Inhumane and degrading treatment in the workplace: a first for the European Court of Human Rights?

This guest post was written by Cathérine Van de Graaf, a PhD student at Ghent University.

In its recent judgment of Hovhannisyan v. Armenia, the European Court of Human Rights ruled that the State authorities failed to conduct a proper investigation into a civil servant’s allegations of ill-treatment by her superiors during an argument over her appraisal report. The main issue at hand was the lack of an independent and effective investigation into the applicant’s claim that she was ill-treated by her superior at work.

Facts

The applicant worked as a state inspector for Armenia’s Ministry of Environmental Protection. She alleges that her head of division and his deputy manager “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” (par. 7). This resulted in her fainting and sustaining numerous bruises on her hands as well as feeling humiliated.

Two days after these events, she submitted a detailed written report of what had happened to the head of staff. In this report, she asserts that she was called in because she had refused to sign her appraisal report without first discussing it with her head of division. When the head of division had refused to consider her concerns, she said she would only sign the document after writing down her objections. She then tried to leave but her superior locked the door and used physical violence to try take the papers away from her. When she called for help, the deputy manager came in and ordered her to hand over the documents as well. Both men then grabbed her hands and forcibly took away the documents which caused her to faint (par. 8).

Two days later, the applicant reported what had happened to the police, giving a statement similar to the one she had submitted to the head of staff of the Ministry. A forensic medical investigation was ordered the same day. Both men made statements denying to have physically or verbally harassed the applicant. A number of colleagues – present at the time of the incident – were questioned but denied seeing any violent behaviour of either men towards the applicant. The medical examination concluded that the applicant’s injuries “have been inflicted with blunt, hard objects possibly in the period mentioned” (par. 11-14). Although some additional statements were collected, the investigator did not make a decision for about a month. Almost one and a half months after the alleged event, the investigator was instructed by the prosecutor to not bring criminal proceedings against either men, suggesting the applicant “perceived the events subjectively and that her supervisors had never used violence against her” (par. 21). The decision stated that both men had tried to calm the applicant down, thus one of them “caught hold of her hand”. The report argued that it could not be established that this action had an intent of causing injury.

The applicant lodged a complaint against the investigator’s decision arguing she had provided a detailed description of her treatment which had caused her severe emotional suffering. She added that the questioned witnesses were subordinates of the men in question, thus only criminal proceedings would allow them to be questioned as witnesses with false statements leading to criminal liability (par. 23). The applicant’s head of division complained about the decision as it had not been established that either he or the manager had hit the applicant. The applicant’s complaint was dismissed whereas the head’s complaint led to a change of the grounds for refusal of the criminal procedure. The decision thus included: “because the stress she had suffered as a result from the incident in H.A.’s office she had perceived and described what had happened in a subjective manner”; adding that her statements were in fact contradictory and did not correspond to the gathered evidence, they did not constitute a ground for persecution for false accusations (par. 25).

National proceedings

Three months after the described event, the applicant lodged a complaint with the District Court reiterating her previous arguments on the forensic medical examination and the objectivity of the witness statements and requesting that criminal proceedings be instituted. This complaint was dismissed affirming that the decision was lawful. In the appeal to the District Court’s decision, the applicant argued that it failed to examine her arguments, especially in regard to the existing injuries. This appeal was dismissed by the Criminal Court of Appeal. She then lodged an appeal on the points of law to the Court of Cassation, which declared her appeal inadmissible due to lack of merit (par. 26-31).

Lacking investigation into the allegation of ill-treatment

The reasoning of the Strasbourg Court is fairly brief. It began by stating:

“In the Court’s case-law, humiliating or debasing treatment of an individual – either in the victim’s own eyes and/or in other people’s eyes – constitutes degrading treatment (…). The applicant has thus made an arguable claim about ill-treatment which attains the minimum level of severity under Article 3.” (par. 54)

It found that no investigation was ever conducted into the reported incident, neither by the police nor by the Ministry as part of an internal procedure. A forensic medical investigation ordered by the investigator found bruises on different parts of the applicant’s arms. Yet, the Court stated that both the investigator and the domestic courts refrained from providing any explanation for these injuries. According to the ECtHR, the applicant raised an arguable claim that she was ill-treated, which ought to have triggered an independent and effective investigation capable of establishing the facts (par. 57-58).

The Court finds that the national authorities “did not make any serious attempts to find out what had happened”. In that regards, the Court refers to the fact that the domestic authorities did not attempt to question the applicant’s colleagues under oath as to avert the problems caused by being the subordinates of the alleged perpetrators. The Court stresses:

“It was not established how the applicant’s injuries were inflicted, in which circumstances and whether they were related to the impugned incident.”

The contradictions in the head of division’s statements was never addressed or investigated, nor was the accuracy of his statements (par. 58). The above-mentioned deficiencies lead the Court to conclude that the state authorities did not conduct a proper investigation into the ill-treatment allegations of the applicant, and thus, violated article 3 of the Convention on the procedural limb (par. 59).

As for the substantive aspect of article 3, the Court argued that – owing to the absence of a proper investigation – it could not conclude beyond reasonable doubt that the applicant was subjected to treatment that would reach the threshold of inhumane or degrading treatment (par. 60).

Comments

Three observations come to mind when discussing the Court’s reasoning in Hovhannisyan v. Armenia.

Firstly, the application of Article 3 to ill-treatment in the workplace appears to be relatively new. The work-related infringements that come to mind in the Court’s jurisprudence centre around dismissal on various discriminatory grounds (Article 14), freedom of expression (Article 10) in the workplace, the right to property (linked to payment, taxation and pensions) (Article 1 of Protocol No.1) and respect for private and family life (Article 8). It seems that reference to Article 3 has only been made in the context of worker’s safety, more specifically by divers that had contracted health problems through diving operations under the supervision of the Norwegian Labour Inspection Authority. The applicant in Vilnes and Others v. Norway alleged that the conditions pertaining to diving could amount to inhumane and degrading treatment. However, in this case the Court finds that the “State’s shortcomings were confined to a failure to provide access to information regarding risks involved in the use of rapid decompression tables” (par. 253). No liability for inhumane and degrading treatment was found.

Secondly, the Court’s reasoning demonstrates an understanding of workplace harassment situations, which is not present at the national level. For example, the Court stressed the importance of collecting evidence under oath to counteract the “problems created by the fact that they were subordinates of the alleged perpetrators”. While this was raised various times by the applicant, this objection was ignored by the national authorities. Additionally, the prosecutor attributing the applicant’s subjective description of the facts to “the stress she had suffered as a result of the incident in H.A.’s office”, could be seen as undermining the experience of a potential victim of workplace harassment.

Thirdly, as the applicant’s workplace was in the public sector, it remains unclear what the impact will be of the Court’s judgment when the workplace in question is privately-owned. The Court notes in this regard:

“the applicant complains of ill-treatment by her superiors, who were civil servants at the Ministry. Irrespective of whether treatment contrary to Article 3 has been inflicted through the involvement of State agents or by private individuals, the requirements as to an official investigation are similar.” (par. 55)

Thus, the Court clarifies the similar application of the procedural limb case-law in cases of torture by private individuals. However, when it comes to the substantive limb, it refers in its discussion to the general principles on alleged ill-treatment at the hands of state agents. This includes both police as well as other state agents. It is unclear whether this statement should lead to the conclusion that, only in cases of ill-treatment in the workplace, at the hands or under the responsibility of state servants,  a violation of the substantive limb could be found, especially when read in conjunction with the above-mentioned case against Norway. We will have to await new case law on workplace harassment to see if this is a valid assumption.