Судебное дело "Ранцев против Кипра и России"
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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