Comment to Article 127. Illegal placement in a psychiatric hospital of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Illegal placement of a person in a psychiatric hospital or illegal detention in it -      

is punishable by imprisonment for a term of up to three years.      

2. The same act if it is: a) completely self-serving.;      

b) completely by a person using his official position;      

c) negligently caused the death of the victim or other grave consequences, -      

is punishable by imprisonment for a term of three to seven years with or without deprivation of holding certain positions or engaging in certain activities for a term of up to three years

     The public danger of illegal placement in a psychiatric hospital or illegal detention in it lies in the fact that as a result of this socially dangerous act, a citizen's constitutional right to personal freedom is violated.      

The Law of the Republic of Kazakhstan "On Psychiatric care and guarantees of citizens' rights in its provision" dated April 16, 1997 defines the procedure and grounds for placing a person suffering from a mental disorder in a psychiatric hospital.      

According to this Law, placement in a psychiatric hospital is voluntary and compulsory. Involuntary hospitalization of persons with a severe mental disorder for examination and treatment, without his consent and without the consent of his legal representative, with subsequent information from the prosecutor's office, is caused by: his immediate danger to himself or others; his helplessness, inability to independently meet basic life needs, in the absence of proper care; significant harm to his health due to the deterioration of his mental state if the person is left without psychiatric care (art. 29 of the Law).      The object of the crime is a person's personal freedom.      

The objective side of the crime is expressed in the illegal placement in a psychiatric hospital of a person who does not need such treatment or illegal participation in it. Socially dangerous acts can be expressed, firstly, in the forced hospitalization of a person who is obviously mentally healthy, and secondly, in the placement in a psychiatric hospital of a person suffering from a mental disorder, but without the grounds stipulated in the said law. Placement in a psychiatric hospital, including forced placement, is possible when a court applies compulsory medical measures (art. 92 of the Criminal Code), before a court decision is made, if the examination or treatment of a person is possible only in a hospital setting, and the mental disorder is severe.      

A person admitted to a psychiatric hospital due to a mental disorder must be examined by a commission of psychiatrists within 48 hours. In cases where, according to the conclusion of the commission, the patient does not need inpatient treatment, he must be discharged. The report is sent to the court within 24 hours. The court considers the application from the chairman of the psychiatric hospital within 5 days in the presence of the patient, his legal representatives, and the prosecutor and makes an appropriate decision.      

The composition of the crime in question will be not only when the victim is unlawfully placed in a psychiatric hospital, but also when he is unlawfully detained in it without sufficient grounds for it.     

The detention in a psychiatric hospital of a person who was lawfully placed there and cured of a mental disorder is qualified as unlawful deprivation of liberty (Article 126 of the Criminal Code).      

The subjective side of the crime is characterized by direct intent. The perpetrator is aware that he is unlawfully hospitalizing a mentally healthy person against his will, or placing a person suffering from a mental disorder in a psychiatric hospital without legitimate grounds, and wishes to do so. The motive for this crime may be revenge, a desire to deal with a dissident, and others. The motives of the crime, with the exception of greed, do not affect the qualification, but are taken into account when individualizing punishment.      

The subject of the crime may be a sane individual who has reached the age of 16 (a relative, legal representative of the victim, etc.).     

The qualified corpus delicti is provided for in Part 2 of Article 127 of the Criminal Code, which forms:      

a) the commission of this crime for selfish reasons;      

b) the commission of the crime in question by a person using his official position;      

c) if the crime negligently resulted in the death of the victim or other grave consequences.      

Illegal placement in a psychiatric hospital or detention in it, committed for selfish reasons (paragraph "a" of Part 2), occurs in cases where the perpetrator's motive for the crime is to obtain material benefits (to take over the apartment, the victim's property, etc.).    

The subject of the type of crime in question, committed by a person using his official position (paragraph "b" of Part 2), may be a psychiatrist who made the decision to hospitalize the victim alone or as part of a commission that issued an opinion on the need for compulsory hospitalization of a healthy person. The use of his official position significantly aggravates the perpetrator of this act, since he has official access to documents, which allows him to influence the decision on the placement of the victim in a psychiatric hospital or his discharge. A judge who has issued an illegal order to place a person in a psychiatric hospital is subject to criminal liability for making a knowingly unlawful verdict, decision or other judicial act under art. 350 of the Criminal Code.     

In cases of illegal placement in a psychiatric hospital or detention in it, resulting in the death of the victim or other serious consequences, the actions of the perpetrator should be qualified according to paragraph "b" of Part 2 of Article 127 of the Criminal Code. The death of the victim can occur from various causes: drug overdose, lack of necessary supervision, incorrectly chosen treatment method, suicide, etc. Other grave consequences should be understood as consequences that result in serious harm to the victim's health, his attempted suicide, as well as the death or serious illness of a loved one to the victim, etc.    

The subjective side of the crime provided for in paragraph "b" of Part 2 of Article 127 of the Criminal Code is characterized by a double form of guilt: intent in relation to illegal placement in a psychiatric hospital and negligence in relation to the consequences that have occurred.      

The crime provided for in Part 1 of Article 127 of the Criminal Code of the Republic of Kazakhstan is a crime of moderate severity.      

The crime provided for in Part 2 of Article 127 of the Criminal Code of the Republic of Kazakhstan is a serious crime.

Commentary from 2007 to the Criminal Code of the Republic of Kazakhstan from the Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences BORCHASHVILI I.Sh.                  

Date of amendment of the act:  08/02/2007 Date of adoption of the act:  08/02/2007 Place of acceptance:  

NO Authority that adopted the act: 180000000000 Region of operation:  100000000000 NPA registration number assigned by the regulatory body:  167 Status of the act:  new Sphere of legal relations:  028000000000 Report form:  COMM Legal force:  1900 Language of the Act:  rus

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