Criminal Code of the Russian Federation in the latest edition:
Article 128 of the Criminal Code of the Russian Federation. Illegal hospitalization in a medical organization providing psychiatric care in an inpatient setting
1. Illegal hospitalization of a person in a medical organization providing psychiatric care in an inpatient setting, -
shall be 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, -
shall be punishable by forced labor for a term of up to five years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it, or by imprisonment for a term of up to seven years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years, or without one.
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Comments on Article 128 of the Criminal Code of the Russian Federation
Issues related to the basis and procedure for hospitalization of a person in a medical organization providing psychiatric care in inpatient conditions are 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 the above-mentioned Law on Psychiatric Care (Articles 4, 13, 28 - 30), the basis for hospitalization of a person in a medical organization providing psychiatric care in inpatient conditions is the presence of a mental disorder and the decision of a psychiatrist to hospitalize, conduct an examination or treatment in a hospital setting or a judge's order, as well as the need to conduct a psychiatric examination (judicial, military, labor) in cases and in the manner established by the laws of the Russian Federation, execution of a compulsory measure of a medical nature appointed by the court.
Object of crime . The immediate object of the crime is the physical freedom of a particular victim.
An additional object may be the safety of life and health of the victim.
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.
The objective side of the crime is expressed in the commission of actions consisting of involuntary, forced hospitalization in a medical organization providing psychiatric care in an inpatient setting:
- or a known mentally healthy person;
- or suffering from a mental disorder, but in the absence of legally established grounds for hospitalization;
- or in illegally extending the period of stay of a person in such an organization.
According to Art. 29 of the Law of the Russian Federation dated 02.07.1992 N 3185-1 on psychiatric care, 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 examination or treatment is possible only in a hospital setting, and the mental disorder is severe and causes:
- immediate danger of the patient to himself or others;
- his helplessness , i.e. inability to independently meet basic life needs, or
- significant harm to his health due to a deterioration in his mental state if the person is left without psychiatric help.
When applying a compulsory measure of a medical nature in accordance with Chapter 15 of the Criminal Code of the Russian Federation, a person is forcibly hospitalized in such a medical organization by court order .
Issues related to the use of compulsory medical measures were considered in Resolution of the Plenum of the Supreme Court of the Russian Federation dated April 7, 2011 No. 6.
Forced hospitalization should be understood as any means of influence when a person is hospitalized against his or her will or without the consent of a legal representative.
For example, a person is pointed out the need to go to a medical organization that provides psychiatric care in an inpatient setting, or the person is misled by presenting false documents about the need for hospitalization, or is informed of hospitalization in a regular hospital, but is placed in a psychiatric hospital, and the victim agrees with this and voluntarily hospitalized.
If physical violence is used during hospitalization, as a result of which the victim is intentionally inflicted with moderate or serious harm to health, then the act must be qualified under the totality of Art. 128 of the Criminal Code of the Russian Federation, respectively, with Art. 112 or 111 of the Criminal Code of the Russian Federation.
When a person is kidnapped and subsequently hospitalized in a medical organization that provides psychiatric care in an inpatient setting, the act is subject to qualification under the totality of Art. 128 from Art. 126 of the Criminal Code of the Russian Federation.
The place where the crime was committed is only the psychiatric hospital of such a medical organization. Placement in other medical institutions under certain conditions may be qualified under Art. 127 of the Criminal Code of the Russian Federation “illegal deprivation of liberty”.
The corpus delicti is formal and is recognized as completed from the moment of illegal hospitalization of a person in a medical organization providing psychiatric care in an inpatient setting, as a patient, regardless of the length of the victim’s stay in it, from the use or non-use of a course of treatment, or from the moment of illegal refusal to discharge.
Retaining in a medical organization providing psychiatric care in an inpatient setting a legally placed person there who has recovered and is subject to mandatory discharge, for example, by illegally extending detention, illegally refusing discharge, etc., also constitutes this crime, since in such cases, the person is also illegally detained in a medical organization providing psychiatric care in an inpatient setting, in which he should not be due to circumstances determined by law.
The subjective side of the crime provided for in Article 128 of the Criminal Code of the Russian Federation is characterized by an intentional form of guilt. By illegally hospitalizing a victim in a medical organization that provides psychiatric care in an inpatient setting, the subject is always aware of the social danger of his actions; due to the specific nature of the subject, it seems that he is aware of the illegality of his own actions.
The motives and purposes of illegal placement in a psychiatric hospital can be anything (revenge, self-interest, etc.) and do not affect the qualification of the crime.
The subject of the crime is a special one - 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, for example, family members, relatives, etc., are responsible for complicity as organizers, accomplices or instigators.
A judge who has issued a knowingly unjust act (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 of the Criminal Code of the Russian Federation.
The actions of psychiatrists included in the commission , if they illegally placed a person in a medical organization providing psychiatric care in an inpatient setting, prepared a deliberately false conclusion about the allegedly necessary hospitalization, the chief psychiatrist, his deputy, a senior official of the health authority, who may give orders for placement in a psychiatric hospital must qualify under Part 2 of Art. 128 of the Criminal Code of the Russian Federation, since they use their official position.
Article 128 of the Tax Code of the Russian Federation. Witness Responsibility (current version)
The commented article establishes the liability of witnesses in a tax offense case.
The composition of the tax offense specified in Article 128 of the Tax Code of the Russian Federation is formal. Each time a person does not appear or evades appearing without good reason, a person commits a tax offense. The fact that a person does not appear or evades appearing before the tax authority as a witness in one offense does not indicate that prosecution for such an offense occurs repeatedly.
This conclusion is well-established in judicial practice (see Resolutions of the Federal Antimonopoly Service of the East Siberian District dated March 13, 2012 N A74-1519/2011, Third Arbitration Court of Appeal dated December 2, 2011 N A74-1519/2011).
It should be taken into account that, according to paragraph 5 of Article 90 of the Tax Code of the Russian Federation, when interrogating individuals as witnesses, the latter are warned not about criminal liability for knowingly false testimony or refusal to give it, respectively, under Articles 307, 308 of the Criminal Code of the Russian Federation, but about liability for refusal or evasion giving evidence or for giving knowingly false testimony, provided for in Article 128 of the Tax Code of the Russian Federation.
A similar position was taken by the FAS of the North Caucasus District in Resolution dated March 29, 2012 N A32-11138/2011.
It must be taken into account that the Tax Code of the Russian Federation does not provide for the liability of an individual summoned to give explanations for refusal to give explanations. At the same time, administrative liability may be applied for failure to appear to give explanations as for disobedience to a legal requirement of a tax authority official (Article 19.4 of the Code of Administrative Offenses of the Russian Federation).
The Federal Tax Service of Russia in paragraph 5.1 of the letter dated July 17, 2013 N AS-4-2/12837 recommends qualifying the protocol of interrogation of the director, chief accountant of the taxpayer being audited, interviewed as witnesses and obviously interested in the outcome of the case, as a document that documents the taxpayer’s explanations (subparagraph 4 paragraph 1 of article 31 of the Tax Code of the Russian Federation).
In accordance with Article 90 of the Tax Code of the Russian Federation, any individual who may be aware of any circumstances relevant to the implementation of tax control may be called as a witness to testify.
In particular, persons who, due to their young age, physical or mental disabilities, are not able to correctly perceive circumstances that are important for the implementation of tax control (clause 2 of Article 90 of the Tax Code of the Russian Federation) cannot be questioned as a witness. The tax official conducting the interrogation must establish that the witness does not belong to the persons specified in paragraph 2 of Article 90 of the Tax Code of the Russian Federation.
From Articles 28, 172 of the Civil Code of the Russian Federation it follows that minors include individuals under 14 years of age.
Thus, a person who has reached the age of 15 can be questioned as a witness, however, by virtue of paragraph 2 of Article 107 of the Tax Code of the Russian Federation, an individual can be held accountable for committing tax offenses only from the age of 16.
Thus, a person brought in as a witness who has not reached the age of 16 at the time of the commission of the offense cannot be held accountable under Article 128 of the Tax Code of the Russian Federation.
Comment source:
“ARTICLE-BY-ARTICLE COMMENTARY TO PART ONE OF THE TAX CODE OF THE RUSSIAN FEDERATION” (UPDATE)
Yu.M. Lermontov, 2016
Qualified squads (Part 2 of Article 128 of the Criminal Code of the Russian Federation)
Qualified offenses - the commission of an act by a person using his official position or which, through negligence, resulted in the death of a person or other grave consequences (Part 2 of Article 128 of the Criminal Code of the Russian Federation).
Death due to negligence can occur, for example, as a result of an overdose of a medicinal drug, the unauthorized taking of a medicinal drug by a patient, or an attack on the victim and his murder by aggressive patients due to negligence of service personnel, etc.
Other serious consequences specified in Article 128 of the Criminal Code of the Russian Federation may include the victim’s suicide, the development of a severe somatic or mental illness, causing major material damage, etc. It is important to establish that the consequences that occur are in a causal relationship with the actions of the perpetrator.
This qualified offense provides for a crime with two forms of guilt . The attitude towards the resulting consequences is expressed only by negligence, and therefore causing death by negligence to the victim as a result of his illegal hospitalization in a medical organization providing psychiatric care in an inpatient setting does not require independent additional qualifications under Art. 109 of the Criminal Code of the Russian Federation.
Intentional infliction of harm to the victim’s health during the process of his “treatment” in a psychiatric hospital, as well as other intentional infliction of harm, are not covered by Part 2 of Art. 128 of the Criminal Code of the Russian Federation and require independent qualification under the relevant articles of the law on liability for intentional crimes against health, etc.
