DOI: 10.7256/2409-7136.2016.10.2010

Abstract: The research subject is the provisions of the theory of criminal law on illegal psychiatric committal, the provisions of criminal legislation, imposing responsibility for such activity, particular legal provisions, regulating the grounds and the procedure of psychiatric care delivery in the Russian Federation, and the provisions of the resolutions of the Plenums of the Supreme Court of the Russian Federation on particular crimes involving the category of persons, who misuse their official positions. Special attention is paid to the possibility of commitment of this crime only by a person whose job is connected with deciding on psychiatric committal. The research is based on the system approach; the authors use the logical, normative-dogmatic and comparative-legal methods of cognition. The scientific novelty of the research consists in the study of the category of misuse of official position in relation to illegal psychiatric committal, and in the proposed qualification of actions of direct superiors of the psychiatrist. Taking into consideration that the subject of this crime is always very specific (the decision about psychiatric committal can be made only by a psychiatrist or a commission of psychiatrists), the reference to the “use of official position” in the part 2 of the article 128 of the Criminal Code of the Russian Federation, is excessive. All other persons, involved in the process of illegal psychiatric committal, under certain circumstances, are subject to responsibility as accomplices in a crime. The issue of responsibility of a psychiatrist and his direct superiors, who had influence his decision about illegal psychiatric committal, should be considered on the base of the psychiatrist’s guilt or the absence of circumstance excluding the criminal nature of the deed. 

DOI: 10.7256/2409-7136.2016.7.19595

Abstract: The article studies the provisions of the criminal law theory about illegal psychiatric committal, the provisions of criminal legislation imposing liability for it, and the particular provisions of the law regulating the reasons and the procedure of psychiatric treatment in the Russian Federation. Special attention is paid to establishing the persons, participating in the process of hospitalization of a person and criminally liable according to the article 128 of the Criminal Code of the Russian Federation. The study is based on the system approach; the author applies the logical, normative-dogmatic and comparative-legal methods of cognition. Using the analysis of various scholars’ views on the nature of the subject of the crime under consideration and the system interpretation of the provisions of specific legislation in the sphere of psychiatric treatment, the author substantiates the conclusion about the special subject of the crime stipulated by the part 1 of the article 128 of the Criminal Code of the Russian Federation. Therefore, it is unnecessary to mention malfeasance in the part 2 of the mentioned article. The scientific novelty of the study consists in the proposed variant of qualification of actions of the persons, who are not special subjects according to the article 128 of the Criminal Code, but participate in illegal psychiatric committal, for example, the representative of the tutorship and guardianship authority, who doesn’t decide on hospitalization. These persons should be liable as accessories depending on their role in the crime. In the case when a parent or a legal representative asks for illegal psychiatric committal of a person, but the psychiatrist doesn’t decide on hospitalization, the actions of these persons won’t be criminally liable in the case of the absence of the elements of another crime. The conclusions and proposals of the study are interesting for theorists and practitioners.