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English Language Page Unlike the penalty, the imposition of compulsory medical measures doesn’t’ constitute a deprivation or limitation of the rights and freedoms of an individual in response to his culpable criminal misconduct (i.e. these measures do not amount to a "retribution for the deed"). Application of a compulsory treatment is not aimed at the correction of the criminal and it doesn’t entail a conviction. Imposition of compulsory medical measures falls exclusively into the jurisdiction of the court of law (Paragraph 2, Part 2, Article 29 of the RF Criminal Procedure Code). The notion "imposition" includes the sentencing decision, as well as the execution, prolongation, alteration and termination (cancellation) of the measures. A distinction should be made between the imposition of compulsory measures on individuals with severe mental disorders and individuals having mental disorders that do not fall into the category of severe disorders. A severe mental disorder cancels out the possibility of fixing a penalty and serving the sentence, while individuals with mental disorders that do not qualify as severe can be imposed medical measures along with the penalty and at the same location where the sentence is being served. Compulsory treatment of individuals with severe mental disorders Severe mental disorders (mental diseases) comprise mental derangements that deprive the patient of the ability to consciously and willfully regulate his conduct. The law denotes the loss of such ability by the formula of the individual’s inability “to know the actual nature and social danger of his act (failure to act), or to be in control of it.” Possession of a severe mental disorder by an individual committing a SDA is a precondition for ruling that person insane. If such mental disorder was present when the individual committed the SDA, the individual is declared mentally incompetent (Article 21 of the Criminal Code) by a decision of a court of law based on the opinion given by psychiatric experts. Insane individuals cannot be held criminally liable and punished because their deeds lack guilt. A severe mental disorder may also occur after the individual has committed a crime while being in his right senses (compos mentis) but before the court could pass its sentence. In that case the actor is guilty of the crime and is criminally liable. However, he is not punishable. The reason for that is the severe mental disorder that developed during the proceedings. Therefore the ill shall be freed from punishment by the court of law and may be sent for a compulsory treatment (Article 81 of the RF Criminal Code). Shall the disease be of a temporary and reversible nature, then, following the recovery or at least such improvement of the mental conditions of the ill person that again enables him to know his deeds and be in control of them, that individual is again liable for punishment provided the statutory time limitation for that offense has not expired. And finally, it may also happen that an individual would develop a severe mental disorder while serving his sentence (Article 81 of the RF Criminal Code). If the disorder is of a chronic nature, the convict shall be freed by a court’s order from further serving of his term and can be subjected to compulsory medical treatment. Chapter 15 of the RF Criminal Code sets forth the grounds for the assignment, prolongation, alternation and termination of compulsory medical measures, specifies their objectives as well as the categories of individuals who can be subjected to those measures. It is worth repeating that the individuals with severe mental disorders liable for compulsory medical treatment can be broken down into three categories of SDA performers: insane individuals; individuals who developed a severe mental disorder after the crime but before the imposition of the sentence; individuals who developed the above mentioned disorder while serving their sentence. The types of compulsory measures of medical nature that can be applied to the individuals under consideration are given in Part 1, Article 99 and Articles 100, 101 of the RF Criminal Code. They are listed by their priority from less severe to more severe types and include the following measures: • out-patient compulsory observation and treatment by a psychiatrist; • compulsory treatment at a general psychiatric ward; • compulsory treatment at a specialized psychiatric ward; • compulsory treatment at a specialized psychiatric ward with intensive observation. All the institutions providing compulsory treatment have to report to the health protection agencies (the RF Ministry of Healthcare and its subordinate regional branches). Security of the specialized intensive treatment wards is currently a “joint” responsibility of the ward’s administration and local departments of justice. Compared to the precious RSFSR Criminal Code of 1960 the current Russian Criminal Code put into force on January 1, 1997, has slightly changed the system of the compulsory measures of medical nature. Although the RSFSR Criminal Code also provided for the three types of psychiatric wards specializing in compulsory treatment (although under different names), the outpatient compulsory observation and treatment by a psychiatrist is for Russia a totally new type of compulsory treatment of individuals with severe mental disorders. It was not mentioned in the previous Criminal Code. During the preparatory work on the current Criminal Code the proponents of this type of compulsory treatment made it a point to stress that that its introduction would allow to send for outpatient treatment those afflicted individuals who, in the absence of any alternative in the past, had to be placed into an inpatient psychiatric facility. Introduction of the outpatient treatment option makes it possible to narrow the scope of coercion in the application of compulsory medical measures. Thus the new type of compulsory treatment is aimed at the protection of the rights and freedoms of the mentally ill individuals. Moreover this is accomplished without any impairment of the overall security, because if the outpatient treatment measures should prove to be inadequate for the danger presented by a particular afflicted individual for himself and for others, the type of compulsory treatment can be changed for an inpatient treatment without waiting for the individual to commit another SDA. The application of compulsory measures of medical nature as specified in Article 98 of the Criminal Code is aimed at the recovery of the patient or improvement of his mental condition (as some of the mental disorders are incurable) as well as the prevention of the new SDA by a given individual (repeated crime prevention). Compulsory measures of medical nature are applicable only when the following essential conditions are met: 1. commission of a deed forbidden by the criminal statute; 2. commission of the deed by the given individual; 3. possession of a severe mental disorder (according to the terminology adopted in the law it is a mental disorder that does not allow the individual “to realize the actual nature and public danger of his deeds (or lack thereof) or to be in control of them”) by the individual during the commission of the deed and/or after it; 4. presence of the danger related to the mental disorder of the ill person (when he presents “a danger to himself and others or there is a possibility that he might cause significant damage” in the words of the statute). 5. absence of at least one of the conditions listed above rules out the application of the compulsory medical measures. The application of compulsory measures of medical nature shall be distinguishes from involuntary psychiatric hospitalization of individuals with severe mental disorders, who have not committed any SDA. The grounds and procedures for involuntary psychiatric hospitalization are set forth not in the RF Criminal Code and the RF Criminal Procedural Code, but in Federal Law “On Psychiatric Assistance and the Guaranties of the Rights of Citizens in the course of its Provision” (hereafter —Federal Law “On Psychiatric Assistance”). The application of compulsory measures of medical nature to the individuals with severe mental disorders is done under the procedures set forth in Chapter 51 of the RF Criminal Procedural Code. This chapter takes into account the specific characteristics of this category of cases, including, in particular, the need for additional legal guarantees in the protection of the rights of those individuals who are incapable of protecting their rights and interests on their own due to their mental disorders. Contrary to the meaning of the title of Chapter 51 “Casework for the Application of Compulsory Measures of Medical Nature,” its norms regulating the assignment of these measures are applicable only to the insane and those individuals, whose severe mental disorder developed after the commission of the crime but before the imposition of the sentence. The assignment of compulsory treatment to the convicts with severe mental disorders is done according to a different procedure (this will be discussed later in the text). The procedure of the assignment of compulsory measures of medical nature under the provisions of Chapter 51 of the RF Criminal Procedural Code is as follows. A prejudicial inquiry is a must. It is considered to be best suited for a comprehensive and complete establishment of all the circumstances to be proven. The presence of a defense counselor is mandatory. The proceedings shall also be attended by the legal representative of the person with respect to whom the inquiry takes place (parents of a non-adult individual, guardian of an incapable person, close relatives, etc.). The prejudicial inquiry may include all the investigative actions, which might be necessary for the establishment of the circumstances to be proven, while à forensic psychiatric examination is always mandatory (Part 3, Article196 of the RF Criminal Procedure Code). The experts deliver their opinion about the presence or absence of a severe mental disorder. In the absence of the disorder they put together their recommendations with regard to the application of compulsory medical measures (whether or not the ill person requires the imposition of such measures and if so, then which ones). The expert opinion is not legally binding on the investigator (or on the court for that matter), who can agree or disagree with the expert opinion, as well as reject it completely and order a new examination, etc. However, the disagreement of the investigator (court) with the expert opinion shall be motivated and shall go on record in the inquiry documents. Under the provisions of Chapter 51 of the RF Criminal Procedure Code the court proceedings shall take place with the mandatory presence of a counsel for the prosecution and a counsel for the defense. The hearing shall examine all the evidence collected for the case, as well as any new evidence if it is provided by the parties to the proceedings or requested on court's own motion. The court of law passes its order on the imposition of a compulsory treatment of a particular kind or on the non-imposition of such treatment. If the compulsory medical measures are not applicable to the individual with a mental disorder because, for example, the ill person doesn’t present a danger or because of the lack of evidence that he had committed the charged deed, the court shall dismiss the case and send a copy of its ruling to the corresponding health protection agency advising it to take the necessary measures of “general treatment.” There is a different procedure for the assignment of compulsory medical measures to the convicts who have developed a mental disorder while serving their sentence. A medical commission at the place where the sentence is being served shall acknowledge the presence of a severe mental disorder that deprives the ill person of the capability to consciously and willfully regulate his conduct and precludes his further serving of the sentence. The opinion of the medical commission is forwarded to the court via the administration of the institution in charge of the execution of the sentence. The court reviews the case as part of the “sentence execution” procedure (Articles 397 and 399 of the RF Criminal Procedure Code) with the participation of a representative of the penitentiary that moved to release the convict from further punishment and subject him to compulsory treatment. The court makes a ruling only on these two issues because all other issues (primarily those related to the crime committed by the individual) had already been resolved by the time when the sentence under which the convict serves his term went into effect. The proceedings may be attended by the counsel for the defense and the prosecution counsel. Compulsory treatment can be imposed by court only along with a simultaneous release of the ill person from further servicing of his punishment and only when all the conditions necessary for such a decision have been met (see above). Development of a less severe mental disorder during the serving of a sentence does not relieve the convict from punishment and cannot be used as a justification for the application of compulsory measures of medical nature. The right choice of the type of compulsory treatment plays an extremely important role in the assignment of compulsory medical measures. The most general provisions on this issue are set forth in the law. The type of compulsory treatment shall be chosen by court based on the expert opinion (see above). The outpatient compulsory observation and treatment by a psychiatrist (Article 100 of the RF Criminal Code) shall be applied in those cases, when the mental condition of the ill person does not require his placement into a psychiatric hospital and all medical and other psychiatric measures necessary for the achievement of the compulsory treatment objective can be realized through outpatient facilities. This type of compulsory treatment is provided at the place of permanent residence of the ill person. The psychiatric observation is performed through regular examination of the ill person either at home or at a psychiatric facility that offers outpatient psychiatric care. The ill person is also given therapeutic and other assistance that might be required by his condition. The decision about the imposition of an outpatient compulsory treatment is taken by the court of law on the bases of expert opinion. Compulsory treatment at a general psychiatric ward is assigned to those individuals, whose mental condition requires inpatient treatment and observation, but not an intensive observation (Part 2, Article 101 of the RF Criminal Code). General psychiatric facilities are regular inpatient facilities (psychiatric hospitals and psychiatric wards) that provide in-house psychiatric assistance to people. Compulsory treatment is provided in such facilities along with the treatment of mental patients, who have not committed any SDA, under the same conditions of maintenance and observation. Compulsory treatment in a specialized psychiatric ward is assigned to those individuals, whose psychiatric condition requires a full-time observation (Part 3, Article 101 of the RF Criminal Code). A “specialized” facility means that it is intended exclusively for the provision of inpatient maintenance and treatment to those who are subject to compulsory treatment. No other categories of mental patients can be kept in such facilities. The observation and care in a specialized ward are adapted to the characteristics of its patients, whose mental condition makes them a significant danger to the public. An inpatient specialized facility is normally a specialized ward in a regular mental hospital. Compulsory treatment at a specialized psychiatric ward with intensive observation is assigned to those individuals, who, according to their mental conditions, constitute an extreme danger to themselves or to the public and thus require an intensive observation on a continuous basis (Part 4, Article 101 of the RF Criminal Code). The “extreme danger” that is characteristic of this category of patients is defined in the scientific literature (legal and forensic-psychiatric doctrine) and by the established practice as a high probability of committing an especially grave deed — murder, severe bodily injury, etc. “Extreme danger” can be further characterized by the fact that the patient has a record of habitual grave deeds committed despite the previous application of medical treatment, as well as the absence of an alternative to keeping such patient under the conditions of specially organized full-time and intensive observation. That is why the security issues in specialized psychiatric wards are a joint responsibility of the doctors and medical personnel and a non-medical security service. This service is under operational command of the administration of the wards but organizationally reports to the bodies of justice. The specialized psychiatric wards with intensive observation are currently independent psychiatric facilities (hospitals), though the law does not prohibit establishing such institutions as specialized wards within regular psychiatric hospitals. There are seven such facilities in total, each of them providing services to a group of territories (krai, oblast, etc.). Thus the main distinguishing feature, underlying the selection of the specific type of the compulsory measures of medical nature is the extent to which the ill person constitutes a danger to himself and to the public, The rule of thumb is: the higher the danger — the more severe the type of compulsory treatment should be. At the same time, the “danger” is being viewed here as a probability function, i.e. the danger, presented by a mental patient, is measured as a risk (high probability) that this patient would commit a new SDA. The gravity of the deed that instituted the procedures for the application of compulsory measures of medical nature should not be evaluated separately, but should rather be viewed in the context of the mental condition of the patient. Selection of the more severe measure of compulsory treatment simply on the ground that the patient has committed a grave offense would be improper because such an approach adds to the compulsory treatment an element of punishment or retribution for the deed. There have been practical cases when an individual, who had committed a grave crime while in a state of a temporary mental disorder, would be subjected to a less severe compulsory medical treatment. Moreover, when the patient would totally recover or his mental condition would significantly improve by the time of the court hearings, the criminal case would be closed without any application of compulsory treatment whatsoever. The next important issue within the framework of the theme under discussion is the issue of the legal status of the individuals undergoing a “compulsory treatment.” These individuals receive the same kind of treatment and other psychiatric assistance as other psychiatric patients with similar psychic pathologies. Besides, the law provides further guarantees, aimed at the protection of the rights of individuals subject to compulsory medical treatment — during their psychiatric treatment (i.e. treatment for mental disorders) they cannot be subjected to surgical and any other irreversible treatment, as well as any medical drug or cure tests (Part 5, Article 11, of Federal Law “On Psychiatric Assistance”). Individuals undergoing an inpatient compulsory treatment enjoy all the rights of the patients of inpatient psychiatric facilities specified in Article 38 of the Law on Psychiatric Assistance. For the whole time of their stay at the facility they are granted the status of the disabled and are entitled to national social insurance benefits or a pension under the generally applicable rules (Part 3, Article 13,of the Law). Control and supervision over the facilities providing compulsory treatment is exercised in the same way (by the same bodies and according to the same procedures), as control and supervision over other facilities, providing psychiatric assistance to the public. The local bodies of self-government and parent healthcare bodies exercise control, while supervision is the prerogative of the prosecutor’s office (Article 45 of Federal Law “On Psychiatric Assistance”). Article 46 of the Law authorizes public organizations, which include this type of activity into their charters, to check the observance of human rights during the provision of psychiatric assistance. Control by the public associations is applicable to all psychiatric institutions that provide compulsory treatment, including the inpatient specialized facilities with intensive observation. In the case of a violation of the rights if individuals undergoing compulsory treatment, the actions that brought about the violation (actions of the officials, doctors, other workers of the psychiatric facilities) can be appealed against by the petitioner to a court of law, to the parent psychiatric organization (superior official) or to the prosecutor’s office (Article 47 of Federal Law “On Psychiatric Assistance”). Appeals can be filed both by the individual, whose rights have been violated, his representative, as well as by the organizations that under law or its charter are entitled to defend the rights of the citizens (for example, the RF Ombudsman or an ombudsman of a Russian Federation subject). It is noteworthy that until the enactment of Federal Law “On Psychiatric Assistance” the Russian legislation did not provide for the possibility of filing this kind of appeals. The next important link in the chain of employment of the compulsory measures of medical nature is the established way of their prolongation, alteration of their type, as well as their termination (cancellation). Unlike the punishment, the exact time for the application of the compulsory measures of medical nature is not fixed in advance and their duration is not limited by any timeframe. Termination (cancellation) of the compulsory medical measures can occur only if they have achieved the objectives laid down in Article 98 of the RF Criminal Code. The grounds for the cancellation and alteration of the type of the measures under consideration are set forth by the corresponding law (Article 102 of the RF Criminal Code). In the absence of any fixed timeframe, the compulsory medical measures require a periodic prolongation. According to Article 102 of the RF Criminal Code, each individual undergoing a compulsory treatment is subject to a medical examination by a commission of psychiatrists at least once every six months to check whether there are sufficient grounds to cancel the assigned treatment or to alter its type. If there is no need to cancel or alter the type of compulsory treatment, the administration of the facility that provides the treatment, shall submit to a court their medical opinion asking for the prolongation of the treatment. The court shall pass its first decision on the prolongation of the treatment six months after its commencement, while the subsequent decisions shall be passed once a year. The prolongation proceedings serve as an important legal guarantee against any unwarranted continuation of the compulsory treatment. The legal proceedings with respect to the prolongation of compulsory measures of medical nature were introduced for the first time by the new RF Criminal Code. The RSFSR Criminal Code that was in force until 1997 specified the legal proceedings only with respect to the cancellation or alteration of the compulsory medical measures. However, it did not regulate the prolongation of the compulsory measures. This issue was the responsibility of the medical commissions that had to subject the patients undergoing compulsory treatment to a regular medical examination. According to Part 2, Article 103 of the RF Criminal Code, medical commissions responsible for the regular medical evaluation shall consist under normal circumstances of the psychiatrist doctor of the medical institution that is administering the compulsory treatment to the given individual. However, such commission may also include psychiatrists working in other institutions. Moreover, following the meaning of Part 2 of Article 5 of Federal Law “On Psychiatric Assistance” (these rules are also applicable to the activities of the facilities that administer the compulsory treatment) the patient or his legal representative have the right to invite a psychiatrist of their choice to participate in the evaluation as a rightful member of the commission. This rule shall guarantee the objective nature of the psychiatric evaluation and the rights of the individual being examined. Since the examination has to be administered by a commission, it implies that the number of the participating psychiatrists shall not be less than two people. The alteration of the type of the compulsory treatment may occur when the previously assigned measure becomes obsolete and thus has to be replaced by a new one. The alternation may occur both ways: a more severe measure may be replaced by a less severe one, or a less severe measure may be replaced by a more stringent one (when, for example, the mental condition of the ill person gets worse and he is becoming increasingly dangerous to others). The alteration of the type of the compulsory treatment and its cancellation are the prerogative of the court of law acting on the basis of the opinion of a medical commission. Compulsory measures of medical nature can be cancelled only in the case of a complete recovery of the patient or when the character of the persistent disease (mental disorder) changes to such an extent that the patient would stop constituting a danger both to oneself and to the public, or would be incapable of causing any other significant damage. Alteration or cancellation of the compulsory measures of medical nature can be done even before the expiration of the six-month period or one year since the time of the previous examination by the medical commission. If the mental condition of the patient improves in such a way that it would be possible to raise the issue about the cancellation or alteration of the compulsory treatment, the medical commission can conduct the psychiatric evaluation of the patient even before the expiration of the aforementioned term. An early evaluation of a patient can be performed at the request of his attending physician who has fixed a change in the patient’s mental condition, as well as at the request of the patient himself, his legal representative and/or a close relative (Part 2, Article 102 of the RF Criminal Code). They shall file an appeal to this effect via the administration of the institution responsible for the provision of the compulsory treatment regardless of the time when the previous examination was conducted. The legal proceedings with regard to the prolongation of the compulsory treatment, its cancellation or alteration of its type are subject to the provisions of Article 445 of the Criminal Procedural Code. A corresponding request shall be filed with the court by the administration of the institution that is providing the compulsory treatment. The request shall be accompanied by the written opinion of the doctors who conducted the psychiatric examination. The case shall be handled by the same court that passed the decision on the application of the compulsory medical measure or by the court of the place where the measure is being applied with a mandatory participation of the prosecutor and the counsel for defense. The notice of trial shall be sent also to the legal representative of the individual whose case is to be heard and the administration of the institution responsible for the provision of the compulsory treatment. Their absence at the trial cannot prevent the case to be heard. However, based on the specific circumstances of the case the court may rule that their appearance is required, as well as issue a subpoena to other individuals, for example the physicians who participated in the psychiatric evaluation and signed the submitted medical opinion. In a case related to the prolongation, cancellation or alternation of the type of the compulsory treatment the court may either agree with the request and the conclusions of the medical opinion or reject them. When there are doubts about the conclusions of the medical opinion, the court can order another forensic-psychiatric evaluation to be conducted. The parties to the trial have the right to appeal against the court’s ruling. When the compulsory inpatient treatment in a psychiatric facility is terminated, the court may send the required materials about the individual in question to the relevant medical authorities to decide on his subsequent treatment (“general treatment”) or placement into a psycho-neurological facility under the procedures specified in the healthcare legislation (Part 4, Article 102 of the RF Criminal Code). When the compulsory treatment is terminated with regard to an individual, whose severe mental disorder developed after the commission of the crime but before the imposition of the sentence, the court passing the treatment termination decision shall also rule on referring the case to the prosecutor’s office for the resumption of the criminal proceedings against the individual in the general order (Part 1, Article 446 of the RF Criminal Procedure Code). It has already been noted that after the cancellation of the compulsory treatment such individuals may again become liable to criminal proceedings and punishment provided the statutory time limitation for their offense has not expired. The time spent in the inpatient psychiatric facility shall be included in the aggregate sentence term using the formula of one day spent in the psychiatric facility equals one day of imprisonment (Article 103 of the RF Criminal Code). Compulsory treatment accompanying the serving of the sentence Under the Russian criminal legislation compulsory measures of medical nature can be applied to the criminal offenders whose mental disorder is not as severe as to preclude the application of the punishment. These measures may be applied to such individuals when and where they serve out their sentence. Compulsory treatment can be applicable to the following categories of individuals: 1. sane individuals, who at the time of the crime commission were unable to fully realize the actual nature and public danger of their deeds (or lack thereof) or to be in control of them due to their mental disorder and require psychiatric treatment (Article 22 and Part 2, Article 99 of the RF Criminal Code); 2. individuals, who have been convicted for their crime and are in need of treatment for alcoholism or drug addiction (Part 2, Article 99 of the RF Criminal Code). The first of the above-mentioned categories is referred to in the legal and forensic-psychiatric literature as “partially insane” individuals, although the notion as such is absent from the law. Unlike the insane, the “partially insane” are not completely unable to appreciate and regulate their conduct; their capacity is only diminished. Therefore this category of individuals is criminally liable though their mental disorder shall be taken into account by the court during sentencing — in the choice of punishment, its length, etc. In particular, the “partial insanity” may be recognized by court, depending on the character of the mental disorder and the specific circumstances of the crime, as a mitigating factor. Application of compulsory treatment towards the partially insane is optional. Its application depends on the character of the mental disorder and the extent to which the afflicted person is in need of psychiatric observation and treatment. The second category of individuals who can be subjected to compulsory treatment while serving their sentence comprises the convicted alcohol or drug addicts who are in need of medical treatment (either for alcoholism or drug addiction). In other words, it’s about the dependence on alcoholic beverages or narcotics. The law does not provide for the possibility of compulsory treatment of the convicts suffering from addiction to other psychotropic substances (for example, convicts showing the symptoms of toxicomania). If following the abuse of alcohol or illegal drugs the individual develops a severe mental disorder that would cancel out his ability to realize and be in control of his actions while committing a SDA, for example, the alcoholic psychosis, then such a ill person shall be recognized insane and shall be freed from criminal liability. Compulsory treatment of the “partially insane” is a totally new type of the compulsory measures of medical nature. The previous Criminal Code of the RSFRS did not contain any norms similar to the one set forth in Article 22 of the RF Criminal Code (the norm of “partial insanity”). Compulsory treatment of the convicts with alcoholic or drug addiction however is not new — it was already present in the previous Criminal Code. The current RF Criminal Code provides for only one type of compulsory measures of medical nature that can be applied during the execution of the sentence, i.e. compulsory outpatient observation and treatment by a psychiatrist. This type of compulsory treatment is similar in nature to the outpatient compulsory treatment applied to the individuals with severe mental disorders (Part 1 “a,” Article 99 of the RF Criminal Code). However they are essentially different in their content, because in the latter case compulsory treatment, applied to individuals with severe mental disorder, cannot be peRussian Federationormed during the sentence execution. The measure of compulsory treatment to accompany the execution of the sentence is not being assigned under the special procedure specified in Chapter 51 of the RF Criminal Procedural Code (see above), but in accordance with the general procedure of criminal case investigation and subsequent consideration by a court of law. The decision on the assignment of compulsory treatment is thus included into the sentence. The fact that the defendant is suffering from a mental disorder that lessens his ability to consciously regulate his conduct (Article 22 of the RF Criminal Code) shall be established through a forensic-psychiatric examination, while his addiction to alcoholism or drugs shall be established by a forensic examination (forensic-psychiatrist and forensic-intoxication examination). The conclusion that the defendant is in need of a compulsory treatment shall also be made by the experts in the expert opinion. The latter is subject to the evaluation by the investigating officer and the court and is not binding on them. We have already discussed in detail the issue of expert opinion evaluation. If for various reasons the convict does not have to serve his sentence (for example, he is relieved from serving his sentence by a court’s ruling, gets a suspended sentence, etc.), then the compulsory treatment of the type discussed above (i.e. one combined with penalty) cannot be applicable. When the offender is serving his term of imprisonment, compulsory treatment is delivered by the psychiatric service of the penitentiary bodies of the RF Ministry of Justice. When the sentence does not involve imprisonment (for example, community service order), compulsory treatment shall be delivered by the residential psychiatric institutions of the health service bodies that have to coordinate their work with the local probation authorities, responsible for the administration of this type of penalty (probation inspectorates of the Ministry of Justice). The outpatient compulsory observation and treatment by a psychiatrist consist of a periodic examination of the convict by a psychiatrist (in the case of compulsory treatment for alcoholism or drug addiction it can be a psychiatrist specializing in alcoholism or drug addiction treatment) and application of appropriate therapy. This type of compulsory treatment is subject to the same limitations and prohibitions that have been set forth in Federal Law “On Psychiatric Assistance” with regard to the application area of compulsory medical measures, such as, for example, the ban on using for psychiatric treatment those methods, that cause irreversible consequences, and the ban on testing new medicine and medical methods on patients. If the convict is suffering from a certain type of severe somatic diseases (as specified in the list approved by the Rf Ministry of Justice and the Ministry of Healthcare) the compulsory treatment for alcoholism and drug addiction cannot be applicable to him. If the need for a compulsory treatment for alcoholism or drug addiction is established while the individual is serving his sentence, then such a treatment can be assigned by a court order following a request from the administration of the penitentiary institution responsible for the administration of the penalty (Part 2, Article 18 of the RF Criminal Implementation Code). The word “compulsory” in the name of the medical measure under the discussion does not imply that its application involves the use of any ‘compulsion’ by the psychiatrists in the strict sense of that word, i.e. forcible medical measures (for example, in reply to a refusal of the convict to submit to the treatment). On the contrary, application of compulsory treatment combined with the execution of the penalty precludes any use of such means and methods as confinement and isolation of the patient, or forcible introduction of medical substances into the patient’s body. Unlike the patients with severe mental disorders, the convict ordered to undergo a compulsory treatment does not lack the capacity to realize and regulate his conduct or to freely express his will. He is capable of bearing his assigned responsibilities and can be taken accountable for the failure to execute them. The need to submit to compulsory medical treatment is also a responsibility imposed by a court’s order. Any attempt to dodge that responsibility constitutes a gross violation of the rules of penalty execution (Article 116 of the RF Criminal Implementation Code) and may lead to the punishment of the offender. However, evasion of the responsibility to submit to compulsory treatment by the convict does not entitle the psychiatrist responsible for the provision of the treatment to use the forcible measures that are applicable during the psychiatric treatment of the individuals with severe mental disorders, such as, for example, those applicable to cope with the psychosis related psychomotor excitement. It should be noted that convicts are eligible to only one type of compulsory treatment and thus it is impossible to raise the issue about its alteration. Should it become necessary in the process of compulsory treatment of a convict to subject him to an inpatient treatment and observation, for example, in the case of an abrupt impairment of his mental condition, the inpatient psychiatric assistance may be provided to such a patient only on the grounds and under the rules established in the healthcare legislation. In particular, involuntary psychiatric hospitalization should be administered by a court’s order under the rules specified in Articles 29, 32-36 of Federal Law On Psychiatric Assistance.” Compulsory treatment of the convicts can be prolonged according to the same procedure as compulsory treatment of the individuals with severe mental disorders. In the first six month of the treatment and later on every year the prolongation of the treatment shall be subject to a court’s decision. We have already discussed in detail the established procedure for the prolongation of the compulsory measures of medical nature, as specified in Article 102 of the Criminal Code (see above). The prolongation of compulsory treatment coupled with the execution of the penalty is covered among other things by the norms, requiring a mandatory evaluation of the convict by a commission of psychiatric doctors once every six months, and providing for the possibility of an early conduct of such evaluation, etc. Cancellation of compulsory medical measures coupled with the execution of the penalty is accomplished by a court’s order in response to a request by the body responsible for the administration of the penalty (i.e. a territorial penitentiary inspection office of the RF Ministry of) based on the written opinion submitted by a commission of psychiatric doctors (Part 4, Article 104 of the Criminal Code). Once the sentence has been served, that means automatically an end to the application of compulsory treatment (if that has not already been cancelled by a court’s order), while the former convict may now receive the necessary psychiatric (detoxification) assistance “under normal procedures,” i.e. voluntarily. It should be noted that the issue of compulsory treatment coupled with the execution of the penalty has been a focal point of a debate for a long time. Quite a few specialists — jurists and psychiatrists — express their doubts about its lawfulness and expedience. One of the main arguments brought up in support of that position is the inefficiency of the treatment if it is administered against the will of the patient. It is also asserted that a compulsory treatment of an individual capable of conscious and willful regulation of his conduct raises a lot of ethical and legal questions. Moreover, in the framework of the general psychiatry that deals with patients, who have not committed any SDA, involuntary psychiatric measures are applicable only to patients with severe mental disorders. In this respect recommendations are made to replace the system of compulsory treatment of the convicts with a new one that would allow the convict to make his own decision whether to submit to the course of psychiatric (detoxification) treatment or not. Proponents of this point of view further maintain that the convict’s consent and formation of a “positive attitude towards the treatment” on his side shall be encouraged using persuasion techniques that would explain the necessity of the treatment and point out the resulting benefits. Supporters of such organization of the treatment believe that it will be more efficient and will remove a host of acute ethical and legal contradictions, while at the same time reducing the risk of probable abuse of psychiatric measures in this field. The proactive approach taken by the proponents of the above-mentioned point of view has brought its result. Discussions are being made now to include into the currently developed proposals of changes and amendments to the criminal and adjacent legislation a motion to abolish the compulsory treatment of convicts for alcoholism and drug addiction. Thus it is very likely that this type of compulsory measures of medical nature coupled with the execution of the penalty will soon be prohibited by law. The problems related to the improvement of the legislation regulating the application of compulsory medical measures, as well as their organization and funding Following the enactment in July of 2002 of the RF Criminal Procedure Code, the latest of the new Russian Codes regulating the issues of compulsory measures of medical nature, the process of the renewal of the legislative basis for the application of these measures can be considered to be largely over. Further development in this area would focus on the improvement of the acting legislation and not on the preparation of any new Codes. Compared to the previous Codes of the RSFSR of the 60s, the new codified legislation features legal innovations that strengthen the guarantees of the rights of individuals under compulsory treatment, bringing them in line with the requirements of the international legal standards. Thus, for example, the legislative regulation of this area of legal relations has become more detailed, the judicial field has been broadened, introducing, in particular, the judicial procedure for the prolongation of compulsory measures of medical nature. A new notion of outpatient compulsory treatment of individuals with severe mental disorders has appeared in the law for the first time in the Russian history, etc. However, the new updated legislation is, unfortunately, not free from substantial drawbacks. Some of them affect the principal and essential aspects of the compulsory treatment. As a result, a number of the current legislative norms have become even less adequate than the corresponding legal norms of the RSFSR legislation. The new RF Criminal Code pays considerably more attention to the objectives of compulsory measures of medical nature than the previous one — this issue is now dealt with in a separate article (Article 98 of the RF Criminal Code). However, it fails to cover all of the available compulsory medical measures. Thus the objectives of compulsory treatment of the individuals with severe mental disorders and the objectives of the compulsory treatment of the convicts became totally identical although the two of them have significant differences. Further on, the RF Criminal Procedure Code left without any regulation the possibility of the participation in the proceedings for the application of compulsory medical measures of the individual in respect to whom the action has been brought up as required by Chapter 51 of the RF Criminal Procedure Code (i.e. the individual with a severe mental disorder). The former RSFSR Criminal Procedure Code provided for mandatory resolution of this issue both at the stage of preliminary investigation and at the trial stage. If, having reviewed all the available evidence, the investigator concluded that the individual could not participate in the investigative action due to his mental condition, he had to put it on record. The decision had to be made available to the parties concerned and could be appealed against. At the trial stage the judge responsible for the preparation of the case for the hearing also had to make a decision as to whether or not the defendant shall attend the court due to his mental condition. The current Criminal Procedure Code (Chapter 51) simply ignores this question. The investigators and judges certainly make their decisions about the participation (or non-participation) of the defendant in the proceedings but it is not put on record and thus cannot be evaluated or appealed against. Moreover the decisions taken are essentially different. For example, some judges consider the participation of the defendant in the trial mandatory regardless of his mental condition, while others are willing to hear the case of the defendant in absentia. It seems to be necessary that Chapter 51 of the RF Criminal Procedure Code not only reestablished the norms of the old RSFSR Criminal Procedure Code but also expanded and amended them. For example, it should be provided that in those cases when the judge would decide it impossible to bring the ill person to attend the court, the case should be heard with the participation of the ill person at the place of his residence (as it is currently done in relation to the participation of a patient in a court hearing of the involuntary psychiatric hospitalization), or, if the implementation of this option would prove to be too complicated or impossible, the court should be obliged before the beginning of the court hearing to pay a visit to the ill person to give him the opportunity of personal contact with the judge. The implementation of the compulsory treatment is the least regulated issue in the law. According to Part 3 of Article 97 of the RF Criminal Code, “the procedure for the implementation of compulsory measures of medical nature shall be regulated by the criminal execution legislation of the Russian Federation and other federal laws.” However, the RF Criminal Implementation Code contains so few norms dealing with compulsory treatment, that it can be safely maintained that the above-mentioned requirement of the Criminal Code has not been met. Some scarce and unrelated norms regulating various aspects of the compulsory treatment are contained in the healthcare legislation. Therefore on the whole the compulsory treatment lacks any substantial legislative underpinnings. This situation creates a lot of serious practical problems. This legal deficiency could be remedied in one of the following three ways: amending the current Criminal Implementation Code with a chapter dealing specifically with the implementation of compulsory measures of medical nature; passing a new federal law on compulsory measures of medical nature; regulating these issues in the healthcare legislation by introducing into it corresponding amendments. Among the practical problems of the implementation of compulsory treatment that are not directly related to the drawbacks of the current legislation the most noteworthy are the problems resulting from the economic difficulties of the recent years. Insufficient funding of psychiatric institutions makes it impossible for them to solve many issues related to the improvement of the conditions under which the patients are being kept, provision of the patients with daily and medical necessities, professional training, improvement of the working conditions of the personnel, etc. Some of the most pressing organizational issues have also remained unanswered. Thus, for example, the law failed to address the issue of the principles of the operation of the security services of the specialized psychiatric wards with intensive observation, such as, the institutional subordination of those services (to the RF Ministry of Justice as it is now, or to the RF Ministry of Health care that currently operates the wards), the principles of the staff recruitment, financing, etc. There is finally an urgent necessity to improve the system of supervision and control over the operation of the institutions providing compulsory treatment. Contrary to the provisions of Article 38 of Federal Law “On Psychiatric Assistance,” there is still no specialized service in place that would be responsible for the protection of the rights of patients undergoing treatment in inpatient psychiatric wards and would be independent of the Ministry of Healthcare and other agencies, operating psychiatric facilities. Such service could become an effective instrument in the protection of the rights of the patients in psychiatric inpatient facilities. Following is the list of high-priority measures that have to be adopted in order to improve the efficiency of the system of compulsory medical measures and strengthen the guarantees of the rights of individuals undergoing compulsory treatment: 1. improvement of the legislative underpinnings through the introduction of the amendments and changes into the RF Criminal Code, Criminal Procedure Code, Criminal Implementation Code, as well as the healthcare legislation to remove the legal gaps and contradictions present in the above-mentioned legislative acts; 2. strengthening of the financial and economic foundations of the psychiatric institutions responsible for the provision of compulsory treatment; this would allow them to start resolving the issues which have accumulated over the past years (material and technical maintenance, provision of medical services, higher quality personnel, etc); 3. resolution of a number of organizational and administrative problems, primarily in the area of inter-agency relationship; 4. improvement of the system of government control over the provision of compulsory medical measures and introduction of the system of public control. |
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