Commentary on Article 97. Imposition of Punishment after the Application of Compulsory Medical Measures of the Criminal Code of the Republic of Kazakhstan
A person who, after committing a criminal offense or while serving a sentence, develops a mental illness that deprives them of the ability to understand the nature of their actions or to control them may be subjected to punishment by a court after recovery, provided that the limitation periods have not expired and there are no grounds for releasing them from criminal liability.
If a person whose mental disorder arose after committing a crime recovers, then, when imposing a sentence or resuming its execution, the period during which compulsory treatment was applied to that person in a psychiatric hospital shall be credited toward the sentence at the rate of one day spent in a psychiatric hospital for one day of imprisonment or one day of arrest.
The provisions of the article under consideration apply to persons who committed a criminal offense while legally sane but subsequently developed a mental illness during pre-trial investigation, court proceedings, or while serving a sentence, and this illness prevents the pre-trial investigation, court proceedings, or the process of serving the sentence from proceeding.
The conditions that permit punishment to be imposed on a person after recovery following the application of compulsory medical measures are:
- a mental illness that arose after the commission of a criminal offense or while serving a sentence;
- the expiration periods for bringing the person to criminal liability have not elapsed;
- the absence of other grounds for releasing the person from criminal liability.
Imposing punishment on a person after the application of compulsory medical measures contributes to the implementation of the principle of the inevitability of punishment for the act committed. As is well known, every person must receive the punishment they deserve for the act committed. However, if a person develops a mental illness that prevents the imposition of punishment, the imposition of punishment is postponed until that person recovers, since the mental illness deprives them of the ability to understand the nature of their actions or to control them. A person suffering from a mental illness cannot understand the nature of the punishment applied to them, and the punishment imposed cannot achieve its objectives.
Paragraph 25 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Judicial Practice in the Application of Compulsory Medical Measures” provides the following clarification: “If it is established that a person developed a mental disorder after committing a crime, the court must indicate in the operative part of its ruling, pursuant to Part 1 of Article 75 of the Criminal Code, that the person is released from serving the sentence, with one of the compulsory medical measures specified by law being applied or without such a measure being applied, and that proceedings in the case are suspended, bearing in mind that, pursuant to Part 3 of Article 75 of the Criminal Code, after recovery such persons are subject to criminal liability and criminal punishment may be imposed on them within the limitation periods established by Articles 71 and 77 of the Criminal Code.”
After the recovery of a person who committed a criminally punishable act, the court may impose a sentence or resume its execution.
Pursuant to Article 524 of the Criminal Procedure Code, if a person to whom a compulsory medical measure was applied due to a mental disorder that developed after the commission of an act prohibited by criminal law is declared recovered by a commission of psychiatrists, the court, on the basis of the conclusion of the medical organization providing compulsory treatment, shall, in accordance with Subparagraph 14) of Article 476 of the Criminal Procedure Code, issue a ruling terminating the application of the compulsory medical measure and refer the case to the prosecutor to decide the issue of bringing the person to criminal liability under the general procedure. If a compulsory medical measure applied to a convicted person who has not served the full sentence is cancelled due to recovery, the court shall send a copy of the ruling to the institution or authority responsible for enforcing the sentence so that the person may resume serving the remaining part of the sentence, provided that the limitation period for the execution of the conviction has not expired by that time.
Part 2 of the article under consideration establishes the calculation of periods of compulsory treatment in a psychiatric hospital and periods of such punishments as imprisonment or arrest. As the legislator specifies, if a person whose mental disorder arose after committing a crime recovers, then, when imposing a sentence or resuming its execution, the period during which compulsory treatment was applied to that person in a psychiatric hospital shall be credited toward the sentence at the rate of one day spent in a psychiatric hospital for one day of imprisonment or one day of arrest. Thus, the periods of compulsory treatment in a psychiatric hospital are equated with periods of imprisonment or such a type of punishment as arrest.
At the same time, Part 2 of the article under consideration contains a technical error in the legislative construction of the provision. Specifically, it states that, if a person who committed a crime recovers, then, when imposing a sentence or resuming its execution, the period during which compulsory treatment was applied to that person in a psychiatric hospital shall be credited toward the sentence at the rate of one day spent in a psychiatric hospital for one day of imprisonment or one day of arrest.
In accordance with Part 3 of Article 10 of the Criminal Code, arrest is imposed for criminal misdemeanors. Therefore, in Part 2 of Article 97, the legislator should have used the term “criminal offense” instead of the term “crime”, setting out Part 2 of Article 97 of the Criminal Code as follows: “If a person whose mental disorder arose after the commission of a criminal offense recovers, then, when imposing a sentence or resuming its execution, the period during which compulsory treatment was applied to that person in a psychiatric hospital shall be credited toward the sentence at the rate of one day spent in a psychiatric hospital for one day of imprisonment or one day of arrest.”
Commentary to the Criminal Code of the Republic of Kazakhstan, 2021, by Isidor Shamilovich Borchashvili, Honored 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 reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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