Open AccessThe term of the inpatient forensic psychiatric assessment and its continuation in criminal proceedings
Author(s) -
O.I. Tyshchenko
Publication year - 2021
Publication title -
problemi zakonnostì
Language(s) - English
Resource type - Journals
eISSN - 2414-990X
pISSN - 2224-9281
DOI - 10.21564/2414-990x.153.228513
Subject(s) - legislation , legislator , criminal code , normative , criminal procedure , term (time) , commission , law , political science , procedural law , legislature , criminal law , time limit , psychology , psychiatry , criminology , medicine , engineering , physics , systems engineering , quantum mechanics
The article discusses the problematic issues of calculating the term for placing a person in a medical institution for the purpose of conducting the inpatient forensic psychiatric assessment (hereinafter referred to as the FPA) in criminal proceedings.Based on the materials of judicial practice: 1) a wide variability of the approaches of judges is demonstrated in the determination of the term for carrying out the FPA in the resolutions (since the legislator, in part 2 of Article 509 of the Criminal Procedure Code of Ukraine (hereinafter – the CPC), indicates only the upper limit of the time period for carrying out the FPA – up to two months); 2) the decisions of judges on the prolongation of the FPA are highlighted and analyzed. The necessity of legislative regulation of prolongation of the FPA term at the level of criminal procedural legislation of Ukraine is proved.In a comparative aspect, the normative regulation of the FPA term and the procedural mechanism of its prolongation in the criminal procedural legislation of the neighboring countries – Kazakhstan, Moldova, Uzbekistan, Estonia, etc. are illustrated. At the same time, the positive experience of foreign countries was recognized as suitable for adoption in the following aspects: (a) determination of the term of the FPA in days; (b) prolongation of the FPA at the reasoned request of the expert (commission of experts); (c) prolongation of the FPA for up to 30 days. In this case, the general term of a person’s stay during one FPA cannot exceed 90 days. However, if an additional or repeated FPA is required, its term must be recalculated. Attention is focused on the fact that the results of the assessments carried out may be different, but the establishment of a reliable mental state of a person acquires particular importance when deciding whether a person is subject to criminal liability. Therefore, it is emphasized that it is inexpedient to propose legislative regulation of the term limit for conducting the FPA in relation to a specific person in one criminal proceeding.It is concluded that since the issue of sending a person to a medical institution for a psychiatric assessment is resolved in the manner prescribed for submission and consideration of applications for precautionary measures (Part 2 of Article 509 of the CPC), it is logical that the prolongation of the inpatient FPA may occur in the order of extension of detention (Article 199 of the CPC).