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Conscript recognized guilty by Court for avoiding mandatory military service. The latter had undergone improper medical examination and was recognized unfit for military service

March 21, 2020

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HCA Vanadzor lawyer appealed the judgment on the violation of conscript A.D.’s rights in the RA Court of Criminal Appeals. 

 

Since 2016, HCA Vanadzor has been protecting Vanadzor city resident A.D.’s rights, who, despite his health problems, had been recognized fit for military service with restrictions. Disagreeing with the conclusion made by Central Medical Commission, A.D. did not join the military service. In September 2016, a criminal case was initiated against him. He applied to HCA Vanadzor to get legal support. Having examined the materials of the case, HCA Vanadzor lawyers Syuzanna Soghomonyan and then Hayk Hakobyan, who represented A.D.’s interests in Lori region General Jurisdiction Court, found out that A.D. had not undergone a proper comprehensive examination of his health state in 2016 call-up. This is what made the citizen disagree with the Central Medical Commission’s decision and not join the military service. 

 

On February 7, 2020, Lori region General Jurisdiction Court, presided by Mushegh Harutyunyan, made a judgment recognizing A.D. guilty under Article 327 (1) of the RA Criminal Code (Evasion from regular military or alternative service, training gathering or military gatherings…1. Evasion from regular military or alternative service conscription, training gathering or military training without any legal grounds for exemption established by the RA legislation) and sentenced him to one-year imprisonment. The punishment was not applied conditionally. A probation period was established according to Article 70 of the RA Criminal Code (Not applying the punishment conditionally). Oversight over A.D.’s conduct was instructed to the appropriate subdivision of the State Probation Service of the RA Ministry of Justice according to the conscript’s place of residence. Simultaneously, a preventive measure was applied and A.D. provided his signature on not leaving.  

 

On March 2, 2020, HCA Vanadzor lawyer Hayk Hakobyan made an appeal claiming to overturn Lori region General Jurisdiction Court’s judgment dated February 7, 2020, and acquit A.D. based on the absence of corpus delicti.  

 

H.Hakobyan finds that Lori region General Jurisdiction Court made an ungrounded judgment by thus making a judicial mistake, i.e. violation of substantive and procedural law, which affected the outcome of the case. In particular, the body conducting the proceedings did not conduct a proper examination to find out a number of important conditions, it did not find out to what degree Central Medical Commission’s actions were legal. 

 

The conclusions of the forensic medical expertise on A.D.’s case confirmed that he was unfit for the military service. According to the results of the expertise conducted in  A.D.’s case, there are sufficient grounds to claim that during summer 2016 call-up, too, he should have been recognized unfit for military service, while, in reality, a criminal case was initiated against him.  

 

In this claim made by Hayk Hakobyan, there are a number of undeniable facts. During the call-ups of both 2016 and 2018, A.D. had the same complaints related to his lumbar spine. Moreover, after 2016 call-up, no positive change was recorded in his health state, no medical intervention was made, he did not undergo any treatment. However, had he undergone an MRT examination of his lumbar spine, he would have been recognized unfit for military service. It turns out that back in 2016, proper medical examination of his health state was not conducted. 



Besides, HCA Vanadzor lawyer also made a statement in the complaint that before making a judgment on the absence or existence of features of evading military service in a person’s action, it is necessary to deny or confirm the existence or absence of ground(s), established by the TA legislation, for being exempted from regular military service.  

 

In A.D.’s case, the legal ground for being exempted from mandatory military service was confirmed, which was his health state, as a result of which, he was recognized unfit for military service.  During the preliminary investigation and the trial stage, A.D. presented his testimony and always insisted that he did not refuse the military service, but also disagreed with the Central Medical Commission’s decision, by which he was recognized fit for military service with restrictions. And his disagreement was grounded. In 2016, CMC did not conduct the required medical examination of A.D.’s health state, which could objectively reflect his real health state. HCA Vanadzor lawyer H. Hakobyan drew the attention of Appeal Court to the condition that the only ground for criminal liability is the commission of an action, which contains corpus delicti features envisaged by criminal law and invoked the RA Court of Cassation legal positions on such cases with regard to the objective and subjective sides of corpus delicti envisaged by Article 327 (1) of RA Criminal Code. The lawyer also presented all the facts that showed the apparent absence of both the objective and subjective sides of corpus delicti in A.D.’s case. A.D. did not evade conscription, he always appeared in the military commissariat and expressed his willingness to join the military service, ‘It is undeniable that A.D. always appeared in the military commissariat of his residence place and underwent a lot of medical examinations, as instructed. It is also undeniable that he always appeared before the body conducting the proceedings, always took part in all the forensic medical expertise during both the preliminary investigation and the trial stage, he was always present at all the court sessions. All this obviously indicates that in A.D.’s case, there is no objective side of the crime subject to investigation’, says Hayk Hakobyan. With regard to the subjective side, Hayk Hakobyan referred to Article 21 (1) of the RA Law ‘On military service and state of the serviceman’, according to which, the citizen recognized unfit for military service due to his health state is exempted from mandatory military service. Whereas, the body of preliminary investigation gave an incorrect criminal legal qualification to the defendant’s actions, which entailed an incorrect criminal legal position and A.D. was charged with an ungrounded accusation. And when making the judgment, the Court made a judicial mistake, i.e. violation of substantive law, and also did not take into account the legal positions expressed through the RA Cassation Court precedent decisions, which also had its impact on the outcome of the case.  Instead of taking action to properly investigate the conditions presented in the defendant’s testimonies, the body conducting the proceedings did not consider them credible by thus violating requirements of Article 17 (3) of the Criminal Procedure Code (Fair trial…3. The body of criminal prosecution is obligated to undertake all measures prescribed by this Code for a comprehensive, full and objective investigation of the case circumstances, to reveal all the circumstances both convicting and absolving the suspect or accused, and also the circumstances reducing and aggravating his responsibility).  Therefore, H.Hakobyan’s makes a grounded claim that no comprehensive and detailed medical examination was conducted during 2016 call-up and during the criminal case preliminary investigation and under these conditions, it is impossible to consider proved A.D.’s guilt in the relevant action envisaged under the Criminal Code. In 2016, CMC again recognized A.D. fit for military service with limitations without additional examinations and based on the double forensic medical commission expertise conclusion. 

 

According to the lawyer, the CMC did not have the required sufficient grounds to recognize the conscript fit for military service with restrictions, therefore, it is ungrounded to state that the defendant evaded the military service without the relevant grounds established by law.  

 

The trial did not manage to prove the commission of the crime envisaged under the above-mentioned Article, which, in its turn, affected the outcome of the case. The body conducting the proceedings, in its turn, failed to conduct a proper investigation to find out to what extent the CMC’s actions were legal. Furthermore, the basis of the indictment was the testimonies of witnesses who only had the competency to give a conclusion on A.D.’s health state, and not the competency to decide his fitness for military service, let alone, the issues of evading military service. Therefore, the body conducting the proceedings should not have based on their testimonies and make a charge under Article 327 (1) of the Criminal Code, especially given the fact that the testimonies, according to which A.D. did not need an MRT examination of the lumbar spine, was rejected during the trial.  

 

HCA Vanadzor lawyer H.Hakobyan reaffirmed his claim that the CMC failed in its actions, did not conduct an objective comprehensive examination of the defendant’s health state and did not have the grounds to recognize him fit for military service with limitations. Based on this situation, it is ungrounded, to say the least, to claim that A.D. evaded military service without legal grounds.  

 

Summing up the grounds reflected in the appeal, Hayk Hakobya asked the RA Appeal Court to fully overturn the judgment made by Lori region General Jurisdiction Court on February 7, 2020, and change it by acquitting A.D. in the charge under Article 327 of the RA Criminal Code by recognizing his innocence in the commission of the action envisaged under that Article based on the lack of corpus delicti in the action he was charged with. 

 

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