Criminal Liability of Persons with Mental Disorders Not Excluding Sanity

Article 17 of the Criminal Code of the Republic of Kazakhstan (hereinafter – CC RK) governs the criminal liability of persons suffering from mental disorders that do not exclude sanity. Such individuals may be held criminally liable; however, their mental condition shall be considered by the court as a mitigating circumstance.

This provision is essential to distinguish between complete insanity (Article 16 of the CC RK) and limited sanity, in which a person may recognize their actions but to a lesser degree than a mentally healthy individual.

1. Distinction Between "Insanity" and "Limited Sanity"

• Insanity (Article 16 CC RK): A person does not comprehend the nature of their actions and is not subject to criminal liability.

• Limited sanity (Article 17 CC RK): A person partially comprehends the nature of their actions, but the mental disorder affects their ability to understand the consequences or control their behavior.

📌 Example: Citizen N., suffering from an organic personality disorder (resulting from a traumatic brain injury), committed theft. Expert examination established that he understood his actions but had a reduced ability to control his behavior. The court found him sane but considered his condition as a mitigating circumstance.

2. Types of Mental Disorders Not Excluding Sanity

According to forensic psychiatric practice, such disorders include:

✔ Mild intellectual disability (IQ 50–70)✔ Organic brain damage (effects of strokes, traumatic brain injuries, tumors)✔ Borderline mental disorders (anxiety disorders, obsessive-compulsive conditions)✔ Prolonged reactive states (aftereffects of severe stress)✔ Mental disorders due to substance abuse (excluding the state of intoxication)

⚖ Important: Persons who committed crimes while intoxicated may not invoke Article 17 CC RK, as per Article 19 CC RK – intoxication does not exempt from liability.

3. Criminal Liability of Persons with Mental Disorders

• Persons with mental disorders not excluding sanity are held criminally liable under general grounds.

• The court must consider their mental condition when determining the sentence.

• In certain cases, compulsory medical measures may be imposed (e.g., outpatient psychiatric monitoring).

📌 Example: Citizen P., suffering from epilepsy with psychotic episodes, attacked a passerby during a flare-up. The court considered his condition and imposed a lighter sentence along with compulsory treatment.

4. Mitigating Circumstance in Sentencing

Under point 8 of part 1 of Article 53 CC RK, the commission of a crime by a person suffering from a mental disorder not excluding sanity is a mitigating circumstance.

📌 Judicial Practice Example: Defendant K., suffering from schizotypal disorder, committed fraud. The court took his diagnosis into account and imposed the minimum sentence provided by the article, along with outpatient treatment.

5. Application of Compulsory Medical Measures

• Grounds for Application:A court may impose compulsory medical measures if:✔ The person poses a danger to themselves or others✔ There is a likelihood of the condition worsening✔ Continuous psychiatric observation is required

• Types of Measures:✔ Outpatient psychiatric monitoring (Article 94 CC RK)✔ Hospitalization in a psychiatric institution (if the individual is dangerous to society)

📌 Example: Defendant G., suffering from a personality disorder not excluding sanity, was found guilty of hooliganism. The court imposed compulsory treatment instead of imprisonment.

6. Normative Resolutions of the Supreme Court of the Republic of Kazakhstan

📌 Normative Resolution No. 7 of the Supreme Court of the RK dated December 21, 2001:The court is obliged to appoint a forensic psychiatric examination if there is reason to believe the accused has a mental disorder.

📌 Normative Resolution No. 3 of the Supreme Court of the RK dated June 25, 2010:When delivering a sentence, the court must consider the accused's mental condition as a mitigating circumstance.

📌 Excerpt from Supreme Court clarification:"In the presence of a mental disorder not excluding sanity, the court must provide detailed justification for the sentence imposed, taking into account medical conclusions."

7. Conclusion

• Persons with mental disorders not excluding sanity are subject to criminal liability.

• The court must treat their condition as a mitigating circumstance (Article 53 CC RK).

• Sentences may be replaced by compulsory treatment (Article 94 CC RK).

• Forensic psychiatric examination is mandatory to establish the accused’s mental state (Article 260 CPC RK).

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