Commentary on Article 17. Criminal Liability of Persons with a Mental Disorder Not Excluding Sanity under the Criminal Code of the Republic of Kazakhstan
A sane person who, at the time of committing a criminal offence, due to a mental disorder, was unable to fully understand the actual nature and social danger of their actions (inaction) or to control them shall be subject to criminal liability.
A mental disorder not excluding sanity shall be taken into account by the court when imposing a sentence as a mitigating circumstance and may serve as grounds for imposing compulsory medical measures provided for by this Code.
In law enforcement practice, cases frequently arise in which socially dangerous acts are committed by persons with mental abnormalities. A mental abnormality is a deviation from the norm of development and functioning of the human psyche that does not exclude sanity.
In legal literature, the concepts of limited, borderline, partial and diminished sanity are used to describe an abnormal mental state.
Limited sanity is a mental state that causes a person's limited ability to understand the significance of their actions and control their behaviour due to the presence of mental abnormalities.
Borderline sanity is a state that lies on the boundary between normality and pathology.
Partial sanity is a state in which a person, as a result of mental abnormalities that do not exclude sanity, may only partially understand the actual nature or social danger of their actions (inaction), or may only partially control them.
Diminished sanity is a state that signifies a reduction in sanity (as well as an increase in it) in the course of a process occurring in the human psyche under the influence of objective facts.
Limited sanity should be regarded not as an intermediate link between sanity and insanity, but as an integral part of sanity, that is, sanity in a diminished form. The depth and degree of impairment caused by mental illness are such that a person, although to a limited extent, is nevertheless aware of the social danger of the actions being committed and is also capable of controlling them to a limited extent.
A mental disorder not excluding sanity is understood as a state in which a person, due to a mental disorder, was unable to fully understand the actual nature and social danger of their actions (inaction) or to control them. In this regard, the impairment of consciousness and will associated with the influence of mental processes is entirely justified, as indicated by the expression “due to”. Mental abnormalities prevent the subject from fully understanding the meaning of what is happening, as a result of which an unlawful method of resolving emotional tension becomes considerably more likely and accessible to them.
The legislator, as in the case of insanity, links the content of limited sanity to the existence of legal and medical criteria. In this regard, the intellectual element of the legal criterion of diminished sanity should include the limited ability of a person to understand the actual nature and social danger of their actions (inaction); the volitional element should include the limited ability to control their actions.
Persons with limited sanity suffer from mental disorders but retain the ability, although significantly reduced, to understand the actual nature and social danger of their actions (inaction) and to control them (the legal criterion of diminished sanity).
The psychological (legal) criterion of diminished sanity is present when a person's ability to understand their actions and control them has not been lost, but has been weakened (reduced).
Thus, in order to establish the existence of the legal criterion of diminished sanity, it is necessary to determine the extent to which a person understood the actual nature of the act committed and its social danger, as well as the extent to which a person whose psyche was not in a normal state possessed the ability to control their actions.
The intellectual criterion of diminished sanity means that a person was unable to fully understand the actual nature, that is, the factual aspect, of their actions (inaction). In addition, it is also necessary to establish that the person was unable to fully understand the social meaning of their actions, in particular, the social danger of the act committed. The mental disorder from which the person who committed the criminal offence suffered affected their understanding of the actual nature and social danger of their actions (inaction); therefore, such understanding was incomplete.
The volitional criterion of diminished sanity consists in the limited ability of a person to control the actions being committed.
The medical criterion of diminished sanity is represented by a list of mental abnormalities, that is, mental disorders that affect behaviour but do not exclude a person's ability to understand the actual nature and social danger of the act committed, as well as to control it.
Mental disorders not excluding sanity are often considered to include pronounced schizophrenic defects, alcoholism, psychopathy, residual effects of traumatic brain injuries, organic diseases of the central nervous system, mild-degree oligophrenia in the form of debility, drug addiction, and so forth.
Mental disorders not excluding sanity give rise to defects in the emotional-volitional sphere and affect intellectual processes, that is, they play a significant role in the mechanism of criminal behaviour. At the same time, a person is not completely deprived of the capacity for self-regulation, which is essential for proper behaviour; their ability to understand their actions or to control them has not been entirely lost, but is actually diminished in comparison with the psychological norm.
All this makes it possible to speak of the criminal liability of persons with a mental disorder not excluding sanity who have committed criminal offences, which arises upon the establishment of their guilt.
A person recognised as having limited sanity shall be subject to criminal liability. However, the fact that, at the time of committing a criminal offence, the person, due to a mental disorder, was unable to fully understand the actual nature and social danger of their actions (inaction) or to control them shall be taken into account by the court, pursuant to Part 2 of Article 17 of the Criminal Code, when imposing a sentence as a mitigating circumstance and may serve as grounds for imposing compulsory medical measures provided for by the Criminal Code of the Republic of Kazakhstan (see the commentary on Section VII of the Criminal Code).
Paragraph 6 of subparagraph 4 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Certain Issues of Sentencing” also emphasises: “In accordance with Part 2 of Article 17 of the Criminal Code, a mental disorder not excluding sanity must be taken into account by the court when imposing a sentence as a circumstance mitigating criminal liability and punishment.”
Commentary to the Criminal Code of the Republic of Kazakhstan, 2021, by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, member of the working group on reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, and Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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