Commentary on Article 92. Purposes of Applying Compulsory Medical Measures of the Criminal Code of the Republic of Kazakhstan
The purposes of applying compulsory medical measures are to cure the persons specified in part one of Article 91 of this Code or to improve their mental condition, as well as to prevent them from committing new acts provided for by the Special Part of this Code.
For the first time, the purpose of applying compulsory medical measures has been formulated in criminal legislation. It is important to note that the emphasis of the purposes of compulsory treatment has shifted towards treatment; in other words, the individual of the patient is given priority.
Defining the purpose of applying compulsory measures is a fundamental basis that brings together the interests of various stakeholders: the state, society, and the individual. The inclusion in the Criminal Code of a provision on the purposes of applying compulsory medical measures is one of the forms of implementing citizens' rights to health protection, guaranteed by Article 29 of the Constitution of the Republic of Kazakhstan. This purpose has its own specific features in comparison, for example, with the purposes of punishment and the purposes of providing medical care. The purposes of applying compulsory medical measures consist of three components: 1) curing the persons specified in Part 1 of Article 91 of the Criminal Code; 2) improving the mental condition of the aforementioned persons; 3) preventing them from committing new criminal offences.
The purposes of applying compulsory medical measures coincide with the purposes of providing medical care in terms of curing persons or improving their mental condition. The purposes of applying compulsory medical measures coincide with the purposes of punishment in terms of preventing the commission of new criminal offences, but are opposed to them in other respects. Thus, the purpose of applying compulsory medical measures is independent and distinct, having its own specific means and methods of implementation.
The cure of mentally ill persons is the most significant purpose, since achieving it also ensures the attainment of other purposes — protecting society and the patients themselves. To achieve this purpose, all necessary and proven methods of medication-based and other types of therapy are applied to patients.
Cure means achieving such a state of a person's mind in which the individual is completely free from the negative effects of mental disorders, and psychiatrists provide a favourable prognosis regarding the individual's future behaviour, as a result of which the individual ceases to pose a danger to society.
At the same time, it is not always possible to achieve the patient's complete recovery; therefore, it is sufficient to achieve an improvement in their mental condition. Improvement in the mental condition of persons subject to compulsory medical measures means that the person has not fully recovered, but, due to positive changes in their mental state, no longer poses the same degree of danger as before. However, the improvement in their mental condition must be stable.
The purpose of preventing a person subject to compulsory medical measures from committing new criminal offences is achieved both by isolating from society a person who has committed a socially dangerous act and suffers from mental disorders, and by curing that person or improving their mental condition.
These purposes exclude the possibility of using punitive measures instead of therapeutic and rehabilitative measures. Under no circumstances is the purpose of applying compulsory medical measures to punish or penalise the person to whom they are applied. Compulsory treatment primarily involves the use of such means as drug therapy, psychotherapy, and other rehabilitation measures aimed at restoring the social adaptation of patients.
Paragraph 1 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Judicial Practice in the Application of Compulsory Medical Measures” states that the proper application of compulsory medical measures contributes to the cure or improvement of the health of persons who have committed socially dangerous acts while legally insane, or who have developed mental disorders after committing a crime, or who have committed a criminal offence and require psychiatric assistance or compulsory treatment for alcoholism, drug addiction, or substance abuse. It also contributes to preventing these persons from committing new acts for which liability is established under criminal law.
The principles of providing psychiatric assistance when applying compulsory medical measures are legality, humanity, and respect for human and civil rights.
Commentary on the Criminal Code of the Republic of Kazakhstan, 2021 edition, by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, member of the working group on reforming the law enforcement system under the Security Council of the Republic of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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