Comment to Article 16 Insanity of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. A person who, at the time of committing a socially dangerous act provided for in this Code, was in a state of insanity, i.e. could not realize the actual nature and social danger of his actions (inaction) or direct them due to a chronic mental illness, temporary mental disorder, dementia or other mental illness is not subject to criminal liability.      

2. Compulsory medical measures provided for by this Code may be applied by a court to a person declared insane.      

An insane person during the commission of a socially dangerous act cannot be criminally responsible for his actions that are objectively dangerous to society, primarily because his consciousness and (or) will did not participate in them. Socially dangerous acts of mentally ill people are caused by their morbid condition. No matter how much harm they have caused to society, society has no grounds for attributing this harm to them. The application of punishment to the insane would be unfair and impractical also because the goals of criminal punishment are not achievable in relation to them.      

The legislative definition of the concept of insanity presupposes the mandatory presence of two criteria: legal (psychological) and medical (biological).      

To recognize a person who has committed a crime as insane, a set of medical and legal criteria is necessary. The existence of only a medical or only a legal criterion does not give grounds for recognizing a person who has committed a crime as insane. Thus, the medical criterion must necessarily be combined with the legal one. Only under this condition can a person be declared insane.      

The legal (psychological) criterion of insanity is the person's lack of ability to realize the actual nature and social danger of his actions (inaction) or to direct them.      

The inability of a person to realize the actual nature and social danger of his actions (inaction) characterizes the intellectual feature of the legal criterion. It should be noted that the content of this feature covers both the lack of awareness of the actual nature of their actions (inaction) (for example, a person does not realize or understand that they are unlawfully taking another person's life, seizing property, etc.), and a lack of understanding of the social danger of what they have done, that is, its social meaning. The leading aspect of the intellectual sign of insanity is the person's lack of awareness of the social danger of what he has done. There may be situations when a person, fully aware of the actual nature of what he is committing, at the same time does not understand his social danger, for example, by committing murder, a person realizes that he is unlawfully depriving another person of life, but due to the fact that he suffers from mania, believes that thereby he is ridding society of unworthy members.      

The inability of a person to direct his actions (inaction) forms the content of the volitional sign of insanity. With mental disorders, not only intellectual disorders are possible, but also pathology of the volitional sphere.      

In order to establish a legal criterion of insanity, it is not at all necessary that both intellectual and volitional signs are present at the same time, it is enough to have at least one of them. Thus, pyromaniacs (persons with a morbid urge to commit arson), kleptomaniacs (persons with a morbid urge to commit theft) are recognized as insane due to a violation of their volitional sphere (they cannot direct their actions), although an intellectual sign of insanity may be present. Such conditions also occur in people suffering from drug addiction during drug starvation. A person is well aware of the criminality of his behavior in the theft or extortion of narcotic drugs, but at the same time is unable to restrain himself due to the deep damage to the sphere of will caused by drug addiction.      

It is not enough to establish a legal criterion alone to declare a person insane. It is necessary to find an answer to the question of why a person cannot realize the actual nature and social danger of his actions (inaction) or direct them. The reason for this is the medical criterion, which is a generalized list of mental illnesses and disorders.      

The concept of a medical criterion is based on the principles of the science of psychiatry.      

The medical criterion of insanity presupposes the presence of one of the four painful mental disorders specified in the first part of Article 16 of the Criminal Code.:      

1) the presence of a chronic mental disorder;

2) the presence of a temporary mental disorder;

3) the presence of dementia;

4) the presence of another painful mental state.      

Chronic mental disorders are the result of incurable or intractable mental illnesses that are long-lasting and tend to progress, that is, to increase morbid phenomena. Psychiatry considers schizophrenia, manic-depressive psychosis, paranoia, progressive paralysis as a result of brain syphilis, progressive senile dementia and other diseases to be such diseases. A temporary mental disorder is a disorder of the human psyche that occurs relatively fleetingly, and it ends with recovery. Such disorders include all so-called exceptional conditions: alcoholic psychosis, delirium tremens, pathological intoxication, reactive symptomatic states (pathological affect, that is, a mental disorder caused by severe mental shock).      

Dementia refers to various forms of decline or disintegration of mental activity with damage to human intelligence and irreversible personality changes. Dementia consists in a significant decrease in mental abilities. It is permanent and is congenital or acquired (dementia) in the first year of life as a result of severe neurological diseases (meningitis, encephalitis, concussion). There are three degrees of damage to the human psyche in dementia: debility (mild degree), imbecility (moderate degree), idiocy (deep degree of damage to mental activity).      

Other mental illnesses include conditions that are not caused by mental illness, exceptional conditions, or dementia, but are accompanied by various temporary mental disorders. For example, acute hallucinatory delusions caused by infection (with typhoid fever, typhus, or acute poisoning), caused by severe injuries, brain tumors, drug addiction (during withdrawal - drug starvation), sleepwalking, and in some other cases.      

For a state of insanity, it is necessary to establish the signs of a medical criterion (at least one sign) and signs of a legal criterion (it is sufficient to have one of the signs, either intellectual or strong-willed). Thus, to recognize a person as insane, both criteria of insanity are necessary - one of the signs of a medical criterion and one of the signs of a legal criterion.      

The issue of sanity (insanity) is always resolved in relation to a specific act. No one can be declared insane at all, regardless of what they have done.      

The final decision on the recognition of a person who has committed an act provided for by criminal law as insane is made by the court on the basis of the conclusion of a forensic psychiatric examination. The appointment of a forensic psychiatric examination is mandatory in all cases where the body of inquiry, investigator or court has doubts about the mental integrity of a person. In addition, if the person being prosecuted has not previously been prosecuted due to his insanity, this does not mean that he will not be prosecuted again. The Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan dated July 9, 1999 "On judicial practice on the application of compulsory medical measures" drew attention to the fact that "recognition of a person as insane in relation to one act does not exclude the possibility of recognizing him as sane in the commission of another act. In this regard, if a person who was previously recognized as insane and released from criminal liability commits an act prohibited by criminal law, a forensic psychiatric examination should be appointed and conducted in order to determine the sanity or insanity of the person in relation to the new act committed by him for each episode."      

The sanity or insanity of a person is established at the time of the commission of a socially dangerous act provided for in the Criminal Code of the Republic of Kazakhstan. A court may apply compulsory medical measures provided for in this Code to a person declared insane (see the commentary to section VII of the Criminal Code of the Republic of Kazakhstan).

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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