ST 128 of the Criminal Code of the Russian Federation.
1. Illegal hospitalization of a person in a medical organization providing psychiatric care in an inpatient setting is punishable by restriction of freedom for a term of up to three years, or forced labor for a term of up to three years, or imprisonment for the same term.
2. The same act, if it was committed by a person using his official position or caused by negligence the death of the victim or other grave consequences, is punishable by forced labor for up to five years with deprivation of the right to hold certain positions or engage in certain activities for up to three years. or without it, or by imprisonment for a term of up to seven years with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.
Commentary to Art. 128 Criminal Code
1. The victim may be a mentally healthy person or a mentally ill person placed in a medical organization providing psychiatric care in an inpatient setting, in violation of the placement procedure and (or) in the absence of grounds for placement.
2. The objective side consists of the illegal hospitalization of a person in a medical organization providing psychiatric care in an inpatient setting. The procedure for hospitalization is regulated by the Law of the Russian Federation of July 2, 1992 N 3185-1 “On psychiatric care and guarantees of the rights of citizens during its provision.” According to Art. 29 of this Law, a person suffering from a mental disorder may be hospitalized in a medical organization providing psychiatric care in an inpatient setting, without his consent or without the consent of one of the parents or other legal representative until a judge’s decision, if his examination or treatment is possible only in an inpatient setting , and the mental disorder is severe and causes: a) his immediate danger to himself or others, or b) his helplessness, i.e. inability to independently satisfy the basic needs of life, or c) significant harm to his health due to deterioration of his mental state if the person is left without mental health care.
3. Illegal detention of a person who has been completely cured in a medical organization providing psychiatric care in an inpatient setting should be qualified under Art. 127 CC.
4. The corpus delicti is formal and is considered completed from the moment of illegal hospitalization of a person in a medical organization providing psychiatric care in an inpatient setting as a patient.
5. Special subject - a person who has reached the age of 16 years and is authorized by law to make a decision on involuntary hospitalization in a medical organization providing psychiatric care in an inpatient setting. Other persons who have reached the age of 16, such as family members, relatives, etc., are responsible for complicity as organizers, accomplices or instigators.
A judge who made an illegal decision on the forced hospitalization of a person in a medical organization providing psychiatric care in an inpatient setting is subject to liability under Part 1 of Art. 305 CC.
6. In part 2 of Art. 128 of the Criminal Code provides for the following qualifying criteria: a) commission of a crime by a person using his official position; b) causing the death of the victim through negligence or the occurrence of other grave consequences.
A Moscow court assessed illegal placement in a psychiatric hospital for a month at 20 thousand rubles.
On December 25, the Tverskoy District Court of Moscow issued a decision (available from “AG”), which awarded the citizen 20 thousand rubles. as compensation for moral damage for illegal hospitalization in a psychiatric hospital, reducing the amount requested by the plaintiff by 50 times.
Reasons for applying to court for compensation for moral damage
On June 16, 2011, a disabled person of the third group, Evgeny Alekhin, was detained by police officers and on the same day he was forcibly placed in the State Budgetary Institution of Public Health PKB No. 1 named after N.A. Alekseeva, where he previously received treatment. A week later, the hospital went to court demanding his forced hospitalization. The medical institution justified its demands by citing the patient’s mental illness and his danger to himself and others.
The trial took place in the absence of Evgeniy Alyokhin; only his lawyer and attending physician, as well as the prosecutor, were present. As a result, the Simonovsky District Court of Moscow satisfied the applicant’s request, and subsequently its decision was upheld on appeal. The total period of compulsory treatment of the citizen was 29 days; he left the hospital only on July 15.
In November 2014, the Presidium of the Moscow City Court canceled previously issued judicial decisions in the case due to violations of procedural law by lower authorities. “Information about the consideration of this case directly on the premises of the psychiatric clinical hospital No. 1 named after N.A. Alekseev is missing, as well as there is no information that the court took all the necessary measures to exercise the right of Evgeniy Alyokhin to personally participate in the judicial consideration of the issue of his hospitalization,” noted in the resolution of the Moscow City Court (available to “AG”).
With reference to the Determination of the Constitutional Court of the Russian Federation No. 544-O-P of March 5, 2009, the Moscow City Court noted that forced isolation from society of persons suffering from mental illness, due to their alleged danger to themselves or others, affects the following constitutional rights: freedom of movement, right to freedom and personal security. “At the same time, the citizen whose forced hospitalization is in question is deprived of the opportunity to in any way challenge the point of view of a representative of the mental hospital that he cannot attend the court hearing in the courthouse. It is precisely because of this that the role of the court in such cases cannot be reduced only to formally satisfying the application for compulsory hospitalization of a citizen or extension of the period of his compulsory hospitalization: the court is obliged to make sure that there are no grounds to doubt the reliability and completeness of the information provided by psychiatrists in support of the need for court hearing in a psychiatric hospital, with such information in accordance with Part 2 of Art. 67 of the Code of Civil Procedure of the Russian Federation cannot have pre-established force for the court and are subject to assessment in conjunction with other evidence based on the internal conviction of the judge,” the Moscow City Court explained.
Thus, the cassation considered that Evgeny Alekhin was deprived of the right to challenge the point of view of a representative of a psychiatric hospital due to his absence at the court hearing. The case was sent for a new trial at first instance.
In March 2022, the Simonovsky District Court rejected the claim of a psychiatric hospital for the forced hospitalization of Evgeniy Alyokhin. In the decision (available to “AG”), the court indicated that the basis for hospitalization was the conclusion of a commission of doctors, but the hospital did not prove its validity. “The conclusion of psychiatrists of a psychiatric institution acts as one of the evidence provided for by law, which it is obliged to present to the court, but it is not an expert’s conclusion in the sense of Art. 86 of the Code of Civil Procedure of the Russian Federation,” the court’s decision notes.
The court reduced the amount of compensation for moral damage by 50 times
Subsequently, Evgeny Alekhin filed a lawsuit against the Russian Ministry of Finance and the Moscow Department of Finance to recover compensation for moral damage in the amount of 1 million rubles. In support of his claims, the citizen referred to the moral suffering he experienced associated with hospitalization in a psychiatric hospital and forced treatment there.
He indicated that he was prescribed antipsychotic drugs, which were administered to him forcibly. In addition, he was placed in the general corridor of the hospital, and during the entire period of his stay there he was not transferred to a ward. He indicated that because of this he was deprived of normal rest and sleep, as he was escorted past patients who arrived at the hospital, most of whom were in a state of acute psychosis.
The Tverskoy District Court of Moscow agreed with the plaintiff’s argument that the defendant in the civil dispute is the Russian Ministry of Finance. The first court also found the plaintiff's request to be awarded compensation for moral damages due to the unlawful nature of his hospitalization to be justified. In doing so, the court took into account the patient’s age, his illness, disability due to psychiatric illness, the duration of forced hospitalization and the frequency of appropriate treatment.
At the same time, with reference to various provisions of the Civil Code of the Russian Federation and explanations of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 20, 1994 No. 10, the court noted that when determining the amount of compensation for moral damage, one should take into account the nature, volume and duration of the moral suffering caused to the plaintiff, the individual characteristics of the latter ( including his age and state of health), the degree of guilt of the defendant, as well as the requirements of reasonableness and fairness.
The Tverskoy District Court concluded that compensation of 20 thousand rubles. will be sufficient. “The court considers the specified amount of compensation for moral damage to correspond to the factual circumstances of this civil case, reasonable and fair, meeting the requirements of good faith and the amount of suffering experienced by the plaintiff. The court considers the plaintiff’s demands for compensation for moral damage in a larger amount to be disproportionate to the damage caused,” the court’s decision noted.
The appeal has already been filed
Lawyer of the human rights organization “Zone of Law” Ilnur Sharapov, who represented the interests of Evgeny Alyokhin in the Tverskoy District Court, told AG that he had already filed an appeal (available to the editors).
The complaint notes that the court's decision is unfounded in terms of the amount of compensation for moral damage, as well as taken without taking into account the circumstances that are essential for the correct resolution of the case.
“We consider the court’s decision regarding the assigned amount of compensation for moral damage to be unfounded. Unfortunately, in Russia there is very little practice in such cases, so we asked the court to focus on the decisions of the European Court in similar cases. Since the court of first instance did not properly assess our arguments, we expect that the appellate court will nevertheless change the decision and increase the amount of compensation,” commented Ilnur Sharapov.
AG experts pointed out the extremely low amount of compensation awarded by the court
Lawyer, Chairman of the Bar Association of the Bio-Ecological Safety and Health System of the Russian Federation Yuri Mezhenkov believes that in the case under consideration the court was based on a simple principle: if the decision made against the plaintiff is unlawful and canceled, therefore, the claim for compensation for moral damage is justified. “The resolution of the Presidium of the Moscow City Court dated November 21, 2014, which overturned previous judicial acts, is of much greater interest. The cancellation was based on either procedural violations of lower courts or violated patient rights,” he noted.
According to the expert, in the present case the court did not indicate the reason why the plaintiff was first hospitalized in a psychiatric hospital and then discharged. “Most likely, the plaintiff’s hospitalization and then discharge occurred for medical reasons. In total, he spent about one month in the hospital. It’s hard to say whether it’s a lot or a little, but if you compare it with the high-profile case of psychiatrist Andronova from Astrakhan, then the amount is 20 thousand rubles. for a month of illegal hospitalization is negligible. After all, for similar actions, doctor Andronova was found guilty by the Kirovsky District Court of Astrakhan under Part 1 of Art. 293 of the Criminal Code of the Russian Federation, and from her, and not from the budget of the Russian Federation, 500 thousand rubles were recovered in favor of the victim. Meanwhile, in this case, the victim (civil plaintiff) spent less than a day in a psychiatric hospital,” noted Yuri Mezhenkov.
Lawyer of Onegin Law Firm Dmitry Bartenev explained that court decisions on compulsory hospitalization in a psychiatric hospital are canceled very rarely, but if this happens, it is often, as in the situation in this case, after the end of such hospitalization. “If the case is sent for a new trial and subsequently (after the termination of compulsory treatment) the court refuses hospitalization, then such a decision can have only symbolic meaning for the person himself. In this case, the plaintiff still achieved compensation, but this is rather an exception,” he noted.
Second commentary to Art. 128 of the Criminal Code of the Russian Federation
1. The main direct object of the crime is social relations that ensure a person’s right to freedom of movement and choice of place of stay (residence). An additional object is public relations regarding the exercise by a person of the right to dignity, honor and reputation.
2. The objective side consists of involuntary, forced hospitalization of a person in a medical organization providing psychiatric care in an inpatient setting, in the absence of legal grounds for this.
The crime is recognized as completed from the moment of actual groundless placement of a person in a medical organization providing psychiatric care in an inpatient setting, or from the moment of illegal refusal to discharge from it.
3. The subjective side is characterized by direct intent.
4. The subject of the crime is special: a person authorized in accordance with the law to make a decision on involuntary, compulsory hospitalization in a medical organization providing psychiatric care in an inpatient setting.
5. The content of the qualifying characteristics coincides with the corresponding characteristics of human trafficking.
Types of slander and methods of distribution
The article for defamation of a person provides for several types of it. For example, the criminal code (article libel) includes :
- Slander that undermines his reputation.
- Defamation of a serious felony or a person committing a sexual offense.
- Slander about a disease that is dangerous for all other people.
- Slander for all to see.
- Slander by a person who holds some kind of official position.
Prosecution for libel and punishment for libel directly depends on its type.
Note! The more serious the type and method of dissemination of false data, the higher the fines and other criminal sanctions.
This method will also be public when data is distributed on the Internet.
Public libel is the expression of information that is obviously unfair. For publicity, at least two people must be present. This method will also be public when data is distributed on the Internet, newspapers, news, etc.
Moreover, the information must be truly false and the criminal must know about it. If he disseminates information and truly believes that it is true, there will be no crime in this situation.
False information about the disease means that the criminal defames another citizen that he has AIDS, tuberculosis and other socially dangerous diseases.
If a person is slandered with the help of information obtained by him in the course of his work (official) activities, then the act will be qualified under another article. This arises in a situation where doctors disseminate information about their patients, for example. Such information must be false in order to be prosecuted for libel.
How to punish a person for slander
The question arises - how to hold people accountable for libel? To do this, you must have sufficient evidence. As a rule, if this happened in a public way, for example, in the media or on the Internet, then there are no difficulties in proving it.
But what about situations where information comes from a criminal in a different way? For this purpose, witnesses are brought in who can really prove the fact that it was the criminal who told him defamatory information, and it was he who undermined his business reputation.
Correspondence can also be used as evidence. But here certain difficulties arise. In order for these correspondences to have at least some legal force, they need to be confirmed with the help of a notary. To do this, you need to contact him, ask him to record the fact of correspondence and notarize them.
To prove the spread of slander, witnesses are involved who can actually confirm the fact that it was the criminal who told him the defamatory information.
Only in this case the evidence base can be considered valid. In addition to criminal punishment, you can ask the court in a civil lawsuit to recover moral damages from the offender. Any amount of compensation can be claimed. The final monetary amount will be determined by the judicial authority.
But moral damage will also have to be proven, which is not so simple. Therefore, current legal practice shows that libel cases are considered extremely rarely, precisely because of the impossibility of proving actual damage and establishing the fact of a crime . Establishing the fact of a crime event means fixing each individual element that has already been disclosed above.
Liability for libel
Not all types of punishment established by criminal law are applicable to this act. Only a fine is applied in the amount determined by the relevant part and compulsory work.
Compulsory work for up to 160 hours applies only to the first part. The latter part may carry a penalty of up to 480 hours. Compulsory work means an act that can be carried out outside the scope of the main work activity. These works are not paid in any way. Their implementation is strictly mandatory.
Attention! The maximum fine under this article cannot exceed five million rubles.
The minimum amount is five hundred thousand. The choice of one punishment or another rests with the judge. This is a private prosecution case, so until the citizen writes a statement to the police, the case will not be initiated.
As a punishment for libel, a fine and compulsory labor are applied.
It must be taken into account that criminals do not always have a real opportunity to pay a fine, much less moral compensation. First of all, the money is paid to the state, and then to the injured citizen. Therefore, the wait for compensation for moral damage can drag on for many years.
