CEDH · CASELAW;COMMUNICATEDCASES;ENG — 20 décembre 2021

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s6B505E72 { margin:0pt; padding-left:0pt } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .s2044A09A { margin-left:6.51pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-weight:normal; font-style:italic } .sAE6FB95D { margin-top:14pt; margin-left:32.01pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-family:Arial; font-style:italic } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s9CB19847 { margin-top:6pt; margin-left:28.35pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } Published on 10 January 2022   FOURTH SECTION Application no. 11829/16 Hasmik KHACHATRYAN against Armenia lodged on 22 February 2016 communicated on 20 December 2021 STATEMENT OF FACTS 1.     The applicant, Ms Hasmik Khachatryan, is an Armenian national who was born in 1986 and lives in Yerevan. She is represented before the Court by Ms N. Galstyan, a lawyer practising in Yerevan. The circumstances of the case 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 3.     In 2004 the applicant married S. The couple lived in Gandzak village in Gegharkunik region. They had two children, a daughter and a son, born in 2006 and 2007 respectively. 4.     According to the applicant, her relationship with S. gradually deteriorated because he abused alcohol and, under its influence, started arguments, harassed and threatened her, and sometimes resorted to physical violence against her. 5 .     On 5 May 2013 S. punched the applicant and hit her in the head. As a result, she fell while S. continued to hit and kick her. Thereafter S. hit the applicant with a chair on different parts of her body. According to the applicant, she lost consciousness from the shock of the pain. She regained consciousness from the blows which she had continued to receive. It appears that the domestic authorities were not notified about that incident. 6.     On an unspecified date in June 2013 S. pressed a burning cigarette onto the applicant’s left forearm during a fight. He also threatened to “gouge her eyes out” if he suspected that the applicant had committed adultery. The applicant did not report that incident either. 7 .     On 16 June 2013 S. hit the applicant in the right ear, knocked her down and severely beat and kicked her in the face and body. Shortly after this incident, the applicant fled to her father’s house for a night. 8.     On 17 June 2013 the applicant was admitted to Armenia Medical Centre where she was provided with medical assistance and her injuries were recorded. She refused to undergo inpatient treatment as recommended by the medical staff. The hospital then informed the police about the admission of the applicant and her injuries. 9.     On the same date the applicant sought support from an organisation specialised in protecting victims of domestic violence which provided her with assistance, psychological counselling and advice on how to deal with S. She was then given shelter by the same association for a period of one month. 10.     On 24 July 2013, based on information received from Armenia Medical Centre, the Gegharkunik Regional Police Department instituted criminal proceedings against S. for inflicting bodily harm on the applicant. 11.     On an unspecified date the applicant underwent a forensic medical examination. According to the ensuing expert report, the applicant had sustained a contusion to her head, nasal bone fracture, a closed craniocerebral trauma, rupture of the eardrum, injury to the left elbow ossicle and haemorrhage in the left forearm which had been caused by a hard, blunt object. It was noted that the injuries could have been inflicted on 5 May and 16 June 2016 as a result of violence (see paragraphs 5 and 7 above). The report concluded that the applicant’s injuries amounted to minor bodily harm. 12.     On 16 July 2013 the applicant informed the Head of the Gegharkunik Regional Police Department that S. had threatened her with revenge upon her return home. The applicant therefore requested that her questioning be carried out in Yerevan. It appears that there was no response. 13.     On 1 October 2013 a confrontation was held between the applicant and S. at Gavar Police Department, Gegharkunik Region. According to the applicant’s submission, throughout the entire confrontation S. had behaved arrogantly, insulting her and threatening her with revenge if she continued to complain. The investigator did not attempt to rebuke S. Furthermore, a certain V., a police officer working in the same police department who was also S.’s cousin, disrupted the normal conduct of the confrontation by behaving improperly towards the applicant. In these circumstances, the applicant was obliged to stop the confrontation and leave the police station. 14 .     On 11 October 2013 the applicant submitted an application to the Prosecutor General, the Chief of Police and the Head of the Criminal Investigation Unit of the Police, requesting the transfer of the investigation of the criminal case to another investigative body. She argued that the investigators of Gegharkunik Police Department were biased due to S.’s and his relatives’ influence within the territory of Gegharkunik region. The outcome of this request is unknown. 15 .     On 5 October 2013 S. met the applicant outside the school where their daughter was studying. According to the applicant, S. hit her in the face, shouting swear words and insulting her. The applicant reported the incident to the Marash Police Department in Yerevan, seeking to have criminal proceedings instituted against S. 16 .     On 15 November 2013 the investigator refused to open a criminal case for lack of corpus delicti in S.’s actions on the grounds that S.’s actions, namely a single blow, could not be legally qualified as an offence of battery. 17.     On 27 November 2013 the bill of indictment was finalised and the case was sent to the Gegharkunik Regional Court (“the Regional Court”) for trial. 18.     On 19 December 2013 the applicant requested the Regional Court to place S. in detention. She argued that there was a real and immediate risk that S. would reoffend against her and hinder the proper conduct of the trial. It appears that this request was rejected by the Regional Court. 19.     On 29 January and 24 February 2014 the applicant reiterated her request of 19 December 2013. It appears that the Regional Court did not follow up her requests. 20.     In the course of the trial the applicant lodged a civil claim against S. seeking compensation for damage to health in the amount of 1,000,000 Armenian drams (AMD) (approximately 1,850 euros (EUR)). In addition, she claimed AMD 3,000,000 (approximately EUR 5,550) in respect of non ‑ pecuniary damage. As to non-pecuniary damage, the applicant specified that she had suffered serious stress as a result of being beaten up and ill ‑ treated by S. She further argued that S.’s offensive words and actions had humiliated her, damaging her honour and dignity. 21.     It appears that the Regional Court decided to adjourn the examination of the applicant’s civil claim and deal with it in the judgment. 22.     In a judgment of 22 December 2014 the Regional Court found S. guilty under Article 119 § 1 of the Criminal Code (torture – see paragraph   27 below), and convicted him to one year and six months’ imprisonment. At the same time, it decided to exempt S. from serving his sentence by applying the Amnesty Act adopted by the National Assembly on 3 October 2013 (see paragraph   28 below). The Regional Court rejected the applicant’s civil claim as manifestly ill-founded. In particular, it stated that S. had already paid AMD   300,000 (approximately EUR   600) in compensation to the applicant in respect of pecuniary damage. As to non ‑ pecuniary damage, it found that the domestic legislation did not envisage compensation for non-pecuniary damage within the framework of the criminal proceedings. 23.     The applicant lodged an appeal. She argued, inter alia , that granting S. amnesty had been unjustified, since he had failed to compensate for the damage inflicted on her. She further submitted that the Regional Court had unlawfully rejected her civil claim for compensation in respect of non ‑ pecuniary damage. 24.     On 17 April 2015 the Criminal Court of Appeal dismissed the applicant’s appeal and upheld the Regional Court’s judgment in full. 25.     The applicant lodged an appeal on points of law. 26.     On 20 August 2015 the Court of Cassation declared the applicant’s appeal on points of law inadmissible for lack of merit. A copy of that decision was served on the applicant on 26 August 2015. Relevant domestic law Criminal Code (as in force at the material time) 27 .     Article 119 § 1 states that torture (the intentional infliction of severe physical pain or mental suffering on a person) is punishable by up to three years’ imprisonment. Act of Amnesty adopted by the National Assembly on 3 October 2013 28 .     By this act the National Assembly of Armenia decided, inter alia , to exempt persons who had been sentenced to a maximum of three years of imprisonment from serving their sentence (Section 1(1)). Civil Code 29 .     Under Article 17 § 1, a person whose rights have been violated may claim full compensation for the damage suffered, unless the law or contract provides for a lower amount of compensation. Damages are the expenses borne or to be borne by the person whose rights have been violated, in connection with restoring the violated rights, loss of property or damage to it (material damage), including loss of income, as well as non-pecuniary damage (Article 17 § 2). Under Article 17 § 4, non-pecuniary damage may only be compensated in the cases provided for by the Civil Code (see paragraph 30 below). 30 .     Article 162.1 § 2 provides that a person has the right to claim compensation for non-pecuniary damage if it has been established by the prosecuting authority or a court that, as a result of a decision, action or omission of a State or local governance body or one of its officials, a person’s right guaranteed by, inter alia , Article 3 of the Convention has been violated. 31.     Since 1 November 2014 Article 17 § 2 (see paragraph 29 above) has included non ‑ pecuniary damage in the list of types of civil damage for which compensation can be claimed in civil proceedings. As a result, the Civil Code was supplemented by new Article 162.1 2 (see paragraph 30 above), which states the procedure for claiming compensation for non-pecuniary damage from the State for a violation of certain rights guaranteed by the Armenian Constitution and the Convention. Until the introduction of further amendments on 30 December 2015 (in force from 1 January 2016), compensation in respect of non-pecuniary damage could be claimed from the State where it had been established by a judicial ruling that a person’s rights guaranteed by Articles 2, 3 and 5 of the Convention had been violated, as well as in cases of wrongful conviction. As a result of the amendments that entered into force on 1 January 2016, compensation for non-pecuniary damage could be claimed from the State for the finding of a breach of a number of other rights, including those guaranteed under Article 8 of the Convention.   Relevant international material Recommendation Rec   (2002)5 of 30   April 2002 of the Committee of Ministers of the Council of Europe to member States on the protection of women against violence 32 .     The Committee of Ministers’ Recommendation Rec (2002)5 of 30   April 2002 defined the term “violence against women” as “any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty” (Appendix, § 1). In the sphere of criminal law, it established that member States should “provide for appropriate measures and sanctions in national legislation, making it possible to take swift and effective action against perpetrators of violence and redress the wrong done to women who are victims of violence” (§ 35). As regards judicial proceedings, member States should in particular “make provisions to ensure that criminal proceedings can be initiated by the public prosecutor” (§   39) and “ensure that measures are taken to protect victims effectively against threats and possible acts of revenge” (§ 44). Among additional measures with regard to violence within the family, member States should “classify all forms of violence within the family as criminal offences” (§ 55) and “enable the judiciary to adopt, as interim measures aimed at protecting the victims, the banning of a perpetrator from contacting, communicating with or approaching the victim, residing in or entering certain defined areas” (§   58 (b)). The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence 33.     The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (“the Istanbul Convention”) was released for signature on 11 May 2011 and entered into force on 1 August 2014. Armenia signed the Istanbul Convention on 18   January 2018 but has not yet ratified it. 34.     The definition of “violence against women” in Article 3 of the Istanbul Convention is identical to that in paragraph 1 of Recommendation Rec   (2002)5 (see paragraph   32 above). “Domestic violence” is defined to include “all acts of physical, sexual, psychological or economic violence that occur within the family or domestic unit or between former or current spouses or partners, whether or not the perpetrator shares or has shared the same residence with the victim”. 35 .     Article 30 of the Istanbul Convention provides as follows: “ 1. Parties shall take the necessary legislative or other measures to ensure that victims have the right to claim compensation from perpetrators for any of the offences established in accordance with this Convention. 2. Adequate State compensation shall be awarded to those who have sustained serious bodily injury or impairment of health, to the extent that the damage is not covered by other sources such as the perpetrator, insurance or State-funded health and social provisions. This does not preclude Parties from claiming regress for compensation awarded from the perpetrator, as long as due regard is paid to the victim’s safety. 3. Measures taken pursuant to paragraph 2 shall ensure the granting of compensation within a reasonable time.” Report of the Commissioner for Human Rights of the Council of Europe of 29 January 2019 following her visit to Armenia from 16 to 20 September 2018 36 .     The relevant part of the report reads as follows: “27. The issue of violence against women and domestic violence has already been the topic of a report on Armenia of the Commissioner’s predecessor, published in 2015. Since 2015, Armenia has made significant advances in creating and improving the legislative framework to combat domestic violence. Major legislative action was accompanied by awareness-raising campaigns, bringing about public debate and a perceptible shift of attitudes on the issue of domestic violence. Despite these welcome developments and very laudable efforts, domestic violence remains a serious, widespread, and to some extent still underestimated phenomenon in Armenia.” COMPLAINTS 37.     Relying on Articles 3 and 8 of the Convention, taken alone and in conjunction with Article 13, the applicant complains of the State’s failure to protect her from domestic violence. In particular, despite her reports of her husband’s continued violent behaviour during the investigation, the authorities failed to take any protective measures. She further complains under the same provisions that the State failed to establish an adequate legal framework affording effective prosecution of her former husband who was moreover absolved from serving his sentence by the granting of an amnesty. Lastly, the applicant complains that she did not have at her disposal an effective legal avenue to seek from S. compensation with respect to the non ‑ pecuniary damage which she had suffered as a result of the treatment inflicted by him. QUESTIONS TO THE PARTIES 1.     Did the authorities discharge their obligations under Articles 3 and 8 of the Convention, taken alone or in conjunction with Article 13, to protect the applicant against the violence inflicted on her by S. and to conduct an effective investigation in that regard?   In particular,   (a)     Did the authorities discharge their obligation to establish and apply effectively a legislative framework for punishing all forms of domestic violence and providing sufficient safeguards for victims (see Volodina v.   Russia , no. 41261/17, § 77-79, 9 July 2019, and Munteanu v. the Republic of Moldova , no. 34168/11, § 62, 26 May 2020)?   (b)     Did the authorities discharge their obligation to take the reasonable measures that might have been expected of them in the light of the applicant’s reports of further instances of violence during the investigation of the criminal case (see B. v. the Republic of Moldova , no. 61382/09, § 53, 16 July 2013, and Volodina , cited above, §§ 77 and 86)?   (c)     Having regard, inter alia , to the fact that S. was exempted from serving his sentence under the Amnesty Act, did the authorities discharge their obligation to conduct an effective investigation into all instances of ill-treatment which had been reported to them, including those which allegedly had taken place during the investigation of the criminal case against S., and to bring him to account (see Pulfer v. Albania , no. 31959/13, § 83, 20   November 2018, and Volodina , cited above, §§ 77 and 92)?   2.     Having regard to the impossibility for the applicant to claim, under domestic law, compensation for non-pecuniary damage from S., could the State be said to have complied with its positive obligations under Article   3 of the Convention?