PREVENTION OF DANGEROUS SOCIAL ACTION: EXPERT LEGAL AND INSTITUTIONAL MATTERS OF PSYCHIATRIC CARE forcibly

PREVENTION OF DANGEROUS SOCIAL ACTION: EXPERT LEGAL AND INSTITUTIONAL MATTERS OF PSYCHIATRIC CARE forcibly

UDC 340.63:343.1-056.34

AA Pedak

PREVENTION OF DANGEROUS SOCIAL ACTION:

EXPERT LEGAL AND INSTITUTIONAL MATTERS OF PSYCHIATRIC CARE forcibly

Mykolayiv Regional Psychiatric Hospital № 2

In Ukraine entered into force adopted by the Supreme Council of   the new Criminal Procedure Code (CPC 2012) [1]. The position of the CPC, the Ukrainian Criminal Code (CC) and the Law of Ukraine "On Psychiatric Care" (Suppe) form the basis of modern regulatory framework of mental health care to the population, both on general grounds and forcibly to prevent socially dangerous actions of the relevant category patients [2,3]. In this connection, it should be noted that the phenomenon of crime in accordance with Part 1 of Article 18 of the Criminal Code, a  legal fact, in which -   sanity is a mandatory feature of the perpetrator. According p.1.st. 19 of the Criminal Code the defendant is the person who, at the time of the crime could be aware of their actions (or omissions) and control them, so the person   who at the time the offense was not able to be aware of their actions (or omissions) and manage them as a result of chronic mental illness, temporary mental disorder , dementia or other mental condition -  is insane.

Such persons, according to Art. 19, part 2, by the court can be subjected to compulsory medical measures (PMMH). According to Art. 9 of the Law of Ukraine "Fundamentals of Legislation on health care" [4], the use of PMMH against the person who committed socially dangerous act, is allowed only on the grounds and in the manner prescribed by the laws of Ukraine. It should be noted that, according to   Art. 506 CCP, the person  in respect of which the application PMMH, or to decide whether to use them, enjoy the rights    of the accused and suspects in the amount of which is determined by the nature of mental disorder or mental illness, according to the forensic psychiatric examination, and through a legal representative , defender. And only if the nature of mental disorder or mental illness of the person impedes the proceedings with his participation or involvement in the trial, the prosecutor, the court may decide to hold the relevant proceedings without the participation of the person.

According to Art. 508 Code of Criminal Procedure, to the face, since the establishment of the fact of his mental disorder or mental illness, and in respect of which the application PMMH or decision is taken on their application, can be applied by the court following measures:

1) transfer to the care of guardians, close relatives or family members with mandatory medical supervision;

2) placement in a psychiatric institution in conditions which exclude his dangerous behavior.

Application of the above measures envisaged, depending on the nature and severity of the disease, the severity of the offense, as well as the risk level of the mentally ill to himself or others, in accordance with the general rules laid the CPC, as well as Article 19 of the Suppe, Art . 94 of the Criminal Code. [3] Thus, for the above procedural decisions, mental health services should be guided by the following provisions of the law (Sections 1, 2, Art. 508 CPC):

1. Transfer of custody of guardians, close relatives or family members with mandatory medical supervision - in accordance with the organization's requirements for outpatient mental health services are forced to mentally ill person who has committed a socially dangerous act (CCCs) - is used in cases where such a person, by gravity clinical manifestations are not in need of psychiatric hospitalization (Clause 1 Article 94 of the Criminal Code).    

2. placed in a psychiatric institution in conditions which exclude her dangerous behavior - lead by GSI hospitalization of such person to the appropriate mode of supervision,  a mental health facility with the usual power or strict surveillance.

Besides it should be noted that according to Art. 19 of the Criminal Code, criminal liability can not be a person who, during the CCCs, under the Criminal Code, was insane. Do not be punished and    the person who committed the crime in a state of sanity, but before sentencing diseased mental illness that deprived him of the possibility to realize their actions (inaction) or control them. And as a person who:

a)   committed a crime in a state of diminished responsibility;

b) committed a crime in the state of responsibility, but the diseased mental disorder prior to sentencing or while serving a sentence.

Thus, for persons with mental disorders, according to the court, according to Article 93, 94 of the Criminal Code,    Art. 19 Suppe PMMH following may apply:

1. Outpatient mental health services are forced to cases where a person as a mental health    does not require admission to a psychiatric facility.

2. Hospitalization in a psychiatric facility may be applied by the court in respect of a mentally ill person, who because of his mental state and the nature of CCCs, compulsorily requires maintenance and treatment in the office with the usual observation. 

3. Hospitalization in a psychiatric facility may be applied by the court in respect of a mentally ill person who has committed a DTE does not infringe on the lives of others, and his mental state is not a threat to society, but requires maintenance in a psychiatric facility for treatment in a department / wards with enhanced surveillance.

4. Hospitalization in a psychiatric institution with strict supervision may be applied by the court in respect of a mentally ill person who has committed a DTE that infringe on the lives of others, as well as against the mentally ill, who because of his mental state and the nature of CCCs is a particular danger to the public and needs in mental health facilities and treatment under close supervision .

5. In case you will not be found necessary to apply to the mentally ill person PMMH or eliminate the use of such measures, the court may transfer it to the care of relatives or guardians with mandatory medical supervision.

Continuation, modification or termination of the application PMMH by the court at the request of the representative of the mental health facility (a psychiatrist), providing face a    ​​mental health care, based on the findings of the commission of psychiatrists.    It should be noted that according to Art. 96 of the Criminal Code compulsory treatment can be applied by the court, regardless of the punishment, to persons who have committed a crime and a disease that poses a risk to the health of others (eg, tuberculosis, sexually transmitted diseases, infections, etc.). Such    compulsory treatment can be provided in the relevant special hospitals.

Relatively diminished responsibility should be noted that    according to Art. 20 of the Criminal Code, a person recognized limited sane is to be subject to compulsory state influence -    punishment (claim 1), but the offense in a state of diminished responsibility should be taken into account by the court in sentencing, and can be the basis for the application of PMMH (p.2). In this state of diminished responsibility should be characterized by signs of manifestation    of partial freedom of the will , and in criminal law means - the ability to understand their actions and to guide them, even if limited . Therefore the finding of diminished responsibility at the defendant - gives reason to raise the question of the guilt of the person and his criminal responsibility.     

Thus, in accordance with the provisions of st.368, pp - 8,9,10  CCP court    at sentencing, should consider the question as to whether:

• whether the defendant committed a criminal offense in a state of diminished responsibility;

• whether there is a basis for applying to the person who has committed a criminal offense in a state of diminished responsibility PMMH under Part 2 of Art. 94 of the Criminal Code;

•  whether, in cases under Art. 96 of the Criminal Code apply to the accused PMMH.

Regarding the organization of outpatient mental health services are forced to note that the duration of the PMMH for this category of patients can not be identified with the term - a term of imprisonment . If a procedural decision does not provide for imprisonment, along with the punishment, the court, in accordance with Part 6 of Art. 94 of the Criminal Code - can send mentally ill offenders in the care of relatives with mandatory medical supervision. Or, guided by Part 1 of Art. 94 of the Criminal Code, Art. 19 Suppe - apply PMMH as outpatient mental health care, psychiatric services provided by the regional health authorities, the place of residence of such person.     

Health authorities, according to the court, and "Instructions on the measures and the organization of interaction of health and law-enforcement bodies to prevent dangerous actions on the part of people with severe mental disorders (approved by joint order of the Ministry of Health of Ukraine and the Ministry of Internal Affairs of Ukraine № 346/877 from 19.12.2000g. ),  carried out against him appropriate medical surveillance and preventive maintenance (dispensary group "TPD"). [5] Thus, the fundamental purpose of the application PMMH as APPPP is - specialized medical prevention of possible repeated crimes committed by mentally ill persons.

Separately, it should be noted that in sentencing, referring to the Law of Ukraine on criminal liability, which shall be applied in cases of socially dangerous acts, the court must take into account the findings of the Supreme Court of Ukraine, in its decision, the situation under Part 2, Art. 455 and  h 2, Art. 456 of the CPC.  Note, however, that a person who committed a crime in a state of diminished responsibility, PMMH    stated in paragraph 9, Part 1., Art. 96 of the Criminal Code may be applied only if there is an act of psychiatric assessment and appropriate conclusion of the facility. A compulsory treatment provided for under Clause 10, Part 1 of the above article may be used only upon the agreement of the facility.

Thus, analyzing the legal framework legislation of Ukraine on this issue,  it should be noted that the effectiveness of punishment should not depend on the severity of approaches, given their focus on the study of the factors which led to the commission of crimes, including on the basis of medical criteria of diminished responsibility, which requires the defendant of certain disorders of mental activity. It should be borne in mind that it is possible they could be a major factor, with implications for the commission of socially dangerous act.

On the findings of psychiatric experts about the need for higher given PMMH it should be noted that the resolution of the Plenum of the Supreme Court of Ukraine of 03.06.2005, the number 7 indicates that the courts must critically evaluate the findings of psychiatric experts in terms of their scientific validity, credibility and correctness because, according to  Art., Article 75, 84, 91 of the CPC presented the findings are evidence in the case, which does not have a pre-determined force, and are not binding on the court. However, opposition to them must be justified in the relevant procedural decisions of the Court. [6]  On this issue, the Resolution of the Plenum of the Supreme Court of Ukraine № 8 of 30.05.1997, "On the legal expertise in criminal and civil matters" (as amended by according to the Resolution of the Plenum of the Supreme Court of Ukraine of 25.05.1998 № u5 g) states that assessing expert evidence, the court among other things, is to figure out the consistency of the research with the final conclusion of the examination and the validity of the expert opinion and their consistency with other materials of the case [7] . Where the nature of mental disorder or mental illness a person prevents   conduct of the proceedings in his presence or his participation in the hearing, the prosecutor and the court,  based on paragraph 2 of Art. 506 CCP may decide to carry out the relevant proceedings without the participation of such person.

In connection with the above, separately it should be noted that in accordance with the ruling of the European Court of Human Rights (ECHR), the Strasbourg Court dated 20.10.2005, in the case of "Romanov v. Russia" -    admitted that the presence of a person in a room where they heard his case, and in respect of which the Court addressed the application of PMMH -  is necessary because the judge must personally verify his mental state and take a    fair decision. The trial court in the absence of the applicant at the hearing, contrary to his wishes, is allowed only in exceptional circumstances, such as - or aggressive behavior of the physical and mental state, which does not allow him to stand trial. [8]

Translation of patients with mental disorders, which are applied PMMH is in accordance with the "Procedure" approved by Order of the Ministry of Health of Ukraine of 08.10.2001, № 397. [9]   Thus, in accordance with claim 7 "Order" sick of detention centers, prisons and psychiatric hospital for prisoners in psychiatric institutions with a strong, enhanced or usual observation translated    forces and resources agencies senders. Of detention centers, prisons and hospitals for inmates and the adjacent exchangers -  the planned route of the Interior Ministry of Ukraine, and on the planned routes - sentries Interior Ministry of Ukraine. In this case, transferred patients, all the way traffic must be accompanied by a    medical staff of these institutions.

To improve the medical care of persons taken into custody, and in accordance with Art. 11 of the Law of Ukraine "On preliminary  conclusion ",  Art., Art. 6, 39, 72, "Basic Laws of Ukraine on Health", the order of the Ministry of Health of Ukraine № 239/205 of 18. 04. 2012, was approved by the "Order of cooperation between institutions of the State Penitentiary Service of Ukraine with the health institutions in the provision of health care to those taken into custody," [10].

To summarize the above material in the article, it should be noted that    careful implementation of complex interpretation of the above regulations should occur, as in this case, it is about protecting the public from potentially dangerous subjects and protect the constitutional rights of persons with mental disorders. Also, due to the fact that the man, his life and health, honor and dignity, safety and security, on the basis of Art. 3 of the Constitution recognized as the highest social value in Ukraine [11].

Literature

1. The Criminal Procedure  Code  of Ukraine  with  changes  and additions,     as amended by   the Act   of July 5, 2012 N 5076 - VI.

2. The Criminal Code of Ukraine of April 5, 2001 № 2341-111 / / Bulletin of       the Supreme Council. - 2001. - № 25-26.-C. 131.

3.    the Law of Ukraine "On Psychiatric Care" from February 22, 2000 № 1489-1 / / 

      Bulletin of the Supreme Council.  -    2000. -    number 19. -    S. 143.

4.    Law of Ukraine "Fundamentals of Legislation on health care" from ​​  

     November 19, 1992 № 2801-XI / / Bulletin of the Supreme Council. - 1993. - number 4.            

5.   Order of the Ministry of Health of Ukraine and the Ministry of Internal Affairs of Ukraine    of 19.12.2000, № 346/877 "On measures to prevent dangerous actions on the part of people with severe mental illness" / / Legal documents on the provision of mental health care. -    Ministry of Health of Ukraine. - 2007.

6.   Resolution of the Plenum of the Supreme Court of Ukraine "On the practice of courts of compulsory medical treatment and involuntary treatment" from 03.06.2005 № 7.

7.  Plenum of the Supreme Court of Ukraine "On the legal expertise in criminal and civil matters" from 30.05.97 № 8 (as amended in accordance with the Resolution of the Plenum of the Supreme Court of Ukraine of 25.05.1998, № 15).

8.   Bulletin of the European Court    of Human citizens. - 2006. -    number 4.

9. Order of the Ministry of Health number 397 of 08.10.2001, the order of transfer of patients with mental disorders to which the coercive medical measures / / Official Bulletin of Ukraine from 22.003.2002 - 2002, № 10, p. 280 to .. 493, Code Act 21805/2002.

10. Order of the Ministry of Health    of 18.04.2012 № 239/5/104, the order of transfer of patients with mental disorders to which the coercive medical measures / / The Ministry of Justice of Ukraine on 10.02.2012, № 212/20525.

11.Konstitutsiya Ukraine on June 28, 1996 number 254-k/96-VR / / Bulletin       of the Supreme Council. -    1996. - № 30. - S. 141.