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ШПИОНОМ МОЖЕШЬ ТЫ НЕ БЫТЬ - ПРИОБРЕТЯ И ИСПОЛЬЗУЯ СПЕЦСРЕДСТВА
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Институт «Право общественных интересов» (PILnet) приглашает подавать заявки на участие в стипендиальной программе «Право общественных интересов» на 20... (4)
ШПИОНОМ МОЖЕШЬ ТЫ НЕ БЫТЬ - ПРИОБРЕТЯ И ИСПОЛЬЗУЯ СПЕЦСРЕДСТВА (3)
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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