In the case
of Rantsev v. Cyprus and Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Christos Rozakis,
President,
Anatoly Kovler,
Elisabeth Steiner,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 10 December 2009,
Delivers the following judgment, which was adopted on the last-mentioned
date:
PROCEDURE
The case originated in an application (no.
25965/04) against the Republic of Cyprus and the Russian Federation lodged with
the Court under Article 34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Nikolay
Mikhaylovich Rantsev (“the applicant”), on 26 May 2004.
The applicant, who had been granted legal aid,
was represented by Ms L. Churkina, a lawyer practising in Yekaterinburg.
The Cypriot Government were represented by their Agent, Mr P. Clerides, Attorney-General
of the Republic of Cyprus. The Russian Government were represented by their
Agent, Mr G. Matyushkin.
The applicant complained 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 adequate protection of
his daughter by the Cypriot police while she was still alive and the failure of
the Cypriot authorities to take steps to punish those responsible for his
daughter’s death and ill-treatment. He also complained under Articles 2 and 4
about the failure of the Russian authorities to investigate his daughter’s
alleged trafficking and subsequent death and to take steps to protect her from
the risk of trafficking. Finally, he complained under Article 6 of the Convention
about the inquest proceedings and an alleged lack of access to court in Cyprus.
On 19 October 2007 the Cypriot and Russian
Governments were requested to submit the entire investigation file together
with all
correspondence between the two Governments
on this matter. On 17 December 2007 and 17 March 2008, the Cypriot and
Russian Governments respectively submitted a number of documents.
On 20 May 2008 the President of the First Section
decided to accord the case priority treatment in accordance with Rule 41 of the
Rules of Court.
On 27 June 2008 the President of the First
Section decided to give notice of the application to each of the respondent Governments.
It was also decided to examine the merits of the application at the same time
as its admissibility (Article 29 § 3).
On 27 and 28 October 2008 respectively, the
Cypriot and Russian Governments submitted their written observations on the
admissibility and merits of the application. In addition, third-party comments
were received from two London-based non-governmental organisations, Interights
and the AIRE Centre, which had been given leave by the President to intervene
in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2).
On 12 December 2008, the President of the First
Section decided that legal aid should be granted to the applicant for his
representation before the Court.
On 16 December 2008 the applicant lodged written
observations in reply together with his claims for just satisfaction.
The Cypriot and Russian Governments lodged
observations on the applicant’s just satisfaction submissions.
By letter of 10 April 2009, the Cypriot
Government requested the Court to strike the case out of its list and enclosed
the text of a unilateral declaration with a view to resolving the issues raised
by the applicant. The applicant filed written observations on the Cypriot
Government’s request on 21 May 2009.
The applicant requested an oral hearing but
prior to adopting the present judgment the Court decided that it was not
necessary to hold one.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant, Mr Nikolay Mikhaylovich Rantsev,
is a Russian national who was born in 1938 and lives in Svetlogorsk, Russia. He is the father of Ms Oxana Rantseva, also a Russian national, born in 1980.
The facts of the case, as established by the submissions
of the parties and the material submitted by them, in particular the witness
statements taken by the Cypriot police, may be summarised as follows.
A. The background facts
Oxana Rantseva arrived in Cyprus on 5 March 2001. On 13 February 2001, X.A., the owner of a cabaret in Limassol, had applied
for an “artiste” visa and work permit for Ms Rantseva to allow her to work as
an artiste in his cabaret (see further paragraph 115 below). The application
was accompanied by a copy of Ms Rantseva’s passport, a medical certificate, a
copy of an employment contract (apparently not yet signed by Ms Rantseva) and a
bond, signed by [X.A.] Agencies, in the following terms (original in English):
“KNOW ALL MEN BY THESE PRESENTS that I [X.A.] of L/SSOL Am
bound to the Minister of the Interior of the Republic of Cyprus in the sum of
£150 to be paid to the said Minister of the Interior or other the [sic]
Minister of Interior for the time being or his attorney or attorneys.
Sealed with my seal.
Dated the 13th day of February 2001
WHEREAS Ms Oxana RANTSEVA of RUSSIA
Hereinafter called the immigrant, (which expression shall where
the context so admits be deemed to include his heirs, executors, administrators
and assigns) is entering Cyprus and I have undertaken that the immigrant shall
not become in need of relief in Cyprus during a period of five years from the
date hereof and I have undertaken to replay [sic] to the Republic of Cyprus any
sum which the Republic of Cyprus may pay for the relief or support of the
immigrant (the necessity for which relief and support the Minister shall be the
sole judge) or for the axpenses [sic] of repatriating the immigrant from Cyprus
within a period of five years from the date hereof.
NOW THE CONDITION OF THE ABOVE WRITTEN BOND is such that if the
immigrant or myself, my heirs, executors, administrators and assigns shall
repay to the Republic of Cyprus on demand any sum which the Republic of Cyprus
may have paid as aforesaid for the relief or Support of the immigrant or for
the expenses of repatriation of the immigrant from Cyprus then the above
written bond shall be void but otherwise shall remain in full force.”
Ms Rantseva was granted a temporary residence
permit as a visitor until 9 March 2001. She stayed in an apartment with other
young women working in X.A.’s cabaret. On 12 March 2001 she was granted a
permit to work until 8 June 2001 as an artiste in a cabaret owned by X.A.
and managed by his brother, M.A. She began work on 16 March 2001.
On 19 March 2001, at
around 11a.m., M.A. was informed by the other women
living with Ms Rantseva that she had left the apartment and taken all her
belongings with her. The women told him that she had left a note in Russian saying
that she was tired and wanted to return to Russia. On the same date M.A.
informed the Immigration Office in Limassol that Ms Rantseva
had abandoned her place of work and residence. According to M.A.’s subsequent
witness statement, he wanted Ms Rantseva to be arrested and expelled from Cyprus so that he could bring another girl to work in the cabaret. However, Ms Rantseva’s
name was not entered on the list of persons wanted by the police.
B. The events of 28 March 2001
On 28 March 2001, at around 4 a.m., Ms Rantseva
was seen in a discotheque in Limassol by another cabaret artiste. Upon being
advised by the cabaret artiste that Ms Rantseva was in the discotheque, M.A. called
the police and asked them to arrest her. He then went to the discotheque
together with a security guard from his cabaret. An employee of the discotheque
brought Ms Rantseva to him. In his subsequent witness statement, M.A. said
(translation):
“When [Ms Rantseva] got in to my car, she did not complain at
all or do anything else. She looked drunk and I just told her to come with me.
Because of the fact that she looked drunk, we didn’t have a conversation and
she didn’t talk to me at all.”
M.A. took Ms Rantseva to Limassol Central Police
Station, where two police officers were on duty. He made a brief statement in
which he set out the circumstances of Ms Rantseva’s arrival in Cyprus, her employment and her subsequent disappearance from the apartment on 19 March
2001. According to the statement of the police officer in charge when they
arrived (translation):
“On 28 March 2001, slightly before 4a.m., [M.A.] found [Ms Rantseva]
in the nightclub Titanic ... he took her and led her to the police station
stating that Ms Rantseva was illegal and that we should place her in the
cells. He ([M.A.]) then left the place (police station).”
The police officers then contacted the duty
passport officer at his home and asked him to look into whether Ms Rantseva was
illegal. After investigating, he advised them that her name was not in the
database of wanted persons. He further advised that there was no record of M.A.’s
complaint of 19 March 2001 and that, in any case, a person did not become
illegal until 15 days after a complaint was made. The passport officer
contacted the person in charge of the AIS (Police Aliens and Immigration
Service), who gave instructions that Ms Rantseva was not to be detained and
that her employer, who was responsible for her, was to pick her up and take her
to their Limassol Office for further investigation at 7 a.m. that day. The
police officers contacted M.A. to ask him to collect Ms Rantseva. M.A. was
upset that the police would not detain her and refused to come and collect her.
The police officers told him that their instructions were that if he did not
take her they were to allow her to leave. M.A. became angry and asked to speak
to their superior. The police officers provided a telephone number to M.A. The
officers were subsequently advised by their superior that M.A. would come and
collect Ms Rantseva. Both officers, in their witness statements, said that Ms
Rantseva did not appear drunk. The officer in charge said (translation):
“Ms Rantseva remained with us ... She was applying her make-up and
did not look drunk ... At around 5.20a.m. ... I was ... informed that [M.A.] had
come and picked her up...”
According to M.A.’s witness statement, when he collected
Ms Rantseva from the police station, he also collected her passport and
the other documents which he had handed to the police when they had arrived. He
then took Ms Rantseva to the apartment of M.P., a male employee at his cabaret.
The apartment M.P. lived in with his wife, D.P., was a split-level apartment with
the entrance located on the fifth floor of a block of flats. According to M.A.,
they placed Ms Rantseva in a room on the second floor of the apartment. In his police
statement, he said:
“She 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 [the]
flat where I had taken her.”
M.A. said that M.P. and his wife went to sleep
in their bedroom on the second floor and that he stayed in the living room of
the apartment where he fell asleep. The apartment was arranged in such a way
that in order to leave the apartment by the front door, it would be necessary
to pass through the living room.
M.P. 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 M.A. arrived,
accompanied by a security guard from the cabaret, and asked the employees of “Titanic”
to bring the girl to the entrance. M.A., Ms Rantseva and the security guard
then all got into M.A.’s car and left. At around 4.30 a.m. M.P. returned to his
house and went to sleep. At around 6 a.m. his wife woke him up and informed him
that M.A. had arrived together with Ms Rantseva and that they would stay until
the Immigration Office opened. He then fell asleep.
D.P. stated that M.A. brought Ms Rantseva to the
apartment at around 5.45 a.m.. She made coffee and M.A. spoke with her husband in
the living room. M.A. then asked D.P. to provide Ms Rantseva with a bedroom so
that she could get some rest. D.P. stated that Ms Rantseva looked drunk and did
not want to drink or eat anything. According to D.P., she and her husband went
to sleep at around 6 a.m. while M.A. stayed in the living room. Having made her
statement, D.P. revised her initial description of events, now asserting that
her husband had been asleep when M.A. arrived at their apartment with Ms Rantseva.
She stated that she had been scared to admit that she had opened the door of
the apartment on her own and had had coffee with M.A..
At around 6.30 a.m. on 28 March 2001, Ms Rantseva
was found dead on the street below the apartment. Her handbag was over her
shoulder. The police found a bedspread looped through the railing of the smaller
balcony adjoining the room in which Ms Rantseva had been staying on the upper
floor of the apartment, below which the larger balcony on the fifth floor was
located.
M.A. claimed that he woke at 7 a.m. in order to
take Ms Rantseva to the Immigration Office. He called to D.P. and M.P. and heard
D.P. saying that the police were in the street in front of the apartment
building. They looked in the bedroom but Ms Rantseva was not there. They looked
out from the balcony and saw a body in the street. He later discovered that it
was Ms Rantseva.
D.P. claimed that she was woken by M.A. knocking
on her door to tell her that Ms Rantseva was not in her room and that they
should look for her. She looked for her all over the apartment and then noticed
that the balcony door in the bedroom was open. She went out onto the balcony
and saw the bedspread and realised what Ms Rantseva had done. She went onto
another balcony and saw a body lying on the street, covered by a white sheet
and surrounded by police officers.
M.P. stated that he was woken up by noise at
around 7 a.m. and saw his wife in a state of shock; she told him that Ms Rantseva
had fallen from the balcony. He went into the living room where he saw M.A. and
some police officers.
In his testimony of 28 March 2001, G.A. stated
that on 28 March 2001, around 6.30 a.m., he was smoking on his balcony,
located on the first floor of M.P. and D.P.’s building. He said:
“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 told my wife to call the police
... 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.”
C. The investigation and inquest in Cyprus
The Cypriot Government advised the Court that
the original investigation file had been destroyed in light of the internal
policy to destroy files after a period of five years in cases where it was
concluded that death was not attributable to a criminal act. A duplicate file,
containing all the relevant documents with the exception of memo sheets, has
been provided to the Court by the Government.
The file contains a report by the officer in
charge of the investigation. The report sets out the background facts, as
ascertained by forensic and crime scene evidence, and identifies 17 witnesses:
M.A., M.P. D.P., G.A., the two police officers on duty at Limassol Police
Station, the duty passport officer, eight police officers who attended the
scene after Ms Rantseva’s fall, the forensic examiner and the laboratory
technician who analysed blood and urine samples.
The report indicates that minutes after
receiving the call from G.A.’s wife, shortly after 6.30 a.m., the police
arrived at the apartment building. They sealed off the scene at 6.40 a.m.
and began an investigation into the cause of Ms Rantseva’s fall. They took
photographs of the scene, including photographs of the room in the apartment
where Ms Rantseva had stayed and photographs of the balconies. The forensic
examiner arrived at 9.30 a.m. and certified death. An initial forensic
examination took place at the scene
On the same day, the police interviewed M.A.,
M.P. and D.P. as well as G.A.. They also interviewed the two police officers
who had seen M.A. and Ms Rantseva at Limassol Police Station shortly before Ms Rantseva’s
death and the duty passport officer (relevant extracts and summaries of the
statements given is included in the facts set out above at paragraphs 17 to 29).
Of the eight police officers who attended the scene, the investigation file
includes statements made by six of them, including the officer placed in charge
of the investigation. There is no record of any statements being taken either
from other employees of the cabaret where Ms Rantseva worked or from the women
with whom she briefly shared an apartment.
When he made his witness statement on 28 March
2001, M.A. handed Ms Rantseva’s passport and other documents to the police.
After the conclusion and signature of his statement, he added a clarification
regarding the passport, indicating that Ms Rantseva had taken her passport and
documents when she left the apartment on 19 March 2001.
On 29 March 2001 an autopsy was carried out by
the Cypriot authorities. The autopsy found a number of injuries on Ms Rantseva’s
body and to her internal organs. It concluded that these injuries resulted from
her fall and that the fall was the cause of her death. It is not clear when the
applicant was informed of the results of the autopsy. According to the
applicant, he was not provided with a copy of the autopsy report and it is
unclear whether he was informed in any detail of the conclusions of the report,
which were briefly summarised in the findings of the subsequent inquest.
On 5 August 2001 the applicant visited Limassol
Police Station together with a lawyer and spoke to the police officer who had
received Ms Rantseva and M.A. on 28 March 2001. The applicant asked to
attend the inquest. According to a later statement by the police officer, dated
8 July 2002, the applicant was told by the police during the visit that his
lawyer would be informed of the date of the inquest hearing before the District
Court of Limassol.
On 10 October 2001 the applicant sent an
application to the District Court of Limassol, copied to the General Procurator’s
Office of the Republic of Cyprus and the Russian Consulate in the Republic of Cyprus. He referred to a request of 8 October 2001 of the Procurator’s Office
of the Chelyabinsk region concerning legal assistance (see paragraph 48 below)
and asked to exercise his right to familiarise himself with the materials of
the case before the inquest hearing, to be present at the hearing and to be
notified in due time of the date of the hearing. He also advised that he wished
to present additional documents to the court in due course.
The inquest proceedings were fixed for 30
October 2001 and, according to the police officer’s statement of 8 July 2002
(see paragraph 36 above), the applicant’s lawyer was promptly informed.
However, neither she nor the applicant appeared before the District Court. The
case was 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.
In a facsimile dated 20 October 2001 and sent on
31 October 2001 to the District Court of Limassol, copied to the General
Procurator’s Office of the Republic of Cyprus and the Russian Consulate in the Republic of Cyprus, the applicant asked for information regarding the inquest date to be
sent to his new place of residence.
On 11 December 2001 the applicant did not appear
before the District Court and the inquest was adjourned until 27 December 2001.
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 (translation):
“At around 6.30 a.m. on [28 March 2001] 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 MS 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 (εφιλοξενείτο).
There is no evidence before me that suggests criminal liability
of a third person for her death”.
D. Subsequent proceedings in Cyprus and Russia
Ms Rantseva’s body was transferred to Russia on 8 April 2001.
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 Ms Rantseva’s death in Cyprus. On 10 May 2001 the Chelyabinsk
Bureau issued its report on the autopsy.
In particular the following was reported in the
forensic diagnosis (translation provided):
“It is a trauma from falling down from a large height, the
falling on a plane of various levels, politrauma of the body, open cranial trauma:
multiple fragmentary comminuted fracture of the facial and brain skull,
multiple breeches 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 the complete breach of the marrow and its displacement
along and across ...
Alcohol intoxication of the medium degree: the presence of
ethyl alcohol in the blood 1,8%, in the urine -2,5%.”
The report’s conclusions included the following:
“The color and the look of bruises, breaches and wounds as well
as hemorrhages with the morphological changes of
the same type in the injured tissues indicates, without any doubt, that the
traumas happened while she was alive, as well as the fact, that they happened
not very long before death, within a very short time period, one after another.
During the forensic examination of the corpse of Rantseva O.N.
no injuries resulting from external violence, connected with the use of various
firearms, various sharp objects and weapons, influence of physical and chemical
reagents or natural factors have been established. ... During the forensic
chemical examination of the blood and urine, internal organs of the corpse no
narcotic, strong or toxic substances are found. Said circumstances exclude the
possibility of the death of Rantseva O.N. from firearms, cold steel, physical,
chemical and natural factors as well as poisoning and diseases of various
organs and systems. ...
Considering the location of the injuries, their morphological
peculiarities, as well as certain differences, discovered during the
morphological and histological analysis and the response of the injured tissues
we believe that in this particular case a trauma from falling down from the
great height took place, and it was the result of the so-called
staged/bi-moment fall on the planes of various
levels during which the primary contact of the body with an obstacle in the
final phase of the fall from the great height was by the back surface of the
body with a possible sliding and secondary contact by the front surface of the
body, mainly the face with the expressed deformation of the head in the
front-to-back direction due to shock-compressive impact...
During the forensic chemical examination of the corpse of
Rantseva O.N. in her blood and urine we found ethyl spirits 1,8 and 2,5
correspondingly, which during her life might correspond to medium alcohol
intoxication which is clinically characterized by a considerable emotional
instability, breaches in mentality and orientation in space in time.”
On 9 August 2001 the Russian Embassy in Cyprus requested from the chief of Limassol police station copies of the investigation
files relating to Ms Rantseva’s death.
On 13 September 2001 the applicant applied to
the Public Prosecutor of the Chelyabinsk region requesting the Prosecutor to
apply on his behalf to the Public Prosecutor of Cyprus for legal assistance
free of charge as well as an exemption from court expenses for additional
investigation into the death of his daughter on the territory of Cyprus.
By letter dated 11 December 2001 the Deputy
General Prosecutor of the Russian Federation advised the Minister of Justice of
the Republic of Cyprus that the Public Prosecutor’s Office of the Chelyabinsk region had conducted an examination in respect of Ms Rantseva’s death,
including a forensic medical examination. He forwarded a request, dated 8
October 2001, under the European Convention on Mutual Assistance in Criminal
Matters (“the Mutual Assistance Convention” - see paragraphs 175 to 178 below)
and the Treaty between the USSR and the Republic of Cyprus on Civil and
Criminal Matters 1984 (“the Legal Assistance Treaty” - see paragraphs 179 to 185
below), for legal assistance for the purposes of establishing all the
circumstances of Ms Rantseva’s death and bringing to justice guilty parties,
under Cypriot legislation. The request included the findings of the Russian
authorities as to the background circumstances; it is not clear how the
findings were reached and what, if any, investigation was conducted independently
by the Russian authorities.
The findings stated, inter alia, as
follows (translation provided):
“The police officers refused to arrest Rantseva O.N. due to her
right to stay on the territory of Cyprus without the right to work for 14 days,
i.e. until April 2, 2001. Then Mr [M.A.] suggested to detain Rantseva O.N. till
the morning as a drunken person. He was refused, since, following the
explanations provided by the police officers Rantseva O.N. looked like a sober
person, behaved decently, was calm, was laying make-up. M.A., together with an
unestablished person, at 5.30a.m. on March 28, 2001 took Rantseva O.N. from the
regional police precinct and brought her to the apartment of [D.P.] ... where
[they] organised a meal, and then, at 6.30a.m. locked Rantseva O.N. in a room
of the attic of the 7th floor of said house.”
The request highlighted the conclusion of the
experts at the Chelyabinsk Bureau of Forensic Medicine that there had been two
stages in Ms Rantseva’s fall, first on her back and then on her front. The
request noted that this conclusion contradicted the findings made in the
Cypriot forensic examination that Ms Rantseva’s death had resulted from a fall
face-down. It further noted:
“It is possible to suppose, that at the moment of her falling
down the victim could cry from horror. However, it contradicts the materials of
the investigation, which contain the evidence of an inhabitant of the 2nd
floor of this row of loggias, saying that a silent body fell down on the
asphalt ...”
The report concluded:
“Judging by the report of the investigator to Mr Rantsev N.M.,
the investigation ends with the conclusion that the death of Rantseva O.N. took
place under strange and un-established circumstances, demanding additional
investigation.”
The Prosecutor of the Chelyabinsk region
therefore requested, in accordance with the Legal Assistance Treaty, that
further investigation be carried out into the circumstances of Ms Rantseva’s
death in order to identify the cause of death and eliminate the contradictions
in the available evidence; that persons having any information concerning the
circumstances of the death be identified and interviewed; that the conduct of
the various parties be considered from the perspective of bringing murder
and/or kidnapping and unlawful deprivation of freedom charges, and in
particular that M.A. be investigated; that the applicant be informed of the
materials of the investigation; that the Russian authorities be provided with a
copy of the final decisions of judicial authorities as regards Ms Rantseva’s
death; and that the applicant be granted legal assistance free of charge and be
exempted from paying court expenses.
On 27 December 2001 the Russian Federation wrote to the Cypriot Ministry of Justice requesting, on behalf of the applicant,
that criminal proceedings be instituted in respect of Ms Rantseva’s death, that
the applicant be joined as a victim in the proceedings and that he be granted
free legal assistance.
On 16 April 2002 the Russian Embassy in Cyprus conveyed to the Cypriot Ministry of Justice and Public Order the requests dated 11 December
and 27 December 2001 of the General Prosecutor’s Office of the Russian Federation, made under the Legal Assistance Treaty, for legal assistance concerning
Ms Rantseva’s death.
On 25 April 2002 the Office of the Prosecutor
General of the Russian Federation reiterated its request for the institution of
criminal proceedings in connection with Ms Rantseva’s death and the applicant’s
request to be added as a victim to the proceedings in order to submit his
further evidence, as well as his request for legal aid. It requested the
Cypriot Government to provide an update and advise of any decisions that had
been taken.
On 25 November 2002, the applicant applied to
the Russian authorities to be recognised as a victim in the proceedings
concerning his daughter’s death and reiterated his request for legal
assistance. The request was forwarded by the Office of the Prosecutor General
of the Russian Federation to the Cypriot Ministry of Justice.
By letter of 27 December 2002 the Assistant to
the Prosecutor General of the Russian Federation wrote to the Cypriot Ministry
of Justice referring to the detailed request made by the applicant for the
initiation of criminal proceedings in connection with the death of his daughter
and for legal aid in Cyprus, which had previously been forwarded to the Cypriot
authorities pursuant to the Mutual Assistance Convention and the Legal
Assistance Treaty. The letter noted that no information had been received and
requested that a response be provided.
On 13 January 2003 the Russian Embassy wrote to
the Cypriot Ministry of Foreign Affairs requesting an expedited response to its
request for legal assistance in respect of Ms Rantseva’s death.
By letters of 17 and 31 January 2003 the Office
of the Prosecutor General of the Russian Federation noted that it had received
no response from the Cypriot authorities in relation to its requests for legal
assistance, the contents of which it repeated.
On 4 March 2003 the Cypriot Ministry of Justice
informed the Prosecutor General of the Russian Federation that its request had
been duly executed by the Cypriot police. A letter from the Chief of Police, and
the police report of 8 July 2002 recording the applicant’s visit to Limassol
Police Station in August 2001 were enclosed.
On 19 May 2003 the Russian Embassy wrote to the
Cypriot Ministry of Foreign Affairs requesting an expedited response to its
request for legal assistance in respect of Ms Rantseva’s death.
On 5 June 2003 the Office of the Prosecutor
General of the Russian Federation submitted a further request pursuant to the
Legal Assistance Treaty. It requested that a further investigation be conducted
into the circumstances of Ms Rantseva’s death as the verdict of 27 December
2001 was unsatisfactory. In particular, it noted that despite the strange
circumstances of the incident and the acknowledgment that Ms Rantseva 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 contain
any detailed description of the findings of the autopsy carried out by the
Cypriot authorities.
On 8 July 2003 the Russian Embassy wrote to the
Cypriot Ministry of Foreign Affairs requesting a reply to its previous requests
as a matter of urgency.
On 4 December 2003 the Commissioner for Human
Rights of the Russian Federation forwarded the applicant’s complaint about the inadequate
reply from the Cypriot authorities to the Cypriot Ombudsman.
On 17 December 2003, in reply to the Russian
authorities’ request (see paragraph 52 above), 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 report was
prepared by one of the officers who had attended the scene on 28 March 2001 and
provided brief responses to the questions posed by the Russian authorities. The
report reiterated that witnesses had been interviewed and statements taken. It
emphasised that all the evidence was taken into consideration by the inquest. It
continued as follows (translation):
“At about 6.30a.m. on 28 March 2001
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 railing 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.”
The report observed that it was not known why Ms
Rantseva left the apartment on 19 March 2001 but on the basis of the
investigation (translation):
“... 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.”
As to the criticism of the Cypriot autopsy and
alleged inconsistencies in the forensic evidence between the Cypriot and
Russian authorities, the report advised that these remarks had been forwarded
to the Cypriot forensic examiner who had carried out the autopsy. His response
was that his own conclusions were sufficient and that no supplementary
information was required. Finally, the report reiterated that the inquest had
concluded that there was no indication of any criminal liability for Ms
Rantseva’s death.
By letter of 17 August 2005 the Russian
Ambassador to Cyprus requested further information about a hearing concerning
the case apparently scheduled for 14 October 2005 and reiterated the applicant’s
request for free legal assistance. The Cypriot Ministry of Justice responded by
facsimile of 21 September 2005 indicating that Limassol District Court had been
unable to find any reference to a hearing in the case fixed for 14 October
2005 and requesting clarification from the Russian authorities.
On 28 October 2005 the applicant asked the
Russian authorities to obtain testimonies from two young Russian women, now
resident in Russia, who had been working with Ms Rantseva at the cabaret in
Limassol and could testify about sexual exploitation taking place there. He
reiterated his request on 11 November 2005. The Russian authorities replied
that they could only obtain such testimonies upon receipt of a request by the
Cypriot authorities.
By letter of 22 December 2005 the Office of the
Prosecutor General of the Russian Federation wrote to the Cypriot Ministry of
Justice seeking an update on the new inquest into Ms Rantseva’s death and requesting
information on how to appeal Cypriot court decisions. The letter indicated
that, according to information available, the hearing set for 14 October 2005
had been suspended due to the absence of evidence from the Russian nationals
who had worked in the cabaret with Ms Rantseva. The letter concluded with an
undertaking to assist in any request for legal assistance by Cyprus aimed at the collection of further evidence.
In January 2006, according to the applicant, the
Attorney-General of Cyprus confirmed to the applicant’s lawyer that he was
willing to order the re-opening of the investigation upon receipt of further
evidence showing any criminal activity.
On 26 January 2006 the Russian Embassy wrote to
the Cypriot Ministry of Justice requesting an update on the suspended hearing
of 14 October 2005. The Ministry of Justice replied by facsimile on 30
January 2006 confirming that neither the District Court of Limassol nor the
Supreme Court of Cyprus had any record of such a hearing and requesting further
clarification of the details of the alleged hearing.
On 11 April 2006 the Office of the Prosecutor
General of the Russian Federation wrote to the Cypriot Ministry of Justice
requesting an update on the suspended hearing and reiterating its query
regarding the appeals procedure in Cyprus.
On 14 April 2006, by letter to the Russian
authorities, the Attorney-General of Cyprus advised 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.
On 26 April 2006 the Cypriot Ministry of Justice
replied to the Office of the Prosecutor General of the Russian Federation reiterating its request for more information about the alleged suspended hearing.
On 17 June 2006 the Office of the Prosecutor
General of the Russian Federation wrote to the Attorney-General of Cyprus reminding him of the outstanding requests for renewal of investigations into Ms Rantseva’s
death and for information on the progress of judicial proceedings.
On 22 June and 15 August 2006 the applicant
reiterated his request to the Russian authorities that statements be taken from
the two Russian women.
On 17 October 2006 the Cypriot Ministry of
Justice confirmed to the Office of the Prosecutor General of the Russian Federation that the inquest into Ms Rantseva’s death was completed on 27 December
2001 and that it found that her death was the result of an accident. The letter
noted:
“No appeal was filed against the decision, because of the lack
of additional evidence”.
On 25 October 2006, 27 October 2006, 3 October
2007 and 6 November 2007 the applicant reiterated his request to the
Russian authorities that statements be taken from the two Russian women.
II. REPORTS ON THE SITUATION OF “ARTISTES” IN CYPRUS
A. Ex Officio report of the Cypriot Ombudsman on the
regime regarding entry and employment of alien women as artistes in
entertainment places in Cyprus, 24 November 2003
In November 2003, the Cypriot Ombudsman
published a report on “artistes” in Cyprus. In her introduction, she explained
the reasons for her report as follows (all quotes are from a translation of the
report provided by the Cypriot Government):
“Given the circumstances under which [Oxana] Rantseva had lost
her life and in the light of similar cases which have been brought into
publicity regarding violence or demises of alien women who arrives in Cyprus to work as ‘artistes’, I have decided to undertake an ex officio investigation
...”
As to the particular facts of Ms Rantseva’s
case, she noted the following:
“After formal immigration procedures, she started working on 16
March 2001. Three days later she abandoned the cabaret and the place where she
had been staying for reasons which have never been clarified. The employer
reported the fact to the Aliens and Immigration Department in Limassol.
However, [Oxana] Rantseva’s name was not inserted on the list comprising people
wanted by the Police, for unknown reasons, as well.”
She further noted that:
“The reason for which [Oxana] Rantseva was surrendered by the
police to her employer, instead of setting her free, since there were [neither]
arrest warrant [nor] expulsion decree against her, remained unknown.”
The Ombudsman’s report considered the history of
the employment of young foreign women as cabaret artistes, noting that the word
“artiste” in Cyprus has become synonymous with “prostitute”. Her report explained
that since the mid-1970s, thousands of young women had legally entered Cyprus to work as artistes but had in fact worked as prostitutes in one of the many cabarets in Cyprus. Since the beginning of the 1980s, efforts had been made by the authorities to
introduce a stricter regime in order to guarantee effective immigration
monitoring and to limit the “well-known and commonly acknowledged phenomenon of
women who arrived in Cyprus to work as artistes”. However, a number of the
measures proposed had not been implemented due to objections from cabaret
managers and artistic agents.
The Ombudsman’s report noted that in the 1990s,
the prostitution market in Cyprus started to be served by women coming mainly
from former States of the Soviet Union. She concluded that:
“During the same period, one could observe a certain
improvement regarding the implementation of those measures and the policy being
adopted. However, there was not improvement regarding sexual exploitation,
trafficking and mobility of women under a regime of modern slavery.”
As regards the living and working conditions of
artistes, the report stated:
“The majority of the women entering the country to work as
artistes come from poor families of the post socialist countries. Most of them
are educated ... Few are the real artistes. Usually they are aware that they
will be compelled to prostitute themselves. However, they do not always know
about the working conditions under which they will exercise this job. There are
also cases of alien women who come to Cyprus, having the impression that they
will work as waitresses or dancers and that they will only have drinks with
clients (‘consomation’). They are made by force and threats to comply with the
real terms of their work ...
Alien women who do not succumb to this pressure are forced by
their employers to appear at the District Aliens and Immigration Branch to
declare their wish to terminate their contract and to leave Cyprus on ostensible grounds ... Consequently, the employers can replace them quickly with other
artistes ...
The alien artistes from the moment of their entry into the Republic of Cyprus to their departure are under constant surveillance and guard of their
employers. After finishing their work, they are not allowed to go wherever they
want. There are serious complaints even about cases of artistes who remain
locked in their residence place. Moreover, their passports and other personal
documents are retained by their employers or artistic agents. Those who refuse
to obey are punished by means of violence or by being imposed fees which
usually consist in deducting percentages of drinks, ‘consommation’ or
commercial sex. Of course these amounts are included in the contracts signed by
the artistes.
...
Generally, artistes stay at one or zero star hotels, flats or
guest-houses situated near or above the cabarets, whose owners are the artistic
agents or the cabaret owners. These places are constantly guarded. Three or
four women sleep in each room. According to reports given by the Police, many
of these buildings are inappropriate and lack sufficient sanitation facilities.
...Finally, it is noted that at the point of their arrival in
Cyprus alien artistes are charged with debts, for instance with traveling
expenses, commissions deducted by the artistic agent who brought them in Cyprus or with commissions deducted by the agent who located them in their country etc.
Therefore, they are obliged to work under whichever conditions to pay off at
least their debts.” (footnotes omitted)
Concerning the recruitment of women in their countries
of origin, the report noted:
“Locating women who come to work in Cyprus is usually
undertaken by local artistic agents in cooperation with their homologues in
different countries and arrangements are made between both of them. After
having worked for six months maximum in Cyprus, a number of these artistes are
sent to Lebanon, Syria, Greece or Germany.” (footnotes omitted)
The Ombudsman observed that the police received
few complaints from trafficking victims:
“The police explain that the small number of complaints filed
is due to the fear that artistes feel, since they receive threats against their
lives on the part of their procurer.”
She further noted that protection measures for
victims who had filed complaints were insufficient. Although they were
permitted to work elsewhere, they were required to continue working in similar
employment. They could therefore be easily located by their former employers.
The Ombudsman concluded:
“The phenomenon of trafficking in person has so tremendously
grown worldwide. Trafficking in persons concerns not only sexual exploitation
of others but also exploitation of their employment under conditions of slavery
and servitude ...
From the data of this report it is observed that over the last
two decades Cyprus has not been only a destination country but a transit
country where women are systematically promoted to the prostitution market. It
follows also that this is also due to a great extent to the tolerance on the
part of the immigration authorities, which are fully aware of what really
happens.
On the basis of the policy followed as for the issue of entry
and employment permits to entertainment and show places, thousands of alien
women, with no safety valve, have entered by law the country to work as
artistes unlawfully. In various forms of pressure and coercion most of these
women are forced by their employers to prostitution under cruel conditions,
which infringe upon the fundamental human rights, such as individual freedom
and human dignity.” (footnotes omitted)
Although she considered the existing legislative
framework to combat trafficking and sexual exploitation satisfactory, she noted
that no practical measures had been taken to implement the policies outlined,
observing that:
“...The various departments and services dealing with this
problem, are often unaware of the matter and have not been properly trained or
ignore those obligations enshrined in the Law ...”
B. Extracts of report of 12 February 2004 by the Council of
Europe Commissioner for Human Rights on his visit to Cyprus in June 2003
(CommDH(2004)2)
The Council of Europe Commissioner for Human
Rights visited Cyprus in June 2003 and in his subsequent report of 12 February
2004, he referred to issues in Cyprus regarding trafficking of women. The
report noted, inter alia, that:
“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.”
As regards the legal framework in place in Cyprus (see paragraphs 127 to 131 below), the
Commissioner observed:
“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
provisions 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.”
Concerning practical measures, the Commissioner
noted:
“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.”
However, he criticised the failure of the
authorities to tackle the problem of the excessive number of young foreign
women coming to work in Cypriot cabarets:
“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.”
C. Extracts of follow-up report of 26 March 2006 by the Council
of Europe Commissioner for Human Rights on the progress made in implementing
his recommendations (CommDH(2006)12)
On 26 March 2006, the Council of Europe Commissioner
for Human Rights published a follow-up report in which he assessed the progress
of the Cypriot Government in implementing the recommendations of his previous
report. As regards the issue of trafficking, the report observed that:
“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.”
The report continued:
“49. The so called ‘cabaret artiste’ visas are in fact permits
to enter and work in nightclubs and bars. These permits are valid for 3 months
and can be extended for a further 3 months. The permit is applied for by the
establishment owner on behalf of the woman in question. Approximately 4,000
permits are issued each year, with 1,200 women working at a given time and most
women originating from Eastern Europe. A special information leaflet has been
prepared by the Migration Service and translated into four languages. The
leaflet is given to women entering the country on such permits, is also
available on the website of the Ministry of the Interior and the Ministry of
Foreign Affairs and copies of the leaflet are sent to the consulates in Russia,
Bulgaria, the Ukraine and Romania in order for women to be informed before they
enter Cyprus. The leaflet sets out the rights of the women and the
responsibilities of their employers. The authorities are aware that many of the
women who enter Cyprus on these artistes visas will in fact work in prostitution.”
The Commissioner’s report highlighted recent and
pending developments in Cyprus:
“50. A new Law on Trafficking in Human Beings is currently
being discussed. The new law will include other forms of exploitation such as
labour trafficking as well as trafficking for sexual exploitation. Cyprus has signed but not ratified the Council of Europe Convention on Action Against
Trafficking in Human Beings.
51. The Attorney General’s Office has prepared a National
Action Plan for the Combating of Human Trafficking. The Action Plan was
presented and approved by the Council of Ministers in April 2005. Some NGOs
complained of their lack of involvement in the consultation process. The
Ministry of the Interior is responsible for the implementation of the Action
Plan. According to the Action Plan, women involved in cases of sexual
exploitation or procuring are not arrested or charged with any offence, but are
considered as victims and are under the care of the Ministry of Labour and
Social Security. Victims who will act as witnesses in court trials can reside
in Cyprus until the end of the case. They have the possibility of working, or
if they do not wish to work, the Ministry will cover all their residential,
health and other needs. A special procedures manual has been drafted for the
treatment of victims of trafficking, and has been circulated to all ministries
and government departments, as well as NGOs for consultation.
52. There is no specific shelter for victims of trafficking at
present, although victims may be accommodated by the authorities in two rooms
in state-owned retirement homes, which are available in each major town. A
shelter in Limassol is due to be opened soon, which will provide accommodation
for 15 women, as well as providing the services of a social worker, lawyer, and
vocational advisor.”
As regards steps taken to improve information
collection and research into trafficking, he noted:
“53. An Office for the Prevention and Combating of Human Trafficking
was set up by the police in April 2004. The office’s role is to collect and
evaluate intelligence regarding trafficking in human beings, to co-ordinate
operations of all police divisions and departments, to organise and participate
in operations, and to follow-up on cases that are under investigation, pending
trial or presented to the courts. The office also prepares reports on
trafficking and investigates child pornography on the Internet. In addition,
the office organises educational seminars carried out at the Cyprus Police Academy.
54. According to statistical information provided by the police
from 2000 to 2005, there is a clear increase in the number of cases reported
concerning offences of sexual exploitation, procuring, and living on the earnings
of prostitution, etc. NGOs confirm that awareness about issues relating to
trafficking has increased.”
Finally, in respect of preventative measures,
the Commissioner highlighted recent positive developments:
“55. Preventive and suppressive measures are also undertaken by
the police, such as raids in cabarets, inspections, interviews with women,
co-operation with mass media, and control of advertisements found in different
newspapers. The police provide an anonymous toll-free hotline where anybody can
call to seek help or give information. Cabarets which are under investigation
are put on a black list and are unable to apply for new visas.
56. Some efforts have been made by the Cypriot authorities to
improve victim identification and referral, and in particular, 150 police
officers have been trained on this issue. However, according to NGOs a culture
still prevails in which women are seen by the police to have ‘consented’ to
their predicament and victim identification remains inadequate.”
The report reached the following conclusions:
“57. Trafficking in human beings is one of the most pressing
and complex Human Rights issues faced by Council of Europe member states,
including Cyprus. There is obviously a risk that the young women who enter Cyprus on artiste visas may be victims of trafficking in human beings or later become
victims of abuse or coercion. These women are officially recruited as cabaret
dancers but are nevertheless often expected also to work as prostitutes. They
are usually from countries with inferior income levels to those in Cyprus and may find themselves in a vulnerable position to refuse demands from their
employers or clients. The system itself, whereby the establishment owner applies
for the permit on behalf of the woman, often renders the woman dependent on her
employer or agent, and increases the risk of her falling into the hands of
trafficking networks.
58. The Commissioner urges the Cypriot authorities to be
especially vigilant about monitoring the situation and ensuring that the system
of artiste visas is not used for facilitating trafficking or forced
prostitution. In this context, the Commissioner recalls the exemplary reaction
of the Luxembourg authorities to similar concerns expressed in his report on
the country and their withdrawal of the cabaret artiste visa regime. Changes to
the current practice might, at the very least, include women having to apply
for the visa themselves, and the information leaflet being given to the women,
if possible, before they enter the country.
59. The Commissioner welcomes the new National Action Plan for
the Combating of Human Trafficking as a first step in addressing this issue and
encourages the Ministry of the Interior to ensure its full implementation. The
new law on trafficking, once enacted, will also play an important role. The
variety of police activities in response to this phenomenon, such as the
setting up of the Office for the Prevention and Combating of Human Trafficking,
should also be welcomed.
60. In order to respect the human rights of trafficked persons,
the authorities need to be able to identify victims and refer them to
specialised agencies which can offer shelter and protection, as well as support
services. The Commissioner urges the Cypriot authorities to continue with the
training of police officers in victim identification and referral, and
encourages the authorities to include women police officers in this area. More
effective partnerships with NGOs and other civil society actors should also be
developed. The Commissioner expresses his hope that the shelter in Limassol
will be put into operation as soon as possible.”
D. Extracts of report of 12 December 2008 by the Council of
Europe Commissioner for Human Rights on his visit to Cyprus on 7-10 July
2008 (CommDH(2008)36)
The Commissioner of Human Rights has recently
published a further report following a visit to Cyprus in July 2008. The report
comments on the developments in respect of issues relating to trafficking of
human beings, emphasising at the outset that trafficking of women for
exploitation was a major problem in many European countries, including Cyprus. The report continued as follows:
“33. Already in 2003, the Commissioner for Administration
(Ombudswoman) stated that Cyprus had been associated with trafficking both as a
country of destination and transit, the majority of women being blackmailed and
forced to provide sexual services. In 2008, the island still is a destination
country for a large number of women trafficked from the Philippines, Russia,
Moldova, Hungary, Ukraine, Greece, Vietnam, Uzbekistan and the Dominican
Republic for the purpose of commercial sexual exploitation ... Women are
reportedly denied part or all of their salaries, forced to surrender their passports,
and pressed into providing sexual services for clients. Most of these women are
unable to move freely, are forced to work far above normal working hours, and
live in desperate conditions, isolated and under strict surveillance.
34. Victims of trafficking are recruited to Cyprus mainly on
three-month so-called ‘artiste’ or ‘entertainment’ visas to work in the cabaret
industry including night clubs and bars or on tourist visas to work in massage
parlours disguised as private apartments ... The permit is sought by the owner
of the establishment, in most cases so-called ‘cabarets’, for the women in
question.
35. The study conducted by the Mediterranean Institute of
Gender Studies (MIGS) led to a report on trafficking in human beings published
in October 2007. It shows that an estimated 2 000 foreign women enter the
island every year with short term ‘artiste’ or ‘entertainment’ work permits.
Over the 20-year period 1982-2002, there was a dramatic increase of 111% in the
number of cabarets operating on the island ...
36. During his visit the Commissioner learned that there are
now approximately 120 cabaret establishments in the Republic of Cyprus,
each of them employing around 10 to 15 women ...” (footnotes omitted)
The Commissioner noted that the Government had
passed comprehensive anti-trafficking legislation criminalising all forms of
trafficking, prescribing up to 20 years’ imprisonment for sexual exploitation
and providing for protection and support measures for victims (see paragraphs 127 to 131 below). He also visited the new
government-run shelter in operation since November 2007 and was impressed by
the facility and the commitment shown by staff. As regards allegations of
corruption in the police force, and the report noted as follows:
“42. The Commissioner was assured that allegations of
trafficking-related corruption within the police force were isolated cases. The
authorities informed the Commissioner that so far, three disciplinary cases
involving human trafficking/prostitution have been investigated: one resulted
in an acquittal and two are still under investigation. In addition, in 2006, a
member of the police force was sentenced to 14 months imprisonment and was
subsequently dismissed from service following trafficking related charges.”
The report drew the following conclusions in
respect of the artiste permit regime in Cyprus:
“45. The Commissioner reiterates that trafficking in women for
the purposes of sexual exploitation is a pressing and complex human rights
issues faced by a number of Council of Europe member States, including Cyprus. A paradox certainly exists that while the Cypriot government has made legislative
efforts to fight trafficking in human beings and expressed its willingness
through their National Action Plan 2005, it continues to issue work permits for
so-called cabaret artistes and licences for the cabaret establishments. While
on paper the permits are issued to those women who will engage in some type of
artistic performance, the reality is that many, if not most, of these women are
expected to work as prostitutes.
46. The existence of the ‘artiste’ work permit leads to a
situation which makes it very difficult for law enforcement authorities to
prove coercion and trafficking and effectively combat it. This type of permit
could thus be perceived as contradicting the measures taken against trafficking
or at least as rendering them ineffective.
47. For these reasons, the Commissioner regrets that the ‘artiste’
work permit is still in place today despite the fact that the government has
previously expressed its commitment to abolish it. It seems that the special
information leaflet given to women entering the country on such a permit is of
little effect, even though the woman needs to have read and signed the leaflet
in the presence of an official.
48. The Commissioner calls upon the Cypriot authorities to
abolish the current scheme of cabaret ‘artistes’ work permits ...”
The Commissioner also reiterated the importance
of a well-trained and motivated police force in the fight against trafficking
in human beings and encouraged the authorities to ensure adequate and timely
victim identification.
E. Trafficking in Persons Report,
U.S. State Department, June 2008
In its 2008 report on trafficking, the U.S. State
Department noted that:
“Cyprus is a destination country for a large number of women
trafficked from the Philippines, Russia, Moldova, Hungary, Ukraine, Greece,
Vietnam, Uzbekistan, and the Dominican Republic for the purpose of commercial
sexual exploitation ... Most victims of trafficking are fraudulently recruited
to Cyprus on three-month ‘artiste’ work permits to work in the cabaret industry
or on tourist visas to work in massage parlors disguised as private
apartments.”
The report found that Cyprus had failed to provide evidence that it had increased its efforts to combat severe forms of
trafficking in persons from the previous year.
The report recommended that the Cypriot
Government:
“Follow through with plans to abolish, or greatly restrict use
of the artiste work permit-a well-known conduit for trafficking; establish
standard operating procedures to protect and assist victims in its new
trafficking shelter; develop and launch a comprehensive demand reduction
campaign specifically aimed at clients and the larger public to reduce
wide-spread misconceptions about trafficking and the cabaret industry; dedicate
more resources to its anti-trafficking unit; and improve the quality of
trafficking prosecutions to secure convictions and appropriate punishments for
traffickers.”
III. RELEVANT DOMESTIC LAW AND PRACTICE
A. Cyprus
1. Extracts of the Constitution
. Under the
Cypriot Constitution the right to life and corporal integrity is protected by Article
7.
. Article 8
provides that no person shall be subjected to torture or to inhuman or
degrading punishment or treatment.
. Article 9
guarantees that:
“Every person has the right to a decent existence
and to social security. A law shall provide for the protection of the workers,
assistance to the poor and for a system of social insurance.”
. Article 10
provides, in so far as relevant, that:
“1. No person shall be held in slavery or
servitude.
2. No person shall be required to perform forced
or compulsory labour ...”
. Article
11(1) provides that every person has the right to liberty and security of
person. Article 11(2) prohibits deprivation of liberty except in cases permitted
under Article 5 § 1 of the Convention and as provided by law.
2. Applications for entrance, residence and work
permits for artistes
a. The procedure at the relevant time
In 2000, the Civil Registry and Migration
Department defined “artiste” as:
“any alien who wishes to enter Cyprus in order to work in a
cabaret, musical-dancing place or other night entertainment place and has
attained the age of 18 years.”
Under Article 20 of the Aliens and Immigration
Law, Cap. 105, the Council of Ministers has jurisdiction to issue regulations
concerning entry requirements for aliens, monitoring the immigration and
movements of aliens, regulating warranties in respect of aliens holding permits
and determining any relevant fees. Notwithstanding the existence of these
powers, at the material time the entry procedures for those entering Cyprus to work as cabaret artistes were regulated by decisions or instructions of the
Minister of Interior, immigration officers and the general directors of the
Ministry.
In line with a procedure introduced in 1987, applications
for entry, temporary residence and work permits had to be submitted by the prospective
employer (the cabaret manager) and the artistic agent, accompanied by an
employment contract recording the exact terms agreed between the parties and photocopies
of relevant pages of the artiste’s passport. Artistic agents were also required
to deposit a bank letter guarantee in the sum of 10,000 Cypriot pounds (CYP) (approximately
EUR 17,000) to cover possible repatriation expenses. Cabaret managers were
required to deposit a bank warranty in the sum of CYP 2,500 (approximately EUR
4,200) to cover a repatriation for which the manager was responsible.
If all the conditions were fulfilled, an entry
and temporary resident permit valid for five days was granted. Upon arrival,
the artiste was required to undergo various medical tests for AIDS and other
infectious or contagious diseases. Upon submission of satisfactory results, a
temporary residence and work permit valid for three months was granted. The
permit could be renewed for a further three months. The number of artistes who
could be employed in a single cabaret was limited.
In an effort to prevent artistes from being
forced to leave the cabaret with clients, artistes were required to be present
on the cabaret premises between 9 p.m. and 3 a.m., even if their own
performance lasted for only one hour. Absence due to illness had to be
certified by a doctor’s letter. Cabaret managers were required to advise the
Immigration Office if an artiste failed to show up for work or otherwise
breached her contract. Failure to do so would result in the artiste being
expelled, with her repatriation expenses covered by the bank guarantee
deposited by the cabaret manager. If an artistic agent had been convicted of
offences linked to prostitution, he would not be granted entry permits for
artistes.
b. Other relevant developments
In 1986, following reports of prostitution of
artistes, the Police Director proposed establishing an ad hoc committee
responsible for assessing whether artistes seeking to enter Cyprus held the necessary qualifications for the grant of an artiste visa. However, the measure was
never implemented. A committee with a more limited remit was set up but, over
time, was gradually weakened.
Under the procedure introduced in 1987, an
application for an entry permit had to be accompanied by evidence of artistic
competency. However, this measure was indefinitely suspended in December 1987
on the instructions of the then General Director of the Ministry of the
Interior.
In 1990, following concerns about the fact that
artistic agents also owned or managed cabarets or owned the accommodation in
which their artistes resided, the Civil Registry and Immigration Department
notified all artistic agents that from 30 June 1990 cabaret owners were not
permitted to work also as artistic agents. They were requested to advise the
authorities which of the two professions they intended to exercise. Further,
the level of the bank guarantees was increased, from CYP 10,000 to CYP 15,000
in respect of artistic agents and from CYP 2,500 to CYP 10,000 in respect of
cabaret managers. However, these measures were never implemented following
objections from artistic agents and cabaret managers. The only change which was
made was an increase in the level of the bank guarantee by cabaret managers
from CYP 2,500 to CYP 3,750 (approximately EUR 6,400).
3. Law on inquests
The holding of inquests in Cyprus is governed by the Coroners Law of 1959, Cap. 153. Under section 3, every district judge and
magistrate may hold inquests within the local limits of his jurisdiction.
Section 3(3) provides that any inquest commenced by a coroner may be continued,
resumed, or reopened in the manner provided by the Law.
Section 14 sets out the procedure at the
inquest and provides as follows (all quotes to Cypriot legislation are
translated):
“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.”
Section 16 governs the extent of the coroner’s
powers and provides that:
“(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.”
Under section 24, where the coroner is of the 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.
Section 25 provides that following the hearing
of evidence, the coroner shall give his verdict and certify it in writing,
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. Under section 26,
if at the close of the inquest the coroner is of the opinion that there are
grounds 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.
Section 30 allows the President of the District
Court, upon the application of the Attorney-General, to order the holding,
re-opening or quashing of an inquest or verdict. It provides that:
“(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.”
4. Trafficking in human beings
. Legislation
on human trafficking was introduced in Cyprus under Law No. 3(1) of 2000 on the
Combating of Trafficking in Persons and Sexual Exploitation of Children. Section
3(1) prohibits:
“a. The sexual exploitation of adult persons for
profit if:
i. it is done by the use of force, violence or
threats; or
ii. there is fraud; or
iii. it is done through abuse of power or other
kind of pressure to such an extent so that the particular person would have no
substantial and reasonable choice but to succumb to pressure or ill-treatment;
b. the trafficking of adult persons for profit
and for sexual exploitation purposes in the circumstances referred to in
subsection (a) above;
c. the sexual exploitation or the ill-treatment
of minors;
d. the trafficking of minors for the purpose of
their sexual exploitation or ill-treatment.”
. Section 6
provides that the consent of the victim is not a defence
to the offence of trafficking.
. Under
section 5(1), persons found guilty of trafficking adults for the purposes of sexual
exploitation may be imprisoned for up to ten years or fined CYP 10,000, or both.
In the case of a child, the potential prison sentence is increased to fifteen
years and the fine to CYP 15,000. Section 3(2) provides
for a greater penalty in certain cases:
“For the purposes of this section, blood
relationship or relationship by affinity up to the third degree with the victim
and any other relation of the victim with the person, who by reason of his
position exercises influence and authority over the victim and includes
relations with guardian, educators, hostel administration, rehabilitation home,
prisons or other similar institutions and other persons holding similar
position or capacity that constitutes abuse of power or other kind of coercion:
a. a person acting contrary to the provisions of
section 1(a) and (b) commits an offence and upon conviction is liable to
imprisonment for fifteen years;
b. a person acting contrary to the provisions of
section 1(c) and (d) commits an offence and upon conviction is liable to
imprisonment for twenty years.”
. Section 7
imposes a duty on the State to protect victims of trafficking by providing them
with support, including accommodation, medical care and psychiatric support.
. Under sections
10 and 11, the Council of Ministers may appoint a “guardian of victims”
to advise, counsel, and guide victims of exploitation; to hear and investigate
complaints of exploitation; to provide victims with treatment and safe
residence; to take the necessary steps to prosecute offenders; to take measures
aimed at rehabilitating, re-employing or repatriating victims; and to identify
any deficiencies in the law to combat trafficking. Although a custodian was
appointed, at the time of the Cypriot Ombudsman’s 2003 Report (see paragraphs 80
to 90 above), the role remained theoretical and no programme to ensure
protection of victims had been prepared.
B. Russia
1. Jurisdiction under the Russian Criminal Code
Articles 11 and 12 of the Criminal Code of the Russian Federation set out the territorial application of Russian criminal law. Article 11
establishes Russian jurisdiction over crimes committed in the territory of the Russian Federation. Article 12(3) provides for limited jurisdiction in respect of
non-Russian nationals who commit crimes outside Russian territory where the crimes
run counter to the interests of the Russian Federation and in cases provided
for by international agreement.
2. General offences under the Criminal Code
Article 105 of the Russian Criminal Code
provides that murder shall be punishable with a prison term.
Article 125 of the Russian Criminal Code
provides that deliberate abandonment and failure to provide assistance to a
person in danger is punishable by a fine, community service, corrective labour
or a prison term.
Articles 126 and 127 make abduction and illegal
deprivation of liberty punishable by prison terms.
3. Trafficking in human beings
In December 2003, an amendment was made to the
Russian Criminal Code by the insertion of a new Article 127.1 in the following
terms:
“1. Human beings’ trafficking, that is, a human being’s
purchase and sale or his recruiting, transportation, transfer, harbouring or
receiving for the purpose of his exploitation ... shall be punishable by
deprivation of liberty for a term of up to five years.
2. The same deed committed:
a) in respect of two or more persons;
...
d) moving the victim across the State Border of the Russian Federation or illegally keeping him abroad;
...
f) with application of force or with the threat of applying it;
...
shall be punishable by deprivation of liberty for a term from
three to 10 years.
3. The deeds provided for by Parts One and Two of this Article:
a) which have entailed the victim’s death by negligence, the
infliction of major damage to the victim’s health or other grave consequences;
b) committed in a way posing danger to the life or health of
many people;
c) committed by an organized group-
shall be punishable by deprivation of liberty for a term from
eight to 15 years.”
IV. RELEVANT INTERNATIONAL TREATIES AND OTHER MATERIALS
A. Slavery
1. Slavery Convention 1926
The Slavery Convention, signed in Geneva in 1926, entered into force on 7 July 1955. Russia acceded to the Slavery Convention
on 8 August 1956 and Cyprus on 21 April 1986. In the recitals, the Contracting
Parties stated as follows:
“Desiring to ... find a means of giving practical effect
throughout the world to such intentions as were expressed in regard to slave
trade and slavery by the signatories of the Convention of
Saint-Germain-en-Laye, and recognising that it is necessary to conclude to that
end more detailed arrangements than are contained in that Convention,
Considering, moreover, that it is necessary to prevent forced
labour from developing into conditions analogous to slavery ...”
Article 1 defines slavery as:
“the status or condition of a person over whom any or all of
the powers attaching to the right of ownership are exercised”.
Under Article 2, the parties undertake to prevent
and suppress the slave trade and to bring about, progressively and as soon as
possible, the complete abolition of slavery in all its forms.
Article 5 deals with forced or compulsory
labour and provides, inter alia, that:
“The High Contracting Parties recognise that recourse to
compulsory or forced labour may have grave consequences and undertake, each in
respect of the territories placed under its sovereignty, jurisdiction,
protection, suzerainty or tutelage, to take all necessary measures to prevent
compulsory or forced labour from developing into conditions analogous to
slavery.”
Article 6 requires States whose laws do not
make adequate provision for the punishment of infractions of laws enacted with
a view to giving effect to the purposes of the Slavery Convention to adopt the
necessary measures in order that severe penalties can be imposed in respect of
such infractions.
2. Jurisprudence of the International Criminal Tribunal for the
Former Yugoslavia
In the first case to deal with the definition
of enslavement as a crime against humanity for sexual exploitation, Prosecutor
v. Kunarac, Vukovic and Kovac, 12 June 2002, the International Criminal Tribunal
for the Former Yugoslavia observed that:
“117. ...the traditional concept of slavery, as defined in the
1926 Slavery Convention and often referred to as ‘chattel slavery’ has evolved
to encompass various contemporary forms of slavery which are also based on the
exercise of any or all of the powers attaching to the right of ownership. In
the case of these various contemporary forms of slavery, the victim is not
subject to the exercise of the more extreme rights of ownership associated with
‘chattel slavery’, but in all cases, as a result of the exercise of any or all
of the powers attaching to the right of ownership, there is some destruction of
the juridical personality; the destruction is greater in the case of ‘chattel
slavery’ but the difference is one of degree ...”
It concluded that:
“119. ... the question whether a particular phenomenon is a
form of enslavement will depend on the operation of the factors or indicia of
enslavement [including] the ‘control of someone’s movement, control of physical
environment, psychological control, measures taken to prevent or deter escape,
force, threat of force or coercion, duration, assertion of exclusivity,
subjection to cruel treatment and abuse, control of sexuality and forced labour’.
Consequently, it is not possible exhaustively to enumerate all of the contemporary
forms of slavery which are comprehended in the expansion of the original idea ...”
3. The Rome Statute
The Statute of the International Criminal Court
(“the Rome Statute”), which entered into force on 1 July 2002, provides that
“enslavement” under Article 7(1)(c) of the Rome Statute:
“means the exercise of any or all of the powers attaching to the
right of ownership over a person and includes the exercise of such power in the
course of trafficking in persons, in particular women and children.”
Cyprus signed the Rome Statute on 15 October
1998 and ratified it on 7 March 2002. Russia signed the Statute on 13 September
2000. It has not ratified the Statute.
B. Trafficking
1. Early trafficking agreements
The first international instrument to address
trafficking of persons, the International Agreement for the Suppression of White
Slave Traffic, was adopted in 1904. It was followed in 1910 by the
International Convention for the Suppression of White Slave Traffic.
Subsequently, in 1921, the League of Nations adopted a Convention for the Suppression
of Trafficking in Women and Children, affirmed in the later International
Convention for the Suppression of Traffic in Women of Full Age of 1933. The
1949 Convention for the Suppression of Traffic in Persons and of the Exploitation
of the Prostitution of Others brought the former instruments under the auspices
of the United Nations.
2. The Convention on the Elimination of All Forms of
Discrimination Against Women
The Convention on the Elimination of All Forms
of Discrimination against Women (CEDAW) was adopted in 1979 by the UN General
Assembly. Russia ratified CEDAW on 23 January 1981 and Cyprus acceded to it on 23 July 1985.
Article 6 CEDAW provides that:
“States Parties shall take all appropriate measures, including
legislation, to suppress all forms of traffic in women and exploitation of
prostitution of women.”
3. The Palermo Protocol
The Protocol to Prevent, Suppress and Punish
Trafficking in Persons, especially Women and Children (“the Palermo Protocol”),
supplementing the United Nations Convention against Transnational Organised
Crime 2000 was signed by Cyprus on 12 December 2000 and by Russia on 16
December 2000. It was ratified by them on 26 May 2004 and 6 August 2003
respectively. Its preamble notes:
“Declaring that effective action to prevent and combat
trafficking in persons, especially women and children, requires a comprehensive
international approach in the countries of origin, transit and destination that
includes measures to prevent such trafficking, to punish the traffickers and to
protect the victims of such trafficking, including by protecting their
internationally recognized human rights.”
Article 3(a) defines “trafficking in persons”
as:
“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.”
Article 3(b) provides that the consent of a
victim of trafficking to the intended exploitation is irrelevant where any of
the means set out in Article 3(a) have been used.
Article 5 obliges States to:
“adopt such legislative and other measures as may be necessary
to establish as criminal offences the conduct set forth in article 3 of this
Protocol, when committed intentionally.”
Assistance and protection for victims of
trafficking is dealt with in Article 6, which provides, in so far as relevant:
“2. Each State Party shall ensure that its domestic legal or
administrative system contains measures that provide to victims of trafficking
in persons, in appropriate cases:
(a) Information on relevant court and administrative
proceedings;
(b) Assistance to enable their views and concerns to be
presented and considered at appropriate stages of criminal proceedings against
offenders, in a manner not prejudicial to the rights of the defence.
3. Each State Party shall consider implementing measures to
provide for the physical, psychological and social recovery of victims of
trafficking in persons ...
...
5. Each State Party shall endeavour to provide for the physical
safety of victims of trafficking in persons while they are within its
territory.
...”
Article 9, on the prevention of trafficking in
persons, provides that:
“1. States Parties shall establish comprehensive
policies, programmes and other measures:
(a) To prevent and combat trafficking in persons;
and
(b) To protect victims of trafficking in persons,
especially women and children, from revictimization.
2. States Parties shall endeavour to undertake
measures such as research, information and mass media campaigns and social and
economic initiatives to prevent and combat trafficking in persons.
3. Policies, programmes and other measures
established in accordance with this article shall, as appropriate, include
cooperation with non-governmental organizations, other relevant organizations
and other elements of civil society.
4. States Parties shall take or strengthen measures,
including through bilateral or multilateral cooperation, to alleviate the
factors that make persons, especially women and children, vulnerable to
trafficking, such as poverty, underdevelopment and lack of equal opportunity.
5. States Parties shall adopt or strengthen
legislative or other measures, such as educational, social or cultural
measures, including through bilateral and multilateral cooperation, to
discourage the demand that fosters all forms of exploitation of persons,
especially women and children, that leads to trafficking.”
Article 10 emphasises the need for effective
exchange of information between relevant authorities and training of law
enforcement and immigration officials. It provides, in so far as relevant:
“1. Law enforcement, immigration or other relevant authorities
of States Parties shall, as appropriate, cooperate with one another by
exchanging information, in accordance with their domestic law, to enable them
to determine:
...
(c) The means and methods used by organized criminal
groups for the purpose of trafficking in persons, including the recruitment and
transportation of victims, routes and links between and among individuals and
groups engaged in such trafficking, and possible measures for detecting them.
2. States Parties shall provide or strengthen
training for law enforcement, immigration and other relevant officials in the
prevention of trafficking in persons. The training should focus on methods used
in preventing such trafficking, prosecuting the traffickers and protecting the
rights of the victims, including protecting the victims from the traffickers.
The training should also take into account the need to consider human rights
and child- and gender-sensitive issues and it should encourage cooperation with
non-governmental organizations, other relevant organizations and other elements
of civil society.
...”
4. European Union action to combat trafficking
The Council of the European Union has adopted a
Framework Decision on combating trafficking in human beings (Framework Decision
2002/JHA/629 of 19 July 2002). It provides for measures aimed at ensuring
approximation of the criminal law of the Member States as regards the
definition of offences, penalties, jurisdiction and prosecution, protection and
assistance to victims.
In 2005, the Council adopted an action plan on
best practices, standards and procedures for combating and preventing
trafficking in human beings (OJ C 311/1 of 9.12.2005). The action plan proposes
steps to be taken by Member States, by the Commission and by other EU bodies involving
coordination of EU action, scoping the problem, preventing trafficking,
reducing demand, investigating and prosecuting trafficking, protecting and
supporting victims of trafficking, returns and reintegration and external
relations.
5. Council of Europe general action on trafficking
In recent years, the Committee of Ministers of
the Council of Europe has adopted three legal texts addressing trafficking in
human beings for sexual exploitation: Recommendation No. R (2000) 11 of the
Committee of Ministers to member states on action against trafficking in human
beings for the purpose of sexual exploitation; Recommendation Rec (2001) 16 of
the Committee of Ministers to member states on the protection of children against sexual exploitation; and Recommendation Rec (2002) 5 of the Committee of
Ministers to member states on the protection of women against violence. These texts
propose, inter alia, a pan-European strategy encompassing definitions,
general measures, a methodological and action framework, prevention, victim
assistance and protection, criminal measures, judicial cooperation and
arrangements for international cooperation and coordination.
The Parliamentary Assembly of the Council of
Europe has also adopted a number of texts in this area, including: 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
1523 (2001) on domestic slavery; Recommendation 1526 (2001) on the campaign
against trafficking in minors to put a stop to the east European route: the
example of Moldova; Recommendation 1545 (2002) on the campaign against
trafficking in women; Recommendation 1610 (2003) on migration connected with
trafficking in women and prostitution; and Recommendation 1663 (2004) on
domestic slavery: servitude, au pairs and “mail-order brides”.
6 The Council of Europe Convention on Action against
Trafficking in Human Beings, CETS No. 197, 16 May 2005
The Council of Europe Convention on Action
against Trafficking in Human Beings (“the Anti-Trafficking Convention”) was
signed by Cyprus on 16 May 2005 and ratified on 24 October 2007. It entered
into force in respect of Cyprus on 1 February 2008. Russia has yet to sign the
Convention. A total of 41 member States of the Council of Europe have signed
the Anti-Trafficking Convention and 26 have also ratified it.
The explanatory report accompanying the Anti-Trafficking
Convention emphasises that trafficking in human beings is a major problem in Europe today which threatens the human rights and fundamental values of democratic
societies. The report continues as follows:
“Trafficking in human beings, with the entrapment of its
victims, is the modern form of the old worldwide slave trade. It treats human
beings as a commodity to be bought and sold, and to be put to forced labour,
usually in the sex industry but also, for example, in the agricultural sector,
declared or undeclared sweatshops, for a pittance or nothing at all. Most
identified victims of trafficking are women but men also are sometimes victims
of trafficking in human beings. Furthermore, many of the victims are young,
sometimes children. All are desperate to make a meagre living, only to have
their lives ruined by exploitation and rapacity.
To be effective, a strategy for combating trafficking in human
beings must adopt a multi-disciplinary approach incorporating prevention,
protection of human rights of victims and prosecution of traffickers, while at
the same time seeking to harmonise relevant national laws and ensure that these
laws are applied uniformly and effectively.”
In its preamble, the Anti-Trafficking
Convention asserts, inter alia, that:
“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;
...”
. Article 1 provides
that the purposes of the Anti-Trafficking Convention are to prevent and combat
trafficking in human beings, to protect the human rights of the victims of
trafficking, to design a comprehensive framework for the protection and assistance
of victims and witnesses and to ensure effective investigation and prosecution
of trafficking.
Article 4(a) adopts the Palermo Protocol
definition of trafficking and Article 4(b) replicates the provision in the
Palermo Protocol on the irrelevance of the consent of a victim of trafficking
to the exploitation (see paragraphs 150 to 151 above).
Article 5 requires States to take measures to
prevent trafficking and provides, inter alia, as follows:
“1. Each
Party shall take measures to establish or strengthen national co-ordination
between the various bodies responsible for preventing and combating trafficking
in human beings.
2. 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 trafficking and for professionals concerned with
trafficking in human beings.
...”
. Article 6
requires States to take measures to discourage the demand that fosters
trafficking and provides, in so far as relevant, as follows:
“To
discourage the demand that fosters all forms of exploitation of persons,
especially women and children, that leads to trafficking, each Party shall adopt or strengthen legislative, administrative, educational, social, cultural or
other measures including:
a. research on best practices, methods and
strategies;
b. raising awareness of the responsibility and
important role of media and civil society in identifying the demand as one of
the root causes of trafficking in human beings;
c. target information campaigns involving, as
appropriate, inter alia, public authorities and policy makers;
...”
Article 10 sets out measures regarding training
and cooperation and provides that:
“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 ...
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 provides that:
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.
...”
Articles 18 to 21 require States to criminalise
specified types of conduct:
“18. 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.
19. Each Party shall consider adopting such legislative
and other measures as may be necessary to establish as criminal offences under
its internal law, the use of services which are the object of exploitation as
referred to in Article 4 paragraph a of this Convention, with the knowledge
that the person is a victim of trafficking in human beings.
20. Each Party shall adopt such legislative and
other measures as may be necessary to establish as criminal offences the
following conducts, when committed intentionally and for the purpose of
enabling the trafficking in human beings:
a. forging a travel or identity document;
b. procuring or providing such a document;
c. retaining, removing, concealing, damaging or
destroying a travel or identity document of another person.
21(1). Each Party shall adopt such legislative and
other measures as may be necessary to establish as criminal offences when
committed intentionally, aiding or abetting the commission of any of the
offences established in accordance with Articles 18 and 20 of the present
Convention.
(2). Each Party shall adopt such legislative and
other measures as may be necessary to establish as criminal offences when
committed intentionally, an attempt to commit the offences established in
accordance with Articles 18 and 20, paragraph a, of this Convention.”
Article 23 requires States to adopt such
legislative and other measures as may be necessary to ensure that the criminal
offences established in accordance with Articles 18 to 21 are punishable by
effective, proportionate and dissuasive sanctions. For criminal offences
established in accordance with Article 18, such sanctions are to include
penalties involving deprivation of liberty which can give rise to extradition.
Article 27 provides that States must ensure
that investigations into and prosecution of offences under the Anti-Trafficking
Convention are not dependent on a report or accusation made by a victim, at
least when the offence was committed in whole or in part on its territory.
States must further ensure that victims of an offence in the territory of a
State other than their State of residence may make a complaint before the
competent authorities of their State of residence. The latter State must
transmit the complaint without delay to the competent authority of the State in
the territory in which the offence was committed, where the complaint must be
dealt with in accordance with the internal law of the State in which the
offence was committed.
Article 31(1) deals with jurisdiction, and requires
States to adopt such legislative and other measures as may be necessary to
establish jurisdiction over any offence established in accordance with the Anti-Trafficking
Convention when the offence is committed:
“a. in its territory; or
...
d. by one of its nationals or by a stateless person
who has his or her habitual residence in its territory, if the offence is
punishable under criminal law where it was committed or if the offence is
committed outside the territorial jurisdiction of any State;
e. against one of its nationals.”
States may reserve the right not to apply, or
to apply only in specific cases or conditions, the jurisdiction rules in Article
31(1)(d) and (e).
Article 32 requires States to co-operate with
each other, in accordance with the provisions of the Convention, and through
application of relevant applicable international and regional instruments, to the
widest extent possible, for the purpose of:
“- preventing and combating trafficking in human beings;
- protecting and providing assistance to victims;
- investigations or proceedings concerning criminal offences
established in accordance with this Convention.”
C. Mutual legal assistance
1. European Convention on Mutual Assistance in Criminal Matters, CETS No. 30, 20 May 1959 (“Mutual Assistance
Convention”)
The Mutual Assistance Convention was signed by Cyprus on 27 March 1996. It was ratified on 24 February 2000 and entered into force on
24 May 2000. The Russian Federation signed the Convention on 7 November
1996 and ratified it on 10 December 1999. It entered into force in respect of Russia on 9 March 2000.
Article 1 establishes an obligation on contracting
parties to:
“afford each other, in accordance with the provisions of this
Convention, the widest measure of mutual assistance in proceedings in respect
of offences the punishment of which, at the time of the request for assistance,
falls within the jurisdiction of the judicial authorities of the requesting
Party”.
Article 3 provides that:
“1. The requested Party shall execute in the manner
provided for by its law any letters rogatory relating to a criminal matter and
addressed to it by the judicial authorities of the requesting Party for the
purpose of procuring evidence or transmitting articles to be produced in
evidence, records or documents.
2. If the requesting Party desires witnesses or
experts to give evidence on oath, it shall expressly so request, and the
requested Party shall comply with the request if the law of its country does
not prohibit it.”
Article 26 allows States to enter into
bilateral agreements on mutual legal assistance to supplement the provisions of
the Mutual Assistance Convention.
2. Treaty between the USSR and the Republic of Cyprus on Legal Assistance in civil, family and criminal law matters of 19 January 1984 (“Legal
Assistance Treaty”)
Article 2 of the Legal Assistance Treaty
(ratified by Russia following the dissolution of the USSR) establishes a
general obligation for both parties to provide each other with legal assistance
in civil and criminal matters in accordance with the provisions of the Treaty.
Article 3 sets out the extent of the legal
assistance required under the Treaty and provides as follows:
“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.”
The procedure for making a request is detailed
in Article 5(1), which provides, in so far as relevant, that:
“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 sets out the procedure for executing
a request:
“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 with 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.”
Under Article 18 Contracting Parties are
obliged to ensure that citizens of one State are exempted in the territory of
the other State from payment of fees and costs and are afforded facilities and
free legal assistance under the same conditions and to the same extent as
citizens of the other State. Article 20 provides that a person requesting free
legal assistance may submit a relevant application to the competent authority
of the State in the territory of which he has his permanent or temporary
residence. This authority will then transmit the application to the other State.
Chapter VI of the Treaty contains special
provisions on criminal matters concerning, in particular, the institution of
criminal proceedings. Article 35(1) provides that:
“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 sets out the procedure for the
making of a request to institute 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.”
V. THE CYPRIOT GOVERNMENT’S UNILATERAL
DECLARATION
By letter of 10 April 2009 the Attorney-General
of the Republic of Cyprus advised the Court as follows:
“Please note that the Government wishes to make a unilateral
declaration with a view to resolving the issues raised by the application. By
the Unilateral Declaration the Government requests the Court to strike out the
application in accordance with Article 37 of the Convention. ”
The relevant parts of the appended a unilateral
declaration read as follows:
“... (a) The Government regrets the decision taken by the
police officers on 28 March 2001 not to release the applicant’s daughter
but to hand her over to [M.A.], from whom she sought to escape. The Government
acknowledges that the above decision violated its positive obligation towards
the applicant and his daughter arising from Article 2 of the Convention to take
preventive measures to protect the applicant’s daughter from the criminal acts
of another individual.
(b) The Government acknowledges
that the police investigation in the present case was ineffective as to whether
the applicant’s daughter was subjected to inhuman or degrading treatment prior
to her death. As such the Government acknowledges that it violated the
procedural obligation of Article 3 of the Convention in respect of the failure
to carry out an adequate and effective investigation as to whether the
applicant’s daughter was subjected to inhuman or degrading treatment prior to
her death.
(c) The Government acknowledges
that it violated its positive obligations towards the applicant and his
daughter arising out of Article 4 of the Convention in that it did not take any
measures to ascertain whether the applicant’s daughter had been a victim of
trafficking in human beings and/or been subjected to sexual or any other kind
of exploitation.
(d) The Government acknowledges
that the treatment of applicant’s daughter at the police station on 28 March
2001 in deciding not to release her but to hand her over to [M.A.]
although there was not any basis for her deprivation of liberty, was not
consistent with Article 5(1) of the Convention.
(e) The Government acknowledges that it violated the
applicant’s right to an effective access to court in failing to establish any
real and effective communication between its organs (i.e. the Ministry of
Justice and Public Order and the police) and the applicant, regarding the
inquest proceedings and any other possible legal remedies that the applicant
could resort to.
3. In regard to the above issues, the Government
recalls that the Council of Ministers has followed the advice
of the Attorney General - Government Agent, and has thus appointed on 5
February 2009 three independent criminal investigators whose mandate is
to investigate:
(a) The circumstances of death of
applicant’s daughter and into any criminal responsibility by any person,
authority of the Republic, or member of the police concerning her death,
(b) the circumstances concerning
her employment and stay in Cyprus in conjunction with the possibility of her
subjection to inhuman or degrading treatment or punishment and/or trafficking
and/or sexual or other exploitation, (by members of the police, authorities of
the Republic or third persons) contrary to relevant laws of the Republic
applicable at the material time, and
(c) into the commission of any
other unlawful act against her, (by members of the police, authorities of the
Republic or third persons) contrary to relevant laws of the Republic applicable
at the material time.
4. The Government recalls that the
investigators are independent from the police (the first investigator is the
President of the Independent Authority for the Investigation of Allegations and
Complaints Against the Police, the second is a Member of the said Authority,
and the third is a practicing advocate with experience in criminal law). The
Government recalls that the investigators have already commenced their
investigation.
5. In these circumstances
and having regard to the particular facts of the case the Government is
prepared to pay the applicant a global amount of 37,300 (thirty seven thousand
and three hundred) EUR (covering pecuniary and non pecuniary
damage and costs and expenses). In its view, this amount would
constitute adequate redress and sufficient compensation for the impugned
violations, and thus an acceptable sum as to quantum in the present case. If,
the Court however considers that the above amount does not constitute adequate
redress and sufficient compensation, the Government is ready to pay the
applicant by way of just satisfaction such other amount of compensation as is
suggested by the Court ...”
THE LAW
I. APPLICATION OF ARTICLE 37 § 1 OF THE
CONVENTION
Article 37 § 1 of the Convention allows the
Court to strike an application out of its list of cases and provides, in so far
as relevant, as follows:
“1. The Court may at any stage of the proceedings
decide to strike an application out of its list of cases where the
circumstances lead to the conclusion that
...
(b) the matter has been resolved; or
(c) for any other reason established by the Court, it
is no longer justified to continue the examination of the application.
However, the Court shall continue the examination of the
application if respect for human rights as defined in the Convention and the
Protocols thereto so requires.
...”
A. Submissions to the Court
1. The Cypriot Government
The Cypriot Government submitted that where efforts
with a view to securing a friendly settlement of the case had been unsuccessful,
the Court could strike an application out of the list on the basis of a
unilateral declaration on the ground that there existed “‘any other reason”, as
referred to in Article 37 § 1 (c) of the Convention, justifying a decision by
the Court to discontinue the examination of the application. On the basis of
the contents of the unilateral declaration and the ongoing domestic
investigation into the circumstances of Ms Rantseva’s death (see paragraph 187
above), the Cypriot Government considered that the requirements of Article 37 §
1 (c) were fully met.
2. The applicant
The applicant requested the Court to reject the
request of the Cypriot Government to strike the application out of the list of
cases on the basis of the unilateral declaration. He argued that the proposals
contained in the declaration did not guarantee that the responsible persons
would be punished; that the declaration did not contain any general measures to
prevent similar violations from taking place in the future, even though
trafficking for sexual exploitation was a recognised problem in Cyprus; and
that if the Court declined to deliver a judgment in the present case, the
Committee of Ministers would be unable to supervise the terms proposed by the
Cypriot Government.
3. Third party submissions by the AIRE Centre
The AIRE Centre submitted that the extent of
human trafficking in Council of Europe member States and the present inadequate
response of States to the problem meant that respect for human rights as
defined in the Convention required continued examination of cases that raised
trafficking issues where they might otherwise be struck out of the list in
accordance with Article 37 § 1.
In its submissions, the AIRE Centre referred to
the factors taken into consideration by the Court when taking a decision under
Article 37 § 1 as to whether a case merits continued examination, highlighting
that one such factor was “whether the issues raised are comparable to issues
already determined by the Court in previous cases”. The AIRE Centre highlighted
the uncertainty surrounding the extent of member States’ obligations to protect
victims of trafficking, in particular as regards protection measures not
directly related to the investigation and prosecution of criminal acts of
trafficking and exploitation.
B. The Court’s assessment
1. General principles
The Court observes at the outset that the unilateral
declaration relates to the Republic of Cyprus only. No unilateral declaration
has been submitted by the Russian Federation. Accordingly, the Court will
consider whether it is justified to strike out the application in respect of
complaints directed towards the Cypriot authorities only.
The Court recalls that it may be appropriate in
certain circumstances to strike out an application, or part thereof, under
Article 37 § 1 on the basis of a unilateral declaration by the
respondent Government even where the applicant wishes the examination of the case
to be continued. Whether this is appropriate in a particular case depends on
whether the unilateral declaration offers a sufficient basis for finding that
respect for human rights as defined in the Convention does not require the
Court to continue its examination of the case (Article 37 § 1 in fine; see also, inter alia, Tahsin
Acar v. Turkey (preliminary objection) [GC], no. 26307/95, § 75,
ECHR 2003-VI; and Radoszewska-Zakościelna v. Poland, no. 858/08, § 50, 20 October 2009).
Relevant factors in this respect include the
nature of the complaints made, whether the issues raised are comparable to
issues already determined by the Court in previous cases, the nature and scope
of any measures taken by the respondent Government in the context of the
execution of judgments delivered by the Court in any such previous cases, and
the impact of these measures on the case at issue. It may also be material
whether the facts are in dispute between the parties, and, if so, to what
extent, and what prima facie evidentiary value is to be attributed to
the parties’ submissions on the facts. Other relevant factors may include
whether in their unilateral declaration the respondent Government have made any
admissions in relation to the alleged violations of the Convention and, if so,
the scope of such admissions and the manner in which the Government intend to
provide redress to the applicant. As to the last-mentioned point, in cases in
which it is possible to eliminate the effects of an alleged violation and the
respondent Government declare their readiness to do so, the intended redress is
more likely to be regarded as appropriate for the purposes of striking out the
application, the Court, as always, retaining its power to restore the application
to its list as provided in Article 37 § 2 of the Convention and Rule 44 §
5 of the Rules of Court (see Tahsin Acar, cited above, § 76).
The foregoing factors are not intended to constitute
an exhaustive list of relevant factors. Depending on the particular facts of
each case, it is conceivable that further considerations may come into play in
the assessment of a unilateral declaration for the purposes of Article 37 § 1
of the Convention (see Tahsin Acar, cited above, § 77).
Finally, the Court reiterates that its judgments
serve not only to decide those cases brought before it but, more generally, to
elucidate, safeguard and develop the rules instituted by the Convention,
thereby contributing to the observance by the States of the engagements
undertaken by them as Contracting Parties (see Ireland v. the United Kingdom,
18 January 1978, § 154, Series A no. 25; Guzzardi v. Italy, 6
November 1980, § 86, Series A no. 39; and Karner v. Austria, no.
40016/98, § 26, ECHR 2003-IX). Although the primary purpose of the
Convention system is to provide individual relief, its mission is also to
determine issues on public-policy grounds in the common interest, thereby
raising the general standards of protection of human rights and extending human
rights jurisprudence throughout the community of the Convention States (see Karner,
cited above, § 26; and Capital Bank AD v. Bulgaria, no. 49429/99, §§ 78
to 79, ECHR 2005-XII (extracts)).
2. Application of the general principles to the
present case
In considering whether it would be appropriate
to strike out the present application in so far as it concerns complaints
directed against the Republic of Cyprus on the basis of the Cypriot unilateral
declaration, the Court makes the following observations.
First, the Court emphasises the serious nature
of the allegations of trafficking in human beings made in the present case,
which raise issues under Articles 2, 3, 4 and 5 of the Convention. In this regard,
it is noted that awareness of the problem of trafficking of human beings and
the need to take action to combat it has grown in recent years, as demonstrated
by the adoption of measures at international level as well as the introduction
of relevant domestic legislation in a number of States (see also paragraphs 264
and 269 below). The reports of the Council of Europe’s Commissioner for Human
Rights and the report of the Cypriot Ombudsman highlight the acute nature of
the problem in Cyprus, where it is widely acknowledged that trafficking and
sexual exploitation of cabaret artistes is of particular concern (see
paragraphs 83, 89, 91, 94, 100 to 101 and 103 above).
Second, the Court draws attention to the paucity
of case-law on the interpretation and application of Article 4 of the
Convention in the context of trafficking cases. It is particularly significant
that the Court has yet to rule on whether, and if so to what extent, Article 4
requires member States to take positive steps to protect potential victims of
trafficking outside the framework of criminal investigations and prosecutions.
The Cypriot Government have admitted that
violations of the Convention occurred in the period leading up to and following
Ms Rantseva’s death. They have taken additional recent steps to
investigate the circumstances of Ms Rantseva’s death and have proposed a sum in
respect of just satisfaction. However, in light of the Court’s duty to elucidate,
safeguard and develop the rules instituted by the Convention, this is
insufficient to allow the Court to conclude that it is no longer justified to
continue the examination of the application. In view of the observations
outlined above, there is a need for continued examination of cases which raise
trafficking issues.
In conclusion, the Court finds that respect for
human rights as defined in the Convention requires the continuation of the
examination of the case. Accordingly, it rejects the Cypriot Government’s
request to strike the application out under Article 37 § 1 of the Convention.
II. THE ADMISSIBILITY OF THE COMPLAINTS UNDER
ARTICLES 2, 3, 4 AND 5 OF THE CONVENTION
A. The Russian Government’s objection ratione loci
1. The parties’ submissions
The Russian Government argued that the events
forming the basis of the application having taken place outside its territory,
the application was inadmissible ratione loci in so far as it was
directed against the Russian Federation. They submitted that they had no
“actual authority” over the territory of the Republic of Cyprus and that the
actions of the Russian Federation were limited by the sovereignty of the Republic of Cyprus.
The applicant rejected this submission. He
argued that in accordance with the Court’s judgment in Drozd and Janousek v.
France and Spain, 26 June 1992, Series A no. 240, the Russian Federation could be held responsible where acts and omissions of its authorities produced
effects outside its own territory.
2. The Court’s assessment
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 [the]
Convention.”
As the Court has previously emphasised, from
the standpoint of public international law, the jurisdictional competence of a
State is primarily territorial. Accordingly, a State’s competence to exercise
jurisdiction over its own nationals abroad is subordinate to the other State’s
territorial competence and a State may not generally exercise jurisdiction on
the territory of another State without the latter’s consent, invitation or
acquiescence. Article 1 of the Convention must be considered to reflect this
ordinary and essentially territorial notion of jurisdiction (see Banković
and Others v. Belgium and 16 Other Contracting States (dec.) [GC],
no. 52207/99, §§ 59-61, ECHR 2001-XII).
The applicant’s complaints against Russia in
the present case concern the latter’s alleged failure to take the necessary
measures to protect Ms Rantseva from the risk of trafficking and exploitation
and to conduct an investigation into the circumstances of her arrival in
Cyprus, her employment there and her subsequent death. The Court observes that such
complaints are not predicated on the assertion that Russia was responsible for
acts committed in Cyprus or by the Cypriot authorities. In light of the fact
that the alleged trafficking commenced in Russia and in view of the obligations
undertaken by Russia to combat trafficking, it is not outside the Court’s
competence to examine whether Russia complied with any obligation it may have had
to take measures within the limits of its own jurisdiction and powers to
protect Ms Rantseva from trafficking and to investigate the possibility that
she had been trafficked. Similarly, the applicant’s Article 2 complaint against
the Russian authorities concerns their failure to take investigative measures,
including securing evidence from witnesses resident in Russia. It is for the Court to assess in its examination of the merits of the applicant’s Article 2
complaint the extent of any procedural obligation incumbent on the Russian authorities
and whether any such obligation was discharged in the circumstances of the
present case.
In conclusion, the Court is competent to
examine the extent to which Russia could have taken steps within the limits of
its own territorial sovereignty to protect the applicant’s daughter from
trafficking, to investigate allegations of trafficking and to investigate the
circumstances leading to her death. Whether the matters complained of give rise
to State responsibility in the circumstances of the present case is a question
which falls to be determined by the Court in its examination of the merits of
the application below.
B. The Russian Government’s objection ratione
materiae
1. The parties’ submissions
The Russian Government argued that the
complaint under Article 4 of the Convention was inadmissible ratione
materiae as there was no slavery, servitude or forced or compulsory labour
in the present case. They pointed to the fact that Ms Rantseva had entered the Republic of Cyprus voluntarily, having voluntarily obtained a work permit to allow her to
work in accordance with an employment contract which she had concluded. There
was no evidence that Ms Rantseva had been in servitude and unable to change her
condition or that she was forced to work. The Russian Government further
highlighted that Ms Rantseva had left, unimpeded, the apartment where she was
residing with the other cabaret artistes. They therefore contended that there
were insufficient grounds to assert that the cabaret artistes were being kept
in the apartment against their will. The Russian Government added that the fact
that Ms Rantseva left the police station with M.A. was insufficient to support
the conclusion that Ms Rantseva was in servitude and forced to work. Had
she feared for her life or safety, she could have informed the police officers
while she was at the police station.
The applicant insisted that the treatment to
which Ms Rantseva had been subjected fell within the scope of Article 4.
2. The Court’s assessment
The Court finds that the question whether the
treatment about which the applicant complains falls within the scope of Article
4 is inextricably linked to the merits of this complaint. Accordingly, the
Court holds that the objection ratione materiae should be joined to the
merits.
C. Conclusion
The complaints under Articles 2, 3, 4 and 5 cannot
be rejected as incompatible ratione loci or ratione materiae with
the provisions of the Convention concerning Russia. The Court notes, in
addition, that they are not manifestly ill-founded within the meaning of
Article 35 § 3. It further notes they are not inadmissible on any other
grounds. They must therefore be declared admissible.
III. ALLEGED VIOLATION OF ARTICLE 2 OF THE
CONVENTION
The applicant contended that there had been a
violation of Article 2 of the Convention by both the Russian and Cypriot
authorities on account of the failure of the Cypriot authorities to take steps
to protect the life of his daughter and the failure of the authorities of both
States to conduct an effective investigation into her death. Article 2
provides, inter alia, that:
“1. Everyone’s right to life shall be protected by
law. No one shall be deprived of his life intentionally save in the execution
of a sentence of a court following his conviction of a crime for which this
penalty is provided by law.
....”
A. Alleged failure to take measures to protect against
a risk to life
1. Submissions of the parties
a. The applicant
Relying on Osman v. the United Kingdom,
28 October 1998, Reports 1998-VIII, the applicant referred to the
positive obligations arising under Article 2 which required States to take
preventative operational measures to protect an individual whose life was at
risk from the criminal acts of another private individual where the State knew
or ought to have known of a real and immediate threat to life. The applicant
argued that in failing to release Ms Rantseva and handing her over instead to M.A.,
the Cypriot authorities had failed to take reasonable measures within their
powers to avoid a real and immediate threat to Ms Rantseva’s life.
b. The Cypriot Government
The Cypriot Government did not dispute that Article 2
§ 1 imposed a positive obligation on the relevant authorities to take
preventative operational measures to protect an individual whose life was at
risk from the criminal acts of another individual. However, for such an
obligation to arise, it had to be established that the authorities knew, or
ought to have known, of a real and immediate risk to the life of an identified
individual and that they had failed to take measures within the scope of their
powers which, judged reasonably, might have been expected to avoid that risk
(citing Osman, above).
In their written submissions, the Cypriot
Government argued that there was no failure to protect the life of the
applicant’s daughter. On the information available to the police officers who
had contact with Ms Rantseva on 28 March 2001, there was no reason to
suspect a real or immediate risk to Ms Rantseva’s life. The testimony of the
police officers revealed that Ms Rantseva was calmly applying her make-up and
that the behaviour of M.A. towards her appeared normal (see paragraphs 20 and 49
above). Although Ms Rantseva had left her employment at the cabaret, she had
not submitted any complaint regarding her employer or the conditions of her
work. She did not make a complaint to the police officers while at the station
and she did not refuse to leave with M.A.. The decision not to release Ms Rantseva
but to hand her over to M.A. did not violate any obligation incumbent on the
Cypriot authorities to protect her life.
In their subsequent unilateral declaration, the
Cypriot Government acknowledged that the decision of the police officers to
hand Ms Rantseva over to M.A. was in violation of the positive obligation
incumbent on Cyprus under Article 2 to take preventative measures to protect Ms Rantseva
from the criminal acts of another individual (see paragraph 187 above).
2. The Court’s assessment
a. General principles
It is clear that Article 2 enjoins the State
not only to refrain from the intentional and unlawful taking of life but also
to take appropriate steps to safeguard the lives of those within its
jurisdiction (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports
1998-III; and Paul and Audrey Edwards, cited above, § 54). In
the first place, this obligation requires the State to secure the right to life
by putting in place effective criminal law provisions to deter the commission
of offences against the person backed up by law enforcement machinery for the
prevention, suppression and punishment of breaches of such provisions. However,
it also implies, in appropriate circumstances, a positive obligation on the
authorities to take preventive operational measures to protect an individual
whose life is at risk from the criminal acts of another individual (see Osman,
cited above, § 115; Medova v. Russia, no. 25385/04, §
95, 15 January 2009; Opuz v. Turkey, no. 33401/02, § 128, 9 June 2009).
The Court reiterates that the scope of any
positive obligation must be interpreted in a way which does not impose an
impossible or disproportionate burden on the authorities, bearing in mind the
difficulties in policing modern societies, the unpredictability of human
conduct and the operational choices which must be made in terms of priorities
and resources. Not every claimed risk to life can entail for the authorities a
Convention requirement to take operational measures to prevent that risk from
materialising. For the Court to find a violation of the positive obligation to protect
life, it must be established that the authorities knew or ought to have known
at the time of the existence of a real and immediate risk to the life of an
identified individual from the criminal acts of a third party and that they
failed to take measures within the scope of their powers which, judged
reasonably, might have been expected to avoid that risk (Osman, cited
above, § 116; Paul and Audrey Edwards, cited above, § 55; and Medova,
cited above, § 96).
b. Application of the general principles to the
present case
The Court must examine whether the Cypriot
authorities could have foreseen that in releasing Ms Rantseva into the custody
of M.A., her life would be at real and immediate risk.
The Court observes that in Opuz, the
responsibility of the State was engaged because the person who subsequently
went on to shoot and kill the applicant’s mother had previously made death
threats and committed acts of violence against the applicant and her mother, of
which the authorities were aware (Opuz, cited above, §§ 133 to 136).
Conversely, in Osman, the Court found that there was no violation of
Article 2 as the applicant had failed to point to any stage in the sequence of
events leading to the shooting of her husband where it could be said that the
police knew or ought to have known that the lives of the Osman family were at
real and immediate risk (Osman, cited above, § 121).
Although it is undisputed that victims of
trafficking and exploitation are often forced to live and work in cruel
conditions and may suffer violence and ill-treatment at the hands of their
employers (see paragraphs 85, 87 to 88 and 101 above), in the absence of any
specific indications in a particular case, the general risk of ill-treatment
and violence cannot constitute a real and immediate risk to life. In the
present case, even if the police ought to have been aware that Ms Rantseva
might have been a victim of trafficking (a matter to be examined in the context
of the applicant’s Article 4 complaint, below), there were no indications
during the time spent at the police station that Ms Rantseva’s life was at real
and immediate risk. The Court considers that particular chain of events leading
to Ms Rantseva’s death could not have been foreseeable to the police officers
when they released her into M.A.’s custody. Accordingly, the Court concludes
that no obligation to take operational measures to prevent a risk to life arose
in the present case.
For the above reasons, the Court concludes that
there has been no violation of the Cypriot authorities’ positive obligation to
protect Ms Rantseva’s right to life under Article 2 of the
Convention.
B. The procedural obligation to carry out an effective
investigation
1. Submissions of the parties
a. The applicant
The applicant claimed that Cyprus and Russia had violated their obligations under Article 2 of the Convention to conduct an
effective investigation into the circumstances of Ms Rantseva’s death. He
pointed to alleged contradictions between the autopsies of the Cypriot and
Russian authorities (see paragraph 50 above) and his requests to Cyprus, via
the relevant Russian authorities, for further investigation of apparent
anomalies, requests which were not followed up by the Cypriot authorities (see
paragraphs 52 and 62 above). He also complained about the limited number of
witness statements taken by the police (see paragraphs 31 and 33 above),
highlighting that five of the seven relevant statements were either from the
police officers on duty at Limassol Police Station or those present in the
apartment at the time of his daughter’s death, persons who, in his view, had an
interest in presenting a particular version of events. The applicant further argued
that any investigation should not depend on an official complaint or claim from
the victim’s relatives. He contended that his daughter clearly died in strange
circumstances requiring elaboration and that an Article 2-compliant
investigation was accordingly required. The Cypriot investigation did not
comply with Article 2 due to the inadequacies outlined above, as well as the
fact that it was not accessible to him, as a relative of the victim.
Specifically, as regards the inquest, the
applicant complained that he was not advised of the date of the final inquest
hearing, which prevented his participation in it. He was not informed of the
progress of the case or of other remedies available to him. He alleged that he
only received the District Court’s conclusion in the inquest proceedings on 16
April 2003, some 15 months after the proceedings had ended. Furthermore, the
Cypriot authorities failed to provide him with free legal assistance, when the
cost of legal representation in Cyprus was prohibitive for him.
As regards the Russian Federation, the
applicant argued that the fact that his daughter was a citizen of the Russian
Federation meant that even though she was temporarily resident in Cyprus and
her death occurred there, the Russian Federation also had an obligation under
Article 2 to investigate the circumstances of her arrival in Cyprus, her
employment there and her subsequent death. He submitted that the Russian
authorities should have applied to the Cypriot authorities under the Legal
Assistance Treaty to initiate criminal proceedings in accordance with Articles
5 and 36 (see paragraphs 181 and 207 above), as he had requested. Instead, the
Russian authorities merely sought information concerning the circumstances of Ms Rantseva’s
death. The applicant’s subsequent application to the relevant authorities in Russia to initiate criminal proceedings was refused by the Chelyabinsk Prosecutor’s Office as Ms Rantseva
died outside Russia. His repeated requests that Russian authorities take
statements from two Russian nationals resident in Russia were refused as the
Russian authorities considered that they were unable to take the action
requested without a legal assistance request from the Cypriot authorities. The
applicant concluded that these failures meant that the Russian authorities had
not conducted an effective investigation into the death of his daughter, as required
by Article 2 of the Convention.
b. The Cypriot Government
In their written submissions, the Cypriot
Government conceded that an obligation to conduct an effective investigation arose
under Article 2 where State agents were involved in events leading to an
individual’s death, but contended that not every tragic death required that
special steps by way of inquiry should be taken. In the present case, the
Cypriot authorities did not have an obligation to conduct an investigation into
the circumstances of Ms Rantseva’s death but nonetheless did so. Although the
exact circumstances leading to Ms Rantseva’s death remained unclear, the
Cypriot Government contested the allegation that there were failures in the
investigation. The investigation was carried out by the police and was capable
of leading to the identification and punishment of those responsible.
Reasonable steps were taken to secure relevant evidence and an inquest was
held.
As far as the inquest was concerned, the
Cypriot Government submitted that the applicant was advised by the Cypriot
authorities of the date of the inquest hearing. Moreover, the inquest was
adjourned twice because the applicant was not present. The Cypriot Government pointed
to the delay of the Russian authorities in advising the Cypriot authorities of
the applicant’s request for adjournment: the request only arrived four months
after the inquest had been concluded. Had the court been aware of the applicant’s
request, it might have adjourned the hearing again. All other requests by the
applicant had been addressed and relevant Cypriot authorities had sought to
assist the applicant where possible. In respect of the applicant’s
complaint regarding legal aid, the Cypriot Government pointed out that the
applicant did not apply through the correct procedures. He should have applied
under the Law on Legal Aid; the Legal Assistance Treaty, invoked by the
applicant, did not provide for legal aid but for free legal assistance, which
was quite different.
In their unilateral declaration (see paragraph 187
above), the Cypriot Government confirmed that three independent criminal
investigators had recently been appointed to investigate the circumstances of Ms
Rantseva’s death and the extent of any criminal responsibility of any person or
authority for her death.
c. The Russian Government
The Russian Government accepted that at the
relevant time, Russian criminal law did not provide for the possibility of
bringing criminal proceedings in Russia against non-Russian nationals in
respect of a crime committed outside Russian territory against a Russian
national, although the law had since been changed. In any event, the applicant
did not request the Russian authorities to institute criminal proceedings
themselves but merely requested assistance in establishing the circumstances
leading to his daughter’s death in Cyprus. Accordingly, no preliminary
investigation into Ms Rantseva’s death was conducted in Russia and no evidence was obtained. Although the applicant requested on a number of occasions that
the Russian authorities take evidence from two young Russian women who had
worked with Ms Rantseva, as he was advised, the Russian authorities were unable
to take the action requested in the absence of a legal assistance request from
the Cypriot authorities. The Russian authorities informed the Cypriot
authorities that they were ready to execute any such request but no request was
forthcoming.
The Russian Government contended that the Russian
authorities took all possible measures to establish the circumstances of Ms Rantseva’s
death, to render assistance to the Cypriot authorities in their investigations
and to protect and reinstate the applicant’s rights. Accordingly, they argued, Russia had fulfilled any procedural obligations incumbent on it under Article 2 of the Convention.
2. The Court’s assessment
a. General principles
As the Court has consistently held, 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 that there should be some form of
effective official investigation when individuals have been killed as a result
of the use of force (see McCann and Others v. the United Kingdom, 27
September 1995, § 161, Series A no. 324; Kaya v. Turkey, 19 February
1998, § 86, Reports 1998-I; Medova v. Russia, cited above, § 103).
The obligation to conduct an effective official investigation also arises where
death occurs in suspicious circumstances not imputable to State agents (see Menson
v. the United Kingdom (dec.), no. 47916/99, ECHR 2003-V). The
essential purpose of such investigation is to secure the effective
implementation of the domestic laws which protect the right to life and, in
those cases involving State agents or bodies, to ensure their accountability
for deaths occurring under their responsibility. The authorities must act of
their own motion once the matter has come to their attention. They cannot leave
it to the initiative of the next-of-kin either to lodge a formal complaint or
to take responsibility for the conduct of any investigative procedures (see,
for example, İlhan v. Turkey [GC], no. 22277/93, § 63, ECHR
2000-VII; Paul and Audrey Edwards, cited above, § 69).
For an investigation to be effective, the
persons responsible for carrying it out must be independent from those
implicated in the events. This requires not only hierarchical or institutional
independence but also practical independence (see Hugh Jordan v. the United
Kingdom, no. 24746/94, § 120, ECHR 2001-III (extracts); and Kelly
and Others v. the United Kingdom, no. 30054/96, § 114, 4 May 2001). The
investigation must be capable of leading to the identification and punishment
of those responsible (see Paul and Audrey Edwards, cited above, § 71). A
requirement of promptness and reasonable expedition is implicit in the context
of an effective investigation within the meaning of Article 2 of the Convention
(see Yaşa v. Turkey, 2 September 1998, §§ 102-104,
Reports 1998-VI; Çakıcı v. Turkey [GC], no. 23657/94,
§§ 80-87 and 106, ECHR 1999-IV; and Kelly and Others, cited above,
§ 97). In all cases, the next of kin of the victim must be involved in the
procedure to the extent necessary to safeguard his legitimate interests (see,
for example, Güleç v. Turkey, 27 July 1998, § 82, Reports of
Judgments and Decisions 1998-IV; and Kelly and Others, cited
above, § 98).
b. Application of the general principles to the
present case
i. Cyprus
The Court acknowledges at the outset that there
is no evidence that Ms Rantseva died as a direct result of the use of force.
However, as noted above (see paragraph 232 above), this does not preclude the
existence of an obligation to investigate her death under Article 2 (see also Calvelli
and Ciglio v. Italy [GC], no. 32967/96, §§ 48 to 50, ECHR 2002-I; and
Öneryıldız v. Turkey [GC], no. 48939/99, §§ 70 to 74, ECHR
2004-XII). In light of the ambiguous and unexplained circumstances
surrounding Ms Rantseva’s death and the allegations of trafficking,
ill-treatment and unlawful detention in the period leading up to her death, the
Court considers that a procedural obligation did arise in respect of the
Cypriot authorities to investigate the circumstances of Ms Rantseva’s death. By
necessity, the investigation was required to consider not only the immediate
context of Ms Rantseva’s fall from the balcony but also the broader
context of Ms Rantseva’s arrival and stay in Cyprus, in order to assess whether
there was a link between the allegations of trafficking and Ms Rantseva’s
subsequent death.
As to the adequacy of the investigation, the
Court notes that the police arrived quickly and sealed off the scene within
minutes. Photographs were taken and a forensic examination was carried out (see
paragraph 32 above). That same morning, the police took statements from those
present in the apartment when Ms Rantseva died and from the neighbour who had
witnessed the fall. The police officers on duty at Limassol Police Station also
made statements (see paragraph 33 above). An autopsy was carried out and an inquest
was held (see paragraphs 35 to 41 above). However, there are a number of
elements of the investigation which were unsatisfactory.
First, there was conflicting testimony from
those present in the apartment which the Cypriot investigating authorities
appear to have taken no steps to resolve (see paragraphs 22 to 24 and 26 to 28
above). Similarly, inconsistencies emerge from the evidence taken as to Ms Rantseva’s
physical condition, and in particular as to the extent of the effects of
alcohol on her conduct (see paragraphs 18, 20 to 21 and 24 above). There are
other apparent anomalies, such as the alleged inconsistencies between the
forensic reports of the Cypriot and Russian authorities and the fact that Ms
Rantseva made no noise as she fell from the balcony, for which no satisfactory
explanation has been provided (see paragraphs 29, 50 to 52 and 67 above).
Second, the verdict at the inquest recorded
that Ms Rantseva had died in “strange circumstances” in an attempt to escape
from the apartment in which she was a “guest” (see paragraph 41 above). Despite
the lack of clarity surrounding the circumstances of her death, no effort was
made by the Cypriot police to question those who lived with Ms Rantseva or
worked with her in the cabaret. Further, notwithstanding the striking
conclusion of the inquest that Ms Rantseva was trying to escape from the
apartment, no attempt was made to establish why she was trying to escape or to
clarify whether she had been detained in the apartment against her will.
Third, aside from the initial statements of the
two police officers and passport officer on duty made on 28 and 29 March 2001, there
was apparently no investigation into what had occurred at the police station,
and in particular why the police had handed Ms Rantseva into the custody of
M.A.. It is clear from the witness statements that the AIS considered M.A. to
be responsible for Ms Rantseva but the reasons for, and the appropriateness of,
this conclusion have never been fully investigated. Further, the statements of
the police officers do not refer to any statement being taken from Ms Rantseva
and there is nothing in the investigation file to explain why this was not done;
a statement was made by M.A. (see paragraph 19 above). The Court recalls that
the Council of Europe Commissioner reported in 2008 that he was assured that
allegations of trafficking-related corruption within the police force were
isolated cases (see paragraph 102 above). However, in light of the facts of the
present case, the Court considers that the authorities were under an obligation
to investigate whether there was any indication of corruption within the police
force in respect of the events leading to Ms Rantseva’s death.
Fourth, despite his clear request to the
Cypriot authorities, the applicant was not personally advised of the date of
the inquest and as a consequence was not present when the verdict was handed
down. The Cypriot Government do not dispute the applicant’s claim that he was
only advised of the inquest finding 15 months after the hearing had taken
place. Accordingly, the Cypriot authorities failed to ensure that the applicant
was able to participate effectively in the proceedings,
despite his strenuous efforts to remain involved.
Fifth, the applicant’s continued requests for
investigation, via the Russian authorities, appear to have gone unheeded by the
Cypriot authorities. In particular, his requests for information as to further
remedies open to him within the Cypriot legal order, as well as requests for
free legal assistance from the Cypriot authorities, were ignored. The Cypriot
Government’s response in their written observations before the Court that the
request for legal assistance had been made under the wrong instrument is unsatisfactory.
Given the applicant’s repeated requests and the gravity of the case in
question, the Cypriot Government ought, at the very least, to have advised the
applicant of the appropriate procedure for making a request for free legal
assistance.
. Finally,
for an investigation into a death to be effective, member States must take such
steps as are necessary and available in order to secure relevant evidence,
whether or not it is located in the territory of the investigating State. The
Court observes that both Cyprus and Russia are parties to the Mutual Assistance
Convention and have, in addition, concluded the bilateral Legal Assistance
Treaty (see paragraphs 175 to 185 above). These instruments set out a clear procedure by
which the Cypriot authorities could have sought assistance from Russia in investigating the circumstances of Ms Rantseva’s stay in Cyprus and her subsequent death. The
Prosecutor General of the Russian Federation provided an unsolicited
undertaking that Russia would assist in any request for legal assistance by Cyprus aimed at the collection of further evidence (see paragraph 70 above). However, there is no evidence that the Cypriot
authorities sought any legal assistance from Russia in the context of their
investigation. In the circumstances, the Court finds the Cypriot authorities’
refusal to make a legal assistance request to obtain the testimony of
the two Russian women who worked with Ms Rantseva at the cabaret particularly unfortunate
given the value of such testimony in helping to clarify matters which were central
to the investigation. Although Ms Rantseva died in 2001, the applicant is still
waiting for a satisfactory explanation of the circumstances leading to her
death.
The Court accordingly finds that there has been a procedural
violation of Article 2 of the Convention as regards the failure of the Cypriot
authorities to conduct an effective investigation into Ms Rantseva’s death.
ii. Russia
The Court recalls that Ms Rantseva’s death took
place in Cyprus. Accordingly, unless it can be shown that there are special features
in the present case which require a departure from the general approach, the
obligation to ensure an effective official investigation applies to Cyprus
alone (see, mutatis mutandis, Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 38, ECHR 2001-XI).
As to the existence of special features, the
applicant relies on the fact that Ms Rantseva was a Russian national. However,
the Court does not consider that Article 2 requires member States’ criminal
laws to provide for universal jurisdiction in cases involving the death of one
of their nationals. There are no other special features which would support the
imposition of a duty on Russia to conduct its own investigation. Accordingly,
the Court concludes that there was no free-standing obligation incumbent on the
Russian authorities under Article 2 of the Convention to investigate Ms Rantseva’s
death.
However, the corollary of the obligation on an
investigating State to secure evidence located in other jurisdictions is a duty
on the State where evidence is located to render any assistance within its
competence and means sought under a legal assistance request. In the present
case, as noted above, the Prosecutor General of the
Russian Federation, referring to the evidence of the two Russian women, expressed
willingness to comply with any mutual legal assistance request forwarded to the
Russian authorities and to organise the taking of the witness testimony, but no
such request was forthcoming (see paragraph 241
above). The applicant argued that the Russian authorities should have proceeded
to interview the two women notwithstanding the absence of any request from the
Cypriot authorities. However, the Court recalls that the responsibility for
investigating Ms Rantseva’s death lay with Cyprus. In the absence of a
legal assistance request, the Russian authorities were not required under
Article 2 to secure the evidence themselves.
As to the applicant’s complaint that the
Russian authorities failed to request the initiation of criminal proceedings,
the Court observes that the Russian authorities made
extensive use of the opportunities presented by mutual legal assistance
agreements to press for action by the Cypriot authorities (see, for example,
paragraphs 48, 52, 55, 57 and 61 to 62 above). In particular, by letter dated 11 December 2001,
they requested that further investigation be conducted into Ms Rantseva’s death,
that relevant witnesses be interviewed and that the Cypriot authorities bring
charges of murder, kidnapping or unlawful deprivation of freedom in respect of Ms Rantseva’s
death (see paragraph 52 above). By letter
dated 27 December 2001, a specific request was made to institute criminal
proceedings (see paragraph 53 above). The
request was reiterated on several occasions.
In conclusion, the Court finds that there has
been no procedural violation of Article 2 by the Russian Federation.
IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant alleged a violation of Article 3
of the Convention by the Cypriot authorities in respect of their failure to
take steps to protect Ms Rantseva from ill-treatment and to investigate whether
Ms Rantseva was subject to inhuman or degrading treatment in the period leading
up to her death. Article 3 provides that:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
A. The parties’ submissions
1. The applicant
The applicant argued that a positive obligation
arose in the present case to protect Ms Rantseva from ill-treatment from
private individuals. He contended that the two forensic reports conducted
following Ms Rantseva’s death revealed that the explanation of her death did
not accord with the injuries recorded. He argued that the witness testimony
gathered did not provide a satisfactory response to the question whether there
were injuries present on Ms Rantseva’s body prior to her death. Despite this, no
investigation was conducted by the Cypriot authorities into whether Ms Rantseva
had been subjected to inhuman or degrading treatment. Further, no steps were
taken to avoid the risk of ill treatment to Ms Rantseva in circumstances where
the authorities knew or ought to have known of a real and immediate risk.
Accordingly, in the applicant’s submission, there was a breach of Article 3 of
the Convention.
2. The Cypriot Government
In their written submissions, the Cypriot
Government denied that any violation of Article 3 had occurred. They pointed
out that nothing in the investigation file suggested that Ms Rantseva had been
subjected to inhuman or degrading treatment prior to her death. In any event, a
thorough investigation, capable of leading to the identification and punishment
of those responsible, was conducted into the circumstances of Ms Rantseva’s
death. The investigation therefore complied with Article 3.
In their subsequent unilateral declaration (see
paragraph 187 above), the Cypriot Government acknowledged that there had been a
breach of the procedural obligation arising under Article 3 of the Convention in
so far as the police investigation into whether Ms Rantseva was subjected to
inhuman or degrading treatment prior to her death was ineffective. They also
confirmed that three independent investigators had been appointed to
investigate the circumstances of Ms Rantseva’s employment and stay in Cyprus and whether she had been subjected to inhuman or degrading treatment.
B. The Court’s assessment
The Court notes that there is no evidence that Ms
Rantseva was subjected to ill-treatment prior to her death. However, it is
clear that the use of violence and the ill-treatment of victims are common
features of trafficking (see paragraphs 85, 87 to 88 and 101 above). The Court
therefore considers that, in the absence of any specific allegations of
ill-treatment, any inhuman or degrading treatment suffered by Ms Rantseva prior
to her death was inherently linked to the alleged trafficking and exploitation.
Accordingly, the Court concludes that it is not necessary to consider
separately the applicant’s Article 3 complaint and will deal with the general
issues raised in the context of its examination of the applicant’s complaint
under Article 4 of the Convention.
V. ALLEGED VIOLATION OF ARTICLE 4 OF THE
CONVENTION
The applicant alleged a violation of Article 4
of the Convention by both the Russian and Cypriot authorities in light of their
failure to protect his daughter from being trafficked and their failure to
conduct an effective investigation into the circumstances of her arrival in Cyprus and the nature of her employment there. Article 4 provides, in so far as relevant,
that:
“1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or
compulsory labour.
...”
A. Submissions of the parties
1. The applicant
Referring to Siliadin v. France, no. 73316/01, ECHR
2005-VII, and the Anti-Trafficking Convention (see paragraphs 162 to 174,
above), the applicant contended that the Cypriot authorities were under an
obligation to adopt laws to combat trafficking and to establish and strengthen
policies and programmes to combat trafficking. He pointed to the reports of the
Council of Europe’s Commissioner on Human Rights (see paragraphs 91 to 104
above), which he said demonstrated that there had been a deterioration in the
situation of young foreign women moving to Cyprus to work as cabaret artistes.
He concluded that the obligations incumbent on Cyprus to combat trafficking had
not been met. In particular, the applicant pointed out that the Cypriot
authorities were unable to explain why they had handed Ms Rantseva over to
her former employer at the police station instead of releasing her (see
paragraph 82 above). He contended that in so doing, the Cypriot authorities had
failed to take measures to protect his daughter from trafficking. They had also
failed to conduct any investigation into whether his daughter had been a victim
of trafficking or had been subjected to sexual or other exploitation. Although
Ms Rantseva had entered Cyprus voluntarily to work in the cabaret, the Court
had established that prior consent, without more, does not negate a finding of
compulsory labour (referring to Van der Mussele v. Belgium, 23 November
1983, § 36, Series A no. 70).
In respect of Russia, the applicant pointed out
that at the relevant time, the Russian Criminal Code did not contain provisions
which expressly addressed trafficking in human beings. He argued that the
Russian authorities were aware of the particular problem of young women being
trafficked to Cyprus to work in the sex industry. Accordingly, the Russian Federation was under an obligation to adopt measures to prevent the trafficking and
exploitation of Russian women but had failed to do so. In
the present case, it was under a specific obligation to investigate the
circumstances of Ms Rantseva’s arrival in Cyprus and the nature of her
employment there, but no such investigation had been carried out.
2. The Cypriot Government
In their written observations, the Cypriot
Government confirmed that no measures were taken in the period prior to or
following Ms Rantseva’s death to ascertain whether she had been a victim
of trafficking in human beings or whether she had been subjected to sexual or
other forms of exploitation. However they denied that there had been a
violation of Article 4 of the Convention. They conceded that there
were positive obligations on the State which required the penalisation and
effective prosecution of any act aimed at maintaining a person in a situation
of slavery, servitude or forced or compulsory labour. However, they argued by
analogy with Articles 2 and 3 that positive obligations only arose where the
authorities knew or ought to have known of a real and immediate risk that an
identified individual was being held in such a situation. These positive
obligations would only be violated where the authorities subsequently failed to
take measures within the scope of their powers which, judged reasonably, might
have been expected to avoid that risk.
In the present case, there was nothing in the
investigation file, nor was there any other evidence, to indicate that Ms Rantseva
was held in slavery or servitude or was required to perform forced or
compulsory labour. The Cypriot Government further pointed to the fact that no
complaint had been lodged with the domestic authorities by the applicant that
his daughter had been a victim of trafficking or exploitation and that none of
the correspondence from the Russian authorities made any reference to such a
complaint. Ms Rantseva herself had made no allegations of that nature prior to
her death and the note she left in her apartment saying she was tired and was
going back to Russia (see paragraph 17 above) was inadequate to support any
such allegations. The Government claimed that the first time that any complaint
of this nature was made to the authorities was on 13 April 2006, by a Russian
Orthodox priest in Limassol. They argued that the Russian authorities had
failed to cooperate with the Cypriot authorities and take witness statements
from two Russian women who had worked with Ms Rantseva at the cabaret.
In their subsequent unilateral declaration (see
paragraph 187 above), the Cypriot Government accepted that they had violated
their positive obligations under Article 4 in failing to take any measures to
ascertain whether Ms Rantseva had been a victim of trafficking in human beings
or had been subjected to sexual or any other kind of exploitation. They also
confirmed that three independent investigators had been appointed to
investigate the circumstances of Ms Rantseva’s employment and stay in Cyprus and whether there was any evidence that she was a victim of trafficking or
exploitation.
3. The Russian Government
As noted above, the Russian Government
contested that Ms Rantseva’s treatment in the present case fell within the
scope of Article 4 (see paragraph 209 above).
On the merits, the Russian Government agreed
that the positive obligations arising under Article 4 required member States to
ensure that residents were not being kept in slavery or servitude or being
forced to work. Where such a case did occur, member States were required to put
in place an effective framework for the protection and reinstatement of victims’
rights and for the prosecution of guilty persons. However, in so far as the
applicant’s complaint was directed against Russia, his argument was that the
Russian authorities ought to have put in place a system of preventative
measures to protect citizens going abroad. The Russian Government pointed out
that any such measures would have had to strike a balance between Article 4 and
the right to free movement guaranteed by Article 2 of Protocol No. 4 of the
Convention, which provides that “[e]veryone shall be free to leave any country,
including his own”. They also argued that the scope of any such measures was
significantly restricted by the need to respect the sovereignty of the State to
which the citizen wished to travel.
According to the Russian Government, there was
a wealth of measures set out in Russian criminal law to prevent violations of
Article 4, to protect victims and to prosecute perpetrators. Although at the
relevant time Russian criminal law did not contain provisions on human
trafficking and slave labour, such conduct would nonetheless have fallen within
the definitions of other crimes such as threats to kill or cause grave harm to
health, abduction, unlawful deprivation of liberty and sexual crimes (see
paragraphs 133 to 135). The Russian Government also pointed to various
international treaties ratified by the Russian Federation, including the
Slavery Convention 1926 (see paragraphs 137 to 141above) and the Palermo
Protocol 2000 (see paragraphs 149 to 155 above), and highlighted that Russia had signed up to a number of mutual legal assistance agreements (see paragraphs 175
to 185 above). In the present case, they had taken active measures to press for
the identification and punishment of guilty persons within the framework of
mutual legal assistance treaties. They further explained that on 27 July 2006,
the application of the Criminal Code was extended to allow the prosecution of
non-nationals who had committed crimes against Russian nationals outside
Russian territory. However, the exercise of this power depended on the consent
of the State in whose territory the offence was committed.
As regards the departure of Ms Rantseva for Cyprus, the Russian authorities pointed out that they only became aware of a citizen leaving Russia at the point at which an individual crossed the border. Where entry requirements of
the State of destination were complied with, and in the absence of any
circumstances preventing the exit, the Russian authorities were not permitted
to prohibit a person from exercising his right of free movement. Accordingly,
the Russian authorities could only make recommendations and warn its citizens
against possible dangers. They did provide warnings, via the media, as well as
more detailed information regarding the risk factors.
The Russian Government also requested the Court
to consider that there had been no previous findings of a violation of Article
4 against Cyprus. They submitted that they were entitled to take this into
consideration in the development of their relations with Cyprus.
4. Third party submissions
a. Interights
Interights highlighted the growing awareness of
human trafficking and the adoption of a number of international and regional
instruments seeking to combat it. However, they considered national policies
and measures in the field to be at times inadequate and ineffective. They
argued that the paramount requirement for any legal system effectively to
address human trafficking was recognition of the need for a multidisciplinary
approach; cooperation among States; and a legal framework with an integrated
human rights approach.
Interights emphasised that a distinctive
element of human trafficking was the irrelevance of the victim’s consent to the
intended exploitation where any of the means of coercion listed in the Palermo
Protocol had been used (see paragraph 151 above). Accordingly, a person who was
aware that she was to work in the sex industry was not excluded by virtue of
that awareness from being a victim of trafficking. Of further importance was
the distinction between smuggling, which concerned primarily the protection of
the State against illegal migration, and trafficking, which was a crime against
individuals and did not necessarily involve a cross-border element.
Asserting that human trafficking was a form of
modern-day slavery, Interights highlighted the conclusions of the International
Criminal Tribunal for the Former Yugoslavia in the case of Prosecutor v
Kunarac et al (see paragraphs 142 to 143 above) and argued that the
necessary consequence of that judgment was that the definition of slavery did
not require a right of ownership over a person to exist but merely that one or
more of the powers attached to such a right be present. Thus the modern-day
understanding of the term “slavery” could include situations where the victim
was subject to violence and coercion thereby giving the perpetrator total
control over the victim.
Interights addressed the positive obligations
of member States under the Convention in the context of trafficking in human
beings. In particular, there was, Interights contended, an obligation to enact
appropriate legislation on trafficking in human beings, as set out in the Anti-Trafficking
Convention (see paragraphs 160 to 174 above) and supported by the case-law of
the Court. Such legislation was required to criminalise trafficking in human
beings, establishing liability of legal as well as natural persons; to
introduce review procedures in respect of the licensing and operation of
businesses often used as a cover for human trafficking; and to establish
appropriate penalties. Other positive obligations included obligations to
discourage demand for human trafficking, to ensure an adequate law enforcement
response to identify and eradicate any involvement of law enforcement officials
in human trafficking offences and build victims’ confidence in the police and
judicial systems and to ensure that the identification of victims of
trafficking took place efficiently and effectively by introducing relevant
training. Research on best practices, methods and strategies, raising awareness
in the media and civil society, information campaigns involving public
authorities and policy makers, educational programmes and targeting sex tourism
were also areas of possible State action identified by Interights.
Finally, Interights argued that there was an
implied positive obligation on States to carry out an effective and diligent
investigation into allegations of trafficking. Such investigation should comply
with the conditions of investigations required under Article 2 of the
Convention.
b. The AIRE Centre
The AIRE Centre highlighted the increasing
number of people, the majority of whom were women and children, who fell victim
to trafficking for the purposes of sexual or other exploitation each year. They
pointed to the severe physical and psychological consequences for victims,
which frequently rendered them too traumatised to present themselves as victims
of trafficking to the relevant authorities. They referred in particular to the
conclusions of a report by the U.S. State Department in 2008, Trafficking in
Persons Report, which found that Cyprus had failed to provide evidence that
it had increased its efforts to combat severe forms of trafficking in persons
from the previous year (see paragraph 106 above).
More generally, the AIRE Centre highlighted
their concern that the rights of victims of human trafficking were often
subordinated to other goals in the fight against trafficking. International and
regional instruments on human trafficking often lacked practical and effective
rights for the protection of victims. Apart from requirements regarding the
investigation and prosecution of trafficking offences, the provisions of the
Palermo Protocol on protection of victims were, the AIRE Centre argued,
“generally either hortatory or aspirational”, obliging States to “consider” or
“endeavour to” introduce certain measures.
Finally, the AIRE Centre noted that the
jurisprudence of supervisory bodies for international instruments against
trafficking had yet to address fully the extent and content of positive
obligations owed by States in the circumstances arising in the present
application. As regards the jurisprudence of this Court, the AIRE Centre noted
that although the Court had already been called upon to consider the extent of
the application of Article 4 in a trafficking case (Siliadin, cited
above), that case had dealt exclusively with the failure of the State to put in
place adequate criminal law provisions to prevent and punish the perpetrators.
Referring to the case-law developed in the context of Articles 2, 3 and 8 of
the Convention, the AIRE Centre argued that States had a positive obligation to
provide protection where they knew or ought to have known that an individual
was, or was at risk of being, a victim of human trafficking. The particular
measures required would depend on the circumstances but States were not
permitted to leave such an individual unprotected or to return her to a
situation of trafficking and exploitation.
B. The Court’s assessment
1. Application of Article 4 of the Convention
The first question which arises is whether the
present case falls within the ambit of Article 4. The Court recalls that
Article 4 makes no mention of trafficking, proscribing “slavery”, “servitude”
and “forced and compulsory labour”.
The Court has never considered the provisions
of the Convention as the sole framework of reference for the interpretation of
the rights and freedoms enshrined therein (Demir and Baykara v. Turkey
[GC], no. 34503/97, § 67, 12 November 2008). It has long stated that one of the
main principles of the application of the Convention provisions is that it does
not apply them in a vacuum (see Loizidou v.
Turkey, 18 December 1996, Reports
of Judgments and Decisions 1996-VI; and Öcalan v. Turkey [GC], no. 46221/99, § 163, ECHR 2005-IV). As an international treaty, the
Convention must be interpreted in the light of the rules of interpretation set
out in the Vienna Convention of 23 May 1969 on the Law of Treaties.
Under that Convention, the Court is required to
ascertain the ordinary meaning to be given to the words in their context and in
the light of the object and purpose of the provision from which they are drawn
(see Golder v. the United Kingdom, 21 February 1975, § 29, Series A no.
18; Loizidou, cited above, § 43; and Article 31 § 1 of the Vienna
Convention). The Court must have regard to the fact that the context of the
provision is a treaty for the effective protection of individual human rights
and that the Convention must be read as a whole, and interpreted in such a way
as to promote internal consistency and harmony between its various provisions (Stec and Others v. the United Kingdom
(dec.) [GC], nos. 65731/01 and 65900/01, § 48, ECHR 2005-X). Account must also
be taken of any relevant rules and principles of international law applicable
in relations between the Contracting Parties and the Convention should so far
as possible be interpreted in harmony with other rules of international law of
which it forms part (see Al-Adsani v. the United Kingdom [GC], no.
35763/97, § 55, ECHR 2001-XI; Demir and
Baykara, cited above, § 67; Saadi v. the United Kingdom [GC],
no. 13229/03, § 62, ECHR 2008-...; and Article 31 para. 3 (c) of the
Vienna Convention).
Finally, the Court emphasises that the object
and purpose of the Convention, as an instrument for the protection of
individual human beings, requires that its provisions be interpreted and
applied so as to make its safeguards practical and effective (see, inter
alia, Soering v. the United Kingdom, 7 July 1989, § 87, Series A no.
161; and Artico
v. Italy, 13 May 1980, § 33, Series A no. 37).
In Siliadin, considering the scope of
“slavery” under Article 4, the Court referred to the classic definition of
slavery contained in the 1926 Slavery Convention, which required the exercise
of a genuine right of ownership and reduction of the status of the individual
concerned to an “object” (Siliadin, cited above, § 122). With regard to
the concept of “servitude”, the Court has held that what is prohibited is a
“particularly serious form of denial of freedom” (see Van Droogenbroeck v.
Belgium, Commission’s report of 9 July 1980, §§ 78-80, Series B no.
44). The concept of “servitude” entails an obligation, under coercion, to
provide one’s services, and is linked with the concept of “slavery” (see Seguin
v. France (dec.), no. 42400/98, 7 March 2000; and Siliadin,
cited above, § 124). For “forced or compulsory labour” to arise, the Court
has held that there must be some physical or mental constraint, as well as some
overriding of the person’s will (Van der Mussele v. Belgium, 23 November
1983, § 34, Series A no. 70; Siliadin, cited above, § 117).
The absence of an express reference to
trafficking in the Convention is unsurprising. The Convention was inspired by
the Universal Declaration of Human Rights, proclaimed by the General Assembly
of the United Nations in 1948, which itself made no express mention of
trafficking. In its Article 4, the Declaration prohibited “slavery and the
slave trade in all their forms”. However, in assessing the scope of Article 4
of the Convention, sight should not be lost of the Convention’s special
features or of the fact that it is a living instrument which must be
interpreted in the light of present-day conditions. The increasingly high
standards required in the area of the protection of human rights and
fundamental liberties correspondingly and inevitably require greater firmness
in assessing breaches of the fundamental values of democratic societies (see,
among many other authorities, Selmouni v. France [GC], no. 25803/94, §
101, ECHR 1999-V; Christine Goodwin v. the United Kingdom [GC],
no. 28957/95, § 71, ECHR 2002-VI; and Siliadin, cited above,
§ 121).
The Court notes that trafficking in human
beings as a global phenomenon has increased significantly in recent years (see
paragraphs 89, 100, 103 and 269 above). In Europe, its growth has been
facilitated in part by the collapse of former Communist blocs. The conclusion of the Palermo Protocol in 2000 and the
Anti-Trafficking Convention in 2005 demonstrate the increasing recognition at
international level of the prevalence of trafficking and the need for measures
to combat it.
The Court is not regularly called upon to
consider the application of Article 4 and, in particular, has had only one
occasion to date to consider the extent to which treatment associated with
trafficking fell within the scope of that Article (Siliadin, cited
above). In that case, the Court concluded that the treatment suffered by the
applicant amounted to servitude and forced and compulsory labour, although it
fell short of slavery. In light of the proliferation of both trafficking itself
and of measures taken to combat it, the Court considers it appropriate in the
present case to examine the extent to which trafficking itself may be
considered to run counter to the spirit and purpose of Article 4 of the
Convention such as to fall within the scope of the guarantees offered by that
Article without the need to assess which of the three types of proscribed
conduct are engaged by the particular treatment in the case in question.
The Court observes that the International
Criminal Tribunal for the Former Yugoslavia concluded that the traditional
concept of “slavery” has evolved to encompass various contemporary forms of
slavery based on the exercise of any or all of the powers attaching to the
right of ownership (see paragraph 142 above). In assessing whether a situation
amounts to a contemporary form of slavery, the Tribunal held that relevant
factors included whether there was control of a person’s movement or physical
environment, whether there was an element of psychological control, whether
measures were taken to prevent or deter escape and whether there was control of
sexuality and forced labour (see paragraph 143 above).
The Court considers that trafficking in human
beings, by its very nature and aim of exploitation, is based on the exercise of
powers attaching to the right of ownership. It treats human beings as
commodities to be bought and sold and put to forced labour, often for little or
no payment, usually in the sex industry but also elsewhere (see paragraphs 101
and 161 above). It implies close surveillance of the activities of victims,
whose movements are often circumscribed (see paragraphs 85 and 101 above). It
involves the use of violence and threats against victims, who live and work
under poor conditions (see paragraphs 85, 87 to 88 and 101 above). It is
described by Interights and in the explanatory report accompanying the
Anti-Trafficking Convention as the modern form of the old worldwide slave trade
(see paragraphs 161 and 266 above). The Cypriot Ombudsman referred to sexual
exploitation and trafficking taking place “under a regime of modern slavery”
(see paragraph 84 above).
There can be no doubt that trafficking
threatens the human dignity and fundamental freedoms of its victims and cannot
be considered compatible with a democratic society and the values expounded in
the Convention. In view of its obligation to interpret the Convention
in light of present-day conditions, the Court considers it unnecessary to
identify whether the treatment about which the applicant complains constitutes
“slavery”, “servitude” or “forced and compulsory labour”. Instead, the Court
concludes that trafficking itself, within the meaning of Article 3(a) of the
Palermo Protocol and Article 4(a) of the Anti-Trafficking Convention, falls
within the scope of Article 4 of the Convention. The Russian Government’s
objection of incompatibility ratione materiae is accordingly dismissed.
2. General principles of Article 4
The Court reiterates that, together with
Articles 2 and 3, Article 4 enshrines one of the basic values of the democratic
societies making up the Council of Europe (Siliadin, cited above, § 82).
Unlike most of the substantive clauses of the Convention, Article 4 makes no
provision for exceptions and no derogation from it is permissible under Article
15 § 2 even in the event of a public emergency threatening the life of the
nation.
In assessing whether there has been a violation
of Article 4, the relevant legal or regulatory framework in place must be taken
into account (see, mutatis mutandis, Nachova and Others v. Bulgaria [GC],
nos. 43577/98 and 43579/98, § 93, ECHR 2005-VII). The Court considers
that the spectrum of safeguards set out in national legislation must be
adequate to ensure the practical and effective protection of the rights of
victims or potential victims of trafficking. Accordingly, in addition to
criminal law measures to punish traffickers, Article 4 requires member States
to put in place adequate measures regulating businesses often used as a cover
for human trafficking. Furthermore, a State’s immigration rules must address
relevant concerns relating to encouragement, facilitation or tolerance of
trafficking (see, mutatis mutandis, Guerra and Others v. Italy,
19 February 1998, §§ 58 to 60, Reports of Judgments and Decisions 1998-I;
Z and Others v. the United Kingdom [GC], no. 29392/95, §§ 73 to 74, ECHR
2001-V; and Nachova and Others, cited above, §§ 96 to 97 and
99-102).
In its Siliadin judgment, the Court
confirmed that Article 4 entailed a specific positive obligation on member
States to penalise and prosecute effectively any act aimed at maintaining a
person in a situation of slavery, servitude or forced or compulsory labour
(cited above, §§ 89 and 112). In order to comply with this obligation, member
States are required to put in place a legislative and administrative framework
to prohibit and punish trafficking. The Court observes that the Palermo
Protocol and the Anti-Trafficking Convention refer to the need for a
comprehensive approach to combat trafficking which includes measures to prevent
trafficking and to protect victims, in addition to measures to punish
traffickers (see paragraphs 149 and 163 above).
It is clear from the provisions of these two instruments that the Contracting
States, including almost all of the member States of the Council of Europe,
have formed the view that only a combination of measures addressing all three
aspects can be effective in the fight against trafficking (see also the
submissions of Interights and the AIRE Centre at paragraphs 267 and 271 above).
Accordingly, the duty to penalise and prosecute trafficking is only one aspect
of member States’ general undertaking to combat trafficking. The extent of the
positive obligations arising under Article 4 must be considered within this
broader context.
As with Articles 2 and 3 of the Convention,
Article 4 may, in certain circumstances, require a State to take operational
measures to protect victims, or potential victims, of trafficking (see, mutatis
mutandis, Osman, cited above, § 115; and Mahmut Kaya v. Turkey, no. 22535/93, § 115, ECHR 2000-III). In order for a
positive obligation to take operational measures to arise in the circumstances
of a particular case, it must be demonstrated that the State authorities were
aware, or ought to have been aware, of circumstances giving rise to a credible
suspicion that an identified individual had been, or was at real and immediate
risk of being, trafficked or exploited within the meaning of Article 3(a) of
the Palermo Protocol and Article 4(a) of the Anti-Trafficking Convention. In
the case of an answer in the affirmative, there will be a violation of Article
4 of the Convention where the authorities fail to take appropriate measures
within the scope of their powers to remove the individual from that situation
or risk (see, mutatis mutandis, Osman, cited above, §§116 to 117;
and Mahmut Kaya, cited above, §§ 115 to 116).
Bearing in mind the difficulties involved in
policing modern societies and the operational choices which must be made in
terms of priorities and resources, the obligation to take operational measures
must, however, be interpreted in a way which does not impose an impossible or
disproportionate burden on the authorities (see, mutatis mutandis, Osman,
cited above, § 116). It is relevant to the consideration of the proportionality
of any positive obligation arising in the present case that the Palermo
Protocol, signed by both Cyprus and the Russian Federation in 2000, requires
States to endeavour to provide for the physical safety of victims of
trafficking while in their territories and to establish comprehensive policies
and programmes to prevent and combat trafficking (see paragraphs 153 to 154
above). States are also required to provide relevant training for law
enforcement and immigration officials (see paragraph 155 above).
Like Articles 2 and 3, Article 4 also entails a
procedural obligation to investigate situations of potential trafficking. The
requirement to investigate does not depend on a complaint from the victim or
next-of-kin: once the matter has come to the attention of the authorities they
must act of their own motion (see, mutatis mutandis, Paul and Audrey
Edwards v. the United Kingdom, no. 46477/99, § 69, ECHR 2002-II). For
an investigation to be effective, it must be independent from those implicated
in the events. It must also be capable of leading to the identification and
punishment of individuals responsible, an obligation not of result but of
means. A requirement of promptness and reasonable expedition is implicit in all
cases but where the possibility of removing the individual from the harmful
situation is available, the investigation must be undertaken as a matter of
urgency. The victim or the next-of-kin must be involved in the procedure to the
extent necessary to safeguard their legitimate interests (see, mutatis mutandis,
Paul and Audrey Edwards, cited above, §§ 70 to 73).
Finally, the Court reiterates that trafficking
is a problem which is often not confined to the domestic arena. When a person
is trafficked from one State to another, trafficking offences may occur in the
State of origin, any State of transit and the State of destination. Relevant
evidence and witnesses may be located in all States. Although the Palermo
Protocol is silent on the question of jurisdiction, the Anti-Trafficking
Convention explicitly requires each member State to establish jurisdiction over
any trafficking offence committed in its territory (see paragraph 172 above).
Such an approach is, in the Court’s view, only logical in light of the general
obligation, outlined above, incumbent on all States under Article 4 of the
Convention to investigate alleged trafficking offences. In addition to the
obligation to conduct a domestic investigation into events occurring on their
own territories, member States are also subject to a duty in cross-border
trafficking cases to cooperate effectively with the relevant authorities of
other States concerned in the investigation of events which occurred outside
their territories. Such a duty is in keeping with the objectives of the member
States, as expressed in the preamble to the Palermo Protocol, to adopt a
comprehensive international approach to trafficking in the countries of origin,
transit and destination (see paragraph 149 above). It is also consistent with
international agreements on mutual legal assistance in which the respondent
States participate in the present case (see paragraphs 175 to 185 above).
3. Application of the general principles to the
present case
a.
Cyprus
i. Positive obligation to put in place an appropriate
legislative and administrative framework
The Court observes that in Cyprus legislation prohibiting trafficking and sexual exploitation was adopted in 2000 (see
paragraphs 127 to 131 above). The law
reflects the provisions of the Palermo Protocol and prohibits trafficking and
sexual exploitation, with consent providing no defence to the offence. Severe
penalties are set out in the legislation. The law also provides for a duty to
protect victims, inter alia through the appointment of a guardian of
victims. Although the Ombudsman criticised the failure of the authorities to
adopt practical implementing measures, she considered the law itself to be
satisfactory (see paragraph 90 above). The Council of Europe Commissioner also
found the legal framework established by Law 3(1) 2000 to be “suitable” (see
paragraph 92 above). Notwithstanding the applicant’s complaint as to the inadequacy
of Cypriot trafficking legislation, the Court does not consider that the
circumstances of the present case give rise to any concern in this regard.
However, as regards the general legal and administrative
framework and the adequacy of Cypriot immigration policy, a number of
weaknesses can be identified. The Council of Europe Commissioner for Human
Rights noted in his 2003 report that the absence of an immigration policy and
legislative shortcomings in this respect have encouraged the trafficking of
women to Cyprus (see paragraph 91 above). He called for preventive control
measures to be adopted to stem the flow of young women entering Cyprus to work as cabaret artistes (see paragraph 94 above). In subsequent reports, the
Commissioner reiterated his concerns regarding the legislative framework, and
in particular criticised the system whereby cabaret managers were required to
make the application for an entry permit for the artiste as rendering the
artiste dependent on her employer or agent and increasing her risk of falling
into the hands of traffickers (see paragraph 100 above). In his 2008 report,
the Commissioner criticised the artiste visa regime as making it very difficult
for law enforcement authorities to take the necessary steps to combat
trafficking, noting that the artiste permit could be perceived as contradicting
the measures taken against trafficking or at least as rendering them
ineffective (see also the report of the U.S. State Department at paragraphs 105
and 107 above). The Commissioner expressed regret that, despite concerns raised
in previous reports and the Government’s commitment to abolish it, the artiste
work permit was still in place (see paragraph 103 above). Similarly, the
Ombudsman, in her 2003 report, blamed the artiste visa regime for the entry of
thousands of young foreign women into Cyprus, where they were exploited by
their employers under cruel living and working conditions (see paragraph 89
above).
Further, the Court emphasises that while an
obligation on employers to notify the authorities when an artiste leaves her
employment (see paragraph 117 above) is a legitimate measure to allow the
authorities to monitor the compliance of immigrants with their immigration
obligations, responsibility for ensuring compliance and for taking steps in
cases of non-compliance must remain with the authorities themselves. Measures
which encourage cabaret owners and managers to track down missing artistes or
in some other way to take personal responsibility for the conduct of artistes
are unacceptable in the broader context of trafficking concerns regarding
artistes in Cyprus. Against this backdrop, the Court considers that the
practice of requiring cabaret owners and managers to lodge a bank guarantee to
cover potential future costs associated with artistes which they have employed
(see paragraph 115 above) particularly troubling. The separate bond signed in
Ms Rantseva’s case is of equal concern (see paragraph 15 above), as is the
unexplained conclusion of the AIS that M.A. was responsible for Ms Rantseva and
was therefore required to come and collect her from the police station (see
paragraph 20 above).
In the circumstances, the Court concludes that
the regime of artiste visas in Cyprus did not afford to Ms Rantseva practical
and effective protection against trafficking and exploitation. There has
accordingly been a violation of Article 4 in this regard.
ii. Positive obligation to take protective measures
In assessing whether a positive obligation to
take measures to protect Ms Rantseva arose in the present case, the Court
considers the following to be significant. First, it is clear from the
Ombudsman’s 2003 report that here has been a serious problem in Cyprus since the 1970s involving young foreign women being forced to work in the sex
industry (see paragraph 83 above). The report further noted the significant
increase in artistes coming from former Soviet countries following the collapse
of the USSR (see paragraph 84 above). In her conclusions, the Ombudsman
highlighted that trafficking was able to flourish in Cyprus due to the
tolerance of the immigration authorities (see paragraph 89 above). In his 2006
report, the Council of Europe’s Commissioner for Human Rights also noted that
the authorities were aware that many of the women who entered Cyprus on artiste’s visas would work in prostitution (see paragraph 96 above). There can therefore
be no doubt that the Cypriot authorities were aware that a substantial number
of foreign women, particularly from the ex-USSR, were being trafficked to
Cyprus on artistes visas and, upon arrival, were being sexually exploited by
cabaret owners and managers.
Second, the Court emphasises that Ms Rantseva
was taken by her employer to Limassol police station. Upon arrival at the
police station, M.A. told the police that Ms Rantseva was a Russian national
and was employed as a cabaret artiste. Further, he explained that she had only
recently arrived in Cyprus, had left her employment without warning and had
also moved out of the accommodation provided to her (see paragraph 19 above).
He handed to them her passport and other documents (see paragraph 21 above).
The Court recalls the obligations undertaken by
the Cypriot authorities in the context of the Palermo Protocol and,
subsequently, the Anti-Trafficking Convention to ensure adequate training to
those working in relevant fields to enable them to identify potential
trafficking victims (see paragraphs 155 and 167 above). In particular, under
Article 10 of the Palermo Protocol, States undertake to provide or strengthen
training for law enforcement, immigration and other relevant officials in the
prevention of trafficking in persons. In the Court’s opinion, there were
sufficient indicators available to the police authorities, against the general
backdrop of trafficking issues in Cyprus, for them to have been aware of
circumstances giving rise to a credible suspicion that Ms Rantseva was, or was
at real and immediate risk of being, a victim of trafficking or exploitation.
Accordingly, a positive obligation arose to investigate without delay and to
take any necessary operational measures to protect Ms Rantseva.
However, in the present case, it appears that
the police did not even question Ms Rantseva when she arrived at the police
station. No statement was taken from her. The police made no further inquiries
into the background facts. They simply checked whether Ms Rantseva’s name was
on a list of persons wanted by the police and, on finding that it was not,
called her employer and asked him to return and collect her. When he refused
and insisted that she be detained, the police officer dealing with the case put
M.A. in contact with his superior (see paragraph 20 above). The details of what
was said during M.A.’s conversation with the officer’s superior are unknown,
but the result of the conversation was that M.A. agreed to come and collect Ms Rantseva
and subsequently did so.
In the present case, the failures of the police
authorities were multiple. First, they failed to make immediate further
inquiries into whether Ms Rantseva had been trafficked. Second, they did not
release her but decided to confide her to the custody of M.A.. Third, no
attempt was made to comply with the provisions of Law 3(1) of 2000 and to take
any of the measures in section 7 of that law (see paragraph 130
above) to protect her. The Court accordingly concludes that these deficiencies,
in circumstances which gave rise to a credible suspicion that Ms Rantseva might
have been trafficked or exploited, resulted in a failure by the Cypriot
authorities to take measures to protect Ms Rantseva. There has accordingly been
a violation of Article 4 in this respect also.
iii. Procedural obligation to investigate trafficking
A further question arises as to whether there
has been a procedural breach as a result of the continuing failure of the
Cypriot authorities to conduct any effective investigation into the applicant’s
allegations that his daughter was trafficked.
In light of the circumstances of Ms Rantseva’s
subsequent death, the Court considers that the requirement incumbent on the
Cypriot authorities to conduct an effective investigation into the trafficking
allegations is subsumed by the general obligation arising under Article 2 in
the present case to conduct an effective investigation into Ms Rantseva’s death
(see paragraph 234 above). The question of the effectiveness of the
investigation into her death has been considered above in the context of the
Court’s examination of the applicant’s complaint under Article 2 and a
violation has been found. There is therefore no need to examine separately the
procedural complaint against Cyprus under Article 4.
b. Russia
i. Positive obligation to put in place an appropriate
legislative and administrative framework
The Court recalls that the responsibility of Russia in the present case is limited to the acts which fell within its jurisdiction (see
paragraphs 207 to 208 above). Although the criminal law did not specifically
provide for the offence of trafficking at the material time, the Russian
Government argued that the conduct about which the applicant complained fell
within the definitions of other offences.
The Court observes that the applicant does not
point to any particular failing in the Russian criminal law provisions.
Further, as regards the wider administrative and legal framework, the Court
emphasises the efforts of the Russian authorities to publicise the risks of
trafficking through an information campaign conducted through the media (see
paragraph 262 above).
On the basis of the evidence before it, the
Court does not consider that the legal and administrative framework in place in
Russia at the material time failed to ensure Ms Rantseva’s practical and
effective protection in the circumstances of the present case.
ii. Positive obligation to take protective measures
The Court recalls that any positive obligation
incumbent on Russia to take operational measures can only arise in respect of
acts which occurred on Russian territory (see, mutatis mutandis, Al-Adsani,
cited above, §§ 38 to 39).
The Court notes that although the Russian
authorities appear to have been aware of the general problem of young women
being trafficked to work in the sex industry in foreign States, there is no
evidence that they were aware of circumstances giving rise to a credible
suspicion of a real and immediate risk to Ms Rantseva herself prior to her
departure for Cyprus. It is insufficient, in order for an obligation to take
urgent operational measures to arise, merely to show that there was a general
risk in respect of young women travelling to Cyprus on artistes’ visas. Insofar
as this general risk was concerned, the Court recalls that the Russian
authorities took steps to warn citizens of trafficking risks (see paragraph 262
above).
In conclusion, the Court does not consider that
the circumstances of the case were such as to give rise to a positive
obligation on the part of the Russian authorities to take operational measures
to protect Ms Rantseva. There has accordingly been no violation of Article 4 by
the Russian authorities in this regard.
iii. Procedural obligation to investigate potential
trafficking
. The
Court recalls that, in cases involving cross-border trafficking, trafficking
offences may take place in the country of origin as well as in the country of
destination (see paragraph 289 above). In the
case of Cyprus, as the Ombudsman pointed out in her report (see paragraph 86 above), the recruitment of victims is usually undertaken
by artistic agents in Cyprus working with agents in other countries. The
failure to investigate the recruitment aspect of alleged trafficking would
allow an important part of the trafficking chain to act with impunity. In this
regard, the Court highlights that the definition of trafficking adopted in both
the Palermo Protocol and the Anti-Trafficking Convention expressly includes the
recruitment of victims (see paragraphs 150 and
164 above). The need for a full and effective
investigation covering all aspects of trafficking allegations from recruitment
to exploitation is indisputable. The Russian authorities therefore had an
obligation to investigate the possibility that individual agents or networks
operating in Russia were involved in trafficking Ms Rantseva to Cyprus.
. However,
the Court observes that the Russian authorities undertook no investigation into
how and where Ms Rantseva was recruited. In particular, the authorities took no
steps to identify those involved in Ms Rantseva’s recruitment or the
methods of recruitment used. The recruitment having occurred on Russian
territory, the Russian authorities were best placed to conduct an effective
investigation into Ms Rantseva’s recruitment. The failure to do so in the
present case was all the more serious in light of Ms Rantseva’s subsequent
death and the resulting mystery surrounding the circumstances of her departure
from Russia.
. There
has accordingly been a violation by the Russian authorities of their procedural
obligation under Article 4 to investigate alleged trafficking.
VI. ALLEGED VIOLATION OF ARTICLE 5 OF THE
CONVENTION
The applicant complained that there was a
violation of Article 5 § 1 of the Convention by the Cypriot authorities in so
far as his daughter was detained at the police station, released into the
custody of M.A. and subsequently detained in the apartment of M.A.’s employee. Article
5 § 1 provides, inter alia, that:
“Everyone has the right to liberty and security of person. No
one shall be deprived of his liberty save in the following cases and in
accordance with a procedure prescribed by law:
(a) the lawful detention of a person after
conviction by a competent court;
(b) the lawful arrest or detention of a person for
non-compliance with the lawful order of a court or in order to secure the
fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person
effected for the purpose of bringing him before the competent legal authority
on reasonable suspicion of having committed an offence or when it is reasonably
considered necessary to prevent his committing an offence or fleeing after
having done so;
(d) the detention of a minor by lawful order for the
purpose of educational supervision or his lawful detention for the purpose of
bringing him before the competent legal authority;
(e) the lawful detention of persons for the
prevention of the spreading of infectious diseases, of persons of unsound mind,
alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to
prevent his effecting an unauthorised entry into the country or of a person
against whom action is being taken with a view to deportation or extradition.”
A. The parties’ submissions
1. The applicant
The applicant submitted that his daughter’s
treatment at the police station and subsequent confinement to the apartment of M.A.’s
employee violated Article 5 § 1 of the Convention. He emphasised the importance
of Article 5 in protecting individuals from arbitrary detention and abuse of
power. Ms Rantseva was legally on the territory of the Republic of Cyprus and was, the applicant contended, unreasonably and unlawfully detained by M.A., escorted
to the police station, released into M.A.’s custody and detained in the
apartment of M.A.’s employee. He further observed that no document had been
produced by the Cypriot authorities setting out the grounds on which Ms Rantseva
had been detained and subsequently handed over to M.A..
2. The Cypriot Government
In their written submissions, the Cypriot
Government denied that there had been a violation of Article 5 in the present
case. They argued that it was not clear from the established facts of the case
whether the police had exercised any power over Ms Rantseva. Nor was it clear
what would have happened had Ms Rantseva refused to leave with M.A..
In their unilateral declaration (see paragraph 187
above), the Government accepted that Ms Rantseva’s treatment at the police
station and the decision not to release her but to hand her over to M.A., even
though there was no legal basis for her deprivation of liberty, was not consistent
with the requirements of Article 5.
B. The Court’s assessment
1. The existence of a deprivation of liberty in the
present case
The Court reiterates that in proclaiming the
“right to liberty”, Article 5 § 1 aims to ensure that no-one should be
dispossessed of his physical liberty in an arbitrary fashion. The difference
between restrictions on movement serious enough to fall within the ambit of a deprivation
of liberty under Article 5 § 1 and mere restrictions of liberty which are subject
only to Article 2 of Protocol No. 4 is one of degree or intensity, and not one
of nature or substance (Guzzardi v. Italy, 6 November 1980, § 93, Series
A no. 39). In order to determine whether someone has been “deprived of his
liberty” within the meaning of Article 5, the starting point must be her
concrete situation and account must be taken of a whole range of criteria such
as the type, duration, effects and manner of implementation of the measure in
question (see Engel and Others v. the Netherlands, 8 June 1976, §§
58-59, Series A no. 22; Guzzardi, cited above, § 92; and Riera Blume
and Others v. Spain, no. 37680/97, § 28, ECHR 1999-VII).
In the present case, the Court observes that
the applicant was taken by M.A. to the police station where she was detained
for about an hour. There is no evidence that Ms Rantseva was informed of the
reason for her detention; indeed, as the Court has noted above (see paragraph 297)
there is no record that she was interviewed by the police at all during her
time at the police station. Despite the fact that the police concluded that Ms Rantseva’s
immigration status was not irregular and that there were no grounds for her
continued detention, she was not immediately released. Instead, at the request
of the person in charge of the Aliens and Immigration Service (“AIS”), the
police telephoned M.A. and requested that he collect her and take her to the
AIS office at 7 a.m. for further investigation. M.A. was advised that if he did
not collect her, she would be allowed to leave. Ms Rantseva was detained at the
police station until M.A.’s arrival, when she was released into his custody
(see paragraph 20 above).
The facts surrounding Ms Rantseva’s subsequent
stay in M.P.’s apartment are unclear. In his witness statement to the police,
M.A. denied that Ms Rantseva was held in the apartment against her will and
insists that she was free to leave (see paragraph 21 above). The applicant
alleges that Ms Rantseva was locked in the bedroom and was thus forced to
attempt an escape via the balcony. The Court notes that Ms Rantseva
died after falling from the balcony of the apartment in an apparent attempt to
escape (see paragraph 41 above). It is reasonable to assume that had she been a
guest in the apartment and was free to leave at any time, she would simply have
left via the front door (see Storck v. Germany, no. 61603/00, §§ 76-78,
ECHR 2005-V). Accordingly, the Court considers that Ms Rantseva did not
remain in the apartment of her own free will.
In all, the alleged detention lasted about two
hours. Although of short duration, the Court emphasises the serious nature and consequences
of the detention and recalls that where the facts indicate a deprivation of
liberty within the meaning of Article 5 § 1, the relatively short duration of
the detention does not affect this conclusion (see Järvinen v. Finland,
no. 30408/96, Commission decision of 15 January 1998; and Novotka
v. Slovakia (dec.), no. 47244/99, 4 November 2003, where the
transportation to the police station, search and temporary confinement in a
cell lasting around one hour was considered to constitute a deprivation of
liberty for the purposes of Article 5).
Accordingly, the Court finds that the detention
of Ms Rantseva at the police station and her subsequent transfer and confinement
to the apartment amounted to a deprivation of liberty within the meaning of
Article 5 of the Convention.
2. Responsibility of Cyprus for the deprivation of
liberty
In so far as Ms Rantseva was detained by
private individuals, the Court must examine the part played by the police
officers and determine whether the deprivation of liberty in the apartment engaged
the responsibility of the Cypriot authorities, in particular in light of their
positive obligation to protect individuals from arbitrary detention (see Riera
Blume, cited above, §§ 32-35).
The Court has already expressed concern that
the police chose to hand Ms Rantseva into M.A.’s custody rather than simply
allowing her to leave (see paragraph 298 above). Ms Rantseva was not a minor.
According to the evidence of the police officers on duty, she displayed no
signs of drunkenness (see paragraph 20 above). It is insufficient for the
Cypriot authorities to argue that there is no evidence that Ms Rantseva did not
consent to leaving with M.A.: as the AIRE Centre pointed out (see paragraph 269
above), victims of trafficking often suffer severe physical and psychological
consequences which render them too traumatised to present themselves as
victims. Similarly, in her 2003 report the Ombudsman noted that fear of
repercussions and inadequate protection measures resulted in a limited number
of complaints being made by victims to the Cypriot police (see paragraphs 87 to
88 above).
Taken in the context of the general living and
working conditions of cabaret artistes in Cyprus, as well as in light of the
particular circumstances of Ms Rantseva’s case, the Court considers that it is
not open to the police to claim that they were acting in good faith and that
they bore no responsibility for Ms Rantseva’s subsequent deprivation of liberty
in M.P.’s apartment. It is clear that without the active cooperation of the
Cypriot police in the present case, the deprivation of liberty could not have
occurred. The Court therefore considers that the national authorities
acquiesced in Ms Rantseva’s loss of liberty.
3. Compatibility of the deprivation of liberty with
Article 5 § 1
It remains to be determined whether the
deprivation of liberty fell within one of the categories of permitted detention
exhaustively listed in Article 5 § 1. The Court reiterates that Article 5 § 1
refers essentially to national law and lays down an obligation to comply with
its substantive and procedural rules. It also requires, however, that any
measure depriving the individual of his liberty must be compatible with the
purpose of Article 5, namely to protect the individual from arbitrariness (see Riera
Blume, cited above, § 31).
By laying down that any deprivation of liberty
should be “in accordance with a procedure prescribed by law”, Article 5 § 1
requires, first, that any arrest or detention should have a legal basis in
domestic law. The Cypriot Government did not point to any legal basis for the
deprivation of liberty but it can be inferred that Ms Rantseva’s initial
detention at the police station was effected in order to investigate whether
she had failed to comply with immigration requirements. However, having
ascertained that Ms Rantseva’s name was not included on the relevant list, no
explanation has been provided by the Cypriot authorities as to the reasons and
legal basis for the decision not to allow Ms Rantseva to leave the police
station but to release her into the custody of M.A.. As noted above, the police
found that Ms Rantseva did not exhibit signs of drunkenness and did not pose
any threat to herself or others (see paragraphs 20 and 320 above). There is no
indication, and it has not been suggested, that Ms Rantseva requested that M.A.
come to collect her. The decision of the police authorities to detain Ms Rantseva
until M.A.’s arrival and, subsequently, to consign her to his custody had no
basis in domestic law.
It has not been argued that Ms Rantseva’s
detention in the apartment was lawful. The Court finds that this deprivation of
liberty was both arbitrary and unlawful.
The Court therefore concludes that there has been a
violation of Article 5 § 1 on account of Ms Rantseva’s unlawful and arbitrary
detention.
VII. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION
The applicant contended that the Cypriot
authorities violated his right of access to court under Article 6 of the
Convention by failing to ensure his participation in the inquest proceedings,
by failing to grant him free legal aid and by failing to provide him with
information on available legal remedies in Cyprus. Article 6 provides, in so
far as relevant, as follows:
“In the determination of his civil rights and obligations ...
everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
A. The parties’ submissions
1. The applicant
The applicant highlighted the importance of the
right of access to court in a democratic society. Such a right entailed an
opportunity for an individual to have a clear, practical opportunity to
challenge an act which interfered with his rights. The applicant pointed out
that there had been no trial in respect of his daughter’s death. He further
complained about the failure of the Cypriot authorities to ensure his effective
participation in the inquest proceedings and to provide free legal assistance.
Accordingly, he submitted, the Cypriot authorities had violated his right of
access to court guaranteed under Article 6 of the Convention.
2. The Cypriot Government
In their written observations, the Cypriot Government
submitted that Article 6 did not apply to inquest proceedings as they were not
proceedings that determined civil rights and obligations. Accordingly, the
applicant could not claim a right of access to the proceedings in respect of
his daughter’s death.
If, on the other hand, inquest proceedings did
engage Article 6, the Cypriot Government contended that the applicant’s right
of access to court was ensured in the present case.
In their subsequent unilateral declaration (see
paragraph 187 above), the Cypriot Government acknowledged a violation of the
applicant’s right to an effective access to court by the failure of the Cypriot
authorities to establish any real and effective communication between them and
the applicant as regards the inquest and any other possible legal remedies
available to the applicant.
B. Admissibility
The Court observes at the outset that Article 6 does
not give rise to a right to have criminal proceedings instituted in a
particular case or to have third parties prosecuted or sentenced for a criminal
offence (see, for example, Rampogna and Murgia v. Italy (dec.), no.
40753/98, 11 May 1999; Perez v. France [GC], no. 47287/99, § 70, ECHR
2004-I; and Dinchev v. Bulgaria, no. 23057/03, § 39, 22 January 2009). To the extent
that the applicant complains under Article 6 § 1 about the failure of the
Cypriot authorities to bring criminal proceedings in respect of his daughter’s
death, his complaint is therefore inadmissible ratione materiae and must
be rejected under Article 35 §§ 3 and 4 of the Convention.
As regards the complaint regarding
participation in the inquest proceedings, the Court observes that procedural
guarantees in inquest proceedings are inherent in Article 2 of the Convention
and the applicant’s complaints have already been examined in that context (see
paragraph 239 above). As to the applicability of Article 6 to inquest proceedings,
the Court considers there is no criminal charge or civil right at stake for the
applicant in the context of such proceedings. Accordingly, this part of the
complaint is also inadmissible ratione materiae and must be rejected
under Article 35 §§ 3 and 4 of the Convention.
Finally, as regards the applicant’s complaints
that he was not informed of other remedies available to him and was not
provided with free legal assistance, when the cost of legal representation in
Cyprus was prohibitive, the Court considers that these complaints are
inherently linked to the applicant’s complaint under Article 2 of the
Convention and recalls that they have been addressed in that context (see
paragraph 240 above). It is therefore not necessary to consider the extent to
which any separate issue may arise under Article 6 in such circumstances.
Accordingly, the complaints under Article 6 § 1
must be declared inadmissible and rejected in accordance with Article 35 §§ 3
and 4 of the Convention.
VIII. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION
The applicant also invoked Article 8 of the
Convention, which provides as follows:
“1. Everyone has the right to respect for his
private and family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in accordance with the law
and is necessary in a democratic society in the interests of national security,
public safety or the economic well-being of the country, for the prevention of
disorder or crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others.”
The applicant has provided no further details
of the nature of his complaint under this Article. In
the light of all the material in its possession, and in so far as the matters
complained of were within its competence, the Court finds no appearance of a
violation of the rights and freedoms set out in the Convention or its Protocols
arising from this complaint. The complaint must therefore be declared inadmissible
pursuant to Article 35 §§ 3 and 4 of the Convention.
IX. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of
the Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
1. The parties’ submissions
The applicant sought EUR 100,000 in respect of
non-pecuniary damage resulting from the death of his daughter. He pointed to
the serious nature of the alleged violations in the present case and the fact that
his daughter was the sole provider for the family. He also highlighted the
emotional anguish occasioned by his daughter’s death and his subsequent efforts
to bring those responsible to justice.
The Cypriot Government argued that the sum
claimed was excessive, having regard to the Court’s case-law. They further
pointed out that the applicant had provided no evidence that he was financially
dependent upon his daughter. In their unilateral declaration (see
paragraph 187 above), they offered to pay the applicant EUR 37,300 in
respect of pecuniary and non-pecuniary damage and costs and expenses, or such
other sum as suggested by the Court.
The Russian Government submitted that any
non-pecuniary damages should be paid by the State which failed to ensure the
safety of the applicant’s daughter and failed to perform an effective
investigation into her death. They noted that they were not the respondent
State as far as the applicant’s substantive Article 2 complaint was concerned.
2. The Court’s assessment
The Court notes that a claim for loss of
economic support is more appropriately considered as a claim for pecuniary
loss. In this respect, the Court reiterates that there must be a clear causal
connection between the damage claimed by the applicant and the violation of the
Convention and that this may, in the appropriate case, include compensation in
respect of loss of earnings (see, inter alia, Aktaş v. Turkey,
no. 24351/94, § 352, ECHR 2003-V (extracts)). In the present case the
Court has not found Cyprus responsible for Mr Rantseva’s death, holding that
there was a procedural, and not a substantive, violation of Article 2 in the
present case. Accordingly, the Court does not
consider it appropriate to make any award to the applicant in respect of
pecuniary damage arising from Ms Rantseva’s death.
As regards non-pecuniary damage, the Court has
found that the Cypriot authorities failed to take steps to protect Ms Rantseva
from trafficking and to investigate whether she had been trafficked. It has
further found that the Cypriot authorities failed to conduct an effective
investigation into Ms Rantseva’s death. Accordingly, the Court is satisfied
that the applicant must be regarded as having suffered anguish and distress as
a result of the unexplained circumstances of Ms Rantseva’s death and the
failure of the Cypriot authorities to take steps to protect her from
trafficking and exploitation and to investigate effectively the circumstances
of her arrival and stay in Cyprus. Ruling on an equitable basis, the Court
awards the sum of EUR 40,000 in respect of the damage
sustained by the applicant as a result of the conduct of the Cypriot
authorities, plus any tax that may be chargable on that amount.
The Court recalls that it has found a procedural
violation of Article 4 in respect of Russia. Ruling on an equitable basis, it awards the applicant EUR
2,000 in non-pecuniary damage in respect of the damage sustained by him
by the conduct of the Russian authorities, plus any tax that may be chargable
on that amount.
B. Costs and
expenses
1. The parties’ submissions
The applicant requested reimbursement of costs
and expenses incurred in the sum of around 485,480 Russian roubles (RUB)
(approximately EUR 11,240), including travel, photocopying, translation and
services of a notary. The sum also included the sum of RUB 233,600 in respect
of the sale of his home in Russia, which he claimed was necessary in order to
obtain necessary funds; funeral costs in the sum of about RUB 46,310; and
RUB 26,661 spent on attending a conference on trafficking in Cyprus in 2008. Relevant receipts were provided.
The Cypriot Government argued that the
applicant could only claim for costs which were necessarily incurred to prevent
or redress a breach of the Convention, reasonable as to quantum and causally
linked to the violation in question. As such, they contested the applicant’s
claim of RUB 233,600 in respect of the sale of his flat, the sums expended
on attending the 2008 conference and any costs and expenses not substantiated
by receipts or not reasonable as to quantum.
The Russian Government contended that the
applicant had failed to substantiate his allegation that he was required to
sell his flat and travel to Cyprus. In particular, they submitted that the
applicant could have applied to relevant law enforcement authorities in Russia to request necessary documents and evidence from the Cypriot authorities and could have
instructed a lawyer in Cyprus. The Russian Government also contested the applicant’s
claim for the costs of the 2008 conference on the ground that it was not
directly linked to the investigation of Ms Rantseva’s death.
2. The Court’s assessment
The Court recalls
that the applicant is entitled to the reimbursement of costs and
expenses in so far as it has been shown that these have been actually and
necessarily incurred and are reasonable as to quantum. In the present case, the
applicant is not entitled to claim the proceeds of the sale of his house or for
the expenses of travelling to the conference in Cyprus in 2008, such conference
not being directly linked to the investigation of Ms Rantseva’s death. Further,
the Court recalls that it found only a procedural breach of Article 2.
Accordingly, the applicant is not entitled to reimbursement of funeral
expenses.
Having regard to the above, the Court considers
it reasonable to award the sum of EUR 4,000 in respect of costs and expenses
plus any tax that may be chargeable to the applicant on that amount, less
EUR 850 received by way of legal aid from the Council of Europe. In the circumstances
of this case the Court considers it appropriate that the costs and expenses are
awarded against Cyprus.
C. Default interest
The Court considers it appropriate that the
default interest should be based on the marginal lending rate of the European
Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Rejects the
Cypriot Government’s request to strike the application out of the list;
2. Decides to join to the merits the Russian
Government’s objection ratione materiae as to Article 4 of the
Convention, and rejects it;
3. Declares the complaints under Articles 2, 3, 4 and
5 admissible and the remainder of the application inadmissible.
4. Holds that there has been no violation of the
Cypriot authorities’ positive obligation to protect Ms Rantseva’s right to life
under Article 2 of the Convention;
5. Holds that there has been a procedural violation
of Article 2 of the Convention by Cyprus because of the failure to conduct
an effective investigation into Ms Rantseva’s death;
6. Holds that there has been no violation of
Article 2 of the Convention by Russia;
7. Holds that it is not necessary to consider
separately the applicant’s complaint under Article 3 of the Convention;
8. Holds that there has been a violation of
Article 4 of the Convention by Cyprus by not affording to Ms Rantseva
practical and effective protection against trafficking and exploitation in
general and by not taking the necessary specific measures to protect her;
9. Holds that there is no need to examine separately
the alleged breach of Article 4 concerning the continuing failure of the
Cypriot authorities to conduct an effective investigation;
10. Holds that there has been no breach by Russia of its positive obligations under Article 4 of the Convention to take operational
measures to protect Ms Ranseva against trafficking;
11. Holds that there has been a violation of
Article 4 of the Convention by Russia of its procedural obligations to
investigate the alleged trafficking;
12. Holds that there has been a violation of
Article 5 of the Convention by Cyprus;
13. Holds
(a) that the Cypriot Government is to pay the applicant,
within three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 40,000 (forty
thousand euros) in respect of non-pecuniary damage and EUR 3,150 (three
thousand one hundred and fifty euros) in respect of costs and expenses, plus any
tax that may be chargeable to the applicant on these amounts;
(b) that the Russian Government is to pay the
applicant, within three months from the date on which the judgment becomes
final in accordance with Article 44 § 2 of the Convention, EUR 2,000
(two thousand euros) in respect of non-pecuniary damage, to be converted into Russian
roubles at the rate applicable at the date of settlement, plus any tax that may
be chargeable to the applicant on this amount;
(c) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
14. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 7 January 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos
Rozakis
Registrar President
