CASE OF HOVHANNISYAN v. ARMENIA
Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos
5. The applicant was born in 1958 and lives in Yerevan. 6. She is a civil servant working for the Ministry of Environmental Protection (hereinafter “the Ministry”) as a State inspector. She suffers from cardiac problems, including a heart rhythm disorder. 7. According to the applicant, on 10 January 2012 H.A., her head of division, and A.K., his deputy, used violence against her in H.A.’s office. In particular, they assaulted her, grabbed her hands, insulted her and forcibly took a document concerning her which she had taken in to them in order to write down her objections. As a result of the violence she fainted, sustained bodily injuries, received numerous bruises on her hands and was seriously humiliated. 8. On 12 January 2012 the applicant filed a written report with the head of staff of the Ministry, giving a detailed account of what had happened. She stated, inter alia, that she had returned her appraisal report for the second half of 2011 to H.A. since she had disagreed with the assessment received. On 10 January 2012 she had been informed by one of her colleagues that H.A. wanted to see her in his office. During their meeting, H.A. had given her the appraisal report and asked her why she had not signed it. She had responded that she wanted to discuss it. H.A. had refused to provide any clarifications, stating that he was the one to make decisions and would submit the report to the relevant division without her signature. H.A. had then ordered her to return the appraisal report, which she had refused to do, stating that she would write down her objections, sign the document and then return it to him. When she had been about to leave, H.A. had immediately closed and locked the door to his office and had started to approach her, shouting that she was a thief and had stolen a document from his office. Using physical violence and personal insults, he had tried to take the papers from her. After she had called for help, A.K. had entered the office and instead of diffusing the situation had also insulted her and ordered her to hand him the documents. The two of them had grabbed her hands, causing her serious pain, and forcibly taken away the papers. As a result of the stress and pain she had fainted for a short period of time, after which she had been told that she could leave as there was nothing else to discuss. She concluded by stating that as a result of the violent behaviour of H.A. and A.K. she had suffered injuries, health problems and serious distress. She requested that the relevant measures be taken in accordance with the law. 9. After the incident, the applicant felt unwell and underwent a medical examination. She was diagnosed with acute bronchitis and WolffParkinson-White syndrome (a heart rhythm disorder) and was put on sick leave from 13 to 27 January 2012. 10. On 14 January 2012 the applicant reported the incident to the police, stating that on 10 January 2012 she and H.A., her head of division, had had an argument during which he had been violent and caused her bodily harm. She made a statement giving an account of events similar to that in her report to the head of staff of the Ministry. 11. The investigator ordered a forensic medical examination the same day to determine whether the applicant had any bodily injuries and, if so, their nature, origin, seriousness and the time and manner of their infliction. 12. On 15 January 2012 H.A. gave a statement to the police. In particular, he stated that the applicant had refused to return her appraisal report to him, after which he had left his office, closed the door and called A.K., asking him to come to see him with the other employees. During that time the applicant had kept shouting and swearing. She had called their superior to say that he had locked her in. He denied harassing the applicant either physically or verbally and said that she had used foul language. 13. On the same day A.K. made a statement and similarly denied using violence against the applicant. Between 16 and 25 January 2012 a number of the applicant’s colleagues who were at work on the day of the incident were questioned and denied that H.A. and A.K. had been violent towards the applicant. 14. On 18 January 2012 the forensic medical examination was completed. The relevant parts of the expert’s opinion read as follows: “Complaints: At present [the applicant] complains of a nervous breakdown. Results of personal examination: An irregularly shaped, non-homogenous, greenishyellow ecchymosis measuring 6 x 2 cm is present on the mid-third of the inner right upper arm. Two similar round-shaped ecchymoses are present on the inner surface of the same area measuring 1 cm in diameter: on the mid-third of the inner left upper arm measuring 1 cm in diameter; on the lower third of the inner left upper arm measuring 2 x 1 cm and 1.5 x 1.2 cm and on the mid-third of the outer left forearm measuring 2.5 x 1.5 cm. Conclusion: [The applicant’s] bodily injuries in the form of ecchymoses [around] the right and left upper arms and the left forearm have been inflicted with blunt, hard objects possibly in the period mentioned; [the injuries] taken separately as well as all together do not contain elements of [short-term] damage to health.” 15. On 24 January 2012 the investigator took an additional statement from the applicant. She stated that she had no objections to the opinion of the forensic medical expert and intended to pursue her complaint. 16. On 25 January 2012 the investigator took another additional statement from the applicant. The relevant parts read as follows: “Question: In the course of collecting evidence H.A. and A.K. said that they did not hit you and did absolutely not grab your hands. What can you say about this? Answer: ... I do not know why H.A. and A.K. said that but it is logical that they would deny committing such acts. I will reiterate once again that H.A. and A.K. pulled and pushed me and grabbed my hands thus causing me injuries.” 17. On 27 January 2012 the investigator took a further additional statement from the applicant. She stated: “I inform you that since the time I [went] to the police ... [H.A.] and [A.K.] have not even apologised; moreover, they have created such an atmosphere that it is impossible to work, since other employees ignore me and avoid contact with me for fear of losing their jobs. Since H.A. and A.K. are continuing this kind of behaviour, abusing their official capacity, in the circumstances I am unable to reconcile with them. I am complaining and requesting that H.A. and A.K. be prosecuted. I also wish to add that because of their actions I have had health problems and as a result have been on sick leave from 13 to 27 January ...” 18. On 28 January 2012 H.A. was questioned again and stated, inter alia, that the applicant had made a false statement. He had never harassed her or grabbed her hands and had remained seated in his chair until she had left. As for the injuries discovered on the applicant’s body, H.A. stated that he had never touched her and did not know how they had been inflicted. 19. It appears that no decision was taken by the investigator for about a month. 20. On 24 February 2012 the applicant sent a written request to the head of the Marash Division of the Central Police Department for criminal proceedings to be brought against H.A. and A.K. She stated in her request, inter alia, that she had been informed of the provisions of Article 183 of the Code of Criminal Procedure, under which criminal proceedings could only be instituted on the basis of a complaint by her. She further stated that she had not reconciled with H.A. and A.K. and was calling for them to be prosecuted. On the same date the investigator took an additional statement from the applicant. A further additional statement was taken from her on 27 February 2012. 21. On 1 March 2012 the prosecutor instructed the investigator to refuse to bring criminal proceedings against H.A. and A.K. on the grounds that no crime had been committed. It was suggested that the applicant had perceived the events subjectively and that her supervisors had never used violence against her. 22. On 5 March 2012 the investigator refused to bring criminal proceedings against H.A. and A.K. for lack of corpus delicti in their actions. The decision stated, in particular, that the applicant had made unclear and contradictory statements with regard to the incident. It further stated that the evidence collected had revealed that on 10 January 2012 first H.A. and then A.K., who had gone to the latter’s office, had tried to calm the applicant down, as she had been insulting H.A. During the incident A.K. had caught hold of her hand and taken the document that she had taken from H.A. Intentional infliction of bodily harm was punishable under Article 118 of the Criminal Code, but negligent infliction of bodily harm was not punishable. In the case at hand the applicant’s injuries had been caused by H.A. and A.K.’s negligence; it had not been established that they had intentionally caused her injuries. 23. On 13 March 2012 the applicant lodged a complaint with the prosecutor against the investigator’s decision. She argued, inter alia, that contrary to what was stated in the decision she had described in detail how she had been treated. In particular, she had submitted that first H.A. had grabbed her hands using force, harassed her and locked her in his office so that she could not leave. Thereafter A.K. had come in and also assaulted her. The applicant complained that the conclusion in the investigator’s decision, according to which H.A. and A.K. had caused her injuries by negligence, could not be substantiated and pursued the purpose of exonerating public officials from responsibility. She further complained that, as a result of deliberate violence on the part of H.A. and A.K., she had experienced severe emotional suffering as a woman since her superior had debased her and caused her serious bodily harm without good reason, right in the workplace. In addition, the applicant stated that the incident had taken place in the workplace and naturally all the witnesses questioned by the investigator were the subordinates of H.A. and A.K. If criminal proceedings were instituted, they would be questioned as witnesses and warned about criminal liability for making false statements. 24. H.A. also lodged a complaint against the investigator’s decision, claiming that it had not been established that he or A.K. had ever hit the applicant. 25. On 15 March 2012 the prosecutor dismissed the applicant’s complaint and allowed H.A.’s complaint. In particular, the prosecutor upheld the investigator’s refusal to institute criminal proceedings but changed the grounds for it, stating that no crime had been committed involving H.A. and A.K. The decision stated that no evidence had been obtained that would establish that H.A. and A.K. had inflicted injuries on the applicant, except her own unspecified and contradictory statements. As regards the applicant, the decision stated, inter alia, that because the stress she had suffered as a result of the incident in H.A.’s office she had perceived and described what had happened in a subjective manner. In these circumstances, her contradictory statements did not correspond to the evidence gathered but that did not create grounds for prosecuting her for false accusations. 26. On 4 April 2012 the applicant lodged a complaint with the Kentron and Nork-Marash District Court (hereinafter “the District Court”), requesting that criminal proceedings be instituted. She reiterated her previous arguments and complained, in particular, that the question of her injuries had not been addressed at all in the prosecutor’s decision, which had ignored the results of the forensic medical examination. In the end, it had never been established who had inflicted her injuries. The applicant further complained that the prosecution had relied on the statements of subordinates of those who had committed the offence in question. Their statements could not be considered objective and reliable in view of the serious fear of those concerned losing their jobs. If criminal proceedings were instituted, they would have the procedural status of witnesses and would be warned about criminal liability for making false statements. 27. On 18 May 2012 the District Court dismissed the applicant’s complaint. In doing so, it found that the disputed decision had been lawful, while the applicant’s arguments stemmed from an individual and subjective interpretation of the events in question and the procedural measures undertaken in relation to them. 28. The applicant lodged an appeal against the District Court’s decision. She argued, inter alia, that it had failed to examine her arguments. In particular, the issue of the existence of a number of injuries on her body as established by the forensic medical examination had not been addressed at all. 29. On 12 July 2012 the Criminal Court of Appeal dismissed the applicant’s appeal and fully upheld the District Court’s decision. In doing so, it stated that the applicant had made unclear and contradictory statements about the circumstances of the incident which had not been corroborated by other evidence, namely the statements of H.A., A.K. and others questioned in relation to the incident. 30. On 2 August 2012 the applicant lodged an appeal on points of law. She argued that the decisions of the District Court and the Criminal Court of Appeal had failed to explain the existence of injuries on her body or the fact that H.A. had locked her in his office. She also reiterated her arguments in relation to the refusal to institute criminal proceedings and the unreliability of the statements made by her colleagues. 31. On 6 September 2012 the Court of Cassation declared the applicant’s appeal on points of law inadmissible for lack of merit.