Legislative Problems of Mandatory Medical Measures (Chapter 15 of the Criminal Code of the Russian Federation)

Abstract

The paper discusses the author’s draft of Chapter 15 of the Criminal code of the Russian Federation with a brief comment prepared by Professor G.V. Nazarenko and published in the journal in the framework of the correspondence round table «New Criminal Code of Russia: Conceptual Framework and Theoretical Model». The new title of Chapter 15 proposed in the draft is being discussed, which, like its current title, does not indicate that the measures in question are psychiatric in content. The authors themselves distinguish two types of such measures: «mandatory» in the strict sense of the word, applied to subjects with severe mental disorders, excluding sanity or making impossible the appointment or execution of punishment, and «obligatory», applied to convicts with mental disorders within the limits of sanity. In this regard, it is proposed to name Chapter 15 «Mandatory and obligatory psychiatric measures». The paper discusses the rationale and purpose of the application of mandatory psychiatric measures. According to the authors, the criminal law should disclose the content of the «danger criterion» and define it as a real possibility (a high degree of probability) of committing new acts by this person, provided for in the articles of the Special part of the Criminal Code of the Russian Federation. Analyzing the proposed by G.V. Nazarenko definition of the purposes for the use of mandatory psychiatric measures, the authors believe that it is hardly appropriate to declare such a «change» of the mental state of a person with a mental disorder «which eliminates its social danger» as their purpose. Mandatory psychiatric measures should be aimed solely at improving the mental state of the patient, while the elimination of the danger may in some cases be the result not of an improvement, but of the deterioration of his / her condition or the influence of other unfavourable medical factors. It is concluded that, despite the divergence of scientific positions on a number of issues, the author’s draft of Chapter 15 of the Criminal Code of the Russian Federation, prepared by G.V. Nazarenko, is a significant contribution to the theoretical understanding of the current criminal law governing mandatory medical measures, and outlines generally right directions for its improvement.