Court Overturns Acquittal of Officers Charged with Assaulting Soldier

The Office of the General Prosecutor of Armenia has received the decision of the Court of Cassation regarding the cassation appeal filed by Deputy Prosecutor General V. Harutyunyan against the ruling of the sixth military investigative department of the RA Special Investigation Service, dated May 25, 2017, initiated under the provisions of part 2 of Article 358.1 of the RA Criminal Code. This ruling may have significant implications for the formation of new legal practices in cases investigated under the said article, serving as a serious deterrent for commanders to refrain from using violence against subordinates while performing their duties.

On July 18, 2017, the investigative authority charged A. O. and A. A. under part 2 of Article 358.1 of the RA Criminal Code. The case was forwarded to the Tavush regional court on November 24, 2017, with an indictment conclusion.

According to the factual findings obtained during the investigation, A. A., the acting commander of a platoon of Military Unit N, on an unspecified day in November 2016, at 06:50, committed violence against a conscript soldier due to being late during a physical training session, striking the latter on the neck.

Similarly, Captain A. O., the commander of a company of the same military unit, committed violence against the aforementioned conscript soldier around 08:00 on a day in November 2016 during a parade inspection, due to the soldier's violations of the rules regarding military uniform and inappropriate appearance, kicking him on the leg.

The first-instance court, after examining the case, rendered a decision to acquit the two individuals based on the absence of corpus delicti in the charges made against them. The court reasoned that although the actions of the accused formally contained the characteristics of the act stipulated by Article 358.1 of RA Criminal Code, they did not pose a public danger due to their minor nature.

This decision led to an appeal by the military prosecutor’s office of the Lori garrison. However, the RA Court of Appeals rejected the appeal and upheld the first-instance court's verdict for the same reasons.

Deputy Prosecutor General V. Harutyunyan filed a cassation appeal against this decision, which was accepted for consideration. In this appeal, the military prosecutor challenged the fact that A. O. and A. A., rather than serving as examples for their subordinates and instilling a sense of military duty, had preferred to resort to violence, having the actual opportunity to apply the disciplinary measures provided for in the disciplinary code of the RA Armed Forces.

Furthermore, under a series of precedent-setting decisions of the Court of Cassation and in light of Articles 3 and 4 of the RA Law on the Disciplinary Regulations of the Armed Forces, it has been established that maintaining military order—which ensures the constant combat readiness of the RA Armed Forces—is the duty of all soldiers, especially those in leadership positions.

The Court of Cassation concluded that the lower courts failed to properly assess that the actions of A. O. and A. A. possess aspects that could qualify them as a crime, based on the characteristics of the offenses committed.

As a result of the review, the Court of Cassation completely satisfied the prosecution’s appeal, annulled the decision of the RA Court of Appeals, and referred the case back to that same court for re-examination.

The Court of Cassation noted that the reasoning of the lower courts, asserting that the officers’ actions should not be considered crimes purely based on minor significance, was unfounded and unsupported. The court emphasized that as responsible figures maintaining military discipline and military decorum, commanders must govern their duties solely according to laws and military code demands.

“It is unacceptable to exert violence or threaten subordinates to achieve the aforementioned objectives, even if for the purpose of restoring order. Acts accompanied by violence during military service inherently pose a significant public danger, as they undermine the established order of military subordination and the created moral-psychological environment, which can sometimes lead to more severe consequences,” stated the RA Court of Cassation, adding that the lower courts did not duly consider the fact that one of the criminal acts was committed in the presence of other soldiers during a parade inspection, which significantly increases the public danger of the crime.