January 14, 2025
By Vesna Stefanovska, PhD
On 12 December 2024, the European Court of Human Rights delivered a judgment in the case of Hasmik Khachatryan v. Armenia. The Court ruled that domestic authorities failed to conduct an autonomous, proactive, and comprehensive risk assessment of further violence and take adequate and sufficient measures to protect the applicant. Moreover, the Court found that the legislative framework in force at that time had fallen short of the State’s duty to establish and effectively apply a system punishing all forms of domestic violence and providing sufficient safeguards for the victims.
This post will briefly analyze the reasoning of the European Court of Human Rights, specifically the violation of substantive and procedural positive obligations of Article 3 ECHR as well as the positive aspects raised by the Court proprio motu and an overlooked possibility to expand its case law and strengthen efforts in combatting gender-based violence.
In 2004, the applicant, Ms. Hasmik Khachatryan married S.H. in a church ceremony (there was no state registration of the marriage). The couple lived with S.H.’s parents, and they had two children: a daughter and a son. According to the applicant, her relationship with S.H. has gradually deteriorated since he began consuming alcohol after it was discovered that their daughter had a hearing impairment. Under the influence of alcohol, he harassed and threatened the applicant which led to physical violence against her.
On 5 May 2013, the applicant sustained a number of injuries during the assault by her husband, including various wounds and a concussion. On an unspecified date in late May 2013, S.H. pressed a burning cigarette against the applicant’s left forearm because he suspected that she was cheating on him. On 16 June 2013, S.H. hit the applicant in the right ear, knocked her down, and severely beat and kicked her face and body. The physical violence and the wounds were confirmed when the applicant was admitted to the Armenia Medical Centre where she received medical assistance as well as psychological counseling and shelter for a period of one month. The applicant had been invited to come to the Yerevan Police Department, but she refused to lodge a criminal complaint. The forensic medical examination ordered by the police in Gavar (where the applicant lived) showed that the applicant’s injuries amounted to minor bodily harm.
On 2 July 2013, the applicant lodged a criminal complaint with the Gavar police in relation to the violent incidents of 5 May and 16 June 2013. The applicant argued that the police were terrified of S.H. and his relatives (owing to their influence in the region), and they were unable to carry out an impartial investigation. S.H. continued to threaten and physically assault the applicant outside their home on 5 November. As a result, the applicant filed a complaint with the police investigation unit, leading to charges against S.H. for ‘aggravated torture of a person who is otherwise dependent on the perpetrator.’
The Yerevan police refused to open a criminal case in relation to the incidents of 5 November for lack of corpus delicti in S.H.’s actions. The applicant and S.H. had not kept a common household for around two years, and the applicant was not able to see her son. Although at first, she reached an agreement with S.H.’s mother and sisters not to pursue a complaint against S.H. if she was allowed to keep her children. Instead, the applicant was forbidden to see and to speak with her son who at that time lived with S.H.’s parents. Subsequently, the applicant filed a request with the Regional Court for S.H. to be placed in detention. Meanwhile, during the trial, the applicant also filed a civil claim against S.H., seeking compensation for pecuniary damages (medical expenses) and non-pecuniary damages related to her emotional and psychological suffering caused by the ill-treatment. However, the legislature had failed to fully regulate the question of compensation for non-pecuniary damage; thus, the applicant was obliged to make reference to Article 1087.1 of the Civil Code, which was the only provision in force at the time for seeking non-pecuniary damage. The provision regulated legal remedies for individuals whose honour, dignity, or business reputation has been harmed by insult or defamation, including the right to seek financial compensation through court proceedings
On 22 December 2014, the Regional Court reclassified the charges from aggravated torture to torture, citing the absence of aggravating circumstances (such as the offence being committed against a minor, a financially or otherwise dependent person, a kidnapped individual, or a hostage). At the time, domestic law lacked a legal definition of a family member, preventing the courts from recognizing the applicant as a family member or dependent of S.H. Consequently, S.H. was convicted and sentenced to one year and six months’ imprisonment. However, the Regional Court decided to exempt S.H. from serving his sentence by applying the Amnesty Act of 3 October 2013 and rejected the applicant’s civil claim. The applicant lodged an appeal, but the higher court upheld the Regional Court’s judgment in full.
The applicant complained, under Articles 3 and 8 taken separately and in conjunction with Article 13 of the Convention (§120), that the authorities had failed to take any action to protect her from further acts of domestic violence in the course of criminal proceedings against S.H. and had failed to impose on him a proportionate punishment for the serious acts of violence. The Court decided to examine the applicant’s complaints under Article 3 of the Convention alone and established a violation of Article 3 of the Convention under its substantive and procedural limbs. In this context, it is important to emphasize that the Government did not dispute that the treatment suffered by the applicant fell within the scope of Article 3 of the Convention.
The Court determined that the Armenian authorities failed to fulfill their positive obligations under Article 3 of the Convention. Firstly, the Armenian legislation then in force at the time did not specifically address violence occurring in a family context. Therefore, the concept of domestic violence, or any equivalent thereof, was not defined or mentioned in any form in the domestic legislation. There was no article in the Criminal Code that sanctioned domestic violence. Hence, the former Criminal Code made no distinction between domestic violence and other forms of violence against a person. Secondly, although there were well-defined circumstances, i.e., evidence of physical violence against the applicant, the Armenian authorities failed to promptly investigate the domestic violence and to take operational measures to protect the applicant against the risk of further ill-treatment. Although the authorities had not remained completely passive, they still failed to discharge their obligations because the measures they had taken had not stopped S.H. from perpetrating further violence against the applicant. Moreover, the Regional Court reclassified the charges from aggravated torture to torture in the absence of aggravated circumstances. Thirdly, the Armenian authorities failed to carry out an effective investigation into arguable claims concerning each instance of the ill-treatment and to take any protective measures to prevent further incidents of violence.
The first two aspects of the positive obligations are classified as ‘substantive’, while the third aspect corresponds to the State’s positive ‘procedural’ obligation. This reasoning by the Court was already established in Tunikova and Others v. Russia. Moreover, the Court has acknowledged not only the physical injuries but also the psychological suffering of the applicant that forms an important aspect of domestic violence (see Valiulienė v. Lithuania, § 69 and Volodina v. Russia §§ 74-75). Thus, the Court once again emphasized that Article 3 of the Convention does not exclusively refer to the infliction of physical pain but also of mental suffering.
Regarding compensation for damage, the Court has previously held that in cases involving a breach of Articles 2 and 3 of the Convention, compensation for non-pecuniary damage resulting from the breach should, in principle, be available as part of the range of redress. Accordingly, in line with its case law, the Court found that the applicant was entitled to compensation for non-pecuniary damage and awarded her €24,000.
The issue of domestic violence is a general problem that affects all member States of the Council of Europe (§149). The particular vulnerability of the victims of domestic violence and the need for active state involvement in their protection have been emphasized in a number of international instruments (CEDAW, Istanbul Convention, the Recommendation Rec(2002)5 of the Council of Europe on the protection of women against violence etc.) as well as in the Court’s case law. In this case, the Court reiterated its already established findings that Article 3 imposes on the states positive obligations to ensure that individuals within their jurisdiction are protected against all forms of ill-treatment, including when such treatment is administered by private individuals. The Court once again confirmed that procedural requirements under Article 3 ECHR are similar whether the treatment has been inflicted through the involvement of state agents or private individuals. These requirements concern the authorities’ duty to institute and conduct an investigation by establishing facts and the identification of those responsible. Additionally, the ECtHR had already ruled in previous cases that a legal framework that did not define domestic violence whether as a separate offence or an aggravating element of other offences, fell short of the requirements inherent in the State’s positive obligation to establish and apply effectively a system punishing all forms of domestic violence.
The starting point for establishing a violation of Article 3 ECHR for the Court in this case was the fact that the treatment inflicted on the applicant attained the necessary threshold of severity to fall within the scope of the provision. The Court was guided by its reasoning in Tunikova and Others v. Russia, just as in this case where: (a) the domestic authorities were obliged to respond immediately to complaints of domestic violence and to process them with special diligence; (b) the authorities had a duty to undertake autonomous, proactive and comprehensive risk assessment of the treatment contrary to Article 3; and (c) when the risk to the victim of domestic violence has been identified, the authorities had to take preventive and protective measures.
In the case of Hasmik Khachatryan v. Armenia, there are several positive aspects and issues raised by the Court. However, there are passed-up chances where the Court could have emphasized the importance of the fight against gender-based violence. The Court could have applied its case law in similar cases, where the violation would be found not only under Article 3, but also under Article 8 of the Convention. Although it was not specifically raised by the Government of Armenia, the Court went beyond and found it appropriate to address whether the applicant’s treatment in the course of the criminal proceedings against S.H. i.e., the events in May and June 2013 also fell within the scope of Article 3 ECHR. Additionally, albeit the applicant did not raise a specific complaint about the authorities’ refusal to prosecute S.H. in relation to the incident from 5 November 2013, the Court found a violation of Article 3 because the Armenian authorities failed to respond adequately to reports of domestic violence and to carry out an effective investigation.
Having in mind the above, the Court followed its own established case law regarding domestic violence and rightfully established a violation of Article 3 ECHR. In fact, it went beyond what had been requested by the parties and managed to elaborate all aspects of the substantive and procedural obligations under Article 3. However, it overlooked the opportunity to send an even stronger message that acts of domestic violence are more than ill-treatment. They also fall under the scope of Article 8 and represent a violation of the right to private and family life. Although the applicant complained under Articles 3 and 8 taken separately and in conjunction with Article 13, the Court considered it more appropriate to examine the complaints only under Article 3 of the Convention. The ECtHR could have relied on its own reasoning in the case of A. v. Croatia, where the Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention in that the Croatian authorities had failed to implement many of the measures ordered by the courts to protect the applicant. In the case of Hajduovà v. Slovakia, the Court held that the lack of sufficient measures in response to the applicant’s former husband’s behavior, and in particular the domestic courts’ failure to order his detention for psychiatric treatment following his conviction, had amounted to a breach of the State’s positive obligations under Article 8 of the Convention. It was observed in particular that, even though her former husband’s repeated threats had never materialized, they were sufficient to affect the applicant’s psychological integrity and well-being, so as to give rise to the State’s positive obligations under Article 8. These two cases are similar in their factual background to the case of Hasmik Khahatryan v. Armenia, and the Court was able to establish a violation of Article 8 because the Armenian authorities failed to protect the applicant and to impose effective measures. Finally, in this case, the Court did not explicitly impose an immediate legal reform, unlike in the case of Tunikova and Others v. Russia where the Court found a systemic issue requiring general measures under Article 46 of the Convention. This could be seen as a missed opportunity to impose clearer obligations on Armenia regarding the protection of victims of domestic violence.
The judgment sends a strong message not only to Armenian authorities but also to all member States of the Council of Europe that acts of domestic violence must be punished appropriately by the national authorities. Substantive and procedural positive obligations under Article 3 ECHR must always be implemented and respected by the authorities, and compensation for non-pecuniary damage will be available as part of the redress. The Court based its decision on the already well-established case law, but undoubtedly it could have found a violation also of Article 8, having in mind the clear facts of the case and similar reasoning in its case law.
1 Comment
In Moscow, she committed a serious crime against my daughter with the aim of taking possession of her property.
As a result, in 2012, my daughter disappeared, I still can’t find her. My daughter lived in Moscow, I live in Armenia
I believe that my daughter was killed violently, perhaps her organs were removed, and in order to hide all the evidence of the crime, my daughter’s body was destroyed
According to the Moscow police, my daughter allegedly died, and her body was cremated, which I know nothing about, I did not see my daughter dead, I also do not know about the burial and cremation, but it is known that strangers became the owners of the property belonging to my daughter in Moscow
My numerous appeals are ignored, the police are inactive, concealing serious organized crime, providing false information, delaying time in favor of criminals. since the crime against my daughter was committed by conspiracy of a group of officials and police officers, who are supported by numerous Russian human rights activists, to whom I turned for help, refusing to protect me, discriminating on the basis of nationality and citizenship, thereby they jointly conceal organized crime
I have been alone for many years in a long fight against a criminal group
I ask you to help me file a lawsuit in the International Court, since I am not able to do this on my own.
Please help