Features of the criminal procedural status of a person in respect of whom proceedings are being conducted on the application of compulsory medical measures

Ruchina Aleksandra Andreevna Senior Lecturer of the Criminalistics Department of the Siberian Law Institute of the Ministry of Internal Affairs of Russia, Candidate of Law. 660021, Russia, g. Krasnoyarsk, ul. Rokossovskogo, 20 Alzaa91@yandex.ru Other publications by this author

The criminal procedural status is determined by the legal status of a participant in criminal procedural legal relations, is a means of implementing his criminal procedural function and therefore is of particular importance for ensuring the appointment of criminal proceedings. At the same time, there is practically no experience in law enforcement activity in making an appropriate procedural decision indicating the beginning of proceedings on the use of compulsory medical measures and involving a person as a key participant in these legal relations. Thus, in 87% of the studied archival criminal cases, there was no resolution on the initiation of proceedings on the use of compulsory medical measures, in 13% a resolution was issued on the termination of criminal prosecution. This situation is caused by the fact that the legal status of the person against whom the proceedings on the application of compulsory medical measures are being conducted is not defined in the Criminal Procedure Law. This gap in legislation has caused enough discussions in the science of criminal procedure and requires special attention. At the moment, I would just like to note that the ambiguous legal status of a person suffering from a mental disorder has determined the features of his criminal procedural status.

Based on the provisions of the Criminal Procedure Law, a person who has committed a socially dangerous act in a state of insanity and a person who has a mental disorder after committing a crime have the criminal procedural status of a suspect, accused. At the same time, E.V. Medvedkova and S.A. Yakovleva rightly note that the procedural statuses of these persons are different ^{[6, pp.87-95]}. In general, supporting the position of these authors, we believe that the decision of the legislator is not groundless. Despite the fact that the person against whom the proceedings on the use of compulsory medical measures are being conducted is not the subject of a crime and, as a result, criminal prosecution is not carried out against him, law enforcement agencies, in order to establish the involvement of a mentally ill person in the committed act, carry out certain investigative and other procedural actions affecting the rights, freedoms and legitimate the interests of this participant in criminal proceedings. We think that is why the legislator is trying to protect mentally ill participants in criminal proceedings from the adverse effects of law enforcement agencies, giving them a fairly wide range of rights to protect their interests.

At the same time, we believe that the content of the criminal procedural status of the person against whom the proceedings on the application of compulsory medical measures are being conducted should be modified with respect to his legal status. So, if the criminal procedural status of a suspect or accused includes the right of a person to know about the nature of suspicion and the charge brought against him, then the criminal procedural status of a person suffering from a mental disorder should contain the right to explain the nature and degree of public danger of the committed act, the content and specifics of the proceedings, as well as the legal consequences of the use of compulsory medical measures. character ^{[3, 46]}. This is necessary so that a person suffering from a mental disorder can correctly understand the purpose of the proceedings on the application of compulsory medical measures, as well as determine the tactics of protecting their rights and legitimate interests in criminal proceedings.

For the convenience of perception of the rights of a person against whom proceedings are being conducted on the use of compulsory medical measures, they can be divided into several categories.

The first set of criminal procedural rights of the considered participant in criminal procedural legal relations is represented by the rights to clarify their own legal status in criminal proceedings:

• to know the nature and degree of public danger of the committed act;

• know the content and procedure of proceedings on the application of compulsory medical measures;

• know about the nature of legal consequences, types, content and features of compulsory medical measures.

The second group of rights includes the rights to provide assistance provided by law (defender, legal representative, psychiatrist, etc.)

The third group of rights includes the rights realized with participation in the process of proving a criminal case. For example, the right to present evidence, the right to participate in investigative actions, the right to testify, etc. At the same time, in law enforcement practice, this category of rights of a person against whom proceedings on the use of compulsory medical measures are being conducted is not fully implemented. In 57% of criminal cases under investigation, a person suffering from a mental disorder does not participate in the production of investigative actions, or participates, but in the production of investigative actions that do not involve the mental and mental activity of their key participant. For example, identification or obtaining samples for comparative research.

The fourth group of criminal procedural rights used to obtain information about the progress and results of the investigation in a criminal case should include such rights as the right to get acquainted with the protocols of investigative actions, the right to get acquainted with the decision on the appointment of a forensic examination and expert opinion, etc.

As the fifth and final category of rights of a person suffering from a mental disorder, we have identified the rights of a person who allows influencing the course and results of a criminal case.  For example, this is the right to submit comments, submit petitions, bring complaints, and more.

In addition to procedural rights, the legal status of a participant in criminal procedural legal relations also includes legal obligations. According to S.O. Zavyalov, legal duties represent the type and measure of proper, socially necessary behavior. E.I. Ivanov concretizes this concept, understanding by legal duties the type and measure of necessary behavior of the obligated person corresponding to the subjective right of the authorized person and ensuring its existence ^{[5, p. 108]}. In turn, Professor N.V. Vitruk draws his attention to the goals of legal duties - the use of certain benefits and values to satisfy both his own and public, corporate and other needs and interests on the basis of their unity and combination ^{[3, p. 234]} Taking into account the opinions of the authors presented, we believe that under legal duties should be understood as the proper behavior of the subject of legal relations, recognized by the legislator as necessary and provided by measures of state coercion. At the same time, it should be noted that the assignment of duties to the subject of legal relations is possible only if he is able to give an account of his actions and direct them. The state of insanity of a person excludes these signs, and, consequently, the person against whom the proceedings on the application of compulsory medical measures are being conducted cannot be assigned legal duties and, as a consequence, this participant in the criminal process cannot bear legal responsibility for non-fulfillment of duties.

At the same time, one of the conditions for the existence of legal relations is the so–called "balance of rights and obligations" - the provision and implementation of a certain set of rights require the imposition and execution of the corresponding set of obligations ^{[2, p. 82]}. So, for example, the right of a person against whom proceedings on the application of compulsory medical measures are being conducted to apply for an investigative action corresponds to the investigator's obligation to consider this petition, or the right of the participant in question to the assistance of a legal representative presupposes the investigator's obligation to ensure his participation in criminal proceedings.

 The second rule of the "balance of rights and obligations" is that the assignment and performance of duties creates an opportunity for the granting and use of rights With respect to this rule, noted by O.A. Zelenina, it should be said that in the proceedings on the application of compulsory medical measures, it will not be implemented, since the key participant in the legal relationship does not realize the nature of his actions and unable to control them.

Proceeding from the above, we can say that in the proceedings on the application of compulsory medical measures, there is no balance between the rights and obligations of participants in criminal procedural legal relations. The noted problem will be solved by the participation of a legal representative of a person suffering from a mental disorder in criminal proceedings. We think that during the criminal proceedings, the legal representative is obliged to:

· take measures to create conditions for the appearance of a person against whom proceedings are being conducted on the application of compulsory medical measures, at the call of an official conducting criminal proceedings or a court;

· take measures to create conditions for the participation of this person in the production of investigative and procedural actions;

· take measures to create conditions for the participation of a person against whom proceedings are being conducted on the application of compulsory medical measures in a court session;

· take measures to create conditions for the execution of a court order on the use of compulsory medical measures.

             In this case, we are talking about the obligation to take the necessary measures to ensure the participation of a person suffering from a mental disorder in the criminal process, since the legal representative, being a close relative, has a real opportunity to have a positive impact on the represented person, as well as to ensure the participation of the person in the production of investigative and other procedural actions and in the judicial the meeting. In the event that the legal representative does not have such an opportunity, he must react, take appropriate measures – inform the investigator about the location, condition, and features of the behavior of the represented person. In turn, the investigator, having such information, will be able to apply more effective measures to ensure criminal proceedings, for example, turn to the help of specialized medical psychiatric organizations or, in accordance with the law, to the authorized executive authorities.

In summary, I would like to note that the person against whom the enforcement proceedings are being conducted has an independent criminal procedural status, the content of which is only the rights of the person in question. Due to the peculiarities of the psyche, legal duties and legal responsibility are not elements of the procedural status of this participant in criminal proceedings. At the same time, the rights of a person suffering from a mental disorder, being the only means of realizing his legal status, are especially important for this participant in the criminal process.