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29.12.2008

 

   EUROPEAN COURT

   OF HUMAN RIGHTS

   Council of Europe

   Strasbourg

   By fax and by mail

   Application No. 25965/04

   Rantsev v. Cyprus and Russia

   14 December 2008 

   The written oservations in reply to the Russian Federation authorities
   
   On 28 October 2008 the Russian Federation authorities submitted to the
   European   Court  of  Human  Rights  their  Memorandum  regarding  the
   admissability and the merits of the application.

   Having  exained  the abovementioned Memorandum, we forward our written
   observations in reply to it.

   1.  What is the extent of Russia's positive obligations under Articles
   1,  2 and 4 of the Convention in respect of the investigation into the
   death of the applicant's daughter and the circumstances of her arrival
   in Cyprus and the nature of employment there?

   Article 1 of the Convention provides that the High Contracting Parties
   shall  secure  to  everyone  within  their jurisdiction the rights and
   freedoms defined in Section I of this Convention.

   Following   the  case-law  of  the  European  Court  of  Human  Rights
   (hereinafter  referred  to  as <>) it does not matter where
   the  alleged  violation  of  rights  and  freedoms  guaranteed  by the
   European  Convention  of  the Human Rights (hereinafter referred to as
   <>)  took place. In this case it is more important if
   the applicant is a subject of the jurisdiction of this state, and this
   state can be found guilty for the alleged violation.

   Under   the   established   case-law  of  the  Court  the  concept  of
   "jurisdiction"  under Article 1 of the Convention is not restricted to
   the  national  territory  of  the Contracting States. Accordingly, the
   responsibility  of  Contracting  States  can  be  involved by acts and
   omissions of their authorities which produce effects outside their own
   territory  (judgment  of  Loizidou  v. Turkey, dated 18 December 1996,
   judgment  of  Drozd  and  Janousek  v. France and Spain, dated 26 June
   1992, judgment Cyprus v. Turkey, dated 10 May 2001).

   The  Court  also  underlines  that <> (D 1611/62, Ann.,
   Vol.  8, p. 159, spec. p. 169). In its later case-law the Court states
   that  <>  covers  not  only  the  territorial  liability of the
   concerned  case.  The  state  can  also  be responsible for actions or
   omission committed outside its territory.

   As  to  the  positive  obligations  of  Russia  under Article 2 of the
   Convention  the  Russian Federation should have focused in the present
   case  on  the  investigation  of  the  death's  circumstances  of  the
   applicant's  daughter,  and  also  the circumstances of her arrival in
   Cyprus and the nature of employment there.

   In  the  judgment  of  the case McCann v. the United Kingdom the Court
   stated  that the obligation to protect the right to life under Article
   2 of the Convention, read in conjunction with the State's general duty
   under  Article 1 of the Convention to "secure to everyone within [its]
   jurisdiction  the  rights  and  freedoms defined in [the] Convention",
   requires  by  implication  that there should be some form of effective
   official  investigation  when individuals have been killed as a result
   of the use of force.

   More  than  that the conduction of the investigation should not depend
   on application of the victim's relatives with an official complaint or
   a  claim to take specific actions. The Court established that the fact
   itself,  that  the  authorities  are  informed  of  a murder, leads to
   obligations   of   conduction   of   effective  investigation  of  the
   circumstances  of death. The state's failure to fulfil this obligation
   is  considered  by  the  Court  as  the  violation of Article 2 of the
   Convention.

   Article  2  of  the  Convention may imply a positive obligation on the
   authorities  of  a  Contracting  State  to take preventive measures to
   protect  the  life  of  an individual from the danger posed by another
   individual.

   The positive obligaions of the state means that the states are obliged
   to  take  measures  for  protection  of  the  rights guaranteed by the
   Convention.  If  such  measures  are  not taken, the state can be foud
   guilty  for actions of individuals or group of persons (judgment X and
   Y  v. the Netherlands, dated 26 March 1985, judgment М.С. v. Bulgaria,
   judgment Osman v. the UK).

   Pursuant  to Articles 1, 2, 4 of the Convention the Russian Federation
   had  the obligation to carry out effective and prompt investigation of
   the  circumstances  which led to the death of Rantseva O.N., including
   the  circumstances  of  her  arrival  in  Cyprus  and  the  nature  of
   employment there.

   Therefore,   the   argument   of  the  authorities,  that  the  prsent
   application is inadmissable (ratione loci), is unreasonable.

   2.  The Russian authorities are requested to clarify the nature of the
   request  made to the Cypriot authorities. Moreover, they are requested
   to confirm the following:

   (i)  whether   it  was  a  request  for  the  initiation  of  criminal
   proceedings  in Cyprus, a request enabling them to collect evidence to
   initiate  criminal proceedings in Russia or whether it was made with a
   view to protect the interests of a Russian national;

   Under  Article  3  of  the Treaty between the USSR and the Republic of
   Cyprus  on legal assistance in civil and criminal cases (hereinafter -
   <> (the letter of the General
   Prosecutor  dated 3 June 2003), the request "on providing the detailed
   information  concerning  the circumstances of Rantseva O., the Russian
   citizen"  (the  letters of the General Prosecutor dated 31 March 2003,
   17  March 2003), which is not a request for the initiation of criminal
   proceedings  provided in Article 36 of the Treaty in spite of the fact
   that  Rantsev  N.M.  Submitted  to the Russian authorities with such a
   request (the letter of the General Prosecutor dated 27 December 2001).
   The letters of the Russian aurthorities do not contain the request for
   the  initiation  of criminal proceedings (the letter of the Prosecutor
   Office  of the Chelyabinsk region dated 8 October 2001, the letters of
   the  Russian  Federation General Prosecutor dated 11 December 2001 and
   27 December 2001).

   (ii)  whether  any  parallel  and  independent  investigation into the
   relevant events took place in Russia;

   On  25  April  2001  the  applicant submitted to the Department of the
   Federal  Service  of Security of Russia in the Chelyabinsk Region with
   the  application  to  initiate  the criminal proceedings regarding the
   death  of his daughter. This application was sent to the Prosecutor of
   the Chelyabinsk Region on 16 May 2001.

   On  18  June  2001  the  Prosecutor  Office  of Chelyabinsk refused to
   initiate  the  criminal proceedings as Rantseva O. died outside Russia
   and  recommended  to  apply  to law-enforcement agencies of that state
   where  the  tragic  death  took place. At the same time the Prosecutor
   Office  of  Chelyabinsk  failed  to  carry  out  the  investigation of
   circumstances  which  led  to  the  tragic  death  (recruiting,  visas
   support, conclusion of contracts).

   The  argument  of the Russian authorities that by the amendment of the
   Criminal Code of the Russian Federation dated 27 July 2006 the General
   Prosecutor  Office  of the Russian Federation had the official replies
   of  the  authorities  of the Republic of Cyprus, which did not provide
   efficient  information  for  initiating  the  criminal  proceedings in
   Russia,  is  unreasonable  and  strange  as  for  5  years the Russian
   Federation  was  carrying  on  an  official  correspondence  with  the
   Republic  of  Cyprus  regarding  the  death  of Rantseva O.N., and the
   Russian  authorities  had  the  power and possibilities to collect the
   relevant  materials  connected  with  the  death  of  the  applicant's
   daughter.

   As  it  follows  from  the  letters  of the Russian Federation General
   Prosecutor  Office,  Ministry  of  Foreign  Affairs,  Embassy  in  the
   Republic  of  Cyprus to the applicant they were satisfied with answers
   of  the  Cypriot authorities. However, when the question of initiating
   the  criminal proceedings in Russia was raised the Russian authorities
   stated   the   contrary  and  thus  it  reveals  the  inefficient  and
   ineffective work of the Russian bodies according to the Treaty.

   (iii)  whether  any evidence was collected which added to the material
   forwarded to your Government by the Cypriot authorities;

   To  clarify  the  circumstances  of Rantseva's death the evidence were
   collected  by Rantsev himself for handing them over to law-enforcement
   agencies. It is confirmed by the Memorandum of the Russian authorities
   (answer  to  question 2 (iii)), by the letter of the deputy of Nikitin
   V.P.  Dated  20  February 2002, requests of the applicant to different
   institutions.

   (iv)  whether  any  steps  were  taken to obtain the testimonies of Ms
   Olga  Osincesava  and  Ms Yianna Bibalceva (see the attached statement
   of facts) in accordance with the applicant's request to that effect.

   The  applicant  repeatedly applied to the Russian authorities with the
   request  to  interrogate  two  Russian  girls. But unsuccessfully. The
   General Prosecutor of the Russian Federation sent the applicant formal
   replies  and  stated  that  the  interrogation  can  be  possible only
   pursuant  to  a relevent request on legal assistance from the Ministry
   of  justice  and public order of the Republic of Cyprus. This argument
   is  unsubstantiated  and  contradicts  Article  3  of the Treaty which
   allows  the  Russian  Federation  to request the Republic of Cyprus to
   interrogate  witnesses.  The  means  of execution would remain for the
   Cypriot authorities.

   3.  Having  regard  to  the procedural protection of the right to life
   (see  paragraph  104  of  Salman  v.  Turkey  [GC], no. 21986/93, ECHR
   2000-VII),  was  an  investigation into the circumstances of the death
   of  the applicant's daughter conducted by the Russian authorities and,
   if so, was it in breach of Article 2 of the Convention?

   As  it was already stated, in spite of the application of Rantsev N.M.
   the  Prosecutor  Office of the Chelyabinsk Region refused to inintiate
   the  criminal  proceedings  in  Russia  on  18  June  2001.  In  their
   Memorandum  the  Russian authorities confirmed that they did not carry
   out  an  investigation  also  after  making amendments to the national
   criminal law.

   The  evidence of unnatural death of Rantseva O.N. was collected by the
   applicant,  in  particular,  due  to  his  travel to Cyprus at his own
   expense,  and  also  due  to  initiating  conduction  of  the forensic
   expertise  of  the  daughter in the Chelyabinsk Bureau of the Forensic
   Medicine.

   Therefore,  the Russian authorities did not comply with the obligation
   to  protect  the right to life under Article 2 of the Convention, read
   in  conjunction  with  the State's general duty under Article 1 of the
   Convention to "secure to everyone within [its] jurisdiction the rights
   and  freedoms  defined  in  [the] Convention", requires by implication
   that  there  should  be  some form of effective official investigation
   when  individuals  have  been  killed  as a result of the use of force
   (judgment  McCann v. the UK, dated 27 September 1995, judgment Kaya v.
   Turkey,  dated  19  February 1998, judgment Salman v. Turkey, dated 27
   June 2000).

   4.  In  all  the circumstances of the case, has there been a violation
   of  Article 4 of the Convention (see Siliadin v. France, no. 73316/01,
   ECHR 2005-VII)?  In  particular, the Russian authorities are requested
   to   explain   whether  any  steps  were  taken  to  ensure  that  the
   applicant's  daughter  had  not  been a victim of trafficking in human
   beings  or subjected to any sexual or other form of exploitation prior
   to her departure for Cyprus.

   The  states must adopt the relevant laws for combating the trafficking
   in  human beings as it is stated in the judgment of the Court Silidian
   v. France dated 26 July 2005.

   In  2001  the  criminal  legislation of the Russian Federation did not
   consider traficking in human beings as a criminl act. The law changed,
   and  since December 2003 trafficking in human beings and use of forced
   labour  began  to  be  considered as criminal acts. But in the present
   case  the  norms  of  the  Criminal Code concerning the trafficking in
   human beings were not applied.

   As to the argument of the Russian authorities concerning the fact that
   Rantseva  O.N.  voluntarily arrived in Cyprus and voluntarily received
   the job as the artist of the cabare it should be noted the following.

   As  the  Court stated in its case-law, in particular, judgment Van Der
   Mussele v.Belgium (dated 23 November 1983), a distinctive charastic of
   human  trafficking  is  the  irrelevance  of  the  victim's consent to
   exploitation.  While being aware of the general nature of that work, a
   person  may  be misled about the conditions of work, which have turned
   out to be exploitative and coercive.

   Having argued regarding the measures adopted by the Russian Federation
   for  prevention  of  trafficking, the Russian authorities refer to the
   recomendations  and warnings through mass media concerning the problem
   connected  with trafficking in human beings as the only measure. As it
   followed  from the international agreements, the information campaigns
   are one of the measures which states should adopt.

   Moreover,   the   Russian   Federation  is  aware  of  situation  with
   trafficking  in human beings in Cyprus, in particular, the practice of
   keeping  young  women  under the total control and exploiting them for
   sexual service by their employers. It is also confirmed by the reports
   of  the  Council of Europe Commissioner for Human Rights on his visits
   to  Cyprus in 2004 and 2006 which demonstrates that the situation with
   trafficking  in  human beings, in particular, young women migrating to
   Cyprus  as nightclub artists deteriorated. Thus the Russian Federation
   must  have  adopted  measures for prevention of trafficking and sexual
   exploitation of Russian women.

   Therefore,  the authorities of the Russian Federation violated Article
   4 of the Convention.

   Legal representative

   before the European Court of Human Rights

   Ludmila Churkina___________________

                                                                        8


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