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Due to HCA Vanadzor support, the citizen litigated the decision made by the Minister of Defense by violation of law and restored his rights

July 10, 2020

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In 2019, 29-year-old G.G. applied to HCA Vanadzor in order to restore his violated rights. 

 

He told the Organization that in 2007 he had undergone military enlistment in the Central Military Commissariat. In 2008, he got accepted to Yerevan State Medical University. On the ground of continuing his education, he was granted a deferral for 3 years and continued his education until 2013. In 2013, he underwent a medical examination and attended the session of the Central Medical Commission. By the decision of the Commission, he was recognized temporarily unfit and was again granted a deferral for 3 years. In 2013-2015, having the right to deferral due to his health state, G.G. continued his education in MA. In 2016, at the end of the 3-year deferral, as a person subject to call-up, he again underwent a medical examination and appeared at the session of the Central Medical Commission. According to the Central Medical Commission’s conclusion of November 28, he was recognized unfit for military service in peaceful times. Based on this, in 2017, G.G. got a military book and enlisted in reserve. Being released from compulsory military service, in 2016-2018 G.G. studied at the residency of the university. Despite the legal condition of being recognized unfit for military service and being enlisted in reserve, on 14 November 2018, as ordered by the RA Minister of Defense, he was granted the military rank of lieutenant. On November 20, G.G. was notified to appear for 2018 call-up of reserve officers’ staff, but refused to appear. On the ground of not having appeared for the call-up, materials were prepared and on 1 February 2019 a criminal case was initiated, in the frame of which G.G. was involved as an accused. A signature not to leave was chosen as a preventive measure against him. The investigator proposed to sign an agreement to take part in the next call-up and to discontinue the criminal case. G.G. refused, finding that signing would mean that he agreed with the legality of being granted a military rank. 

 

On 5 December 2018, he appealed to the superior body Ministry of Defense order of 14 November 2018, i.e. the part of granting him a military rank of lieutenant, asking to eliminate it. However, he received a response from the MoD months later, on 4 April 2019, when G.G. had already applied to the Prime Minister and the President’s Staff. 

 

Finding that illegal attitude had been manifested in regard to himself and that this order of MoD had been made by violation of the RA Law “On military service and the status of a serviceman”, G.G. applied to HCA Vanadzor. He considered that as a result of that order his rights were violated, in particular, an obligation had been imposed on him illegally and being subjected to criminal liability for not fulfilling it would also be ungrounded. 

 

On 8 May 2018, HCA Vanadzor advocate Syuzanna Soghomonyan, who was engaged in the protection of G.G.’s rights, applied to the RA MoD Minister Davit Tonoyan, asking to provide the copy of the order to grant G.G. a military rank of lieutenant, as well as all the documents that served as a ground for that order, including copies of administrative proceedings materials.

 

Head of MoD Conscription and Mobilization Service, General Armen Avtandilyan responded. According to the clarifications, it was legal to include G.G. in 2018 call-up of medical staff officers of reserve group No.1 for persons aged up to 35, and  the matter of the grounds for granting him a military rank of lieutenant was discussed in the military commissariat. On 22 October 2018, by the order of MoD, a working group was created to prepare for 2018 call-up of  medical staff officers of reserve group No. 1. The Working Group examined the legality of G.G.’s inclusion in the call-up and found out that back during his study at the medical university, he was recognized unfit for military service, but studied the subject of military preparation during his education. Based on the university’s information paper about it and also the fact that he had undergone attestation, the working group decided to include G.G. in 2018 call-up and to grant him a military rank of lieutenant according to MoD order. It is noteworthy that the working group discussed this matter during a few sessions and granted approval. 

 

These clarifications make G.G. restore his violated rights in a judicial procedure.  

 

In court, G.G.’s interests were represented by HCA Vanadzor advocates Syuzanna Soghomonyan and later Hayk Hakobyan. On 27 May 2019, Syuzanna Soghomonyan filed a lawsuit in the RA Administrative Court , claiming to recognize invalid the 14 November 2018 order of MoD on the part of granting G.G. a military rank of lieutenant. The advocate claims that the above-mentioned order was made by violation of law. 

 

According to Article 11 of the RA Law on “Military service and the status of servicemen”, “lieutenant” military rank is granted:

 

1) to serviceman with no officer rank who graduated from military institution or completed officers’ educational course, while  to the serviceman who graduated from military institution of military-medical nature, the military rank "lieutenant" is assigned after the completion of internship,

 

2) to citizens who underwent military preparation during their study in a higher education institution after being conscripted to compulsory military service in a manner prescribed by this law (...).

 

According to Article 73 part 5 of the same law, “Article 31 part 1 point 2 provisions of Law HO-380-N “On serving the military service” of 3 July 2002 apply to persons who studied military preparation during their education and who have been granted a deferral in order to continue their education at residency before the entry of this law into force. The mentioned provisions are in force until 31 December 2020 included and are considered invalid since 1 January 2021”.

 

According to those provisions, military rank of “lieutenant” is granted to

 

1) servicemen with no officer rank who have graduated from military educational institutions or officer educational course, while to the serviceman who graduated from military institution of military-medical nature, the military rank "lieutenant" is assigned after the completion of internship

2) citizens who underwent military preparation while studying in a higher education institution in a manner prescribed by the RA Government.

 

HCA Vanadzor advocate drew the Court’s attention to the condition that in 2018, granting a military rank of “lieutenant” to G.G., who had been recognized unfit for military service in peaceful times in 2016, was itself illegal, as G.G. had not served a military service due to his health problem. Besides, he did not do an internship and did not have a right to deferral to study in residency, as he was released from military service. G.G. completed his education in September 2018, i.e. after the RA Law on “Military service and the status of servicemen” entered into force.

 

The note on undergoing a military preparation in his diploma appendix was also made by violation of law, because at the time of his education, RA Government’s decision No. 232 of 19 May 1994 was in force. The above-mentioned decision provided for the procedure of undergoing military preparation while studying in a higher education institution and the procedure of granting a rank of officer. According to the procedure, “(...) students recognized by military commissariat medical commission’s conclusion to be unfit for combatant military service due to a health problem are released from military preparation”.

 

G.G. did not participate in educational gathering-trainings, did not undergo a military internship, whereas according to the Government’s decision, the student sits an examination on military preparation and is considered to have undergone military preparation only after participating in those gathering-trainings.

 

Besides, in 2009, when studying general military science, G.G.’s fitness for combatant service was not checked. And in 2013, during the next phase of military preparation, while studying military field therapy and surgery subjects, Central Medical Commission’s conclusion recognized him temporarily unfit for combatant service. That is to say, at the moment of legal relations, according to the legislation in force, students recognized by military commissariats’ medical commissions to be unfit for combatant service due to their health state, are to be released from military preparation. Therefore, G.G. was to be released from military preparation, too. 

 

It turns out that according to Article 31 of RA Law “On serving a military service”, dated 2002, 3 conditions are necessary simultaneously, which are: the citizen must have undergone military preparation during his education, the citizen must have received a deferral to study at residency, and the two conditions must be present before the entry into force of RA Law on”Military service and the status of servicemen”, i.e. before 16 December 2017, which was not the case for G.G.  

 

Therefore, the above-mentioned provisions are not applicable for him. 

 

The aforementioned analysis makes it clear that neither Article 11 of the RA Law on “Military service and the status of servicemen”, nor Article 31 of the RA Law “On serving a military service” may be applied to G.G. and be considered as grounds for the order to grant him a military rank.

 

The Court paid particular attention to the RA MoD official clarification in regard to another applicant’s question regarding a similar problem. The applicant asked to clarify a number of matters. In particular, is receiving a military rank of officer of medical service a right for graduates who have undergone military preparation during their study in state medical university, should they be conscripted to compulsory military service as a reserve officer or a common serviceman, do they have the right to get a rank of lieutenant and serve as a lieutenant just after their conscription, how many months should the military service term be after the conscription? 

 

According to the parts of reasoning in the clarifications, “(...) Article 11 of the RA Law on “Military service and the status of servicemen” does not regulate relations pertaining to conscription of compulsory military service, and part 1 point 2 of the mentioned Article establishes the legal ground for granting a military rank of “lieutenant” to a person who is already a serviceman.

 

According to Article 56 part 2 point 4 of the Law, citizens who have undergone military preparation while studying in a higher education institution and who have been granted  a military rank of “lieutenant” in a manner prescribed by this law are registered in reserve. 

 

According to requirements of Article 73 part 5 of the Law, “Article 31 part 1 point 2 provisions of Law HO-380-N “On serving the military service” of 3 July 2002 apply to persons who studied military preparation during their education and who have been granted a deferral in order to continue their education at residency before the entry of this law into force. The mentioned provisions are in force until 31 December 2020 included and are considered invalid since 1 January 2021”.Article 31 part 1 point 2 provisions of Law HO-380-N “On serving the military service” of 3 July 2002 apply to persons who studied military preparation during their education and who have been granted a deferral in order to continue their education at residency before the entry of this law into force. The mentioned provisions are in force until 31 December 2020 included and are considered invalid since 1 January 2021”.

 

According to Article 31 part  1 point 2 of the RA Law “On serving a military service”, the military rank of “lieutenant” is granted to citizens who have undergone military preparation  while studying in a higher education institution in a procedure established by the RA Government. 

Combining a number of provisions of the above-mentioned laws, it becomes clear that the regulations of granting a military rank of “lieutenant” to an individual who has not served a military service before conscripting him to compulsory military service, registering him in the reserve officers’ staff, as well as regulations of compulsory military service call-up of reserve officers’ staff have nothing to do with regulations of Article 11 part 1 point 2 of the law.

 

It turns out that MoD gives official clarifications but is not guided by those very clarifications. 

 

The Court also considered trustworthy the details of the criminal case initiated on the ground of refusing to appear for the call-up and discontinued based on the lack of corpus delicti. In particularly, given that in the frame of 2019 decision to discontinue criminal proceedings and criminal prosecution, the investigator applied to the Central military medical commission to get factual data. The Central military medical commission responded that G.G. was not fit for military service.

 

Hearing the explanations of the parties and considering the proofs confirmed by objective, comprehensive and complete examination, the Administrative Court concluded that MoD order of 14 November 2018, in particular, the part of granting G.G. reserve first officer military rank “lieutenant” was made by violation of law. 

 

On 2 July 2020, the Court fully upheld HCA Vanadzor advocate’s claim, finding that the part of  MoD order regarding G.G. must be eliminated.

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