(Sept. 19, 2016) On September 9, 2016, Israel’s Supreme Court rejected an appeal of a decision by the Jerusalem District Court to convict a Jerusalem couple (the appellants) of “holding [a person] under conditions of servitude,” an offense provided for under a 2006 amendment to the Penal Law, 1977. (Crim.A 6237/12 Ibrahim and Basma Giulani v. State of Israel and Phuig (the complainant) (Sept. 9, 2016), STATE OF ISRAEL: THE JUDICIAL AUTHORITY (in Hebrew); Prohibition on Human Trafficking (Amendments), 5767-2006 (SEFER HAHUKIM [BOOK OF LAWS, the official gazette, SH] 5767 No. 2067 p. 2), adding § 375A to the Penal Law, 5733-1977, SH 5737 No. 864 p. 226, as amended (in Hebrew).)
Section 375A of the Penal Law provides:
- Whoever holds a person under conditions of servitude for the purpose of labor or a service, including sexual services, is subject to imprisonment for a term of 16 years.
- When the offense under sub-section (a) is committed against a minor, the offender is subject to imprisonment [for a term] of 20 years.
- In this section, “servitude” [refers to] a situation in which authority that as a rule is exerted over the property of an individual is applied towards an individual; for this purpose, real control over the life of a person or deprivation of his/her liberty shall be viewed as the implementation of such authority.
The complainant arrived from the Philippines to work as a domestic worker at the home of the appellants’ daughter in Jordan. Four months after her arrival, she was transferred without her consent to the appellants’ home in Jerusalem’s Shuafat neighborhood, where she performed housework for a period of 22 months without a new employment contract. During that period, she lived in a bathroom that included a toilet and a shower, to which a folding bed and a shelf were added. Her passport was held by the appellants and her contacts with family and friends by phone or in person were closely supervised. (Crim.A 6237/12 Ibrahim and Basma Giulani v. State of Israel and Phuig, supra, ¶¶ 2-4.)
The complainant was not given any time off and was prevented from leaving the house by herself, under various pretexts and warnings that she might be arrested by the police as she was unlawfully staying in Israel. At specific times, the complainant was locked in the appellants’ house without having access to a key. The complainant worked on a daily basis from morning to late at night without taking any breaks. (Id. ¶ 5.)
The appellants were convicted by the Jerusalem District Court of the offense of holding a person under conditions of servitude under section 375A of the Penal Law and of the offense of unlawful holding of a passport under section 376A of that Law. Each appellant was sentenced to four months of community service; six months’ probation under the condition that they would not commit for a period of three years any of the offenses of which they were convicted; a fine of NIS2,000 (about US$530); and payment of compensation to the complainant in the amount of NIS15,000 (about US$4,000). (Id. ¶ 1.) The appellants appealed both of the convictions and the sentences.
Supreme Court Decision
The main decision of the Supreme Court was rendered by Justice Hanan Melcer. The following is a summary of the key determinations regarding the offense of holding under conditions of servitude under section 375A of the Penal Law.
- Unequal Enforcement
Justice Melcer rejected the appellants’ claim that they were subjected to unlawful differential enforcement on the basis of origin or nationality. He noted that factual similarity between cases had previously been held insufficient to substantiate a claim for unlawful differential enforcement. To prove such a claim, the appellants had to show that their disparate treatment was unreasonable or that it was based on irrelevant considerations. The appellants failed to prove either of these requirements. Moreover, although the appellants were the first to be indicted under the relatively new offense of holding a person under conditions of involuntary servitude, they were not the only ones to have been so, as other defendants of different ethnic origins, religious persuasions, and nationalities have in the meantime been indicted on charges of committing this offense. (Id. ¶¶ 14-18.)
- The Offense of Holding a Person Under Conditions of Servitude
- Legislative intent
According to Melcer, a review of the explanatory notes of the bill that introduced section 375A reflects the wish of the legislature
[t]o take part in the broad international fight against human trafficking and against the phenomenon of “modern slavery” in the framework of which citizens of poor and developing countries arrive for work in wealthier countries to improve their own and their families’ economic situations, but find themselves enslaved by persons who use their weakness and estrangement in the destination country … . (Id. ¶ 31.)
- Partial Deprivation of Liberty May Amount to Involuntary Servitude
Having analyzed relevant international treaties, case law from the European Court of Human Rights, and United States law, Melcer concluded that it is not necessary that the victim be deprived of liberty at all times to substantiate a claim for holding in involuntary servitude. With the accumulation of additional circumstances, even a temporary deprivation of the victim’s liberty may amount to a degree of deprivation that would justify a conviction on grounds of the servitude offense. Considering the conditions of her employment, Melcer determined, even if the complainant was deprived of liberty only for limited periods within the 22 months of her employment, this deprivation was sufficient grounds for convicting the appellants of the offense under section 375A. (Id. ¶¶ 32-45.)
- Establishing the Fact of Involuntary Servitude
According to Melcer, comparative law analysis indicates that involuntary servitude has been recognized in two main groups of cases; those in which the evidence shows that the victim is subject to control or threats preventing his/her release, and those in which the existence of certain restrictions in combination creates a high level of certainty that the victim was held in conditions of servitude. Such restrictions relate to the victim’s environment, residence, or employment conditions, or to the victim’s sociological condition that attest to his/her weakness and vulnerability to being subjected to limitation of liberty. (Id. ¶ 50.)
Melcer determined that the appellants met the requirements for establishment of the offense under the characteristics of the first group. (Id. ¶ 52.) Melcer also identified several characteristics of the second group of cases as pertaining to the complainant’s case, e.g., she was employed in violation of most of the protective labor legislation in Israel and worked long hours, without weekly or yearly rest, for pay drastically lower than the mandatory minimum, and under inappropriate living conditions. (Id. ¶ 53.)
- Power Disparity
Another element related to circumstances of the complainant’s living and employment conditions, according to Melcer, was the significant power disparity between the victim and the appellants. While the employers were residents of Israel, wealthy, and respected in their community, the complainant was a young woman who upon arrival at their home did not speak any of the local languages (Hebrew or Arabic). She did not have any money, except for small amounts received on holidays, and only one new friend, as she could not leave the appellants’ house except for short forays and did not quite know where she was residing. Depriving the complainant of any leave time and utilizing the complainant’s fear and language incapacity and other disadvantages, Mercer held, “created for the complainant a heightened sense of social weakness.” (Id.)
Melcer determined that the appellants controlled the complainant’s movements, noting that even if the complainant wished “upon leaving for the grocery store to get away, in actuality, without money, a passport, or an effective visa, without knowing any person and without recognizing where she was and where she could go, the complainant in effect could not leave.” (Id. ¶ 55.) The appellants, therefore, met the requirements under section 375A by depriving the complainant of her liberty for purposes of employment. Accordingly, Mercer concluded, “there was no need to determine whether they exerted real control in her life and what the degree of such control was (even if such control were reasonable under the circumstances).” (Id.)
According to Melcer, in adjudicating suits under section 375A, Israeli courts must carefully examine the circumstances of each case on its own merits so that only severe cases of deprivation of liberty or control over victims will lead to criminal convictions, given that, he noted, it is possible that had the complainant been an Israeli citizen, with family relatives and legal status in Israel, and knowledge of the social norms, the same conditions would not indicate her being held under conditions of servitude. (Id. ¶ 56.)
Considering the totality of the circumstances in the current case, including the status, conditions, and relationships between the complainant and the appellants, and interpretation of the provision in view of international legislation and case law, Mercer determined that the appellants were rightly convicted of the offense of holding the complainant under conditions of servitude. (Id.)
Mercer rejected the appellants’ claims regarding the level of compensation for the complainant. He held that “the assertion that the complainant during her stay in Israel deserved pay that constituted one tenth of the minimum, for long work hours, seven days a week, all day, does not meet the requirements of the relevant protective laws and is also humiliating and constitutes harm to human dignity.” (Id. ¶ 72.)
Considering the old age of the appellants, their clean criminal record and their contributions to the community, as well as the fact that this was the first case where enforcement of the offense of holding a person under conditions of servitude had reached the Court, the sentences that were imposed were limited in nature. Mercer opined that anyone who is convicted of this offense in the future should be subject to a much heavier penalty. (Id. ¶ 74.)