Forensic psychiatry in the Russian criminal justice system has many similarities and some differences compared to forensic psychiatry as practiced in the criminal justice arena in the countries adopting the Anglo-American system of jurisprudence. The penal code of the Russian Federation and the "Basic Law of Russian Federation on Public Health" presently govern criminal forensic psychiatric evaluations in Russia.
The Russian Federation legislature is also in the process of developing a specific law addressing forensic evaluations. In this proposed law, forensic evaluations in general and forensic psychiatric evaluations in particular are defined as "legal actions directed at discovery of circumstances of the case and involving investigation and evaluation based on specialized knowledge of the science, technology, art or craft and provision of opinion by the 'informed person' as ordered by the investigators or the court." In the case of a forensic psychiatric evaluation, the "informed person" is a forensic psychiatrist.
The principles of ordering and conducting forensic psychiatric evaluation are similar to other types of forensic assessments. However, the legislature incorporated the principle of a "mandatory" order of forensic psychiatric evaluation in certain cases (for example, capital offences). This distinguishes forensic psychiatric evaluations from other types of forensic assessments and suggests the importance of forensic psychiatric evaluations in the modern criminal process and the substantial weight of its conclusions among other evidence in the case.
In today's Russia, the legal regulations of forensic psychiatric evaluations are dated, as the existing law was passed in 1970. This law does not take into consideration modern requirements for assessment and diagnosis of mental disorders and changes in other areas of the law (such as new legislation about a citizen's rights in obtaining psychiatric care and the new penal and civil codes of Russian Federation).
Forensic psychiatric evaluations are generally conducted by psychiatrists who have specialized training in forensic psychiatry. The formal specialty of "forensic psychiatry" is absent in the list of official medical subspecialties. Nevertheless, positions for forensic psychiatrists do exist in the system of public health, and post-doctoral training in this field is systematically conducted. Performance of forensic psychiatric evaluations is considered an area of medical practice. Forensic psychiatrists are not certified by the state because of the formal absence of this field in the list of specialties established by the Government. Psychiatrists, however, must maintain their certification in general psychiatry, which involves taking the state examination every five years to confirm their right for independent professional practice.
Forensic psychiatric evaluations may be original, "additional" or "repeated." An "additional" evaluation is conducted when new circumstances arise in a case, and another evaluation is conducted by the same examiner(s) as the original. The "repeated" evaluation is conducted if the quality or objectivity of the initial evaluation is questioned and is then performed by another evaluator(s). The rights and duties of forensic psychiatrists are outlined in the Russian penal code. The quality of forensic psychiatric evaluations is related to the assessment process, which follows existing law about psychiatric care and allowable assessment methods. To access collateral sources of information, the forensic psychiatrist has a right to request the legal body ordering the evaluation to provide such information (such as medical and psychiatric records, employment records, etc.) and this legal body is obligated to provide this information to the expert.
The forensic psychiatrist has a right, if it is necessary for making an expert decision, to be present during investigative and legal actions. According to Chapter 191 of the penal code, the forensic psychiatric expert has the right, on his own initiative, to expand questions posed in the initial order if he believes that the issues involved are important for the criminal case. The report of the evaluation is forwarded directly to the requesting agency. The psychiatrist has no legal right to share the findings or opinions with any other parties involved in the legal process. It is the requesting party's responsibility to distribute the report to the relevant parties.
The expert has a right to decline to participate in a forensic psychiatric evaluation for the following reasons: the process of ordering the forensic psychiatric evaluation was not followed properly and this complicates or precludes the conducting of a forensic psychiatric evaluation; questions posed fall outside of the expert's area of expertise; and the information is insufficient to provide an opinion and the relevant parties refuse or are unable to provide additional relevant information. The forensic psychiatric expert has a duty to decline to participate in the case as an expert witness in which there is an actual or potential conflict of interest.
Forensic psychiatrists in Russia are professionally involved in the following three major areas: 1) Forensic psychiatric evaluations in criminal and civil cases; 2) Administration of involuntary (inpatient and/or outpatient) treatment (conducted under the auspices of the Russian Ministry of Health) to subjects who committed dangerous acts outlined in one or more chapters of Russian penal code and were found criminally insane; and 3) Psychiatric treatment in the correctional setting.
In this report, we focus on the forensic psychiatric evaluations in the criminal justice system. The Russian system has psychiatric-legal issues that are identical to those found in the U.S. (competency to proceed, insanity defense, and the guilty but mentally ill finding), but with some structural and operational differences.
In cases of mental illness developing after the commitment of the crime, perhaps during one of the stages of the legal process, a forensic psychiatric evaluation is conducted. In these cases, it is essential to consider not only the presence and nature of mental disorder but also the time of its onset. This is important in determining which aspects and legal procedures the subject was involved in after the onset of mental illness and thus, in a state of legal incompetence. Obviously, participation of the incompetent person in a legal process is unacceptable in a court of law.
Unlike the U.S. where criteria for competency to proceed are governed by Dusky v. U.S . and clarified by Godinez v. Moran , the Russian penal code contains no formal definition of competency to stand trial. Criteria used to describe this legal concept are similar to the definition of insanity but refer to the present time. If the subject, due to his mental illness, is unable to understand the factual nature and social impact of his actions or control his behavior, he is released from punishment and directed for involuntary treatment (if chronic mental disease or defect are present). In the case of temporary disorders and other conditions, legal proceedings are suspended and the defendant receives involuntary treatment to achieve stabilization or cure. The legal proceedings are then resumed and the person is subject to a court hearing and possible punishment (Chapter 81 of penal code). Unlike the U.S. mandate from Jackson v. Indiana , the law does not include a provision for time-limited competency restoration treatment. Thus, this treatment may continue indefinitely and courts are provided with treatment updates semi-annually for the first year and annually thereafter.
If the illness was first detected after the sentencing and imposition of punishment, the inmate is placed in a specialized hospital in the structure of correctional system rather than in the public health system, but only if the illness is of a time-limited or temporary nature. If the illness is chronic or of a dementing nature, the subject is released from the criminal justice system and may become a subject of involuntary psychiatric treatment in the public health setting.
One of the crucial tasks of the forensic psychiatrist in the criminal setting is to evaluate the mental state of accused persons. The Russian system allows for determination of insanity, limited sanity, and sanity. The insanity rule (Chapter 21 of the penal code) is as follows:
"A subject is not responsible for criminal offense, if at the time of commission of the socially dangerous act, he was in the state of insanity and was unable to appreciate factual nature and social dangerousness of his act (or inaction) or control his actions as a result of chronic mental illness, temporary mental illness, mental deficiency or other pathological mental disturbance."
Thus, the insanity standard contains the familiar elements of a mental illness criterion, a cognitive prong, and a volitional prong. The first task of the evaluating forensic psychiatrist would be to determine the presence or absence of mental illness. Without the presence of a bona fide mental illness, further evaluation would be pointless. The presence of the mental illness criterion guards against an insanity finding in non-mentally ill individuals.
The mental illness criterion encompasses four categories: chronic psychiatric disorder, temporary psychiatric disorder, mental deficiency and other pathological mental disturbances. According to Chapter 10 of Russian Law on Mental Health Treatment, "The diagnosis of a mental condition is established in accordance with international standards and can not be based on mere disagreement of citizen with generally accepted moral, cultural, political or religious values or on other reasons not directly related to the state of mental health." Thus, the legislature has sought to eliminate the use of forensic psychiatry for political or other non-clinical purposes. Currently, ICD-10 is an accepted "international standard" of diagnosis in Russia and its criteria are widely used to diagnose and classify psychiatric pathology.
The category of "chronic psychiatric disorder" includes chronic conditions with a continuous or intermittent course. This group includes schizophrenia, epilepsy, psychosis of the elderly and other similar conditions.
The group of "temporary psychiatric disorders" includes reversible psychiatric diseases with potentially full recovery. They include reactive, substance-induced psychosis, disorders caused by infectious process and other similar conditions.
"Mental deficiency" involves all cases of acquired (dementias) and inborn (mental retardation) intellectual deficits and other cognitive disorders.
"Other pathological mental disturbances" include abnormalities of mental functioning and behavior, such as character pathology, disorders of dependent behavior and so on.
The use of a wider array of mental disorders differs from the common Anglo-American
practice, whether by statute, case law (Washington v. U.S. ) or clinical practice, for limiting the type of qualifying mental illness for an insanity plea generally to serious or major mental disorders.
Although similar to the U.S. American Law Institute (ALI) insanity test in that a finding of insanity can arise from either satisfying the cognitive or volitional prong, the Russian insanity test requires a total lack of ability (capacity) and not the lack of "substantial" capacity found in the ALI test.
In distinction to Anglo-American jurisprudence, the Russian criminal justice system is not adversarial in the Anglo-American sense. In Russia, the judge makes a determination on the sanity issue. This has implications for whether or not insanity evaluations are even ordered. Unlike the U.S. requirements of Ake v. Oklahoma , requests by defense counsel for forensic psychiatric evaluation are not automatic and are at the court's discretion. On the other hand, the investigating police agency or prosecutor can have the forensic psychiatric evaluation ordered without the court's involvement. Nonetheless, despite these differences, only after careful consideration of all the evidence, including the opinions from the forensic psychiatric evaluation, does the judge make a ruling. Upon a finding of insanity, the defendant can be ordered by the court to undergo involuntary psychiatric treatment as prescribed under the law.
The concept of limited sanity emerged in the late 1990's and is somewhat similar to the concept of Guilty but Mentally Ill in some U.S. jurisdictions. A finding of limited sanity generally follows if the subject is found sane but is suffering from mental illness and as a result of that "was unable to fully appreciate factual nature and social dangerousness of his act(s) or fully control his actions" Specifically, the law would appear to discourage an insanity finding, since to reach the "full" level may be difficult to achieve. If limited sanity is established, the subject may qualify for reduced sentence and be ordered to receive psychiatric treatment in a correctional setting. The opinion of limited sanity is offered with increasing frequency by forensic psychiatrists in cases categorized as "other pathological mental disturbances," which include diverse conditions ranging from behaviorally decompensated personality disorders to obsessive-compulsive disorder to paraphilias with compulsive acting out.
Even a superficial comparison of Russian criminal forensic psychiatric practice to Anglo-American practice reveals more similarities than differences in approaches to the same issues. Major differences include legal procedures for ordering forensic evaluations, lack of formal standards for competency to stand trial and a less restrictive mental illness criterion for the insanity defense.