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ХОДАТАЙСТВО об отмене согласно части 3 статьи 381 Гражданского процессуального кодекса РФ определения судьи Верховного Суда РФ Асташова С.В. от 0...
БОРЬБА ЗА ПРАВОВУЮ ОПРЕДЕЛЕННОСТЬ ИЛИ ПОИСК СПРАВЕДЛИВОСТИ
ХОДАТАЙСТВО об отмене согласно части 3 статьи 381 Гражданского процессуального кодекса РФ определения судьи Верховного Суда РФ Асташова С.В. от 0...
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Журналистам не место в судебных заседаниях (2)
БОРЬБА ЗА ПРАВОВУЮ ОПРЕДЕЛЕННОСТЬ ИЛИ ПОИСК СПРАВЕДЛИВОСТИ (2)
07 July 2008 FIRST SECTION Application no. 25965/04 by Nikolay Mikhaylovich RANTSEV against Cyprus and Russia lodged on 26 May 2004 STATEMENT OF FACTS THE FACTS The applicant, Mr Nikolay Mikhaylovich Rantsev, is a Russian national who was born in 1938 and lives in Svetlogorsk, Russia. A. The circumstances of the case The facts of the case, as shown by the material submitted by the applicant and the Cypriot and Russian Governments, may be summarised as follows. 1. The incident of 28 March 2001 The applicant's daughter, Ms Oxana Rantseva, born in 1980, arrived in Cyprus on 5 March 2001 and was given a temporary residence permit as a visitor until 9 March 2001. On 12 March 2001 she was given a permit to work until 8 June 2001 as an artiste in a cabaret owned by Melios Athanasiou and directed by Marios Athanasiou. According to the testimony of Marios Athanasiou dated 28 March 2001: "she was brought to Cyprus by Melios Athanasiou, my brother,... through his artists' agency. From the first day of her arrival in Cyprus she stayed with the other girls working at my cabaret ... Oxana worked regularly at the cabaret and stayed at the same apartment with the other girls until 18 March 2001... On 19 March 2001, at around 11.00 in the morning, I was informed by the other girls living with Oxana that she had left the apartment and taken all of her belongings with her. The girls told me that she had left a note in Russian saying that she was tired and wanted to return to Russia... On the same date I informed the Immigration Office in Limassol that Oxana had abandoned her place of work and residence. ...I tried to locate Oxana and inform the Migration Service so that she would be arrested and expelled. I wanted Oxana to leave so that I could bring another girl to work in the cabaret." Marios Athanasiou (hereinafter "Mr Athanasiou") found Oxana in a discotheque in Limassol at around 4 a.m. on 28 March 2001. According to his testimony dated 28 March 2001, he called the police and asked them to arrest Oxana. He went to the discotheque together with the security guard from his cabaret. An employee of the discotheque brought Oxana to him and he took her to the Limassol Central Police Station and left her there. Shortly afterwards he was asked to return to the police station to pick Oxana up as the police could not keep her. He refused to do so but when he was informed that the police would release Oxana if he did not pick her up, he returned. He took her to the apartment of Marios Psevdiotis, who was also working at his cabaret. The apartment he lived in with his wife Dora Psevdiotis, was located on the fifth floor of a block of flats and was separated into two floors. Oxana was found dead on the street below the balcony of the Psevdiotis' apartment. The police found a bedspread tied on the railing of the balcony on the upper floor of the apartment, hanging over the balcony on the lower floor of the apartment. Her body was transferred to Russia on 8 April 2001. 2. Extracts from the relevant testimonies According to the testimony of the police officer who received the applicant's daughter and Mr Athanasiou at the Limassol Police Station: "On 28 March 2001, slightly before 4 a.m., Marios Athanasiou found her in the nightclub Titanic ..., he took her and led her to the police station stating that Oxana was illegal and that we should place her in the cells. He (Athanasiou) then left the place (police station). I then contacted the duty passport officer ....who stated that it did not appear that she was illegal.... Subsequently, Police Officer 1523 stated that the directions of the person in charge () of the AIS (Police Aliens and Immigration Service) were for her employer to pick her up and take her to their Limassol Office for further investigation at 7 the next morning. Subsequently, I contacted Marios Athanasiou on the phone, who refused to come and pick her up, and then I told him that the instructions were that if he did not come I should allow Oxana to leave. He became angry and said that he would not take instructions from me and that he wanted to speak to my superior. I told him to contact the superior officer on duty... having spoken to him my superior informed me that Marios Athanasiou would come to pick her up. Oxana remained with us.... She did not look drunk ... At around 5.20 a.m. ... I was ... informed that Marios Athanasiou had come and picked her up..." In his testimony of 28 March 2001 Mr Athanasiou stated that having picked up Oxana from the police station he took her to the apartment of his employee Marios Psevdiotis, located on the fifth floor of Coral Court building in Limassol. They placed Oxana in a room on the second floor of the apartment. Mr Psevdiotis and his wife went to sleep in their bedroom on the second floor and Mr Athanasiou stayed in the entrance hall of the apartment where he fell asleep. He woke up at 7 a.m. when he heard Ms Psevdiotis saying that the police were in the street in front of the apartment. He added that since he had picked up Oxana from the discotheque she had not shown any sign that she wanted to leave, or otherwise objected, "(s)he just looked drunk and did not seem to have any intention to do anything. I did not do anything to prevent her from leaving the room in Psevdiotis' flat where I had taken her." In her testimony of 28 March 2001 Ms Teodora Vacelinova Psevdiotis stated that Mr Athanasiou brought Oxana to her flat, had a brief talk with her husband and asked her to provide Oxana with a bedroom so that she could get some rest. She stated that Oxana looked drunk and did not want to drink or eat anything. Ms Psevdiotis subsequently went to sleep with her husband while Mr Athanasiou stayed in the living room. She was woken up by Mr Athanasiou knocking on her door to tell her that Oxana was not in her room and that they should look for her. She looked for her all over the apartment and some considerable time later she saw a body lying on the street, covered by a white sheet and surrounded by police officers. In a subsequent statement she revised her initial description of the events in which she had said that Mr Athanasiou had had a brief talk with her husband, now asserting that her husband had been asleep when Mr Athanasiou arrived at their flat with Oxana; she stated that she had been scared to admit that she had opened the door of the flat on her own and had coffee with Mr Athanasiou. In his testimony of 28 March 2001 Marios Psevdiotis stated that he left his work at the cabaret "Zygos" in Limassol at around 3.30 a.m. and went to the "Titanic" discotheque for a drink. Upon his arrival there he was informed that the girl they had been looking for, of Russian origin, was in the discotheque. Then Mr Athanasiou arrived accompanied by a security man from the cabaret and asked the employees of the Titanic to bring the girl to the entrance. Then they all boarded Mr Athanasiou's car. Subsequently Mr Psevdiotis returned to his house and went to sleep. At around 6 a.m. his wife, Dora Psevdiotis, woke him up and informed him that Mr Athanasiou had arrived together with Oxana and that they would stay until the Migration Office opened. He then fell asleep and was woken up by noise and saw his wife in a state of shock; she told him that Oxana had fallen from the balcony. In his testimony of 28 March 2001 Mr George Appios stated that on 28 March 2001, around 6.30 a.m., he was smoking on his balcony, located on the first floor of the relevant building. He stated: "I saw something resembling a shadow fall from above and pass directly in front of me. Immediately afterwards I heard a noise like something was breaking.... I had heard nothing before the fall and immediately afterwards I did not hear any voices. She did not scream during the fall. She just fell as if she were unconscious... Even if there had been a fight (in the apartment on the fifth floor) I would not have been able to hear it." 3. Proceedings in Cyprus and Russia On 9 April 2001 the applicant requested the Chelyabinsk Regional Bureau of Medical Examinations ("the Chelyabinsk Bureau") to perform an autopsy of the body. He further requested the Federal Security Service of the Russian Federation and the General Prosecutor's Office to investigate into Oxana's death in Cyprus. On 10 May 2001 the Chelyabinsk Bureau issued its report on the autopsy. On 5 August 2001 the applicant visited the Limassol Police Station together with a lawyer and spoke to the police officer who had received Oxana and Mr Athanasiou on 28 March 2001. He asked to attend the inquest. According to a statement by a police officer dated 8 July 2002, the police told the applicant that his lawyer would be informed of the date of the hearing before the district court of Limassol. On 10 October 2001 the applicant requested in writing to intervene directly in the court proceedings so as to submit further evidence. The proceedings were set for 30 October 2001 and, according to the police officer's report of July 2002, the applicant's lawyer had been promptly informed but neither she nor the applicant appeared before the district court. The case was then adjourned to 11 December 2001 and an order was made that the Russian Embassy be notified of the new date so as to inform the applicant. On 11 December 2001 the applicant did not appear before the District Court and the inquest was adjourned until 27 December 2001. On the same date the General Prosecutor of the Russian Federation forwarded to the Cypriot Minister of Justice and Public Order the findings of the Public Prosecutor's Office of the Chelyabinsk Region of the Russian Federation. It was stated therein that Mr Athanasiou had collected Oxana at around 4.30 a.m. on 28 March 2001 and taken her to the police requesting them to arrest her. Oxana was not drunk at that point but behaved decently, remained calm and applied her make-up. At around 5.30 Mr Athanasiou collected Oxana from the police and took her to the Psevdiotis' apartment, where they had a meal and then at 6.30 they locked Oxana in a room on the seventh floor of the building. Later on, her body was found face-down on the asphalt of the street. The conclusion of the experts at the Chelyabinsk Bureau of Forensic Medicine, Frlov V.I. and Kostin B.F., was that there had been two stages in Oxana's fall, first on her back and then on her front, which contradicted the findings made by their Cypriot counterparts. In particular the following was reported in the forensic diagnosis of 28 April 2001: "It is a trauma caused by a fall from a considerable height, the falling on a plane of various levels, polytrauma of the body, open cranial trauma: multiple fragmentary comminuted fracture of the facial and cranial bones, multiple breaches of the brain membrane on the side of the brain vault and the base of the skull in the front brain pit, haemorrhages under the soft brain membranes, haemorrhages into the soft tissues, multiple bruises, large bruises and wounds on the skin, expressed deformation of the head in the front-to-back direction, closed dull trauma of the thorax with injuries of the thorax organs..., contusion of the lungs along the back surface, fracture of the spine in the thorax section with complete breach and displacement of the marrow ..." In its conclusions included the following: "The colour and look of the bruises, breaches and wounds as well as haemorrhages with morphological changes of the same type in the injured tissues indicated, without any doubt, that the traumas happened while she was alive, and also that they happened not very long before death, within a very short time period, one after the other. During the forensic examination of the corpse of Rantseva O. N. no injuries resulting from external violence, connected with the use of any firearms or sharp objects and weapons, or influence of physical and chemical reagents or natural factors were established. ... During the forensic chemical examination of the blood, urine and internal organs of the corpse no narcotic, strong or toxic substances were found. These findings rule out the possibility that Ransteva O.N. was killed by firearms, cold steel, physical, chemical or natural factors or by poisoning or diseases of any organs or systems. ... Considering the location of the injuries, their morphological peculiarities and certain differences discovered during the morphological and histological analysis, and the response of the injured tissues, we believe that in this particular case the traumas were caused by a fall from a great 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, mainly the face, with expressed deformation of the head in a front-to-back direction due to compressive impact..." The Prosecutor of the Chelyabinsk region therefore requested, pursuant to the Treaty between the USSR and the Republic of Cyprus on Civil and Criminal Matters, that further investigation be made into the circumstances of Oxana's death in order to specify the cause of her death and eliminate the contradictions in the available evidence. The request included the interrogation of persons having any information concerning the circumstances of the death. It was noted that in the event of lack of any indication pointing to murder by Mr Athanasiou that the authorities should examine his liability for kidnapping Oxana. On 27 December 2001 the inquest took place before the Limassol District Court in the absence of the applicant. The court's verdict of the same date stated, inter alia: "At around 6.30 a.m. on the same date the deceased, in an attempt to escape from the afore-mentioned apartment and in strange circumstances, jumped into the void as a result of which she was fatally injured... My verdict is that OXANA RANTSEVA died on 28 March 2001, in circumstances resembling an accident, in an attempt to escape from the apartment in which she was a guest (). There is no evidence before me that suggests criminal liability of a third person for her death". On the same date the Prosecutor General of the Russian Federation forwarded the elaborate request made by the applicant for the initiation of criminal proceedings in connection with the death of his daughter and to receive legal aid in Cyprus pursuant to the relevant Treaty. On 25 April 2002 the Prosecutor General of the Russian Federation reiterated their request for the institution of criminal proceedings in connection with Oxana's death and the applicant's application to be added as a victim to the proceedings in order to submit his further evidence, as well as his request for legal aid. They requested the Cypriot Government to provide them with an update and to inform them as to any decisions that had been taken. By letters of 17 and 31 January 2003 the office of the Prosecutor General of the Russian Federation noted that they had received no response from the Cypriot authorities in relation to the request made by their office or that made by the applicant, the contents of which they repeated. On 4 March 2003 the Cypriot Ministry of Justice informed the Prosecutor General of the Russian Federation that their request had been duly executed by the Cypriot police, and sent three police reports. On 5 June 2003 the Prosecutor General of the Russian Federation submitted a further request pursuant to the Legal Assistance Treaty of 1987. They requested that a further investigation be conducted into the circumstances of Oxana's death as the verdict of 27 December 2001 was unsatisfactory. In particular, it was noted that despite the strange circumstances of the incident and the acknowledgment that Oxana was trying to escape from the flat where she was held, the verdict did not make any reference to the inconsistent testimonies of the relevant witnesses or to any detailed description of the findings of the autopsy carried out by the Cypriot authorities. On 17 December 2003, in reply to the Russian authorities' request, the Cypriot Ministry of Justice forwarded to the Prosecutor General of the Russian Federation a further report prepared by the Cypriot police and dated 17 November 2003. The following was noted therein: "At about 6.30 a.m. on 28 March 2003 the deceased went out onto the balcony of her room through the balcony door, climbed down to the balcony of the first floor of the apartment with the assistance of a bedspread which she tied to the protective railing of the balcony. She carried on her shoulder her personal bag. From that point, she clung to the aluminium protective raining of the balcony so as to climb down to the balcony of the apartment on the floor below in order to escape. Under unknown circumstances, she fell into the street, as a result of which she was fatally injured. ... On the basis of the above, it is concluded that the deceased did not want to be expelled from Cyprus and because her employer was at the entrance of the flat where she was a guest, she decided to take the risk of trying to climb over the balcony, as a result of which she fell to the ground and died instantaneously." On 4 December 2003 the Commissioner for Human Rights of the Russian Federation forwarded the applicant's complaint about the insufficient reply from the Cypriot authorities to the Cypriot Ombudsman. The case received wide coverage by the Russian media as a result of the applicant's efforts to instigate further investigation. In a letter of 17 August 2005 the Russian Ambassador to Cyprus requested further information about a hearing concerning the case scheduled for 14 October 2005 and reiterated the applicant's request for legal assistance. On 22 December 2005 the Prosecutor General of the Russian Federation requested the Minister of Justice to explain the procedure of appeal against the decision issued on 28 March 2001 and called for further clarifications on the re-opened proceedings concerning Oxana's death, details of a certain hearing set for 14 October 2005 which, according to their information had been adjourned, and the involvement of Mr Athanasiou in the proceedings. In January 2006 the Attorney-General confirmed to a lawyer appointed by the applicant that he was willing to order the re-opening of the investigation upon receipt of further evidence showing any criminal activity. The applicant asked the Russian authorities to obtain testimonies from two Russian girls (Ms Olga Osincesava and Ms Yianna Bibalceva) who had been working with Oxana at the same cabaret and could testify about sexual exploitation taking place there. The Russian authorities replied that they could only obtain such testimonies upon receipt of a request by the Cypriot authorities. On 14 April 2006 the Attorney-General replied that he saw no reason to request the Russian authorities to obtain the testimonies of the two Russian citizens identified by the applicant. If the said persons were in the Republic of Cyprus their testimonies could be obtained by the Cypriot Police and if they were in Russia, the Russian authorities did not need the consent of the Cypriot authorities to obtain their statements. B. Relevant domestic law and International material 1. Domestic Law concerning the Inquisition: The Coroners Law of 1959, Chapter (Cap.)153 provides, in so far as relevant, as follows: "3. (1) Every district judge and magistrate may hold inquests under this Law within the local limits of his jurisdiction. ... (3) Any inquest commenced by a coroner may be continued, resumed, or reopened in the manner provided by this Law by such coroner or by his successor in office or by such other coroner, empowered to hold the inquest within the jurisdiction, as the President, District Court, may direct. ... 14. At every inquest- (a) the coroner shall take on oath such evidence as is procurable as to the identity of the deceased, and the time, place and manner of his death; (b) every interested party may appear either by advocate or in person and examine, cross-examine or re-examine, as the case may be, any witness. ... 16. (1) A coroner holding an inquest shall have and may exercise all the powers of a district judge or magistrate with regard to summoning and compelling the attendance of witnesses and requiring them to give evidence, and with regard to the production of any document or thing at such inquest. ... 24. If, during the course or at the close of any inquest, the coroner is of opinion that sufficient grounds are disclosed for making a charge against any person in connection with the death, he may issue a summons or warrant to secure the attendance of such person before any Court having jurisdiction, and may bind over any witness who has been examined by or before him on a recognisance with or without surety to appear and give evidence before such Court. 25. After the view, if any, of the body and hearing the evidence, the coroner holding the inquest shall give his verdict and certify it by an inquisition in writing as in Form D set out in the First Schedule, showing, so far as such particulars have been proved to him, who the deceased was, and how, when and where the deceased came by his death: ... 26. If, at the close of any inquest, the coroner is of opinion that there is ground for suspecting that some person is guilty of an offence in respect of the matter inquired into, but cannot ascertain who such person is, he shall certify his opinion to that effect and transmit a copy of the proceedings to the police officer in charge of the district in which the inquest is held. ... 28. (1) The original of every inquisition, including the record of the inquest and the recognisances of the witnesses, if any, shall be transmitted by the coroner, with all convenient despatch, to the President, District Court.... (2) The President, District Court, may examine the record of any such proceedings for the purpose of satisfying himself as to the correctness, legality or propriety of any finding or verdict and as to the regularity of such proceedings. (3) Where the President, District Court, by reason of such examination is not satisfied as to the correctness, legality or propriety of any finding or verdict he may, after affording the Attorney-General an opportunity of being heard, exercise any of the powers conferred upon him by subsection (1) of section 30. (4) Where the President, District Court, by reason of such examination is not satisfied as to the regularity of the proceedings, he may take such action, not involving an alteration of the finding or verdict, as he may think necessary to cure such irregularity. ... 30. (1) Where the President, District Court, upon application made by or under the authority of the Attorney-General, is satisfied that it is necessary or desirable to do so, he may- (a) order an inquest to be held touching the death of any person; (b) direct any inquest to be reopened for the taking of further evidence, or for the inclusion in the proceedings thereof and consideration with the evidence, already taken, of any evidence taken in any judicial proceedings which may be relevant to any issue determinable at such inquest, and the recording of a fresh verdict upon the proceedings as a whole; (c) quash the verdict in any inquest substituting therefor some other verdict which appears to be lawful and in accordance with the evidence recorded or included as hereinbefore in this section provided; or (d) quash any inquest, with or without ordering a new inquest to be held." 2. Treaty between the USSR and the Republic of Cyprus on Legal Assistance in civil, family and criminal law matters of 19 January 1984 The above Treaty was incorporated into Cyprus Law by Law no. 172/86 and provides, in so far as relevant, as follows: "Article 2 Legal Assistance 1. The judicial authorities of the Contracting Parties shall provide each other with legal assistance in civil and criminal matters in accordance with the provisions of this Treaty. ... Article 3 Extent of Legal Assistance Legal assistance in civil and criminal matters shall include service and sending of documents, supply of information on the law in force and the judicial practice and performance of specific procedural acts provided by the law of the requested Contracting Party and in particular the taking of evidence from litigants, accused persons, defendants, witnesses and experts as well as recognition and enforcement of judgments in civil matters, institution of criminal prosecutions and extradition of offenders. ... Article 5 Request for Legal Assistance 1. A request for legal assistance shall be in writing and shall contain the following:- (1) The designation of the requesting authority. (2) The designation of the requested authority. (3) The specification of the case in relation to which legal assistance is requested and the content of the request. (4) Names and surnames of the persons to whom the request relates, their citizenship, occupation and permanent or temporary residence. ... (6) If necessary, the facts to be elucidated as well as the list of the required documents and any other evidence, (7) In criminal matters, in addition to the above, particulars of the offence and its legal definition. Article 6 Execution of the Request for Legal Assistance 1. The requested authority shall provide legal assistance in the manner provided by the procedural laws and rules of its own State. However, it may execute the request in a manner specified therein if not in conflict wit the law of its own State. 2. If the requested authority is not competent to execute the request for legal assistance it shall forward the request to the competent authority and shall advise the requesting authority accordingly. 3. The requested authority shall, upon request, in due time notify the requesting authority of the place and time of the execution of the request. 4. The requested authority shall notify the requesting authority in writing of the execution of the request. If the request cannot be executed the requested authority shall forthwith notify in writing the requesting authority giving the reasons for failure to execute it and shall return the documents. .... Article 18 Free Legal Assistance Citizens of one Contracting Party shall be exempted in the territory of the other Contracting Party from payment of fees and costs and shall be afforded facilities and free legal assistance under the same conditions and to the same extent as citizens of the other Contracting Party. Article 20 A citizen of either Contracting Party who wishes to be granted the free legal assistance envisaged in Article 18 may submit a relevant application to the competent authority of the Contracting Party in the territory of which he has his permanent or temporary residence. This authority shall transmit the application together with the documents issued under Article 19 to the competent authority of the other Contracting Party." Chapter VI of the Treaty contains special provisions on Criminal Matters concerning, in particular, the institution of criminal proceedings. It provides, in so far as relevant, as follows: "Article 35 Obligation to institute criminal proceedings 1. Each Contracting Party shall institute, at the request of the other Contracting Party, in accordance with and subject to the provisions of its own law, criminal proceedings against its own citizens who are alleged to have committed an offence in the territory of the other Contracting Party. .... Article 36 Request for Institution of Criminal Proceedings 1. A request for institution of criminal proceedings shall be made in writing and contain the following:- (1) The designation of the requesting authority. (2) The description of the acts constituting the offence in connection with which the institution of criminal proceedings is requested. (3) The time and place of the committed act as precisely as possible. (4) The text of the law of the requesting Contracting Party under which the act is defined as an offence. (5) The name and surname of the suspected person, particulars regarding his citizenship, permanent or temporary residence and other information concerning him as well as, if possible, the description of the person's appearance, his photograph and fingerprints. (6) Complaints, if any, by the victim of the criminal offence including any claim for damages. (7) Available information on the extent of the material damage resulting from the offence. 3. The Council of Europe Convention on Action against Trafficking in Human Beings (extracts) Preamble "... Considering that trafficking in human beings constitutes a violation of human rights and an offence to the dignity and the integrity of the human being; Considering that trafficking in human beings may result in slavery for victims; Considering that respect for victims' rights, protection of victims and action to combat trafficking in human beings must be the paramount objectives; Considering that all actions or initiatives against trafficking in human beings must be non-discriminatory, take gender equality into account as well as a child-rights approach; ... Bearing in mind the following recommendations of the Committee of Ministers to member states of the Council of Europe: Recommendation No. R (91) 11 on sexual exploitation, pornography and prostitution of, and trafficking in, children and young adults... Recommendation No. R (2000) 11 on action against trafficking in human beings for the purpose of sexual exploitation ... Recommendation Rec (2002) 5 on the protection of women against violence; Bearing in mind the following recommendations of the Parliamentary Assembly of the Council of Europe: Recommendation 1325 (1997) on traffic in women and forced prostitution in Council of Europe member states; Recommendation 1450 (2000) on violence against women in Europe; Recommendation 1545 (2002) on a campaign against trafficking in women; Recommendation 1610 (2003) on migration connected with trafficking in women and prostitution;... ..." Article 1 - Purposes of the Convention "1. The purposes of this Convention are: (a) to prevent and combat trafficking in human beings, while guaranteeing gender equality; (b) to protect the human rights of the victims of trafficking, design a comprehensive framework for the protection and assistance of victims and witnesses, while guaranteeing gender equality, as well as to ensure effective investigation and prosecution; ..." Article 4 - Definitions "For the purposes of this Convention: (a) 'Trafficking in human beings shall mean 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 deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs; (b) The consent of a victim of 'trafficking in human beings' to the intended exploitation set forth in sub-paragraph (a) of this Article shall be irrelevant where any of the means set forth in sub-paragraph (a) have been used; ... (e) 'Victim' shall mean any natural person who is subject to trafficking in human beings as defined in this Article." ... Article 10 - Identification of the victims 1 Each Party shall provide its competent authorities with persons who are trained and qualified in preventing and combating trafficking in human beings, in identifying and helping victims, including children, and shall ensure that the different authorities collaborate with each other as well as with relevant support organisations, so that victims can be identified in a procedure duly taking into account the special situation of women and child victims and, in appropriate cases, issued with residence permits under the conditions provided for in Article 14 of the present Convention. 2 Each Party shall adopt such legislative or other measures as may be necessary to identify victims as appropriate in collaboration with other Parties and relevant support organisations. Each Party shall ensure that, if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings, that person shall not be removed from its territory until the identification process as victim of an offence provided for in Article 18 of this Convention has been completed by the competent authorities and shall likewise ensure that that person receives the assistance provided for in Article 12, paragraphs 1 and 2. ... Article 12 - Assistance to victims 1 Each Party shall adopt such legislative or other measures as may be necessary to assist victims in their physical, psychological and social recovery.... 2 Each Party shall take due account of the victim's safety and protection needs. ... Article 18 - Criminalisation of trafficking in human beings Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences the conduct contained in article 4 of this Convention, when committed intentionally. ..." The Convention was signed by the Republic of Cyprus on 16 May 2005, was ratified on 24 October 2007 and entered into force on 1 February 2008. 4. Report by the Council of Europe Commissioner for Human Rights on his visit to Cyprus in June 2003 to the attention of the Committee of Ministers and of the Parliamentary Assembly (CommDH (2004)2) [extracts concerning trafficking in human beings] "29. It is not at all difficult to understand how Cyprus, given its remarkable economic and tourist development, has come to be a major destination for this traffic in the Eastern Mediterranean region. The absence of an immigration policy and the legislative shortcomings in that respect have merely encouraged the phenomenon. 30. The authorities have responded at the normative level. The Act of 2000 (number 3(I), 2000) has established a suitable framework for suppression of trafficking in human beings and sexual exploitation of children. Under the Act, any action identifiable as trafficking in human beings in the light of the Convention for the Suppression of Trafficking in Persons and of the Exploitation and Prostitution of Others, together with other acts of a similar nature specified by law, are an offence punishable by 10 years' imprisonment, the penalty being increased to 15 years where the victim is under 18 years of age. The offence of sexual exploitation carries a 15 year prison sentence. If committed by persons in the victim's entourage or persons wielding authority or influence over the victim, the penalty is 20 years in prison. According to the provision of Article 4, using children for the production and sale of pornographic material is an offence. Article 7 grants State aid, within reasonable limits, to victims of exploitation; such aid comprises subsistence allowance, temporary accommodation, medical care and psychiatric support. Article 8 reaffirms the right to redress by stressing the power of the court to award punitive damages justified by the degree of exploitation or the degree of the accused person's constraint over the victim. A foreign worker lawfully present in Cyprus who is a victim of exploitation can approach the authorities to find other employment up until the expiry of the initial work permit (Article 9). Lastly, the Council of Ministers, under Article 10, appoints a guardian for victims with the principal duties of counselling and assisting them, examining complaints of exploitation, and having the culprits prosecuted, as well as for pinpointing any deficiency or loophole in the law and for making recommendations with a view to their removal. 31. At a practical level, the Government has made efforts to protect women who have laid a complaint against their employers by permitting them to remain in the country in order to substantiate the charges. In certain cases, the women have remained in Cyprus at government expense during the investigation. 32. However, apart from punitive procedures, preventive control measures could be introduced. By the authorities' own admission, the number of young women migrating to Cyprus as nightclub artistes is well out of proportion to the population of the island." 5. Follow-up report by the Commissioner for Human Rights on the progress made in implementing his recommendations (CommDH (2006)12) [extracts concerning trafficking in human beings] "48. The Commissioner noted in his 2003 report that the number of young women migrating to Cyprus as nightclub artistes was well out of proportion to the population of the island, and that the authorities should consider introducing preventive control measures to deal with this phenomenon, in conjunction with legislative safeguards. In particular, the Commissioner recommended that the authorities adopt and implement a plan of action against trafficking in human beings." COMPLAINTS The applicant complains under Articles 2, 3, 4, 5 and 8 of the Convention about the lack of sufficient investigation into the circumstances of the death of his daughter, the lack of sufficient protection of his daughter by the Cypriot police while she was still alive and the lack of measures taken to punish persons responsible for exposing his daughter to the danger of sexual exploitation and ill-treatment which led to her death. He further complains under Article 6 of the Convention of lack of access to a court in Cyprus. QUESTIONS TO THE PARTIES A. Questions to the Cypriot Government 1. Has the applicant's daughter's right to life, ensured by Article 2 of the Convention, been violated in the present case? Your Government 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? 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? 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, your Government 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, your Government 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. 4. Was the applicant's daughter's treatment at the police-station consistent with Article 5 S: 1 of the Convention? Your Government are requested to address in particular the authorities' decision not to release her but to hand her over to Mr Athanasiou. 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, your Government 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. B. Questions to the Russian Government 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? 2. Your Government 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; (ii) whether any parallel and independent investigation into the relevant events took place in Russia; (iii) whether any evidence was collected which added to the material forwarded to your Government by the Cypriot authorities; (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. 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? 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, your Government 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. 15 RANTSEV v. CYPRUS AND RUSSIA - STATEMENT OF FACTS AND QUESTIONS RANTSEV v. CYPRUS AND RUSSIA - STATEMENT OF FACTS AND QUESTIONS 15
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