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The 74-year-old second degree disabled Seryoja Davtyan met his acquaintance Arsen Gevorgyan in front of ‘Erebouni’ municipality building. After buying vodka, bread and food from the nearby shop they went to ‘Vardavar’ park. After drinking vodka they started arguing and S. Davtyan hit Arsen with a knife.

The defendant S. Davtyyan was found guilty by the Court of First Instance of General Jurisdiction of the Erebouni and Noubarashen administrative districts on June 11, 2010. He was sentenced to 3 years in prison. However, based on Article 70 of the RA Criminal Code the Court conventionally did not implement the punishment towards S. Davtyan, defining 2 years of trail period.

The judgment of the Court of First Instance of General Jurisdiction did not satisfy the accusing party. The prosecutor S. Mkrtchyan filed an appeal, which was satisfied and the implementation of Article 70 of the RA Criminal Code was declared void, leaving the punishment defined by the judgment in force, i.e. S. Davtyan had to be imprisoned for 3 years.

S. Davtyan’s lawyer opposed the decision of the Court of Appeal filing a cassation complaint.

As a response to the cassation complaint the victim A. Grigoryan and his representative Arusik Gevorgyan stated that the defendant took care of the medical expenses of the victim, they settled the dispute and do not oppose the non-implementation of the punishment towards S. Davtyan.

The Court of Cassation pays attention to the following formulation in the judgment of the Court of First Instance. ‘The Court considered the facts that the defendant is old (74-year-old), does not have previous convictions, is positively described, has partially accepted his guilt and regretted for the committed action as circumstances mitigating the responsibility and punishment of the defendant’. The Court of Cassation also notes that in the judgment on the case of S. Davtyan no circumstances aggravating his responsibility and punishment were reported.

Whereas in the decision of the Court of Appeal the following formulation is present ‘The circumstances mitigating the responsibility and punishment of the defendant, which were taken into consideration by the Court of First Instance, are not real and not sufficient to conclude that the defendant S. Davtyan can change without carrying the punishment’.

Having examined the cassation complaint the Court of Cassation notes that Article 62, Section 1 of the RA Criminal Code states the list of the circumstances mitigating the responsibility and punishment, according to Section 2 of which ‘The Court can consider other mitigating circumstances, when handing in the sentence, which are not indicated in Section 1 of the article’. The Court of Cassation highlighted many circumstances stated by the Court of First Instance.

The Court of Cassation considers the circumstances presented by the Court of First instance as mitigating the responsibility and punishment of the defendant as real and can be observed as circumstances mitigating his responsibility and punishment.

It can be concluded from the indicated legislative regulations and legal position expressed in the precedential decisions of the Court of Cassation that ‘for conventional non-implementation of the punishment the Court has to be convinced that the defendant can change without being imposed the indicated punishment’.

The Court of Cassation finds that the combination of circumstances mitigating the responsibility and punishment of the defendant, as well as the fact that the victim does not oppose conventional non-implementation of the punishment are enough to conclude that S. Davtyan can change without bearing the punishment and can become these circumstances can basis for the implementation of Article 70 of the RA Criminal Code.

Based on above-mentioned and being guided by Article 92 of the RA Constitution, relevant articles of the RA Criminal Procedure Code, the Court of Cassation made a decision to satisfy the cassation complaint.

The decision of the Court of Appeal regarding the defendant S. Davtyan was overruled. The judgment of the Court of First Instance of General Jurisdiction of Erebouni and Noubarashen districts of Yerevan from June 11, 2010 was given legal power.