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Vol. 39, Nº 70 (2021), 126-146
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Legality of Applying Coercive Medical
Measures in Criminal Law
DOI: https://doi.org/10.46398/cuestpol.3971.06
Iryna V. Kalinina *
Volodymyr M. Kupriienko **
Iryna I. Shulhan ***
Dmytro O. Pylypenko ****
Olena A. Kozeratska *****
Abstract
The objective of the study was to determine the legality of
the application of coercive medical measures and to develop
recommendations to improve the legislative regulation of their
use. The study included data on the number of oenders with
mental disorders; the empirical background was the decision of the
European Court of Human Rights on the application of coercive
medical measures; provisions of the legislation of 31 countries.
Methods of system approach, comparison, descriptive analysis, pragmatic
approach, prognosis were used. The national criminal law of most states
regulates the application of coercive medical measures to persons who have
committed a crime in a state of limited sanity or insanity or have acquired it
before sentencing or during the execution of the sentence, but its practical
application causes several complications. It is concluded that the legislative
denition of coercive medical measures corresponds to human rights
legislation. But there are problems with its practical application. Proposals
were made to amend national and international legislation: to broaden the
range of grounds for the application of coercive medical measures; regulate
* PhD in Law, Head of the Department of the Special-Law Disciplines, Faculty of Law and Public
Management, Donetsk State University of Management, 87513, Mariupol, Ukraine. ORCID ID: https://
orcid.org/0000-0001-5199-9545
** PhD in Law, Associate Professor, Department of Criminal Law and Procedure of the Kyiv University
of Law of the National Academy of Sciences Ukraine, 03142, Kyiv, Ukraine. ORCID ID: https://orcid.
org/0000-0003-1601-0679
*** PhD in Law, Assistant, Department of Criminal Law and Procedure, Institute of Law, Psychology and
Innovative Education, Lviv Polytechnic National University, 79013, Lviv, Ukraine. ORCID ID: https://
orcid.org/0000-0002-9623-3495
**** PhD in Law, Associate Professor, Department of Criminal Law Disciplines, Faculty №2, Kryvyi Rih
Educational and Scientic Institute, Donetsk State University of Internal Aairs, 50000, Kryvyi Rih,
Ukraine. ORCID ID: https://orcid.org/0000-0003-1299-6178
***** PhD in Medicine, Associate Professor, Department of Criminalistics and Criminal Procedure of
the Institute of Law of Taras Shevchenko National University, 01601, Kyiv, Ukraine; Head of the
Department of Forensic Psychiatric Examination of the State Institution “Center for Mental Health and
Monitoring of Drugs and Alcohol of the Ministry of Health of Ukraine”, 04050, Kyiv, Ukraine. ORCID
ID: https://orcid.org/0000-0001-7957-9657
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CUESTIONES POLÍTICAS
Vol. 39 Nº 71 (2021): 126-146
the possibility of early termination of a coercive medical measure; oblige
the courts to determine the appropriate terms.
Keywords: coercive medical measures; mental illness; mental disorder;
criminal law measures; human rights.
Legalidad de la Aplicación de Medidas Médicas
Coercitivas en el Derecho Penal
Resumen
El objetivo del estudio fue determinar la legalidad de la aplicación de
medidas médicas coercitivas y desarrollar recomendaciones para mejorar
la regulación legislativa de su uso. El estudio incluyó datos sobre el número
de delincuentes con trastornos mentales; el antecedente empírico fue la
decisión del Tribunal Europeo de Derechos Humanos sobre la aplicación
de medidas médicas coercitivas; disposiciones de la legislación de 31
países. Se utilizaron métodos de enfoque de sistema, comparación, análisis
descriptivo, enfoque pragmático, pronóstico. La legislación penal nacional
de la mayoría de los estados regula la aplicación de medidas médicas
coercitivas a personas que han cometido un delito en un estado de cordura
o demencia limitada, o lo han adquirido antes de dictar sentencia o durante
el cumplimiento de esta, pero su aplicación práctica provoca una serie
de complicaciones. Se concluye que la denición legislativa de medidas
médicas coercitivas corresponde a la legislación en materia de derechos
humanos. Pero existen problemas con su aplicación práctica. Se formularon
propuestas para modicar la legislación nacional e internacional: ampliar la
gama de motivos para la aplicación de medidas médicas coercitivas; regular
la posibilidad de terminación anticipada de una medida médica coercitiva;
obligar a los tribunales a determinar los términos adecuados.
Palabras clave: medidas médicas coercitivas; enfermedad mental;
trastorno mental; medidas de derecho penal; derechos
humanos.
Introduction
The application of certain criminal law measures within the limits of
condemnation of criminal behaviour of a person on behalf of the state is one
of the forms of realisation of criminal liability. Naturally, the most commonly
used and most severe form of the state’s response to a criminal oense is
128
Iryna V. Kalinina, Volodymyr M. Kupriienko, Iryna I. Shulhan, Dmytro O. Pylypenko y Olena
A. Kozeratska
Legality of Applying Coercive Medical Measures in Criminal Law
the application of punishment to the perpetrator. But in law enforcement
practice, there are situations when a person guilty of a crime cannot be
punished, and his/her state of health (physical, mental or psychological)
requires the application of other criminal law measures. One of the types
of such criminal law measures that are not criminal punishment is coercive
medical measures (Lapshin and Korneev, 2019).
The instrument of state inuence includes the mechanisms, which
provide for the restriction of certain human rights and freedoms, although
it is recognised as the highest state value and object of protection. The
legal grounds for restricting human rights and freedoms are criminal law
measures applied to persons who have committed a crime and are found
guilty of it on the basis of a court decision. The use of criminal law measures
such as coercive medical measures due to social necessity — to respond to
the criminal behaviour of persons who have committed a crime in a state of
limited sanity or acquired such a state, or the state of insanity, during pre-
trial and judicial investigation (Ferracuti et al., 2019). In this regard, the
criminal law of many countries contains rules that determine the conditions
and grounds for the application of such criminal law measures (Markava,
2017).
Besides, European legislation also establishes the legality of compulsory
medical care for persons suering from certain diseases in terms of
guaranteeing human rights (Israelsson et al., 2015). But in practice, there
are often diculties in addressing the issue of possibility and necessity of
applying these measures to perpetrators (Losych and Rutvian, 2019). These
complications are especially often associated with the establishment of the
actual occurrence of such a mental disorder or other morbid condition in
the person who committed the crime (Kooijmans and Meynen, 2017).
But it is quite logical that other questions arise: Is it possible to apply
coercive medical measures, including compulsory treatment, to persons
who have committed a crime in a psycho-physiological state, which does
not exclude criminal liability? whether there is a violation of human rights
in such a case; Does the application of coercive medical measures against
the defendants justify itself, is it eective?
1. Literature Review
Medical science studies the impact of coercive medical measures,
their eectiveness and applicability to patients with mental illness or
mental disorders (Zhang et al., 2015); the procedure for the application of
mandatory medical measures for insane (Zhumanbaeva and Alimkulov ,
2019); the eectiveness of compulsory treatment of drug addicts (Werb et
al., 2016); the eectiveness of specialised centres for the maintenance and
129
CUESTIONES POLÍTICAS
Vol. 39 Nº 71 (2021): 126-146
treatment of drug addicts is analysed on the example of East and Southeast
Asia (Kamarulzamana and McBrayer, 2015).
The current state and prospects of compulsory treatment in psychiatric
institutions of persons in need of such treatment are also studied from
the perspective of ethical considerations and in order to determine the
advantages and disadvantages (Saya et al., 2019).
The eectiveness of the application of coercive medical measures is
studied in legal science, in particular in the eld of criminal law. Attention
is paid to compliance with European standards of respect for human
rights in the application of compulsory medical measures in criminal law
and criminal proceedings (Tyshchenko et al., 2019). The eectiveness of
compulsory hospitalization of juvenile oenders with drug addiction is also
studied in order to prevent their further criminal activity (on the example of
Brazil) (Dos Reis and Guareschi, 2016); the need for treatment of prisoners
with drug or alcohol addiction is analysed (Brochu, and Levesque, 1991).
It is emphasized that compulsory treatment of drug and alcohol addicts,
including criminals, is not always eective when it is involuntary (on the
example of the People’s Republic of China (Xiong and Jia, 2019), Sweden
(Lövgren, 2021). The need to establish stricter criteria for compulsory
treatment, including criminals, is also emphasised (Zinkler, 2016).
At the same time, a large number of studies does not mean that the
research of problematic issues related to the application of medical
measures in criminal law is complete and comprehensive. In particular,
almost no attention was paid to the legality of the application of coercive
medical measures, compulsory medical treatment, and involuntary
hospitalization to persons who committed a crime. Although the problem of
the admissibility of involuntary medical intervention in the rehabilitation of
criminals has been studied (Pugh and Douglas, 2016); the issue of applying
coercive medical measures was considered in studying the experience of
the interaction of law enforcement ocers with citizens, organizations
and institutions for compulsory treatment of persons in need for such a
treatment, including criminals (Soares and Pinto da Costa, 2019), this issue
was not clearly covered.
Given the urgency of the study, as well as the unresolved issues related
to the application of coercive medical measures to perpetrators, the aim of
this study will be to determine the legality of these measures and develop
recommendations to improve their legal regulation. The aim of the study
provided for the following objectives: determine the legal grounds for their
application and proposals for their legislative enshrinement at the level of
international and national legislation.
130
Iryna V. Kalinina, Volodymyr M. Kupriienko, Iryna I. Shulhan, Dmytro O. Pylypenko y Olena
A. Kozeratska
Legality of Applying Coercive Medical Measures in Criminal Law
2. Methodology and Methods
This study was conducted in a clear sequence, following the stages of
studying the issue, based on the logic of the presentation of the material,
in order to achieve the aim set in the article and full its objectives. These
stages were: formulation of topic and dening the scope of the study; search
and selection of references; selection and study of statistics; analysis of the
material presented in selected references and evaluation of the results of
these studies; identication of unresolved problems of legality of application
of coercive medical measures in criminal law; determining the aim of the
article; drawing conclusions and practical recommendations for solving the
problems chosen for research; outlining prospects for further research in
this area.
This study used statistics on the number of criminals with mental
disorders; the empirical background of the study was the decisions of the
ECHR on the application of coercive medical measures and compulsory
treatment (30 decisions were analysed); expert opinions on the expediency
and necessity of applying coercive medical measures to persons who have
committed a crime in the relevant condition. The norms of international
and national regulatory legal acts, which dene certain aspects of the
principles and procedure for the application of coercive medical measures
were studied in detail in order to identify gaps and make proposals for
their elimination both in international norms and in national legislation
of individual countries to increase the eectiveness of these criminal law
restrictive measures.
The legal framework of the study was the provisions of international
regulations: UN General Assembly Resolution 46/119 of December 17,
1991, which approves the Principles for the Protection of Persons with
Mental Illness and the Improvement of Mental Health Care, the European
Convention for the Protection of Human Rights and Fundamental Freedoms
of 1950 (hereinafter — the Convention), the International Covenant on Civil
and Political Rights of 1966. The national legislation of 31 countries was
considered to analyse the provisions of national legislation that determine
the procedure and grounds for the application of coercive medical measures
in criminal law and compulsory treatment.
The study involved the following methods to achieve the aim:
• a systemic approach was used to analyse the grounds for the
application of coercive medical measures to criminals as a system of
interrelated objective and subjective circumstances.
• comparison was used for comparative analysis of the grounds for the
application of coercive medical measures enshrined in the criminal
law of individual countries.
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CUESTIONES POLÍTICAS
Vol. 39 Nº 71 (2021): 126-146
• descriptive analysis was used to arrange, classify and summarise
information on the public danger of leaving persons who committed
a crime in a state of insanity or limited sanity, or acquired such a
state before sentencing or while serving a sentence, without medical
care and treatment.
• pragmatic approach to data collection and analysis was used to
determine the main grounds for the application of coercive medical
measures to persons who committed a crime in a state of sanity or
limited sanity, or acquired such a state before sentencing or while
serving a sentence.
• forecasting approach was used to develop proposals and
recommendations for improving the legislation to establish criteria
and grounds for the application of cohesive medical measures in
criminal law.
3. Results
Prosecution of perpetrators is always accompanied in practice by a
number of problems related to the application of certain criminal law
measures to them. One such problem is the application of coercive medical
measures to persons who have committed crimes in a state of insanity or
limited sanity, or acquired such a state before sentencing or while serving
a sentence. According to statistics, the commission of crimes by persons
in a state of insanity or limited sanity has always been quite common. For
example, U.S. statistics show that approximately 16% of all inmates had
serious mental illness (Mental Illness Policy, 2005). According to other
data, about 25% of criminals suer from mental disorders (Morgan et al.,
2012). Moreover, 10-12% of murders are committed by mentally ill persons
(Russia) (Bersh, 2017). At the same time, the increase in the number of
mental health care centres has a positive impact and helps to reduce crime
by 1.7% in the relevant regions (on the example of the United States) (Deza
et al., 2019).
UN General Assembly Resolution of December 17, 1991 approved
the Principles for the Protection of Persons with Mental Illness and the
Improvement of Mental Health Care, which states that every patient should
have the right to treatment and care as far as possible in the society in which
he or she lives (Principle 7: Role of Society and Culture). The legality of
the use of compulsory treatment of persons suering from certain types of
mental disorders, including persons who have committed a crime, has been
recognized in this Principle.
132
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A. Kozeratska
Legality of Applying Coercive Medical Measures in Criminal Law
In order to ensure the application of coercive medical measures and
compulsory medical treatment to persons who have committed a crime in a
state of limited sanity or insanity, or acquired such a state before sentencing
or while serving a sentence, coercive medical measures and compulsory
treatment, the national criminal law of the vast majority of states regulates
the application of these criminal law measures. These rules establish the
procedure and grounds for the application of these measures to oenders
who have committed a crime in a state of limited sanity or insanity or
acquired such a state before sentencing or while serving a sentence (see
Table 1).
Table 1. Norms of the national criminal legislation regulating
application of coercive medical measures
Country Provisions of criminal legislation
Germany SIXTH TITLE MEASURES OF REHABILITATION AND
INCAPACITATION
Section 61 Overview
Section 62 Principle of proportionality
Section 63 Mental hospital order
Section 64 Custodial addiction treatment order
Section 66 Detention for the purpose of incapacitation
Section 66c Organisation of detention for the purposes of
incapacitation and of antecedent imprisonment
Section 67 Sequence of enforcement
Section 67a Transfer to another measure
Section 67c Deferred start date of detention
Section 67d Duration of detention
France SECTION II PERSONALIZATION OF PENALTIES
Subsection 1 Semi-detention
ARTICLE 132-25
ARTICLE 132-26
ARTICLE 132-26-1
ARTICLE 132-26-2
Subsection 2 Division of penalties
ARTICLE 132-45
Albania CHAPTER V PUNISHMENTS
Article 46 Medical and educational measures (Amended by law
no. 36/2017)
CHAPTER VII ALTERNATIVES TO IMPRISONMENT
SENTENCES
Article 58 Open prison
Switzerland Chapter Two: Measures Section One: Therapeutic Measures and
Indenite Incarceration
Art. 56-Art. 64c
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Turkey Part 2 Security Measures
Article 57 Security Measures Specic to the Mentally Disordered
Russian
Federation Chapter 15. Compulsory Measures of a Medical Nature
Article 97. Grounds for the Application of Compulsory Measures
of a Medical Nature
Article 98. The Purposes of the Application of Compulsory
Measures of a Medical Nature
Article 99. Compulsory Medical Measures
Article 101. Compulsory Treatment in a Mental Hospital
Article 102. The Prolongation, Change, or Termination of the Use
of Compulsory Medical Measures
Article 103. Set-o of the Time of Application of Compulsory
Medical Measures
Article 104. Compulsory Medical Measures Joined with the
Execution of Punishment
Republic of
Uzbekistan SECTION SEVEN. COMPULSORY MEDICAL MEASURES
CHAPTER 17. GROUNDS FOR AND APPLICATION OF
COMPULSORY MEDICAL MEASURES
Article 91. Purposes of Compulsory Measures
Article 92. General Grounds for Application of Compulsory
Medical Measures
Article 93. Types of Compulsory Medical Measures
Article 94. Application of Compulsory Medical Measures
Article 95. Extension, Altering, and Discontinuation of
Application of Compulsory Medical Measure
Article 96. Application of Compulsory Medical Measures
to Persons Suering Alcohol, Drugs, and Toxic Substances
Addiction
Georgia CHAPTER XIV – Release from Punishment
Article 74 – releasing from punishment due to illness or old age
Republic of
Azerbaijan Chapter 15. Compulsory measures of medical nature
Article 93. Bases of application of compulsory measures of
medical nature
Article 93-1. The use of compulsory medical measures in respect
of persons who are in need of treatment for alcoholism or drug
addiction
Article 94. Purposes of application of compulsory medical
measures to the persons suering from mental disorders
Article 95. Kinds of compulsory measures of medical nature,
appointed to the persons suering from mental disorder
Article 96. Out-patient compulsory supervision and treatment at
psychiatrist
Article 97. Mandatory treatment in psychiatric hospital
Article 98. Extension, change and cancellation of compulsory
measures of medical nature, appointed to the persons suering
from mental disorder
Article 99. Oset of time on application of compulsory measures
of medical character, appointed to the persons suering from
mental disorders
134
Iryna V. Kalinina, Volodymyr M. Kupriienko, Iryna I. Shulhan, Dmytro O. Pylypenko y Olena
A. Kozeratska
Legality of Applying Coercive Medical Measures in Criminal Law
Republic of
Kazakhstan SECTION 7. COMPULSORY MEASURES OF MEDICAL
NATURE
Article 91. Grounds of application of compulsory measures of
medical nature
Article 92. Purposes of application of compulsory measures of
medical nature
Article 93. Types of compulsory measures of medical nature
Article 94. Compulsory out-patient observance and treatment on
the by a psychiatrists
Article 95. Compulsory treatment in a mental hospital
Article 96. Extension, change and cancellation of compulsory
measures of medical nature
Article 97. Imposition of punishment after application of
compulsory measures of medical nature
Article 98. Compulsory measures of medical nature, connected
with execution of punishment
Republic of
Bulgaria Chapter Eleven COMPULSORY MEDICAL MEASURES
Article 89 - Article 92
Denmark Chapter 9 Other Legal Consequences of a Punishable Act
§68
Netherlands Chapter Two. Admission to a Psychiatric Hospital and Detention
under an Entrustment Order
Art. 37-Art.37e
Spain Chapter II. On application of security measures
Subchapter I. On measures depriving of freedom
Art.101- Art. 104
Ukraine Chapter XIV. COMPULSORY MEDICAL MEASURES AND
COMPULSORY TREATMENT
Article 92. Denition and purpose of compulsory medical
measures
Article 93. Persons subjected to compulsory medical measures
Article 94. Types of compulsory medical measures
Article 95. Continuation, change or discontinuation of
compulsory medical measures
Article 96. Compulsory treatment
Republic of
Latvia Chapter VIII Compulsory Measures of a Medical Nature
Section 68. Compulsory Measures of a Medical Nature
Section 69. Determination of Compulsory Measures of a Medical
Nature for Persons in a State of Mental Incapacity
Section 69. 1 Provision of Compulsory Measures of a Medical
Nature after Several Rulings
Section 70. Provision of Compulsory Measures of a Medical
Nature for Persons in a State of Diminished Mental Capacity
Republic of
Poland Chapter X. Preventive Measures
Article 93 - Article 94
Sweden Chapter 31 – On special care orders in certain cases
Section 3
Chapter 26 – On imprisonment
Section 16
Section 22
Source: own elaboration.
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The grounds and procedure for the application of coercive medical
measures and compulsory treatment to persons who have committed a
crime in a state of limited sanity or insanity, or acquired such a state before
sentencing or while serving a sentence are also established in a number of
other national regulations, which the court relies on its activities (see Table
2).
Table 2. Regulation of involuntary placement in medical
institutions and involuntary treatment (EU legislation)
Country Regulatory legal acts
Austria Compulsory Admission Act (CAA) (Unterbringungsgesetz, UbG),
BGBl 155/1990
Belgium Act concerning the protection of the person of the mentally ill
(26 June 1990) (Loi relative à la protection de la personne des
malades mentaux) Patient’s rights Act (22 August 2002) (Loi
relative aux droits des patients)
Bulgaria Chapter II Health Act (Закон за здравето), 1 January 2005
Czech
Republic Healthcare Act Zákon č. 20/1966 Sb., o péči o zdraví lidu
(1 July 1966); Civil Procedure Code (Zákon č. 99/1963 Sb.,
občanský soudní řád), Act No. 99/1963 Coll.
Germany § 1906 Civil Code (BGB) introduced by the Betreuungsgesetz
(BtG) (Custodianship Act) of 12 September 1990, (enforced
1 January 1992); Placement under public law governed by states
(Länder) laws
Denmark Act No. 331, 24 May 1989 on deprivation of liberty and other
coercion in psychiatry
Estonia § 19-20 Social Welfare Act (SWA) (Riigikantselei (6 March 1995)
Riigi Teataja I), 21, 323, (8 February 1995); § 533-543 Code of
Civil Procedure (CCP) (Tsiviilkohtumenetluse seadustik), 20
April 2005
Spain Article 763 Civil Procedure Act (Ley 1/2000, de 7 de enero, de
Enjuiciamiento Civil); Act of the Autonomy of the Patient Law
41/2002 (14 November 2002)
France Public Health Code, Articles L.3212-1 to L.3213-11
Hungary Healthcare Act (1997. évi CLIV. törvény az egészségügyrõl) (15
December 1997)
Italy Article 33-35 Law n. 833/1978 (23 December 1978)
Latvia Article 68 Medical Treatment Law (Ārstniecības likums) (26
February 1998)
Lithuania Law on Mental Health Care/1995, Nr. I-924, (Psichikos sveikatos
priežiūros įstatymas, Žin., 1995, Nr. 53-1290). Available in EN
(without amendments: www3.lrs.lt/pls/inter2/dokpaieska.
showdoc_e?p_id=39589)
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Legality of Applying Coercive Medical Measures in Criminal Law
Luxembourg Luxembourg law on hospitalisation of persons with mental
disorders without their consent (relative à l’hospitalisation sans
leur consentement de personnes atteintes de troubles mentaux)
(10 December 2009)
Malta Mental Health Act Chapter 262 of the Laws of Malta (adopted in
1976)
Netherlands The 1992 Psychiatric Hospitals (Compulsory Admissions) Act
(enforced January 1994)
Poland Law on Protection of Mental Health, (Ustawa o wychowaniu w
trzeźwości i przeciwdziałaniu alkoholizmowi) Dz. U. 1994 No 111
Item 53519, 19 August 1994
Portugal Article 12 Law on mental health 36/98, 24 July 1998
Romania Mental Health Law (Law 487/2002), 11 July 2002; Law on
Patient’s Rights No. 46/2002 (Legea drepturilor pacientului Nr.
46/2002)
Slovakia Article 191a-191g Civil Procedure Code (Zákon 99/1963)
4 December 1963; 1 6 and 8 Health Care Act (Zákon 576/2004)
21 October 2004
Great Britain Mental Health Act 1983; Mental Health (Care and Treatment)
(Scotland) Act 2003 asp. 13; Mental Health (Northern Ireland)
Order 1986 No. 595 (N.I. 4)
Source: European Union agency for fundamental rights (2012).
Coercive medical measures are understood in legal doctrine as
providing a person who has committed a crime in a state of limited sanity
or insanity, or acquired such a state before sentencing or while serving a
sentence, compulsory outpatient mental health care, as well as placement
such a person in a special psychiatrist medical institution for compulsory
treatment and in order to prevent this person from committing new socially
dangerous acts (Pukavskyi and Kushpit, 2019). Given the above, the
primary task of applying coercive medical measures is not to criminalize the
person who committed the crime, but to ensure the comprehensive safety
of criminals with mental disorders, as well as other individuals and society
from potential socially dangerous acts of these criminals. Although the
wording of coercive measures of a medical nature applied to persons who
have committed a crime in a state of insanity or limited sanity, or acquired
such a state before sentencing or while serving a sentence, are not identical
in the criminal law of dierent countries, but they are similar in essence.
Analysis of the national criminal legislation of a number of countries
in terms of regulating the use of coercive medical measures allows us to
identify common and distinctive features of the regulatory enshrinement of
this institution. In general, the comparison found that the regulation of the
application of coercive medical measures to persons who have committed a
crime in a state of limited sanity or insanity, has more common features than
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CUESTIONES POLÍTICAS
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dierences in the criminal codes of individual countries. In particular, the
priority is given to the protection of the person of a criminal suering from
mental disorders over the protection of society, which is a manifestation
of democracy and humanism. The grounds for the application of coercive
medical measures to this category of persons are determined within this
approach, which essentially coincide in nature in dierent criminal laws, as
well as in accordance with criminal law doctrine (see Figure 1).
Figure 1: Grounds for the application of coercive medical
measures. Source: European Union agency for fundamental
rights, (2012).
National criminal law usually determines types of coercive medical
measures, which are not always applicable to a person who has committed a
crime in a state of limited sanity or insanity, or acquired such a state before
sentencing or while serving a sentence, compulsory treatment. The types of
coercive medical measures usually dier. They include, as a rule: outpatient
observation of criminals with mental disorders; general-type psychiatric
institutions; specialised medical psychiatric institutions with an enhanced
regime of supervision (guard); public and private rehabilitation centres.
Despite a rather detailed legal regulation of the grounds and procedure
for the application of coercive medical measures to criminals who were in
a state of limited sanity or insanity at the time of committing the crime or
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Legality of Applying Coercive Medical Measures in Criminal Law
acquired such a state before sentencing or while serving a sentence, there
are a number of complications regarding their application in practice.
This is primarily because such measures (as other criminal law measures
to inuence criminals) are to apply certain restrictions to the subjects
of crime on their rights and freedoms. In particular, this applies to such
rights enshrined in the Convention as the right to liberty and security of
person (Article 5); the right to a fair trial (Article 6 of the Convention); the
right to respect for family and private life (Article 8 of the Convention) (see
Table 3).
Table 3. ECHR decisions on violations of the Convention in
the application of coercive medical measures and compulsory
treatment
Article of the European
Convention for
the Protection of
Human Rights and
Fundamental Freedoms
ECHR judgement
Article 5. The right to
liberty and security of
person
Winterwerp v. the Netherlands (24.10.1979),
Ashingdane v. the United Kingdom, 28.05.1985
Johnson v. the United Kingdom, 24.10.1997
Aerts v. Belgium, 30.07.1998
Nielsen v. Denmark, 28.11.1998:
Varbanov v. Bulgaria, 05.10.2000
Herz v. Germany, 12.06.2003
Nowicka v. Poland, 03.12.2003
M.R.L и M.-J.D. v. France, 19.05.2004
H.L. v. the United Kingdom, 05.10.2004
Enhorn v. Sweden, 25.01.2005
Schneiter v. Switzerland, 31.03.2005:
Storck v. Germany, 16.06.2005
Gajcsi v. Hungary, 03.10.2006
Filip v. Romania, 14.12.2006
Gulub Atanasov v. Bulgaria, 06.11.2008: Shopov v.
Bulgaria, 02.09.2010
Article 6. The right to a
fair trial HODŽIĆ v. CROATIA (p. 1 Article 6)
H.F. v. Slovakia 08.11.2005
Nenov v. Bulgaria, 16.07.2009
Article 8. The right to
respect for family and
private life
A.G. v. Switzerland (09.04.1997:
Storck v. Germany (16.06.2005)
Schneiter v. Switzerland (31.03.2005:
Shopov v. Bulgaria (02.09.2010
X. and Y. v. the Netherlands, 26.03.1985
Bensaid v. the United Kingdom, 06.02.2001
K. и T. v. Finland, 12.07.2001
Shtukaturov v. Russia, 27.03.2008
Berková v. Slovakia, 24.03.2009
Salontaji-Drobnjak v. Serbia, 13.10.2009
Source: European Court of Human Rights (n. d).
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The procedure for prescribing compulsory treatment or other coercive
medical measures to criminals in need of medical supervision and
treatment is quite often violated during law enforcement. In particular,
this is evidenced by the case law of the European Court of Human Rights.
Involuntary medical intervention against a person’s will in his or her
private life is in essence a violation of the right to privacy and inviolability
(Hirvisaari v. Finland, application no. 49684/99, judgment of September
27, 2001), but if it was used to protect both the person himself/herself, and
others, their use is justied by law.
The ECHR also ruled on June 16, 2005 in Storck v. Germany on the
unlawful use of coercive medical measures to a person against his will,
although it was later revoked because it became clear that the treatment
permit and the contract with the medical institution was concluded by his
representative in compliance with the law. Similarly, the judgment of March
31, 2005 in Schneiter v. Switzerland did not satisfy the person’s claim, as it
was found that the compulsory treatment was justied by law and pursued
the aim of protecting the rights and freedoms of third parties. Instead,
the ECHR ruled on 9 April 1997 in the case of A.G. v. Switzerland on the
unlawful placing a person in custody, as this was found to be an unlawful
invasion of privacy; as in the judgement of September 2, 2010 in the case
of Shopov v. Bulgaria on the illegal long-term involuntary psychiatric
treatment, as there had been a violation of the right to respect for private
life (the judgement had never entered into force).
There are cases when the court’s decision to forcibly place a person who
committed a crime in a state of insanity or limited sanity in a specialized
institution for treatment was lawful, or that coercive medical measures
were lawful, but the terms of detention in such an institution were violated
(for example, ECHR judgement of May 28, 1985 in Ashingdane v. the
United Kingdom and judgment of October 24, 1997 in Johnson v. the
United Kingdom). It is also a violation of the grounds for the application
of coercive medical measures and compulsory treatment to place in an
inappropriate institution for the detention of ill oenders (for example, the
ECHR judgement of July 30, 1998 in Aerts v. Belgium).
Besides, the application of coercive medical measures or compulsory
treatment violates other rights of persons who have committed a crime in a
state of limited sanity or insanity, or acquired such a state before sentencing
or while serving a sentence. In particular, according to the judgment of the
European Court of Human Rights of March 24, 2009 in Berková v. Slovakia,
the applicant’s right to apply for restitution after receiving appropriate
treatment for a mental disorder had been violated. There are also cases of
failure to provide sucient opportunities to ensure self-defence against
arbitrariness (ECHR judgment of January 5, 2000 in Varbanov v. Bulgaria);
the impossibility to challenge involuntary hospitalization because of the
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Legality of Applying Coercive Medical Measures in Criminal Law
restriction on the ling of an application for an unlawful decision in the
case (unnished trial since 2011 in Aleksandr Petrovich Lashin v. Russia),
etc. (European Court of Human Rights, n. d.).
This state of aairs indicates the need to improve the legislative
regulation of the grounds and procedure for regulating the application of
coercive medical measures to criminals who need it, from the standpoint of
ensuring respect for fundamental human rights and freedoms.
Article 5 of the Convention stipulates that “Everyone has the right to
liberty and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed by
law (Part 1); and paragraph “e” of this rule states that such a legal case
is, among other things, is “the lawful detention of persons to prevent the
spread of infectious diseases, lawful detention of persons of unsound mind,
alcoholics or drug addicts or vagrants.”
With the development of society, the development of human-
centred legislation and the approach to guaranteeing human rights and
fundamental freedoms, the interpretation of this provision also changes
towards humanization, individualization and proportionality (compliance).
In particular, the conduct of new psychiatric research allows and even
requires changes in existing legislation, in particular with regard to the
use of coercive measures for the treatment of mentally ill criminals. For
example, the latest developments in psychiatry and psychology allow the
use of more exible means of treating mental disorders and diseases, as
well as able to change society’s attitude to such diseases and those who
have them. Similarly, the development of neuroscience in psychiatry and
psychology allows for the use of softer and more humane methods of
compulsory treatment and supervision of persons with mental disorders
who have committed a crime (Hafner, 2019).
Taking into account the content of complaints and decisions of the
European Court of Human Rights regarding human rights violations in
the application of coercive medical measures, as well as to humanize and
comply with the principle of proportionality, we propose to include the
following in the grounds for application of the said criminal law measures:
• recognition of the person who committed the crime as having a real
mental disorder, based on the conclusions of an objective impartial
medical examination.
• the nature and degree of mental disorder in the person who
committed the crime must be such that it requires the use of a
specic medical technique.
• hospitalization of a person who has been declared mentally ill may
not continue if it has been established that the mental disorder has
ceased, even if the period of treatment has not expired.
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There should also be a legal recommendation for national courts to
apply the case law of the European Court of Human Rights to decisions in
cases involving violations of the rights of criminals with mental disorders
who have been subjected to coercive medical measures. This will avoid the
typical mistakes made by courts in this category of cases. When applying
these criminal law measures, a requirement should be established for the
courts to clearly state the terms and type of the measures in the conclusions
on the application of coercive medical measures.
The application of any criminal law measure must comply with the
principles of criminal law and not violate human rights and freedoms.
Therefore, the application of such measures should be necessary and
sucient to achieve the goal of their application — recovery, rehabilitation
and loss of public danger of a person with mental disorders who committed
the crime. Therefore, the possibility of early termination of the application
of coercive medical measures should be regulated by law in the event that
such a patient is cured and no longer needs medical care.
These recommendations should be enshrined at the level of international
(in the Principles for the Protection of Persons with Mental Illness and the
Improvement of Mental Health Care) and national (in criminal law and
criminal procedure law) legislation.
4. Discussion
Given the above, the application of coercive medical measures against
persons who have committed a crime while suering from certain types of
diseases as a criminal measure is a socially necessary step. The application
of such measures is rightly considered an instrument of public (in terms of
protecting society and other people) and personal (in terms of protecting
the person in need of treatment) security in modern society (Dos Reis and
Guareschi, 2016). This step is quite justied both from the standpoint of
protection of human rights and freedoms, despite the compulsion to treat
people with mental disorders, drug addiction, alcoholism (Israelsson et al.,
2015), and from the perspective of security (Pukavskyi and Kushpit, 2019).
But coercive medical measures should be applied to the extent necessary
and sucient to assist and ensure safety (Reitan, 2016). Therefore,
the expediency of applying certain coercive medical measures is rather
doubtful. In particular, the use of chemical castration of certain types of
criminals is unacceptable (even in case of paedophilia and similar crimes)
(Zhuang, 2018), because such a medical measure to prevent crime is not
only the correction and re-education of the convict, but also intervention
in physiological processes that violate the rights of these persons. It is also
unacceptable to use repressive measures during compulsory treatment of
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Legality of Applying Coercive Medical Measures in Criminal Law
perpetrators, as it is an unjustiably cruel measure and abuse that violates
human rights and contradicts the provisions of the Convention for the
Protection of Human Rights and Fundamental Freedoms (Windle, 2017).
The position on the complete refusal to use coercive medical measures
as measures of criminal law inuence on persons who have committed a
crime is contradictory. The refusal of their compulsory treatment and the
use of social care for them as other patients who did not commit a crime is
contrary to the rights of the latter, and it will pose a threat to personal and
public safety (Ferracuti et al., 2019). Nor can we agree with the position
that compulsory treatment of drug and alcohol addicts violates the rights
of the latter and is ineective (Lövgren, 2021; Lunze et al., 2016), as these
individuals are not fully able to control and realize their actions, which also
poses a threat to both those individuals and society.
Instead, it is appropriate to consider the treatment of persons with
mental disorders, alcoholics and drug addicts (including those who have
committed crimes) compulsory, but the use of such coercive measures
must be clearly justied, and the threat that may arise in the absence of
such measures can harm the lives and health of these and other individuals
(Pasareanu et al., 2017). Therefore, stricter and clearer criteria for the
use of compulsory treatment of persons in mental health care institutions
(Zinkler, 2016), as well as a mechanism for the use of compulsory treatment
of perpetrators (Brochu and Levesque, 1991) should be developed at the
national and international levels.
Conclusions
The study leads to the conclusion that the use of coercive medical
measures in their legal meaning and wording does not violate international
and national law in the eld of human rights and freedoms. But there are
certain violations and problems in the practical application of criminal law
governing the use of coercive medical measures.
According to the results of the study on the legality of coercive medical
measures, a number of proposals and recommendations were made to
improve the practical application of these measures: expand the range of
grounds for coercive medical measures, including the following:
a) recognition of the person who committed the crime as having a real
mental disorder, based on the conclusions of an objective impartial
medical examination.
b) the nature and degree of mental disorder of the person who committed
the crime must be such that it requires the use of a specic medical
technique.
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c) the hospitalization of a person who has been declared mentally ill
may not continue if it has been established that the mental disorder
has ceased, even if the period of treatment has not expired (in the
relevant provisions of national criminal law).
We also propose to regulate the possibility of early termination of the
application of a coercive medical measure in the event that such a patient
has been cured and no longer needs medical care at the legislative level (in
the relevant provisions of national criminal law).
The next proposition is to establish in the relevant norms a requirement
for the courts to clearly determine the terms and type of the measures in
the conclusions on the application of coercive medical measures (in the
relevant provisions of national criminal procedure legislation).
We suggest to encourage national courts to apply the case law of the
European Court of Human Rights in cases involving violations of the rights
of criminals with mental disorders that have been subject to coercive medical
measures (Principle 20 of the Principles for the Protection of Persons with
Mental Illness and the Improvement of Mental Health Care).
Making these changes in the relevant legislation will contribute to further
humanization, individualization and proportionality in the application of
criminal law measures.
This study is not exhaustive and does not address all issues related to the
application of coercive medical measures to persons who have committed
a crime in a state of limited sanity, insanity or acquired such a state before
sentencing or while serving a sentence. Providing proposals to improve
the legislation on the application of these criminal law measures open up
prospects for further research in this area, which will improve the regulatory
framework and the practical implementation of coercive medical measures.
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