Commentary to article 88. Grounds for the use of compulsory medical measures of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Compulsory medical measures may be imposed by a court on persons:      

a) who have committed the acts provided for in the articles of the Special Part of this Code in a state of insanity; b) who, after committing the crime, have a mental disorder that makes it impossible to impose or execute punishment.;      

c) those who have committed a crime and suffer from mental disorders that do not exclude sanity;      

d) those who have committed a crime and are recognized as needing treatment for alcoholism or drug addiction or substance abuse.      

2. Compulsory medical measures shall be prescribed to the persons specified in the first part of this article only in cases where mental disorders are associated with the possibility of these persons causing other significant harm or with danger to themselves or others.      

3. The procedure for the execution of compulsory medical measures is determined by the Penal Enforcement Code and the legislation on healthcare of the Republic of Kazakhstan.      

4. In respect of persons specified in the first part of this article who do not pose a danger due to their mental state, the court may transfer the necessary materials to the health authorities to resolve the issue of treating these persons or sending them to neuropsychiatric institutions in accordance with the procedure provided for by the legislation of the Republic of Kazakhstan on healthcare.      

Provision of medical and social assistance to persons suffering from mental and behavioral disorders (diseases) and their rehabilitation are considered in Article 25 of the Law of the Republic of Kazakhstan "On Public Health Protection" dated July 7, 2006. The use of compulsory medical measures against persons suffering from mental disorders is regulated by Article 13 of the Law of the Republic of Kazakhstan "On Psychiatric Care and Guarantees of Citizens' rights in its provision", adopted on April 16, 1997.      

Part 1 of the commented article defines both the grounds for the application of compulsory medical measures and the categories of persons to whom such standards apply.      

Given that compulsory medical measures have specific application features for persons involved in the commission of crimes, the legislator has regulated this area in detail.      

The first category of citizens subject to compulsory medical measures includes persons who are insane. Persons who, at the time of committing a socially dangerous act provided for in the Criminal Code of the Republic of Kazakhstan, were in a state of insanity, i.e. could not realize the actual nature and social danger of their actions (inaction) or direct them due to chronic mental illness, temporary mental disorder, dementia or other mental illness (art. 16 of the Criminal Code). Due to their mental illness, these individuals are unable to realize both the actual nature of their actions (by setting fire to a house where people sleep at night, the person believes that they are illuminating) and their social danger (harmfulness), i.e. the actual harm to any specific goods, interests, values or the real threat of such harm. The commission of a crime in a state of insanity is a circumstance that exempts a person from criminal liability and punishment. Mental illnesses with insanity include progressive paralysis, schizophrenia, manic depressive psychosis, delirium tremens, pathological intoxication, imbecility, idiocy, mental disorders of a somatic nature, etc. Judicial practice shows that among those sent for compulsory medical treatment, the insane make up the vast majority.      

The second category of persons subject to compulsory medical measures includes citizens who, after committing a crime, have a mental disorder that makes it impossible to impose or execute punishment. In this case, we are talking about those persons who, at the time of the commission of the crime, were aware of the actual nature and social danger of their action (inaction) and directed it, and after the commission of the crime they fell ill with a mental disorder. The committed act is recognized as criminal, and the person who committed it is brought to criminal responsibility, but he can be released from the appointment or execution of punishment. The issue of release from punishment or execution of punishment is decided depending on the moment of the onset of mental illness.      

So, if a mental disorder has occurred before the entry into force of the sentence against such a person, the criminal proceedings are suspended for the period of treatment, and compulsory medical measures are applied to such a person. In this case, compulsory treatment is prescribed until his mental state is cured or improved. Upon recovery, the decision to suspend the case is lifted, and the case is investigated in a general manner.      

If a mental disorder has arisen during the period of serving a sentence and the execution of the sentence is impossible, then compulsory medical measures are also imposed on such a person. In this case, compulsory treatment is prescribed until his mental state is cured or improved. 94 of the Criminal Code of the Republic of Kazakhstan, the time spent on treatment is counted in the term of serving a sentence at the rate of one day of hospital stay per day of imprisonment. If such a person recovers, he is sent to continue serving his sentence.      

The third category of citizens, against whom compulsory medical measures are applied, includes persons suffering from mental disorders that do not exclude sanity. At the time of the commission of the crime, these persons, due to their mental disorder, could not fully realize the actual nature and social danger of their actions (inaction) or direct them. Such persons are the subjects of a crime and are subject to criminal liability, since their mental disorder does not exclude sanity. A mental disorder that does not exclude sanity in this category of persons is taken into account by the court when imposing punishment and may serve as a basis for imposing compulsory medical measures (art.17 of the Criminal Code of the Republic of Kazakhstan). Mental disorders that do not exclude sanity include structural and functional abnormalities caused by prenatal developmental disorders (oligophrenia, nuclear psychopathies), marginal psychopathies, residual phenomena after organic damage to the central nervous system of traumatic etiology, other disorders of mental activity that have not reached a psychophysiological level and do not exclude sanity, but lead to personal changes, and hence, deviant behavior. Compulsory medical measures in the form of outpatient compulsory supervision and psychiatric treatment are imposed on such persons along with punishment, in addition to punishment for those sentenced to imprisonment - in places of deprivation of liberty, and for those sentenced to other types of punishment - in health care institutions where they receive outpatient psychiatric care.      

The fourth category of persons subject to compulsory medical measures includes persons who have committed a crime and are recognized as needing treatment for alcoholism or drug addiction or substance abuse. In accordance with Article 18 of the Criminal Code of the Republic of Kazakhstan, a person who commits a crime in a state of intoxication caused by the use of alcohol, narcotic drugs or other intoxicating substances is not exempt from criminal liability.      

It is necessary to keep in mind the greatest social danger of alcoholism and drug addiction, the complexity of their treatment, due to the fact that chronic alcoholics and drug addicts themselves, without medical help, are powerless to stop the course of the disease. Conscious cessation of drunkenness is possible only in the initial stages of the disease. As a rule, alcoholics and drug addicts avoid treatment (the latter to a greater extent). In most cases, it is necessary to encourage treatment from the outside. Often this urge is expressed in the placement of patients for compulsory treatment. Compulsory medical measures in the form of outpatient compulsory supervision and psychiatric treatment are imposed on these persons in addition to punishment. These measures are carried out at the place where the convicted persons are serving their sentences. Compulsory treatment for persons in need of treatment for alcoholism, drug addiction and substance abuse is prescribed based on the opinion of expert narcologists.      

Compulsory treatment of this category of persons is prescribed regardless of the condition in which the person committed the crime. It is important to establish that the person needs such treatment.      

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" states: "courts should bear in mind that the mere presence of a mental illness in a person, as a result of which he is deprived of the opportunity to realize the actual nature and social danger of his actions and to direct them, is not the basis for the application of compulsory medical measures. In this regard, in each case it is necessary to check whether the commission of an act prohibited by criminal law has been proven, whether the person was in a state of insanity at the time of its commission. In addition, factual data should be established indicating the danger of a person due to mental disorders to himself or others about the possibility of causing them other significant harm."       The Criminal Code contains a very important provision that compulsory medical measures for persons specified in part 88 of the Criminal Code of the Republic of Kazakhstan, are prescribed only in cases where mental disorders are associated with the possibility of causing other significant harm to these persons or with danger to themselves or others (Part 2 of Article 88 of the Criminal Code of the Republic of Kazakhstan). When prescribing these measures, first of all, it is not the severity of the committed act that is taken into account, but the potential danger of these persons, both to themselves and to others.      

Therefore, the use of compulsory treatment is a judicial right, not an unconditional obligation. It can and should be applied in two cases: when a person, in addition to a socially dangerous act or crime committed by him in connection with a mental disorder, alcoholism, drug addiction, substance abuse, is capable of causing other significant harm (for example, destroying property, setting fire to a house) or, by his condition and behavior, poses a danger to himself or others individuals (outburst of aggression, uncontrollability).      

Thus, on the basis of the application of compulsory medical measures, three elements can be distinguished, the totality of which is sufficient for their application, and the absence of at least one of them precludes the use of these measures.:

1) the fact that a person has committed a socially dangerous act provided for by criminal law, or a crime;

2) the presence of this person's mental illness or alcoholism, drug addiction, or substance abuse; 3) the need for treatment of such a person due to his mental state, causing a danger of harm to himself or others.      

If the person specified in Part 1 of Article 88 of the Criminal Code of the Republic of Kazakhstan does not pose a danger due to his mental state, the court may transfer the necessary materials to the health authorities to resolve the issue of treating these persons or sending them to neuropsychiatric institutions in accordance with the established procedure (Part 4 of Article 88 of the Criminal Code).      

Neuropsychiatric institutions include psychiatric and neuropsychiatric hospitals, neuropsychiatric dispensaries, and psychiatric departments within multidisciplinary hospitals that provide specialized medical care to people suffering from mental disorders.

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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