females were being enticed to commit prostitution under the guise of false marriages.
The defendants were accused of trafficking in women for the purpose of prostitution in exchange for financial rewards. They operated a criminal organized group, each with a specific task, such as attracting men from the Gulf States and enticing young girls to be engaged in sexual relations under the guise of fake marriages. The first defendant was regarded as the leader of the criminal organized group. She was responsible for arranging false marriages with men from the Gulf States. The third defendant, pretended to be a lawyer which enabled him to issue false marriage certificates, claiming that they were Orfy Contracts (unofficial marriage contracts). The fourth defendant was responsible for constructing an artificial hymen on the victims so they would appear as virgins in order to charge higher fees from the clients, and enable them to re-marry. Two of the victims were under the age of 18, and all of them under the age of 21.
The network exploited the families of the victims through their financial needs by promising them money and financial privileges in return for those marriages. They claimed that the girls would marry a man who had the means to financially support them and their families.
1st Instance:
Court: Criminal Court of Giza Province
Location: Giza
Date of decision: 17-07-2012
Reference: Case No. 8959 – 2012
2nd Instance:
Court: Court of Cassation
Date of decision: 14-11-2013
Reference: Appeal No. 6772, Judicial Year 82, Session 14/11/2013
The victim was under 21 years of age.
Several facts were established through the enquiry carried out by the General Police Department for the Protection of Morals: that some females were being enticed to engage in prostitution under the pretense of false marriage promises, and that the first defendant was using his own house as a brothel. These aspects were also supported by the testimonies of the victims, their families and several neighbors.
The General Prosecutor of Giza Province filed human trafficking charges against several suspects (11) for exploiting the three young females in prostitution and referred them to the Criminal Court of Giza. Abuse of their vulnerable position was the only means relied on by the prosecution in order to prove the commission of the offence. However, the prosecution also included abuse of their need in the charges as a method used to control the victims.
The Court examined a wealth of evidence, including: testimonies of the police officers, neighbors, victims and parents; elements that were found and seized during the search, including 95 Orfy Contracts, receipts between the first and third defendants, information and lists of the names of the victims and a photo of one of the victims; forensic evidence -the forensic medical report found that one of the victims was still virgin while the other two were not-, report of the Forgery Research Section stating that the third defendant was the one who had drawn the Orfy Contracts in his own hand writing, and signed on them as a witness to the marriages.
It is interesting to see that the documentary evidence was the central piece of evidence in this case. While the Orfy Contracts established the purpose of the first four defendants in exploiting the girls in false marriages, an official document issued by the Embassy of KSA in Cairo was a central piece in exonerating the men from the Gulf States from criminal liability.
The Court held that the first four defendants had committed the crime of human trafficking by dealing in persons for the purpose of exploiting them in acts of prostitution for financial gain, taking advantage of their vulnerable position and their need, and offering them (the victims) sums of money.
The Court considered that it had been proven that the first defendant – and another one who passed away – prepared two private apartments for the purpose of practicing prostitution, and attracted, with the second and third defendants, men from the Gulf States who desired sex, as well as the Egyptian victims. The third defendant pretended to be a lawyer and issued false marriage certificates, claiming that they were Orfy Contracts (unofficial marriage contracts). The fourth defendant was responsible for constructing an artificial hymen on the victims so they would appear as virgins in order to charge higher fees from the clients and enable them to continuously re-marry to other clients. Defendants 5,6 and 7 facilitated the prostitution of their daughters (the victims), and took them to one of the brothel houses to offer them to the other defendants to select whoever they desired from the girls to engage in sexual activities with them in exchange of sums of money. All of these criminal acts were performed by an organized criminal group (a prostitution network), operated by the first six defendants.
The court based its decision on the diverse evidence submitted in the case. In its factual analysis the court examined each of the pieces of evidence submitted to it in detail, and based its conviction on the entirety of the evidence and the corroboration of the witnesses’ and victims’ testimonies.
As to victim consent, the court asserted that the defendants exploited their families’ need, and the fact that their families were poor, which trumps the victims’ consent.
Through the analysis of the evidence, the court established the material and moral elements of the criminal offences committed by the defendants: trafficking in human beings for the purpose of exploitation in prostitution and inciting and facilitating their prostitution. The court also held the first defendant responsible for the crime of administration and/or management of a brothel for prostitution, and the third defendant for the crime of pretending to be a lawyer.
However, because the crimes are overlapping, and constituting one criminal enterprise, the court applied article 32 of the penal code and punished the defendants according to the provisions of the human trafficking law, which encompasses a higher punishment.
The court convicted the fourth defendant to the maximum penalty because of her repulsive criminal demeanor (constructing an artificial hymen on the victims so they would appear as virgins in order to charge higher fees from the clients, and enable them to re-marry). The Criminal Court considered that the act of placing hymens in the girls was a material aspect of the crime of human trafficking used as a means for maximizing the defendants’ financial gains. Moreover, the Criminal Court relied on the acts of the fourth defendant to prove the specific intent of the moral element required to establish the crime of human trafficking. The court held that the acts of the fourth defendant, which were accepted by all convicted defendants, clearly demonstrated their intent to exploit the victims.
Finally, the Criminal Court of Giza Province sentenced the first three defendants to two years imprisonment and a fine for each equal 5000 EGP. It also convicted the fourth defendant in absentia, to 15 years imprisonment and with a 200,000 EGP fine.
The court acquitted the rest of the defendants.
The court convicted the fourth defendant to the maximum penalty because of her repulsive criminal demeanor (constructing an artificial hymen on the victims so they would appear as virgins in order to charge higher fees from the clients, and enable them to re-marry). The Criminal Court considered that the act of placing hymens in the girls was a material aspect of the crime of human trafficking used as a means for maximizing the defendants’ financial gains. Moreover, the Criminal Court relied on the acts of the fourth defendant to prove the specific intent of the moral element required to establish the crime of human trafficking. The court held that the acts of the fourth defendant, which were accepted by all convicted defendants, clearly demonstrated their intent to exploit the victims.
Article 1(1,3) ; 2; 3; 5; 6(1,3,6,7) ; 13 of Law No. 64 of 2010 on Combating Human Trafficking
Article 116(bis) of the Law of the Child No. 12 of 1996
Articles 1; 4; 8(1); 10; 15 of Law No. 10 of 1961 on Combating Prostitution
The public prosecution and the first three defendants (who were convicted) appealed the Criminal Court decision before the Court of Cassation on the grounds of contradiction, inconsistency and shortcoming in the Criminal Court of Giza reasoning, on the assumption that the evidence used by the Criminal Court to establish the responsibility of the first three defendants was sufficient by itself to establish the responsibility of other defendants who had been acquitted.
The public prosecution alleged that the Criminal Court of Giza had erred in acquitting the rest of the defendants, especially given the fact that it based its acquittal decision of the last four defendants (the clients) solely on the mere allegation that they were seeking real marriage without adequately proving this point.
On the 14 of November 2013, the Criminal Chamber of the Court Cassation accepted the appeal of the first three defendants and the public prosecution. The Court of Cassation reversed the judgment of the Criminal Court of Giza and returned the case to for re-trial by another circuit.
The Court of Cassation based its ruling on the argument that certain shortcomings and contradictions affected the reasoning of the Criminal Court. After going through the facts of the case and analyzing the evidence relied upon by the Criminal Court, the Court of Cassation found that the same evidence that led to the conviction of the first four defendants was sufficient to establish the responsibility of some of the defendants who had been acquitted, specifically the parents of the victims who knew that their daughters had been repeatedly exploited in those fake marriages, and accepted the financial rewards resulting from their abuse.
As to the clients, the men from the Gulf States, the Court of Cassation upheld the judgment of the Criminal Court. The Court of Cassation examined the significance of a document provided by the KSA Embassy in Cairo, on the 26th of March 2012, which illustrates that the ninth defendant, which is a KSA national, had an official permission that allowed him to marry in Egypt. The Court of Cassation concluded that this document, noting that it had been issued before any criminal proceedings against the defendants had been initiated, proved that the ninth defendant and his colleagues had no intent to participate in these criminal activities.
Article 1(1,3) ; 2; 3; 5; 6(1,3,6,7) ; 13 of Law No. 64 of 2010 on Combating Human Trafficking
Ibid. 1
Article 1(1,3) ; 2; 3; 5; 6(1,3,6,7) ; 13 of Law No. 64 of 2010 on Combating Human Trafficking
Article 116(bis) of the Law of the Child No. 12 of 1996
Article 227 of Law No. 17 of 1983 regarding the Law Organizing Lawyers’ Affairs amended by Law No. 10 of 2002
Ibid. 1
Article 1(1,3) ; 2; 3; 5; 6(1,3,6,7) ; 13 of Law No. 64 of 2010 on Combating Human Trafficking
Article 116(bis) of the Law of the Child No. 12 of 1996
Article 1(1,3) ; 2; 3; 5; 6(1,3,6,7) ; 13 of Law No. 64 of 2010 on Combating Human Trafficking
Article 116(bis) of the Law of the Child No. 12 of 1996
The Court of Cassation found that the same evidence that led to the conviction of the first four defendants was sufficient to establish the responsibility of some of the defendants who had been acquitted, specifically the parents of the victims who knew that their daughters had been repeatedly exploited in those fake marriages, and accepted the financial rewards resulting from their abuse.
Article 1(1,3) ; 2; 3; 5; 6(1,3,6,7) ; 13 of Law No. 64 of 2010 on Combating Human Trafficking
Court of Cassation
According to Law No. 64 of 2010, every criminal activity consists of a material aspect and a moral aspect. In the case of human trafficking, the material aspect can be the process of buying, promising to buy, selling, promising to sell, using violence or the threat of violence, deception, fraudulence, the abuse of a position of authority, or taking advantage of the individual’s weaknesses and needs, promising him/her financial rewards and privileges, in exchange of acquiescence from the person who is about to be subjugated to human trafficking, or another who is the guardian of the potential victim, committing acts similar to slavery, forcing the victim into acts of prostitution and subjugating him/her to various forms of sexual abuse. These actions represent the material aspect of human trafficking as they involve the marketing of certain “goods and services.”
It should be noted that the criminal trials in Egypt are based on the well-established principle of ‘the freedom of the judge in his/her conviction (belief)”. However, any conviction should be reasoned according to the evidence included in the case file and well-illustrated in the judgment.
In order to obtain a conviction in trafficking cases involving abuse of a position of vulnerability, the court has to confirm that the victim’s consent has been vitiated. The court has also to establish that the trafficker knew of the victims’ vulnerability. This will not be difficult, especially in cases involving sexual exploitation or exploitation in prostitution as the victims are usually related to the traffickers or coming from the same community as their traffickers. Proof of the offender’s intent, as indicated in various decisions of the Court of Cassation, would depend on the factual circumstances surrounding each case.
In the current case, it is clear that the abuse of a position of vulnerability formed the basis of the charges, as the vulnerable position of the victims was knowingly abused by the traffickers. Accordingly, proving the element of abuse of a position of vulnerability was essential to reach a conviction in this case. It is worth noting that in such cases an investigation of the consent of the victim is crucial to make a distinction between prostitution and trafficking in human beings for exploitation in prostitution. It is important to prove that the individual was forced into sex work or was in a socially vulnerable situation that implicated him/her in prostitution. Thus, proving the element of abuse of a position of vulnerability is essential to differentiate consent given by a sex worker, and consent that has been vitiated in a trafficking context.
What distinguishes the latter concept from other means enumerated in Article 3 of the Trafficking in Persons Protocol and Article 2 of Egypt’s 2010 Law No. 64 regarding Combating Human Trafficking Crimes, is that it does not necessary necessitate an action from the offender, because it depends largely on the status quo of the victim.
It is worth noting here that the General Prosecutor of Giza Province charged the traffickers and the parents of the victim of human trafficking for sexual exploitation and that ñthe relationship between the parents and their children was relied upon as an aggravating circumstance.
The importance of this case is that it confirms that abuse of a position of vulnerability can be relied upon by the prosecution in order to prove the commission of the crime of human trafficking, as a one of the means through which trafficking can take place. The victims in this case (young girls) were recruited through abuse of their vulnerable position resulting from their financial need, indicating their insecure situation from the viewpoint of social survival. These circumstances resulted in their parents encouraging their prostitution and made the girls accept their own sexual exploitation.