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Violation of conscript T.M.’s rights and freedoms continues

March 6, 2020

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HCA Vandzor lawyer Hayk Hakobyan finds that Lori region General Jurisdiction Court judgment in the criminal case initiated against his defendant T.M. is illegal. The criminal case was initiated under Article 327 (1) of the RA Criminal Code (Evasion from regular military or alternative service […]  without any legal grounds for exemption as established by the RA legislation).

 

Let us also remind that on February 15, 2018, Lori region general Jurisdiction Court made a decision to assign a forensic and military-medical comprehensive expertise. The conscript does not agree with the decision of Central Medical Commission, according to which he was recognized fit for military service with restrictions.   The conscript was previously twice granted the right to deferral and then, first on July 28, 2016 and then on January 30, 2017, RA MoD Central Medical Commission recognized him fit for military service with the same health problems. Not agreeing with CMC decisions, the conscript did not join the military service and applied to HCA Vanadzor to get legal aid. Besides the protection in the frame of the criminal case, together with HCA Vanadzor lawyer S. Soghomonyan and then Hayk Hakobyan, they litigated the CMC decisions on recognizing the conscript fit for military service with restrictions in the Administrative Court. During the preliminary investigation of the criminal cases initiated on September 7, 2016, based on the evasion from military service, forensic expertise on T.M.’s health problems did not manage to determine the age of the illness, however, it was recorded that the conscript’s health problems due to which he had been granted deferrals, were present and what is even more, no improvement of health state was recorded. Despite all this, the body conducting the proceedings sent the case to the Court with indictment.  

 

HCA Vanadzor lawyer H.Hakobyan claims that the legality of the administrative act, i.e. the decision made by the Central Medical Commission, cannot be determined by the body conducting the preliminary investigation of the criminal case or the Court examining the criminal case. He invokes the law of the Republic of Armenia ″On the fundamentals of administration and administrative procedure″, according to Article 69 of which a person has the right to appeal administrative acts in order to protect his/her rights. This is also stated in Article 61 of the RA Constitution (The right to judicial protection and the right to apply to international bodies of human rights protection... 1. Everyone shall have the right to effective judicial protection of his rights and freedoms.) and Article 63 (1) (The right to a fair trial... 1. Everyone shall have the right to a fair and public hearing of his case within a reasonable period by an independent and impartial court.) and Article 3 (1) of the RA Administrative Procedure Code (The right to apply to Administrative Court...1. Any physical person or legal entity has the right to appeal to Administrative court in the procedure established by this Code if it considers that the administrative act, action or failure to act of state body or local government body or its official...).

 

On October 30, 2019, Hayk Hakobyan appealed the judgment of Lori region General Jurisdiction Court of First Instance and claimed to overturn the criminal case judgment, dated October 7, 2019, and acquit T.M. based on the absence of corpus delicti in the action that the latter is charged with.  

 

HCA Vanadzor lawyer substantiated the appeal by the condition that before making considerations regarding the presence or absence of features of evading military service in a person’s action, it is necessary to deny or confirm the presence or absence of the grounds, as established by the RA legislation, of exempting him from regular military service. Currently, the presence or absence of the ground(s) for exempting T.M. from regular military service as established by the RA legislation has not been confirmed or denied, since the RA Administrative Court has not yet made a judgment  on it and therefore the Court could not recognize T.M. guilty of the action envisaged under Article 327 (1) of the RA Criminal Code. This is because as the RA Court of Cassation stated, the absence of legal grounds for exempting a person from military service (deferral) is an important condition to make a person criminally liable under Article 327 of the RA Criminal Code. 

 

Considering a combination of a number of laws and judicial positions, the lawyer notices that ″Since the conclusions of the Central Medical Commission are interfering administrative acts, by which an obligation was imposed on T.M. to be conscripted to military service, Article 63 of the RA Law ″On the fundamentals of administration and administrative procedure″ sets that ՝ 1. an illegal non-void administrative act is invalid, if a) it was accepted by violation of a law, including as a result of wrong application or incorrect interpretation of a law...and the illegal administrative act can be recognized invalid by the administrative body that accepted it, in this case CMC, or its superior body, as well as in a judicial procedure″. In the appeal, the lawyer also claimed that during the trial, the commission of the crime envisaged under Article 327 (1) of the RA Criminal Code has not been proved. 

 

HCA Vanadzor lawyer Hayk Hakobyan finds that based on the aforementioned conditions, Lori region garrison military prosecutor’s office’s appeal, dated October 24, 2018, on changing conditional imprisonment (set by Court) of 1 year to 2 years is ungrounded, especially given the fact that the commission of the crime envisaged under Article 327 of the RA Criminal Code by T.M. has not been proved. 

 

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