Security measures of psychiatric treatment

Compulsory psychiatric treatment as a criminal sanction

Abstract

The paper addresses numerous issues of significance for prescribing and implementation of the security measure of compulsory psychiatric treatment and confinement in a medical institution and the measure of compulsory psychiatric treatment at liberty. Certain disputable issues arise with respect to implementation of such security measures, especially in case where the perpetrator of an unlawful act, provided under law as criminal offence, is mentally incompetent, calling for a closer examination in this paper. In addition to provisions of the Serbian Criminal Code (CC), subject to the analysis were relevant provisions of the Criminal Procedure Code CPC), Law on Execution of Criminal Sanctions as well as provisions of other laws applicable to involuntary psychiatric treatment ordered against perpetrators of criminal acts. The paper particularly focuses on two conceptual issues. The first is whether it would be justified to leave ordering security measures of psychiatric treatment against incompetent offenders out of the system of criminal sanctions and to resolve the problem by opting for an involuntary psychiatric treatment which would not have the nature of a criminal sanction. The second issue concerns implementation, more precisely, whether to shut down specialized prison psychiatric hospitals as the principal organizational units in charge of execution. The reasons in favor of an affirmative answer to the forgoing questions, however, are not convincing enough and neither are the experiences gathered in the few European countries opting for alternative concepts, as indicators of possible advantages of such solutions. Indeed, the true results of closing judicial psychiatric hospitals and turning towards an alternative, new implementation system (Italy, for inst.) are yet to be seen. The general conclusion arrived at in the paper is that, as regards security measures of psychiatric treatment, despite the fact that the present solutions have been applicable for quite a long time (CC of the SFRY from 1976) without having undergone any essential reconstruction in the process of adoption of the Serbian CC in 2005, no legislative steps leading towards conceptually different solutions could be justifiably taken. Instead, there is a need for improving and perfecting the existing solution by removing the problems identified in legislation as well as in implementation. Short of overstepping the boundaries of the present concept, numerous interventions in CC, CPC and Law on Execution of Criminal Sanctions are still required as well as those in terms of modernizing the implementation of security measures of psychiatric treatment (ordering and execution thereof), to catch up with prevailing perceptions in contemporary criminal law and psychiatry.