11.02.2020 | The cassation appeal of the RA Military Prosecutor against the decisions of courts of lower instances on the acquittal of two officers accused of using violence against a soldier was satisfied

The RA Prosecutor General’s Office received a decision of the RA Court of Cassation regarding the cassation appeal of the RA Deputy Prosecutor General, the RA Military Prosecutor V. Harutyunyan by criminal case initiated on 25.05.2017 in the 6th Garrison Investigative Division of the General Military Investigative Department of the RA IC under Part 2 of Article 358.1 of the RA Criminal Code. The latter can be essential for the formation of a new criminal law practice in qualifying acts in cases investigated by the specified corpus delicti and be a serious deterrent for commanders in preventing violence against their subordinates.


According to the decisions of 18.07.2017 of the preliminary investigation body by the criminal case a charge was brought against A. O. and A. A. under Part 2 of Art. 358.1 of the RA Criminal Code. The criminal case with the indictment of 24.11.2017 was sent to the Court of General Jurisdiction of the First Instance of Tavush Region.


According to the factual data obtained during the preliminary investigation, in November 2016 Senior Sergeant - A. A. during physical training because of being late to line up, used violence against one soldier, inflicting blow in the neck.


And the company commander of the same military unit, captain A.O. in November 2016 during the physical training, because of the violation of the rules for wearing military uniform, used violence against the mentioned soldier, kicking the latter.


The Court of First Instance, having examined the case on its merits, rendered a decision regarding pleading the mentioned two people as not guilty and acquitting them on the basis of the absence of corpus delicti. The court explained this decision by the fact that in the acts of the defendants there is no corpus delicti, provided for by Part 2 of Art. 358.1 of the RA Criminal Code. According to the court, despite the fact that the acts of the defendants formally contain the signs of the act provided for by this article, however, because of their lesser importance, they do not constitute a public danger.


An appeal was launched against the mentioned decision by the Military Prosecutor's Office of Lori Garrison. However, the RA Criminal Court of Appeal rejected the appeal and upheld the verdict of the Court of First Instance.


Deputy Prosecutor General V. Harutyunyan launched a cassation appeal against this decision, which was accepted into proceedings.


By the launched appeal the RA Military Prosecutor disputed the decision regarding the fact that A.O. and A.A. preferred to use violence against the soldier, having a real opportunity to apply disciplinary sanction stipulated by the Disciplinary Code of Rules of the Armed Forces of the Republic of Armenia.


Moreover, in the light of a number of precedential decisions of the Court of Cassation and Art. 3 and Art. 4 of the RA Law “Disciplinary Code of Rules of the RA Armed Forces”, it was proved that the observance of the military service order is the duty of all soldiers, especially heads (commanders). In addition, it was also proved that the courts of lower instances, having considered the acts committed by A. O and A. A. as less important, did not take into account that there was a circumstance in the acts of the latter that forms the qualified corpus delicti.


As a result of the investigation, the RA Court of Cassation by the rendered decision fully satisfied the complaint of the Prosecutor’s Office, rejected the decision of the RA Criminal Appeal Court and sent the case to the same court for a new investigation.


By the decision, the RA Cassation Court stated that because of the lesser importance, on the basis of not representing public danger, the conclusions of the courts of lower instances on not considering the acts of the officers as crimes were not substantiated. The Court of Cassation emphasized that the head, being responsible for military discipline, observance of military politeness, as well as the formation of the correct moral and psychological atmosphere among subordinates, is obliged in the exercise of his duties to be guided only by the laws and requirements of military codes.


“It is unacceptable to use violence or the threat of using violence against a subordinate to achieve the aforementioned goals, even if it was used for the normal behavior of the latter. Acts with the use of violence in the course of military service in themselves constitute a high public danger, since they violate the established order of subordination, the formed moral and psychological atmosphere” - noted the Court of Cassation, adding that the courts of lower instances did not properly assess the circumstance that from the criminal acts one was committed in the presence of other soldiers, which significantly increases the degree of public danger of the crime.