Article 128. Illegal hospitalization in a medical organization providing psychiatric care in inpatient conditions

1. Illegal hospitalization of a person in a medical organization providing psychiatric care in an inpatient setting is punishable by restriction of freedom for a term of up to three years, or forced labor for a term of up to three years, or imprisonment for the same term.

2. The same act, if it was committed by a person using his official position or caused by negligence the death of the victim or other grave consequences, is punishable by forced labor for up to five years with deprivation of the right to hold certain positions or engage in certain activities for up to three years. or without it, or by imprisonment for a term of up to seven years with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.

Commentary to Art. 128 Criminal Code

1. The victim may be a mentally healthy person or a mentally ill person placed in a medical organization providing psychiatric care in an inpatient setting, in violation of the placement procedure and (or) in the absence of grounds for placement.

2. The objective side consists of the illegal hospitalization of a person in a medical organization providing psychiatric care in an inpatient setting. The procedure for hospitalization is regulated by the Law of the Russian Federation of July 2, 1992 N 3185-1 “On psychiatric care and guarantees of the rights of citizens during its provision.” According to Art. 29 of this Law, a person suffering from a mental disorder may be hospitalized in a medical organization providing psychiatric care in an inpatient setting, without his consent or without the consent of one of the parents or other legal representative until a judge’s decision, if his examination or treatment is possible only in an inpatient setting , and the mental disorder is severe and causes: a) his immediate danger to himself or others, or b) his helplessness, i.e. inability to independently satisfy the basic needs of life, or c) significant harm to his health due to deterioration of his mental state if the person is left without mental health care.

3. Illegal detention of a person who has been completely cured in a medical organization providing psychiatric care in an inpatient setting should be qualified under Art. 127 CC.

4. The corpus delicti is formal and is considered completed from the moment of illegal hospitalization of a person in a medical organization providing psychiatric care in an inpatient setting as a patient.

5. Special subject - a person who has reached the age of 16 years and is authorized by law to make a decision on involuntary hospitalization in a medical organization providing psychiatric care in an inpatient setting. Other persons who have reached the age of 16, such as family members, relatives, etc., are responsible for complicity as organizers, accomplices or instigators.

A judge who made an illegal decision on the forced hospitalization of a person in a medical organization providing psychiatric care in an inpatient setting is subject to liability under Part 1 of Art. 305 CC.

6. In part 2 of Art. 128 of the Criminal Code provides for the following qualifying criteria: a) commission of a crime by a person using his official position; b) causing the death of the victim through negligence or the occurrence of other grave consequences.

A Moscow court assessed illegal placement in a psychiatric hospital for a month at 20 thousand rubles.

On December 25, the Tverskoy District Court of Moscow issued a decision (available from “AG”), which awarded the citizen 20 thousand rubles. as compensation for moral damage for illegal hospitalization in a psychiatric hospital, reducing the amount requested by the plaintiff by 50 times.

Reasons for applying to court for compensation for moral damage

On June 16, 2011, a disabled person of the third group, Evgeny Alekhin, was detained by police officers and on the same day he was forcibly placed in the State Budgetary Institution of Public Health PKB No. 1 named after N.A. Alekseeva, where he previously received treatment. A week later, the hospital went to court demanding his forced hospitalization. The medical institution justified its demands by citing the patient’s mental illness and his danger to himself and others.

The trial took place in the absence of Evgeniy Alyokhin; only his lawyer and attending physician, as well as the prosecutor, were present. As a result, the Simonovsky District Court of Moscow satisfied the applicant’s request, and subsequently its decision was upheld on appeal. The total period of compulsory treatment of the citizen was 29 days; he left the hospital only on July 15.

In November 2014, the Presidium of the Moscow City Court canceled previously issued judicial decisions in the case due to violations of procedural law by lower authorities. “Information about the consideration of this case directly on the premises of the psychiatric clinical hospital No. 1 named after N.A. Alekseev is missing, as well as there is no information that the court took all the necessary measures to exercise the right of Evgeniy Alyokhin to personally participate in the judicial consideration of the issue of his hospitalization,” noted in the resolution of the Moscow City Court (available to “AG”).

With reference to the Determination of the Constitutional Court of the Russian Federation No. 544-O-P of March 5, 2009, the Moscow City Court noted that forced isolation from society of persons suffering from mental illness, due to their alleged danger to themselves or others, affects the following constitutional rights: freedom of movement, right to freedom and personal security. “At the same time, the citizen whose forced hospitalization is in question is deprived of the opportunity to in any way challenge the point of view of a representative of the mental hospital that he cannot attend the court hearing in the courthouse. It is precisely because of this that the role of the court in such cases cannot be reduced only to formally satisfying the application for compulsory hospitalization of a citizen or extension of the period of his compulsory hospitalization: the court is obliged to make sure that there are no grounds to doubt the reliability and completeness of the information provided by psychiatrists in support of the need for court hearing in a psychiatric hospital, with such information in accordance with Part 2 of Art. 67 of the Code of Civil Procedure of the Russian Federation cannot have pre-established force for the court and are subject to assessment in conjunction with other evidence based on the internal conviction of the judge,” the Moscow City Court explained.

Thus, the cassation considered that Evgeny Alekhin was deprived of the right to challenge the point of view of a representative of a psychiatric hospital due to his absence at the court hearing. The case was sent for a new trial at first instance.

In March 2021, the Simonovsky District Court rejected the claim of a psychiatric hospital for the forced hospitalization of Evgeniy Alyokhin. In the decision (available to “AG”), the court indicated that the basis for hospitalization was the conclusion of a commission of doctors, but the hospital did not prove its validity. “The conclusion of psychiatrists of a psychiatric institution acts as one of the evidence provided for by law, which it is obliged to present to the court, but it is not an expert’s conclusion in the sense of Art. 86 of the Code of Civil Procedure of the Russian Federation,” the court’s decision notes.

The court reduced the amount of compensation for moral damage by 50 times

Subsequently, Evgeny Alekhin filed a lawsuit against the Russian Ministry of Finance and the Moscow Department of Finance to recover compensation for moral damage in the amount of 1 million rubles. In support of his claims, the citizen referred to the moral suffering he experienced associated with hospitalization in a psychiatric hospital and forced treatment there.

He indicated that he was prescribed antipsychotic drugs, which were administered to him forcibly. In addition, he was placed in the general corridor of the hospital, and during the entire period of his stay there he was not transferred to a ward. He indicated that because of this he was deprived of normal rest and sleep, as he was escorted past patients who arrived at the hospital, most of whom were in a state of acute psychosis.

The Tverskoy District Court of Moscow agreed with the plaintiff’s argument that the defendant in the civil dispute is the Russian Ministry of Finance. The first court also found the plaintiff's request to be awarded compensation for moral damages due to the unlawful nature of his hospitalization to be justified. In doing so, the court took into account the patient’s age, his illness, disability due to psychiatric illness, the duration of forced hospitalization and the frequency of appropriate treatment.

At the same time, with reference to various provisions of the Civil Code of the Russian Federation and explanations of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 20, 1994 No. 10, the court noted that when determining the amount of compensation for moral damage, one should take into account the nature, volume and duration of the moral suffering caused to the plaintiff, the individual characteristics of the latter ( including his age and state of health), the degree of guilt of the defendant, as well as the requirements of reasonableness and fairness.

The Tverskoy District Court concluded that compensation of 20 thousand rubles. will be sufficient. “The court considers the specified amount of compensation for moral damage to correspond to the factual circumstances of this civil case, reasonable and fair, meeting the requirements of good faith and the amount of suffering experienced by the plaintiff. The court considers the plaintiff’s demands for compensation for moral damage in a larger amount to be disproportionate to the damage caused,” the court’s decision noted.

The appeal has already been filed

Lawyer of the human rights organization “Zone of Law” Ilnur Sharapov, who represented the interests of Evgeny Alyokhin in the Tverskoy District Court, told AG that he had already filed an appeal (available to the editors).

The complaint notes that the court's decision is unfounded in terms of the amount of compensation for moral damage, as well as taken without taking into account the circumstances that are essential for the correct resolution of the case.

“We consider the court’s decision regarding the assigned amount of compensation for moral damage to be unfounded. Unfortunately, in Russia there is very little practice in such cases, so we asked the court to focus on the decisions of the European Court in similar cases. Since the court of first instance did not properly assess our arguments, we expect that the appellate court will nevertheless change the decision and increase the amount of compensation,” commented Ilnur Sharapov.

AG experts pointed out the extremely low amount of compensation awarded by the court

Lawyer, Chairman of the Bar Association of the Bio-Ecological Safety and Health System of the Russian Federation Yuri Mezhenkov believes that in the case under consideration the court was based on a simple principle: if the decision made against the plaintiff is unlawful and canceled, therefore, the claim for compensation for moral damage is justified. “The resolution of the Presidium of the Moscow City Court dated November 21, 2014, which overturned previous judicial acts, is of much greater interest. The cancellation was based on either procedural violations of lower courts or violated patient rights,” he noted.

According to the expert, in the present case the court did not indicate the reason why the plaintiff was first hospitalized in a psychiatric hospital and then discharged. “Most likely, the plaintiff’s hospitalization and then discharge occurred for medical reasons. In total, he spent about one month in the hospital. It’s hard to say whether it’s a lot or a little, but if you compare it with the high-profile case of psychiatrist Andronova from Astrakhan, then the amount is 20 thousand rubles. for a month of illegal hospitalization is negligible. After all, for similar actions, doctor Andronova was found guilty by the Kirovsky District Court of Astrakhan under Part 1 of Art. 293 of the Criminal Code of the Russian Federation, and from her, and not from the budget of the Russian Federation, 500 thousand rubles were recovered in favor of the victim. Meanwhile, in this case, the victim (civil plaintiff) spent less than a day in a psychiatric hospital,” noted Yuri Mezhenkov.

Lawyer of Onegin Law Firm Dmitry Bartenev explained that court decisions on compulsory hospitalization in a psychiatric hospital are canceled very rarely, but if this happens, it is often, as in the situation in this case, after the end of such hospitalization. “If the case is sent for a new trial and subsequently (after the termination of compulsory treatment) the court refuses hospitalization, then such a decision can have only symbolic meaning for the person himself. In this case, the plaintiff still achieved compensation, but this is rather an exception,” he noted.

Second commentary to Art. 128 of the Criminal Code of the Russian Federation

1. The main direct object of the crime is social relations that ensure a person’s right to freedom of movement and choice of place of stay (residence). An additional object is public relations regarding the exercise by a person of the right to dignity, honor and reputation.

2. The objective side consists of involuntary, forced hospitalization of a person in a medical organization providing psychiatric care in an inpatient setting, in the absence of legal grounds for this.

The crime is recognized as completed from the moment of actual groundless placement of a person in a medical organization providing psychiatric care in an inpatient setting, or from the moment of illegal refusal to discharge from it.

3. The subjective side is characterized by direct intent.

4. The subject of the crime is special: a person authorized in accordance with the law to make a decision on involuntary, compulsory hospitalization in a medical organization providing psychiatric care in an inpatient setting.

5. The content of the qualifying characteristics coincides with the corresponding characteristics of human trafficking.

What is meant by libel in criminal law?

Before considering in detail how this offense is regulated by Article 128 of the Criminal Code of the Russian Federation, we need to turn to the concept of slander.

Slander is actions aimed at creating and further disseminating information about someone that in fact is not valid and that harms the honor and dignity of a citizen.

It is important to note that slander should not be understood as erroneous information, but deliberately false: the offender always knows that the information he disseminates is untrue.

Thus, the main task and primary goal of the criminal is to cause moral or material damage by influencing someone’s reputation, honor or dignity.

False information about a person or group of people can be spread in a variety of ways.

The most popular are the following:

• articles, posts, photographs and videos posted on the Internet;
• appearance on television, radio;
• performance as part of an event or celebration.

Libel should be considered separately from defamation, which is understood as the dissemination of information that is harmful to reputation and honor, which, however, may be true. For example, information about the fact of corruption on the part of a high-ranking official, which is true, should be classified as defamation, and not slander.

Moreover, a false slander is not an insult. Insult is understood as evaluation or condemnation of the personal qualities, actions and deeds of a citizen, which is expressed in obscene and abusive form. Libel may contain elements of insult, but, as a rule, it has a fairly neutral expression of information that is false about a person.

Liability for libel

Until 2012, in the Russian Federation there was only civil liability for libel. Later it became obvious that the consequences of slander are sometimes the most severe. Therefore, libel became part of criminal law. Moreover, in modern judicial practice, more and more cases are being initiated within the framework of the Criminal Code of the Russian Federation.

Illegal actions involving slander are considered by Article 128 of the Criminal Code of the Russian Federation. The more serious what a person is illegally accused of, the more serious the punishment will be.

The new edition of the article, namely its first part, provides for the following penalties in relation to slanderers:

1. The fine is 500 thousand rubles.
2. Forced labor for up to a week.

If someone has attempted to slander another person through the use of the media, the punishment becomes more severe:

• a fine of one million rubles;
• compulsory work – 10 days.

In some cases, slander becomes possible if the culprit has special powers and a high position in a particular company.

Here the Criminal Code provides for the following penalties:

1. The fine is 2 million rubles.
2. Work - about two weeks.

If someone decides to report information about another person that he has diseases that are dangerous to other members of society (for example, sexually transmitted or mental), which in fact do not exist, the criminal faces the following sanctions:

• fine – 3 million rubles;
• compulsory work – about 16 days.

The same penalties are provided for those who attempt to accuse another person of committing illegal acts of a sexual nature.

Finally, the most severe penalties are provided for those who disseminate false information that someone was directly involved in the commission of a particularly dangerous and serious crime:

1. Fine – 5 million rubles.
2. Mandatory work – 20 days.

In addition to the Criminal Code of the Russian Federation, libel is also considered within the framework of the Code of Administrative Offences, namely under Article 5.60. If, as a result of slander, the reputation and honor of the victim were damaged, within the framework of administrative law, the culprit will be punished with a fine of 1 to 500 thousand rubles, depending on the seriousness of the consequences of the crime.

Also, actions related to slander are regulated by the Civil Code of the Russian Federation, namely Article 152.

The following types of punishment may be applied to the offender:

• penalties – one million rubles;
• forced labor – 10 days.

Thus, depending on the intentions of the criminal, the severity of the consequences and other factors that took place during the commission of the crime, libel can be punished under the Criminal Code of the Russian Federation, the Code of Administrative Offenses of the Russian Federation and the Civil Code of the Russian Federation.

What to do if you are a victim of slander?

If you have discovered false information about yourself on the Internet, in the media, or have heard somewhere some facts that do not correspond to reality, it is first of all better to talk to a legal consultant: he will tell you where it is best to turn specifically in your case.
In addition, you can contact:

1. To the police.
2. To the prosecutor's office.
3. To court.

To hold someone accountable for committing illegal actions, you must provide evidence: screenshots, correspondence, audio recordings, photos or videos.

Law enforcement agencies will ask you to make a statement in which you must:

• indicate the name of the law enforcement agency to which you intend to file an application;
• state all the facts and information related to the offense (time, place, circumstances, alleged culprit);
• attach the evidence you have (screenshots, correspondence, audio recordings, photos or videos);
• demand that the culprit be brought to justice in accordance with the article of the Criminal Code, Civil Code, Code of Administrative Offenses of the Russian Federation.

The statute of limitations in this case is two years. This means that if you are a victim of libel, you do not have to wait: after two years from the date of the crime, it will no longer be possible to file a claim.