Though the conscript had been twice granted a deferral for the same health problem, during the next call-up, without any change in his health state, he was recognized fit for military service with limitations. It was possible to prevent the conscript’s rights violations only with the legal aid of HCA Vanadzor and he was recognized unfit for compulsory military service.
On 16 July 2018, Gyumri city resident and conscript V.H. 's mother applied to HCA Vanadzor requesting to protect her son’s rights.
Since his early childhood, V.H. has had a knee bone overgrowth, due to which his knee cannot be bent. In 2016 he underwent a medical examination in “Scientific Center of Traumatology and Orthopaedy” CJSC and was diagnosed “Exostosis on lower third medial surface of the right hip, surgical treatment recommended”. Based on this diagnosis, the Central Medical Commission granted him a one-year deferral for medical treatment. Having been given the same diagnosis in 2017, he was granted a deferral for one more year.
In May 2018, during the call-up, V.H. underwent a health check-up in “Scientific Center of Traumatology and Orthopaedy” CJSC and got the same diagnosis. After that, the Central Medical Commission referred him to an additional checking examination, reasoning that the health state examination act lacked the dysfunction degree. As a result, the following diagnosis was given “Exostosis on lower third medial surface of the right hip, with a temporary dysfunction, surgical treatment recommended”. However, the CMC mentioned in the conclusion that the conscript had a slight dysfunction, and based on Article 47 clause C of the RA Government’s decision 404-Ն, he was recognized fit with limitations for summer 2018 call-up. However, he refused to serve the military service and as a result, a criminal case was initiated.
In September 2020, V.H.underwent a medical examination in Armenia MC and was diagnosed with “Exostosis on lower third medial surface of the right hip, with a temporary dysfunction, surgical treatment recommended”. Based on this, in February 2021, he was given a 5-month deferral to get medical treatment.
On 30 March 2021, HCA Vanadzor advocate and V.H.’s legal defender Hayk Hakobyan applied to RA Minister of Defense Vagharshak Harutyunyan, claiming to recognize illegal the CMC’s conclusion of 12.07.2018 - which no longer had legal force - in order to make an administrative act on exempting V.H. from compulsory military service. The CMC was supposed to have the same approach to similar factual conditions, i.e., to grant V.H. a deferral to get medical treatment, just as during the call-ups of 2016 and 2017, taking into account the results of his health state check-up.
Besides, during 2016 and 2017 call-ups, health state examination conclusions lacked V.H.’s disease dysfunction degree and yet, he was granted a deferral. Whereas, it was only during the summer 2018 call-up that the CMC decided to refer V.H to undergo additional checking examinations in order to clarify the dysfunction degree. It should be mentioned that the Scientific Center of Traumatology and Orthopaedy mentioned that the dysfunction degree was temporary, while in its decision of 2018, the CMC mentioned a slight dysfunction, but that conclusion was made based on the additional checking examinations conducted in the Scientific Center of Traumatology and Orthopaedy.
It is thus strikingly obvious that there were not sufficient grounds to recognize V.H. fit with limitations for compulsory military service.
Moreover, during summer 2018 call-up, V.H. did not undergo a complete medical check-up, since according to Article 47 of the Government's decision N 404-Ն, it is vital to decide the degree of exostosis when examining conscripts, as it is a necessary condition in recognizing a conscript fit for military service; which was factually omitted in V.H.’s case.
It is noteworthy that according to Article 23 part 2 of the RA Law “On military service and status of the serviceman”, having been thrice granted a deferral to get a medical treatment, the citizen must be recognized fit, fit with limitations or unfit for military service. V.H. was granted a deferral in 2016 and 2017, and during summer 2018 call-up, the CMC made a conclusion and granted him a deferral to get a medical treatment. Therefore, given the results of medical examination in winter 2020 call-up, V.H., having serious health problems, should have been recognized unfit for military service.
During summer 2021 call-up, V.H. was again present at the CMC session. Given his health state examination results, the CMC made a conclusion and recognized him unfit for military service according to Article 38 clause D of the RA Government’s decision N 104.
The body conducting the proceedings made a decision to halt the criminal prosecution initiated against V.H. and the criminal case proceedings were discontinued based on the absence of corpus delicti.
Thus, we can record that often, during call-ups, as a result of improper medical examinations, conscripts are recognized fit or fit with limitations for military service, while they should be recognized unfit for military service due to their health state. This means that once again we deal with potential violation of a conscript’s right which was possible to prevent by provision of legal aid.
We find it important that the CMC ultimately made a final grounded conclusion which prevented the violation of the conscript’s right and also improper implementation of military duties and the potential problems caused by it during military service that could possibly have lethal consequences.