of July 9, 1999 No. 8
About court practice on application of enforcement powers of medical nature
Having discussed practice of courts on consideration of criminal cases about application of enforcement powers of medical nature to deranged, and also to persons needing treatment for alcoholism, drug addiction or toxicomania, and ideas of the termination, change and prolongation of application of enforcement powers of medical nature for the purpose of remedial action and ensuring uniform application of the legislation by hearing of cases of this category the plenary session of the Supreme Court of the Republic of Kazakhstan DECIDES:
1. Draw the attention of courts that the correct application of enforcement powers of medical nature promotes treatment or improvement of health of the persons who made socially dangerous acts in condition of diminished responsibility or got sick with mental disturbances after crime execution or made criminal offense and needing mental health services or in forced treatment for alcoholism, drug addiction, toxicomania and also promotes the prevention of making by these persons of new acts, responsibility for which is established by the penal statute.
2. Explain that questions of application of enforcement powers of medical nature, prolongation of application, change or the termination of their application are regulated by Articles with 91 on 98 Criminal Codes of Kazakhstan (further - UK) and Articles of Chapter 54 of the Code of penal procedure of the Republic of Kazakhstan (further - the Code of Criminal Procedure) providing features of legal proceedings for this category. The bases and procedure for delivery of health care in connection with application of enforcement powers of medical nature are regulated by the Code of the Republic of Kazakhstan about health of the people and health care system.
3. Courts should mean that availability in itself at person of mental disease owing to whom it is deprived of opportunity to realize the actual nature and public danger of the actions or to direct them, is not the basis for application of enforcement powers of medical nature. With respect thereto on each case it is necessary to check whether making of the act prohibited by the penal statute whether there was person at the time of its making in diminished responsibility condition is proved. Besides, the actual data testimonial of danger of person in connection with mental disturbances for themselves either for other persons or about possibility of causing other essential harm by it shall be established.
Nature and depth of mental disturbance, his tendency with respect thereto to making of violent acts concerning other persons or to damnification to themselves, to making of other socially dangerous actions (thefts, arsons, to destruction or damage of property by different ways, etc.), and also physical condition of the patient taking into account which sales opportunity is estimated by the patient of the socially dangerous intentions can testify to danger of person to themselves or people around.
4. According to requirements of article 271 Code of Criminal Procedure for each criminal case when the circumstances giving the grounds to doubt mental full value of person concerning whom pre-judicial investigation is made without fail are established forensic-psychiatric examination shall be appointed. Data on availability in family of the suspect, person accused of mentally sick relatives, about stay it on training in organization for mentally retarded, about obtaining by it in the past of injuries, about stay on accounting or passing of treatment in lunatic asylums, about release from criminal liability or punishment in the past in connection with mental disturbance, etc. can be such circumstances, in particular. In the resolution on purpose of forensic-psychiatric examination to permission of experts it is necessary to put the questions allowing to find out availability from person of mental disturbances in the past degree and nature of mental disease at the time of making of the act prohibited by the law or during investigation or consideration of the case by court to establish sanity of person at the time of making of the act prohibited by the penal statute, mental condition of the suspect, the crime execution charged later during pretrial investigation or legal proceedings or during serving of criminal penalty according to the court verdict, and also nature and depth of mental disturbance. Before experts it is necessary to put also questions and of whether represents person taking into account the disease revealed at it danger to itself and to other persons, whether it is capable to do other essential harm, whether needs application of enforcement power of medical nature and what and also whether person taking into account nature can and severity of mental disease to offer explanations, to declare petitions, to produce the evidence and to perform other actions specified in part one of article 515 Code of Criminal Procedure.
In the presence in criminal case of data on the systematic use-faced alcoholic drinks, drugs, the psychotropic or other stupefying substances the bodies conducting criminal procedure should issue the decree on survey of such persons and to attach in case the conclusion of medical commission about whether this person needs forced treatment for alcoholism, drug addiction or toxicomania and whether there are no contraindications to it.
5. Explain that recognition of person deranged concerning one act does not exclude possibility of recognition imputed when making its other act. With respect thereto in case of making of the act by person prohibited by the penal statute who was recognized deranged earlier and was exempted from criminal liability it is necessary to appoint and carry out forensic-psychiatric expertize for the purpose of determination of sanity or diminished responsibility of person concerning the new act made by it on each episode. In necessary cases it is necessary to appoint conducting stationary forensic-psychiatric examinations, and also psikhologo-psychiatric examinations.
6. The bodies conducting criminal procedure should mean that according to articles 14, of 279 Codes of Criminal Procedure the forced placement to the medical organization of the person accused, the suspect who is held in custody for production of forensic-psychiatric examination is performed based on specifying about it in the resolution of the investigator, and the room in in the medical organization for conducting forensic-psychiatric examination of person who is not held in custody is allowed from its consent, and in the absence of that - according to the court order.
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