Commentary on Article 96. Extension, Modification and Termination of the Application of Compulsory Medical Measures of the Criminal Code of the Republic of Kazakhstan
The extension, modification and termination of the application of compulsory medical measures shall be carried out by the court upon the submission of the administration of the institution providing compulsory treatment, on the basis of the opinion of a commission of psychiatrists.
A person to whom a compulsory medical measure has been assigned shall be examined by a commission of psychiatrists at least once every six months in order to determine whether there are grounds for submitting a motion to the court for the termination or modification of such a measure. In the absence of grounds for terminating or modifying the application of a compulsory medical measure, the administration of the institution providing compulsory treatment shall submit an opinion to the court for the extension of compulsory treatment. The first extension of compulsory treatment may be granted upon the expiry of six months from the commencement of treatment; subsequent extensions of compulsory treatment shall be granted annually.
The modification or termination of a compulsory medical measure shall be carried out by the court in the event of such a change in the person's mental condition whereby the need to apply the previously assigned measure ceases to exist or the need arises to assign another compulsory medical measure.
In the event of termination of compulsory treatment in a psychiatric inpatient facility, the court may forward the necessary materials concerning the person who was undergoing compulsory treatment to the healthcare authorities for the purpose of deciding the issue of providing treatment or referring that person to a psychoneurological institution in accordance with the procedure established by the legislation of the Republic of Kazakhstan in the field of healthcare.
When assigning one or another compulsory medical measure, the court does not specify its duration, since it is impossible to determine when a person will recover or cease to pose a danger to society.
Part 1 of the article under commentary establishes the procedure for extending, modifying and terminating the application of compulsory medical measures. As established by the legislator, such matters may be decided exclusively by the court, upon the submission of the administration of the institution providing compulsory treatment and on the basis of the opinion of a commission of psychiatrists.
This requirement most fully complies with the principles of building a rule-of-law state, legality, respect for human rights and democratization when deciding on the justification for applying compulsory medical measures.
Part 2 of the article under commentary establishes the time limits for the examination of persons subject to compulsory medical measures by a commission of psychiatrists. Such examinations must be conducted at least once every six months. On the one hand, this requirement makes it possible to observe patients' rights (this time limit must not be exceeded), and, on the other hand, to adopt a differentiated approach to terminating or modifying compulsory measures in respect of each patient, depending on their condition (without necessarily waiting for the expiry of this period).
In this case, judicial supervision over the application of compulsory medical measures is established. Following such an examination, the court may terminate or modify the compulsory medical measures on the basis of the submission made.
In the absence of grounds for terminating or modifying the application of a compulsory medical measure, the administration of the institution providing compulsory treatment shall submit an opinion to the court for the extension of compulsory treatment. Thus, the grounds for extending compulsory treatment are determined. In this case, this indicates that the characteristics that existed at the time of assigning compulsory medical measures and are specified in Articles 91 and 93 of the Criminal Code remain present; that is, the patient's condition has not changed, and the patient continues to require compulsory treatment. At the same time, it is necessary to take into account not only the condition in which the patient is at the time of examination, but also to predict what their condition would be in the absence of compulsory treatment conditions. If the patient's mental condition causes concern for the commission, compulsory treatment shall be extended.
The procedure for extending compulsory medical measures has distinctive features. Firstly, as stipulated by law, an opinion on the extension of compulsory treatment shall be submitted to the court. Secondly, the first extension of compulsory treatment may be granted only after six months have elapsed from the commencement of treatment. Thirdly, subsequent extensions of compulsory treatment by the court shall be granted annually. However, patients undergo examination by a medical commission at least once every six months.
A person's stay in a psychiatric inpatient facility without regular judicial extensions of the application of a compulsory medical measure is unlawful.
The establishment of a judicial procedure for extending compulsory treatment increases the responsibility of medical professionals for the justification of applying compulsory medical measures to patients and serves as an additional guarantee of the protection of the latter's rights and legitimate interests. The Supreme Court of the Republic of Kazakhstan also emphasizes the need for regular re-examination of every patient undergoing compulsory treatment.
Thus, paragraph 27 of the Regulatory Resolution “On Judicial Practice in the Application of Compulsory Medical Measures” emphasizes: “Healthcare authorities entrusted with the application of compulsory medical measures and the provision of psychiatric care are obliged, upon the expiry of 6 months from the date of application of a compulsory medical measure, and thereafter regularly every 6 months, to examine the patient and, on the basis of the treatment methods applied and medical observation, submit to the court, in accordance with Article 96 of the Criminal Code, a reasoned opinion on the modification, extension or termination of the application of a compulsory medical measure. A person's stay in a psychiatric inpatient facility without regular judicial extension of the application of a compulsory medical measure is unlawful.”
The extension, modification or termination of compulsory medical measures in accordance with the procedure provided for in Article 96 of the Criminal Code shall, pursuant to Article 523 of the Criminal Procedure Code, be considered by the court that issued the ruling on the application of the compulsory medical measure, and where compulsory medical measures are being applied outside the territorial jurisdiction of that court, by the competent court at the place where the measure is being applied.
At the court hearing, the submission (opinion) of the institution providing compulsory treatment and the opinion of the commission of psychiatrists shall be examined. If the commission's opinion raises doubts, the court may, at the request of persons participating in the hearing or on its own initiative, order a forensic psychiatric examination.
The court shall terminate or modify a compulsory medical measure if the person's mental condition has changed to such an extent that the need to apply the previously assigned measure ceases to exist or the need arises to assign another medical measure. The court shall extend compulsory treatment in the absence of grounds for terminating or modifying the compulsory medical measure.
Cases of unjustified modification, extension or termination of compulsory medical measures must be eliminated from judicial practice. The Supreme Court of the Republic of Kazakhstan indicates that courts must pay particular attention to cases in which a person declared legally insane has committed an act classified as a serious or particularly serious crime, to the period of their stay in a medical institution and to the changes in their mental condition specified in the medical opinion. The termination or modification of compulsory medical measures applied to such persons must be based on reliable circumstances that unequivocally demonstrate that, following the treatment received or as a result of changes in their mental or physical condition, the person has ceased to pose a danger to themselves and others.
Modification of compulsory medical measures is possible only where the person's mental condition has changed to such an extent that the need to apply the previously assigned measure ceases to exist or the need arises to assign another compulsory medical measure (Part 3 of Article 96 of the Criminal Code).
The process of compulsory treatment does not always achieve its objective — the recovery of a mentally ill person. More often, one has to deal with persistent changes in mental condition in which the need for further application of compulsory measures ceases to exist. This does not concern an improvement in the state of the person's mental health, but rather changes that reduce potential dangerousness, for example, by reducing activity or developing physical frailty. During compulsory treatment, the patient's condition may also deteriorate, resulting in an increase in their danger to society. This may entail the court modifying the previously assigned compulsory medical measure to a more stringent type. For example, compulsory outpatient supervision and treatment by a psychiatrist may be replaced with compulsory treatment in a psychiatric inpatient facility of a general or specialized type, as well as compulsory treatment in a psychiatric inpatient facility of a specialized type with intensive supervision.
If the person's mental condition improves, the court may transfer them from a psychiatric inpatient facility of a specialized type to a facility of a general type. Such a decision is possible if a commission of expert psychiatrists concludes that the person placed in a psychiatric inpatient facility of a specialized type has ceased to pose a danger to others.
Thus, the patient's condition may either improve or deteriorate. Depending on changes in the patient's condition, compulsory medical measures may be modified. This makes it possible not only to select a measure appropriate to the patient's condition, but also to change its form during the process of compulsory treatment.
Termination of compulsory medical measures in respect of patients is possible where there is no mental disorder associated with the infliction by such persons of other substantial harm or with danger to themselves or other persons. Thus, compulsory medical measures may be terminated when the patient recovers. However, this does not imply complete recovery, since this is unlikely — recovery must be such as to exclude the possibility of committing socially dangerous acts.
In the event of termination of compulsory treatment in a psychiatric inpatient facility, the court may forward the necessary materials concerning the person who was undergoing compulsory treatment to the healthcare authorities for the purpose of deciding the issue of providing treatment or referring that person to a psychoneurological institution in accordance with the procedure established by the legislation of the Republic of Kazakhstan in the field of healthcare (Part 4 of Article 96 of the Criminal Code).
A mandatory condition for forwarding materials concerning a person who was undergoing compulsory treatment to the healthcare authorities is the termination of compulsory treatment in a psychiatric inpatient facility.
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 National Academy of Natural Sciences of Kazakhstan, 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 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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