Environmental factors in the proceedings organization on the compulsory medical measures application

For several generations in a row, humanity has lived with a constant and obsessive fear of environmental disasters. Violation of the environmental regulations, of the rules on the use of the environmentally hazardous substances and dangerous waste; security breach regarding the handling microbiological or other biological agents and toxins; pollution of water, the marine environment, the atmosphere, land, deforestation - all this together constitutes a factor of increased danger for the normal ecological situation in the region, country, world. Social relations arising in the considered sphere of society are regulated by criminal legislation. It is well known that every year the ecological situation in the world tends to worsen, which is confirmed by the official position of the highest government bodies. Against this background, the number of mental deviations is increasing, which, in its turn, is the reason for the commission of acts prohibited by the criminal law. Compulsory medical measures (hereinafter CMM) is an intersectoral legal institution regulated by the norms of criminal and criminal procedure legislation. In this regard, currently there are a number of problems associated with the organization of criminal proceedings on the use of CMM, which, to a certain degree, can be represented in the following form: 1) the category of persons in respect of whom the organization of proceedings on the use of CMM is carried out (Chapter 51 of the Criminal Procedure Code of the Russian Federation); 2) the types of CMM that can be applied to these persons instead of punishment or along with the imposed punishment; 3) the procedure for appointing and conducting a stationary forensic psychiatric examination to establish the mental state of a person before the commission of an act prohibited by the criminal law, at the time of its commission, as well as immediately after the commission and at the time of a forensic psychiatric examination; 4) the procedure for the termination, suspension and resumption of proceedings in this category of criminal cases in connection with a mental disorder of the accused (suspect); 5) the insufficiency of the circumstances to be proved in this category of criminal cases (CCP, art.434); 6) the need to highlight different approaches to organizing criminal proceedings of this type, depending on the category of persons in respect of whom the CMM is applied. All these problems in one way or another have a negative impact on the practical use of CMM. Based on the results of this study, proposals were made on the legislative consolidation of various types of organization of criminal proceedings on the use of CMM, due to the categories of persons to whom it is applied, as well as on improving the rules governing the conditions to be proven in criminal cases of this category.


Introduction
We are living in a such time when the pollution of the surrounding environment has become threatening both for individual regions and for the entire planet. Climate, atmosphere, lithosphere are changing. These changes threaten human health in certain regions. Breaches in the atmosphere, in the soil, pollution of the human environment, food with nitrates, pesticides, Hg contaminated food, radionuclides and other harmful substances, the death of a number of animal and plant species and human diseases help everyone to understand how great the environmental danger is.
To analyze the nature and degree of disturbances caused in the biosphere much is being done, but much less research is devoted to how these changes affect the biological and mental specificities of a person. This is especially true of the genetic consequences of pollution. Mutagens of the environment in the form of chemical compounds, ionizing radiation, etc., are capable of penetrating cells and affecting their genetic program (causing mutations), including in the human psyche. Mutations in the cells of the body cause cancer, mental abnormalities, damage to the immune system, and reduce life expectancy [1].
The issues of organizing criminal proceedings on the use of the CMM as another measure under criminal law have remained relevant for a long time due to the intersectoral nature of these measures. Legislative imperfections and contradictions of criminal and criminal procedural legislation governing the concept, goals, grounds, types of CMM, procedure for organizing criminal proceedings in this category need detailed consideration and research in order to develop proposals for improving the norms of this area of law regulating CMM and the procedure for criminal proceedings on their application.
In the course of studying the issues of organizing criminal proceedings on the use of CMM, it seems reasonable to concentrate on the following problems that will minimize the difficulties of proceedings in this category of criminal cases.
The purpose of the study is to substantiate the development of models for organizing criminal proceedings on the use of CMM, due to the categories of persons to whom they are applied. Achievement of this goal will make it possible to formulate recommendations for organizing production on the use of CMM, depending on the category of the subject of their application.
To achieve this goal, it is necessary to solve the following tasks: -to determine the category of persons in respect of whom a special procedure for the application of compulsory medical measures are carried out; -to establish which CMM can be applied to one or another category of persons in relation to whom the use of CMM is possible; -to analyze the procedure for appointing and conducting a stationary forensic psychiatric examination to establish the mental state of a person who has committed a socially dangerous act prohibited by criminal law; -to investigate the procedure for termination, suspension and resumption of proceedings in this category of criminal cases in connection with the presence of the accused (suspect) of a mental disorder; -determine the subject of evidence in criminal cases on the application of CMM, considering the categories of persons to whom they are applied; -to substantiate the need to highlight different approaches to the organization of proceedings in criminal cases of this type, depending on the category of persons in respect of whom the measures in question are applied; -to study the statistical data of the Judicial Department at the Supreme Court of the Russian Federation on the practice of applying compulsory medical measures in the activities of federal courts of general jurisdiction and justices of the peace for the period from 2016 to 2019, as well as court decisions on the application of these measures.

Methods
The issues of criminal law and criminal procedural regulation of the CMM, as well as the practice of their application, change, termination and extension, remain relevant for a long time. From the standpoint of criminal law, the CMM problems were considered in the following dissertation researches: A.N. Batanov (Kazan, 2004) [1], N.V. Zharko (Ryazan, 2005) [2], Yu.A. Gerasin (Moscow, 2013) [3]. At the level of monographic substantiation of the problem, the CMM were studied by B.A. Spasennikov (2003) [4].
The criminal procedural aspects of the organization of criminal proceedings on the application of the CMM in their dissertations were considered by: M. Sh [8]. In the theory of criminal and criminal procedural law, there is a wide range of theoretical developments of the problems of the CMM and the organization of their application, despite this, a number of issues have not yet been finally resolved and needs additional consideration.
The research methodology is built on the basis of an analysis of the current criminal and criminal procedural legislation, theoretical provisions on the definition, goals, types and grounds for the use of the CMM as another measure of a criminal law nature, as well as the practice of applying these measures by courts of general jurisdiction and justices of the peace. The systematization of various points of view on certain problems of organizing production on the use of the CMM was carried out, intermediate and final conclusions were formulated on the issues of modeling the organization of proceedings in this category of criminal cases, depending on the category of persons in respect of whom they are applied. The tools used made it possible to make proposals on the legislative consolidation of various types of organization of criminal proceedings on the application of CMM, due to the categories of persons to whom they are applied, as well as on improving the rules governing the circumstances to be proven in criminal cases of this category.

Results
The study of the organization of criminal proceedings on the application of the CMM allowed us to determine the circle of persons in respect of whom a special procedure for the use of the CMM is allowed, to establish what types of CMM can be applied to them, to make a proposal to specify the circumstances to be proved in this category of criminal cases , as well as to propose models for organizing production on the use of CMM, depending on the category of persons in respect of whom they are applied.
Analysis of statistical data on the use of CMM in the activities of federal courts of general jurisdiction and justices of the peace for the period from 2016 to 2019. made it possible to present the dynamics of the number of completed cases with the application of these measures (see: Fig. 1), as well as data on the number of granted and denied

Discussion
Let us dwell on the consideration of the problematic issues of organizing production on the use of CMM as another measure under criminal law which, to a certain degree, can be represented in the following form: 1) the category of persons in respect of whom the organization of proceedings on the application of CMM is carried out (Chapter 51 of the Criminal Procedure Code of the Russian Federation); 2) the types of CMM that can be applied to these persons instead of punishment, and which ones along with the imposed E3S Web of Conferences 258, 05016 (2021) UESF-2021 https://doi.org/10.1051/e3sconf/202125805016 punishment; 3) the procedure for appointing and conducting a stationary forensic psychiatric examination to establish the mental state of a person before the commission of an act prohibited by the criminal law, at the time of its commission, as well as immediately after its commission and at the time of a forensic psychiatric examination; 4) the procedure for the termination, suspension and resumption of proceedings in this category of criminal cases in connection with a mental disorder of the accused (suspect); 5) the insufficiency of the circumstances to be proved in this category of criminal cases (Article 434 of the Code of Criminal Procedure of the Russian Federation); 6) the need to highlight different approaches to organizing criminal proceedings of this type, depending on the category of persons in respect of whom the CMM is applied. All these issues in the criminal and criminal procedural legislation are regulated in different ways, which necessitates their detailed consideration in order to eliminate the identified contradictions for correct application in practice.
1. The Criminal Law (Art. 97) provides for the grounds for the application of the CMM [9]. First of all, the legislator indicates the categories of persons in respect of whom the appointment of the CMM is possible. These include persons: a) committed acts under Art. The special part of the Criminal Code, in a state of insanity; b) who, after committing a crime, have a mental disorder that makes it impossible to assign or execute punishment; c) who have committed crimes and are suffering from mental disorders that do not exclude sanity; e) who have committed a crime against the sexual inviolability of a minor under the age of fourteen years, being over the age of eighteen and suffering from a disorder of sexual preference (pedophilia) that does not exclude sanity.
Despite the list of persons specified in the Criminal Code of the Russian Federation, in accordance with Part 1 of Art. 433 of the Code of Criminal Procedure of the Russian Federation -proceedings on the use of CMM specified in clauses "b" -"d" Part 1 of Art. 99 of the Criminal Code of the Russian Federation, is carried out only in relation to persons: a) committed an action prohibited by the criminal law in a state of insanity; b) who, after committing a crime, have a mental disorder that makes it impossible to impose a punishment or its execution [10]. From which it follows that in relation to the other two categories of persons specified in Part 1 of Art. 97 of the Criminal Code of the Russian Federation, the preliminary investigation and the consideration of a criminal case in court are carried out in a general manner and provides for the possibility of applying the CMM only along with the imposed punishment.
It should be emphasized right away that the Criminal Procedure Code of Russian Federation contains a provision providing for the use of only compulsory treatment in a medical organization providing psychiatric care in inpatient conditions, of a general type, of a specialized type, as well as of a specialized type with intensive observation. The issue of the procedure for the production of compulsory observation and treatment by a psychiatrist on an outpatient basis has not been settled. This leads us to assume that compulsory observation and treatment by a psychiatrist on an outpatient basis is possible only along with the imposition of punishment in relation to the convicted person and does not require a special procedure for criminal proceedings.
2. In clause 3 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated April 7, 2011 No. 6 "On the practice of using compulsory medical measures by courts" it is noted that «CMM in the form of compulsory outpatient observation and treatment by a psychiatrist, compulsory treatment in a medical organization providing psychiatric care in inpatient conditions (general, specialized type or specialized type with intensive supervision) may be applied by a court to a person: committed a socially dangerous act under the criminal law in a state of insanity, when the person, during the commission of the act, could not realize the actual nature and social danger of his actions (inaction) or their leader due to a chronic mental disorder, temporary mental disorder, dementia or other painful conditions of psyche. Such a person is not subject to criminal liability (part 1 of article 21 of the Criminal Code of the Russian Federation); who, after committing a crime, has a mental disorder that deprives him of the opportunity to realize the actual nature and social danger of his actions (inaction) or to direct them, making it impossible to assign or execute punishment. Such a person is released by the court from punishment or from further serving it (part 1 of article 81 of the Criminal Code of the Russian Federation), in case of recovery, he may be subject to criminal liability and punishment, if the statute of limitations provided for in Art. 78 and 83 of the Criminal Code of the Russian Federation.
CMM by the court can be applied to a person who has committed a crime and suffers from a mental disorder that does not exclude sanity, but who needs treatment for a mental disorder. Along with punishment, the court may prescribe a CMM to such a person in the form of outpatient compulsory observation and treatment by a psychiatrist (part 2 of article 99 of the Criminal Code of the Russian Federation)» [11].
In our opinion, this provision of the resolution of the Plenum of the Supreme Court of the Russian Federation needs to be adjusted, it is necessary to exclude from the first paragraph of point 3 «in the form of compulsory outpatient observation and treatment by a psychiatrist». Firstly, this is due to the impossibility of applying this CMM in relation to the persons specified in the second and third paragraphs of point 3 of the decree, and, secondly, the legislative provision indicates such a measure as compulsory observation and treatment by a psychiatrist on an outpatient basis.
In practice, there should be no double understanding of the issue of the application of one or another CMM. It should be clearly stated that compulsory observation and treatment by a psychiatrist on an outpatient basis can only be applied along with the prescribed punishment for the crime committed.
3. For an objective resolution of questions about the use of CMM, the appointment and production of a forensic psychiatric examination is mandatory.
In accordance with Art. 203 of the Code of Criminal Procedure of the Russian Federation, the placement of a person in a medical organization providing psychiatric care in inpatient conditions for the production of inpatient forensic psychiatric examination is carried out on the basis of a court decision.
The decision of the judge must indicate for how long a person is placed in a medical organization that provides psychiatric care in inpatient conditions for examination. If during the examination it is established that the person belongs to the category of persons in respect of whom the CMM is applied, and he poses a danger both to himself and to others, or can cause other significant harm, it is necessary to provide for the possibility of extending the stay of a person in a medical organization providing psychiatric care in inpatient conditions, until the judge decides on the use of CMM. This provision must be Federation, it is regulated that "... in the event of his (the defendant's -author's clarification) mental disorder or other serious illness, which excludes the possibility of the defendant's appearance, the court suspends proceedings against this defendant, respectively, until his ... recovery ..." [10]. At the same time, the legislator does not provide for the procedure for placing a person in a medical organization that provides psychiatric care in inpatient conditions, for his stay in it until he is cured. In fact, the status of a person is not fully determined, there is no expert opinion on the presence of a mental disorder in a person, which would allow him to be declared insane and to appoint a specific CMM, and there is no conclusion that the disorder is temporary, which makes it even more difficult to determine the further procedure for criminal proceedings. business.
In our opinion, it is advisable in Art. 203 of the Code of Criminal Procedure of the Russian Federation, which provides for the procedure for placement in a medical organization providing psychiatric care in inpatient conditions for the production of a forensic examination, to consolidate the provision according to which a person placed for an inpatient forensic psychiatric examination is in a medical organization providing psychiatric care in stationary conditions, until the confirmation in court of his psychiatric status.
5. The current criminal procedure legislation classifies the proceedings on the application of the CMM to a special order of criminal proceedings [12]. First of all, the "special order" consists in the subject of proof in cases of the category under consideration, which differs significantly from the general subject of evidence enshrined in Art. 73 of the Criminal Procedure Code of the Russian Federation.
The legislator in clause 1 of part 1 of Art. 73 of the Code of Criminal Procedure of the Russian Federation, as the first circumstance subject to proving in a general manner, calls the event of a crime, specifying the elements that make up this concept. Proving the event of a crime presupposes clarification of all the circumstances of the committed act, in order to correctly qualify the crime [13]. In turn, within the framework of special proceedings, in clause 1. h. 2 of Art. 434 of the Code of Criminal Procedure of the Russian Federation, the legislator refuses the terminology "crime event", indicating only the constituent elements (time, place, method and other circumstances) and calls what was committed -an act. In our opinion, this is absolutely fair, since the proceedings are carried out in relation to the insane who commit not a crime, but an act prohibited by the criminal law. Accordingly, a crime event cannot be discussed.
At the same time, the legislator forgets about the second special category of persons (in respect of which a procedure for the application of the CMM is also established), who after committing a crime gets a mental disorder that makes it impossible to impose punishment and its execution.
In this regard, as it seems to us, "alternative" circumstance is not fully formulated in paragraph 1. Part 2 of Art. 434 of the Criminal Procedure Code of the Russian Federation and needs legislative clarification as follows: "the event of a crime (for persons who after committing a crime gets a mental disorder that makes it impossible to impose a punishment and its execution) or the time, place, method and other circumstances of the committed act (for the insane)".
Comparison specified person cannot be guilty, have any motive for committing an act, since he did not realize the nature and social danger of his actions, and also could not direct them, due to his mental disorder. A similar problem, as when considering the previous circumstance to be proved, develops with persons who fell ill with a mental disorder after the commission of a crime. This category of persons at the time of the commission of the crime did not suffer from a mental disorder, respectively, they had a motive for committing it, intent and realized the illegality of their actions and could control them. Given this argument, the investigated circumstance, as well as the previous one, should be alternative and needs to be supplemented in this connection.
The third circumstance specified in Art. 73 of the Code of Criminal Procedure of the Russian Federation is subject to proof only in a general manner and concerns the characteristics of the personality of the accused [14]. At the same time, in the proceedings on the application of coercive measures, in our opinion, it would not be superfluous to establish the circumstances characterizing the subject of their application in order to establish the details of the committed act and the correct choice by the court of the type of CMM, with the obligatory consideration of the individual characteristics of each person involved in the commission of the act. In addition, the data collected during the proceedings on the subject of the CMM application, characterizing him as a member of society, will allow the court, in conjunction with data on mental disorder, to establish his public danger.
The circumstance about the nature and amount of harm is subject to establishment both in a special and in a general manner. However, in the wording of the special order, once again, the legislator only provides for the establishment of the nature and amount of harm caused by the act, respectively, excluding the nature and amount of harm caused by a crime by persons who after committing it gets a mental disorder that makes it impossible to impose punishment or execution. This inaccuracy of the criminal procedural norm also requires adjustment, by analogy with the alternative addition of the circumstances discussed above.
A specific fourth circumstance to be proved in cases of the use of CMM is the establishment of the presence of a given person with mental disorders in the past, the degree and nature of the mental illness at the time of the commission of an act prohibited by criminal law or during criminal proceedings. Formulating this circumstance, in contrast to those studied above, the legislator clearly delineates one category of CMM subjects from another, thereby avoiding disagreements in the interpretation of the norms.
Establishing the presence of a given person with mental disorders in the past consists in collecting information from medical institutions, educational organizations, relatives, employers, neighbors and other persons about the mental disability of the CMM subject.
As for determining the degree and nature of mental illness in a CMM subject at the time of committing an act prohibited by criminal law or during criminal proceedings, the establishment of this circumstance is possible only through the preparation of materials for the appointment and production of a forensic psychiatric examination. In accordance with paragraph 3 of Art. 196 of the Criminal Procedure Code of the Russian Federation and the explanations of the Supreme Court of the Russian Federation, a forensic examination is necessarily appointed in the event that there is a doubt about the sanity of a person and his ability to protect his rights and legitimate interests, which is an additional guarantor of the rights of persons suffering from mental illness.
The last special circumstance, it is advisable to call predictive (consisting in an assumption), since it is subject to proof -whether the mental disorder of a person is associated with a danger to him or other persons, or the possibility of causing them other significant harm. The establishment of this circumstance (the assumption about the degree of danger of the patient) is key in deciding whether to apply CMM to a certain person. In addition, determining the degree of danger of a person affects the choice of a specific type of the CMM, provided for by criminal law. As shown by our earlier study [2], in order to determine the "danger" of persons to whom CMM is applied, it is advisable to consider: clinical psychiatric and forensic psychiatric indications; the severity of the act, its qualifications, the object of the encroachment; generalized characteristics of the mentally ill. Unfortunately, in practice, when determining the type of the CMM, only the clinical picture of a person's mental illness is considered, which does not allow us to accurately establish (assume) the degree of its danger. The consequences of such an error is a change in the type of CMM.
Among the circumstances to be proven in the general order, there are four more, not included by the legislator in Art. 434 of the Criminal Procedure Code of the Russian Federation. It seems that not consolidating the circumstances specified in paragraphs 5, 6, 8 p. 1 of Art. 73 of the Code of Criminal Procedure of the Russian Federation is quite justified, since they should not be subject to proof in relation to the considered "special" category of persons. But the absence, in a special order, of the need to prove the circumstances entailing release from criminal responsibility and punishment, is quite controversial. In this regard, it is worth agreeing with the opinion of S.A. Yakovleva and E.V. Medvedkova that such circumstances can be taken into account when passing a judicial act on the application of the CMM [15].
Summing up the interim conclusions, we note that the circumstances to be proved in the proceedings on the application of the CMM, formulated by the legislator in Art. 434 of the Code of Criminal Procedure of the Russian Federation, should be recognized as insufficient and in need of clarification and addition.
6. Changing the subject of evidence in criminal cases on the application of the CMM, of course, should entail changes in the procedure for organizing proceedings on the application of these measures, depending on the category of persons to whom they will be applied. In our opinion, the procedure for criminal proceedings on the use of CMM in relation to persons who have been declared insane at the time of the commission of a socially dangerous act prohibited by criminal law, and in relation to persons who have committed a crime, who, after committing it, have a mental disorder that makes it impossible to assign or the execution of a criminal penalty must differ significantly from each other.
In proceedings against the first category of persons, there is no need to involve the person as an accused in a criminal case. The investigator, in whose proceedings the criminal case is, having established that the person at the time of the commission of the act was in a state of insanity, collects the circumstances characterizing the personality of this person and sends the criminal case to the court to resolve the issue of applying the CMM. The investigator is not empowered to independently decide on the termination of the criminal case against the specified person, since only the court can establish the person's insanity.
When proceeding in criminal cases on the use of CMM in relation to persons who have committed a crime and who, after committing it, have a mental disorder that makes it impossible to appoint or serve a sentence, the procedure for organizing the proceedings should be more complicated. This is due to the possibility of the subsequent resumption of criminal proceedings following the recovery of the person. At the same time, it is not entirely clear how to deal with persons suffering from a chronic mental disorder, whose full recovery is impossible. If their mental state improves, and they fully understand the content of the punishment applied for the crime they have committed, will it be possible to resume criminal proceedings against these persons and impose a sentence on them?

Conclusion
The study of the organization of criminal proceedings on the application of the CMM allowed us to determine the category of persons in respect of whom a special procedure for the use of the CMM is permissible, to establish what types of the CMM can be applied to them, to make a proposal to specify the circumstances to be proved in this category of criminal cases, as well as to propose models for organizing production on the use of CMM, depending on the circle of persons in respect of whom they are applied.
In the first case, in criminal proceedings on the application of the CMM to persons declared insane, it is not required to bring charges on the fact of the committed act, it is only necessary to collect data confirming the fact that the act was committed by this person and characterizing the person who committed the act, in order to determine the appropriateness application of CMM and its type. The materials of the criminal case with the decision to terminate the proceedings in the criminal case and the direction to resolve the issue of the application of the CMM are sent to the court according to the jurisdiction. The court, taking into account the consideration of the materials on the proof of the fact of the commission of the act in the commission of which he is involved, and the fact that this act was committed by the person in respect of whom the proceedings on the use of CMM are being carried out, and also taking into account the data characterizing his personality, determines the degree of his danger to himself and others and the possibility of causing another significant harm. Based on this, the judge concludes that it is advisable to use a specific type of the CMM. In this case, the criminal proceedings are terminated, the person is released from criminal liability or punishment.
In the second case, if in the course of criminal proceedings it is established that a person committed a crime in a state of sanity, and after the commission of it got a mental disorder (both temporary and chronic), which makes it impossible to appoint or serve a sentence, then the investigator issues a decision on his involvement as an accused, with the content of which the legal representative of the person in respect of whom the proceedings on the application of the CMM and his lawyer are being examined. After all the investigative actions possible in the absence of the accused, the investigator issues a reasoned order to suspend the criminal proceedings and send it to the court to decide on the use of CMM in order to cure a person or improve his mental state. The judge considering the materials of the criminal case decides to place a person in a medical organization that provides psychiatric care in a stationary setting corresponding to the degree of public danger of the accused type in order to cure him or improve his mental state, in which he will be able to understand the nature of the punishment imposed and its limitations and deprivation. In case of recovery of the person or improvement of his mental state, on the basis of the conclusion of the forensic psychiatric examination, the judge resumes the criminal proceedings and sends him for preliminary investigation in a general manner to the investigation authorities.