Criminal Code of the Russian Federation in the latest edition:
Article 97 of the Criminal Code of the Russian Federation. Grounds for applying compulsory medical measures
1. Compulsory medical measures may be imposed by a court on the following persons:
a) who committed acts provided for in the articles of the Special Part of this Code in a state of insanity;
b) who, after committing a crime, have developed a mental disorder that makes it impossible to impose or carry out punishment;
c) who have committed a crime and suffer from mental disorders that do not exclude sanity;
d) has become invalid. — Federal Law of December 8, 2003 N 162-FZ;
e) who, at the age of over eighteen, have committed a crime against the sexual integrity of a minor under fourteen years of age, and who suffer from a disorder of sexual preference (pedophilia), which does not exclude sanity.
2. Persons specified in part one of this article are prescribed compulsory medical measures only in cases where mental disorders are associated with the possibility of these persons causing other significant harm or danger to themselves or other persons.
3. The procedure for the execution of compulsory measures of a medical nature is determined by the criminal executive legislation of the Russian Federation and other federal laws.
4. In relation to the persons specified in paragraphs “a” - “c” of part one of this article and who do not pose a danger due to their mental state, the court may transfer the necessary materials to the federal executive body in the field of healthcare or the executive body of the constituent entity of the Russian Federation in in the healthcare sector to resolve the issue of treating these persons in a medical organization providing psychiatric care, or sending these persons to inpatient social service institutions for persons suffering from mental disorders, in the manner established by legislation in the field of health care.
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Definition of the concept of “compulsory medical measures”
Compulsory measures of a medical nature are measures of state coercion applied by the court to persons suffering from mental disorders if they commit a socially dangerous act prohibited by criminal law.
Medical measures are coercive, as they are applied regardless of the wishes or unwillingness of the sick person, his relatives or loved ones, and also entail a restriction of certain rights and freedoms of the patient.
We will also provide more detailed definitions of the concept of compulsory medical measures.
Compulsory measures of a medical nature can be characterized as measures of state coercion based on criminal and criminal procedural law, applied by court decision to a person who has committed a socially dangerous act in a state of insanity as provided for in the Special Part of the Criminal Code of the Russian Federation or who, after committing a crime, has developed a mental disorder that makes it is impossible to assign a punishment (its execution), as well as to a person who has committed a crime and suffers from a mental disorder that does not exclude sanity, provided that the mental disorder of such a person is associated with the possibility of causing him other significant harm or with a danger to himself or other persons, and those who place a mentally ill person in a medical organization that provides psychiatric care in an inpatient setting, of a general type, a specialized type or a specialized type with intensive supervision, in order to limit society from committing a repeated socially dangerous act, protecting the safety of the person of the patient himself and introducing him to the conditions of compliance with the rules public order.
In paragraph 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 04/07/2011 N 6 “On the practice of using compulsory measures of a medical nature by courts” the following definition of the concept of “compulsory measures of a medical nature” is given:
“ Compulsory measures of a medical nature are measures of a criminal legal nature and are applied only to persons who have committed a socially dangerous act provided for by criminal law in a state of insanity or who, after committing a crime, have developed a mental disorder that makes it impossible to impose a punishment or its execution, as well as to persons who have committed a crime and suffer from mental disorders that do not exclude sanity, and only if the mental disorder is associated with the possibility of these persons causing other significant harm or danger to themselves or other persons (parts 1 and 2 of Article 97 of the Criminal Code of the Russian Federation). At the same time, the goals of applying compulsory measures of a medical nature differ from the goals of applying punishment and, by virtue of Article 98 of the Criminal Code of the Russian Federation, are to cure or improve the mental state of these persons, as well as to prevent them from committing new socially dangerous acts provided for by criminal law.”
Thus, persons, although suffering from certain mental disorders, but who have committed offenses that do not contain signs of a crime, or who have not committed any offenses at all, cannot be subject to the use of compulsory medical measures.
What types of medical penalties are there?
Medical measures vary
Of course, it is easiest to talk about what kind of compulsory treatment can be prescribed to certain criminals using specific examples. Medical measures are very different. They differ from each other, first of all, in the severity of the regimen prescribed to the patient and the nature of monitoring him.
Thus, we can distinguish several main groups of frequently prescribed compulsory medical measures:
- Ambulatory treatment. In general, observation by a psychiatrist does not imply the need to constantly keep the patient in a hospital. Therefore, if the accused is recognized as not dangerous to others, they prefer to treat him on an outpatient basis, scheduling visits to specialists, during whose visits the patient will be able to receive proper care. By the way, this is the only treatment method available for mentally unstable patients under the age of 16.
- General hospital. This type of punishment is usually prescribed to those criminals whose condition implies the possibility of deviant behavior, but does not pose a direct threat to the people around them. Thus, while in such an institution, the patient can receive proper care and, moreover, remain harmless both to himself and to others due to the constant monitoring of patients (although not very closely).
- Specialized hospitals. If the patient is “at risk” (that is, may be dangerous), he is assigned to treatment in an institution with a special regime. There he will be constantly monitored by additional personnel (security and nurses). And here the patient will be able to receive any treatment he needs. If the patient's condition improves, he may be transferred from a specialized hospital to a general institution.
- Intensive care hospitals. The very name of such institutions implies that the people there are dangerous both to themselves and to others (including medical personnel). Such patients are characterized by constant violations of the regime and a tendency to relapse. Thus, to make sure that such a patient does not commit another offense, they monitor him especially strictly.
Compulsory medical measures and criminal penalties. Similarities and differences
Compulsory measures of a medical nature are measures of state coercion that are superficially similar to criminal punishment. They are put into action in connection with the commission of socially dangerous acts (or crimes committed by persons specified in Article 22 of the Criminal Code of the Russian Federation), are applied by court decision, and are associated with the restriction of the rights of citizens. Their use is associated with significant restrictions on constitutional rights and legally protected interests, primarily the right to freedom and personal integrity. They can also be classified as measures of a criminal law nature by the fact that they are appointed on behalf of the state and only by the court.
Meanwhile, criminal punishment and coercive measures of a coercive nature are completely different legal phenomena, differing in their content, grounds, goals, order of application and termination.
Compulsory medical measures are not criminal penalties; they are a means of protection against socially dangerous acts of mentally ill persons.
Compulsory medical measures in their content are medical measures that are applied only to persons suffering from mental disorders. They represent a system of psychotherapeutic, medical-preventive and medical-rehabilitation measures, as well as a system of medical measures for the care and supervision of mentally ill people.
The measures under consideration are being implemented not in the system of institutions executing punishment, the Ministry of Justice of the Russian Federation, but in medical organizations of the state health care system that provide psychiatric care.
Compulsory measures of a medical nature do not contain an element of punishment and deliberate infliction of suffering, and do not express a negative assessment of socially dangerous actions and persons suffering from mental disorders themselves. These measures are not aimed at correcting and restoring social justice, are not prescribed for a specific period, and the duration of their use depends primarily on the nature and severity of the mental disorder. Unlike punishment, the court does not determine the duration of such measures, since it is impossible to determine in advance the period necessary for recovery or improvement of a person’s mental health.
Compulsory treatment as a measure of criminal law must be distinguished from involuntary hospitalization according to the conclusion of psychiatrists, from compulsory treatment in a medical organization providing psychiatric care in an inpatient setting by a judge’s order to persons who have not committed a socially dangerous act, issued in accordance with the Law about psychiatric care.
What are medical measures?
Medical measures are one of the types of penalties
As is clear from the above, medical measures are nothing more than one type of standard penalties. However, unlike other methods of punishing criminals, this one has one specific feature. Thus, compulsory treatment is officially considered both a medical and legal measure of influence on the offender.
That is, law enforcement officers impose this penalty in strict accordance with the Criminal Code of the Russian Federation. And its implementation is monitored by doctors who prescribe therapy for the criminal in accordance with their own professional ideas about the treatment of mental illness.
Speaking of the Criminal Code. Cases in which insane offenders appear are given a separate article in this document - number 97. It is there that all the penalties that can be applied to mentally disabled criminals are specified in detail. In general, all such sanctions without exception have common distinctive features:
- for their implementation, very special conditions are required in which it will be possible to ensure complete safety of both the defendant himself and any third parties around him;
- they can come into force regardless of whether the offender himself agrees to undergo treatment (the opinion of the sane relatives of the offender, that is, the persons responsible for him, does not play a role here);
- the main criterion for determining the duration and severity of the prescribed punitive medical measures adequate to the offense is the state of health (primarily mental) of the defendant and his danger to others;
- Only the court has the right to change the terms and severity of once imposed punitive medical measures; the opinion of medical experts, in this case, will act as an argument (additional, but not decisive) in favor of one or another decision.
Grounds for applying compulsory medical measures
The grounds for applying compulsory medical measures are determined by a combination of legal and medical criteria.
The legal criterion is that the grounds, goals, types, procedure for application and termination of these measures are determined by the Criminal Code of the Russian Federation. The procedure for their appointment is regulated by the Criminal Procedure Law (Code of Criminal Procedure of the Russian Federation). In relation to specific persons who have committed crimes, they are appointed by the court. The court also considers further decisions on the extension, modification and termination of compulsory measures.
The medical criterion of these measures is determined by the fact that their content, types, conditions of appointment, modification and termination depend on the mental state of the person to whom they are applied. Recommendations on the use of compulsory measures are given by psychiatrists, including conclusions about the diagnosis of the disease, insanity or limited sanity, the prescription and implementation of treatment and prevention of mental disorders, as well as the necessary social rehabilitation measures.
The immediate legal basis for the application of the medical measures in question is:
- commission of a socially dangerous act, provided for by the Criminal Code of the Russian Federation, in a state of insanity by persons suffering from mental disorders;
- the commission of a crime by persons who, after committing it, developed a mental disorder that makes it impossible to assign or execute punishment, or who suffer from mental disorders that do not exclude sanity.
The difference between these grounds is significant. Recognition of a state of insanity at the time of committing a socially dangerous act means the unconditional release of such a person from criminal liability. The onset of a mental disorder after committing a crime does not exclude the subsequent bringing of such a person to criminal liability in the event of his recovery within the terms of criminal prosecution.
Who can be subject to compulsory medical measures?
The law provides for categories of persons to whom compulsory medical measures may be applied. In accordance with Part 1 of Article 97 of the Criminal Code of the Russian Federation, they can be appointed by the court to a limited circle of persons:
1). persons who have committed socially dangerous acts in a state of insanity and are subject to exemption from criminal liability. Part 1 of Art. 21 of the Criminal Code of the Russian Federation establishes a provision on the non-incurrence of criminal liability in the event that a person was in a state of insanity at the time of committing a socially dangerous act. Part 2 of the same article of the Criminal Code of the Russian Federation states that compulsory medical measures may be applied to such persons.
2). persons who have committed crimes in a state of sanity, but who, after committing the crime, have developed a mental disorder that makes it impossible to assign or carry out punishment. This category of persons, in turn, is divided into two groups.
a) The first of these includes persons who, after committing a crime, have a mental disorder that deprives them of the opportunity to realize the actual nature and social danger of their actions (inaction) or to manage them, making it impossible to assign or execute punishment. Such persons are released by the court not from criminal liability (like insane persons in the first category), but from punishment or from further serving it (Part 1 of Article 81 of the Criminal Code of the Russian Federation). Compulsory treatment is applied to them, as in relation to persons who have committed a socially dangerous act in a state of insanity. If they recover, they may be subject to criminal liability and punishment if the statute of limitations provided for in Art. Art. 78 and 83 of the Criminal Code of the Russian Federation (clause 3 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated 04/07/2011 N 6).
b) The second group includes persons who, after committing a crime, experienced a temporary mental disorder that does not allow them to resolve the issue of their sanity at the time of committing a socially dangerous act. For example, a person fell into a reactive state due to the initiation of a criminal case and the threat of punishment. In this case, he is prescribed compulsory treatment in accordance with the established procedure. When a person recovers, the case is investigated and considered in the general manner, unless the statute of limitations for criminal prosecution has expired. If such a mental disorder occurs while serving a sentence, compulsory medical measures may also be applied to such a person. After treatment, such persons are sent to a correctional institution to continue serving their sentence, unless the statute of limitations for execution of the sentence has expired. In the event of the onset of a temporary mental disorder after the commission of a crime, the issue of releasing a person from criminal liability is not resolved, and the court decision must indicate that these measures are prescribed until the person recovers from the painful state with his subsequent referral for examination to resolve diagnostic and expert issues.
3). persons who have committed a crime and suffer from mental disorders that do not exclude sanity . This category of persons is assigned a criminal sentence, which is carried out in accordance with the general procedure, and compulsory treatment is carried out simultaneously with serving the sentence. Upon completion of the sentence, such compulsory treatment ceases.
4). persons who, over the age of 18, have committed a crime against the sexual integrity of a minor under 14 years of age, and who suffer from a disorder of sexual preference (pedophilia), which does not exclude sanity. The application of PMMH to these persons can be continued after serving the sentence.
Imposition of coercive measures on a person whose mental state does not pose a danger
According to Part 2 of Article 97 of the Criminal Code of the Russian Federation, compulsory medical measures are prescribed not in all cases of a socially dangerous act committed by a person suffering from mental disorders, but only in cases where these mental disorders are associated with the possibility of these persons causing something else (in addition to the socially dangerous act committed) significant harm or danger to oneself or other persons, i.e. when these persons pose a danger not only to themselves, but also to others.
The danger of a person to himself or other persons or the possibility of this person causing other significant harm may be indicated by the nature of the mental disorder, confirmed by the findings of a forensic psychiatric examination, his tendency in this regard to commit violent acts against other persons or to cause harm to himself , to commit other socially dangerous actions (seizure of other people’s property, arson, destruction or damage to property in other ways, etc.), as well as the physical condition of such a person, taking into account which the possibility of realizing his socially dangerous intentions is assessed (clause 17 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated April 7, 2011 No. 6 “On the practice of using compulsory measures of a medical nature by courts”).
The Determination of the Constitutional Court of the Russian Federation dated November 17, 2009 N 1531-О-О contains the following legal position:
“Current criminal and criminal procedural laws directly state that compulsory medical measures are prescribed only in cases where a person’s mental disorder is associated with a danger to him or other persons or the possibility of causing him other significant harm (Part 2 of Article 97 of the Criminal Code of the Russian Federation and part 2 of article 433 of the Code of Criminal Procedure of the Russian Federation). Moreover, if a person does not pose a danger due to his mental state or has committed an act of minor gravity, then the court issues a decision to terminate the criminal case and refuse to apply compulsory medical measures; at the same time, the court decides the issue of canceling the preventive measure (part 2 of article 433 of the Code of Criminal Procedure of the Russian Federation). Thus, the provisions of Chapter 51 of the Code of Criminal Procedure of the Russian Federation, acting in systematic connection with the relevant provisions of the criminal law, do not imply the ability of the court to arbitrarily apply compulsory measures of a medical nature, including in relation to persons who, due to their mental state, do not pose a danger to themselves and others persons."
In relation to persons suffering from mental disorders, but who do not pose a danger due to their mental state, in accordance with Part 4 of Art. 97 of the Criminal Code of the Russian Federation, the court may transfer the necessary materials to the federal executive body in the field of health care or the executive body of the constituent entity of the Russian Federation in the field of health care to resolve the issue of treating these persons in a medical organization providing psychiatric care, or sending these persons to inpatient social service institutions for persons suffering from mental disorders, in the manner established by legislation in the field of health protection.
At present, the possibility of imposing compulsory medical measures on persons who have committed a crime and are recognized as in need of treatment for alcoholism and drug addiction is excluded, since such provisions of the law contradict the principles of voluntary treatment of persons who do not suffer from severe mental disorders, and also because the practice of prescribing such treatment showed its ineffectiveness.
Proceedings on the application of coercive measures
Proceedings on the application of compulsory medical measures are carried out on the basis of the provisions of Chapter. 51 Code of Criminal Procedure of the Russian Federation. When deciding on the application of a compulsory measure of a medical nature, the court must resolve the issues listed in Art. 442 of the Code of Criminal Procedure of the Russian Federation.
Having found it proven that an act prohibited by criminal law was committed by a given person in a state of insanity or that after committing a crime this person developed a mental disorder that makes it impossible to impose punishment or its execution, the court makes a decision to release this person from criminal liability or from punishment and on the application of compulsory medical measures against him, indicating a specific measure.
(as amended by the Resolution of the Plenum of the Supreme Court of the DPR dated November 9, 2018 No. 4)
In order to ensure uniform application of legislation when considering cases of this category, as well as in connection with issues arising from courts when assigning, extending, changing and terminating the use of compulsory measures of a medical nature, the Plenum of the Supreme Court of the Donetsk People's Republic, guided by Article 80 of the Constitution of the Donetsk People's Republic
DECIDES
give the following explanations:
1. When carrying out proceedings on the application of compulsory measures of a medical nature, the provisions of the Constitution of the Donetsk People's Republic, criminal, criminal procedural and criminal executive legislation must be strictly observed. When resolving certain issues related to the use of compulsory measures of a medical nature, it is necessary to be guided by the provisions of the legislation of the Donetsk People's Republic - the Criminal Code of the Donetsk People's Republic (hereinafter referred to as the Criminal Code), laws: “On Health Care” dated April 24, 2015 No. 42-INS as amended by as of June 4, 2015, “On Psychiatric Care” dated October 9, 2015 No. 86-INS as amended as of December 10, 2015, “On Forensic Expert Activities” dated February 27, 2015 No. 12-INS.
When resolving the issue of applying compulsory medical measures, courts should take into account the provisions of international acts and the practice of the European Court of Human Rights. In particular, the Standard Minimum Rules for the Treatment of Prisoners (adopted by the First UN Congress on the Prevention of Crime and the Treatment of Offenders on 30 August 1955) provide that persons judged to be of unsound mind should not be imprisoned, and therefore it is necessary take measures for their prompt transfer to institutions for the mentally ill (rule 82(1). The principles for the protection of mentally ill persons and the improvement of mental health care (approved by UN General Assembly Resolution 46/119 of December 17, 1991) provide that in relation to persons who have committed prohibited criminal law, if they are presumed or established to be suffering from a mental illness, the general principles of protection shall apply in full, with such minimum modifications and exceptions necessary in the circumstances as will not prejudice their rights (principle 20).
When deciding issues related to changing, extending or terminating the application of compulsory medical measures in relation to persons transferred to the Donetsk People's Republic in accordance with the Convention on the Transfer of Persons with Mental Disorders for Compulsory Treatment of March 28, 1997, courts should take into account attention to the provisions of this Convention.
2. Explain that compulsory medical measures are measures of a criminal legal nature and are applied only to persons who have committed a socially dangerous act provided for by criminal law in a state of insanity, or who, after committing a crime, have developed a mental disorder that makes it impossible to impose a punishment or its execution, as well as to persons who have committed a crime and suffer from mental disorders that do not exclude sanity, and only if the mental disorder is associated with the possibility of these persons causing other significant harm, or with a danger to themselves or other persons (parts, Article 97). At the same time, the purposes of applying compulsory measures of a medical nature differ from the purposes of applying punishment and, by virtue of Article 98, are to cure or improve the mental state of these persons, as well as to prevent them from committing new socially dangerous acts provided for by criminal law.
3. Compulsory medical measures in the form of outpatient compulsory observation and treatment by a psychiatrist, compulsory treatment in a medical organization providing psychiatric care in an inpatient setting (general type, specialized type or specialized type with intensive supervision) may be applied by a court to a person:
– who has committed a socially dangerous act provided for by criminal law in a state of insanity, that is, when this person, at the time of committing the act, could not realize the actual nature and social danger of his actions (inaction) or control them due to a chronic mental disorder, temporary mental disorder, dementia or other morbid condition mental states. Such a person is not subject to criminal liability (Part 1 of Article 20);
- who, after committing a crime, has developed a mental disorder that deprives him of the ability to realize the actual nature and social danger of his actions (inaction) or to manage them, making it impossible to assign or execute punishment. Such a person is released by the court from punishment or from further serving it (Part 1 of Article 82); in the event of recovery, he may be subject to criminal liability and punishment, if the statute of limitations provided for in Articles and have not expired.
The court may apply compulsory medical measures to a person who has committed a crime in a state of sanity, but suffers from a mental disorder that does not exclude sanity and is in need of treatment for a mental disorder. Along with punishment, the court imposes a compulsory medical measure on such a person in the form of compulsory observation and treatment by a psychiatrist on an outpatient basis (part 2 of Article 99), which is indicated in the operative part of the sentence.
4. The court, taking into account the provisions of Part 2 of Article 99, Articles 100 and 101, selects the type of compulsory measure of a medical nature. When determining the type of compulsory medical measure in relation to the persons specified in paragraphs “a”, “b” of Part 1 of Article 97, the courts should take into account the nature and degree of mental disorder, the person’s danger to himself and others, or the possibility of them causing other significant harm. The court must justify the decision based on an assessment of the opinion of the expert (experts) on the mental state of the person against whom proceedings are being conducted to apply a compulsory medical measure, and other evidence collected in the case.
In accordance with parts of Article 101, only persons whose mental state requires constant supervision, or who pose a particular danger to themselves or other persons, are placed in a medical organization providing psychiatric care in a specialized inpatient setting, as well as a specialized type with intensive supervision. and requiring constant and intensive monitoring.
5. The jurisdiction of cases on the use of compulsory measures of a medical nature is determined according to the general rules of jurisdiction in criminal cases established in Art. Art. 34, Code of Criminal Procedure of the DPR. Such cases are considered by the court alone.
(paragraph 1 of paragraph 5 as amended by the Resolution of the Plenum of the Supreme Court of the DPR dated November 9, 2018 No. 4)
(see text in the previous edition)
Issues of extending, changing or terminating the application of a compulsory medical measure are considered by the court that issued the decision on its application, or by the court at the place where this measure was applied.
6. In accordance with the requirements of paragraph 3 of Art. 83 of the Code of Criminal Procedure of the DPR, in every criminal case, the appointment and conduct of a forensic psychiatric examination is mandatory if it is necessary to establish the mental state of the suspect, accused, defendant, when doubt arises about his sanity or ability to independently defend his rights and legitimate interests in criminal proceedings. Circumstances that raise such doubts may include, for example, the presence of evidence that the person has received psychiatric care in the past (doctors diagnosed him with a mental disorder, he was provided with outpatient psychiatric care, he was placed in a medical organization providing psychiatric care in an inpatient setting , was declared insane in another criminal case, unfit for military service due to mental health conditions, etc.), that he was studying in an institution for persons with delayed or retarded mental development, that he had received traumatic brain injuries in the past, as well as oddities in actions and statements, indicating the possible presence of a mental disorder, his own statements about the painful (psychopathological) experiences he experiences, etc.
(paragraph 1 of paragraph 6 as amended by the Resolution of the Plenum of the Supreme Court of the DPR dated November 9, 2018 No. 4)
(see text in the previous edition)
When ordering a forensic psychiatric examination, with the permission of the experts, questions should be asked to determine the nature and extent of the mental disorder during the commission of a socially dangerous act provided for by criminal law, during the preliminary investigation or consideration of the case by the court, to establish whether the person during the specified periods could have been aware of the actual nature of the crime. and the public danger of their actions (inaction) or to direct them. Experts should also be asked questions about whether a person’s mental disorder is associated with a danger to him and others, or the possibility of causing other significant harm, whether such a person needs to apply a compulsory measure of a medical nature and what kind, and also whether this person can , taking into account the nature and extent of the mental disorder, personally exercise their procedural rights.
7. Issues related to the mental state of the person against whom proceedings are being conducted to apply a compulsory measure of a medical nature are subject to careful examination and assessment by the court. If the conclusion of the psychiatrist expert (experts) is insufficiently clear or complete, as well as if new questions arise regarding the previously investigated circumstances of the criminal case, an additional forensic examination may be ordered, the production of which is entrusted to the same or another expert (experts). If doubts arise about the validity of the conclusion of the expert (experts) or there are contradictions in the conclusions of the expert (experts) on the same issues, the court may order a repeat examination, the production of which is entrusted to another expert (experts) (Article 219 of the DPR Code of Criminal Procedure).
(clause 7 as amended by the Resolution of the Plenum of the Supreme Court of the DPR dated November 9, 2018 No. 4)
(see text in the previous edition)
8. Placement in a medical organization providing psychiatric care in inpatient conditions - a psychiatric hospital, for the purpose of conducting an examination of a suspect, accused, or in custody, is carried out on the basis of Art. 220, part 1 art. 221 of the Code of Criminal Procedure, and not in custody - in the manner prescribed by Article Part 1 of Art. 221 of the Criminal Procedure Code of the DPR on the basis of a resolution of the investigator in charge of the criminal case, authorized by the prosecutor supervising the bodies of inquiry and preliminary investigation, or by the prosecutor.
(paragraph 1 of paragraph 8 as amended by the Resolution of the Plenum of the Supreme Court of the DPR dated November 9, 2018 No. 4)
(see text in the previous edition)
A court decision to place a person in a psychiatric hospital, as well as to extend the period of stay in it, can be appealed by this person, his defense attorney, or legal representative to a higher prosecutor.
If the need to determine the mental state of a person arose during court proceedings, such research is carried out on the basis of a court ruling (ruling).
9. If during the trial, during a forensic psychiatric examination, it is established that the defendant has a temporary mental disorder, in which it is not possible to give an opinion about his mental state at the time of committing a socially dangerous act, and also if the person committed a crime in a state of sanity, and the court has doubts about his mental state at the time of consideration of the case, then the proceedings in the case are subject to suspension in accordance with paragraph 1 of Part 2 of Art. 222 Code of Criminal Procedure of the DPR. The issue of releasing such a person from criminal liability or punishment in these cases is not resolved.
(clause 9 as amended by the Resolution of the Plenum of the Supreme Court of the DPR dated November 9, 2018 No. 4)
(see text in the previous edition)
10. The person in respect of whom proceedings are being conducted to apply a compulsory measure of a medical nature must be given the right to personally exercise his property and, as provided for in Art. Art. 42 and the Code of Criminal Procedure of the DPR, procedural rights, if his mental state allows him to exercise such rights. In this case, the opinion of the experts who participated in the forensic psychiatric examination and, if necessary, the medical opinion of a medical organization providing psychiatric care in an inpatient setting are taken into account. It should be borne in mind that these medical documents cannot have pre-established force for the court and must be assessed in conjunction with other evidence.
(clause 10 as amended by the Resolution of the Plenum of the Supreme Court of the DPR dated November 9, 2018 No. 4)
(see text in the previous edition)
11. The legal representatives of the person against whom proceedings are being conducted to apply a compulsory measure of a medical nature are recognized as close relatives - parents, adoptive parents or others specified in clause 3 of part 1 of Art. 33 Code of Criminal Procedure of the DPR, persons. In the absence of close relatives or their refusal to participate in the case, the guardianship and trusteeship body may be recognized as the legal representative. The participation of a legal representative is mandatory.
(paragraph 1 of paragraph 11 as amended by the Resolution of the Plenum of the Supreme Court of the DPR dated November 9, 2018 No. 4)
(see text in the previous edition)
The court is obliged to provide the legal representative with the opportunity to exercise his procedural rights provided for in Part 2 of Art. 467 of the Code of Criminal Procedure of the DPR, including the right to participate in the trial of a criminal case, file petitions and challenges, present evidence, appeal court decisions, receive copies of appealed decisions, know about complaints and protests brought in a criminal case and file objections to them, participate in meetings courts of first and cassation instances. In addition, the legal representative must be explained his right to initiate petitions to change or terminate the application of a compulsory measure of a medical nature and to participate in their consideration on the basis of Art. 452 Code of Criminal Procedure of the DPR.
(paragraph 2 of paragraph 11 as amended by the Resolution of the Plenum of the Supreme Court of the DPR dated November 9, 2018 No. 4)
(see text in the previous edition)
If necessary, the court may decide to interrogate the legal representative of the person against whom proceedings are being conducted on the application of compulsory medical measures as a witness with his consent, on which it issues a resolution (ruling), which is reflected in the minutes of the court session.
If a legal representative acts to the detriment of the interests of the person he represents, he is removed by the court from participation in the case. The legal representative of the person against whom proceedings are being conducted to apply a compulsory measure of a medical nature are recognized as other persons specified in paragraph 5 of Art. 33 of the Code of Criminal Procedure of the DPR, and in their absence - the guardianship and trusteeship authority.
(paragraph 4 of paragraph 11 as amended by the Resolution of the Plenum of the Supreme Court of the DPR dated November 9, 2018 No. 4)
(see text in the previous edition)
12. In proceedings on the application of compulsory measures of a medical nature in accordance with paragraphs 2, part 1 of Art. 45 of the Code of Criminal Procedure of the DPR, the participation of a defense attorney is mandatory from the moment a decision is made to appoint a forensic psychiatric examination in relation to a person, if the defense attorney has not previously participated in this criminal case. The refusal of a lawyer in these cases cannot be accepted by the court. In case of violation of these requirements during the preliminary investigation, the criminal case is subject to return to the prosecutor in the manner established by Art. 263 Code of Criminal Procedure of the DPR.
(paragraph 1 of paragraph 12 as amended by the Resolution of the Plenum of the Supreme Court of the DPR dated November 9, 2018 No. 4)
(see text in the previous edition)
13. Based on the provisions of Art. 449 of the Code of Criminal Procedure of the DPR, a judge, having received a criminal case with a decision to terminate it and apply a compulsory measure of a medical nature, in the absence of grounds for sending it to jurisdiction, returns it to the prosecutor to organize an additional investigation in accordance with Art. 263 of the Code of Criminal Procedure of the DPR, appoints him directly to the court hearing.
(paragraph 1 of paragraph 13 as amended by the Resolution of the Plenum of the Supreme Court of the DPR dated November 9, 2018 No. 4)
(see text in the previous edition)
A person against whom proceedings are being conducted to apply a compulsory measure of a medical nature must be notified of the place, date and time of the court hearing in order to exercise his right to submit petitions (for personal familiarization with the materials of the criminal case, for personal participation in the court hearing etc.) or exercise other rights guaranteed by the criminal procedure law.
14. Cases involving the use of medical measures are considered in open court with the mandatory participation of a prosecutor and a defense attorney. The judge has the right to decide to consider a criminal case in a closed court session, taking into account the provisions of Art. 20 of the Code of Criminal Procedure of the DPR, including if the proceedings of a criminal case in court may lead to the disclosure of legally protected medical secrets.
(clause 14 as amended by the Resolution of the Plenum of the Supreme Court of the DPR dated November 9, 2018 No. 4)
(see text in the previous edition)
15. Based on the provisions of Part 3 of Art. 449 of the Code of Criminal Procedure of the DPR, a person against whom proceedings are being conducted to apply a compulsory measure of a medical nature, participating in a court hearing, must be explained his procedural rights and be provided with the opportunity to exercise these rights.
The testimony of such a person may be taken into account by the court when assessing his mental state, as well as the person’s danger to himself or other persons or the possibility of causing him other significant harm, when determining the type of compulsory medical measure.
(paragraph 1 of paragraph 15 as amended by the Resolution of the Plenum of the Supreme Court of the DPR dated November 9, 2018 No. 4)
(see text in the previous edition)
16. During the court hearing, the court must, in the manner prescribed by law, in accordance with Art. 450 of the Code of Criminal Procedure of the DPR to check whether a socially dangerous act took place, about which a criminal case was initiated, whether this act was committed by the person against whom the case was initiated, whether this person committed the specified act in a state of insanity or fell ill after committing a crime with a mental illness that precludes the use of punishment and whether medical measures should be applied to this person, as well as other circumstances to be proven. The danger of a person to himself or others, or the possibility of this person causing other significant harm, may be indicated by: the nature of the mental disorder, confirmed by the findings of a forensic psychiatric examination, his tendency in this regard to commit violent acts against other persons or to cause harm himself, to commit other socially dangerous actions (seizure of other people’s property, arson, destruction or damage to property in other ways, etc.), as well as the physical condition of such a person, taking into account which the possibility of realizing his socially dangerous intentions is assessed.
(paragraph 1 of paragraph 16 as amended by the Resolution of the Plenum of the Supreme Court of the DPR dated November 9, 2018 No. 4)
(see text in the previous edition)
If the court comes to the conclusion that the persons specified in paragraphs “a” - “c” of part 1 of Article 97 do not pose a danger due to their mental state, then it may transfer the necessary materials to the health authorities to resolve the issue of treatment of these persons or referral them to psychoneurological social security institutions in the manner prescribed by the legislation of the Donetsk People's Republic (part 4 of article 97).
17. If during the trial of a case received with an indictment, it is established that the defendant was in a state of insanity at the time of committing the act or the defendant, after committing the crime, developed a mental disorder that deprives him of the opportunity to realize the actual nature and social danger of his actions (inaction ) or manage them, the court makes a decision in the manner prescribed by Chapter 34 of the Code of Criminal Procedure, without returning the case to the prosecutor.
18. If an accomplice to a crime is an insane person, the materials of the criminal case against such a person are subject to separation into separate proceedings at the stage of preliminary investigation and separate consideration in court. If the court establishes in a case received with an indictment that one of the defendants, after committing a crime, fell ill with a mental illness that deprives him of the ability to realize the actual nature and social danger of his actions (inaction) or to direct them, the court, without returning the case for additional investigation , depending on the circumstances of the case, has the right to separate the materials of this case into a separate proceeding or resolve the issue of applying compulsory medical measures to such a person in one proceeding with a criminal case in accordance with Art. 333 of the Criminal Procedure Code of the DPR until the end of the judicial investigation in the case.
(clause 18 as amended by the Resolution of the Plenum of the Supreme Court of the DPR dated November 9, 2018 No. 4)
(see text in the previous edition)
19. According to the provisions of Art. 451 of the Code of Criminal Procedure of the DPR, if it is found proven that an act for which criminal liability arises was committed by a person in a state of insanity or that this person, after committing a crime, developed a mental disorder that makes it impossible to impose punishment, the court, in accordance with the articles, makes a decision on his release from criminal liability or punishment and the application of compulsory medical measures to him, indicating which ones.
(paragraph 1 of paragraph 19 as amended by the Resolution of the Plenum of the Supreme Court of the DPR dated November 9, 2018 No. 4)
(see text in the previous edition)
The descriptive part of the resolution must set out the circumstances of the offense established by the court on the basis of the evidence examined, give a legal assessment of the actions of such a person and provide the reasons for the decision made. The operative part of the resolution must contain instructions on his release from criminal liability or punishment and on the application of a specific compulsory measure of a medical nature, and a decision on the issue of canceling the preventive measure, if it has not been canceled earlier. The issue of material evidence must also be resolved.
In accordance with Part 1 of Article 99, the court in its decision indicates the type of compulsory medical measure. The determination of the specific psychiatric institution where treatment should be carried out is the responsibility of the health authorities.
20. Based on the provisions of parts and Art. 451 of the Code of Criminal Procedure of the DPR, if there are grounds excluding criminal proceedings, provided for in Art. 6 of the Code of Criminal Procedure of the DPR, regardless of the presence and nature of the person’s disease, the court issues a decision to terminate the criminal case on these grounds. At the same time, the court also refuses to apply a compulsory measure of a medical nature, but sends a copy of the decision (ruling) to the executive authority in the field of healthcare to decide on the issue of treatment or referral of a person in need of psychiatric care to a medical organization providing psychiatric care in an inpatient setting .
(clause 20 as amended by the Resolution of the Plenum of the Supreme Court of the DPR dated November 9, 2018 No. 4)
(see text in the previous edition)
21. A civil claim filed in a criminal case sent to the court with a decision to terminate it and apply compulsory medical measures is not subject to consideration, which does not prevent its subsequent filing and consideration in civil proceedings, about which the court makes an appropriate decision.
According to the provisions of Art. Art. 100–103 of the Code of Criminal Procedure of the DPR, procedural costs, including amounts paid to a lawyer for the provision of legal assistance, are not recovered from persons against whom compulsory medical measures have been applied, but are reimbursed from the state budget.
(paragraph 2 of paragraph 21 as amended by the Resolution of the Plenum of the Supreme Court of the DPR dated November 9, 2018 No. 4)
(see text in the previous edition)
22. If a convicted person serving a sentence develops a mental disorder that prevents him from serving his sentence, such person is released from further serving the sentence and, on the basis of Part 1 of Article 82, compulsory medical measures may be applied to him.
The head of the institution or body executing the sentence, as well as the convicted person or his defense attorney or legal representative, have the right to apply to the court with a petition for release from further serving the sentence, which is submitted through the administration of the institution or body executing the sentence. Simultaneously with the said petition or presentation, the conclusion of the medical commission and the personal file of the convicted person are sent to the court. Consideration and resolution of such an issue is carried out in the manner established by Art. 430 of the Code of Criminal Procedure of the DPR, and taking into account the guarantees of the rights of the person against whom proceedings are being conducted to apply compulsory measures of a medical nature, provided for by Chapter 34 of the Code of Criminal Procedure.
(paragraph 2 of paragraph 22 as amended by the Resolution of the Plenum of the Supreme Court of the DPR dated November 9, 2018 No. 4)
(see text in the previous edition)
23. A court decision that has not entered into legal force, adopted as a result of the consideration of the case, can be protested by the prosecutor, appealed in the manner prescribed by law by the person in respect of whom proceedings are being conducted to apply a compulsory measure of a medical nature, his defense attorney, legal representative, the victim and his representative , as well as other persons to the extent that the appealed court decision affects their rights and legitimate interests.
A person against whom proceedings are being conducted to apply a compulsory measure of a medical nature has the right to participate in a court hearing of the cassation instance directly or through the use of video conferencing systems, provided that he/she declares his/her desire to be present during the consideration of a complaint or presentation against a court decision, or expresses his/her opinion in writing. position. The question of the form of his participation in the court hearing is decided by the court. The participation of such a person is possible if his mental state allows him to personally participate in the court hearing. In this case, the opinion of experts who participated in the forensic psychiatric examination and, if necessary, the medical opinion of a medical organization providing psychiatric care in an inpatient setting are taken into account.
24. The Supreme Court, when considering a cassation appeal or protest, has the right, if there are grounds for it, to change the type of compulsory measure of a medical nature appointed by the court to a less strict one, or to cancel the decision of the court of first instance and send the case for a new trial to the same court by a different composition of the court with a significant violation of the norms of the Code of Criminal Procedure, in particular if there are grounds for applying a more stringent compulsory measure of a medical nature.
Failure by the court to provide a person against whom proceedings are being or have been carried out on the application of a compulsory measure of a medical nature, the right to personally participate in a court hearing, if his mental state allowed him to participate in the court hearing and exercise his procedural rights, is a violation of the requirements of Part 2 of Art. 449 of the Code of Criminal Procedure of the DPR, entailing the cancellation of the judicial decision.
(paragraph 2 of paragraph 24 as amended by the Resolution of the Plenum of the Supreme Court of the DPR dated November 9, 2018 No. 4)
(see text in the previous edition)
25. According to the provisions of Part 2 of Article 102, a person who has been assigned a compulsory measure of a medical nature is subject to examination by a commission of psychiatrists at least once every six months to decide whether there are grounds for making a submission to the court to terminate the application or to change such a measure, what the court needs to consider.
The court, at the request of the administration of a medical organization providing psychiatric care in inpatient settings (institution), confirmed by a medical report, as well as at the request of the person to whom a compulsory measure of a medical nature was applied, his defense attorney, legal representative, cancels or changes the application for the next six months a compulsory medical measure against this person, stating in the court decision the reasons for the decision.
When considering the issue of extending, canceling or changing the application of a compulsory measure of a medical nature, the court must carefully check the validity of the petition filed in accordance with Art. 452 Code of Criminal Procedure of the DPR. To do this, the court must find out the results of the treatment performed and decide on the need for further medical observation and treatment. For these purposes, a representative of a medical institution (a medical organization providing psychiatric care in an inpatient setting) where a person is being observed, in respect of whom the issue of canceling, extending or changing the application of a compulsory measure of a medical nature is being decided, may be summoned to a court hearing. Participation in the court hearing of a defense lawyer, a legal representative of a person against whom proceedings are being conducted to apply a compulsory measure of a medical nature, and a prosecutor is mandatory.
(paragraph 3 of paragraph 25 as amended by the Resolution of the Plenum of the Supreme Court of the DPR dated November 9, 2018 No. 4)
(see text in the previous edition)
A person in respect of whom the issue of extending, changing or terminating the application of a compulsory measure of a medical nature to him is being decided must directly participate in the court hearing or be given the opportunity to express his position through the use of video conferencing systems, if, in accordance with the medical report, his mental state allows him to participate in the court hearing. The question of the form of participation of such a person in a court hearing is decided by the court.
26. Courts should consider materials in a psychiatric hospital in cases where the mental state of the person in respect of whom the issue of extending, changing or terminating the application of a compulsory medical measure is being decided does not allow him to personally participate in a court hearing held on the premises of the court.
27. If the medical conclusion is in doubt, the court, at the request of the persons participating in the court session, or on its own initiative, may order a forensic examination, request additional documents, and also interrogate the person in respect of whom the issue of termination, modification or extension of the application of the compulsory measure is being decided of a medical nature, if this is possible due to his mental state.
28. In the case of a person’s mental state in which there is no need to apply a previously prescribed measure or there is a need to prescribe another compulsory measure of a medical nature, the court terminates or modifies the application of a compulsory measure of a medical nature. If there are grounds for extending the application of a compulsory medical measure, the court extends the compulsory treatment.
29. If in the mental state of a person in respect of whom a compulsory measure of a medical nature has been prescribed in the form of outpatient compulsory observation and treatment by a psychiatrist, changes have occurred associated with the need to place such a person in a medical organization providing psychiatric care in an inpatient setting, the court has the right change the type of compulsory medical measure in accordance with Part 1 of Article 99, when there is evidence that the nature of the person’s mental disorder requires such conditions of treatment, care, maintenance and observation that can only be carried out in a psychiatric hospital. The resolution indicates circumstances indicating that the mental state of the person after a compulsory medical measure was applied to him changed, and the person began to pose an increased danger to himself or other persons. The decision is made in the manner established by Art. 452 Code of Criminal Procedure of the DPR.
(clause 29 as amended by the Resolution of the Plenum of the Supreme Court of the DPR dated November 9, 2018 No. 4)
(see text in the previous edition)
30. In the event of termination of the use of compulsory treatment in a medical organization providing psychiatric care in an inpatient setting, the court, on the basis of the provisions of Part 4 of Article 102, may transfer the necessary materials regarding the person who was subject to compulsory treatment to the health authorities to resolve the issue of his treatment or referral to a psychoneurological social security institution in the manner prescribed by healthcare legislation.
31. If a person who, after committing a crime, developed a mental disorder and to whom a compulsory measure of a medical nature was applied, is recognized as having recovered, then the court that was hearing the criminal case on the application of compulsory measures of a medical nature, on the basis of a medical report in accordance with with the prescribed norms of criminal procedural legislation, makes a decision to terminate the application of a compulsory measure of a medical nature to this person and decides on sending a criminal case to the head of the investigative body or the head of the inquiry body for conducting a preliminary investigation in the general manner. The time spent in a medical organization providing psychiatric care in an inpatient setting is counted towards the term of serving the sentence in accordance with Article 103.
32. If there is a change in the mental state that requires inpatient treatment of a convicted person to whom a compulsory measure of a medical nature has been applied in accordance with Part 2 of Article 99, he is placed in a medical organization providing psychiatric care in an inpatient setting or another medical institution in accordance with Part 2 of Article 104. in the manner and on the grounds provided for by legislation in the field of healthcare.
33. A court decision that has entered into legal force on the appointment, modification, extension or termination of the application of a compulsory measure of a medical nature can be changed or canceled in the order of supervision.
34. If circumstances are identified that contributed to the commission of a socially dangerous act, violations of the rights and freedoms of persons in respect of whom proceedings are being carried out to apply a compulsory measure of a medical nature, the courts in accordance with Art. 24 of the Code of Criminal Procedure of the DPR, issue a private resolution (definition) in which to draw the attention of relevant organizations or officials to these circumstances and facts of violation of the law, requiring the necessary measures to be taken.
(clause 34 as amended by the Resolution of the Plenum of the Supreme Court of the DPR dated November 9, 2018 No. 4)
(see text in the previous edition)
Mandatory treatment for convicts serving imprisonment
In relation to persons suffering from mental disorders that do not exclude sanity, not only compulsory medical measures can be applied, but also compulsory treatment , which is applied, if there are grounds for this, in relation to convicted persons serving a sentence of imprisonment.
So, in accordance with Part 1 of Art. 18 of the Penal Code of the Russian Federation, those sentenced to arrest, imprisonment, suffering from mental disorders that do not exclude sanity, by institutions executing these types of punishments, are subject to compulsory medical measures by court decision.
If the presence of such disorders is revealed during the serving of the above types of punishments and it is established that the condition of the convict 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 submission on the application of compulsory medical measures to such convict character.
To convicts serving arrest or imprisonment, and those 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, the institution executing these types of punishments, by decision of the medical commission applies mandatory treatment.
