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The case of V.S. – charged with avoidance of call-up – discontinued as the investigator finds procedure violation in CMC actions

October 21, 2021

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The case of a conscript charged with avoidance of military service was discontinued: after recording health problems, instead of offering an operation, they immediately recognized him fit for military service with limitations, which is a procedure violation.

 

Conscript V.S. was recognized fit for military service with limitations back in 2019, while not all of his complaints were taken into account during his health state examination, and he was not offered an operation to correct his bite problem, which is enshrined in the RA Government’s decision 404-Ն. The conscript had to refuse the call-up notice, as a result of which a criminal case was initiated against him under Article 327 part 1 of the RA Criminal Code (avoidance of military service).

 

Whereas, the conscript simply did not agree with the decision concerning himself and had grounds for that. In the frame of the initiated criminal case, he repeatedly mentioned that he did not avoid being drafted to the army, but merely claimed to have  all of his health problems fully examined and recorded . He also mentioned that he was ready to undergo one more expert examination. Despite this, the forensic medical examination appointed in the frame of the criminal case gave the same results and the initial diagnosis was confirmed, after which V.S. was presented for call-up.In these conditions, he had no alternative besides rejecting to receive the notice, since the reasons why he refused to get the notice the first time were still unsolved.

 

HCA Vanadzor advocate Hayk Hakobyan undertook protection of V.S.’s rights. With the advocate’s support, the conscript managed to restore his violated rights.

 

Based on the petition to assign one more commission-held forensic medical examination, T. Babayan, PIC investigator of the Seventh Garrison Investigative Unit of General Military Investigative Department of the RA Investigative Committee, considered grounded the condition that the procedure established by the Government’s decision was violated: during the call-up, before making a decision on fitness of the conscript, he was not offered an operation, and in such conditions, there is no corpus delicti in his action, thus the criminal case was discontinued on 6 October 2021. 

 

Based on this, the conscript will be offered to undergo an operation, and the results of the operation will be the basis for a further decision.

 

Also, the Government’s decision 404-Ն specifies that in case of a number of health problems, an operation shall be offered and only after that is it allowed to make a decision regarding the conscript’s fitness for military service. There is another problem here: often, in the frame of state-funded medical interventions, the cheapest and thus the most ineffective operation is offered, while conscripts should be offered the most effective and quality medical aid possible.

 

However, V.S.’s case is not rare. As a rule, instead of discussing substantiations presented by conscripts who do not agree with the decisions regarding their fitness for military service, they initiate a criminal case against them by thus undertaking a function of the body ensuring the call-up.

 

For years on end, Helsinki Citizens’ Assembly-Vanadzor has been addressing this issue both through relevant cases and analyses, and also presenting recommendations.The problem is that in the frame of initiated criminal cases, garrison investigative bodies assign only forensic medical examinations, which does not give an opportunity to discuss grounds of appeals. This would be possible through military medical examination, which is not implemented despite HCA Vanadzor continuously raising the issue and presenting recommendations. Moreover, in such cases, garrison investigative bodies call on conscripts to review their decision and thus go beyond their authority.

 

To solve this issue, we once again recommend recording all complaints and health problems of conscripts and recommend the Central Medical Commission to ensure that an operation be offered and implemented when necessary, upon the relevant conscript’s consent.

 

In terms of criminal cases initiated based on avoidance of a regular military service call-up, we recommend the following:

 

  • to take into account that a person challenges the decision on recognizing him fit for military service or fit for military service with limitations, and give this action a criminal-legal assessment only after checking legality of that decision,

  • instead of assigning a forensic medical commission examination during the preliminary investigation, to assign a forensic medical and military medical complex examination,

  • during a regular call-up announced during the preliminary investigation, not to send the conscript’s personal case and not to urge the conscript to go to the RA MoD Conscription and Mobilization Service territorial subdivision to once again clarify the issue of being fit for military service or fit for military service with limitations, and not to prolong the preliminary investigation process based on this condition.

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