Punishment and other measures of criminal legal action. Punishment concept. The difference between punishment and other measures of a criminal law nature. Categories of persons to whom compulsory medical measures are applied

Legal regulation of other measures of a criminal-legal nature in the current criminal legislation

The concept of "other measures of a criminal-legal nature" used in the text of a number of articles (part 2 of article 2, part 1 of article 6, part 1 of article 7) and in the title of section VI of the Criminal Code goes back to part 2 of article ... 2 of the Criminal Code. It formulates the most important provision, according to which the tasks of the criminal legislation mentioned in part 1 of this article should be ensured with the help of not only, but also “other measures of a criminal-legal nature”. That is, such measures are provided for in the law "for the implementation" of those specified in Part 1 of Art. 2 of the Criminal Code tasks as an alternative to criminal punishment and are therefore no less important than the latter. However, this significance of them has not found, unfortunately, its worthy reflection in the criminal legislation. The 1996 Criminal Code of the Russian Federation did not initially provide for a single list of “other measures criminal law character ", neither an indication of what measures should be attributed to their number, nor a regulation of the conditions and procedure for their application. For this reason, in the theory of criminal law, the legal nature of these measures, their essence, types and significance were determined in different ways, and in practice difficulties arose with their effective application.

The legislator "remembered" the unresolved issue of this issue only later and only in connection with the need to resolve another acute issue - the return to criminal law such a measure, which was thoughtlessly excluded from the system of criminal punishments in 2003, as confiscation of property. It was considered expedient to return this measure to the Criminal Code, but not as a criminal punishment, but as “another measure of a criminal-legal nature”.

Federal Law of July 27, 2006 No. 153-FZ Section VI of the Criminal Code, called, like Ch. 15 of the Criminal Code, "Compulsory measures of a medical nature", was supplemented by Ch. 15 1 "" and renamed, now it bears the name "Other measures of a criminal-legal nature". Thus, the legislator recognizes such different measures as the confiscation of property as “other measures of a criminal-legal nature”.

Such a solution to the problem can hardly be considered successful. It not only did not improve the situation in this aspect, but also significantly aggravated it.

First, the legislator, both in the title of the section and in essence, did not take into account (“overlooked” or ignored) the fact that, according to the wording of the current law (part 2 of article 2, part 1 of article 6, part 1 of article . 7 of the Criminal Code) “other measures of a criminal-legal nature”, as well as measures of criminal punishment, should be applied “for committing crimes”, “against the person who committed a crime”, and, therefore, should “correspond to the nature and degree of social danger of the crime, the circumstances its commission and the identity of the perpetrator ”(Part I, Art. 6 of the Criminal Code). While coercive measures medical character are of a different nature, other purpose, basis, goals and procedure for application and therefore cannot be attributed to the indicated punitive measures. As well as confiscation of property, the purposes of application of which are not defined in the law, but, within the meaning of the relevant articles of the Criminal Code, the grounds, purposes and procedure for the application of this measure also do not imply its application as a punishment “for the fact that” a person committed a crime and “proportionate what he has done.

Secondly, it is unclear why another, very representative group of measures that are important for the implementation of criminal-legal tasks that are provided for by the current Criminal Code just as an alternative to criminal punishment “for committing crimes” is not included in the list of “other measures”, “ to the person who committed the crime ”. They not only legally, but in fact constitute a real (and preferable) alternative to criminal punishment. We are talking about various types of exemption from criminal liability and from criminal punishment, including probation related to them, compulsory measures of educational influence (Articles 73-85, 90, 92, a number of articles of the Special Part of the Criminal Code). Considering that according to the law (Articles 2, 6, 7 of the Criminal Code), all the measures of a criminal-legal nature provided for by it can be attributed either to punishment or to "other measures of a criminal-legal nature" and (i.e. "there is no third ”), The belonging of the listed measures to the number of“ other measures ”seems obvious.

Thirdly, the title of Section VI of the Criminal Code of the Russian Federation “Other measures criminal law ", for the reasons noted above, discordant with both the most important articles 2, 6, 7 of the Criminal Code, establishing the principles of criminal legislation, and with the content of Ch. 15 of the Criminal Code and with its title “Compulsory Measures medical nature "(in both cases, italics are mine. - V.D.). From a comparison of these names, the question arises - what is the character of the latter: criminal or medical?

The disadvantage of Art. 2 of the Criminal Code is the fact that it does not mention the criminal-legal task of regulating public relations(see § 1 of Chapter 1 of the textbook about this) and, accordingly, there are no indications of the means of solving this problem.

The noted shortcomings in their totality show that the legislation, which is of a systemic nature, cannot be changed haphazardly, according to the principle of repairing the "trishkin's caftan", as is often the case; that the solution to the issues legal regulation requires high professionalism of the creators of law, supported by mandatory qualified scientific expertise, and in particular difficult cases and wide public discussion of bills.

The concept of other measures of a criminal law nature and the problems of improving their legal regulation

The study shows that the legal regulation of criminal law means designed to ensure the implementation of the tasks of criminal law, the entire complex of criminal law rules governing the relevant issues, needs a fundamentally different regulation. A system of various, most effective criminal law measures that are designed and capable of serving as a means of solving problems of criminal law should be more clearly enshrined in criminal legislation - system of criminal law measures to combat crime.

A crime is sometimes compared to a disease, and the means of responding to it is compared to drugs. Like a sick person, a person who has committed a crime must be prescribed exactly the medicine that can cure him. And society in both cases must have all the necessary means for this and be able to competently apply them. In criminal law, as in health care, a full set of the most effective means is needed, and everyone in need should be prescribed exactly the necessary "treatment". For these purposes, a full-fledged, harmonious system of the most effective measures of criminal-legal counteraction to crime is needed. As follows from the above, to date, such a system has not yet been created.

According to the author of these lines, all the variety of criminal law measures provided for by law should be divided not along the dubious line of “punishment and other measures”, but, depending on the nature and purpose of the corresponding types of measures, into punitive and non-punitive (“other measures”, or measures security).

Structurally, the system of criminal law measures to combat crime should include two groups of measures. The first one is system of criminal legal impact (system of punitive measures), which includes criminal penalty and various types of exemptions from criminal responsibility and from criminal punishment, including the related probation and coercive measures of educational influence. The listed measures are united by a single punitive essence, they all represent various forms of the state's reaction to the commission of a crime, are applied for committing crimes against the persons who committed them, are appointed in accordance with the nature and degree of social danger of the crime in the name of the criminal legal purposes of restoration (allegations) social justice, correction of the convicted person and prevention of new crimes.

The second group of measures - system of security measures in criminal law, or otherwise - "Other measures of a criminal law nature"(system of non-punitive measures), including medical and other security measures that have a non-punitive nature, which are applied not for the commission of a crime, but in connection with the commission of a socially dangerous act prohibited by criminal law against the person who committed it, in order to ensure his safety for himself and for society as a whole, its healing, resocialization, etc. In addition to medical measures, the current confiscation of property and the confiscation of items seized from civil turnover, instruments and means of committing a crime, administrative supervision or other restriction of the rights and freedoms of a recurrent person from the “risk zone” (for example, exile, expulsion), the currently discussed possible castration of “pedophiles” and other measures that will appear in the future.

With this approach, under “other measures of a criminal-legal nature” (“security measures in criminal law”) it is proposed to understand the totality of various non-punitive measures provided for by the criminal law, which are designed and capable of participating in solving the problems of criminal law: protective-regulatory and regulatory-protective.

The originality of such measures as measures of a criminal-legal nature is manifested in their specific features:

• their main feature is their non-punitive nature, they are not used as a reaction to the commission of a crime (that is, not “for the fact that” a person has committed a crime); the correspondence (proportionality) of such a measure to the nature and degree of social danger of the crime is not required; restoring social justice (punishment) is not their goal; accordingly, “other measures” are not specified in the sanctions;
• they are provided for in the Criminal Code in this capacity; the grounds, goals and principles of their application are regulated by the norms of the Criminal Code; they are implemented within the framework of specific criminal law relations;
• such measures are aimed at ensuring the safety of the self-confidant and other persons, preventing the commission of offenses, providing the necessary assistance in the framework of the implementation of the relevant criminal law relationship;
• their content consists in the minimum restriction of certain rights and freedoms necessary to achieve these goals;
• the legal basis for the application of such measures is a lawful and well-grounded court decision made on behalf of the state;
• their application is compulsory - regardless of the wishes of the persons to whom they apply and their legal representatives;
• these are measures that are alternative not only to punishment, but also to all other measures of criminal law (punitive), however, if necessary, they can be applied along with the latter as “other measures”.

It is fair to say that the totality of the above features characterizes the system of “other measures of a criminal-legal nature” rather from the side of the proper than of the existing. The value of their presentation in this textbook is to contribute to the formation of the analyzed important criminal law institution and the improvement of its legal regulation.

abstract

OTHER MEASURES OF A CRIMINAL LEGAL NATURE

Bibliography

1. The concept and types of other measures of a criminal law nature

As one of the measures of criminal law for committing crimes, the current Criminal Code of the Russian Federation in Part 2 of Art. 2 mentions, in addition to criminal punishment, other measures of a criminal-legal nature.

The term "Other measures of a criminal-legal nature" is contained in several articles of the General part of the Criminal Code of the Russian Federation (Articles 6, 7, Section VI of the Criminal Code of the Russian Federation), but there is no legal definition of it.

Other measures of a criminal-legal nature are measures of state coercion, provided for in section VI Of the Criminal Code of the Russian Federation, which are not a criminal punishment and consist in the application of medical measures or confiscation of property by a court decision.

The institution of other measures of a criminal-legal nature received significant development after the introduction into the Criminal Code of the Russian Federation as a result of the adoption of Federal Law No. 153-FZ of July 27, 2006, Chapter 15.1 of the Criminal Code of the Russian Federation, regulating the application of confiscation of property and renaming the section VI of the Criminal Code of the Russian Federation.

The amendments made to the Criminal Code of the Russian Federation were not only technical in nature, but also significantly changed the content of measures of criminal law enforcement in domestic criminal law.

In the criminal law of foreign states, the impact on crime by means of measures of criminal law impact, other than criminal responsibility and punishment, is used quite widely. The institution of “other measures of a criminal-legal nature” is also known to the criminal legislation of Azerbaijan, Armenia, Kazakhstan, Uzbekistan.

In the criminal legislation of Germany, Spain, Italy, Moldova, USA, Switzerland, such an institution has become very widespread and is known as "Security Measures".

It should be noted that the term "other measures of a criminal-legal nature" unites in the Criminal Code of the Russian Federation, different in nature. legal institutions, most of which can be attributed to the forms of implementation of criminal responsibility, in particular, compulsory measures of a medical nature, combined with the execution of criminal punishment, as well as the confiscation of property acquired by the perpetrator as a result of the commission of a crime.

At the same time, other measures of a criminal-legal nature also have significant differences from criminal punishment:

First, there are various grounds for the application of criminal punishment and other measures of a criminal-legal nature;

Secondly, other measures of a criminal-legal nature are not indicated in the number of types of criminal punishment;

Thirdly, other measures of a criminal-legal nature can be applied upon release from criminal liability;

Fourthly, criminal punishment and other measures of a criminal-legal nature have different purposes of application;

Fifth, punishment and other measures of a criminal-legal nature differ in their essence, in content;

Sixth, other measures of a criminal-legal nature, in contrast to criminal punishment, do not entail a conviction as a special legal consequence of their application;

Seventh, other measures of a criminal-legal nature are imposed both by a sentence upon confiscation of property and by a court ruling when applying compulsory medical measures.

Eighth, other measures of a criminal-legal nature can be applied not only to persons who have committed a crime, but also to other persons.

The goals of other measures of a criminal-legal nature correspond to the tasks of the criminal legislation specified in Part 1 of Art. 2 of the Criminal Code of the Russian Federation:

• elimination of the causes and conditions conducive to the commission of crimes and other acts dangerous to society;
• creation of conditions that prevent the commission of crimes and other acts dangerous to society;
• compensation for damage caused by a crime or an act dangerous to society.

Currently, the Criminal Code of the Russian Federation identifies two types of other measures of a criminal law nature: compulsory medical measures and confiscation of property.

Other measures of a criminal-legal nature should not be confused with such institutions characterizing a change in the criminal-legal status of a convicted person as parole from serving a sentence (Article 79 of the Criminal Code of the Russian Federation), replacement of the unserved part of the sentence with a milder type of punishment (Article 80 of the Criminal Code of the Russian Federation) , release from criminal liability (Articles 75, 76, 76.1, 78 of the Criminal Code of the Russian Federation), release from punishment (Articles 80.1, 81, 83 of the Criminal Code of the Russian Federation). These institutions are assigned an independent, no less important than other measures of a criminal-legal nature, a place in the mechanism for implementing the tasks of the criminal law, but their legal nature is, nevertheless, different.

Other measures of a criminal-legal nature should not be confused with the security measures provided for by regulatory legal acts other branches of law. So, in accordance with the Federal Law of November 2, 2013 No. 302-FZ "On Amendments to Certain legislative acts RF " 1 Art. 18 of the Federal Law of March 6, 2006 No. 35-FZ "On Countering Terrorism" was supplemented with Part 1.1, according to which compensation for harm, including moral injury caused as a result of a terrorist act is carried out in accordance with the procedure established by the legislation of the Russian Federation on civil proceedings, at the expense of the person who committed the terrorist act, as well as at the expense of his close relatives, relatives and close persons, if there are sufficient grounds to believe that money, valuables and other property received by them as a result of terrorist activities and (or) are income from such property. Despite the fact that the above provisions are close to other measures of a criminal law nature, and in particular to the confiscation of property, such legal action neither on the grounds and order of application, nor on the goals can be attributed to other measures of a criminal-legal nature.

2. Compulsory medical measures

Criminal liability and criminal punishment cannot fully ensure the observance of criminal-legal prohibitions, since they are violated not only by sane persons who have reached the age of criminal responsibility, but also by deranged persons. In addition, in some cases, after committing a crime, individuals may develop various mental disorders that prevent the application of punishment. In a number of cases, crimes are committed by persons suffering from mental disorders, which do not exclude sanity, about which it comes in st. 22 of the Criminal Code of the Russian Federation. In order to prevent the violation of criminal law prohibitions, compulsory medical measures are applied to these persons, provided for in Chapter

1. Of the Criminal Code of the Russian Federation.

The institution of compulsory measures of a medical nature has been known to the domestic legislator for a long time. The guiding principles of the criminal law of the RSFSR in 1919 proposed to apply coercive measures and precautions to such persons. The Criminal Code of the RSFSR of 1922 spoke of compulsory treatment as a measure social protection applied by a court verdict. The current Criminal Code of the Russian Federation changed the legislative description of compulsory measures of a medical nature, separating them into an independent section, including a rule on the purposes of using compulsory measures of a medical nature (Article 98 of the Criminal Code of the Russian Federation), otherwise formulating the grounds for the application of compulsory measures of a medical nature (Part 2 of Article 90 Of the Criminal Code of the Russian Federation), including the new kind compulsory medical measures (Article 100 of the Criminal Code of the Russian Federation).

Compulsory measures of a medical nature are expressed in compulsory psychiatric supervision and treatment. They are provided for by criminal legislation and are applied by the court on the basis of the conclusion of the forensic psychiatric examination to persons suffering from certain mental disorders and who have committed acts, provided for in Articles The special part of the Criminal Code of the Russian Federation.

The current criminal legislation does not contain a definition of the concept of compulsory medical measures. Therefore, in the legal literature, various definitions of it are given, which, with varying degrees of completeness, reveal the essential features of these measures, emphasizing their legal and medical content.

On this basis, compulsory measures of a medical nature are measures provided for by the criminal law that are applied to persons suffering from mental illness who have committed a socially dangerous act or crime in order to cure or improve their mental state and prevent antisocial behavior.

Despite the fact that compulsory measures of a medical nature are a type of measures of a criminal-legal nature and are imposed by a court, they do not apply to measures of criminal punishment, since:

First, they do not contain an element of punishment, since they do not contain retribution for the crime committed;

Secondly, they do not express a negative assessment on behalf of the state of the socially dangerous actions of persons in a state of mental disorder;

Thirdly, they are not aimed at correcting these persons and restoring social justice;

Fourthly, the duration of their use depends on the mental state of the person, and not on the danger of the committed act for society;

Fifth, compulsory medical measures do not entail a criminal record.

Compulsory measures of a medical nature must be distinguished from:

• examination by a psychiatrist of a person suffering from a mental disorder, in addition to or against his will;
• involuntary hospitalization according to the conclusion of psychiatrists;
• compulsory treatment in a psychiatric hospital by order of a judge.

In Art. 97 of the Criminal Code of the Russian Federation, there are three grounds for the application of compulsory medical measures:

Criminal law basis application is associated with the commission of a crime by a person or an initial one with respect to the degree of danger to society of another act. It should be borne in mind that when committing an act slight severity compulsory medical measures are not applied in accordance with Part 2 of Art. 443 of the Criminal Procedure Code of the Russian Federation.

The medical basis for the application of compulsory medical measures is a state of mental disorder that is associated with the possibility of causing significant harm by these persons or with danger to themselves or others. Such persons, firstly, include those who are recognized as irresponsible (clause "a", part 1 of article 97 of the Criminal Code of the Russian Federation). These persons, due to the morbid state of the psyche, are not able to realize the actual nature and social danger of their actions (inaction) or to lead them (Article 21 of the Criminal Code of the Russian Federation).

The application of punishment to persons found to be insane is unfair and inappropriate because:

First, their goals - the achievement of social justice, correction and special prevention - punishment in this case will not reach 2 ;

Secondly, the application of compulsory medical measures is possible to persons who have committed a crime, and then before the trial, during judicial trial or during the period of serving the sentence, they fell ill with a mental disorder that makes it impossible to assign or execute punishment in relation to them;

Thirdly, compulsory medical measures are also applied to persons who have committed a crime in a state of mental disorder that does not exclude sanity (Article 22 of the Criminal Code of the Russian Federation). Such persons are subject to criminal liability and punishment, but their mental state is taken into account by the court when imposing punishment and may serve as a basis for the appointment of compulsory medical measures. Compulsory observation and treatment is applied to these individuals along with criminal penalties. In relation to those sentenced to imprisonment, such measures are applied in places of deprivation of liberty, and those sentenced to other types of punishment - in health care institutions, where they are provided with outpatient psychiatric care.

1. The criminal procedural basis for the application of compulsory medical measures is a court order on the release of this person from criminal liability or from punishment and on the application of compulsory medical measures against him in accordance with Art. 21 and Art. 81 of the Criminal Code of the Russian Federation (Article 443 of the Code of Criminal Procedure of the Russian Federation).

The use of compulsory treatment is a court right, not an obligation. It can be applied only in two cases: when a person, in addition to committing a socially dangerous act in connection with a mental disorder, is capable of causing other significant harm (destroy property, set fire to a house, take life) or, due to his condition and behavior, is a danger to himself yourself or others (outbursts of aggression, uncontrollability, delusional states, etc.).

Thus, the courts, when deciding on the application of compulsory medical measures, must proceed not only from the assessment of the mental state of a person at the time of the commission of a socially dangerous act, but also be able to predict his behavior from the point of view of potential danger to society.

If such persons, due to their mental state, do not pose a danger to themselves or other persons, the court may decide that it is inexpedient to apply compulsory medical measures to them and transfer the necessary materials about their state of health to the health authorities in order to resolve the issue of voluntary treatment of such persons or premises. them to neuropsychiatric institutions social security.

Compulsory measures of a medical nature have two aspects - legal and medical.

The legal aspect includes the grounds, goals, types, procedure for the appointment, execution, extension, change and termination of compulsory medical measures, which are regulated by criminal and penal legislation.

The medical aspect is determined by the very content of these measures, the tasks of curing persons in need of compulsory treatment or improving their mental state, as well as the fact that conclusions about the diagnosis of a mental disorder, recommendations for the appointment and conduct of treatment, prevention of mental disorders and necessary social rehabilitation measures are given by doctors -psychiatrists.

In Art. 98 of the Criminal Code of the Russian Federation formulates the goals of applying compulsory medical measures.

These include:

First, ensuring the safety of people with mental disorders;

Secondly; curing persons who have committed a socially dangerous act, in other words, recovery implies the disappearance of the painful manifestations of a mental disorder. Upon recovery, a person is recognized as mentally healthy and not in need of psychiatric help.

Third, an improvement in the mental state, in which they cease to pose a danger to themselves and to society, is possible when the patient's most severe and persistent manifestations of mental disorder disappear. In many cases, the nature of the disorder and the methods of treatment do not allow for the achievement of recovery or improvement in the patient's mental state.

Fourthly, the prevention of the commission by persons suffering from mental disorders, new acts provided for by the articles of the Special Part of the Criminal Code of the Russian Federation. Achievement of this goal is ensured by the strictness of the regime of the psychiatric hospital where the patient is placed, as well as by constant monitoring of the patient.

Thus, compulsory medical measures are aimed at protecting the interests of persons who are in a state of mental disorder and who have committed a crime or socially dangerous act. The protection of the interests of persons in a state of mental disorder includes the cure of such persons, the improvement of their mental state, social adaptation; the protection of the interests of society can include the prevention of possible socially dangerous acts on their part in the future.

Compulsory medical measures are applied to persons:

• committed an act stipulated by the Articles of the Special Part of the Criminal Code of the Russian Federation, in a state of insanity;
• who, after committing a crime, have a mental disorder that makes it impossible to assign or execute punishment;

Those who have committed a crime and are suffering from a mental disorder that does not exclude sanity;

Who committed a crime against the sexual inviolability of a person under 14 years of age over the age of 18, and suffers from a disorder of sexual preference (pedophilia) that does not exclude sanity.

When determining the type of compulsory measures of a medical nature, the main importance should be not the danger of the act, but the danger of the individual to society.

In Art. 99 of the Criminal Code of the Russian Federation enshrined four types of compulsory medical measures:

1. outpatient compulsory observation and treatment by a psychiatrist (clause "a", part 1 of article 99 of the Criminal Code of the Russian Federation);
2. compulsory treatment in a psychiatric hospital general type(clause "b" part 1 of article 99 of the Criminal Code of the Russian Federation);
3. compulsory treatment in a psychiatric hospital of a specialized type (clause "c", part 1 of article 99 of the Criminal Code of the Russian Federation);
4. compulsory treatment in a psychiatric hospital of a specialized type with intensive supervision (clause "g", part 1 of article 99 of the Criminal Code of the Russian Federation).

The type of compulsory medical measures is prescribed by the court, taking into account the conclusion of the forensic psychiatric examination. The expert opinion is not obligatory for the court, it is subject to verification and assessment, however, disagreement with the expert's conclusion must be motivated (Articles 80, 88 of the Code of Criminal Procedure of the Russian Federation). Criminal legislation provides the court with a choice in the appointment of compulsory medical measures of one type, depending on the danger of the committed act and the mental state of the person established by the forensic psychiatric examination.

The psychiatric hospitals named in the law (clauses "a", "b", "c" part 1 of Art. 99 of the Criminal Code of the Russian Federation) differ taking into account the criteria for ensuring the safety of persons placed there and other persons being treated in a psychiatric hospital, with a difference in the mode of detention, the degree of intensity of observation of these persons.

Along with the mental state of a person and the nature of the act that is dangerous to society, it is impossible not to take into account the principle of the necessity and sufficiency of a coercive measure for the effectiveness of achieving the goals of applying these measures.

Outpatient compulsory observation and treatment by a psychiatrist may be prescribed if the person who committed an act provided for by the criminal law, due to his mental state, does not need to be placed in a psychiatric hospital (Article 100 of the Criminal Code of the Russian Federation).

Such observation and treatment can be prescribed along with punishment to a person convicted of a crime, but in need of treatment for a mental disorder that does not exclude sanity (part 2 of Art. 99 of the Criminal Code of the Russian Federation). This compulsory observation and treatment by a psychiatrist is carried out by a neuropsychiatric dispensary (dispensary department, office) at the patient's place of residence. When appointing this measure, the person is explained the meaning and significance of these measures, as well as the fact that avoiding observation and treatment may lead to the replacement of outpatient treatment with inpatient treatment. The main advantage of such a measure is that the person to whom it is applied remains in a familiar environment, lives in a family, continues to work, and communicates freely with others.

This measure is used in cases where the patient, by his mental state, is able to understand the meaning of the measure being applied and can organize his behavior in accordance with the prescriptions of doctors.

The following persons meet these requirements most of all:

• committed socially dangerous acts in a state of temporary mental disorder or mental exacerbation of a chronic mental disorder that ended by the time of the examination, in the case of a low probability of a recurrence of psychosis, as well as while maintaining the patient's adaptation and ability to comply with the prescribed regimen;
• with chronic mental disorders or dementia after compulsory treatment in a psychiatric hospital with unstable social adaptation and a tendency to repeated socially dangerous actions revealed in the past - as a stage before the complete cessation of compulsory treatment (in order to change a compulsory medical measure).

The basis for sending a person to a psychiatric hospital for compulsory treatment is the possibility of causing significant harm by this person or danger to himself or other persons associated with a mental disorder. At the same time, the nature of the mental disorder is such that it requires inpatient treatment, maintenance and supervision, which cannot be carried out on an outpatient basis.

Outpatient compulsory observation and treatment by a psychiatrist can be prescribed along with criminal punishment, as well as after serving a criminal sentence, to persons who have committed a crime against the sexual integrity of a person under 14 years of age over the age of 18 and who suffer from a disorder of sexual preference (pedophilia).

Compulsory treatment in a psychiatric hospital of a general type is applied to a person if the nature of a person's mental disorder requires such conditions of treatment, care, maintenance and observation that can only be carried out in a psychiatric hospital (part 2 of article 101 of the Criminal Code of the Russian Federation).

Compulsory treatment in a general psychiatric hospital applies to the following persons:

• committed acts dangerous to society and (or) being in a morbid condition in the absence of gross violations of the hospital regime and a favorable prognosis for the therapeutic treatment of psychosis, but with the continued likelihood of its recurrence (chronic diseases with frequent exacerbations; the presence of pathological grounds conducive to the occurrence of temporary mental states , organic lesions of the brain, etc.), as well as in case of insufficient criticism of one's condition, making it impossible to carry out treatment in a hospital or on an outpatient basis on a general basis;
• with the phenomena of dementia and other mental disorders, who committed acts provoked by any external unfavorable circumstances, without a pronounced tendency to their repetition and gross violations of the hospital regime;
• those in a state of temporary mental disorder that developed after the commission of a socially dangerous act, but before the sentencing, in the absence of pronounced tendencies to commit new socially dangerous acts and gross violations of the hospital regime;
• who, due to their mental state, need hospital maintenance and treatment in a general hospital (in order to change a compulsory medical measure).

In psychiatric hospitals of a specialized type, for compulsory treatment, they are sent to a person who, due to his mental state, requires constant monitoring (part 3 of article 101 of the Criminal Code of the Russian Federation).

These include persons:

• who have committed an act dangerous to society and (or) are currently in a psychotic state, in cases where there are no pronounced tendencies towards gross violations of the hospital regime and a favorable prognosis in relation to the therapeutic limitation of psychosis, but with the continued likelihood of its recurrence (chronic diseases with frequent exacerbations; presence pathological soil, contributing to the occurrence of temporary psychotic states), as well as in case of insufficient criticism of one's condition, which makes it impossible to carry out treatment in a hospital or on an outpatient basis on a general basis;
• with the phenomena of dementia, states of mental defect of various origins and other mental disorders, who committed acts provoked by any external unfavorable circumstances, without a pronounced tendency to their repetition and gross violations of the hospital regime;
• suffering from a temporary mental disorder that developed after the commission of a socially dangerous act, but before the sentencing (compulsory treatment until leaving a morbid state), in the absence of pronounced tendencies to commit new socially dangerous acts and gross violations of the hospital regime;
• with chronic mental disorders or dementia after compulsory treatment in psychiatric hospitals (hospitals, departments) of a specialized type, including those with intensive supervision, if their mental state improves and (or) the danger is reduced, if such diseases make it possible to continue compulsory treatment in a psychiatric a general hospital (in order to change a compulsory medical measure).
• who have discovered during the outpatient compulsory treatment previously appointed by the court a deterioration in their mental state and (or) an increase in danger, if this makes it impossible to carry out the prescribed treatment and rehabilitation measures on an outpatient basis and require their transfer to the conditions of a psychiatric hospital (hospital, department) of a general type (in the procedure for changing a compulsory medical measure).

Treatment, however active it may be, cannot significantly affect the danger of such persons. They usually tend to illegal actions even while in a psychiatric hospital. Therefore, a stricter observation is provided here, which is achieved either through external protection and the creation access control in such hospitals, or due to their better provision with medical personnel, who are entrusted with the functions of psychiatric control and supervision.

In psychiatric hospitals of a specialized type with intensive supervision for compulsory treatment, which, due to their mental state, pose a particular danger to themselves or others and require constant and intensive observation (part 4 of article 101 of the Criminal Code of the Russian Federation)

These include mentally ill persons who pose a particular danger to themselves or others:

• with chronic mental disorders or dementia, showing a tendency due to manifestations of the disease and (or) a person's propensity to commit repeated socially dangerous acts that have signs of grave or especially grave crimes, especially of a violent nature;
• with chronic mental disorders or dementia, in which there are clearly expressed tendencies to committing acts dangerous to society, manifested in repeated social dangerous actions, as well as in gross violations of the hospital regime (attacks on staff, escapes, initiation of group riots), if such violations of behavior make it impossible to carry out treatment and rehabilitation measures in the context of the application of other compulsory medical measures;
• those in a state of temporary mental disorder that developed after the commission of a crime before the sentencing, if there is a threat of committing new socially dangerous acts that have signs of grave or especially grave crimes, as well as escape;
• other patients who need to be transferred to a psychiatric hospital with intensive supervision.

The consequences of the application of compulsory medical measures are understood as the extension, change, termination and offset of compulsory medical measures in the term of imprisonment, regulated by law.

The terms of application of compulsory medical measures are not regulated by the current Criminal Code of the Russian Federation. Based on the meaning of the law, treatment should be carried out until the patient is fully recovered or his mental state improves to a level at which his danger to society disappears or significantly decreases.

A person who has been assigned a compulsory measure of a medical nature is subject to examination by a commission of psychiatrists at least once every six months. The initiator of such an examination may be the attending physician, the patient himself, his legal representatives or close relatives. In cases where the patient's condition changes, the examination can be carried out before the expiration of the specified period at any time.

The course of the term begins from the moment of entry into legal force court rulings on the appointment or extension of a compulsory medical measure. If the result of the previous examination was the extension of the prescribed treatment without submitting an opinion to the court (since after the first, subsequent extensions are carried out annually), then the calculation is made from the date of this examination.

In the absence of grounds for terminating or changing a compulsory medical measure, the administration of the institution carrying out compulsory treatment shall submit to the court an opinion for the extension of compulsory treatment. The first such extension can be made six months after the start of treatment, and the subsequent extension is made annually. In the latter case, after six months after the previous examination, the need to continue compulsory treatment, if the patient's condition has not changed, is confirmed by the medical commission.

Regardless of the time of the last examination and the decision taken to terminate the application of compulsory medical measures, the court, on the basis of a petition from the administration of the institution executing the punishment made no later than six months before the expiration of the term for the execution of the punishment, is obliged to appoint a forensic psychiatric examination in relation to the person who committed over the age of eighteen, a crime against the sexual integrity of a minor under the age of fourteen and suffering from a disorder of sexual preference (pedophilia) that does not exclude sanity, in order to resolve the issue

on the need to apply compulsory medical measures to him during the period of parole or during the period of serving more than soft look punishment, as well as after serving the sentence.

On the basis of the conclusion of the forensic psychiatric examination, the court may order outpatient compulsory observation and treatment by a psychiatrist or stop its use.

A change in a compulsory measure of a medical nature is carried out by a court in the event of such a change in the mental state of a person, in which there is no need to apply a previously prescribed measure and there is a need to prescribe another compulsory measure of a medical nature. At the same time, depending on the decrease or increase in the patient's danger, the compulsory treatment regimen can be softened or strengthened. The need to change the regime arises in cases when the use of a previously prescribed measure becomes inappropriate, and the sufficiency of the newly introduced measure is determined by its expediency.

When the patient's danger is reduced, he, by a court decision, is transferred from a specialized psychiatric hospital with intensive supervision to a hospital without intensive observation, then to a general hospital, and then compulsory outpatient observation and treatment by a psychiatrist is applied. In the event of an increase in the patient's danger, he can be transferred from a specialized type psychiatric hospital to a specialized type psychiatric hospital with intensive supervision.

The termination of the application of compulsory medical measures to persons in a state of mental disorder is carried out by the court in the event of such a change in the mental state of these persons, in which there is no need to apply a previously prescribed compulsory medical measure and there is no need to apply another compulsory measure. Termination of treatment is a consequence of the person's recovery, improvement of his mental state, or obvious deterioration. The improvement and deterioration of the mental state should be accompanied by a significant decrease in the possibility of causing other significant harm or danger to the patient for himself and others.

The issue of the termination of a compulsory medical measure as a result of a clear deterioration in physical condition the patient (making it impossible for him to commit socially dangerous acts), while the mental state remains at the same level. Legislatively this procedure not settled.

After the termination of the application of compulsory medical measures, if it is necessary to continue treatment, the patient may be left to continue treatment on a general basis in the same or another psychiatric hospital, with the exception of specialized type hospitals and specialized type hospitals with intensive supervision, or may be observed in a neuropsychiatric dispensary.

The termination of the application of compulsory measures of a medical nature in relation to a person whose mental disorder, making it impossible to impose or execute punishment, occurred after the commission of a crime, serves as the basis for resuming the criminal proceedings or further serving the sentence. In the event of the resumption of a suspended criminal case or the execution of a previously imposed punishment, the proceedings preliminary investigation, court proceedings, the appointment and execution of punishment are carried out in accordance with the general procedure. In this case, it is necessary to establish whether there are circumstances that prevent the resumption of proceedings on the case or the execution of the sentence.

The time during which a person was subjected to compulsory treatment in a psychiatric hospital is counted when a punishment is imposed or resumed at the rate of one day of stay in a psychiatric hospital for one day of imprisonment (Article 103 of the Criminal Code of the Russian Federation).

This rule does not apply to outpatient compulsory observation and treatment by a psychiatrist. This is due to the fact that outpatient treatment does not impose restrictions on the patient, inherent in criminal punishment in the form of imprisonment. When offsetting compulsory medical measures in terms of other types of punishment, except for imprisonment, it is necessary to use the rules of Art. 72 of the Criminal Code of the Russian Federation.

Compulsory measures of a medical nature in relation to persons convicted of crimes, but in need of treatment for mental disorders that do not exclude sanity, are executed together with punishment. In this case, in accordance with the law, the court has the right to prescribe only compulsory outpatient observation and treatment by a psychiatrist, since inpatient psychiatric treatment is applied to persons who, due to their mental state, are unable to serve a sentence. Compulsory treatment can be prescribed in case of conviction to any type of punishment. For those sentenced to imprisonment, compulsory medical measures are applied at the place of their serving, in relation to those sentenced to other types of punishment

• in the institution of health authorities providing outpatient psychiatric care.

3. Confiscation of property and compensation for damage caused

Confiscation of property in Russian criminal law has traditionally acted as an independent type of criminal punishment. It was provided for by pre-revolutionary criminal laws and all criminal codes in force in Soviet times.

So, in accordance with Art. 35 of the Criminal Code of the RSFSR of 1960, this punishment was expressed in the compulsory gratuitous confiscation of all or part of the property owned by the convict into the ownership of the state. Confiscation of property was included in the punishment system, it was admitted additional view punishment and was applied only in cases stipulated by the Articles of the Special Part of the said Code.

In the same way, the confiscation of property was reflected in the Criminal Code of the Russian Federation (Article 52), with the clarification that this type of punishment could be applied only for grave and especially grave crimes committed from mercenary motives. And although, according to the Criminal Code of the Russian Federation, the property necessary for the convicted person or persons who are dependent on him, listed in a special list, could not be confiscated, the court had the right to order the seizure of the property of the state, including the property belonging to the guilty person, which he legally possessed. , that is, it was not received by him as a result of the crime.

Considering that the approach to the interpretation of property confiscation as a criminal punishment that significantly restricts the property rights of the convicted person does not correspond to modern ideas about the content of this criminal sanction, including the provisions of international criminal law on it, Federal Law No. 162-FZ of December 8, 2003 confiscation of property was excluded from the punishment system.

Moreover, in Art. 81 of the Code of Criminal Procedure of the Russian Federation, the provision has been preserved that the court, when passing a sentence, has the right to decide on turning into state revenue as material evidence committed crime property criminally acquired by the guilty person. Such confiscation is also referred to in Art. 315 of the Criminal Code of the Russian Federation. Thus, the confiscation of property illegally belonging to the convicted person could be applied purely as a measure of a criminal procedural nature. However, the Federal Law of July 27, 2006 No. N ° 153-FZ as another measure of a criminal-legal nature, the confiscation of property was again included in the Criminal Code of the Russian Federation.

In accordance with Art. 104.1 of the Criminal Code of the Russian Federation, confiscation of property is a measure of a criminal-legal nature, which consists in the compulsory gratuitous treatment of the property of the state established by the criminal law on the basis of a conviction by a court.

Any income from this property, with the exception of property and income from it, which must be returned to the rightful owner, is also subject to confiscation.

The list of crimes, the proceeds of which are subject to confiscation, is exhaustive (clause "a", part 1 of Art. 104 of the Criminal Code of the Russian Federation) and includes the following offenses: Part 2 of Art. 105, h.h. 2-4 st. 111,

h. 2 tbsp. 126, Art. 127.1, 127.2, part 2 of Art. 141, art. 141.1, part 2 of Art. 142, art. 145.1 (if the crime was committed for mercenary motives), Art. 146, 147, Art. 153-155 (if the crimes were committed for selfish motives), Art. 171.2, 174, 174.1, 183, h.h. 3 and 4 Art. 184, Art. 186, 187, 189, parts 3 and 4 of Art. 204, Art. 205, 205.1, 205.2, 205.3, 205.4, 205.5, 206, 208, 209, 210, 212, 222, 227, 228.1, part 2 of Art. 228.2, Art. 228.4, 229, 231, 232, 234, 240, 241, 242,

1. 258.1, 275, 276, 277, 278, 279, 281, 282.1, 282.2, 283.1, 285, 290, 295, 307-309, 355, part 3 of Art. 359 of the Criminal Code of the Russian Federation, or which are the subject of illegal movement through customs border Of the Customs Union within the EurAsEC or through State border RF with the member states of the Customs Union within the framework of the EurAsEC, the responsibility for which is established by Art. 200.1, 226.1 and 229.1 of the Criminal Code of the Russian Federation;

The following are also subject to gratuitous treatment into the ownership of the state:

• money, valuables and other property, in which the property received as a result of the commission of at least one of the crimes provided for by the articles specified in paragraph "a" of Part 1 of Art. 104.1 of the Criminal Code of the Russian Federation, and the income from this property was partially or completely converted or transformed; (clause "b" part 1 of article 104.1 of the Criminal Code of the Russian Federation);

At the same time, in the Review of Cassation Practice Judicial board on criminal cases of the Supreme Court of the Russian Federation for the second half of 2009, it is indicated that money and other property received as a result of crimes, the guilt of which is established in the manner prescribed by law, is subject to confiscation 3 .

money, valuables and other property used or intended to finance terrorism, an organized group, an illegal armed formation, a criminal community (criminal organization) (clause "c", part 1 of article 104.1 of the Criminal Code of the Russian Federation);

• tools, equipment or other means of committing a crime belonging to the perpetrator (clause "d", part 1 of article 104.1 of the Criminal Code of the Russian Federation).

If it is found that guilty person attached property obtained by criminal means, and (or) the proceeds from this property to the property lawfully acquired by him, then according to Part 2 of Art. 104.1 of the Criminal Code of the Russian Federation, only that part of this property is subject to confiscation, which corresponds to the size (value) of the attached property and income from it.

In some cases, property (or proceeds from it) obtained by a guilty person is in the possession or use of third parties who do not always have information about its true origin. In this regard, the criminal law (part 3 of article 104.1 of the Criminal Code of the Russian Federation) establishes that the property, which is indicated in parts 1 and 2 of Art. 104.1, transferred by a convicted person to another person or organization shall be subject to confiscation if the person who received the property knew or should have known that it was obtained as a result of a crime, i.e. the specified person is a dishonest purchaser of this property or temporarily owns it.

The expenditure of money, the loss or sale of property obtained by criminal means, as well as other reasons that exclude its actual seizure at the time of the decision by the court, do not allow the guilty person to avoid the application of a criminal sanction in the form of confiscation of property. However, in this case, the amount of money belonging to the guilty person, equivalent to the value of the lost property, is subject to compulsory conversion into state revenue (Article 104.1 of the Criminal Code of the Russian Federation). In fact, it can be any property, securities, deposits in a bank or other credit institution, etc.

If the crime is caused material damage to the victim (the legal owner of the property), then he has the right to compensation in accordance with the provisions of the Civil Code of the Russian Federation. In this regard, the compulsory transfer of property belonging to the guilty person to the ownership of the state, on the basis of Art. 104.1 and 104.2 of the Criminal Code of the Russian Federation may complicate the implementation of the legal right of the victim. Taking this into account, the criminal law establishes priority in terms of compensation for damage caused by the crime: according to Art. 104 of the Criminal Code of the Russian Federation, when deciding on the confiscation of property, first of all, the issue of compensation for damage caused to the legal owner must be resolved.

Moreover, if the guilty person, in addition to the property specified in parts 1 and 2 of Art. 104.1 of the Criminal Code of the Russian Federation, there is no other property on which collection can be levied, damage caused to the legal owner is reimbursed from the value of the confiscated property, and the rest of it turns into state revenue (Article 104.1 of the Criminal Code of the Russian Federation).

Thus, being a special measure of a criminal law nature, confiscation of property is applied by the court along with punishment in cases and limits strictly defined by the Criminal Code of the Russian Federation. It significantly complements the coercive potential of the types of punishment applied on the basis of the articles of the Special Part of the Criminal Code of the Russian Federation and thereby ensures the fulfillment of the tasks facing the criminal law.

Literature

1. Russian criminal law. a common part... Album of schemes; Shield-M - Moscow, 2011 .-- 190 p.

2. Penal law; Unity-Dana - Moscow, 2009 .-- 232 p.

3. Penal law; Unity-Dana, Law and Law - Moscow, 2010 .-- 248 p.

4. Criminal Procedure Law; Owl, VKT, AST - Moscow, 2009 .-- 64 p.

5. Criminal law Russia. General and Special parts; Prospect - Moscow, 2011 .-- 807 p.

6. Criminal law of the Russian Federation. A special part; Yurist -, 2012 .-- 672 p.

7. Criminal law. General and Special parts; Norm - Moscow, 2009 .-- 576 p.

8. Criminal law. A special part; Phoenix - Moscow, 2012 .-- 832 p.

9. Criminal law. The special part. Lecture notes in diagrams; A-Prior - Moscow, 2010 .-- 320 p.

10. Belkin AR Criminal process. Collection of tests; RIOR - Moscow, 2010 .-- 272 p.

11. Borovikov VB Collection of problems in angular law. General and Special parts; Yurayt - Moscow, 2010 .-- 336 p.

12. Borovikova V. V., Storublenkova E. G., Kosheleva E. V. Criminal executive law; Shield-M - Moscow, 2013 .-- 184 p.

13. Zhalinsky A. E., Engelgardt A. A. Workshop on criminal law; Gorodets - Moscow, 2011 .-- 496 p.

14. Kochoi S. M. Criminal law. General and Special parts. Short course; Contract, Wolters Kluwer - Moscow, 2010 .-- 404 p.

15. Lazareva VA Proofing in criminal proceedings; Yurayt - Moscow, 2011 .-- 352 p.

16. Lepeshkina OI Death penalty. Comprehensive research experience; Aletheia - Moscow, 2010 .-- 224 p.

17. Malinin VB, Smirnov LB Criminal executive law; Leningradsky State University them. A.S. Pushkin - Moscow, 2009 .-- 324 p.

18. Malinovsky V.V. Organizational activities in the criminal law of Russia (types and characteristics); Prospect - Moscow, 2009 .-- 192 p.

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21. Petrosyan O. Sh. Criminal law and criminological aspects of ensuring financial security states; Unity-Dana, Law and Law - Moscow, 2010 .-- 280 p.

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25. Edited by VP Bozhiev. Criminal procedure; Yurayt - Moscow, 2011 .-- 544 p.

26. Edited by Zagorskiy GI Criminal Procedure Law. Criminal process. Lecture course; Wolters Kluwer - Moscow, 2010 .-- 560 p.

27. Ryzhakov AP Criminal procedure; Business and Service -, 2011. - 512 p.

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1 http://www.pravo.gov.ru.

2 On the practice of using compulsory medical measures by the courts: Resolution of the Plenum of the Supreme Court of the Russian Federation of April 7, 2011 No. 6 // http: // www. vsrf.ru.

3 http://www.vsrf.ru.

• The concept and purpose of punishment
  • Definition and signs of punishment. The difference between criminal punishment and other measures of state coercion
  • Purposes of criminal punishment
  • Effectiveness of punishment
• General principles of sentencing
  • The concept of sentencing
  • The concept and characteristics of the general principles of sentencing, their consideration by the courts when sentencing
  • Imposition of punishment taking into account the principles of sentencing
• Circumstances mitigating and aggravating punishment
  • The concept, legal nature and classification of circumstances mitigating and aggravating punishment
  • Characteristics of individual circumstances mitigating and aggravating punishment
  • Problems of consideration by courts of circumstances mitigating and aggravating punishment
• Determination of the measure of criminal punishment by the court
  • The concept of a measure of criminal punishment in the theory of criminal law
  • The measure of criminal punishment in the law
  • The problem of judicial discretion in determining the measure of criminal punishment
  • Formalization of sentencing
• Imposition of punishment in the presence of a plurality of crimes
  • Rules for imposing punishment in case of recurrence of crimes
  • Rules, principles and limits of imposition of punishment for cumulative crimes
  • Rules, principles and limits of sentencing based on cumulative sentences
• Special rules for the imposition of punishment
  • The concept and types of special rules for the appointment of punishment
  • Features of the imposition of punishment in case of special extenuating circumstances
  • Imposition of punishment if conditions are met pre-trial agreement about cooperation
  • Appointment more mild punishment than prescribed by law for the crime
  • Imposition of Sentence Upon Jury Condescending Verdict
  • Features of imposing punishment for an unfinished crime
  • Features of imposing punishment for a crime committed with complicity
  • Imposition of a Lighter Punishment Due to the Retroactive Effect of the Criminal Law
  • Imposition of punishment for special order adopting judgment with the consent of the accused with the charge brought against him
• Specifics of Imposing Punishments Not Associated with Deprivation of Liberty
  • Limits of application of punishments not related to deprivation of liberty
  • Appointment of a fine
  • The appointment of deprivation of the right to hold certain positions or engage in certain activities
  • Appointment of deprivation of a special, military or honorary title, class rank and state awards
  • Appointment compulsory works
  • Appointment correctional labor
  • Specifics of assigning restrictions on military service
  • Imposition of Punishment in the Form of Restriction of Freedom
• Specifics of imposing penalties associated with deprivation of liberty, and death penalty
  • Imposition of punishment in the form of arrest
  • Features of the appointment of punishment in the form of detention in a disciplinary military unit
  • Sentence of imprisonment
  • The Limits of the Application of the Death Penalty and Their Limitations
• Problems of sentencing minors
  • The system of punishment for minors
  • Features of sentencing minors
  • The system of compulsory educational measures
• Problems of Appointment of Criminal Measures
  • Other measures of a criminal-legal nature
  • Appointment of a suspended sentence
  • Postponement of serving a sentence
  • Prescribing Compulsory Measures of a Medical Nature
  • Appointment of confiscation of property

Other measures of a criminal-legal nature

Criminal liability includes measures of coercive influence provided for by the criminal law that restrict legal status a person found guilty of committing a crime - criminal measures.

The main form of implementation of criminal liability is punishment, i.e. a criminal-legal measure of state coercion, imposed by a court verdict, applied to a person found guilty of a crime, and consisting in the deprivation or restriction of the rights and freedoms of this person provided for by the Criminal Code of the Russian Federation.

When a person is convicted for a criminal offense committed by nm, the law provides for the possibility of applying measures of a criminal legal nature, other than punishment, but also involving the deprivation of the convicted person of certain rights: for example, conditional conviction, deferral of serving the sentence. Such measures, like punishment, are applied in order to restore social justice, as well as to correct the convicted person and prevent the commission of new crimes; At the same time, the rights of the convicted person are subject to significant restrictions provided for by the criminal and penal legislation, and the conduct of the convicts is monitored by specialized bodies.

These measures have some similarities with criminal punishment, since:

1. are appointed exclusively by court verdict.
2. apply to persons subject to criminal liability, whose guilt in committing a crime was established by a court verdict:
3. are provided for by the criminal and penitentiary legislation depriving or restricting the rights and freedoms of the guilty person.

At the same time, such measures of a criminal-legal nature cannot be equated with punishment: they are not included in the punishment system, are not named in the sanctions of the articles of the Special Part; their application is associated with a preliminary sentencing, the execution of which is postponed for certain conditions, in case of non-observance of which, it is possible to cancel the named criminal-legal measures with the direction of the person to serve the sentence imposed by the court.

Federal Law No. 153-FZ of July 27, 2006 "On Amendments to Certain Legislative Acts of the Russian Federation in Connection with the Adoption of the Federal Law" On Ratification of the Council of Europe Convention on the Prevention of Terrorism "and the Federal Law" On Countering Terrorism ", Section VI of the Criminal Code of the Russian Federation received the name "Other measures of a criminal-legal nature" and was supplemented by chapter 15.1 "Confiscation of property" 1 The draft of this section was prepared under the guidance of Academician V.N. Kudryavtsev in 2004. In addition to the provisions on confiscation of property, this chapter was supposed to include provisions on restitution, as well as on a fund for support of victims of crime, to which the proceeds of the confiscation would be channeled.... Thus, the existence of an independent criminal-legal institution - other measures of a criminal-legal nature, to which, in addition to confiscation of property, compulsory measures of a medical nature are attributed, is legislatively formalized. The legislator, having introduced a new criminal legal institution, abandoned the construction of a norm-definition of other measures of a criminal-legal nature, at present this concept is being actively developed by representatives of the science of criminal law.

Similar to punishment, other measures of a criminal law nature:

1. provided for by the Criminal Code;
2. apply to persons who have committed a criminal offense;
3. are compulsory.

However, compulsory measures of a medical nature and confiscation of property refer precisely to other measures of a criminal legal nature due to the specifics of the circle of persons to whom they can be assigned, the content, grounds, purposes and timing of their application, as well as their criminal legal consequences. Other measures of a criminal-legal nature may be a form of implementation of criminal liability, but may not be related to it.

Other measures of a criminal-legal nature can be applied both to convicted persons and to persons whose guilt has not been established by a conviction of a court, and even to persons who cannot bear criminal responsibility (for example, those who have committed a crime in a state of insanity), and therefore such measures are not always forms of implementation of criminal liability, acting outside of it. They can be applied not “for”, but “in connection” with the committed criminal act.

The basis for the application of other measures of a criminal-legal nature is not only the conviction of the court, but also other court decisions. It is also fundamental that other measures of a criminal-legal nature, in contrast to all criminal-legal measures provided for by criminal law, can be appointed independently, i.e. not combined with punishment.

Other measures of a criminal-legal nature are not punishment and do not set as their task the correction of a person. They may consist in providing the person who has committed a criminal act, medical care, including in the conditions of serving a sentence, in its isolation, if this person poses a threat to others, in the return of property to the rightful owner or compensation for damage caused to him, etc. The criminal institution of property confiscation, in addition, is intended to serve the purposes of countering the financing of terrorism and organized criminal structures. Thus, the purposes of applying other measures of a criminal-legal nature are the restoration of social justice (including the protection of the interests of society and its members) and private prevention.

The content and purposes of applying other measures of a criminal-legal nature also determine the fact that the law, as a rule, does not establish deadlines for their application. Both compulsory measures of a medical nature and confiscation of property can be applied until their immediate goals are achieved: the cure of the convicted person and the seizure of property unlawfully held by the person who committed the crime.

Finally, unlike punishment and typical criminal law measures, the application of other measures is not related to a criminal record. So, the criminal record is legal implication application of any type of punishment, persons serving a suspended sentence, deferral, etc. are recognized as convicted. The appointment of other measures of a criminal-legal nature does not give rise to a criminal record, as well as the cancellation or removal of the latter in connection, for example, with the served sentence, does not serve as an obstacle to the execution of certain compulsory medical measures or the confiscation of property.

Thus, other measures of a criminal-legal nature form an independent institution of criminal law, which has received legislative confirmation.

Federal Law No. 153-FZ of July 27, 2006 "On Amendments to Certain Legislative Acts of the Russian Federation in Connection with the Adoption of the Federal Law" On Ratification of the Council of Europe Convention on the Prevention of Terrorism "and the Federal Law" On Countering Terrorism ", Section VI of the Criminal Code received the title "Other measures of a criminal-legal nature" and supplemented by Ch. 15.1 "Confiscation of property". Thus, the existence of an independent criminal law institution is legally formalized - other measures of a criminal-legal nature, which, in addition to confiscation of property, include compulsory measures of a medical nature.

In the heated scientific discussion about the legal nature, special features of other measures of a criminal-legal nature, their list, correlation with criminal liability and criminal punishment, not only contradictory, but also mutually exclusive opinions were expressed. Many scholars categorically object to the emergence of a new criminal law institution, considering it far-fetched, artificial, unjustified (A.P. Kozlov, V.B. Malinin).

The legislator, having introduced a new criminal legal institution, refused to construct a norm-definition of other measures of a criminal-legal nature, at present this concept is being actively developed by representatives of the science of criminal law, while (and quite expectedly) there is no common understanding of other measures of a criminal-legal nature ...

Combines these measures formal feature- them criminal provision(General part of the Criminal Code of the Russian Federation). This is state, compulsory measures. The application of any measure of a criminal-legal nature is in the exclusive competence of the court.

Federal Law No. 14-FZ of February 29, 2012, included in the Criminal Code of the Russian Federation compulsory medical measures applied to persons suffering from a sexual preference disorder (pedophilia) that does not exclude sanity. The specified type of medical measures is applied at the request or with the consent of the convicted person, however, the convicted, expressing their consent to the use of such measures, are in conditions limited freedom will; in fact they compelled to agree... In this regard, the application (especially the execution procedure) of a medical measure does not lose its compulsory character, just as the very name of the treatment is compulsory.

Coercive nature measures of a criminal law nature emphasizes that the appointment and implementation of such measures is carried out whatever the will the person concerned (although not necessarily in spite of it).

Other measures of a criminal-legal nature are not characterized by the presence of a punitive component.

Other measures of a criminal-legal nature are not punishment and do not set as their task the correction of a person. They can consist in providing a person who has committed a criminal act, medical assistance, including in the conditions of serving a sentence, in his isolation, if this person poses a threat to others, returning property to the rightful owner or compensation for damage caused to him, etc. In addition, the criminal-legal institution of property confiscation is intended to serve the purposes of countering the financing of terrorism, extremism and organized criminal structures. Thus, the purposes of applying other measures of a criminal-legal nature are the restoration of social justice (including the protection of the interests of society and its members) and private prevention.

The content and purposes of applying other measures of a criminal-legal nature also determine the fact that the law, as a rule, does not establish deadlines for their application. Both compulsory measures of a medical nature and confiscation of property can be applied until their immediate goals are achieved: the cure of the convicted person and the seizure of property unlawfully held by the person. Moreover, these are the only measures provided by the criminal law, the term of application of which is not limited.

Unlike punishment and typical criminal law measures, the application of other measures is not related to a criminal record. Thus, a criminal record is a legal consequence of the application of any type of punishment; Persons serving a suspended sentence, deferral, etc. are recognized as convicted. The appointment of other measures of a criminal-legal nature does not give rise to a criminal record; as well as the repayment or withdrawal of the latter in connection, for example, with the served sentence, does not serve as an obstacle to the execution of certain compulsory measures of a medical nature or confiscation of property.

The basis for the application of other measures of a criminal-legal nature is not only the conviction of the court, but also other court decisions. It is also fundamental that other measures of a criminal-legal nature, in contrast to all other criminal-legal measures provided for by criminal law, can be appointed independently, i.e. not combined with punishment.

Consequently, we can distinguish the following signs of other measures of a criminal law nature:

1. May be imposed by a conviction or other decision of the court;

2. Appointed in connection with the commission of a socially dangerous act or crime, both to the persons who committed them, and in cases provided for by law - in relation to third parties;

4. Do not have a compensatory character, do not provide for deprivation or restriction of the rights and freedoms of the addressee;

5. Do not entail convictions and other legal consequences;

6. The purposes of applying other measures of a criminal-legal nature are the restoration of social justice (including the protection of the interests of society and its members) and private prevention, as well as other special purposes;

7. The law, as a rule, does not establish deadlines for their application.

Another measure of a criminal-legal nature can be defined as a non-punitive measure of state coercion provided by the criminal law, imposed by a court decision in connection with the commission of a socially dangerous act or crime, both in relation to the persons who committed them, and in cases provided for by law - in relation to third parties ... The measure of a criminal-legal nature is applied in order to restore social justice, prevent the commission of new crimes and other special purposes.

Compulsory medical measures

A person who has reached the age of criminal responsibility, committing an act prohibited by a specific norm of the criminal law, inevitably enters into a special relationship with the state, which is of a criminal-legal nature. The appearance in the Criminal Code of the Russian Federation of an independent chapter 15 "Compulsory Measures of a Medical Nature" was generally met with approval. Moreover, as many experts correctly note, compulsory medical measures provided for by the criminal law are currently the only means of influencing socially dangerous persons suffering from mental illness.

In its Resolution No. 13-P of November 20, 2007, the Constitutional Court of the Russian Federation expressed a position according to which the provisions of international acts (the Convention for the Protection of Human Rights and Fundamental Freedoms (subparagraph "c" of clause 3 of Art. 6), Principles of protection mentally ill persons and the improvement of mental health care (adopted on December 17, 1991 by UN General Assembly Resolution 46/119), recommendations of the Parliamentary Assembly of the Council of Europe 818 (1977) “On the situation of the mentally ill”, recommendations of the Committee of Ministers of the Council of Europe No. R (83) 2 “Regarding the Legal Protection of Persons with Mental Disorders Who Have Been Compulsory Hospitalized”, Rec (2004) 10 “Concerning the Protection of the Human Rights and Dignity of Persons with Mental Disorders”) correspond to the provisions of the RF Law of July 2, 1992 No.

"On psychiatric care and guarantees of the rights of citizens in its provision", according to Part 1 of Art. 5 which persons suffering from mental disorders have all the rights and freedoms of citizens provided for by the Constitution of the Russian Federation and federal laws; restriction of the rights and freedoms of citizens associated with a mental disorder is permissible only in cases provided for by the laws of the Russian Federation, as follows from Art. 55 (part 3) of the Constitution of the Russian Federation.

The need to be guided when deciding selected issues related to the use of compulsory medical measures, the provisions of the legislation of the Russian Federation on the protection of the health of citizens, Federal Law of May 31, 2001 No. 73-FZ "On State forensic activity in the Russian Federation ", Federal Law of May 7, 2009 No. 92-FZ" On ensuring the protection of psychiatric hospitals (hospitals) of a specialized type with intensive supervision ", as well as other regulatory legal acts, including the Resolution of the Government of the Russian Federation of February 6, 2004 . No. 54 "О medical examination convicts who are being presented for release from punishment due to illness ", the order of the Ministry of Health and social development RF and the Ministry of Justice of the RF dated October 17, 2005 No. 640/190 "On the procedure for organizing medical assistance to persons serving sentences in places of deprivation of liberty and those in custody" was drawn attention to paragraph 1 of the Resolution of the Plenum of the Supreme Court of the RF on April 7, 2011. No. 6 "On the practice of using the courts of compulsory medical measures."

Compulsory measures of a medical nature, without being a punishment, do not pursue the goal of correcting a person who has committed a socially dangerous act: they consist in providing such a person with the necessary medical care, and therefore such measures are not a form of implementation of criminal liability. Moreover, these measures can be applied to persons who are not subject to criminal liability due to their insanity at the time of the crime.

Execution order compulsory measures of a medical nature are determined by the criminal-executive legislation of the Russian Federation and other federal laws and by-laws issued in accordance with them regulations.

Grounds for application compulsory measures of a medical nature are exhaustively named in Art. 97 of the Criminal Code of the Russian Federation.

These include:

1. Legal basis- the commission by a person of a socially dangerous act provided for by articles of the Special Part of the Criminal Code of the Russian Federation;

2. Medical and social basis - the presence of a socially dangerous mental disorder in this person, associated a) with the possibility of causing this person other significant harm, or b) with danger to himself or other persons. In relation to persons who have committed a socially dangerous act (crime), but do not pose a danger in their mental state, the court may transfer the necessary materials to the health authorities to resolve the issue of treatment or send them to a neuropsychiatric social security institution in the manner prescribed by the Law of the Russian Federation "On Psychiatric assistance and guarantees of the rights of citizens in its provision ”(part 4 of article 97 of the Criminal Code of the Russian Federation).

As noted in the Resolution of the Constitutional Court of the Russian Federation of 05/21/2013 No. 10-P, European Court of Justice on human rights believes that the legislator is not obliged to comprehensively explain the concept of "danger to himself or others", since it is hardly possible to cover in the law all the variety of conditions that include psychiatric risks, especially if the law requires the courts to check all cases of involuntary placement in a psychiatric hospital on the basis of medical evidence, which is an important safeguard against arbitrariness (judgment of 28 October 2003 in the case of Rakevich v. Russia).

According to Part 4 of Art. 97 of the Criminal Code of the Russian Federation in relation to persons who have committed a socially dangerous act (crime) and non-hazardous due to its mental state, the court may transfer the necessary materials to federal body executive power in the field of health care or the executive body of the constituent entity of the Russian Federation in the field of health care to resolve the issue of treating these persons in medical organization providing psychiatric care, or referring these persons to inpatient social service institutions for persons suffering from mental disorders, in accordance with the procedure established by legislation in the field of health protection.

In accordance with the previously effective Part 2 of Art. 443 of the Code of Criminal Procedure of the Russian Federation in the event that a person does not pose a danger due to his mental state or he has committed an act of minor gravity, the court should have issued a resolution to terminate the criminal case and to refuse to apply compulsory medical measures (according to Part 2 of Art.15 of the Criminal Code of the Russian Federation crimes of small gravity are deliberate and negligent acts, for the commission of which the maximum punishment provided for by the Criminal Code does not exceed three years in prison).

Resolution of the Constitutional Court of the Russian Federation of May 21, 2013 No. 10-P “In the case of checking the constitutionality of parts two and four of Article 443 of the Criminal Procedure Code of the Russian Federation in connection with the complaint of citizen S.A. Pervova and the request of the magistrate judicial area No. 43 of the city of Kurgan "provisions of parts 2 and 4 of Art. 443 of the Code of Criminal Procedure of the Russian Federation were recognized as inconsistent with the Constitution of the Russian Federation, namely: its Articles 19 (parts 1 and 2), 21, 41 (part 1), 45, 46 (parts 1 and 2), 52 and 123 (part 1 and 2). 3), to the extent that in the system of the current legal regulation they exclude the possibility for the court to prescribe compulsory measures of a medical nature to a person who has committed an act prohibited by the criminal law, classified as a crime of minor gravity in a state of insanity, and at the same time posing a danger due to its mental state for yourself or others.

The Constitutional Court of the Russian Federation indicated that the refusal to apply compulsory measures of a medical nature is allowed only if the person, due to the improvement of his mental state, has lost the danger to himself and others; in all other cases, compulsory medical measures shall be applied to persons who have committed acts prohibited by the criminal law in a state of insanity, in accordance with the recommendations of forensic psychiatrists (Articles 99-102 of the Criminal Code of the Russian Federation).

Noting that the provisions of the Criminal Procedure Code of the Russian Federation must be consistent with the provisions of the Criminal Code of the Russian Federation, which provide - taking into account the goals and objectives of the criminal legislation - the grounds and purpose of applying compulsory medical measures for committing acts prohibited by criminal law, the types of such measures, the extension, amendment and termination of their application (Articles 21, 97-102), the Constitutional Court came to the conclusion: “... the defectiveness of the second part of Article 443 of the Criminal Procedure Code of the Russian Federation, its inconsistency both with other provisions of this Code and with the provisions of the Criminal Code of the Russian Federation - the only law that forms criminal legislation, which determine the criminal-legal consequences of committing an act prohibited by criminal law, generate uncertainty that does not allow for a uniform understanding and interpretation legal regulations, creates a contradictory law enforcement practice which leads to a violation constitutional principle equality, endangers the inviolability of the person, his honor and dignity, the right to life and health protection ”.

In addition, the provisions of Part 2 of Art. 443 of the Code of Criminal Procedure of the Russian Federation, obliging the court to refuse to apply compulsory measures of a medical nature, “not only knowingly predetermine the court's decision, but also, in essence, make the trial useless (meaningless) from the point of view of protecting both the rights and legitimate interests of the victims in connection with the threatening the danger of repeated encroachments by a person who has already committed an act prohibited by criminal law in a state of insanity, and the rights and legitimate interests of persons who, by their mental state, pose a danger to themselves or others, and therefore need treatment, albeit compulsory. "

Thus, the legal and medico-social grounds for the application of compulsory measures of a medical nature named in the criminal law (Art. 97 of the Criminal Code) can be attributed to the number of formal. Material the basis for the application of the investigated measures is the social (social) danger of a mentally ill person who has committed a criminal offense.

The nature of the mental disorder (disease) and the time of its onset determine four categories of persons in respect of whom compulsory medical measures can be applied, which include persons:

a) committed socially dangerous acts in a state of insanity.

In this case, it is necessary to establish that the person was deprived of the opportunity to realize the actual nature and social danger of his actions (inaction) or to direct them due to a chronic mental disorder, temporary mental disorder, dementia or other morbid state of the psyche. Such a person is not subject to criminal liability (part 1 of article 21 of the Criminal Code of the Russian Federation);

b) persons who, after committing a crime, have a mental disorder that makes it impossible to assign or execute punishment.

At the same time, a mental disorder has the same signs as insanity, however, the person guilty of a crime can act as a subject of criminal responsibility. A person who, after committing a crime, has a mental disorder that deprives him of the opportunity to realize the actual nature and social danger of his actions (inaction) or to control them, is released from punishment, and the person serving a sentence is released from further serving it, but in case of recovery he may be subject to criminal liability and punishment, if the statute of limitations has not expired (parts 1 and 3 of Art. 81, Art. 83 of the Criminal Code of the Russian Federation), taking into account the time during which compulsory treatment was applied;

c) persons who have committed a crime and suffer from mental disorders that do not exclude sanity;

d) who committed a crime against the sexual inviolability of a minor under the age of fourteen years of age over the age of eighteen, and who suffer from a disorder of sexual preference (pedophilia) that does not exclude sanity.

Pedophilia is a mental disorder, one of the many sexual deviations (deviations). Individuals with this disease are called pedophiles. According to the Tenth Revision (ICD-10) of the International Classification of Diseases (ICD), it belongs to class V as one of the disorders of sexual preference (code F65.4). According to the footnote to Art. 73 of the Criminal Code of the Russian Federation, crimes against the sexual inviolability of minors under the age of fourteen include crimes provided for in Articles 131 - 135, 240, 241, 242.1 and 242.2 of the Criminal Code of the Russian Federation, committed against minors under the age of fourteen.

These 9 articles combine 17 corpus delicti (including qualified ones), of which 13 relate to especially grave crimes, 3 - to grave, 1 - to crimes of medium gravity (part 2 of Art. 133 of the Criminal Code of the Russian Federation): Part 4-5 of Art. 131 (“Rape”); h. 4-5 art. 132 (“Violent acts of a sexual nature”); h. 2 tbsp. 133 (“Coercion to conduct of a sexual nature”); h. 3-6 art. 134 (“Sexual intercourse and other actions of a sexual nature with a person under the age of sixteen”); h. 2-5 art. 135 ("Lecherous acts"); h. 3 tbsp. 240 (“Involvement in prostitution”); h. 3 tbsp. 241 (“Organization of prostitution”); h. 2 tbsp. 242.1 ("Production and circulation of materials or items with pornographic images of minors"); h. 2 tbsp. 242.2 ("Use of a minor for the production of pornographic materials or objects").

A person suffering from a mental disorder is not generally or adequately aware of the punitive and educational significance of the impact of criminal liability measures. The presence of a mental disorder that does not exclude sanity is established by the court on the basis of the conclusion of a forensic psychiatric examination.

In accordance with the requirements of paragraph 3 of Article 196 of the Code of Criminal Procedure of the Russian Federation for each criminal case, the appointment and production of a forensic psychiatric examination is mandatory if it is necessary to establish the mental state of the suspect, the accused, the defendant, when there is doubt about his sanity or ability to independently defend his rights and legitimate interests in criminal proceedings.

Circumstances giving rise to such doubts may include, for example, the existence of evidence that a person has received psychiatric care in the past (he was diagnosed with a mental disorder by doctors, he was provided with outpatient psychiatric care, he was placed in a psychiatric hospital, was declared insane by another criminal case unfit for military service for reasons of mental health, etc.), about his being on training in an institution for persons with a delay or lag in mental development, about the fact that he received craniocerebral injuries in the past, as well as strangeness in the actions and statements of a person, indicating the possible presence of a mental disorder, his own statements about the painful (psychopathological) experiences he is experiencing, etc. (clause 6 of the Resolution of the Plenum of the Supreme Court of the Russian Federation April 7, 2011 No. 6).

If during the trial during the forensic psychiatric examination it is established that the defendant has a temporary mental disorder, in which it is not possible to give a conclusion about his mental state during the commission of a socially dangerous act, then the proceedings shall be suspended in accordance with part 3 of article 253 of the Criminal Procedure Code of the Russian Federation. The issue of releasing such a person from criminal liability or punishment in these cases is not resolved.

In accordance with Art. 443 part 2 of the Code of Criminal Procedure of the Russian Federation, if a person does not pose a danger in terms of his mental state, the court issues a resolution to terminate the criminal case and to refuse to apply compulsory medical measures.

The goals of applying compulsory medical measures differ from the goals of applying punishment: the use of compulsory medical measures pursues medical and legal purposes , named in Art. 98 of the Criminal Code of the Russian Federation.

Medical purposes involve the elimination of the medico-social basis for the use of compulsory measures of a medical nature - the presence of a socially dangerous mental disorder associated with the possibility of this person causing new significant harm or danger to himself or others, that is cure such persons or improving their mental state.

The cure should be understood as the complete disappearance of a socially dangerous mental disorder. In this case, the person to whom compulsory medical measures were applied is recognized as completely mentally healthy and therefore not in need of psychiatric help.

However, a complete cure of persons suffering from socially dangerous mental disorders is not always achievable (due to imperfection of the treatment method or the means used, due to the severity of the mental disorder, etc.), therefore, improvement of the patient's mental state has been identified as the goal of applying medical measures. ... It should be understood as the achievement of such a mental state that would minimize the likelihood of these persons committing new socially dangerous acts, or causing other harm to law-protected relations.

The legal purpose of using compulsory medical measures is to prevent them from committing new socially dangerous acts and to protect society from them.

Achievement legal purpose is ensured by the differentiation of compulsory measures: compulsory treatment can be carried out in psychiatric hospitals of various types, involving several levels of observation of a person and his isolation (compulsory treatment in a general or specialized psychiatric hospital, including with intensive supervision), outpatient compulsory observation and treatment are also provided from a psychiatrist.

Thus, compulsory medical measures are criminal law measures of state coercion, assigned by a court decision to persons suffering from socially dangerous mental disorders who have committed a socially dangerous act provided for by the Criminal Code of the Russian Federation, consisting in compulsory psychiatric treatment, in order to cure such persons or properly improve their mental state, as well as restoration of social justice.

Compulsory measures of a medical nature are not a form of implementation of criminal liability and can be applied both outside of it and along with it.

Types of compulsory medical measures legally established in Art. 97 of the Criminal Code:

a) compulsory observation and treatment by a psychiatrist on an outpatient basis;

b) compulsory treatment in a medical organization providing psychiatric care in inpatient conditions, of a general type;

c) compulsory treatment in a medical organization providing psychiatric care in inpatient conditions, of a specialized type;

d) compulsory treatment in a medical organization providing psychiatric care in inpatient conditions, of a specialized type with intensive supervision.

The criterion for the classification of compulsory medical measures of the Criminal Code of the Russian Federation, therefore, is the type of organization in which compulsory treatment is carried out.

The list of compulsory measures is exhaustive.

Thus, the criminal law provides for two groups of measures:

1. Associated with the placement of a person in a medical organization providing psychiatric care;

2. Associated with observation and treatment by a psychiatrist on an outpatient basis.

Compulsory observation and treatment by a psychiatrist on an outpatient basis can be appointed if the person, due to his mental state, does not need to be placed in a medical organization that provides psychiatric care in inpatient conditions (Article 100 of the Criminal Code of the Russian Federation), i.e. does not require constant monitoring of him due to predictable behavior. Unlike outpatient psychiatric care, which is provided exclusively at the request or with the consent of the patient, the basis for the application of the considered compulsory medical measure is a court ruling (ruling).

Outpatient care, depending on medical indications, is provided in the form of consultative and medical care or dispensary observation. The list of necessary medical and rehabilitation measures is determined by the treating staff based on medical indications. Dispensary observation of the patient's condition is carried out through regular examinations by a psychiatrist and providing the patient with the necessary medical and social assistance.

In the case of compulsory observation and treatment by a psychiatrist on an outpatient basis when prescribed in the form of compulsory labor, arrest or imprisonment, the execution of a compulsory medical measure shall be assigned to the administration and psychiatrists of institutions executing these types of punishments. In the penal system, in particular, specialized correctional facilities- medical correctional colonies staffed with medical personnel capable of providing such treatment. The time spent in these institutions is included in the term of serving the sentence (part 3 of article 104 of the Criminal Code of the Russian Federation).

In other cases, outpatient psychiatric care for convicts is provided by medical organizations. state system health care providers, providing psychiatric care on an outpatient basis, at the place of residence (registration) of the convict. The court, when choosing the measure under consideration for a person who has not been sentenced to imprisonment, takes into account the peculiarities of its execution, which imply the voluntary appearance of a person suffering from a mental disorder in medical institution and medical adherence. The application of this measure is not mandatory: the court, after assessing the mental state of a person, has the right to transfer him to the care of relatives or guardians on the condition of compulsory medical supervision in a medical organization providing psychiatric care at the place of residence (in a neuropsychiatric dispensary, office, etc.).

If there is no longer any need for further treatment of the convict in these institutions, the discharge is made in the manner prescribed by the legislation of the Russian Federation in the field of health protection. When the mental state of a convict requiring treatment in a hospital is changed, the placement of a convict in a medical organization providing psychiatric care in a hospital or another medical organization shall be carried out in the manner and on the grounds provided for by legislation in the field of health protection.

Compulsory observation and treatment by a psychiatrist on an outpatient basis is the only medical measure used along with punishment: it can be prescribed to persons convicted of crimes committed in a state of sanity, but needing treatment for mental disorders.

The termination of the application of a compulsory measure of a medical nature, combined with the execution of the punishment, is made by the court on the proposal of the body executing the punishment, on the basis of the conclusion of the commission of psychiatrists.

Compulsory treatment in a medical organization providing psychiatric care in an inpatient setting, can be prescribed if the nature of the person's mental disorder requires such conditions of treatment, care, maintenance and observation that can only be carried out in a stationary setting.

At the same time, treatment in a medical organization providing psychiatric care in inpatient conditions, general type assigned to a person who, due to his mental state, needs inpatient treatment and observation, but does not require intensive observation; specialized type- a person who, due to his mental state (due to, for example, imbalance of the face, tendency to escape, etc.) requires constant monitoring; specialized type with intensive supervision- a person who, due to his mental state (characterized by cruelty, a tendency to violent actions, sadism, etc.), presents a particular danger to himself or to others and requires constant and intensive observation. The choice of the type of medical organization that provides psychiatric care in inpatient conditions, which is necessary in each specific case, is decided by the court, taking into account the criterion of ensuring the safety of the person subject to hospitalization and other persons, while respecting his rights and legitimate interests.

To a medical organization providing psychiatric care in inpatient conditions, common type are placed patients who, due to their mental state, do not pose a danger to themselves or others, but in need of hospital maintenance and compulsory treatment, which does not require intensive observation. In such a medical organization, both persons sent there by a court ruling and patients admitted by a doctor's referral in the usual manner are treated. The concept of "inpatient conditions" in this case means any of the system of medical organizations that provide psychiatric care.

A general-type medical organization providing psychiatric care in inpatient conditions should be understood as a department of the usual (district, city, regional) psychiatric hospital or another similar medical organization providing inpatient psychiatric care to all citizens living in the served area. Compulsory treatment is not the main function of this department. Such a department can be both narrowly specialized (adolescent, suicidological, etc.), and general psychiatric, providing inpatient treatment for patients with various mental disorders.

Persons placed in medical organizations providing psychiatric care in inpatient conditions, with specialized type and specialized type with intensive supervision, are under protection in order to exclude the possibility of committing new socially dangerous acts. Specialized hospitals are inpatient psychiatric organizations, and are intended solely for the implementation of compulsory treatment.

In accordance with parts 3 and 4 of Art. 101 of the Criminal Code of the Russian Federation in medical organizations providing psychiatric care in inpatient conditions, of a specialized type, as well as of a specialized type with intensive supervision, only persons are placed who, according to their mental state, require constant monitoring, respectively, or pose a particular danger to themselves or others and require constant and intensive observation.

As noted, coercive measures of a medical nature can only be applied by a court.

Proceedings in such cases are carried out by the court on the basis of the provisions of Ch. 51 of the Criminal Procedure Code. Having found it proven that an act prohibited by the criminal law was committed by this person in a state of insanity, or that after committing a crime, this person has a mental disorder that makes it impossible to impose a punishment or its execution, the court issues a resolution to release this person from criminal liability or from punishment and to apply to him compulsory medical measures.

According to Art. 442 of the Code of Criminal Procedure of the Russian Federation during the trial in a criminal case, the following issues must be investigated and resolved:

1) whether there has been an act prohibited by the criminal law;

2) whether the act was committed by the person in respect of whom the given criminal case is being considered;

3) whether the act was committed by a person in a state of insanity;

4) did it happen of this person after the commission of a crime, a mental disorder that makes it impossible to impose a punishment or its execution;

5) whether the mental disorder of the person poses a danger to him or other persons, or whether it is possible for the person to cause other significant harm;

6) whether a compulsory measure of a medical nature is subject to application and which one.

Determination by the court of a specific type of compulsory medical measure depends, first of all, on the mental state of the person in respect of whom this decision is made, and his need for the appropriate form and treatment regimen.

The mental state is established by conducting forensic psychiatric examinations (chap. 28 and art. 283 of the Criminal Procedure Code), the procedure for which is regulated by federal legislation and regulations of federal executive bodies. In addition, the social danger of the person and the severity of what he has done are taken into account as indicators of the mental state.

As noted in paragraph 4 of the Resolution of the Plenum of the Supreme Court of the Russian Federation on April 7, 2011 No. 6, the type of compulsory medical measure is chosen by the court taking into account the provisions of Part 2 of Article 99, Articles 100 and 101 of the Criminal Code of the Russian Federation. When determining the type of compulsory medical measure in relation to the persons specified in paragraphs "a", "b" of part 1 of Article 97 of the Criminal Code of the Russian Federation, the courts should take into account the nature and degree of mental disorder, the person's danger to himself and other persons or the possibility of causing them to another significant harm. The court must motivate the decision on the basis of an assessment of the expert's (experts') opinion on the mental state of the person in respect of whom the proceedings on the application of a compulsory medical measure are being conducted, and other evidence collected in the case.

In the ruling, the court indicates the type of compulsory medical measure in accordance with part 1 of Article 99 of the Criminal Code of the Russian Federation. It is the responsibility of the health authorities to determine the specific psychiatric institution where treatment is to be provided.

The application of compulsory measures of a medical nature, at first glance, is a right, and not an obligation of the court, which independently evaluates as the presence legal basis in order and appropriateness of the appointment. However, it appears that the non-application of compulsory psychiatric treatment to persons who have committed socially dangerous acts, representing a public danger, will testify to the erroneousness of the court decision. Consequently, the application of such measures is imperative.

The terms for the application of compulsory medical measures are not indicated in the court ruling, and their duration depends entirely on the mental state of the patient. The further process of applying coercive measures of a medical nature, the duration of which is limited only by the achievement of the goals of applying coercive measures, is under judicial control.

Renewal, modification and termination the application of compulsory medical measures is carried out exclusively by the court on the proposal of the administration of the medical organization carrying out compulsory treatment, or the criminal executive inspectorate, which controls the use of compulsory medical measures, on the basis of the opinion of the commission of psychiatrists.

A person who has been assigned a compulsory measure of a medical nature is subject to regular examination by a commission of psychiatrists, the frequency of which is established by Part 2 of Art. 102 of the Criminal Code of the Russian Federation - at least once every six months. The purpose of the examination is to resolve the issue of the existence of medical grounds for making a submission to the court to terminate the application or to change such a measure.

The examination is carried out both at the initiative of the attending physician and at the request of the person himself, his legal representative and (or) a close relative. The application is submitted through the administration of a medical organization that carries out compulsory treatment, or the criminal executive inspectorate that controls the use of compulsory medical measures, regardless of the time of the last examination. The person who applied with the petition is informed about the decision of the commission, which can be appealed in accordance with the established procedure.

In the absence of grounds for termination of the application or change of a compulsory medical measure, the administration of a medical organization carrying out compulsory treatment or the Criminal Execution Inspectorate shall submit to the court an opinion for the extension of compulsory treatment. In other words, the court extends compulsory medical measures on the same grounds, which is what assigns them.

First prolongation of compulsory treatment is carried out after six months from the start of treatment, then the extension of compulsory treatment is carried out annually, while the examination of the patient by a commission of psychiatrists is still carried out at least once every six months.

According to Part 2.1 of Art. 102 of the Criminal Code of the Russian Federation (introduced by the Federal Law of February 29, 2012 No. 14-FZ), regardless of the time of the last examination and the decision to terminate the application of compulsory medical measures, the court on the basis of a petition made no later than six months before the expiration of the sentence the administration of the institution executing the sentence, appoints a forensic psychiatric examination in relation to the person specified in paragraph "d" of Part 1 of Art. 97 of the Criminal Code, in order to resolve the issue of the need to apply compulsory medical measures to him during the period of parole or during the period of serving a milder type of sentence, as well as after serving the sentence. The court, on the basis of the conclusion of a forensic psychiatric examination, may prescribe a compulsory measure of a medical nature, provided for in paragraph "a" of Part 1 of Art. 99 of the Criminal Code, or stop using it.

Change of a compulsory measure of a medical nature presupposes the replacement of the measure to be performed with another one corresponding to the psychiatric state of the person, due to a significant change in the patient's state of health.

If in the mental state of a person in respect of whom a compulsory measure of a medical nature in the form of compulsory observation and treatment by a psychiatrist on an outpatient basis has occurred changes related to the need to place such a person in a medical organization providing psychiatric care in an inpatient setting, the court has the right to change the type of compulsory medical measure in accordance with part 1 of Article 99 of the Criminal Code of the Russian Federation, when there is evidence that the nature of a person's mental disorder requires such conditions of treatment, care, maintenance and observation that can only be carried out in stationary conditions. The decision must indicate the circumstances indicating that the mental state of the person after the compulsory medical measure was applied to him changed, and he began to pose an increased danger to himself or to others. The decision is made in the manner prescribed by article 445 of the Criminal Procedure Code of the Russian Federation.

The basis for changing the type of compulsory medical measures, therefore, is a change in the degree of public danger of a mentally ill person, due to which there is no need to apply a previously prescribed medical measure if it is necessary to choose another measure.

The Plenum of the Supreme Court of the Russian Federation in paragraph 27 of the Decree of April 7, 2011 No. 6 emphasizes: when considering the issue of extending, changing or terminating the application of a compulsory medical measure, the court must carefully check the validity of the petition filed in accordance with Part 1 of Art. 445 of the Criminal Procedure Code of the Russian Federation. For this, the court must find out the results of the treatment and decide on the need for further medical supervision and treatment. For these purposes, a representative of a medical organization (psychiatric hospital) may be summoned to the court session, where a person is observed in relation to whom the issue of extending, changing or terminating the application of a compulsory medical measure is being decided. Participation in court session a defense lawyer, a legal representative of a person in respect of whom proceedings on the application of a compulsory medical measure are being conducted, and a prosecutor is mandatory.

In accordance with Part 2 of Art. 399 and part 4 of Art. 445 of the Code of Criminal Procedure of the Russian Federation, a person in respect of whom the issue of extending, changing or terminating the application of a compulsory medical measure to him is being decided must be ensured his direct participation in the court session or given the opportunity to state his position by using videoconferencing systems, if, in accordance with medical report his mental state allows him to participate in the trial. The question of the form of participation of such a person in the court session is decided by the court.

In the event that the mental state of a person in respect of whom the issue of extending, changing or terminating the application of a compulsory medical measure does not allow him to personally participate in a court hearing held in the courtroom, the courts are recommended to consider the relevant materials in a medical organization providing psychiatric care in stationary conditions.

According to Judicial Department at The Supreme Court RF, in 2012, the courts of the Russian Federation applied compulsory treatment to 6,111 people, compulsory measures to the insane - to 5,832 persons, 7,064 petitions (out of 7667) were satisfied to place a suspect, an accused, not in custody, in a medical or psychiatric hospital (p. 3, part 2, article 29 of the Code of Criminal Procedure of the Russian Federation), 26,959 petitions (out of 28,456) to terminate, change or extend the application of a compulsory measure of a medical nature (art. 445 of the Code of Criminal Procedure of the Russian Federation).

Termination of the use of compulsory treatment it is possible only if the goals of applying a compulsory measure of a medical nature are achieved - cure or proper (excluding danger to society) improvement of the mental state of a person.

The reason for the termination of the application of compulsory medical measures is such a change in the mental state of a person in which it ceases to be socially dangerous due to the recovery, or improvement, or deterioration of the mental state so much that the further application of compulsory medical measures becomes ineffective and inappropriate.

The court has the right to transfer the necessary materials in relation to a person who was on compulsory treatment to the federal executive body in the field of health care or to the executive body of the constituent entity of the Russian Federation in the field of health care to resolve the issue of treating this person in a medical organization providing psychiatric care, or referral of this. a person to an inpatient social service institution for persons suffering from mental disorders, in the manner prescribed by legislation in the field of health care.

A person who has committed a socially dangerous act in a state of insanity is not subject to criminal liability even in case of recovery.

If a person, against whom compulsory treatment was applied, is subject to criminal liability for a previously committed crime, then the court shall resolve the issue of resuming criminal prosecution, and if this person was released from serving the sentence due to a temporary disorder of his mental activity, the court shall resolve the issue of his direction for serving a sentence. Upon expiration of the statute of limitations (the statute of limitations for criminal proceedings and the limitation period for the conviction) established by Art. 78 and 94 of the Criminal Code of the Russian Federation, a person is subject to release from serving a sentence. The court is also obliged to check whether there are other grounds provided for by law for the release of the person from criminal responsibility or punishment.

If a compulsory medical measure is canceled in relation to a person whose mental disorder occurred after the sentence was passed, but before serving the sentence assigned to him, the court shall count the time spent in a medical organization providing psychiatric care in a hospital (outside depending on its type), based on one day of stay in a psychiatric hospital for one day of imprisonment. Also, the day of stay in a medical organization providing psychiatric care in stationary conditions is counted as one day of arrest or detention in a disciplinary military unit, two days of restriction of freedom, three days of correctional labor or restrictions on military service, eight hours of compulsory work (Article 72 of the Criminal Code RF). If this time exceeds the term of the punishment assigned to him, the court makes a decision on release from punishment for his serving.

Set off in the term of punishment for the time during which compulsory observation and treatment by a psychiatrist on an outpatient basis was applied to a person, current law not provided.

A court decision that has entered into legal force on the appointment, change, extension or termination of the application of a compulsory medical measure may be revised in accordance with the procedure established by law.