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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 authorities of the Republic of
   Cyprus 

   On 28 October 2008 the authorities of the Republic of Cyprus 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.  Has the applicant's daughter's right to life, ensured by Article 2
   of the Convention, been violated in the present case?

   The authorities of the Republic of Cyprus are requested to address, in
   particular,  the  extent  to  which  the  decision taken by the police
   officers  on 28 March 2001 not to release the applicant's daughter but
   to   hand  her  over  to  Mr  Athanasiou  was  compatible  with  their
   obligations to protect her right to life.

   Moreover,  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  the  investigation  in  the  present case by the
   domestic authorities in breach of Article 2 of the Convention?

   Article  2  of the Convention provides the obligation of the state not
   only  to  refrain from the illegal deprivation of life but to take the
   relevant  measures  so  that to protect the life, including to provide
   the  right  to  life to be guaranteed by the national legal system. It
   requires  the  law  prohibiting the Сdeprivation of life -- the law on
   criminal liability for the murder.

   Article 7 of the Constitution of the Republic of Cyprus guarantees the
   right  to life: <>.

   The  laws  should  also be supported by the law-enforcement system for
   prevention  of  violence  and  also effective investigation of illegal
   murders.

   According  to part 2 of article 113 of the Constitution of Republic of
   Cyprus   the   AttorneyGeneral  of  the  Republic  shall  have  power,
   exercisable  at  his  discretion  in the public interest, including to
   institute,  conduct,  take  over  and  continue any proceedings for an
   offence  against  any  person  in  the  Republic.  Such  power  may be
   exercised  by  him  in person or by officers subordinate to him acting
   under  and  in accordance with his instructions. Under Article 172 the
   Republic  shall  be  liable  for  any wrongful act or omission causing
   damage  committed  in the exercise or purported exercise of the duties
   of officers or authorities of the Republic.

   In  the  judgment  Osman v. the United Kingdom, dated 28 October 1998,
   the  Court  stated  t positive obligation for State to take preventive
   operational  measures  to  protect  individual whose life at risk from
   criminal  acts  of  another  individual - on other hand, scope of such
   obligation  contested  -  for  Court,  it  must  be established to its
   satisfaction  that  authorities knew or ought to have known at time of
   existence  of real and immediate risk to life of individual and failed
   to take measures which, judged reasonably, might have been expected to
   avoid said risk.

   The  argument  of the authorities of the Republic of Cyprus that there
   was  no  failure  to  protect  the  right  to  life of the applicant's
   daughter  is  unreaasonable  as the police officers did not suspect of
   the  applicant'  s  daughter tragic death. In the decision of the case
   Yasa v. Turkey the Court underlined that the state can be found guilty
   for  violation  of Article 2 due to failure of obligations even if the
   death of a person occured due to officials or persons subordinating to
   them.

   It  also  follows  from the general obligation to protect the right to
   life  that  the  Republic  of Cyprus has the obligation to conduct the
   effective  investigation of the circumstances of the death despite the
   circumstances and the direct liability of the state officials.

   As  it was stated above, the law provides that the Attorney General of
   the  Republic  has  the  power to institute as well as to continue the
   proceedings. But the Cypriot authorities did not use such a procedure.
   Moreover,  the  authorities  of  the  Republic  of Cyprus ignored also
   Article  172 of the Constitution which makes the state responsible for
   illegal actions or omission of officials and authorities.

   The  authorities of the Republic of Cyprus states that th epolice took
   reasonable  steps  to  secure evidence concerning the death, including
   eyewitness   testimony,  forensic  evidence  and  autopsy.  But  these
   measures  did  not  lead to determination of real circumstances of the
   death  and  identification  of responsible persons. On 10 October 2001
   the  office  of the Attorney General of the Chelyabinsk Region sent to
   the  Cyprus  Ministry  of  Justice  and Public Order the report of the
   Chelyabinsk   Bureau  of  Forensic  Medicine  which  contradicted  the
   conclusion  of the medical experts of Limasol on Rantseva's death. The
   General  Attorney  of the Russian Federation repeatedly applied to the
   Cyprus  Ministry  of  Justice and Public Order with requests for legal
   assistance  so that to determine the circumstances of the death of the
   applicant's  daughter. However, the Republic of Cyprus confined itself
   to  the testimonies of 7 persons. Five of them -- police officers, Mr.
   Athanasiou,  Mr.  and  Mrs.  Psevdiotis -- were interested persons and
   could  not give objective and truthful testimonies. As to the forensic
   report  of  S.  Sophoclerous  it  is  impossible  to  examine it as an
   evidence  as  it was not submitted by the Cypriot athorities. There is
   only reference to this report in the materials available.

   The  Court  reiterates  that the positive obligations laid down in the
   first  sentence  of  Article  2  of  the  Convention  also  require by
   implication  that  an efficient and independent judicial system should
   be  set in place by which the cause of a murder can be established and
   the  guilty  parties punished (judgment Mastromatteo v. Italy dated 24
   October 2002)

   Besides,  it  should  be noted that conduction of 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.

   To comply with the procedural obligation on protection of the right to
   life   the   state   should   carry   out  effective  and  independent
   investigation,  with reasonable promptness, accessible to the victim's
   family (judgment Bubbins v. the UK, dated 17 March 2005).

   As  it  follows  from  the  materials  available  to the applicant the
   investigation finished with the court's conclusion of 27 December 2001
   according  to  which  the  applicant's  daughter  died  under  strange
   circumstances  requiring  elaboration.  At  the same time there was no
   further investigation. Thus, the authorities of the Republic of Cyprus
   refused  to investigate the reasons of the death of Rantseva O.N., and
   it  amounts  to  violation of Article 2 of the Convention according to
   the  case-law  of  the Court (judgment Berktay v. Turkey dated 1 March
   2001).

   Therefore,  the  Republic of Cyprus failed to take reasonable measures
   within  their  powers to avoid the real and immediate risk for life of
   Rantseva  O.N.  and  to  carry  out the effective investigation of the
   death's circumstances and thus violated Article 2 of the Convention.

   2.  Was  the  applicant's  daughter  subjected to inhuman or degrading
   treatment  prior  to  her  death,  by the authorities or other private
   individuals, in breach of Article 3 of the Convention?

   Having  regard  to the procedural protection from inhuman or degrading
   treatment  (see  paragraph  131 of Labita v. Italy [GC], no. 26772/95,
   ECHR 2000-IV),  was  the  investigation  in  the  present  case by the
   domestic authorities in breach of Article 3 of the Convention?

   The  arguments  of  the  Republic  of  Cyprus  on  this  question  are
   unreasonable  and  demonstrates  that  the Cypriot authorities did not
   carry  out the investigation if the applicant's daughter was subjected
   to inhuman or degrading treatment or punishment.

   As  it was stated above the Cypriot authorities received the report of
   the  Chelyabinsk  Bureau  of  the  Forensic  Medicine  which refers to
   injuries  of Rantseva's body appeared during the life and also traumas
   caused by a fall from a considerable height in two stages during which
   the initial contact of the body with an obstacle in the final phase of
   the  fall  was  on the back of the body with a possible sliding motion
   followed by a secondary impact on the front surface of the body. These
   findings contradicted the conclusion of the Cypriot experts.

   Besides, as it follows from the reply of the Chelyabinsk Bureau of the
   Forensic   Medicine  the  building  from  which  as  supposed  by  the
   investigation  the  victim fell down does not go with either by height
   nor  by  relief.  It  demonstrates  that  the  fall  was  from another
   building.

   It  is  unclear  from the testimonies of police officers, Mr. And Mrs.
   Psevdiotis,  Mr. Athanasiou, if Rantseva's injures appeared during her
   life, if they saw the tracks of such injuries.

   Despite  the  above mentioned the Republic of Cyprus did not carry out
   an  effective  investigation if the applicant's daughter was subjected
   to inhuman or degrading treatment prior to her death and did not carry
   out   a  repeated  investigation  even  after  providing  the  Cypriot
   authorities  with  the  report  of  the Chelyabinsk Bureau of Forensic
   Medicine by the Russian authorities.

   According to the positive obligation under Article 3 of the Convention
   the  state  should  take  measures  for  protection  of  a person from
   ill-treatment not only of officials but also private persons. Besides,
   the state should carry out an effective investigation of ill-treatment
   and provide an effective system of protection of victims' rights.

   Article  3,  taken  in  conjunction  with  the obligations of the High
   Contracting  Parties  under  Article  1 of the Convention to secure to
   everyone  within their jurisdiction the rights and freedoms defined in
   the  Convention,  requires  States to take measures designed to ensure
   that  individuals  within  their  jurisdiction  are  not  subjected to
   torture  or  inhuman  and degrading treatment or punishment, including
   such treatment administered by private individuals (judgment of Pretty
   v.  the UK, dated 29 April 2002). The State responsibility may also be
   engaged   where  the  framework  of  law  fails  to  provide  adequate
   protection  or  where the authorities fail to take reasonable steps to
   avoid  a  risk of ill-treatment about which they knew or ought to have
   known (judgment of Mahmut Kaya, dated 28 March 2000).

   Therefore,   the   Republic  of  Cyprus  violated  Article  3  of  the
   Convention.

   3. 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 authorities are requested to explain in detail what
   measures  were  taken  by  the  authorities  to  ascertain whether the
   applicant's  daughter had been a victim of trafficking in human beings
   and/or had been subjected to sexual or any other kind of exploitation.

   Moreover,  the  authorities  of  the Republic Cypriot are requested to
   address  in  particular  the  fact that the police officers were aware
   that the applicant's daughter had sought to escape from the control of
   Mr  Athanasiou,  and  the extent to which they sought to ascertain the
   risks involved in handing her back to this person.

   According to the comments of the Cypriot authorities on this question,
   the  authorities  made  no  measures  to  clear  up if the applicant's
   daughter  had  been a victim of trafficking in human beings and/or had
   been  subjected  to  sexual  or  any  other  kind of exploitation. The
   Cypriot  authorities also could not explain the reasons concerning the
   fact  that  the  police  officers  handed  Rantseva  O.N.  over to her
   employer.

   The  state  should adopt the relevant laws for combating traficking in
   human  beings  as  it is stated in the Council of Europe Convention on
   Trafficking  and  confirmed  by  the  case-law  of  the European Court
   (judgment of Silidian v. France dated 26 July 2005).

   Article  10  prohibiting  slavery,  servitude,  forced  and compulsory
   labour  seems  to be illusiory and not to work in practice. 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.

   According  to  Article  5  of  the  Council  of  Europe  Convention on
   Trafficking  each  party shall establish and / or strengthen effective
   policies  and  programmes  to  prevent trafficking in human beings, by
   such  means as: research, information, awareness raising and education
   campaigns, social and economic initiatives and training programmes, in
   particular, for persons vulnerable to traficking and for professionals
   concerned with traficking in human beings.

   4.  Was  the  applicant's  daughter's  treatment at the police-station
   consistent  with Article 5 S: 1 of the Convention? The authorities are
   requested  to  address  in particular the authorities' decision not to
   release her but to hand her over to Mr Athanasiou.

   The  Court has frequently emphasised the fundamental importance of the
   guarantees   contained  in  Article  5  for  securing  the  rights  of
   individuals  in a democracy to be free from arbitrary detention at the
   hands of the authorities (see, amongst others, the Kurt judgment cited
   above,  pp.  1184-85,  S:  122).  In  that  context, it has repeatedly
   stressed  that  any  deprivation  of  liberty  must not only have been
   effected  in  conformity  with the substantive and procedural rules of
   national  law  but must equally be in keeping with the very purpose of
   Article  5, namely to protect the individual from arbitrary detention.
   This  insistence on the protection of the individual against any abuse
   of  power is illustrated by the fact that Article 5 S: 1 circumscribes
   the  circumstances  in  which  individuals may be lawfully deprived of
   their  liberty  (judgment  of  Kurt  v.  Turkey  dated 25 August 1998,
   judgment of Cakici v. Turkey dated 8 July 1999).

   The  Court  notes  at  the  outset  the  fundamental importance of the
   guarantees   contained   in   Article 5  for  securing  the  right  of
   individuals  in a democracy to be free from arbitrary detention at the
   hands  of  the  authorities.  It is precisely for that reason that the
   Court  has repeatedly stressed in its case-law that any deprivation of
   liberty  must  not  only  have  been  effected  in conformity with the
   substantive  and  procedural rules of national law but must equally be
   in  keeping  with the very purpose of Article 5, namely to protect the
   individual  from  arbitrariness.  This insistence on the protection of
   the  individual  against any abuse of power is illustrated by the fact
   that   Article 5   S:  1  circumscribes  the  circumstances  in  which
   individuals  may  be lawfully deprived of their liberty (judgment Kurt
   v. Turkey dated 25 May 1998, judgment Cakici v. Turkey 8 July 1999).

   Rantseva  O.N. was a citizen of the Russian Federation, was legally at
   the  territory  of  the  Republic  of Cyprus. She was unreasonably and
   illeglly  detained  by Mr. Athanasiou and sent to the police. Though a
   person  can  be  detained/arrested  only  by  the  police. Having kept
   Rantseva  O.N.  in  the  police,  the  police officers should settle a
   document  and  specify the grounds of the Russian girl's detention and
   handing  her  over  to  Mr. Athanasiou, though they knew that she left
   him, the grounds according to which they did not release her.

   Under  Article  9  of  the Criminal Procedural Code of the Republic of
   Cyprus:  "In  making  an  arrest,  the  police officer or other person
   making the same shall actually touch or confine the body of the person
   to be arrested, unless there be a submission to the custody by word or
   action. If the person to be arrested forcibly resists the endeavour to
   arrest  him  or  attempts  to  evade the arrest, the police officer or
   other  person  making the arrest may use all means necessary to effect
   the  arrest.  Provided that nothing in this subsection contained shall
   be  deemed  to justify the use of greater force than was reasonable in
   the  circumstances  in  which it was employed or was necessary for the
   arrest  of  the  offender.  Except  when the person arrested is in the
   actual   course  of  the  commission  of  an  offence  or  is  pursued
   immediately  after the commission of an offence or escapes from lawful
   custody,  the  police  officer or other person making the arrest shall
   inform the person arrested of the cause of the arrest."

   The  Cypriot  law  provides the possibility of a foreigner's detention
   and  further  deportation  if she/he violated: the procedure of entry,
   going  as  transit  without  a  visa  and  a  ticket to the country of
   destination,   arrival  in  Cyprus  for  holidays  without  sufficient
   financial  means  and  a  return  ticket,  being in a list of unwished
   persons, etc.

   The  deprivation  of  liberty should comply not only with the national
   legislation   but   should   also   potentially  to  satisfy  a  wider
   interpretation   of   the   concept  <>  provided  by  the
   Convention.  The  deprivation  of  liberty  of  Rantseva O.N. could be
   followed  the  specific  procedure:  submitting  a  statement  by  Mr.
   Athanasiou.  As  it follows from the materials available, there was no
   such  a  statement,  there was also no official document providing the
   legal  grounds  for  deprivation  of  a  person's liberty, which means
   violation  of Article 5 of the Convention. The Cypriot authorities did
   not  submit  such  a  document  to  the  European  Court  and confined
   themselves by identical testimonies of police officers.

   The Cypriot authorities did not mention any grounds according to which
   the  applicant's daughter was detained, was kept in the police and was
   handed  over  to  the  employer. Thus the Cypriot authorities violated
   Article 5 of the Convention.

   5.  Was  the  applicant's  right  to  effective  access  to  a  court,
   guaranteed  by  Article  6  of  the Convention, ensured in the present
   case?  In  particular,  The  authorities of the Republic of Cyprus are
   requested   to   clarify   whether  any  decision  was  taken  on  the
   applicant's  request  for  legal aid to participate in the proceedings
   and   what   steps   were  taken  to  ensure  the  applicant's  proper
   notification  about  any  ongoing proceedings and other legal remedies
   that he could resort to.

   In  the  judgment of the case Prince Hans-Adam II de Liechtenstein the
   Court  underlined that the purpose of the Convention is to protect not
   the  theoretical  or  illusiory  but  specific  and  real  rights.  It
   concerns, in particular, the right to an access to a court taking into
   account  the  signigicance  of  the  right  to  a  fair  trial  in the
   democratic society.

   The degree of access afforded by the national legislation must also be
   sufficient  to  secure  the  individual's  "right  to a court", having
   regard  to  the  principle of the rule of law in a democratic society.
   For  the  right  of  access to be effective, an individual must have a
   clear,   practical   opportunity  to  challenge  an  act  that  is  an
   interference  with  his  rights  (judgment of F.E. v. France, dated 30
   October 1998).

   First  of all, it should be noted that there was no trial on the case.
   The  Limasol  court made a conclusion and did not deliver any judgment
   on  the  case.  Moreover, the state did not provide the applicant with
   free  legal  assistance  and  hiring  a  lawyer  in  Cyprus  is rather
   expensive.  Mr.  Rantsev  already applied to the legal consultant from
   ANDREAS  NEOCLEOUS  &  CO  to  receive the legal aid while he tried to
   collect the evidence in Cyprus once after the death of his daughter in
   2001.

   In  the  present  case  the  access  of the applicant to the court was
   limited: despite of the request of 10 October 2001 sent to the Limasol
   court  on  providing the possibility of the participation at the trial
   Rantsev  N.M. was not informed on the hearing of 27 December 2001, and
   thus  he  could  not  take part in the proceedings of 27 December 2001
   where the circumstances of his daughter's death were considered, could
   not  receive  the  testimonies  of the witnesses (two girls who worked
   with  his  daughter  and  had  information  concerning her leaving the
   employer  and  likely  could clarify what happened before the death of
   Rantseva O.N. and also the circumstances of her death).

   The  above  mentioned facts demonstrate that the Cypriot authorities's
   argument on fulfillment of the applicant's requests is unreasonable.

   More  than  that  the  applicant  was  not  informed about the ongoing
   process  and  other remedies which he could address. The conclusion of
   the  Limassol  court  was  received  by the applicant only on 16 April
   2003.

   It  was  difficult  for  the  applicant to initiate the proceedings in
   courts  of  Cyprus due to the lack of efficient financial means to pay
   for the Cypriot lawyers.

   Therefore,  the  authorities of the Republic of Cyprus did not provide
   the  applicant  with the effective access to court and thus undermined
   the essence of the right guaranteed by Article 6 of the Convention.

   Legal representative

   before the European Court of Human Rights

   Ludmila Churkina___________________

                                                                        7


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