Legality of the use of coercive measures of a medical nature against subjects with mental abnormalities (based on national and international judicial practice)

Abstract

Often, criminal offenses are committed by persons with mental abnormalities, who are recognized as mostly limited in their judgment. According to the court’s decision, coercive measures of a medical nature may be applied to such persons. Within the framework of the application of criminal-legal coercive measures of a medical nature to subjects who have committed a criminal offense, the question of the legality of their application arises. The purpose of this study is to determine the legality of applying criminal and coercive measures of a medical nature to persons with mental abnormalities who have committed a criminal offense. It was established that the application of measures of a medical nature to persons of limited sentencing with mental abnormalities, if they were justified by a court decision, does not violate the provisions of clause «e» of Article 5 of the Convention. Taking into account the content of the decisions of domestic courts and the ECtHR regarding the application of coercive measures of a medical nature, we suggest that the following grounds for their application be enshrined at the legislative level: the recognition of a person with limited cognizance due to the presence of a mental abnormality must be based on the conclusions of an objective, impartial medical forensic psychiatric examination; the type and degree of mental disorder (abnormality) in the subject who committed a criminal offense must be recognized as requiring the application of a specific measure of a medical nature in a compulsory manner; the application of medical measures to the subject of a criminal offense who has beenfound to have a mental abnormality cannot continue after the recovery of the person, even if the term of their application, determined by the court, has not yet expired – for this, the possibility of early termination of their application must be established in in the event that such a patient has recovered and no longer needs medical assistance (incriminal and criminal procedural legislation). The introduction of the specified changes will increase the effectiveness of prosecuting subjects of criminal offenses who have mental anomalies (disorders) that do not exclude criminal liability. Key words: subject of a criminal off ense, mental abnormality, mental disorder,limited sanity, sanity, lack of sanity, coercive measures of a medical nature, coercive treatment, judicial practice, court decision, resolution, human rights, legality, public danger, criminal responsibility.