RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATSA

of April 7, 2011 No. 6

About practice of application of enforcement powers of medical nature by courts

Due to the questions which arose at courts in case of appointment, prolongation, change and phase-out of enforcement powers of medical nature and also for the purpose of ensuring uniform application of the legislation by hearing of cases of this category Plenum of the Supreme Court of the Russian Federation, being guided by article 126 of the Constitution of the Russian Federation, decides:

1. Draw the attention of courts that when implementing production about application of enforcement powers of medical nature it is necessary to observe strictly the Constitution of the Russian Federation, regulations of the penal, criminal procedure and criminal and executive legislation. In case of the solution of the single questions connected using enforcement powers of medical nature it is necessary to be guided by provisions of the Federal Law of November 21, 2011 No. 323-FZ "About bases of protection of public health in the Russian Federation, the Law of the Russian Federation of July 2, 1992 N 3185-I "About mental health services and guarantees of the rights of citizens in case of its rendering", the Federal Law of May 31, 2001 N 73-FZ "About the state judicial and expert activities in the Russian Federation", the Federal Law of May 7, 2009 N 92-FZ "About ensuring protection of lunatic asylums (hospitals) of specialized type with intensive observation", and also other regulatory legal acts, including the order of the Government of the Russian Federation of February 6, 2004 N 54 "About medical examination of the convicts represented to release from serving sentence in connection with disease" the order of the Ministry of Health and Social Development of the Russian Federation and the Ministry of Justice of the Russian Federation of October 17, 2005 N 640/190 "About procedure for the organization of medical care to the persons serving sentence in places of detention and taken into custody".

In case of production about application of enforcement powers of medical nature courts should consider provisions of the international acts, practice of the European Court of Human Rights. In particular, the Minimum standard rules of the treatment of prisoners (are accepted on the first United Nations Congress on crime prevention and the treatment of offenders on August 30, 1955) provide regulations that persons considered the insane should not be subjected to imprisonment therefore it is necessary to take measures for their fastest transfer to institutions for the insane (the rule 82 (1)). The principles of protection of mentally sick persons and improvement of mental health services (are approved by the General Assembly resolution of December 17, 1991 46/119) provide that concerning persons who made the acts forbidden by the penal statute if it is supposed or it is determined that they suffer from mental disease, the general principles of protection are subject to application in full with such minimum, necessary changes and exceptions in these circumstances which will not cause damage to their rights (the principle 20).

In case of the solution of the questions connected with change, prolongation or phase-out of enforcement powers of medical nature concerning persons transferred to the Russian Federation according to the Convention on transfer of persons suffering from mental disturbances for performing forced treatment (on March 28, 1997) to courts it is necessary to take provisions of the specified Convention into account.

2. Explain that enforcement powers of medical nature are measures of criminal and legal nature and are applied only to persons who made socially dangerous act provided by the penal statute in condition of diminished responsibility or at which after crime execution there came the mental disturbance making impossible assignment of punishment or its execution and also to the persons who committed crime and suffering from the mental disturbances which are not excluding sanity and only under condition when mental disturbance is connected with possibility of causing other essential harm by these persons or with danger to itself or other persons (parts 1 and 2 of article 97 Criminal Code of the Russian Federation). At the same time the purposes of application of enforcement powers of medical nature differ from the purposes of application of punishment and owing to article 98 Criminal Code of the Russian Federation consist in treatment or improvement of mental condition of specified persons, and also the prevention of making of the new socially dangerous acts provided by the penal statute by them.

3. Enforcement powers of medical nature in the form of out-patient forced observation and treatment at the psychiatrist, forced treatment in the medical organization giving mental health services in stationary conditions (general type, specialized type or specialized type with intensive observation) can be applied by court to person:

made socially dangerous act provided by the penal statute in diminished responsibility condition that is when this person during making of act could not realize the actual nature and public danger of the actions (failure to act) or direct them owing to chronic mental disturbance, temporary mental disturbance, weak-mindedness or other disease state of mentality. Such person is not subject to criminal liability (part 1 of article 21 Criminal Code of the Russian Federation);

at which after crime execution there came the mental disturbance depriving of its opportunity to realize the actual nature and public danger of the actions (failure to act) or to direct them, the appointment making impossible or execution of the punishment. Such person is exempted by court from punishment or from its further serving (part 1 of article 81 Criminal Code of the Russian Federation), in case of recovery it can be subject to criminal liability and punishment if the prescriptive limits provided by articles 78 and 83 Criminal Code of the Russian Federation did not expire.

Enforcement powers of medical nature can be applied by court to the person who committed crime and suffering from the mental disturbance which is not excluding sanity, but needing treatment of mental disturbance. To such person along with punishment the court can appoint enforcement power of medical nature in the form of out-patient forced observation and treatment at the psychiatrist (part 2 of article 99 Criminal Code of the Russian Federation). The decision on it shall contain in substantive provisions of sentence.

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