Commentary on Article 91. Grounds for the Application of Compulsory Medical Measures of the Criminal Code of the Republic of Kazakhstan

• 1. Compulsory medical measures may be imposed by a court on the following persons:
• 1) persons who have committed acts provided for by the Special Part of this Code while in a state of insanity;
• 2) persons who, after committing a criminal offense, have developed a mental disorder that makes it impossible to impose or execute a punishment;
• 3) persons who have committed a criminal offense and suffer from mental disorders that do not exclude criminal responsibility;
• 4) persons who have committed a criminal offense and have been recognized as requiring treatment for alcoholism, drug addiction or substance abuse;
• 5) persons over the age of eighteen who have committed a criminal offense against the sexual inviolability of minors.
• 2. Compulsory medical measures shall be imposed on the persons specified in paragraph one of this Article only where their mental disorders are associated with the possibility of causing other substantial harm by such persons or with a danger to themselves or other persons.
• 3. The procedure for the execution of compulsory medical measures shall be determined by the Criminal Executive Code and the legislation of the Republic of Kazakhstan in the field of healthcare.
• 4. With respect to persons specified in subparagraphs 1)–4) of paragraph one of this Article who do not pose a danger due to their mental condition, the court may transfer the necessary materials to the healthcare authorities for the purpose of deciding on the treatment of such persons or their referral to psychoneurological organizations in accordance with the procedure established by the legislation of the Republic of Kazakhstan in the field of healthcare.

Section 7 regulates the application of compulsory medical measures. The provisions contained therein determine the grounds, purposes and types of compulsory medical measures, as well as the procedure for their implementation and termination. These measures have their own purpose and content, which determine their specific nature.

Compulsory medical measures belong to criminal-law measures that do not constitute punishment. It is precisely compulsory medical treatment measures that the legislator has in mind when referring to other measures of criminal-law influence in paragraph 2 of Article 2 of the Criminal Code.

They do not constitute punishment because they are not included in the list of types of punishment contained in Article 40 of the Criminal Code. Unlike punishment, they do not entail a criminal record for the persons to whom they are applied. They differ from punishment in terms of their purpose and the fact that they do not express a negative assessment on behalf of the state. These measures do not contain an element of retribution and do not pursue the objectives of restoring justice or correcting the person who committed a socially dangerous act. They also differ in the procedure for their application and release from them, taking into account the person's state of health.

Compulsory medical measures, like punishment, constitute a type of state coercion, and their application is associated with restrictions on the rights of the persons against whom such measures are imposed. Restrictions on the rights of persons subjected to compulsory medical measures consist in the isolation of some of them from society and their compulsory placement in a psychiatric medical institution, or compulsory outpatient supervision and treatment by a psychiatrist. During the period of treatment, these persons are prohibited from leaving the medical institution, and in certain cases they are prohibited from meeting with relatives and close persons.

In accordance with Articles 9 and 17 of the International Covenant on Civil and Political Rights, adopted by the United Nations General Assembly on December 16, 1966, every person has the right to liberty and security of person, and no one may be subjected to arbitrary or unlawful interference with their private life. International legal instruments also establish principles for determining mental illness, which largely prevents a voluntaristic approach (the pursuit of desired objectives without taking into account objective circumstances and possible consequences) to determining a person's mental health and violating their rights under the pretext of their health condition.

For example, the relevant rules are set out in Principle 4, "Determination of Mental Illness", of United Nations General Assembly Resolution No. 46/119 of December 17, 1991, "Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care":

A determination that a person has a mental illness shall be made in accordance with internationally accepted medical standards;

A determination of mental illness shall never be made on the basis of political, economic or social status, or membership of a cultural, racial or religious group, or for any other reason not directly relevant to the person's mental health status;

Family or professional conflicts, or non-conformity with the moral, social, cultural or political values or religious beliefs prevailing in the society in which the person lives, shall never constitute a determining factor in diagnosing mental illness;

A history of treatment or hospitalization as a patient shall not, in itself, justify any present or future determination of mental illness;

No person or authority shall classify or otherwise indicate that a person has a mental illness except for purposes directly related to mental illness or the consequences of mental illness.

Compulsory medical measures are imposed regardless of whether the sick person, their relatives or close persons wish or do not wish them to be applied.

As a general rule, medical care is provided on a voluntary basis, with the consent and at the request of the patient or their relatives. However, Article 137 of the Code of the Republic of Kazakhstan dated July 7, 2020, "On Public Health and the Healthcare System", permits the provision of medical care without the patient's consent in respect of persons:

who are in a state of shock or coma that prevents them from expressing their will;

who have diseases that pose a danger to others;

who have severe mental disorders (illnesses);

who have mental disorders (illnesses) and have committed a socially dangerous act.

It should be noted that persons subjected to compulsory medical measures also have certain rights. Article 164 of the Code "On Public Health and the Healthcare System" stipulates that the rights and legitimate interests of persons with mental and behavioural disorders (illnesses) are protected by their legal representatives. A medical organization providing mental health care to persons with mental and behavioural disorders (illnesses) shall ensure the possibility of inviting a lawyer or legal representative, except in cases provided for in paragraph 5 of Article 166 of the Code "On Public Health and the Healthcare System".

Paragraph 1 of the Article under consideration defines both the grounds for applying compulsory medical measures and the categories of persons to whom such provisions apply.

The grounds for applying compulsory medical measures are:

the presence of a mental disorder at the time of committing a socially dangerous act or the onset of a mental disorder thereafter, or the commission of a criminal offense by a person who is legally sane but requires treatment for alcoholism, drug addiction or substance abuse, or by a person over the age of 18 who has committed a criminal offense against the sexual inviolability of minors;

the commission by that person of an act for which liability is provided for by criminal legislation.

Taking into account the specific nature of compulsory medical measures, which are applied to persons involved in the commission of criminal offenses, the legislator has regulated this area in detail.

The first category of citizens subject to compulsory medical measures comprises persons who are legally insane (subparagraph 1) of paragraph 1 of Article 91 of the Criminal Code) — persons who, at the time of committing a socially dangerous act provided for by the Criminal Code of the Republic of Kazakhstan, were in a state of insanity, i.e. were unable to understand the actual nature and social danger of their actions (inaction) or to control them due to a chronic mental illness, a temporary mental disorder, intellectual disability or another pathological mental condition (Article 16 of the Criminal Code). Due to their mental illness, these persons are incapable of understanding either the actual nature of their actions (for example, when setting fire to a house at night where people are sleeping, a person believes that they are putting on a light show) or their social danger (harmfulness), i.e. the actual infliction of harm upon specific benefits, interests or values, or the real threat of such harm. Committing a criminal offense while legally insane constitutes a circumstance that releases a person from criminal prosecution and punishment.

Mental illnesses resulting in legal insanity include progressive paralysis, schizophrenia, manic-depressive psychosis, delirium tremens, pathological intoxication, imbecility, idiocy, mental disorders of somatic origin, etc. Judicial practice indicates that persons who are legally insane constitute the overwhelming majority among those referred for compulsory treatment.

The second category of persons subject to compulsory medical measures comprises citizens who, after committing a criminal offense, have developed a mental disorder that makes it impossible to impose or execute a punishment (subparagraph 2) of paragraph 1 of Article 91 of the Criminal Code). In this case, the persons concerned are those who, at the time of committing the criminal offense, understood the actual nature and social danger of their actions (inaction) and were able to control them, but developed a mental disorder after committing the criminal offense. The act committed is recognized as criminal, and the person who committed it is subject to criminal liability; however, that person may be released from the imposition or execution of punishment.

The question of release from punishment or the execution of punishment is resolved depending on when the mental illness began. Thus, if the mental disorder arises before the court judgment against such person enters into legal force, proceedings in the criminal case are suspended for the period of treatment, and compulsory medical measures are applied to that person. In this case, compulsory treatment is prescribed until recovery or improvement of the person's mental condition. Upon recovery, the ruling suspending the proceedings is cancelled, and the case is investigated in accordance with the general procedure.

If a mental illness that deprives a person of the ability to understand their actions or control them develops during the period of serving a sentence, and execution of the sentence becomes impossible, compulsory medical measures are also imposed on that person. In this case, compulsory treatment is prescribed until recovery or improvement of the person's mental condition. In accordance with paragraph 2 of Article 97 of the Criminal Code, the period during which compulsory treatment was applied to a person in a psychiatric inpatient facility is credited towards the term of the sentence at the rate of one day spent in the inpatient facility for one day of imprisonment or one day of arrest. If such a person recovers, the court may impose punishment, provided that the limitation periods have not expired and there are no grounds for releasing the person from criminal liability.

Unlike the first category of persons with mental disorders, who are released from criminal liability because their acts lack the subject of a crime, persons whose mental disorder arose after the commission of the act are considered to have committed a crime and are released not from criminal liability, but from punishment in accordance with Article 75 of the Criminal Code. The legal consequences of recovery are determined by paragraph 3 of Article 75 of the Criminal Code; therefore, release from punishment may not be final.

The third category of citizens subject to compulsory medical measures comprises persons who have committed a criminal offense and suffer from mental disorders that do not exclude criminal responsibility (subparagraph 3) of paragraph 1 of Article 91 of the Criminal Code). Due to their mental disorders, these persons were unable to fully understand the actual nature and social danger of their actions (inaction) or to fully control them at the time of committing the criminal offense. Such persons are subjects of criminal offenses and are subject to criminal liability, since their mental disorder does not exclude criminal responsibility. A mental disorder that does not exclude criminal responsibility is taken into account by the court as a mitigating circumstance when imposing punishment and may serve as grounds for imposing compulsory medical measures (Article 17 of the Criminal Code). Mental disorders that do not exclude criminal responsibility include structural and functional deviations caused by disorders of prenatal development (oligophrenia, nuclear psychopathy), borderline psychopathy, residual effects following organic damage to the central nervous system of traumatic origin, and other disorders of mental activity that have not reached the psychophysiological level and do not exclude criminal responsibility but result in personality changes and, consequently, deviant behaviour. In respect of such persons, compulsory medical measures in the form of compulsory outpatient supervision and treatment by a psychiatrist are imposed alongside punishment. For persons sentenced to imprisonment, these measures are applied in places of imprisonment in addition to the sentence, while for persons sentenced to other types of punishment, they are applied in healthcare organizations where outpatient psychiatric care is provided to them.

The fourth category of persons subject to compulsory medical measures comprises persons who have committed a criminal offense and have been recognized as requiring treatment for alcoholism, drug addiction or substance abuse (subparagraph 4) of paragraph 1 of Article 91 of the Criminal Code). In accordance with Article 18 of the Criminal Code, a person who commits a criminal offense while intoxicated as a result of consuming alcohol, narcotic drugs, psychotropic substances or other intoxicating substances shall not be released from criminal liability.

The fifth category of persons subject to compulsory medical measures comprises persons over the age of eighteen who have committed criminal offenses against the sexual inviolability of minors.

It should be borne in mind that alcoholism and drug addiction pose a particularly high degree of social danger, and their treatment is complicated by the fact that chronic alcoholics and drug addicts are unable, without medical assistance, to stop the progression of their illness on their own. A conscious cessation of alcohol consumption is possible only in the initial stages of the disease. As a rule, alcoholics and drug addicts evade treatment (the latter to an even greater extent). In most cases, external encouragement to undergo treatment is necessary. Often, such encouragement takes the form of placing patients in compulsory treatment. In respect of the above-mentioned persons, compulsory medical measures in the form of compulsory outpatient supervision and treatment by a psychiatrist are imposed in addition to punishment. These measures are carried out at the place where convicted persons serve their sentences. Compulsory treatment of persons requiring treatment for alcoholism, drug addiction or substance abuse is imposed on the basis of an opinion issued by narcology experts. Compulsory treatment of this category of persons is imposed regardless of the state in which the person committed the criminal offense. The important factor is establishing that the person requires such treatment.

Paragraph 3 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated July 9, 1999, "On Judicial Practice in the Application of Compulsory Medical Measures", states: "Courts should bear in mind that the mere fact that a person has a mental illness as a result of which they are deprived of the ability to understand the actual nature and social danger of their actions and to control them does not, in itself, constitute grounds for applying compulsory medical measures. In this regard, in each case, it is necessary to verify whether the commission of an act prohibited by criminal law has been proven and whether the person was in a state of insanity at the time of its commission. In addition, factual information must be established indicating that the person poses a danger to themselves or other persons due to their mental disorders, as well as the possibility that they may cause other substantial harm."

It should be borne in mind that in every criminal case where circumstances giving rise to doubts about the mental soundness of the person against whom a criminal case has been initiated and criminal prosecution is being conducted are established, a forensic psychiatric examination must be appointed. Such circumstances may include information that the suspect's or accused's family has relatives suffering from mental illnesses, that the person studied at an educational institution for persons with intellectual disabilities, that they previously sustained injuries, were registered with or received treatment at psychiatric hospitals, or were previously released from criminal liability or punishment due to a mental disorder, and other similar circumstances.

Paragraph 2 of the Article under consideration contains a particularly important provision stating that compulsory medical measures may be imposed on persons specified in paragraph 1 of Article 91 of the Criminal Code only where their mental disorders are associated with the possibility of causing other substantial harm by such persons or with a danger to themselves or other persons (paragraph 2 of Article 91 of the Criminal Code). When imposing these measures, the primary consideration is not the gravity of the act committed, but the potential danger posed by these persons both to themselves and to those around them.

In this regard, the ruling appointing a forensic psychiatric examination should include questions for the experts that make it possible to establish whether the person had mental disorders in the past; the degree and nature of the mental illness at the time of committing the act prohibited by law or during the investigation or judicial examination of the case; the person's legal sanity at the time of committing the act prohibited by criminal law; the mental condition of the suspect or accused after committing the crime during the preliminary investigation or judicial proceedings, or while serving a criminal sentence under a court judgment; as well as the nature and depth of the mental disorder. The experts should also be asked whether, taking into account the illness identified, the person poses a danger to themselves or other persons, whether they are capable of causing other substantial harm, whether they require the application of a compulsory medical measure and, if so, which particular measure, and whether, taking into account the nature and severity of the mental illness, the person is capable of giving explanations, submitting motions, presenting evidence and performing other actions specified in paragraph 1 of Article 515 of the Criminal Procedure Code. If the criminal case contains information indicating that the person systematically consumes alcoholic beverages, narcotic drugs, psychotropic substances or other intoxicating substances, the bodies conducting the criminal proceedings should issue a ruling on the examination of such persons and attach to the case the opinion of the medical commission on whether the person requires compulsory treatment for alcoholism, drug addiction or substance abuse and whether there are any contraindications to such treatment (paragraph 4 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated July 9, 1999).

Consequently, the application of compulsory treatment is a right of the court rather than an unconditional obligation. It may and should be applied in two cases: where, in addition to the criminal offense committed, a person is capable of causing other substantial harm due to a mental disorder, alcoholism, drug addiction or substance abuse (for example, destroying property or setting a house on fire), or where the person's condition and behaviour pose a danger to themselves or other persons (outbursts of aggression, loss of self-control).

Thus, three elements may be identified among the grounds for applying compulsory medical measures, the combination of which is sufficient for their application, while the absence of at least one of them excludes the application of such measures: 1) the fact that the person has committed a criminal offense; 2) the presence of a mental illness or alcoholism, drug addiction or substance abuse in that person; 3) the necessity of treating that person due to their mental condition, which creates a danger of causing harm to themselves or those around them.

In accordance with paragraph 3 of the Article under consideration, the procedure for executing compulsory medical measures is determined by the Criminal Executive Code (Article 26 of the Criminal Executive Code) and the legislation of the Republic of Kazakhstan in the field of healthcare.

If a person specified in subparagraphs 1)–4) of paragraph 1 of the Article under consideration is recognized as not posing a danger to society on the basis of their mental condition and the nature of the socially dangerous act committed by them, the court may transfer the necessary materials to the healthcare authorities for the purpose of deciding on the treatment of such persons or their referral to psychoneurological organizations in accordance with the procedure established by the legislation of the Republic of Kazakhstan. The healthcare authorities may prescribe either outpatient supervision or inpatient treatment. Such a decision does not constitute a compulsory medical measure.

Paragraph 6 of the above-mentioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan states that, in accordance with Articles 14 and 279 of the Criminal Procedure Code, the compulsory placement of an accused or suspect held in custody in a medical organization for the purpose of conducting a forensic psychiatric examination is carried out on the basis of an instruction to that effect in the investigator's ruling. The placement of a person who is not held in custody in a medical organization for the purpose of conducting a forensic psychiatric examination is permitted with that person's consent or, in the absence of such consent, pursuant to a court ruling.

Paragraph 5 of the said Resolution explains that recognition of a person as legally insane in relation to one act does not exclude the possibility of recognizing that person as legally sane when committing another act. In this regard, where an act prohibited by criminal law is committed by a person who was previously recognized as legally insane and released from criminal liability, a forensic psychiatric examination should be appointed and conducted in order to determine whether the person was legally sane or insane in relation to the newly committed act, separately for each episode. Where necessary, inpatient forensic psychiatric examinations should be appointed.

Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honoured Worker 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, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.*

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