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 individuals who suffer from mental disorders but remain legally sane. Such persons may be held criminally liable, with their mental condition considered by the court as a mitigating circumstance.

This provision is essential for distinguishing between complete insanity (Article 16 of the CC RK) and limited sanity, where an individual is capable of understanding their actions but to a lesser extent than a mentally healthy person.

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

🔹 Insanity (Article 16 CC RK):The individual does not understand the nature of their actions and is exempt from criminal liability.

🔹 Limited Sanity (Article 17 CC RK):The individual partially understands the nature of their actions, but the mental disorder affects their ability to appreciate the consequences or control their conduct.

📌 Example:Citizen N., suffering from an organic personality disorder (resulting from a traumatic brain injury), committed theft. A forensic psychiatric examination established that he was aware of his actions, but his ability to control his behavior was diminished. The court found him legally sane but considered his mental disorder as a mitigating circumstance.

2. Types of Mental Disorders Not Excluding Sanity

According to forensic psychiatric practice, these may include:

✔ Mild intellectual disability (IQ 50–70)✔ Organic brain disorders (effects of strokes, traumatic brain injuries, tumors)✔ Borderline mental disorders (anxiety disorders, obsessive-compulsive conditions)✔ Prolonged reactive states (after severe stress)✔ Mental disorders due to alcohol or drug abuse (but not intoxication itself!)

⚖ Important:Individuals who commit a crime while intoxicated cannot refer to Article 17 CC RK, as Article 19 CC RK states this does not exempt from criminal liability.

3. Criminal Liability of Persons with Mental Disorders

🔹 Persons with mental disorders not excluding sanity are held criminally liable under general rules.🔹 The court must take their condition into account when determining the sentence.🔹 In certain cases, compulsory medical measures may be applied (e.g., outpatient psychiatric supervision).

📌 Example:Citizen P., diagnosed with epilepsy with psychotic episodes, attacked a passerby during a seizure. The court considered his condition and imposed a lighter sentence along with compulsory treatment.

4. Mitigating Circumstance in Sentencing

According to subparagraph 8 of paragraph 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.

📌 Example from case law:Defendant K., diagnosed with schizotypal disorder, committed fraud. The court took his diagnosis into account and imposed the minimum sentence allowed by law, along with outpatient treatment.

5. Application of Compulsory Medical Measures

🔹 Grounds for application:The court may impose compulsory medical measures if:✔ The individual poses a danger to themselves or to others✔ There is a risk of deterioration✔ Ongoing psychiatric monitoring is required

🔹 Types of compulsory measures:✔ Outpatient psychiatric supervision (Article 94 CC RK)✔ Hospitalization in a psychiatric facility (if there is a threat to society)

📌 Example:Defendant G., diagnosed with a personality disorder not excluding sanity, was convicted of hooliganism. The court imposed compulsory treatment instead of imprisonment.

6. Regulatory Resolutions of the Supreme Court of the RK

📌 Regulatory Resolution of the Supreme Court of the RK No. 7, dated 21 December 2001:The court is obligated to order a forensic psychiatric examination if there is reason to believe the defendant suffers from a mental disorder.

📌 Regulatory Resolution of the Supreme Court of the RK No. 3, dated 25 June 2010:When delivering a verdict, the court must consider the mental condition of the defendant as a mitigating factor.

📌 Excerpt from the Supreme Court’s clarification:"In the presence of a mental disorder not excluding sanity, the court must justify the sentence in detail, taking into account medical findings."

7. Conclusion

🔹 Persons with mental disorders not excluding sanity are subject to criminal liability.🔹 The court is obligated to consider their condition as a mitigating circumstance (Article 53 CC RK).🔹 Criminal punishment may be replaced with compulsory treatment (Article 94 CC RK).🔹 A forensic psychiatric examination is mandatory to establish the defendant’s mental condition (Article 260 CPC RK).

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