Communicated on 6 October 2015

THIRD SECTION

Application no. 18419/13 Aida HOVHANNISYAN against Armenia lodged on 6 March 2013

STATEMENT OF FACTS

The applicant, Ms Aida Hovhannisyan , is an Armenian national who was born in 1958 and lives in Yerevan. She is represented before the Court by Mr K. Mezhlumyan , a lawyer practising in Yerevan.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant is a civil servant working in the Ministry of Environmental Protection (the Ministry) as a State Inspector. She suffers from cardiac problems, including a heart rhythm disorder.

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, grasped her hands, insulted her and forcibly took away a document concerning her which she had taken in order to write down her objections. As a result of this violence she sustained corporal injuries: she fainted, received numerous bruises on her hands and was gravely humiliated.

On 12 January 2012 the applicant filed a written report with the Head of the Staff of the Ministry giving a detailed account of what had happened. She stated, inter alia , that her appraisal report for the second half of 2011 had been returned to H.A. since she had disagreed with the assessment received. On 10 January 2012 she was informed by one of her colleagues that H.A. would like to see her in his office. During their meeting H.A. gave her the appraisal report and enquired about her reasons for not signing it, to which she responded that she would like to discuss it. H.A. refused to provide any clarifications, stating that he was the one to make decisions and that he would submit the report to the relevant division without her signature. Thereafter H.A. ordered her to return the appraisal report, which she refused to do, stating that she would write her objections, sign the document and would then return it to him. When she was about to leave, H.A. immediately closed and locked the door of his office and 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 tried to take the papers from her. After she called for help, A.K entered the office and instead of calming the situation he also insulted her and ordered her to hand him the documents. The two of them grasped her hands, causing her severe pain, and forcibly took away the papers. As a result of the stress and pain she fainted for a short period of time, after which she was told that she could leave, as there was nothing else to discuss. The applicant concluded that as a result of the violent acts of H.A. and A.K. she had suffered corporal injuries, had health-related problems and had sustained grave moral damage. She requested that relevant measures be taken in accordance with the law.

After the incident the applicant felt unwell and underwent a medical examination. She was diagnosed with acute bronchitis and Wolff ‑ Parkinson-White syndrome (heart rhythm disorder) and was put on sick leave from 13 to 27 January 2012.

On 14 January 2012 the applicant reported the incident to the police stating, in particular, that on 10 January 2012 H.A., her Head of Division, had had an argument with her during which he was violent and caused her physical pain. She made a statement giving an account of the events similar to the one submitted in her report to the Head of Staff of the Ministry.

On the same day a forensic medical examination was assigned. The expert was asked to determine whether the applicant had any corporal injuries and, if so, their nature, origin, gravity and the time and the manner of their infliction.

On 15 January 2012 H.A. gave a statement to the police. In particular, he stated that the applicant had refused to return the appraisal report to him, after which he had left his office, closed the door and called A.K., asking him to come together with all the other employees. During that time the applicant kept shouting, swearing and called their superior, stating that he had locked her in. He denied having harassed the applicant either physically or mentally, stating that she had used foul language.

On the same day A.K. made a statement and similarly denied having used violence against the applicant.

A number of the applicant ’ s colleagues who were at work on the day of the incident were questioned and denied that there had been any acts of violence by H.A. and A.K. towards the applicant.

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 nervous breakdown.

Results of personal examination: An irregularly shaped, non-homogenous, greenish ‑ yellow ecchymosis measuring 6.0 x 2.0 cm is present on the central third part of the inner side of the right upper arm. Two similar round-shaped ecchymoses are present on the inner surface in the same area measuring 1.0 cm in diameter: on the central third part of the inner side of the left upper arm measuring 1.0 cm in diameter; on the lower third part of the inner side of the left upper arm measuring 2.0 x 1.0 cm and 1.5 x 1.2 cm and on the central third part of the outer side of the left forearm measuring 2.5 x 1.5 cm.

Conclusion: [The applicant ’ s] bodily injuries in the form of ecchymoses in the area of the right and left upper arms and the left forearm have been inflicted with blunt, hard objects possibly in the mentioned period, [the injuries] taken separately as well as all together do not contain the elements of light damage to health.”

On 24 January 2012 the investigator took an additional statement from the applicant. She mentioned that she had no objections to the opinion of the forensic medical expert and stated that she intended to pursue her complaint.

On 25 January 2012 the investigator took another additional statement from the applicant. The relevant parts of the record read as follows:

“ Question: In the course of collection of evidence H.A. and A.K. have said that they did not hit you and did absolutely not grasp your hands. What can you say in relation to this?

Answer: ... I do not know the reason for H.A. and A.K. having said that but it is logical that they would deny having committed such actions. I will reiterate once again that H.A. and A.K. pulled and pushed me, grasped my hands thus causing me corporal injuries. ”

On 27 January 2012 the investigator took a further additional statement from the applicant. The applicant stated the following:

“ I inform you that since the moment I applied to the police ... [H.A.] and [A.K.] have not even apologised , moreover, they have created such an atmosphere where 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. continue such behaviour , abusing their official capacity, in such circumstances I am unable to reconcile with them. I complain and request 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 I have been on sick leave from 13 to 27 January ... ”

On 28 January 2012 H.A. was questioned again and stated, inter alia , that the applicant had made a false statement, that he had never harassed her or grasped her hands and that he had remained seated in his chair until she 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.

It appears that no decision was taken by the investigator for about a month.

On 24 February 2012 the applicant sent a written request to the Head of the Marash Division of the Central Police Department seeking institution of criminal proceedings against H.A. and A.K. She stated in her request, inter alia, that she had been informed about the provisions of Article 183 of the Code of Criminal Procedure, according to which criminal proceedings could be instituted only based on her complaint. She further stated that she had not reconciled with H.A. and A.K. and sought their prosecution.

On 5 March 2012 the investigator made a decision to refuse institution of criminal proceedings against H.A. and A.K. for absence 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 come to the latter ’ s office, had tried to calm down the applicant who was insulting H.A. During this incident A.K. had caught hold of her hand and taken the document that she had taken from H.A. Causing physical pain was punishable under Article 118 of the Criminal Code only in case of direct intention; infliction of physical pain by negligence was not punishable. In the given case the infliction of injuries on the applicant by H.A. and A.K. was a consequence of negligence, while it had not been established that they had intentionally caused the applicant ’ s injuries.

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 grasped her hands using force, harassed her and locked her in his office so that she would not be able to 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 was not 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 strong physical pain without any good reason, right at the workplace. Also, the applicant stated that the incident had taken place at the workplace and naturally all the witnesses questioned by the investigator were the subordinates of H.A. and A.K. In case of institution of criminal proceedings these persons would be interrogated in the capacity of witnesses and would be warned about criminal liability for making false statements.

It appears that 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.

On 15 March 2012 the Prosecutor rejected the applicant ’ s complaint and granted that of H.A. In particular, the Prosecutor upheld the investigator ’ s decision to refuse the institution of criminal proceedings but changed the ground for it, stating that no crime had occurred involving H.A. and A.K. In particular, 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 of her stress as a result of the incident in H.A. ’ s office she had perceived and described the circumstances of the incident in a subjective manner. In these circumstances, her contradictory statements did not correspond to the evidence gathered, which fact however did not create a ground for the applicant ’ s prosecution for false accusation.

On 4 April 2012 the applicant lodged a complaint with the Kentron and Nork- Marash District Court (the District Court) seeking institution of criminal proceedings. She reiterated her previous arguments and complained, in particular, that the question of her injuries was not addressed at all in the Prosecutor ’ s decision, which had ignored the results of the forensic medical examination. In the end, it was never 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. The statements of those persons could not be considered objective and reliable in view of their serious fear of losing their jobs. In case of institution of criminal proceedings, those persons would have the procedural status of witnesses and would be warned of criminal liability for making false statements.

On 18 May 2012 the District Court rejected 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.

The applicant lodged an appeal against the District Court ’ s decision. She argued, inter alia , that the District Court 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 results of the forensic medical examination was not addressed at all.

On 12 July 2012 the Criminal Court of Appeal rejected 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 were not corroborated by other evidence, namely the statements of H.A., A.K. and those of persons questioned in relation to the incident.

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 provide any explanation for the existence of injuries on her body and for 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.

On 6 September 2012 the Court of Cassation declared the applicant ’ s appeal on points of law inadmissible for lack of merit.

B. Relevant domestic law

1. The Criminal Code (in force since 1 August 2003)

Article 118 provides that beating or other violent actions that have not generated the consequences envisaged by Article 117 (intentional infliction of bodily harm which causes short-term deterioration of health) shall be punishable by a fine in the maximum amount of one hundred times the fixed minimum wage or a maximum of two months ’ detention.

According to Article 338 § 1, making false statements by a witness or victim in criminal proceedings shall be punishable by a fine from one hundred to three hundred times the fixed minimum wage or a maximum of two months ’ detention or a maximum of two years ’ imprisonment.

According to Article 339 the refusal to make a statement on the part of a witness or victim shall be punishable by a fine from fifty to one hundred times the fixed minimum wage or a maximum of two months ’ detention.

2. The Code of Criminal Procedure (in force since 12 January 1999)

Article 180 § 1 provides that reports on crimes must be examined and decided upon without delay and within a period of ten days if it is necessary to check the lawfulness of the reason and the sufficiency of the grounds for the institution of proceedings. During the mentioned periods of time, inter alia , explanations can be requested and forensic examinations assigned (Article 180 § 2).

According to Article 183 § 1, criminal proceedings in relation to cases envisaged by, inter alia , Article 118 of the Criminal Code are instituted only on the basis of the victim ’ s complaint and are subject to termination in the case of the latter ’ s reconciliation with the suspect or the accused.

According to Article 206 § 4, before the interrogation the investigator verifies the identity of the witness, states in relation to which criminal case he or she has been summoned and warns about the obligation to state everything to his or her knowledge in relation to that case as well as about criminal liability for making false statements and for refusing to make or avoiding making a statement.

COMPLAINTS

The applicant complains under Article 3 of the Convention that she was deliberately ill-treated at the workplace by her superiors, public servants, and that the authorities failed to carry out an effective investigation into the matter.

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention?

2. Having regard to the procedural protection from inhuman or degrading treatment, was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?