Temida (Jan 2007)
Position of persons with mental disorders in penal law
Abstract
In penal law, persons with mental disorders most often receive attention as potential perpetrators of criminal acts. Persons who commit unlawful act provided under law as a criminal offence in the state of mental incompetence are subjected to a primary sanction - security measure of compulsory psychiatric treatment and confinement in a medical institution. This measure, as well as the security measure of compulsory psychiatric treatment at liberty may be also ordered to a person who committed a criminal offence in a state of substantially impaired mental capacity. In the new Serbian Penal Code 2005 few changes has been done respecting the conditions for imposing the security measures of compulsory psychiatric treatment and confinement in a medical institution and compulsory treatment at liberty, even though these provisions needed to be brought into accord with the changed concept of guilt. Especially, these changes are not properly expressed in the new Code of Criminal Procedure (special procedure for application of security measures). It is therefore even more distinct the contradictory position of a mentally incompetent person accused of a crime. One way of solving this issue, supported by the author, includes a separate legislation on protection of persons with mental disorders (including those persons who, in the state of mental incompetence, commit unlawful acts provided under law as criminal offences). The position of persons in the state of substantially impaired mental capacity does not need necessarily to be changed, since their guilt is not excluded. The entire complexity of protection of these persons’ human rights is additionally pointed out in the section referring to execution of security measure of compulsory treatment and confinement in a medical institution, which naturally includes deprivation of liberty and compulsory psychiatric treatment.
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