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the Bases of the termination of criminal case about application of forced measures of medical character at a proceeding stage

it would be desirable to stop on an order of removal of the decision about the termination of criminal case in the presence of the bases specified in the item of item 24-28 UPK the Russian Federation In more details.

In the given situation on affairs of a considered category the general bases of the termination of criminal case extend and the legislator does not provide any withdrawals on such manufacture. Such approach is represented disputable.

it is inconsistent enough the position of the legislator which in item 439 UPK the Russian Federation fixes looks, that upon termination of preliminary investigation the criminal case termination is possible on the bases provided st, item 24 and 27 present Codes, and also in cases when character of perfect act and the mental derangement of the person are not connected with danger to it or other persons or possibility of causing by it of other

j essential harm. At the same time in item Z the item 443 UPK the Russian Federation is underlined, that

court in the presence of the bases provided by articles 24-28 of the present Code, takes out the decision about the termination of criminal case irrespective of presence and character of disease of the person.

and # 9632; certainly, the bases listed in item 1 and 2 items 24 UPK the Russian Federation (absence event of crime; absence in corpus delicti act), can be applicable on affairs about application of a forced measure of medical character as compulsory medical treatment comes under

• to appointment only in the event that the act falling under signs of any crime,

* provided by Special part UK the Russian Federation took place socially dangerous

. If the act made by the person, the suffering mental derangement, has no character socially dangerous, or in general there was no event of such act such person does not come under to compulsory medical treatment as the criminal trial.

As to such basis as the expiration of limitation periods it is represented, that specificity of affairs of a considered category causes some features at calculation of such terms.

According to item 2 of item 78 UK the Russian Federation, limitation periods are estimated from the date of committing a crime and till the moment of the introduction of a sentence of court in validity, and with reference to cases in point - from the date of fulfilment of the act forbidden by the criminal law, and till the moment of becoming res judicata of the court decision. The current of limitation periods stops, if the person who has committed a crime, evades from a consequence or court. In this case the current of limitation periods renews from the moment of detention of the specified person or its appearance from the guilty.

It is thought, that positions of item 78 UK the Russian Federation are hardly applicable by manufacture about application of a forced measure of medical character. One of the bases for compulsory medical treatment application is the social danger of the person who have made forbidden criminal law

* act, and also mental derangement presence. Such situation when the person who has made socially dangerous act in state of insanity, evades for a long time from a consequence or vessels is possible and accordingly the expiration of limitation periods stops. It is quite probable, that at the moment of detention the condition of mental health at such person will improve and necessity for its treatment will disappear.

Nevertheless, the law obliges to renew manufacture about application of forced measures of medical character and to solve a question on compulsory medical treatment, nesmotrja

* that in it already there is no necessity.

-159 -

I Believe, that stay of limitation periods on such category of affairs * is deprived sense as the purpose of application of forced measures

medical character is, first of all, treatment mentally sick that can lose necessity eventually there Can be and such situation when the limitation period established ÷.1 item 78 UK the Russian Federation, has expired, and a mental condition of health of the person who has made act forbidden by the criminal law, has not improved. In that case, it requires compulsory medical treatment if its social danger - as

for itself remains, and for associates.

according to S.N.Shishkov, on affairs about application of forced measures of medical character probably termination of criminal case only on the bases specified in the item of item 24 and 27 UPK Russian Federation as other bases to affairs of a considered category are inapplicable: Reconciliation mentally sick with sustained (item 25 UPK the Russian Federation) is impossible; it is not necessary to speak and about active repentance (item 28 UPK the Russian Federation) 222 .

it is valid, item 25 UPK the Russian Federation cannot be the basis of the termination of criminal case for the person in which relation manufacture about application of forced measures of medical character as reconciliation is possible only as the realised certificate from the victim and the person who have committed a crime is led. The person who has made act is thought, that, forbidden by the criminal law in state of insanity, not always can r l and # 8729; to realise character of the actions and accordingly to realise the certificate

reconciliation. Besides, reconciliation of the victim with such person does not eliminate the social danger of the last and its necessity

compulsory medical treatment.

article 28 UPK the Russian Federation fixes position about the criminal prosecution termination in connection with active repentance. The active repentance testifies that the person who for the first time has committed a crime of small weight, including itself guilty and, regretting for it, understands

f

222 the Comment to UPK the Russian Federation / Under the editorship of And L.Petruhina.... - With. 545.

- 160

illegal character sodejannogo.

f it is obvious, that the repentance can have the realised character only

with reference to guilty act which the act forbidden by the criminal law is not, made in state of insanity. The person who cannot realise actual character of the actions and supervises over them, is hardly capable to plead guilty, promote voluntary to crime disclosing, to indemnify the caused loss and to smooth down the harm caused by fulfilment of socially dangerous act.

the Above-stated allows to draw a conclusion on expediency of fastening in chapter 51 UPK the Russian Federation the independent bases of phase-out about application of forced measures of medical character to which it is necessary to carry:

1) absence of event of the act forbidden by the criminal law;

2) absence in act of the signs characterising its legal estimation;

3) when character of perfect act and the mental derangement of the person are not connected with danger to it or other persons or possibility of causing by it of other essential harm;

4) death of the person in which relation manufacture about application of forced measures of medical character is led;

5) owing to the amnesty certificate;

6) in case of an establishment of non-participation of the person in which relation

• manufacture about application of forced measures medical

character is led, to fulfilment of the act forbidden by the criminal law;

At the termination of criminal case the court within 5 days should direct a copy of the decision to public health services bodies on a residence mentally sick.

when the court has come to conclusion about fulfilment by the given person of the act forbidden by the criminal law, but I have not established presence mental

223 Defining this basis I divide B.A.protchenko's point of view stated on With. 94.

frustration (or has decided, that the revealed mental derangement not

and # 9830; excludes responsibilities and awardings punishment), business comes back to the public prosecutor for conducting on it of manufacture regularly. The recognition of the person guilty of committing a crime with putting on on it of responsibility and punishment application by the court which has considered case in an order of item 441 UPK the Russian Federation, is inadmissible.

In the decision about application of a forced measure medical

character the question on material evidences is authorised, and also

the order and terms of the appeal of the decision in cassation

an order is explained. In the decision about application of a forced measure medical

character the instructions on preventive punishment cancellation if it

has been selected earlier should contain. Definition of a concrete kind of compulsory medical treatment

makes court taking into account mental condition of the person, character and degree

the social danger of the act made by it, but does not define 224

concrete terms of its application

It is necessary to pay attention that item 433 UPK the Russian Federation does not solve a question on satisfaction of the civil suit if that has been declared. T A.Mihajlova expressed in this occasion following opinion: « ... Court one of two decisions can be accepted: 1) to give up in the civil suit if not an established fact of fulfilment of socially dangerous act or participation of deranged act in fulfilment is not proved; 2) in case of finding of fact

* causings deranged a material damage the court should take out

definition with damage instructions, with proofs, its confirming, and 225

leaving of the civil suit as civil legal proceedings »

According to L.G.Tatjaninoj, the civil suit in criminal case about application of forced measures of medical character concerning the person,

224 the Comment to UPK the Russian Federation (article by article) / Under the editorship of B.T.Bezlepkina. ~ 2 izd., the reslave. And dop. - M: TK Velbi, 2003. - With. 525.

225 Mihajlova, T.A.question of perfection of judiciary practice of application

f forced measures of medical character / T.A. Mihajlova//Questions of the theory and

experts criminal sudoproizvodstva. th., 1984.-with, 106-109.

recognised deranged at the moment of fulfilment socially dangerous

• acts, remains without consideration. According to item 1 ch. 1 item 309 UPK the Russian Federation

226

the civil suit is authorised only a sentence

to More correct position E In Mishchenko which considers, that «is represented... In some cases there are all bases for the decision of a question on compensation of the caused harm by the deranged. So, if the person at the moment of fulfilment of socially dangerous act has been already recognised as civil legal proceedings by incapacitated, and in the criminal trial - deranged its rights and legitimate interests in court will be represented by the trustee (legal representative). Whereas fulfilment deranged socially dangerous act has come after

*

establishments over it of guardianship, it is logical also responsibility for done deranged harm to assign to the legal representative as it has admitted omissions in supervision for such incapacitated » 227 .

* * *

I Believe necessary to bring a number of changes in the norms regulating proceeding on affairs about application of forced measures of medical character, the guarantees of the rights of the person directed on strengthening in which relation such manufacture is led.

in particular to add UPK the Russian Federation of item 440 (1)« Preparatory actions • in session of the court on affairs about forced measure application

medical character »in the following edition:« 1. If on the basis of psychiatric survey the person in which relation manufacture about application of forced measures of medical character is led, is capable to take part in proceeding, the chairman establishes its person, finding out its surname, a name, a patronymic, year, month, day and the birthplace, finds out, whether he owns

f 6 Tatjanina, L.G.decree, soch. - With. 124.

227 Mishchenko, E.V.decree. soch. - with. 147.

language on which leads the criminal trial, a residence,

# a work place, an occupation, formation, the marital status and other given its concerning persons.

2. The chairman finds out, whether the decision copy about a business direction in court for application of a forced measure of medical character and when is handed over the person in which relation manufacture about application of forced measures of medical character is led. Thus criminal case proceeding about application of a forced measure of medical character cannot be begun before 7 days from the date of delivery to the person in which relation manufacture about application of a forced measure of medical character is led, decision copies about a business direction in court for application of a forced measure of medical character ».

it is expedient to allocate the person in which relation manufacture about application of forced measures of medical character by the right of the cassation is led and, hence, to make changes in item 444 UPK the Russian Federation.

3.4.

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A source: Bufetova Marjam SHamilevna. Manufacture about application prinuditelnyk measures of medical character. The dissertation on competition of a scientific degree of the master of laws. Irkutsk - 2004. 2004

More on topic the Bases of the termination of criminal case about application of forced measures of medical character at a proceeding stage:

  1. 3.3. Features of a stage of proceeding at disposal of legal proceeding about application of forced measures of medical character
  2. Specificity of application of general terms of proceeding at disposal of legal proceeding about application of forced measures of medical character
  3. the Bases of application of forced measures of medical character
  4. the Bases and an order of excitation of manufacture about application of forced measures of medical character
  5. the Chapter III. JUDICIAL DISPOSALS OF LEGAL PROCEEDING About APPLICATION of FORCED MEASURES of MEDICAL CHARACTER
  6. the Circumstances which are coming under to proving on affairs about application of forced measures of medical character
  7. Preparation has put to session of the court and preliminary hearing on affairs about application of forced measures of medical character
  8. the Remedial status of the person in which relation manufacture about application of forced measures of medical character
  9. Development of the criminal and criminal procedure legislation regulating forced measures of medical character
  10. a preliminary investigation General characteristic on affairs about application of forced measures of medical character
  11. the Chapter II. FEATURES of PRELIMINARY INVESTIGATION ON AFFAIRS About APPLICATION of FORCED MEASURES of MEDICAL CHARACTER
  12. Concept and legal nature of forced measures of medical character
  13. the Chapter I. The GENERAL CHARACTERISTIC of FORCED MEASURES of MEDICAL CHARACTER
  14. the Order of the cassation of the decision about application of a forced measure of medical character
  15. Obligatory manufacture of judicial-psychiatric examination (appointment, carrying out and an estimation of its conclusion) on affairs about application of a forced measure of medical character
  16. § 2 Bases and conditions of the termination of criminal case and criminal prosecution, their classification.
  17. § 4. Others nereabilitirunntsis the bases of the termination of criminal case and criminal prosecution.
  18. § 3 Exclusive bases of the termination of criminal case and prosecution.
  19. § 3. Use of the data received in a course operativnorozysknoj of activity, in a stage of excitation of criminal case at disclosing of crimes of terrorist character