An important feature of the functioning of the penitentiary system in our country is the ability to pardon a criminal in the event that he realizes the gravity of his misconduct and the inadmissibility of such a crime in the future. Meanwhile, amnesty is an exceptional and very rare phenomenon. Much more often prisoners apply for release, to which retaliation measures cannot be applied for their state of health. The law approved a special list of diseases that impede the serving of sentences in the colony. We are talking about pathologies with which a prisoner risks not surviving a prison term.
The criminal law of the Russian Federation has a legal mechanism for freeing a person from staying in places not so remote. In the case of an illness that affects the mental or physical health of the prisoner, the prisoner or his legal representatives have every chance of achieving a legal delay in serving the sentence or even their final release.
Why does the state release sick prisoners
It’s not a secret for anyone that the Russian zones have nothing in common with sanatoriums: meager unbalanced food, disgusting environmental conditions, difficult life and a complex hierarchical system of relations among prisoners. Everyone who goes to prison wants to get out, and therefore they are ready to use every opportunity. In this sense, health problems and a disease on the list that impede serving a sentence are a disappointing but legal chance to leave the gloomy prison walls.
The state, providing the judicial structure with the authority to decide on the release of criminals from retaliation, is guided by the following fairly weighty arguments:
- A mentally insane person who has committed a crime that is classified as a crime in criminal law is not capable of re-education. Mentally ill people cannot perceive the corrective effect of retribution determined by the law, since they are not responsible for the consequences of their actions and do not recognize themselves as rational people.
- In a humane society, it is unacceptable to punish an individual if it can entail a painful death accompanied by suffering. Being in depressing conditions of imprisonment will aggravate the prisoner's already grave state of health.
- A disease that is included in the list of diseases that impede serving a sentence in a colony can be contagious, which means it threatens people around, which is also a fundamentally important point. When passing the verdict, the judge must take into account the fact that a sick criminal is capable of condemning to death and torment cellmates, employees of correctional institutions.
Abroad, usually no one is surprised at the practice of early release of a person from further stay in prison, if it is due to pathology from the list of diseases that impede the serving of sentences.
In addition to the list of diseases, Decree of the Government of the Russian Federation of February 6, 2004 No. 54 also contains the rules for the examination of persons submitted for release. However, according to the statistics of the Russian penitentiary system, only in 50% of cases does the court grant the convict's request for a postponement or stay in a colony due to a serious illness.
Can release from prison due to illness. Legal grounds
The Criminal Code of the Russian Federation (Article 81) defines three circumstances under which a prisoner may be prescribed a medical examination in case of suspected pathology from the list of diseases that impede the serving of a sentence of arrest in a colony:
- mental disorders;
- damage to internal organs and serious functional disorders of the body caused by infectious, oncological, genetic pathologies;
- illness of a serviceman that has caused disability.
The first category includes psycho-emotional disorders that lead to the loss of control over their behavior and the ability to adequately assess its consequences for others. The petition is submitted, as a rule, by the administration of the colony or the legal representative of the prisoner (lawyer). The findings of the medical board and the personal file of the convicted person must be attached to the petition.
The algorithm for submitting a petition in case of detection of a serious illness is similar. However, in the first case, the patient can leave the colony almost unconditionally. The court is obliged to "automatically" release a person with mental disorders.
What are the chances of release
The situation will be a little different if the reason for the petition is any violation of physical health from the list of diseases that impede the serving of a sentence of arrest. The decision is approved by the court, and therefore the fate of the sick prisoner is only in the hands of justice. There are frequent cases when judges, based on the materials of the case and taking into account the severity of the disease, the term of imprisonment and the personal characteristics of the prisoner, decided that he did not need an amnesty, as his state of health supposedly allowed him to remain in the colony further. In this case, the convicts have only one way out: try to appeal the verdict.
It is also worth noting that exemption from stay in a penal colony is conditional. After recovering, the released person will have to return to the zone, unless the statute of limitations of the crime expires, in accordance with the provisions of the Criminal Code of the Russian Federation.
If a mental disorder in the defendant arose after the commission of a crime, he shall be released from legal punishment. If a prisoner falls ill while already in the zone, he can also be released. A prisoner who is not aware of the danger of his actions to the public is sent by the court for compulsory medical treatment to a psychiatric dispensary.
Unprofitable for military service
Special attention should be paid to the issue of the release from prison of servicemen. The list of diseases that impede the serving of sentences is approved for this category of prisoners. A serviceman who is under arrest is also released upon confirmation of a serious ailment.
A disease that makes a person unfit for further service is also a basis for commuting a sentence. An unserved term in a correctional colony may be replaced by a fine or deprivation of rank or award. By analogy with actions, the decision on this type of exemption is unconditional and irreversible, is final.
Healing instead of retribution
Undoubtedly, there is no sense in punishing a person who has lost legal capacity, is not able to answer for his actions, has no moral, ethical, moral ideas about the restrictions and prohibitions due to mental disorder. An individual with such violations will not be able to realize why he is charged with certain educational measures. Alienation from society is an inevitable measure, while a person should not be subject to corrective measures in correctional institutions. In order to “correct” a mentally ill patient and direct him on the true path, you must first restore his ability to control his actions, of course, by undergoing treatment in a psychiatric clinic.
To expose a terminal or seriously ill person to stay in prison is inhumane, since punishment deprives him of the opportunity to undergo full treatment, negates even the minimal chance of recovery. The life of such a prisoner lies on the scales, and, agreeing to expose him to the risk of death, the penitentiary system automatically exceeds the permissible degree of punishment for a crime, which is absolutely unacceptable.
Qualifying Principles
It is possible to talk about the possibility of delaying the sentence or release only if there are clear indications for the passage of the medical commission and medical examination. Only experts are able to give an objective assessment of the state of health of the convict. In this case, the most important condition for the onset of legal grounds for release is the proof of the absence of a simulation of a disease that impedes serving a sentence in a colony. The list of diseases is approved by the Government of the Russian Federation. The document was last amended on May 19, 2017. The decision on the list of diseases that impede serving the sentence is based on the norms and provisions of the Criminal Code of the Russian Federation, according to which the grounds for release or mitigation of punishment should not depend on the will of the defendant, and therefore self-mutilation is not a reason for exemption from punitive measures.
The point should be focused on: suspension of a sentence cannot be considered final. If a person succeeds in restoring physical or mental health, he will have to serve the remaining term stipulated by the court verdict. The criminal will be able to avoid retaliation only if he remains in a sick condition until the statute of limitations of the crime expires and punishment for him.
By the way, compulsory medical treatment of a mentally ill person is comparable to serving in correctional facilities. Every day spent in the hospital is equated with being in a colony.
What diseases are classified as obstructive sentences
The list of diseases is approved, as already noted, by the Government of the Russian Federation. The current list of ailments that give the right not only to release from custody, but also to terminate or postpone the prosecution, cancel the sentence or postpone its execution, was adopted in February 2004. In the latest edition, the list of diseases that impede the serving of sentences was increased to 57 positions, despite the fact that previously included only 41 names of pathologies. The amendments made a significant impact on the capabilities of the law office dealing with amnesty, parole and sick leave. It is impractical to give the entire list of diseases that impede the serving of sentences in the form of extracts from an official document, but it is still necessary to mention the main categories.
In addition to mental disorders, which are manifested by insanity and inadequate behavior (including psychoses, bipolar disorders, schizophrenia, dementia), one can get rid of punitive measures of the penitentiary system due to other pathologies. Briefly, the list of diseases preventing the arrest and serving of sentences in the colony is as follows:
- A prolonged course of chronic diseases caused by tubercle bacillus in severe form.
- Oncological pathologies that are not subject to surgical treatment to remove tumors.
- Diseases of the endocrine system, including complications of diabetes mellitus, adrenal insufficiency, gout, pituitary and hypothalamic neoplasms.
- Functional disorders of the central and peripheral nervous systems.
- Blood diseases with complications.
- Cardiovascular diseases occurring in severe forms.
- Chronic lung pathology.
- Hemorrhagic types of ailments of the gastrointestinal tract, abdominal organs.
- Renal and liver failure.
- Urogenital diseases.
- Dysfunctions of the musculoskeletal system with severe and persistent malfunctions in the work of other organs and systems.
- Amputations of limbs.
- AIDS.
Procedure for passing a medical examination
Having made sure that in the indicated list of diseases that impede the serving of punishment in the form of arrest and other punitive measures, there is the same disease, the convicted person (his representative) will have to get an appropriate opinion from the experts. The verdict of physicians should be supported by the official conclusions of the commission of the MPI GUFSIN. In general, the procedure for examination by experts has the following features:
- The medical board should include at least three doctors.
- A person is subject to the examination procedure in case of suspicion of an illness, which refers to the list of diseases that impede the serving of punishment, within ten days from the date of submission of the relevant documents.
- The patient is informed of the prisoner how the examination procedure will go, as well as the date of the appointment.
- As one of the evidence of pathology, a medical history can be taken. Specialists have the right to request additional materials about the patient’s state of health or send them for re-examination.
- The conclusion about the presence of a serious illness or absence thereof is adopted by a majority vote of the members of the commission.
- The results of the examination are announced against signature to the convict or his lawyer. A copy of the report shall be transmitted to the applicant within 3 days from the date of this report.
The convicted person or his representative have the right to appeal the decision.
Main problems
The law does allow for the possibility of release from prison of a person who suffers from an illness from the list of diseases that impede the serving of sentences. In judicial practice, there have been many cases where the provisions of article 81 of the Criminal Code apply. However, positive decisions were made mainly in relation to those convicts who fell ill after a perfect misconduct. Consequently, people who were affected by the disease at the time of the crime are out of the question. In the absence of other legal grounds, they cannot be exempted from the enforcement of the sentence.
Despite the introduction of changes to the list of diseases that impede the serving of sentences, the mechanism of medical examination of prisoners is still far from perfect. The most obvious gap in the system is the subjectivity of the doctors ’opinion and the likelihood of falsification of the commission’s decision. However, this model of confirmation of serious illnesses allows the possibility of exemption from punishment of the defendant, who is trained in appropriate behavior, is able to simulate the symptoms of the disease. With some ailments, external signs may be completely absent, which opens a wide horizon for repeat offenders. Having imitated a mental disorder or illness, which is included in the list of diseases that impede serving a sentence, the offender has the theoretical ability to avoid paying back for the deed and re-implement his evil intentions again and again.
Most often, simulated convicts demonstrate “mental insanity” for the sole purpose of getting into a mental hospital instead of prison beds. In specialized medical facilities, the conditions of stay are much more comfortable and softer. In addition, in order to play the role of a person with a mental disorder, there is no need to pay for the fake conclusions of laboratory tests and resort to corruption. All that is needed is to study the patient’s behavior model and have excellent acting skills.In isolated cases, this helps the simulators to avoid the hardships of corrective action.
How is the release
Only judicial authorities can issue a decision to suspend a sentence. Moreover, the decision should be made by the judge who convicted the offender. A petition (application) to the appropriate authority must be submitted either by the convicted person or his legal representatives.
Based on the application, a decision is made on the need for a forensic study or psychiatric examination, for which specialized specialists are involved. After a diagnosis is established and the severity of the disease, the report is submitted to the court. If the conclusion confirms that the convict suffers from an illness that is included in the list of diseases that impede the arrest and serving of sentences in the colony, this becomes a real basis for the release of the prisoner or for referral to a course of treatment with subsequent rehabilitation.
After some time, a re-examination is carried out, the results of which confirm or deny the impossibility of being in prison. If the state of health still does not allow the convict to answer for his atrocities before the law, he is left to freedom. The court also establishes the frequency with which the offender must be examined and confirm the diagnosis. The criminal case is subject to complete closure only in the case of diagnosing a pathology, the treatment methods of which are currently unknown, or when the statute of limitations has expired.