Exemption from punishment due to illness is one of the grounds for exemption from criminal punishment due to the fact that due to a person having a mental disorder or other illness, the goals of punishment cannot be achieved, or because the execution of the punishment can lead to a significant deterioration faces.
Content
In the law of the countries of the world
Exemption from punishment due to the state of health of the convicted person is present in many countries, but not everywhere it is present as an independent norm. Mental disorder can be considered as a basis for recognizing a person as insane (Denmark, Switzerland). In France, exemption from punishment may be for “medical reasons”. In Sweden, the criterion for release is the “poor health” of the convict. Detection of a convicted person’s mental disorder may also be associated with exemption from punishment in Bulgaria, other serious illnesses in Spain and Vietnam, both of these conditions in Germany and China [1] .
In New Zealand, exemption from punishment may be associated with a fatal illness or pregnancy, but this reason is rarely used [2] . In Scotland, exemption from punishment can also be associated with the fatal illness of the convict [3] . In the USA, this institution is part of a more general basis for exemption from punishment related to the emergence of suddenly discovered circumstances that could not have been foreseen by the court at the time of sentencing [4] .
In Russian Criminal Law
The Criminal Code of the Russian Federation provides for three types of exemption from punishment in connection with an illness (Article 81 of the Criminal Code of the Russian Federation). Previously, such an institution was regulated by the norms of criminal procedure law (Article 362 of the Code of Criminal Procedure of the RSFSR).
Due to Mental Disorder
A convicted person shall be released from punishment if there is a mental disorder that excludes the ability to realize the factual nature and social danger of his actions or to direct them. The nature and severity of a mental disorder is established by forensic psychiatric examination. Such a mental disorder excludes the possibility of applying criminal repression measures, since a person will not be able to realize their essence and they will not be able to exert a corrective effect on him.
If such a disorder occurs at the time the crime is committed, the person is recognized as insane and not subject to criminal liability; compulsory medical measures can be applied to him: compulsory treatment in a psychiatric hospital (general type, specialized type or specialized type with intensive monitoring) or outpatient compulsory observation and treatment by a psychiatrist.
However, a mental disorder can also occur after the commission of the crime: both at the stage of the preliminary investigation or trial in court, and after the decision of the sentence, as well as during the serving of the sentence. In this case, the court must release the convicted person from punishment or from sentencing. At the same time, compulsory medical measures can be applied to him. After the person recovers, the execution of the sentence can be resumed, while the period of compulsory treatment in a psychiatric hospital is counted in the term of serving the sentence at the rate of 1 day of hospital stay for 1 day of imprisonment.
In connection with another serious illness
A convicted person shall be released from punishment if he has developed another serious illness (not falling under the signs of a mental disorder) that impedes the serving of the sentence. Such diseases include tuberculosis , cancer , diabetes and other diseases, the list of which is determined by a special regulatory act [5] . The basis for the exemption from punishment of convicts to punishments related to forced labor (correctional labor, compulsory labor, forced labor) is a disease that entails the recognition of the convicted person as incapable [6] .
Treatment of a prisoner sentenced to deprivation of liberty may also be carried out in medical institutions (hospitals, medical units), as well as medical correctional institutions of the penal system. Therefore, exemption from punishment in this case is a court right. The court takes into account various circumstances, such as the gravity of the crime committed, the personality characteristics of the convicted person, the length of the unserved part of the sentence, the severity and nature of the course of the disease, the availability of the possibility to continue treatment after being released from punishment, etc. [6]
Due to an illness that renders a person unfit for military service
A convicted person shall be released from punishment if he develops an illness that makes a person unfit for military service (for military personnel serving an arrest or being held in a disciplinary military unit ). The requirements for the state of health of citizens in military service are enshrined in Decree of the Government of the Russian Federation of February 25, 2003 No. 123 “On the Approval of the Regulations on Military Medical Examination”.
In the list of types of punishment from which a soldier can be released, in Art. 81 of the Criminal Code does not include restrictions on military service. Art. 174 of the Penal Code of the Russian Federation and Section 19, Art. 397 Code of Criminal Procedure provide for the possibility of release of punishment in this case.
In this case, exemption from punishment is the responsibility of the court. However, in addition to complete exemption from punishment, the unserved part of the punishment can also be replaced by a milder look if the disease does not interfere with its appointment and implementation. This type of exemption from punishment is also final; serving a sentence cannot be resumed even in the event of a person's recovery.
Renewal of sentence
After the release of the released person (except for military personnel), the serving of punishment may be resumed if the statute of limitations for criminal prosecution or execution of a court sentence has not expired.
Notes
- ↑ Alfimova O. A. Exemption from punishment in connection with the disease: criminally-legal and criminally-executive aspects. Abstract. dis. ... cand. legal sciences. Tyumen, 2006.23 s.
- ↑ Compassionate Release Archived on May 13, 2010.
- ↑ Scottish govt defends Lockerbie bomber's release (link not available) . Associated Press (August 24, 2009). - “Compassionate release is a regular feature of the Scottish system when a prisoner is near death. Of the 31 applications over the last decade, 24 prisoners have been freed on compassionate grounds in Scotland, including Megrahi. Another seven applications were turned down because the medical evidence did not support the claim. ” Archived on August 28, 2009.
- ↑ "Compassionate Release, Procedures For Implementation 18 USC 3582/4205", Archived copy . Date of treatment August 22, 2009. Archived September 2, 2009.
- ↑ Order of the Ministry of Health of the Russian Federation and the Ministry of Justice of the Russian Federation of August 9, 2001 No. 311/242 “On the release from serving sentences of convicts to imprisonment in connection with a serious illness”
- ↑ 1 2 Criminal law of Russia. General part: textbook / S.A. Baleev, B.S. Volkov, L.L. Kruglikov et al .; under the editorship of F.R. Sundurova, I.A. Tarkhanova. - 3rd ed., Revised. and add. - M .: Statute, 2009 .-- 751 p.