His Majesty Sultan Qaboos Bin Said

Words of Wisdom

“As for our foreign policy, its essence is the call for peace, harmony and close cooperation with all nations, as well as commitment to the principles of righteousness, justice, fairness and non-interference in the internal affairs of others and the rejection of dispute through peaceful means to help safeguard for all mankind its security, stability, prosperity and progress”.

Speech of His Majesty the Sultan, at the opening of the annual session of the Council of Oman, 2012

Editor-in-ChiefAssistant Attorney General

Nasser Abdulla Masuod Al-Riyamy

Managing Editor Chief Public Prosecutor

Maisa Zahran Al-Ruqeshi

Editorial Board Chief Public Prosecutor

Sulaiman Mohammed Sulaiman Al-Marjabi

Public Prosecutor Salim Nasser Khalfan Al-Busaidi

Public ProsecutorFatma Hamad Mohammed Al-Shkaili

Saif Rashid Saif Al-Maamari

Editors Rajaa Juma Ali Al-NadabiEman Saif Ali Al-Shukaili

English EditingMohmammed Hilal Alhajri

Design, Layout & ExecutionRashad Ahmed Alhilali

Mohammed Hamed Nasser Al-Kiyumi Ameera Rashid Salim Rashid AlbadiHafeedha Nasser Abdullah Al-Siyabi

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Issue No. 7, November, 2017

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DisclaimerStatement of facts and opinion within Al Mujtama Walqanoon are made on the sole responsibility of the author and do not imply an opinion on the part of Public Prosecution. They are not be reproduced or cited without prior permission from Public Prosecution.

Contents

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76 Al Mujtama Walqanoon Al Mujtama WalqanoonIssue No. 7, November 2017Issue No. 7, November 2017

V alue readers, it is our pride that the current is-sue of this Magazine, coinsides with our 47th

National Day celebrations. Our pride is even further deepened as we celebrate our second anniversary since we have started promoting legal knowledge to the public through this magazine.

In this issue, we are pleased to publish a historical interview with a man, widely known as “Soldier from Maskan”, the author of the memoirs, written by the first Omani police commissioner (Inspector General of Po-lice and Customs), Gen. Said bin Rashid Al Kalbani. It was a good opportunity to have the chance to sit, twice, with a person who worked with the police force since 1968, until 1995, and furnished us with a clear picture on the role of the police force, then, in criminal proceedings, and how such a role changed after the enactment of the Police Code in 1973, and the enact-ment of Penal Code in 1974.

Moreover, he explained in details about the formation of Public Prosecution within the ROP, in 1984, and how it developed, over the years, until time had come for its fully independence, as a judicial body.

The editorial team of “Almujtama Walqanoon” would like to extend its thanks and appreciation to all those who contributed in the magazine, be it a legal, or liter-ary work, or be it an article, or part of a university the-sis or a poem. We thank also those who offered moral support and guidance and motivated us to continue working on bringing this magazine to light.

Nasser Abdulla Al-RiyamiAssistant Attorney General,Editor-in-Chief

Word from Editor-in-Chief

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It is really a shame that we are in the 21st century and slave trade still exists. One may argue that: such crime against hu-manity doesn’t exist anymore, and we have never heard of slavery in our living days; let alone slave trade. The answer to such ar-gument would be: yes, old type of slavery, where people used to be placed on a plat-form and auctioned in public, we may re-luctantly say do not exist; however, modern type of slavery do exist, and it is far worst than the classic one. Such type of slavery could be found in the form of the so-called ‘human trafficking’.

So, what is human trafficking? Human trafficking (HT), or sometimes known as trafficking in persons (TIP), is the action or practice of illegally transporting people from one country or area to another, typically for the purposes of forced labour or commercial sexual exploitation. It is a serious crime and a grave violation of human rights. Every year, thousands of men, women and children fall into the hands of traffickers, in their own countries and abroad. Almost every country in the world is affected by trafficking, whether as a country of origin, transit or destination for victims.Article 3, paragraph (a) of the Protocol to Prevent, Suppress and Punish Traffick-ing in Persons, which Sultanate of Oman is signatory, defines Trafficking in Persons as the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of de-ception, of the abuse of power or of a posi-tion of vulnerability or of the giving or re-ceiving of payments or benefits to achieve the consent of a person having control over

another person, for the purpose of exploi-tation. Exploitation shall include, at a mini-mum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or prac-tices similar to slavery, servitude or the re-moval of organs. The Omani legislator has adopted the same definition in Article 2 of the Ani human trafficking law.

Elements of human traffickingOn the basis of the definition given in the Trafficking in Persons Protocol, and the National law, it is evident that trafficking in persons has three constituent elements:The Act (What is done):Recruitment, transportation, transfer, har-bouring or receipt of persons.The Means (How it is done):Threat or use of force, coercion, abduction, fraud, deception, abuse of power or vulner-ability, or giving payments or benefits to a person in control of the victimThe Purpose (Why it is done):For the purpose of exploitation, which in-cludes exploiting the prostitution of others, sexual exploitation, forced labour, slavery or similar practices and the removal of or-gans.

Criminalization of human traffickingThe definition contained in article 3 of the Trafficking in Persons Protocol is meant to provide consistency and consensus around the world on the phenomenon of trafficking in persons. Article 5 therefore re-quires that the conduct set out in article 3 be criminalized in domestic legislation. Do-mestic legislation does not need to follow the language of the Trafficking in Persons Protocol precisely, but should be adapted in accordance with domestic legal systems

What is Human Trafficking?

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to give effect to the concepts contained in the Protocol.The national legislation, as required in the Protocol, has criminalized the following: • Any attempts to commit a trafficking in

persons (article 15);• Participation as an accomplice in such

an offence (article 4);• Organizing or directing others to com-

mit trafficking (article 4).• Takes place with or without the involve-

ment of organized crime groups.

Below is an example of a human trafficking case that took place in Muscat Governor-ate in late 2016.

Case on sexual exploitationOn October 12th 2016, victim X, reported to the police that two men (defendant 1 and defendant 2) abducted her while she was in the street, and transported her by their car to a hotel and forced her to engage in sexual relations with them. They then took her to a farm, and sold her to defendant 3, for RO 200. Defendant 3 locked her in a room in the farm, forced her to engage in sexual relations with him; then forced her to prostitution (He was getting paid for her prostitution), and she remained 3 days in this situation. After 3 days, the victim man-aged to escape from the farm; while de-fendant 3 was busy with a customer, she climbed the wall of a neighbouring house and she was rescued by a woman who lived in that house, who took her to the po-lice station.

Victim testimonyAccording to the victim testimony, defen-dant 1 and defendant 2 abducted her when she was in a phone shop, by claiming that they were police officers and were arrest-ing her for not holding residency card. Be-cause of her vulnerability, due to violating Immigration Law and labour law, she had no choice but to believe them, as she had earlier escaped from her employer. They took her to a hotel, forced her to engage in sexual relations with them while she was crying; then took her to a farm where they sold her to defendant 3 instead. Defendant 3 exploited her, by forcing her into prostitu-

tion. He was paid RO. 5 (five) rials by ev-ery man with whom she was forced to have sexual relations, for 3 consecutive days. This situation continued until she was able to run away, and report the police.

The CourtThe Court said that the sworn testimony of the victim is admissible as an evidence. From this testimony, the Court was con-vinced that defendant 1 and defendant 2 tricked (deceived) the victim, misled her by making her believe that they were police officers (taking advantage of the fact that she had escaped from the house of her employer; which is according to the labour law a punishable crime), and abducted her by seemingly arresting her.

Victim’s consentThe irrelevance of the consent of the victim (art 3 of the Omani law on combating hu-man trafficking)The Court rejected the defence’s claims re-garding the consent of the victim. Accord-ing to the Court, there is a crime of human trafficking even without the use of force or abduction; the offence shall be considered as committed in case of the use of coer-cion, of threat, of “trick” (deception) or the abuse of a position of vulnerability. And it has been proved that defendant 1 and de-fendant 2 abused the situation of vulner-ability of the victim (who had escaped from her employer). Moreover, according to ar-ticle 3 of the law 126/2008, the consent is irrelevant where any of the means set in article 2 of the same law have been used.

The judgement The Court was convinced that the defen-dants used the “means” (established in article 2) (coercion, deception and abuse of her position of vulnerability), and exploit-ed the victim sexually (exploitation of her prostitution).The Court convicted the defendants of Hu-man trafficking, and sentenced each of them to 7 years in prison and ten thousand Rials; defendant 3 was also sentenced to expulsion from the country, after serving his sentence.

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by editor-in-chief

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Testimony is considered one of the most commonly used method of proof in criminal matters. In Islam, God has given it a great importance by attributing it to Himself, His angels and best of His creation. He said, “But God bears witness to what He revealed to you. He revealed it with His knowledge. And the angels bear witness. Though God is a sufficient witness.”

Prophet Mohammed, peace be upon him (PBUH), has called for treating witnesses with dignity and care. He said, “Honor witnesses as by them God revives rights”.It could be defined as what a person reports of what he/she has seen, heard or perceived in the incident that he or she is there to testify. Thus, it could be in a form of an audio or a visual statement as per the sense through which the witness has perceived.

What is the role of witnesses in investigations?Do they have the right to refrain from giving their testimony? Do they have to swear in before giving their statement? What is the weight of testimony at court? These are the most commonly asked questions before and during witness interview. Such questions will be dealt with subsequently.

First, we have to realize that giving a testimony is a moral and religious duty. The Holy Quran dictates

Legal awareness

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not to withhold a testimony and describes those who do so as “sinners at heart”. It is also a legal obligation for whomever is summoned to testify.

Failure to do so will held the witness legally accountable as per article (188) of the Penal Code, which states: “ Every person who has been summoned to testify before the judiciary or the administrative authority entrusted with investigation and failed to appear for illegitimate or unacceptable reasons shall be sentenced to imprisonment from ten days to three months and a fine from one to fifty Rials.”However if the witness does appear but refrains from testifying or from swearing in, it may make him liable for paying a fine of no more than two hundred Omani rials. The witness may be exempted from all or some of the sentence if he changes his mind before the conclusion of the investigation as per article (111) of the Criminal Procedures Code.

Despite that, the Omani legislation takes into account the importance of protecting familial ties; offsprings may refrain from testifying against their parents. The same applies between siblings, and spouses,

even after the end of the marital relationship; except if the crime was committed on one of them or if there is no other evidence. Besides, any individual who has information on a crime or circumstances on its commission may head to public prosecution on his own initiative, without being summoned, to disclose all information that he has come to acquire.

However, witnesses must not commit any act of perjury for a payment or a reward of any sort. They shall not be coerced, be biased, or testify for vengeance, with ill intent or simply to lie. Failure to comply with the aforementioned will have a severe consequence on the process of justice by convicting the innocent and exonerating the real culprits. The law has given a severer punishment to whomever denies or withholds some or all facts that they are asked about. Such actions are considered an act of perjury that is punishable by three years imprisonment, if the original case that he/she was summoned to give testimony was misdemeanors or ten years if it was felony. If the act of perjury against someone leads to him receiving the capital punishment, the perjurer shall be sentenced to life imprisonment or capital punishment. Due to the importance of testimony in changing the course of investigation, the law obliges witnesses who have reached the age of 18-years to swear-in before giving their testimony. They are usually made aware of their responsibility under the law and of the situation that requires honesty and disclosure of what they know only before disclosing their statements. However, the testimonies of witnesses under eighteen (minors) are not taken under oath. Judges may use their statements if they are corroborated with other evidences. In general, testimony, as a method of proof, is subject to the judge’s discretion. The judge may admit or dismiss it partially or completely.

Al Mujtama WalqanoonIssue No. 7, November 2017

The Role of Witness in Criminal ProceedingsBy Sulaiman Al Marjabi

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Do you know?

Do you know that forcing your employees to abandon their gratuity, or requesting any money from them in re-turn for giving them ‘no objection certificate’; so that they can be allowed to work for another sponsor is consid-ered a form of labour exploitation? For this act, you may be prosecuted for human trafficking, which is punishable by three to seven years imprisonment and a fine ranging from five thousand to a hundred thousand Omani rials.

Article (2) of Anti Human Trafficking Law

Do you know that any deliberate negligence of your duties is a crime whose sentence is a fine from five to one hundred rials. If the act of negli-gence has caused damages to the state interests, the perpetrator shall be sentenced to an imprison-ment ranging from one month to one year. Article (162) of the Penal Code

Do you know that giving your vehicle (whether owned or used by you) to a person not licensed to drive that particular type of vehicle is a traffic offense. The sentence of such offense is an imprisonment for three months and a fine up to five hundred or either one of these two sentences.The same sentence is applicable to whoever gives a vehicle to a person who is under the influence of alcohol, drugs or other psychotic substances or who is suffering from illness that has impact on his or her ability to drive.

Article (41) of the Traffic Law

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Raga Al-NadabiProofreader

Do you know that Imitating registered trademark (regardless of its form), placing it on a commod-ity or any commercial good or displaying a com-modity or merchandise bearing a counterfeited or usurped trademark is an offense punishable by imprisonment from three months to three years and a fine of twenty to five hundred Omani rials.

Article (305) of the Penal Code

Do you know that threatening a person to commit a felony against him, by the means of writing – even if it is envel-oped – or through a third person, is considered an offence punishable by a sentence from one to three years. If the act of threatening includes committing or refraining from an act even if it is permissible, the perpetrator shall be punished by a fine from twenty to five hundred Omani rials.

Article 226 of the Penal Code.

Do you know that carrying firearms or any prohib-ited weapons in public, without being licensed by the competent authority is considered to be an of-fence, punishable by imprisonment ranging ten days to three months and a fine from ten to three hundred Omani rials. All tools or instruments that jeopardize the public safety, used at war, or identified as such by the com-petent authority shall considered as weapons.

Article 139 of the Penal Code.

Do you know that giving false statement before the competent authority or submitting falsified documents in order to obtain any type of visa, or residency permit is an offense punishable by a sentence between one to three years and a fine between one to five hundred Omani rials or either one of these two sentences.

Article 41 of the Foreign Residency Law

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Congratulationsto

His Majesty Sultan Qaboos Bin Said and the People of Oman

on the Occasion of47th National Day

47th