Commentary on Article 98. Compulsory Medical Measures Combined with the Execution of a Sentence of the Criminal Code of the Republic of Kazakhstan
1. In the case provided for in subparagraphs 3) and 5) of part one of Article 91 of this Code, compulsory medical measures shall be carried out at the place where the sentence of deprivation of liberty is being served, and in respect of persons sentenced to other types of punishment, in healthcare organizations providing outpatient psychiatric care.
2. In the case provided for in subparagraph 4) of part one of Article 91 of this Code, compulsory medical measures shall be carried out at the place where the sentence of deprivation of liberty is being served, and in respect of persons sentenced to other types of punishment, in healthcare organizations.
3. Where a change in the mental condition of a convicted person requires inpatient treatment, the placement of the convicted person in a psychiatric hospital or other medical institution shall be carried out in accordance with the procedure and on the grounds provided for by the legislation of the Republic of Kazakhstan in the field of healthcare.
4. The time spent in the said institutions shall be credited towards the term of serving the sentence. Where the need for further treatment of the convicted person in the said institutions ceases to exist, discharge shall be carried out in accordance with the procedure provided for by the legislation of the Republic of Kazakhstan in the field of healthcare.
5. The termination of the application of a compulsory medical measure combined with the execution of a sentence shall be carried out by the court upon the submission of the body executing the sentence, on the basis of the opinion of a commission of psychiatrists.
Persons convicted of crimes committed while legally sane, but requiring treatment for mental disorders that do not exclude criminal responsibility, may be ordered by the court to undergo a compulsory medical measure in addition to the punishment. Compulsory medical measures combined with the execution of a sentence shall be imposed on these persons in cases where their mental disorders are associated with the possibility of their causing other significant harm or with a danger to themselves or other persons. Compulsory medical measures combined with punishment, like criminal punishment itself, are imposed by the court, and their execution is ensured through the force of state coercion.
However, compulsory medical measures combined with punishment do not constitute criminal punishment, even when combined with it. These measures differ from punishment in terms of their grounds and purposes, content and legal consequences. They do not constitute official condemnation, on behalf of the state, of a person who has committed a criminal offense; their content does not include elements of retribution, and they do not entail a criminal record.
The purposes of applying compulsory measures combined with the execution of a sentence are:
the recovery of the patient or such an improvement in the patient's condition that the patient ceases to pose a public danger;
preventing the person from committing a new socially dangerous act;
protecting the rights and legitimate interests of persons suffering from mental illnesses;
ensuring the safety of the patient for themselves.
Part 1 of the commented article defines the places where compulsory medical measures are provided to convicted persons who have committed a criminal offense and suffer from mental disorders that do not exclude criminal responsibility. As stated in this part, in the cases provided for by subparagraphs 3) (in respect of persons who have committed a criminal offense and suffer from mental disorders that do not exclude criminal responsibility) and 5) (in respect of persons over the age of eighteen who have committed a criminal offense against the sexual inviolability of minors) of part 1 of Article 91 of the Criminal Code, compulsory medical measures shall be carried out at the place where the sentence of deprivation of liberty is being served. If a person suffering from a mental disorder that does not exclude criminal responsibility is sentenced to a punishment not involving deprivation of liberty, compulsory medical measures shall be carried out in healthcare organizations providing outpatient psychiatric care. Such care is provided by psychoneurological and narcological dispensaries. If a person no longer requires further compulsory treatment, they shall be discharged from these institutions in accordance with the procedure provided for in Article 174 of the Code of the Republic of Kazakhstan “On Public Health and the Healthcare System”.
Compulsory medical measures are applied to the above-mentioned persons not instead of punishment, as is done in respect of persons who are criminally insane, but in addition to it. These persons possess the characteristics of a subject of a criminal offense and are therefore recognized, in the relevant cases, as guilty of committing a criminal offense and, consequently, are held criminally liable (Article 17 of the Criminal Code).
It should be particularly emphasized that only one type of compulsory medical measure is imposed in addition to punishment — compulsory outpatient observation and treatment by a psychiatrist.
In respect of persons over the age of eighteen who have committed a criminal offense against the sexual inviolability of minors, compulsory medical measures shall be carried out at the place where the sentence of deprivation of liberty is being served, and in respect of persons sentenced to other types of punishment, in healthcare organizations providing outpatient psychiatric care.
Pursuant to Part 5 of Article 26 of the Penal Enforcement Code, in respect of persons sentenced to deprivation of liberty for committing crimes against the sexual inviolability of minors, the administration of the institution shall, no later than six months before the expiry of their sentence, submit materials to the court for the appointment of a forensic psychiatric examination to determine whether they have mental abnormalities and tendencies towards sexual violence. The provisions of this part shall not apply to convicted persons who, by a court decision, are subject to compulsory medical measures in connection with mental disorders identified in them that do not exclude criminal responsibility.
Based on the results of the forensic psychiatric examination, the administration of the institution shall submit a motion to the court to decide on the imposition, extension, modification or termination of compulsory medical measures.
Within three working days from the date of receipt of the court ruling, the administration of the institution shall forward it to the healthcare organization at the convicted person's chosen place of residence for the execution of compulsory medical measures.
A notification of the release from the institution of a person sentenced to deprivation of liberty for committing a crime against the sexual inviolability of minors, in respect of whom a compulsory medical measure has been established by a court decision, shall be sent to the healthcare organization and the internal affairs body at the place of residence five working days before the release.
Part 2 of the commented article determines the place where compulsory medical measures are provided to persons who have committed a criminal offense and have been recognized as requiring treatment for alcoholism, drug addiction or substance abuse. As in Part 1 of the commented article, where persons who have committed a criminal offense and have been recognized as requiring treatment for alcoholism, drug addiction or substance abuse are sentenced to punishment involving deprivation of liberty, compulsory medical measures shall be applied at the place where the sentence is served, that is, in places of deprivation of liberty. If a person who has committed a criminal offense and has been recognized as requiring treatment for alcoholism, drug addiction or substance abuse is sentenced to a punishment not involving deprivation of liberty, compulsory medical measures shall be carried out in healthcare organizations. Such care is provided by psychoneurological and narcological dispensaries.
Where a change in the mental condition of a convicted person requires inpatient treatment, the placement of the convicted person in a psychiatric hospital or other medical institution shall be carried out in accordance with the procedure and on the grounds provided for by the legislation of the Republic of Kazakhstan in the field of healthcare (Part 3 of Article 98 of the Criminal Code). In this case, the possibility of placing persons serving sentences involving deprivation of liberty in psychiatric and narcological dispensaries is being addressed. Such convicted persons shall be placed in inpatient medical organizations within places of deprivation of liberty. The grounds for their placement are changes that have occurred in the mental condition of the convicted person. Hospitalization of persons sentenced to punishments not involving deprivation of liberty shall be carried out in psychiatric and narcological inpatient facilities of healthcare management bodies. The time spent in an inpatient facility, as already indicated, shall be credited towards the term of such punishments at the rate of one day spent in a psychiatric inpatient facility for one day of deprivation of liberty or one day of arrest. This means that, in this case, the period of serving the sentence is not interrupted. Where the need for further treatment of the convicted person in a psychiatric or narcological dispensary ceases to exist, discharge shall be carried out in accordance with the procedure provided for by the legislation of the Republic of Kazakhstan in the field of healthcare (Part 4 of Article 98 of the Criminal Code).
The termination of the application of a compulsory medical measure combined with the execution of a sentence shall be carried out by the court upon the submission of the body executing the sentence, on the basis of the opinion of a commission of psychiatrists (Part 5 of Article 98 of the Criminal Code).
The social and legal purpose of the compulsory medical measures under consideration lies in the compulsory treatment of persons suffering from mental disorders that do not exclude criminal responsibility and in the implementation of compulsory outpatient observation. This is important not only from a medical perspective but also in terms of preventing criminal offenses. Successful treatment of persons suffering from mental disorders enhances the educational and preventive effect of punishment, as well as the corrective and educational impact during the process of its execution.
Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan 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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