CEDH · CASELAW;CLIN;ENG — 12 décembre 2024

.s3ABFC313 { font-size:10pt } .sD4B5322E { margin-top:12pt; margin-bottom:12pt; text-align:justify } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s97EB40D9 { margin-top:12pt; margin-bottom:14pt; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .s8B6C6D43 { margin-top:0pt; margin-bottom:0pt; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } Legal summary December 2024 Hasmik Khachatryan v. Armenia - 11829/16 Judgment 12.12.2024 [Section V] Article 3 Positive obligations Failure to respond adequately to serious acts of domestic violence and enabling the victim to claim compensation in respect of non-pecuniary damage from the perpetrator: violation Facts – In May and June 2013 the applicant’s former spouse, S.H. came to the family home and assaulted the applicant causing her a number of injuries. Following the latter incident, she was treated at a hospital which reported her injuries to the Yerevan police. However, she refused to lodge a criminal complaint and make a statement. A forensic medical report ordered by the local police established she had suffered a concussion, a broken nose, trauma to the head, a ruptured eardrum, and haematomas on the left arm and on the hip caused by a hard, blunt object. In July 2013 the applicant lodged a criminal complaint in relation to the two incidents and criminal proceedings were instituted against S.H. A second forensic examination found, in addition to the injuries found previously, multiple scars on her scalp, left wrist and shin. In October 2013 the applicant interrupted and left a formal confrontation with S.H., complaining that he had insulted and threatened her throughout. She filed a complaint in this regard requesting that the criminal investigation be transferred elsewhere. A month later, S.H. hit her outside their daughter’s school, shouted swear words and insulted her, but the police refused to open a criminal case. S.H was charged and then indicted with aggravated torture of a person who was “otherwise dependent” on the perpetrator (Article 119 § 2 (3) of the former Criminal Code). However, the trial court reclassified the charge and convicted S.H. of   the non-aggravated form of torture (defined as “intentional infliction of severe pain, physical or mental suffering on a person”) (Article 119 § 1 of the above code) finding no situation of dependency had existed. A one‑and‑a‑half‑year prison sentence was imposed which S.H. was exempted from serving under the Amnesty Act of 3 October 2013. During the trial the applicant made several unsuccessful requests that S.H. be placed in detention on account of his improper behaviour throughout the criminal proceedings, including continued beatings and harassment, and threatening her both in person and through relatives. She also unsuccessfully lodged a civil claim against him, seeking compensation in respect of both pecuniary damage and non-pecuniary damage for emotional and psychological suffering sustained due to his ill-treatment. On appeal the first instance court’s judgment was upheld. Law – Article 3: (1) Whether the requisite threshold of severity was reached – The treatment inflicted on the applicant by S.H. in the incidents of May and June, which had caused her a number of injuries, had attained the necessary threshold of severity to fall within the scope of Article 3. Although S.H. had been convicted of “torture” as defined in the domestic law at the material time, the Court did not find it necessary to determine whether the treatment inflicted on the applicant might be characterised as torture under Article 3. In so far as her treatment by S.H. throughout the criminal proceedings was concerned, on a number of occasions during the investigation and the trial, the applicant had sought protection stating that S.H. had been threatening her to stop her from giving evidence against him. In view of the applicant’s previous treatment by S.H., that threatening behaviour had caused her to genuinely fear a repetition of the violence for an extended period of time. At some point during the criminal proceedings those threats had in fact materialised, when S.H. had insulted and hit her. The indifferent attitude of the authorities, which had offered the applicant no protection, must have exacerbated the feelings of anxiety and powerlessness that she had been experiencing because of S.H.’s threatening behaviour. The unpredictable escalation of violence and uncertainty about what might happen to her must have increased the applicant’s vulnerability and put her in a state of fear and emotional and psychological distress. The foregoing had been sufficiently serious to reach the level of severity under of Article 3 triggering the authorities’ positive obligation under that provision.   (2) Whether the domestic authorities discharged their positive obligations – (a) The obligation to establish legal framework – The events at issue, including the criminal proceedings in question, had taken place while the former Criminal Code had been still in force. (i) Substantive law and its interpretation by the domestic courts – At the material time, no legislation specifically addressed violence occurring in a family context and neither the concept of “domestic violence” nor any equivalent thereof had been defined or mentioned in any form in the then legislation. Domestic violence had not been a separate offence under the former Criminal Code, nor had it been specifically criminalised as an aggravating element of any other offence. Hence, no distinction was made between domestic violence and other forms of violence against the person, and it was dealt with under provisions on causing harm to a person’s health or other related provisions. Therefore, the criminal-law provisions at the time had not adequately covered the many forms which domestic violence took. The term “otherwise dependent” under Article 119 § 2 (3) had been too vague and had left unfettered discretion, resulting in an interpretation by the domestic courts in the applicant’s case which had completely ignored the domestic violence element. (ii) Protective measures – The general protective measures available to persons participating in criminal proceedings under Article 98 of the former Code of Criminal Procedure had been clearly neither equivalent nor comparable to the requisite protective measures in the context of domestic violence in line with the relevant requirements of international law and the corresponding practice of the majority of Council of Europe member States. (iii) Conclusion as regards the legal framework – Accordingly, the legislative framework then in force had fallen short of the requirements inherent in the State’s positive obligation to establish and effectively apply a system punishing all forms of domestic violence and providing sufficient safeguards for victims. The Court took note of the subsequent adoption in 2017 of the Law on the prevention of violence within the family, protection of victims of violence within the family and restoration of peace within the family. (b) Obligation to adequately respond to the report of domestic violence – Although in June 2013 the applicant had refused to make a statement, the Yerevan police had promptly notified the local police and referred the case to them. On a number of occasions during the investigation and the trial the applicant had informed the authorities about S.H.’s threatening behaviour and her consequent fears for her safety and had asked for protection from him. She had repeated her request when giving evidence before the trial court. On at least three occasions during the trial she had also asked S.H. to be placed in detention, referring to his improper behaviour throughout the criminal proceedings, including the fact that he was continuing to beat, harass and threaten her. Accordingly, the domestic authorities had been aware, or ought to have been aware, of the risk to the applicant of further violence in the course of the criminal proceedings against S.H., including his trial, but had failed to comply with their obligation to assess the risk of the recurrence of such violence and take adequate and sufficient measures to protect her either “immediately” or at any other time. In particular, the authorities had failed to conduct an autonomous, proactive and comprehensive risk assessment and the law-enforcement authorities had showed no awareness of the specific character and dynamics of domestic violence when dealing with the applicant’s complaints. Thus, the authorities at different stages of the criminal proceedings had remained totally passive and had not taken any protective measures to prevent further incidents of violence against the applicant. Moreover, the authorities had failed to discharge their obligation to take measures to protect the applicant from further violence during the criminal proceedings, even within the scope of the existing inadequate legal framework. As a result, she had been denied effective protection against violence. The Government’s objection as to non-exhaustion of domestic remedies, which had been joined to the merits, was therefore dismissed. (c) Procedural obligation as regards the imposed criminal sanction – The domestic courts had adopted a purely formalistic approach to the circumstances in which the applicant had suffered ill-treatment and had refused to take into account a number of relevant factors for the overall assessment of the case and the sentencing process. Thus, it could not be said that the reclassification of the charged offence and the consequent imposition of a more lenient sentence had taken place following careful scrutiny of all the relevant considerations related to the case. In such a case that had concerned several incidents of serious ill-treatment resulting in both physical and undoubtedly long-term psychological damage to the applicant, the Court found it concerning that the domestic courts, having completely ignored the context of domestic violence, had reclassified the offence as its non‑aggravated form which had carried a significantly lower penalty, imposed on S.H. a sentence at the lower end of the range of applicable penalties for the reclassified offence, and then exempted him from serving even that sentence, thereby completely removing the deterrent effect of the criminal-law framework. Such an approach might be indicative of a certain leniency towards punishing violence against women, instead of communicating a strong message that such violence would not be tolerated. It might further discourage victims from reporting such acts – already an issue of significant concern in Armenia. Accordingly, the way the criminal-law mechanisms had been implemented, specifically the application of the amnesty, had been defective to the point of constituting a breach of the respondent State’s positive obligations under Article 3. Therefore, the respondent State had failed to discharge its procedural obligation to respond adequately to the serious acts of domestic violence suffered by the applicant. (c) Compensation in respect of non-pecuniary damage – (i) Whether there is a positive obligation under Article 3 to enable a victim of domestic violence to claim compensation in respect of non‑pecuniary damage from the perpetrator – There were no objective reasons that an obligation to enable persons to seek compensation for non-pecuniary damage where death has been caused by a private individual - an obligation read into Article 2 - should not also be laid down in Article 3, enabling a victim of domestic violence to seek compensation for non-pecuniary damage from the perpetrator. The measures developed in the Court’s case-law relating to domestic violence for ensuring protection and deterrence could not by themselves wipe away the psychological harm suffered by the victims or practically assist their recovery from their experiences. Indeed, enabling the victims of domestic violence to seek compensation for non-pecuniary damage from the perpetrator was one way of ensuring that the States’ response took into account the full extent of the harm, including the psychological aspect of ill-treatment suffered by them. Accordingly, the Court concluded that Article 3, interpreted in the light of its object and purpose and in a way that rendered its safeguards practical and effective, laid down a positive obligation to enable the victims of domestic violence to claim compensation in respect of non-pecuniary damage from the perpetrators directly, or indirectly through the State concerned. That conclusion was further reinforced by the relevant international instruments and an indication of a developing consensus between the Contracting States on providing domestic violence victims with legal means of claiming such compensation. (ii) Compliance – The applicant had stated in her civil claim that she had been obliged to make reference to Article 1087.1 of the Civil Code relating to claims for defamation and insult, as that was the only legal means of seeking compensation from a private party for non-pecuniary damage. It was however clearly not applicable to her claim. Although she had made it clear that her claim had related to her emotional and psychological suffering caused by S.H.’s ill-treatment, and in her appeal had made reference to that provision solely for indicative purposes as regards the amount claimed,   the domestic courts had examined her civil claim in the light of the general case-law on defamation and insult and had formally dismissed the part concerning compensation for non-pecuniary damage for lack of substantiation. However, as the domestic law did not enable persons to claim compensation for non‑pecuniary damage from private individuals, in reality, they could not even examine it, let alone grant it. Accordingly, the unconditional legislative restriction that had prevented the applicant from obtaining an enforceable award of compensation against S.H. for the non-pecuniary damage which she had suffered had been in breach of the respondent State’s positive obligation. Conclusion : violation (unanimously). Article 41: EUR 24,000 in respect of non-pecuniary damage; claim for pecuniary damage dismissed. (See also Volodina v. Russia , 41261/17, 9 July 2019, Legal Summary ; Kurt v. Austria [GC], 62903/15, 15 June 2021, Legal Summary ; Tunikova and Others v.   Russia , 55974/16 et al., 14 December 2021, Legal Summary ; A.E. v. Bulgaria , 53891/20, 23 May 2023, Legal Summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .