Commentary on Article 93. Types of Compulsory Medical Measures under the Criminal Code of the Republic of Kazakhstan

1. The court may impose the following types of compulsory medical measures:

1) compulsory outpatient supervision and treatment by a psychiatrist;

2) compulsory treatment in a general-type psychiatric inpatient facility;

3) compulsory treatment in a specialized-type psychiatric inpatient facility;

4) compulsory treatment in a specialized-type psychiatric inpatient facility with intensive supervision;

5) compulsory treatment in the form of chemical castration and treatment of a propensity for sexual violence and disorders of sexual preference.

2. In respect of persons convicted of criminal offences committed while legally sane, but who require treatment for alcoholism, drug addiction or substance abuse, or treatment for mental disorders that do not exclude legal sanity, the court may, in addition to the punishment, impose compulsory medical measures in the form of compulsory outpatient supervision and treatment by a psychiatrist.

3. In respect of persons who have committed crimes against the sexual inviolability of minors, upon their release from places of deprivation of liberty after serving their sentence, the court shall decide on the imposition, extension, modification or termination of compulsory medical measures.

Under the current legislation, the following compulsory medical measures may be applied by a court to persons who have committed socially dangerous acts in a state of insanity or who have committed such acts while legally sane but subsequently developed a mental illness depriving them of the ability to understand the nature and significance of their actions or to control them; to persons who have committed criminal offences and suffer from mental disorders that do not exclude legal sanity; as well as to persons who have committed criminal offences and have been recognized as requiring treatment for alcoholism, drug addiction or substance abuse:

compulsory outpatient supervision and treatment by a psychiatrist;

compulsory treatment in a general-type psychiatric inpatient facility;

compulsory treatment in a specialized-type psychiatric inpatient facility;

compulsory treatment in a specialized-type psychiatric inpatient facility with intensive supervision (Article 93 of the Criminal Code).

Similar types of psychiatric hospitals or departments with ordinary, medium or maximum security levels and differentiated regimes for patients who have committed dangerous acts are provided for by the legislation of a number of European countries (the United Kingdom, France, Germany, etc.).

The selection of the appropriate type of compulsory medical measure is made by the court, taking into account an assessment of the public danger of the act committed by the person requiring treatment, as well as the degree of dangerousness of the individual and the nature of the mental disorder from which that person suffers. The latter two circumstances are established with the assistance of forensic psychiatric experts.

When determining the public danger of an act committed by a person requiring treatment, the nature of the act, the manner in which it was committed, the means and instruments used, the motives and purposes of the act, and other circumstances are taken into account. The degree of dangerousness of the individual is assessed on the basis of their mental condition, which is often the cause of their unlawful conduct. In doing so, such factors as the persistence and frequency of recurrence of a pathological condition accompanied by aggressive behaviour, a tendency to make hostile outbursts directed at others, and other circumstances are taken into account.

The dangerousness of a mentally ill person is understood as a mental condition in which psychopathological manifestations cause improper behaviour that is inadequate to the existing situation, as a result of which physical or property damage may be caused to others or to the patient themselves.

Paragraph 3 of the above-mentioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan states: “The nature and severity of a mental disorder, a person's resulting propensity to commit violent acts against other persons or to inflict harm upon themselves, to commit other socially dangerous acts (theft, arson, destruction or damage to property by other means, etc.), as well as the patient's physical condition, taking into account which the patient's ability to carry out their socially dangerous intentions is assessed, may indicate that the person is dangerous to themselves or others.”

The first type of compulsory medical measure — compulsory outpatient supervision and treatment by a psychiatrist (subparagraph 1) of paragraph 1 of Article 93 of the Criminal Code) — consists of referring a person for compulsory outpatient supervision at their place of residence where the types of punishment imposed on them are not associated with deprivation of liberty. Such a person is obliged to regularly visit a psychoneurological institution to receive the prescribed treatment. Compulsory outpatient supervision and treatment involve fewer restrictions compared with other types of compulsory medical measures, thereby helping to preserve the patient's social connections. At the same time, if the person fails to comply with the established supervision regime or refuses treatment, they may be transferred by the healthcare authorities to inpatient treatment.

Compulsory treatment in a general-type psychiatric inpatient facility (subparagraph 2) of paragraph 1 of Article 93 of the Criminal Code) is a compulsory medical measure imposed by a court and carried out in psychiatric organizations providing inpatient treatment.

In accordance with Article 168 of the Code of the Republic of Kazakhstan dated July 7, 2020, “On Public Health and the Healthcare System”, the grounds for admission to a psychiatric inpatient facility are the presence of a mental disorder (illness) in a person and a decision by a psychiatrist on the necessity of conducting an examination or treatment under inpatient conditions.

Compulsory hospitalization of a person in a psychiatric inpatient facility is permitted on the basis of a court decision.

Compulsory treatment in a specialized-type psychiatric inpatient facility (subparagraph 3) of paragraph 1 of Article 93 of the Criminal Code), as imposed by a court, is carried out in inpatient facilities specializing in compulsory treatment. The regime for keeping patients in specialized-type psychiatric inpatient facilities consists of control and supervision measures aimed at compulsory treatment and supervision of patients.

Compulsory treatment in a specialized-type psychiatric inpatient facility with intensive supervision (subparagraph 4) of paragraph 1 of Article 93 of the Criminal Code), as determined by a court, is carried out in organizations fully equipped and adapted to provide compulsory treatment under intensive supervision.

Compulsory treatment in a specialized-type psychiatric inpatient facility with intensive supervision may be imposed on a person who, due to their mental condition, poses a particular danger to themselves or other persons and requires constant supervision. In such inpatient facilities, the greatest attention is paid to creating safe conditions for the confinement of persons who have been subjected to compulsory medical measures and who pose a particular danger, displaying pronounced aggression towards themselves and others. These include persons who have committed acts of particularly high public danger (persons who have committed assaults on the lives of citizens, rapists, as well as persons who have committed socially dangerous acts with particular cruelty).

Compulsory treatment in a medical organization providing psychiatric care under inpatient conditions of a specialized type with intensive supervision is aimed at eliminating the patient's particular danger to society through the implementation of necessary therapeutic and rehabilitation measures. Depending on the patient's condition, supervision is established to exclude the possibility of committing a new socially dangerous act, attempting to escape, committing suicide, etc., and appropriate treatment is prescribed.

The territory of a specialized-type psychiatric inpatient facility with intensive supervision, as well as its buildings and structures, is guarded.

The main purpose of such psychiatric inpatient facilities is to ensure safe conditions for the confinement of patients. Along with control and supervision measures, they provide for the operation of security departments. The activities of the security departments are aimed at ensuring constant supervision of patients, as well as protecting the psychiatric inpatient facilities themselves.

Compulsory treatment in the form of chemical castration and treatment of a propensity for sexual violence and disorders of sexual preference (subparagraph 5) of paragraph 1 of Article 93 of the Criminal Code). The inclusion in Article 93 of the Criminal Code of compulsory treatment in the form of chemical castration and treatment of a propensity for sexual violence and disorders of sexual preference as types of compulsory medical measures reflects the legislator's intention to address a serious social and criminological problem through amendments and additions to the Criminal Code of the Republic of Kazakhstan. The valuable aspect here is the treatment of a propensity for sexual violence and disorders of sexual preference, but not compulsory chemical castration. In my opinion, this approach adopted by the legislator does not withstand criticism. Once again, we are imitating the West. This innovation should unquestionably be abandoned.

Article 152 of the Code of the Republic of Kazakhstan “On Public Health and the Healthcare System” is devoted to matters relating to chemical castration. According to paragraph 1 of Article 152 of this Code, chemical castration is the administration of medications that reduce sexual desire, carried out on the basis of a court decision, while paragraph 2 of this Article stipulates that the type of medicinal product used, the frequency of its administration within the period of validity of the compulsory medical measure established by the court, as well as the procedure for applying this measure, are determined by the authorized body in coordination with the Prosecutor General's Office and the Ministry of Internal Affairs of the Republic of Kazakhstan.

By Order of the Minister of Healthcare of the Republic of Kazakhstan dated December 15, 2020, the Rules for the Application of Compulsory Medical Measures were approved. According to paragraph 3 of these Rules, the application of compulsory medical measures in the form of chemical castration is carried out on the basis of a court decision for the purpose of preventing a state of decompensation in persons suffering from disorders of sexual preference.

A state of decompensation in persons suffering from disorders of sexual preference is a state of irresistible sexual urge in a person who requires medical assistance (subparagraph 3) of paragraph 2 of the Rules).

In accordance with subparagraphs 3) and 5) of paragraph 1 of Article 91 of the Criminal Code, compulsory medical measures in the form of chemical castration in respect of persons over the age of 18 who have committed crimes against the sexual inviolability of minors and are serving sentences in institutions of the penal enforcement system shall be applied on the basis of a court decision that has entered into legal force.

Compulsory medical measures are carried out at the place where persons are serving their sentences of deprivation of liberty, and, in respect of persons sentenced to other types of punishment, in healthcare organizations providing outpatient psychiatric care.

Within three working days from the moment a person arrives, the administration of the institution of the penal enforcement system shall send information, together with a copy of the court decision, to the territorial healthcare organization providing outpatient psychiatric care.

In institutions of the penal enforcement system, a person in respect of whom the court has ordered chemical castration shall be placed on the dispensary register with a psychiatrist of the medical and preventive institution of the penal enforcement system within three working days from the moment of arrival.

For the purpose of carrying out the chemical castration procedure, the medical advisory commission of the primary healthcare organization, with the participation of the following physicians: an endocrinologist, a urologist and a therapist (general practitioner), shall determine the choice of antiandrogenic medication within three working days from the date of receipt of information on the application of compulsory medical measures and on the basis of the results of the examination conducted.

An antiandrogenic medication is a medicinal product whose mechanism of action is aimed at reducing the production of endogenous testosterone and its effects, with the purpose of reducing the level of sexual desire. The antiandrogenic medication is administered at intervals determined by the instructions for the medical use of the relevant medicinal product.

A healthcare organization providing outpatient psychiatric care shall carry out the chemical castration procedure in respect of a person for whom the application of compulsory medical measures in the form of chemical castration has been ordered by a court decision.

The medical and preventive institution of the penal enforcement system shall organize an examination of the person in respect of whom the court has ordered chemical castration at least once every six months from the commencement of the first chemical castration procedure (determination of hormone levels, physical examination findings, general clinical tests).

The administration of the medical and preventive institution of the penal enforcement system shall establish a special psychiatric commission consisting of the following physicians: a psychiatrist, an endocrinologist, a urologist and a therapist (general practitioner). The commission shall meet at least once every six months to decide on the necessity of extending, modifying or terminating chemical castration in accordance with the requirements of Article 96 of the Criminal Code.

The physician of the outpatient and polyclinic department of the psychiatric healthcare organization:

ensures dynamic monitoring, with examinations conducted at least once a month;

prescribes therapy with psychotropic medications;

monitors the administration of the antiandrogenic medication;

draws up an individual schedule specifying the frequency of administration of the antiandrogenic medication to the person, a copy of which is provided to the district police inspector or to the medical and preventive institution of the penal enforcement system if the person is held in places of deprivation of liberty;

within 3 working days, sends a copy of the approved schedule to the territorial subdivision of the internal affairs bodies for inclusion in the materials of the preventive registration file;

in the event that the person evades compulsory medical measures, notifies the management of the medical organization.

If the person fails to appear within five working days from the date of release, the healthcare organization providing outpatient psychiatric care shall notify the subdivision of the internal affairs bodies in writing.

The subdivision of the internal affairs bodies shall carry out measures to locate the person and, upon establishing their whereabouts, shall inform the healthcare organization within three working days.

If the person evades chemical castration, the psychiatric organization providing outpatient psychiatric care shall notify the territorial subdivision of the internal affairs bodies within 24 hours (in an arbitrary form).

Part 2 of the provision under consideration defines the categories of persons who have committed criminal offences and to whom compulsory outpatient supervision and treatment by a psychiatrist are applied in addition to punishment. In respect of persons suffering from mental disorders that do not exclude legal sanity, and persons who have committed a criminal offence while legally sane but have been recognized as requiring treatment for alcoholism, drug addiction or substance abuse, where such types of punishment as deprivation of liberty have been imposed, compulsory medical measures shall be carried out at the place where the sentence of deprivation of liberty is being served.

Commentary to the Criminal Code of the Republic of Kazakhstan, 2021, 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 the Reform of 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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