State of Israel v. Giulani
Keywords
Procedural Information
1st Instance: District Court of Jerusalem, 29 February 2012, Criminal Case 13646-11-10
The case is currently under appeal (as of 2 January 2013).
Victims / Plaintiffs in the first instance
Defendants / Respondents in the first instance
Fact Summary
Recruitment: The victim, a young Philippino girl, was assisted by a manpower agency called; "Manpower" to arrive in Jordan in order to work there in domestic work. When she arrived there, a person unknown to the prosecution examined her body and personal belongings. In addition, upon arrival in Amman, her cellular phone, which she had brought with her, was taken from her. She was signed upon a contract in Arabic, detailing the terms of her employment. It was explained to her that her salary would be 150$ a month and not 200$ as had been promised her in the Phillippines.
Work in Amman: about a month after her arrival in Amman, she was transferred to the home of N., the daughter of the defendants, in order to engage in domestic work. She worked in this home for about 4 months, from 7 o'clock in the morning until 10 o'clock at night and was given a short break every 8 work hours. She did not receive any salary for this work.
Transfer to Israel: In the beginning of November 2007 defendant 2 arrived in Jordan in order to take the victim to work in Israel as a maid, this without asking the victim for her agreement. The victim was promised that the salary for the work she had done for N. would be paid by the defendant 2. Upon her transfer to defendant 2, this defendant received the victim's passport and continued to hold her passport during the entire period of her employment.
Work in Insrael: The victim worked for the defendants in their home in domestic work for a period a one year and ten months. The defendants did not sign a contract of employment with the victim.
Living conditions: The victims was housed in a bathroom and shower in the living area of the defendants and their family, though there were bigger and more spacious rooms which were generally empty. She was given a folding bed and a shelf for her personal belongings and could lock the door.
Work conditions: The vicitim worked in domestic work from 7 o'clock in the morning until 10 o'clock at night and sometimes, when guests arrived beyond these hours. She was permitted to take breaks during her work during which she could watch television or send smss, however she had no regular breaks. She worked 7 days a week with no vacation days or rest days. In effect the defendants had access to her work on a continous basis.
The victim received 150$ a month for this work.
Treatment by defendants: On occasion the defendants would give her small presents. The defendants treated her respectfully and did not humiliate her or exert violence towards her, whether physical or verbal. The nature of the work she was asked to perform was not unduly hard and the defendants respected her request not to work additionally in their son's house, after she had worked there a few times. They also gave her a measure of privacy by giving her a key to her small rrom and not entering it. They also allowed her to use the telephone and even purchased a telephone card for her on one occasion. In addition, they gave her access to medical treatment and transferred money to the Philippines at her request.
Limitations on freedom of movement: The defendants did not allow the victim to leave the house unescorted or unsupervised and on occasion refused her requests to be permitted to attend church. While they did not overtly threaten her and while the prohibition was never overt and absolute, they limited her movements by a series of veiled threats (that she would be arrested should she go out alone), excuses, cajolements (such as that it is not advisable to go out alone) and by ignoring her requests. In effect, this meant that the victim could leave the house only in a limited way for short distances and short times, and for example the grocery store or for purposes connected to her work. Any more distant or lengthy leaving of the house, was supervised by the defendants or their family members. They kept the house locked and she did not have the key.
Isolation: While the victim was permitted to make phone calls and send smss, her contact with people was limited, and especially with the one friend she had in Israel. Contact with this friend was allowed only on occasion and supervised by defendants or their family.
Oppotunities to escape: While there were occasions when the victim could have attempted to escape, this was not practical in view of her situation. She did not know Hebrew, was not acquainted with Israel, was illegal in the country, had no family who could give her some shelter, had only one friend in Israel, her passport was detained, defendant 2 warned her that she would be arrested by the police should she leave the house unescorted, and she hoped that her situation would improve.
Lengthy Period: the victim worked under these conditions for an extended period of one year and 10 months.
Charges / Claims / Decisions
Section 375A of the Criminal Law, 5737-1977
"375A. Holding a Person under Conditions of Slavery
(a) Anyone holding a person under conditions of slavery for the purposes of work or services, including sex services - is liable to sixteen years imprisonment.
(b) Where an offense according to subsection (a) is committed against a minor, the offender is liable to twenty years imprisonment.
(c) In this article, "slavery" means a situation under which powers generally exercised towards property are exercised over a person; in this matter, substantive control over the life of a person or denial of his liberty shall be deemed use of powers as stated.":
Elements of section 375A fulfilled in that the defendant held the victim under condiction of savery with denial of her freedom and to a borderline exent with substantive control over her life.
Section 376A of the Criminal Law 5737-1977
"Section 376A: He who detains a passport, travel document or identity document - is subject to a term of 3 years imprisonment. He who detains a passport, travel document or identity document for one of the purposes enumerated in section 377A (the trafficking section r.g.), or places a person in one of the dangers enumerated in that section – is subject to a term of 5 years imprisonment. "
Elements of section 376A fulfilled in that the defendant unlawfully detained the victim's passport. In this regard, the victim's testimony was considered more credible than that of the defendants.
This was the first case in which the elements of "holding a person under conditions of slavery" were analyzed. The definition of slavery in the section requires a situation in which powers exercised vis a vis property are exercised towards a person, with the following situations seen as fulfilling that requirement: substantive control of the vicitm's life or denial of his freedom. In order to convict, it is enough to fulfil any one of these three elements: exercising property powers or denial of freedom or substantive control over the life of the victim.
The Court equated the first part of the definition (treating a person as property) with the crime of slavery in other jurisdiction, drawing upon comparative cases, largely from the U.S. and France. The Court equated the second part of the definition (substantive control or denial or freedom) with the involuntary servitude crime in U.S. jurisprudence.
In this case, the court ruled that the victim was held under conditions of slavery because her freedom was denied. As to the other alternatives in the section - the element of substantive control over her life was fulfilled to a borderline extent. The alternative - of treating her as a property was not fulfilled.
In ruling that the victim's freedom had been denied, the court relied on the following relevant circumstances: denying the victim any vacation during an extended period of 22 months, including a weekly day of rest or an opportunity to attend services in church or regularized breaks during the day. She was at the defendant's beck and call continually; even though she had a small room for herself in which she had some privacy, it was in the defendant's home and dependent upon them; she was denied free contact with other persons; her passport detained; she was supervised when she went out of the house to places at a distance;a series of veiled threats, cajolements, excuses and ignoring her requests was used to deny her right to leave the house. This situation was exacerbated by the lenghty time she was thus held and her distress at being denied the freedom to leave the house in a independent manner.
Also mentioned was the minimal payment she received ( 150$ for a month's work) and the living conditions (her room was a tiny shower bathroom with a folding bed)
In ruling that the alternative of - substantive control over the vicitm's life - had been fulfilled to a borderline extent the court took into account the following circumstances, ruling that the evidence could support opposing interpretations:on the one hand, the defendants had absolute control over the victim"s ability to leave the house. On the other hand, the defendants did not force the victim to do work that she did not want to do, did not prevent her from holding telephone conversations, allowed her privacy in her room, did not follow her or listen to her telephone conversations. In addition, during a work day, she did have some free time to watch television or send smss.
In ruling that the alternative of exercising powers towards the victim which are commonly exercised towards property - was not fulfilled- the court ruled that the victim was not treated as an object. This - dispite the fact she was brought from Jordan to Israel without asking for her agreement and even though she also worked in homes other than that of the defendants by their behest.
The court explained that the Country of destination was not important to the victim, but rather to earn money where ever she could and that she had the freedom to refuse to work in other homes and she did receive remuneration for this.
A number of other important rulings by the court were:
1) Physical means of control not necessary: slavery need not be based only on physical means of control, but rather the entire relationship between the victim and the defendants, must be taken into account. In this case no violence was exercised and the defendants even treated the victim respectfully and gave her small presents on occasion. There were no overt threats of physical harm, but rather only a series of veiled threats (that she would be arrested if she left the house unescorted), excuses, warnings and ignoring behaviour to prevent her from leaving the house.
2) Consent by victim irrelevant to offence: the court ruled that consent of the victim cannot justify an insufferable violation of the most basic human rights. This was seen as analogous to Israeli case law regarding to trafficking for prostitution in which the consent of the victim is irrelevant to the crime and the court also drew upon comparative case law. In addition, the court noted that the section does not require lack of consent.
3) Not escaping, even when given an opportunity to do so, does not in itself militate against conviction: The court is aware that in many cases victims come from vulnerable populations, do not speak the language, do not have friends and family in the country of destination and have no practical method of finding adequate shelter. In view of this, even if it is proved that the vicitm had the physical opportunity to escape this in itself does not mean that no offence has been committed. In thus ruling, the court draws upon comparative case law. However, evidence regarding a continous course of opportunities to escape which were not utilized, may erode, to a certain extent the element of denial of freedom and claims about isolation of the victim. In this case, not escaping does not have this effect because the victim was not acquainted with Israel, her passport was detained, she knew no Hebrew, escape was a drastic step which is difficult to implement and she hoped her situation would improve. While there were no overt threats on the part of the defendants, they bolstered this interdiction by a series of veiled threats (that she would be arrested should she leave the house unescorted), warnings, excuses and behaviour which ignored her requests.
4) Distinctions among three main relevant crimes to situations like this - slavery, involuntary servitude and forced labor: In Israel, the first two are anchored in section 375A entitled "holding a person under conditions of slavery" and the third is in section 376 - forced labor" .
Forced labor is a substantively less severe crime than slavery or involuntary servitude. It relates to work relations alone and does not evaluate the overall relationship between the parties, the living conditions beyond work hours, and the extent of freedom the victim has from his employer. In contrast, "involuntary servitude" extends beyond work relations and the living conditions of the victim are relevant. It also requires a clearer denial of freedom.
"Slavery" requires property dimension in that the victim is objectified.
5) Distinction among various kinds of circumstantial evidence regarding their relevance to establishing "slavery" :
a) the most relevant pieces of circumstantial evidence which attest to objectification and absolute control are: detention of passports and other personal documents, physical limitations upon leaving the living quarters, use of threats to prevent leaving premises, isolation, prohibitions upon contacts with relatives and friends, transferring a person from hand to hand, paying for a person, continuous use of violence. In some cases a pittance as payment for services may be cardinal to the offence if it served as a tool of control over the victim to strengthen his dependence upon the employer and prevent him from escaping.
b) Circumstantial evidence common in this kind of crimes but not directly relevant to the elements of the offence: preventing the victim from receiving medical treatment, adequate clothing and food, lack of basic social welfare conditions, poor accommodations.
c) The relvance of sociological characteristics of the victim: [Note: this is relevant to the Protocol's abuse of vulnerable populations"]. Most of the victims are women, foreigners, often illegals, come from poor contries in which the average salary is very low, often lower than that in the country of destination, the victims come from a vulnerable population, the pattern of servitude is common in country of origin and does not seem exceptional. These characteristics do not always exist and are not essential to establish the offences, but they can serve the purpose of describing the phenomenon in a more extensive manner.
Section 375A of the Criminal Law, 5737-1977
(2):
"375A. Holding a Person under Conditions of Slavery
(a) Anyone holding a person under conditions of slavery for the purposes of work or services, including sex services - is liable to sixteen years imprisonment.
(b) Where an offense according to subsection (a) is committed against a minor, the offender is liable to twenty years imprisonment.
(c) In this article, "slavery" means a situation under which powers generally exercised towards property are exercised over a person; in this matter, substantive control over the life of a person or denial of his liberty shall be deemed use of powers as stated.":
Same as defendant 1 except that her role was more central, as it was a case of domestic slavery.
Section 376A of the Criminal Law 5737-1977
"Section 376A: He who detains a passport, travel document or identity document - is subject to a term of 3 years imprisonment. He who detains a passport, travel document or identity document for one of the purposes enumerated in section 377A (the trafficking section r.g.), or places a person in one of the dangers enumerated in that section – is subject to a term of 5 years imprisonment. "
Same as defendant 1 except that her role was more central, as it was a case of domestic slavery.
Sources / Citations
Sentence and Verdict.
Commentary and Significant Features
1.The Israeli criminal provisions on trafficking include a constellation of offences: Trafficking (requiring a transaction in human being for a purpose of exploitation (including prostitution, forced labor, slavery, removal of organs, surrogacy, pornography), holding a person under the condition of slavery (as decribed above), Forced Labor, Abducting a person for a purpose or trafficking, and Causing a person to leave his country in order to engage him im prostitution or slavery. The most widely used sections do not have all the elements of the U.N. Protocol. Most notably - foul means are not required to establish a crime (such as coercion, force, fraud, abuse of vulnerable populations, tec.) and consent of the vicitm does not negate the crime. These five crimes encapsulate the trafficking offence in its wider meaning.
(1):
"374A. Abducting for Purposes of Trafficking in Persons
One who abducts a person for one of the purposes set forth in section 377A(a) or in order to place the person in one of the dangers set forth in the said section shall be liable to twenty years imprisonment ."
(2):
"375A. Holding a Person under Conditions of Slavery
(a) Anyone holding a person under conditions of slavery for the purposes of work or services, including sex services - is liable to sixteen years imprisonment.
(b) Where an offense according to subsection (a) is committed against a minor, the offender is liable to twenty years imprisonment.
(c) In this article, "slavery" means a situation under which powers generally exercised towards property are exercised over a person; in this matter, substantive control over the life of a person or denial of his liberty shall be deemed use of powers as stated.":
(3):
"376. Forced Labor
Anyone who unlawfully forces a person to work, by using force or other means of pressure or by threat of one of these, or by consent elicited by means of fraud, whether or not for consideration, shall be liable to seven years imprisonment."
(4):
376B Causing a Person to Leave A State for Purposes of Prostitution or Slavery
(a) Anyone who causes another person to leave the State in which he lives for purposes of engaging the person in prostitution or holding that person under conditions of slavery shall be liable to ten years imprisonment;
(b) Where an offense according to subsection (a) is committed against a minor, the offender is liable to fifteen years imprisonment."
(5):
377A. Trafficking in Persons
Anyone who carries on a transaction in a person for one of the following purposes or in so acting places the person in danger of one of the following, shall be liable to sixteen years imprisonment:
(1) removing an organ from the person's body;
(2) giving birth to a child and taking the child away;
(3) subjecting the person to slavery;
(4) subjecting the person to forced labor;
(5) instigating the person to commit an act of prostitution;
(6) instigating the person to take part in an obscene publication or obscene display;
(7) committing a sexual offense against the person.
(b) Where an offense according to subsection (a) is committed against a minor, the offender is liable to twenty years imprisonment.
(c) The middleman in trafficking in a person as stated in subsection (a), whether or not for consideration, shall be considered as the trafficker of the said person.
(d) In this section, "transaction in a person" means selling or buying a person or carrying out another transaction in a person, whether or not for consideration.
377B. Minimal Punishment for the Offense of Holding a Person under Conditions of Slavery and Trafficking in Persons
(a) Where a person is convicted of an offense according to section 375A or 377A, the sentence imposed shall not be less than one-quarter of the maximum sentence set forth for the said offense, unless the court has decided, for special reasons that shall be recorded, to impose a more lenient sentence.
(b) A sentence of imprisonment according to subsection (a) shall not be wholly suspended, unless there are no special reasons.
377C. Obligation to Detail Reasons for not Awarding a Compensation
Where a person is convicted of an offense according to section 375A or 377A, and the court does not award compensatory damages according to section 77, the court shall specify in its judgment the reasons for the failure to order compensation as stated.
377D. Forfeiture
(a) In this section and in section 377E –
"Combating Criminal Organizations Law" means the Combating Criminal Organizations Law, 5763 – 2003[1];
"victim of an offense" means a person who is directly injured by an offense and a family member of a person who died as a result of the offense; "offense" means the offense of holding under conditions of slavery according to section 375A and the offense of trafficking in persons according to section 377A; "property" and "property related to an offense" have the same meaning as in the Combating Criminal Organizations Law.
(b) The provisions of sections 5 to 33 of the Combating Criminal Organizations Law, except for sections 8, 14(2) and 31 of the said law, shall apply to the forfeiture of property related to an offense, as the case may be and mutatis mutandis.
(c) Subject to the provisions of subsection (b), property that is subject to forfeiture according to the provisions of this part and also according to the provisions of the Combating Criminal Organizations Law or the Prohibition of Money Laundering Law, 5760 – 2000,[2] shall be forfeited according to the provisions of this Law, unless there are special reasons justifying that the forfeiture of the property not be carried out according to the provisions of this part.
(d) The Minister of Justice, with the approval of the Constitution, Law and Justice Committee of the Knesset, shall promulgate in regulations provisions regarding procedural rules in the matter of an application for a forfeiture order in a criminal or civil proceeding, proceedings for the hearing of objections to the forfeiture, application for steps to safeguard property, temporary relief, rehearing, appeal, and also provisions on the ways to effectuate the forfeiture, administer the assets and give notice to persons claiming right in the property.
377E. Special Fund
(a) The decision of the court on forfeiture according to section 377D shall serve as a basis for the Administrator General to seize the forfeited property; property that has been forfeited, or the consideration thereof, shall be transferred to the Administrator General and deposited by him in a special fund that shall be administered in accordance with the regulations that shall be promulgated according to subsection (d) (in this section – the Fund).
(b) A fine imposed by the court for an offense shall be deposited in the Fund.
(c) Where a victim of an offense presents, to an entity determined by the Minister of Justice for this purpose, a judgment for compensation and shows that he has no reasonable possibility to realize all or part of the judgment, according to any law, the victim of the offense shall be paid from the Fund the compensation set forth in the judgment that has not been paid, all or part thereof; for the purposes of this section, "judgment" means a judgment that may no longer be appealed.
(d) The Minister of Justice, with the approval of the Constitution, Law and Justice Committee of the Knesset, shall promulgate in regulations the methods of administering the Fund, the use to be made of the Fund’s assets, and the manner of their distribution for these purposes:
(1) rehabilitation, treatment, and protection of victims of an offense; for this purpose, there shall be allocated annually an amount not less that one half of the Fund’s assets in one year;
(2) payment of compensation awarded in a judgment to a victim of an offense, in accordance with the provisions of subsection (c);
(3) prevention of the commission of an offense;
(4) carrying out the functions of law enforcement authorities in enforcing the provisions of this Law in respect to an offense.".
2. While Israel is largely a common law county, and particularly in regard to criminal law, procedure and evidence, civil legislation has drawn upon civil law sources and particularly from continental Europe.
3. The American dollar is equivalent to 4 shekels. This means that each of the defendants received a fine of 500$ and each was ordered to pay the victim compensation of about 4000$.
4. The lenient sentence in this case was due to this being the first case delineating the boundaries of holding a person under conditions of slavery and in view of the defendant's treatment of the victim which did not include humiliation, violence, whether physical or vebal or hard labor and in view of their respecting her reluctance to clean their son's house and giving her a measure of privacy and allowing her to use the telephone, giving her access to medical treatment and transferring money to the Philippines at her request, giving her presents on occasion. Also relevant were the personal circumstances of the defendants.
5. We are currently checking if an appeal has been submitted and will notify the UNODC.
6. It should be noted that the defendants are a husband and wife.