Published on 8 November 2021
THIRD SECTION
Applications nos. 71671/16 and 40190/18
F.M. and Others against Russia
and N.I. against Russia
lodged on 25 November 2016 and 15 August 2018 respectively
(see list appended)
communicated on 19 October 2021
STATEMENT OF FACTS
1. A list of the applicants is set out in the appended table. The facts of the case, as submitted by them, may be summarised as follows.
The applicants’ allegations of ill-treatmentThe applicants’ general situation2. On unspecified dates between 2002 and 2016 the applicants were recruited in Kazakhstan and Uzbekistan to work in Moscow in different grocery shops owned by Mr R.M., his wife, Ms Z.M., and the latter’s sister, Ms Z.I. The three shops were located in the Golyanovo district at Uralskaya, Parkovaya and Novosibirskaya streets. Upon the applicants’ arrival, the shops owners took possession of their identity documents and mobile phones. The applicants, apparently, never registered as labour migrants as required by the national law.
3. From the outset the shop owners did not allow the applicants to leave the shop premises under threats of beating and reporting their illegal migrants status to the police. They worked daily between 6 a.m. and 2 a.m. with short lunch breaks but were never paid. Their work duties included cleaning the shop premises, carrying and packing goods and operating the checkouts.
4. The shops owners and other co-workers routinely beat the applicants for poor work performance and disobedience. They were poorly fed only with food from the shop past its expiry date, slept on the floor in the shops warehouses with a number of other co-workers and forced to consume alcohol. They were not provided with hygiene products and sufficient clothing. The applicants’ contacts with family were limited to occasional calls under the supervision of the shop owners. During the official inspections the applicants were hiding in the shops warehouses.
5. The applicants’ male co-workers occasionally raped them, often by order of the shop owners. As a result, they all conceived children, except Ms N.I., the applicant in the case no. 40190/18.
The applicants’ individual circumstances(a) Ms F.M.
6. The first applicant was an orphan living in Shymkent, Kazakhstan. On an unspecified date in 2007, aged nineteen, she moved to Moscow following Mr R.M.’s offer to work at his shop at Uralskaya street.
7. In 2009 the applicant escaped from the shop. She shortly complained about the events to the police at their local department. The police officers refused to formally accept the complaint and contacted Mr R.M. who collected the applicant and took her back to the shop. Upon her arrival, the applicant was raped several times by male employees of the shop.
8. On an unspecified date in 2010 the applicant gave birth to a son. When the latter was four months old, the shop owners took him from her.
9. In 2010 the applicant again escaped from the shop and left for Shymkent from where she filed complaints about the events to the Russian authorities.
10. On 12 June 2010 the applicant apparently regained the custody of her son.
11. On 5 August 2010 the investigator refused to open criminal proceedings. The applicant was not informed of this decision.
12. On 12 August 2010 the supervising prosecutor annulled the decision. Since then the investigative authorities apparently issued a number of other similar refusals which were subsequently annulled.
(b) Ms A.M.
13. On an unspecified date in 2007 the second applicant, also an orphan living in Shymkent, moved to Moscow aged seventeen following Mr R.M.’s offer. She worked at the same shop together with her sister, the first applicant.
14. In 2013 Mr N., a brother of Ms Z.M., raped the applicant. In April 2013 she was taken to Shymkent where later on an unspecified date she gave birth to her son. There on an unspecified date she complained to the Kazakh authorities about the events. The case file contains no indication that the second applicant lodged any complaints with the Russian authorities.
(c) Ms G.N.
15. On an unspecified date in 2005 the third applicant, aged twenty-five, moved to Moscow from Uzbekistan following an offer from her friend to work at a grocery shop. Mr R.M. met her in Moscow and took to the shop at Uralskaya street.
16. On an unspecified date the applicant’s co-worker raped her at the shop owners’ order. Subsequently, she became pregnant and on an unspecified date in 2010 or 2011 the shop owners forced her to get an abortion in a hospital.
17. In 2012 the shop owners released the applicant in the circumstances described below (see paragraph 28 below) and she left for Kazakhstan.
(d) Ms B.K.
18. On an unspecified date in 2002 the fourth applicant, aged twenty-four, moved to Moscow from Kazakhstan following Ms Z.I.’s offer to work at her shop. She started working at the shop situated at Novosibirskaya street and shortly was relocated to the one at Parkovaya street.
19. On an unspecified date in 2003 the fourth applicant gave birth to her daughter conceived after a rape. At the hospital, Ms Z.I. registered as the child’s mother and took her from the applicant. The applicant was forced to work two days later. Several years later Ms Z.I. told the applicant that the child had died aged two of an unspecified injury.
20. On an unspecified date in 2007 the applicant gave birth to a boy. The applicant was registered as the mother but Ms Z.I. took him shortly thereafter. The latter allowed the applicant occasional contacts with the son every few months. The applicant was forced to work two days after the childbirth.
21. On an unspecified date in 2009 the applicant escaped from the shop. She shortly complained about the events to the police at a department outside the Golyanovo district. The officers did not accept the complaint as the police department allegedly lacked territorial jurisdiction. Having failed to find the police department in the Golyanovo district, she returned to the shop.
22. In 2012 the shop owners released the applicant in the circumstances described below (see paragraph 28 below). She subsequently regained the custody of her son.
23. On 17 January 2013 a forensic psychological medical examination was conducted at the applicant’s request. It recorded post-traumatic stress disorder and organic personality disorder following physical injuries and psychic distress which had had caused her serious mental anguish.
(e) Ms N.I.
24. In May 2016, that is several years after the other applicants left the shops, the applicant, aged twenty, moved to Moscow from Kazakhstan to work at the shop at Novosibirskaya street.
25. On 17 September 2016 the applicant escaped from the shop. On 18 October 2016 she returned to the shop following Ms Z.I.’s threats to report her illegal migrant status to the police.
26. On 5 December 2016 the applicant again escaped from the shop. A medical examination found bruises on her chest, head and behind the right ear. On 28 December 2016 she left for Shymkent.
Investigation into the eventsCase no. 71671/16(a) Investigation in Russia
27. On 17 October 2012 officers of the Moscow City Department of the Federal Migration Service (“the Moscow City FMS”) inspected the shop at Novosibirskaya street and found no irregularities.
28. On 30 October 2012 a group of human rights activists and journalists visited the shop at Novosibirskaya street and filmed its premises and staff. Apparently, as a result the shop owners released a number of workers. The incident was reported to the Moscow City FMS. The following inspection of the shop on account of alleged forced labour found no irregularities.
29. Two days later the fourth applicant together with another co-worker complained about the events. On 4 November 2012 an investigator of the Moscow Investigative Committee opened criminal investigation into the allegedly unlawful deprivation of liberty.
30. On 6 November 2012 the Deputy Prosecutor of the Preobrazhenskiy District of Moscow annulled the investigator’s decision as unfounded. He established that the applicants had had opportunities to alert of the alleged events earlier but had failed to do so. He further stated that the applicants claimed having been beaten for misconduct at work but not “in order to deprive them of liberty”. He further referred to the fact that the applicants had children and concluded that they therefore had “common-law husbands”. Hence, according to him, the applicants had no reasons to fear threats of beating by Ms Z.I. Nevertheless, he established that the investigation had failed to take a number of necessary measures and remitted the case for additional pre-investigative inquiry.
31. On 6 February 2013 the first, third and fourth applicants together with three other co-workers again complained to the authorities about the events.
32. On 14 February 2013 the Head of the Police Department of the Golyanovo District refused to open criminal proceedings. He largely referred to explanations of the shop owners who had denied the allegations. He further established that there was no medical record of the applicants’ injuries. Lastly, he found that it was impossible to carry out investigative measures as the applicants were abroad. He did not address the complaints about the child abduction and forced abortion. The applicants were not informed of the decision until 2015.
33. On 3 June 2015 an investigator of the Moscow Investigative Committee refused new complaints filed by the first, third and fourth applicants together with five other former co-workers. He referred to statements of the shop owners, employees, customers and officers of supervising authorities who had denied the allegations. He further found that some of the applicants’ co-workers freely travelled home to Kazakhstan but then voluntarily returned to the shop and brought their relatives to work with them. In addition, a search in the shops premises indicated that the applicants could have opened one of the exits from inside. The investigator also questioned the second applicant who denied the allegations of the other applicants. Lastly, the forth applicant conceded that she could have left the shop and had stayed there because she had believed Ms Z.I.’s promises to financially reward her.
34. On 19 January 2016 the Preobrazhenskiy District Court of Moscow dismissed a complaint filed by the first and fourth applicants together with two other co-workers against the above refusal as it had been already annulled by the supervising prosecutor.
35. On 23 May 2016 the Moscow City Court dismissed the applicants’ appeal.
(b) Investigation in Kazakhstan
36. On 18 February 2013 a police investigator in Kazakhstan opened criminal proceedings against Ms Z.I. and her spouse.
37. On 17 April 2013 the investigation was suspended due to the failure to cooperate by the Russian authorities
38. On 2 February 2014 the investigation was reopened.
Case no. 40190/1839. On 6 and 27 December 2016 the applicant complained to the police about the events. The investigative authorities subsequently joined the inquiry with the existing one concerning the allegations of the other applicants.
40. On 9 February 2017 a district police officer refused to open criminal proceedings. He referred solely to statements of the shop owners and employees who had denied the allegations.
41. On 20 February 2017 the Russian Ombudsperson referred to the investigative authorities the Kazakh Ombudsperson’s request to investigate the applicant’s allegations.
42. On 5 March 2017 the district police officer refused to open criminal proceedings. He referred solely to the previous refusal of 9 February 2017.
43. On 9 March 2017 the Acting Prosecutor of the Preobrazhenskiy District of Moscow annulled both refusals for incomplete inquiry.
44. On 13 March 2017 the investigator ordered a forensic medical examination of the applicant. It is not clear if the examination was carried out.
45. On 2 July 2017 another district police officer refused to open criminal proceedings. He referred solely to explanations of a new shop owner who had denied the allegations.
46. On 13 September 2017 the Preobrazhenskiy District Court of Moscow dismissed the applicant’s complaint against the above refusal as on 4 August 2017 it had been already annulled by the supervising prosecutor.
47. On 19 November 2017 the investigator again refused to open criminal proceedings.
48. On 22 February 2018 the Preobrazhenskiy District Court of Moscow dismissed the applicant’s complaint against the above refusal as on 5 February 2018 it had been already annulled by the supervising prosecutor.
49. On 11 April 2018 an investigator of the Moscow Investigative Committee issued the latest refusal to open criminal proceedings.
COMPLAINTS
1. The applicants complain under Articles 3 and 4 of the Convention that the authorities failed to take sufficient measures to protect them from ill‑treatment as well as trafficking, servitude and forced or compulsory labour and failed to carry out an adequate criminal investigation in that regard.
2. The applicants in the case no. 71671/16 also complain that the authorities failed to protect them and investigate the treatment prohibited under Article 8 of the Convention. In particular, the first and the fourth applicants allege having had their children taken away from them. The third applicant claims having been forced to get an abortion. Lastly, all four applicants referred to restricted contacts with their families.
3. The applicants further invoke Article 13 in conjunction with the above substantive provisions of the Convention arguing that they had no effective remedies in respect of their complaints.
4. Lastly, referring to Article 14 of the Convention in conjunction with the above substantive provisions, the applicants claim having been discriminated on the grounds of their gender, ethnicity and socio-economic position.
COMMON QUESTIONS
1. Have the applicants complied with the admissibility criteria, as provided for by Article 35 §§ 1 and 3 of the Convention? In particular, did the applicants lodge their complaints with the Court within the six-month time-limit after all domestic remedies have been exhausted?
2. Did the applicants’ alleged treatment amount to trafficking, servitude or forced or compulsory labour within the meaning of Article 4 of the Convention (see S.M. v. Croatia [GC], no. 60561/14, §§ 279-96, 25 June 2020)? If so, was there a violation of that provision on account of the Russian authorities’ failure to take adequate measures to protect the applicants in that regard (see S.M. v. Croatia [GC], mentioned above, §§ 304-20)? In particular:
(a) Did the authorities put in place an appropriate legislative and administrative framework to effectively prohibit and punish the alleged treatment?
(b) Were the authorities aware or ought to be aware that the applicants had been, or were at real and immediate risk of being trafficked or exploited? If so, did the authorities take appropriate operational measures in that regard?
(c) Did the authorities carry out an effective investigation into the applicants’ allegations? Was there a violation of Article 4 of the Convention, taken on its own or in conjunction with Article 13, as a result of the authorities’ refusal to institute criminal proceedings into the applicants’ allegations?
3. Having regard to the applicants’ allegations about physical and sexual violence by private parties, was there a violation of Article 3 of the Convention as a result of the authorities’ failure to take appropriate measures against that treatment (see X and Others v. Bulgaria [GC], no. 22457/16, § 177-91, 2 February 2021)? In particular:
(a) Were the authorities aware or ought to be aware about the alleged treatment? If so, did the authorises take appropriate protective measures in that regard?
(b) Did the authorities carry out an effective investigation into the applicants’ allegations? Was there a violation of Article 3 of the Convention, taken on its own or in conjunction with Article 13, as a result of the authorities’ refusal to institute criminal proceedings into the applicants’ allegations?
The parties are requested to comment separately on the allegations of:
(a) Rapes;
(b) Forced termination of the third applicant’s pregnancy.
The parties are invited to produce medical and any other relevant documents regarding the above allegations.
4. Have the authorities complied with their positive obligation to protect the first and fourth applicants’ rights regarding their allegations of taking their children away by private parties as guaranteed by Article 8 of the Convention (see, mutatis mutandis, Zorica Jovanović v. Serbia, no. 21794/08, § 68-70, ECHR 2013, and Bédat v. Switzerland [GC], no. 56925/08, § 73, 29 March 2016)? Was there a violation of Article 8 of the Convention, taken on its own or in conjunction with Article 13, as a result of the authorities’ refusal to institute criminal proceedings into the applicants’ allegations?
The parties are invited to provide birth certificates and any other relevant documents regarding the children’s identities as well as the information on their current location and custody.
5. Did the applicants have at their disposal any effective domestic remedies as required by Article 13 of the Convection to complain about the above? If so, did they properly exhaust them?
6. Was there a violation of Article 14 of the Convention, taken in conjunction with Articles 3, 4 and 8, on account of allegedly passive attitude adopted by the Russian authorities regarding the above given the applicants’ allegations of discrimination on the grounds of their gender, ethnicity and social position?
7. The Government are requested to inform the Court of the current state of criminal proceedings instituted upon the applicants’ complaints and to produce a copy of the entire investigation file.
APPENDIX
No.
Application
no.
Lodged on
Applicant name
Year of birth
Nationality
Represented by
71671/16
25/11/2016
F.M.
1988
Kazakhstan
A.M.
1989
Kazakhstan
G.N.
1980
Uzbekistan
B.K.
1978
Uzbekistan
MEMORIAL HUMAN RIGHTS CENTRE
40190/18
15/08/2018
N.I.
1995
Kazakhstan
MEMORIAL HUMAN RIGHTS CENTRE