Grounds for the Application of Compulsory Medical Measures

📘 GENERAL CHARACTERISTICS

Article 91 of the Criminal Code of the Republic of Kazakhstan regulates the grounds for the application of compulsory medical measures (CMM), which are not a form of punishment but represent a special form of state response to persons who have committed socially dangerous acts while having mental disorders.

The purposes of applying CMM:

· ensuring public safety;· preventing repeated offenses;· providing specialized medical care;· implementing the principles of humanism and protection of health.

📑 STRUCTURE AND ANALYSIS OF ARTICLE 91

🔹 Part 1. Categories of persons to whom CMM may be applied

1) Persons who committed acts in a state of insanity

📌 According to Article 17 of the Criminal Code of the Republic of Kazakhstan, a person is recognized as insane if, at the time of committing the act, they were unable to understand the factual nature of their actions or control them due to a mental disorder.

➡️ Such persons are not subject to punishment but may be subject to CMM if they pose a danger.

📎 Related provisions:

· Article 17 CC RK — insanity;· Article 35 CPC RK — termination of a case on non-rehabilitative grounds.

2) Persons who developed a mental disorder after committing the act

📌 This refers to a person who was sane at the time of committing the crime but became insane later (before sentencing or during the execution of the sentence).

➡️ Imposition of punishment becomes impossible; medical measures are applied instead.

📎 Related provisions:

· Article 55 CC RK — postponement of execution of punishment;· Clause 6 of the Normative Resolution of the Supreme Court of the RK dated June 14, 2018 No. 5.

3) Sane persons suffering from mental disorders

📌 These persons are not exempt from criminal liability but have mental disorders requiring treatment.

➡️ They may be simultaneously:

· sentenced to punishment;· subjected to a medical measure (e.g., outpatient treatment).

📎 Example: a person diagnosed with schizotypal disorder committed theft — recognized as sane but in need of supervision.

4) Persons with substance dependence (alcohol, narcotic drugs, psychotropic substances)

📌 CMM are applied to individuals diagnosed with dependence and recognized as needing treatment based on a medical opinion.

➡️ Treatment may be:

· outpatient;· inpatient;· compulsory — if there is a risk of harm.

📎 Related provisions:

· Law of the RK “On Healthcare”;· Order of the Ministry of Health of the RK No. ҚР ДСМ-207/2020 — on the procedure for conducting forensic psychiatric examinations.

5) Persons over 18 who committed offenses against the sexual integrity of minors

📌 Given the high level of public danger and risk of recidivism, such persons may be assigned compulsory treatment even in the absence of a clearly expressed mental disorder (e.g., in cases of paraphilias).

📎 Related to:

· Articles 121–124 CC RK — sexual offenses;· international practice (e.g., chemical castration).

🔹 Part 2. Condition for application: presence of danger

CMM are applied only if there is:

· a risk of causing significant harm;· danger to the person themselves or others.

📝 The court must establish not only the presence of a diagnosis but also the fact of danger confirmed by a forensic psychiatric examination.

📎 Practice: in cases involving insanity, a comprehensive inpatient examination is mandatory, not only an outpatient one.

🔹 Part 3. Procedure of execution

➡️ Regulated by:

· Criminal Executive Code of the RK (Articles 164–175);· Law of the RK “On Healthcare”;· Regulations of the Ministry of Health.

📌 The execution of CMM is monitored not only by medical authorities but also by the court, which periodically reviews the necessity of continuing the measure.

🔹 Part 4. Alternative to CMM — referral to healthcare authorities

📌 The court may refrain from imposing CMM if the person:

· does not pose a danger;· voluntarily agrees to treatment.

➡️ In such cases, proceedings may be terminated, and the person referred to a psychiatric or narcological institution outside criminal jurisdiction.

📎 Example: a person with schizophrenia who has not committed violent acts voluntarily undergoes hospitalization.

🧩 EXAMPLE FROM JUDICIAL PRACTICE

Case No. 2-1540/2023 (Kostanay):A person suffering from paranoid schizophrenia attacked a passerby. Recognized as insane. According to the expert commission, the person posed a danger.

➡️ The court applied CMM — placement in a specialized inpatient facility with intensive supervision for a period of 6 months with subsequent review.

⚖️ LEGAL SOURCES

📜 Domestic legislation:

· Criminal Code of the RK: Articles 17, 55, 91–96;· Criminal Procedure Code of the RK: Articles 435–437;· Criminal Executive Code of the RK: Chapter 23;· Law “On Healthcare”;· Orders of the Ministry of Health on forensic psychiatric care.

🌍 International standards:

· UN Convention on the Rights of Persons with Disabilities — Article 14;· UN Standard Minimum Rules (Beijing and Tokyo Rules);· ECtHR judgments — Winterwerp v. Netherlands, Stanev v. Bulgaria.

🧭 CONCLUSION

Article 91 of the Criminal Code of the RK:

· combines criminal law and medical approaches;· protects both society and the individual;· requires mandatory judicial evaluation of expert conclusions;· is aimed at humane and lawful application of restrictions related to mental health.

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