ECtHR - Rantsev v. Cyprus and Russia, Application no. 25965/04, 10 October 2010

Applicability of article 37(1) of the Convention

The Court refused the Cypriot Government’s request for the application to be struck out by virtue of art. 37(1), on account of its unilateral declaration which acknowledged violations of the Convention, of the steps taken to investigate the circumstances of  Ms  Rantseva’s  death, and of  proposed compensation.

Among the factors to be taken into account in assessing the applicability of the aforementioned norm in similar cases, the Court recalled the nature of the complaints, whether the points of law  at stake have already been solved, and whether it is necessary to elucidate, safeguard  and  develop  the  rules  instituted  by  the  Convention. (Ireland  v.  the  United  Kingdom;  Guzzardi  v.  Italy;  and  Karner  v.  Austria)

As to the present case, the Court firstly emphasised the serious nature of the allegations of trafficking in human beings; and secondly pointed out the paucity of case-law on the interpretation and application of Article 4 of the Convention in the context of trafficking cases. Therefore, it concluded that the continuation of the examination of the case was required.

Preliminary decision on jurisdiction ratione  loci

The Court did not accept the Russian Government’s submission that under Art. 1 of the Convention they had no jurisdiction over, and hence no responsibility for, the events to which the application pertained.

The Court reiterated that jurisdictional competence of a  State  is primarily  territorial and since the alleged trafficking had commenced in Russia, the Court deemed Russia possibly responsible for violations occurring on its territory.

Substantial Issues

1) Alleged violations of Art. 2 of the Convention

1. A. The Court found no violation of  the  Cypriot  authorities’  positive  obligation  to  protect Ms Rantseva’s right to life under Article 2.    

On the one hand, the Court reiterated that Article 2 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to  safeguard  the  lives  of  persons under its jurisdiction (inter alia L.C.B.  v. the United Kingdom) by undertaking positive actions, such as preventive operational measures (inter alia Medova v. Russia); on the other hand, the Court acknowledged that such a positive obligation to protect life arises when 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.

In the present case, as in Osman  v.  the  United  Kingdom, the Court found that the applicant had failed to demonstrate the latter prerequisite. Indeed, even if the police ought to have been aware that Ms Rantseva might have been a victim of  trafficking, there were no indications that  Ms  Rantseva’s  life  was  at  real  and immediate risk.

1.B. The Court found that there had been a procedural violation of Article 2 by Cyprus.

Even in the absence of evidence that Ms Rantseva died as a direct result of the use of force (see also Calvelli  and Ciglio  v.  Italy),  in light  of  the  ambiguous  and  unexplained  circumstances  surrounding  Ms Rantseva’s  death  the Court held  that Cyprus had an obligation to  adequately investigate  her  death  on their own motion under  Article  2.

However, the Cypriot authorities’ investigation into the death had been riddled with deficiencies not least since relevant witnesses had not been questioned and there had been refusal to accept an offer from Russia on the collection of evidence.

1.B.2. On the contrary, the Court found no procedural violation of Article 2 by the Russian Federation.

Indeed, the Court held that the obligation to ensure an effective investigation applies in principle only to the Country wherein the relevant fact occurred.  Accordingly, the Court affirmed that Article 2 does not require member States’ criminal laws to provide for universal jurisdiction in cases involving the death of one of their nationals.

The Court observed that the only incumbent duty is that of the State where the evidence is located to render assistance thereby allowing the securing of such evidence; and this duty had been fulfilled by Russia.

2) Alleged violation of Art. 4.

General Principles and Considerations

In the first place, the Court held that trafficking in human beings as internationally defined falls within the scope of art. 4 of the Convention, although the latter explicitly prohibits only slavery, servitude and forced labour.

In this respect, the Court reiterated that it  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), and that due consideration must be given to the whole international legal framework, as provided by the Vienna Convention rules of interpretation.

In addition, the Court   emphasised  that  the  object  and  purpose  of  the Convention to protect human rights, requires  it to be interpreted in a practical  and  effective way (Soering  v.  the  United Kingdom) in the light of present-day conditions.

Finally, the Court observed that trafficking in human beings by its very nature threatens human dignity and the fundamental freedoms of its victims, and cannot be considered compatible the values expounded in the Convention.

In light of the foregoing, the Court concluded that trafficking is per se prohibited by art. 4 of the Convention.

That said, the Court reiterated that (as Arts. 2 and 3) Art. 4 requires the State to take positive actions to protect individuals from its violation, not only by putting in place a comprehensive  legal framework (criminal, migration and business measures and regulations), but also by taking  operational measures to protect actual or potential victims  (see  Mahmut  Kaya  v.  Turkey), and by investigating of its own motion situations of  potential  trafficking. As to the latter obligation, the Court also specified that the victim or the next-of-kin must be involved in the investigative procedure to the  extent  necessary  to  safeguard  their  legitimate  interests  (see Paul and Audrey Edwards), and that States have to cooperate with other States when the transnational character of the crime requires it.

2. A. The Court affirmed that Cyprus had violated Art. 4 of the Convention failing to comply with its positive obligations.  

Firstly, the Court affirmed that Cyprus had failed to put in place an appropriate legal and administrative framework to combat trafficking.  

Indeed, the “cabaret-artiste” visa regime, resulted in Cyprus being responsible for encouraging large numbers of young foreign women to come to the island and be at risk of trafficking. Furthermore, the responsibility for ensuring compliance with immigration obligations had to remain with the authorities themselves, so that measures which encouraged cabaret owners and managers to track down or take personal responsibility for the conduct of artistes were unacceptable.

Secondly, the police failed to take suitable operational measures to protect Ms Rantseva from trafficking although sufficient indicators were available to the police to give rise to a credible suspicion that she was at real and immediate risk of trafficking (Also taking into account credible national and European reports on the general risk of TCNs being trafficked). Nevertheless, instead of releasing Ms Rantseva and starting an investigation, the police had confided her into the custody of the cabaret manager.

2. B. The Court found no violations of Article 4 by Russia as regards the positive obligations to put in place an appropriate legislative and administrative framework and to take protective measures; conversely it found a procedural violation of Art. 4.

On the one hand, the Court considered that the Russian legal framework was able to ensure  Ms  Rantseva’s  practical  and  effective protection in the circumstances of the present case, and excluded that facts which occurred on Russian territory could give rise to a credible suspicion of a real and immediate risk to Ms Rantseva and to the consequent obligation to take positive protective measures.

On the other hand, the Court pointed out that the recruitment of the victim had likely occurred in Russia, so that the latter had the obligation to investigate this first stage of the trafficking cycle. Nevertheless, such an investigation had never been undertaken.

3) The Court held that there had been a violation of Article 5 § 1 by Cyprus on account of Ms Rantseva’s unlawful and arbitrary detention.

Although it could be inferred that  Ms Rantseva  was initially detained by Cypriot Police to check her immigration status, there had been no basis in domestic law for the police’s decision, once they had established that her papers were in order, either to continue to hold her or to consign her to the cabaret manager’s custody.

In addition, Cyprus’s responsibility was engaged for Ms Rantseva’s arbitrary and unlawful detention in the apartment because, even though she had been held by a private individual, it was clear that this would not have been possible without the active cooperation of the police.

4) The Court found inadmissible the complaints under art. 6(1) regarding the  failure  of  the Cypriot authorities (a)to bring criminal proceedings in respect of his daughter’s  death, (b) to ensure his effective participation in the inquest  proceedings, (c) and  to  provide  free  legal  assistance.

As to the complaints (a) and (b), the Court recalled that Article 6 does not give rise  to the right to have criminal proceedings instituted in a particular case, nor to the right to participate as they do not determine civil  rights  and  obligations (inter alia Rampogna  and  Murgia  v.  Italy). Consequently the Court declared the complaints inadmissible ratione materiae under Article 35 §§ 3 and 4.

As to the complaint (c), the Court considered that it was not necessary to assess its relevance under Article 6, since the complaint had been addressed when examining violations under Art. 2.