Participation of a lawyer in proceedings on the application of compulsory medical measures
The main goal of criminal procedure legislation is to protect the rights and interests of individuals and legal entities, the interests of society and the state. To enable them to exercise their rights, the legislation provides for a number of guarantees - means and conditions that ensure the appointment of criminal proceedings. In relation to criminal proceedings, one of the main guarantees is the participation of a lawyer. Moreover, in some cases, the participation of a lawyer in a criminal case is mandatory. In particular, the lawyer participates in proceedings regarding the application of compulsory medical measures.
Proceedings on the application of compulsory measures of a medical nature have their own specifics related to the fact that the person against whom the proceedings are being conducted is not a subject of criminal law due to mental illness or another condition that does not allow the person to understand the meaning of his actions and manage them. Only a person who is able to understand what is happening, the cause-and-effect relationship between his actions and consequences, and self-regulate his behavior can be the subject of a crime. In this regard, there is no corpus delicti in this proceeding. Therefore, there is no incrimination of the person here.
The production and application of compulsory medical measures takes place when a person committed a crime in a state of insanity or if such a state occurred after the commission of a crime. In the first case, the person is not subject to criminal liability. If a state of insanity occurs after the commission of a crime, but before the case is considered by the court, subsequent prosecution of the person is possible. If a person has a state of insanity, punishment cannot be imposed, since the main purpose of punishment is not retribution, but the correction of the convicted person. And for correction it is necessary that the person can evaluate reality and his actions. Therefore, in order to impose a punishment in this case, preliminary treatment of the person is necessary.
Since a person acting in a state of insanity is not a subject of criminal law, he cannot commit a crime. Therefore, this person commits an act prohibited by the Criminal Code.
Preliminary investigations in cases of application of compulsory medical measures are not carried out. However, the investigation still takes place. The range of circumstances subject to proof coincides with the range of issues subject to proof during the investigation of a criminal case.
In cases involving the use of compulsory measures of a medical nature, it is impossible to use preventive measures. However, if a person, due to his condition, poses a danger to others or to himself, he may be placed in a medical organization that provides psychiatric care in an inpatient setting.
Another feature of the proceedings on the application of compulsory medical measures is the participation of the legal representative of the person. It is involved in the case on the basis of a decision of the investigator or the court. Usually the legal representative is a close relative, but in his absence, the guardianship and trusteeship authority is involved in the case.
The law does not restrict a person from participating in proceedings on the application of compulsory medical measures against him if the person, due to his condition, is able to take part in the case. When deciding on the participation of a person, the court takes into account the opinion of the experts who carried out the forensic psychiatric examination, as well as employees of the medical organization providing psychiatric care in an inpatient setting where the person was placed.
Due to the fact that the person against whom the proceedings for the application of compulsory medical measures are being conducted is not a defendant, the lawyer of such a person should be called a representative, and not a defender.
The participation of a lawyer in cases of application of compulsory medical measures is mandatory from the moment a forensic psychiatric examination is ordered in relation to a person. However, an opinion is also expressed that the participation of a defense attorney is necessary earlier, when signs indicating that a person has a mental illness are identified, since the decision itself to appoint an examination in relation to such a person is the basis for a significant restriction of the rights and freedoms of this person. It is also noted that often the investigator does not have factual grounds for ordering an examination, but they order it, which leads to a violation of the rights and freedoms of the person.
The process of gathering evidence indicating that a person has mental illness can be lengthy. Evidence that a person has mental illness includes:
Concept, content, types, features of the use of compulsory medical measures
Compulsory medical measures are medical measures provided for by the Criminal Code of the Russian Federation, applied to persons who have committed socially dangerous acts, provided that these persons suffer from mental disorders.
Compulsory medical measures can only be prescribed:
– persons who have committed acts provided for in the articles of the Special Part of the Criminal Code of the Russian Federation in a state of insanity;
– persons who, after committing a crime, have developed a mental disorder that makes it impossible to impose or execute punishment;
– persons who have committed a crime and suffer from mental disorders that do not exclude sanity.
Persons who, after committing a crime, have developed a mental disorder that makes it impossible to assign or execute a punishment include persons who, before the imposition of punishment (during criminal proceedings) or while serving the sentence, developed a mental disorder that deprives them of the ability to realize the actual nature of the crime. and the public danger of their actions (inaction) or to direct them.
Persons who have committed a crime and suffer from mental disorders that do not exclude sanity include sane persons who, at the time of committing the crime, due to a mental disorder, could not fully understand the actual nature and social danger of their actions (inaction) or control them.
Compulsory medical measures against the above-mentioned persons are prescribed only in cases where mental disorders are associated with the possibility of these persons causing significant harm or danger to themselves or other persons, i.e. if there is reason to believe that the person may commit a new socially dangerous act .
Compulsory medical measures are not prescribed: to persons who have committed a crime and are recognized as needing treatment for alcoholism or drug addiction.
The purposes of applying compulsory medical measures are set out in Art. 98 of the Criminal Code of the Russian Federation:
– healing of persons who committed acts in a state of insanity, or persons who, after committing a crime, developed a mental disorder that makes it impossible to assign or carry out punishment; persons who have committed a crime and suffer from mental disorders that do not exclude sanity, which means the complete recovery of a person as a result of the application of compulsory medical measures against him;
– improvement of their mental state – it involves the partial disappearance of mental illness or disorder syndromes after the application of compulsory medical measures;
– prevention of their commission of new acts, which means that as a result of the application of these measures, the person ceases to pose a danger due to his mental state to others and to himself.
Types of compulsory medical measures:
– outpatient compulsory observation and treatment by a psychiatrist;
– compulsory treatment in a general psychiatric hospital;
– compulsory treatment in a specialized psychiatric hospital;
– compulsory treatment in a specialized psychiatric hospital with intensive supervision.
When choosing to apply one or another type of compulsory measure of a medical nature, it is necessary to be guided by the social danger of the patient, determined by his mental state and the nature of the socially dangerous act committed.
Outpatient compulsory observation and treatment by a psychiatrist may be prescribed if the person’s mental state does not require placement in a psychiatric hospital, and compulsory treatment in a psychiatric hospital is prescribed if the nature of the person’s mental disorder requires such conditions of treatment, care, maintenance and observation , which can only be carried out in a psychiatric hospital.
Compulsory treatment in a general psychiatric hospital is prescribed to persons who do not require intensive supervision, but due to their mental state require inpatient treatment and observation (persons with dementia, mental defect states of various origins and other mental disorders who have committed acts provoked by any external unfavorable circumstances, without a pronounced tendency to repeat them, etc.).
Compulsory treatment in a specialized psychiatric hospital may be prescribed to a person whose mental state requires constant monitoring (persons with chronic mental illness or dementia, which is revealed by the clinical manifestations of the disease, and (or) with temporary mental disorders that developed after committing a social crime dangerous acts, sent for compulsory treatment until recovery from the specified painful state, in the event of a threat of committing new socially dangerous acts, etc.).
Compulsory treatment in a specialized psychiatric hospital with intensive supervision may be prescribed to a person whose mental state poses a particular danger to himself or others and requires constant and intensive supervision. This category should include patients who have committed serious socially dangerous acts with a real possibility of their repetition, due to the clinical manifestations of the disease and (or) premorbid personal characteristics; those who, due to the clinical manifestations of the disease, exhibit antisocial tendencies, manifested in repeated socially dangerous actions, as well as in gross violations of the regime of a psychiatric hospital; with temporary mental disorders that developed after committing serious acts, sent for compulsory treatment until recovery from the specified painful state, if there is still a possibility of committing a new socially dangerous act or escaping, etc.
Application of medical measures to convicted persons
May 7, 2018
In accordance with Part 2 of Art. 99 of the Criminal Code of the Russian Federation, for persons convicted of crimes committed in a state of sanity, but in need of treatment for mental disorders that do not exclude sanity, the court, along with punishment, may impose a compulsory measure of a medical nature in the form of outpatient compulsory observation and treatment by a psychiatrist.
In these cases, when a sentence of imprisonment is imposed, compulsory medical measures are carried out at the place where the sentence is served. The same procedure is provided for those sentenced to arrest, but this type of punishment has not yet been put into effect.
Compulsory medical measures may be imposed along with punishment. If, while serving imprisonment or arrest, it is established that the convict suffers from a mental disorder that does not exclude sanity, which is associated with a danger to himself or other persons, the administration of the institution executing these types of punishments sends to the court a proposal to apply compulsory measures to such convict. medical measures. Compulsory treatment of persons with mental disorders that do not exclude sanity is carried out on an outpatient basis in institutions that have a psychiatrist on staff, and, if necessary, on an inpatient basis, in psychiatric hospitals and psychiatric departments of penal correctional institutions hospitals.
In relation to those sentenced to other types of punishment, compulsory measures of a medical nature are carried out in health care institutions that provide outpatient psychiatric care.
If there is a change in the mental state of the convicted person requiring inpatient treatment, the placement of the convicted person in a psychiatric hospital or other medical institution is carried out in the manner and on the grounds provided for by the legislation of the Russian Federation on health care.
The time spent in these institutions is counted towards the term of serving the sentence. If there is no longer a need for further treatment of the convicted person in these institutions, discharge is carried out in the manner prescribed by the legislation of the Russian Federation on healthcare.
Termination of the application of a compulsory medical measure combined with the execution of a sentence is carried out by the court upon the proposal of the body executing the punishment, based on the conclusion of a commission of psychiatrists. If the convicted person is released from serving his sentence on the grounds listed in Art. 172 of the Penal Code of the Russian Federation, but requires the continued application of compulsory medical measures, the administration of the institution or body executing the punishment sends a petition to the court for the continuation of treatment, which will be carried out in healthcare institutions.
Along with the application of compulsory medical measures to convicts who were sentenced to imprisonment or arrest, the penal law provided for the possibility of using compulsory treatment. It applies to convicts suffering from alcoholism, drug addiction, substance abuse, HIV-infected convicts, as well as convicts suffering from an open form of tuberculosis or who have not completed the full course of treatment for a sexually transmitted disease, by an institution executing these types of punishments, by decision of the medical commission. Treatment of these convicts is carried out in medical correctional institutions of the penitentiary system.
Convicts subject to compulsory treatment for alcoholism and drug addiction are held and undergo outpatient treatment in medical correctional institutions of the penal system created for these purposes.
Hospitalization of patients with sexually transmitted infections is carried out in the dermatovenerological departments of hospitals of the penal system or in other departments (infectious diseases, therapeutic), in which separate beds (wards) are allocated for them. If it is impossible to be referred to a hospital, patients with sexually transmitted diseases are hospitalized in the inpatient units of the medical units of the institutions with separate beds (wards) allocated for them.
Hospitalization of a patient with HIV infection can be carried out according to clinical, epidemiological and socio-psychological indications.
Medical anti-tuberculosis organizations of the penal system include: - a medical correctional institution for the detention and treatment of convicts with tuberculosis; — tuberculosis hospitals; — bacteriological laboratories for the diagnosis of tuberculosis.
Institutions (correctional institutions, pre-trial detention centers) in which isolated areas have been created for the detention and treatment of patients with tuberculosis, as well as tuberculosis treatment and diagnostic departments of hospitals or medical units, other medical units providing anti-tuberculosis care to suspects, accused and convicted persons, perform the functions of medical anti-tuberculosis organizations.
Prepared by the Ryazan prosecutor's office
for supervision of compliance with laws in correctional institutions
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