What diseases free prisoners from punishment?

What is the list of diseases giving the right to such a judgment? Is it possible to challenge such a verdict? What is the probability of committing a new crime by a person exempt because of having a disease?

Lawyer Pavel Sapelka, versed in various aspects of the penitentiary system, studied this issue.

In accordance with paragraph 2 of Article 92 of the Criminal Code, a person suffering from a heavy illness that prevents the imprisonment (except mental), can be exempt from punishment by court, or the punishment can be mitigated. This takes into account the severity of the crime, the personality of the convicted person, the nature of the disease and other conditions. In order to properly understand and assess the significance of such a rule, one needs to see the list of diseases granting the right to this kind of judgment.

The diseases that prevent imprisonment are listed in the annex to the ruling of the Ministry of Internal Affairs and the Ministry of Health of the Republic of Belarus of February 16, 2011 № 54/15 «On Approval of the order of medical examination of convicts and the establishment of the list of diseases that prevent further serving punishment". These include, in particular, heavy, conjugated or progressive forms of tuberculosis; all malignancies of the IVth clinical group; acute leukemia; system atrophy, inflammatory diseases of central nervous system; acute and chronic radiation sickness of the IVth degree and dozens of severe or progressive diseases of incurable nature.

The Regulations on the procedure of medical examination, approved by the ruling, determines
the details of sending the convicted persons for medical examination and their examination for illnesses. As stipulated in the Regulations, the decision that a convicted person has a disease from the aforementioned list is adopted by the medical commission after a thorough examination of the convicted in inpatient medical units ofthe correctional facilities of the penal system or in stationary conditions in public health institutions, taking into account the results of previous treatment and the established diagnosis. The diagnosis should be confirmed by the conclusion of a qualified medical specialist of the state health organization or by employees of departments of the state institutions providing higher medical education and (or) further training and retraining of medical personnel. This means that there is almost no chance that a prisoner can simulate a disease which allows him to avoid serving his penalty.

According to the results of medical examination of the convicts a medical conclusion of the prescribed form is issued, where it is stated that the convicted person has illnesses that prevent him from continuing to serve his punishment.

However, this is only the first step to the release. The Criminal Code only entitles the court to decide on the release of the convicted person, without imposing such a duty on it. Grounds for refusal of exemption may be the severity of the offense, the identity of the convicted person, the nature of the disease and other conditions. With reference to the same circumstances a court verdict for the release of the convicted person may be appealed by the prosecutor or the chairman of the superior court.

This provision of the law is highly controversial in terms of law and justice.

Exemption from punishment in such cases, on the one hand, is an act of mercy, which corresponds to the principles of humanism of the criminal law, differentiation and individualization of punishment, stated in Article 6 of the Criminal Executive Code of the Republic of Belarus.

On the other hand, the release in connection with a serious illness is objectively justified by the fact that the prisoners are not able to perform their duties and serve the punishment of imprisonment or arrest. In this case, the punishment will cause them additional suffering, not caused by the fact of incarceration, which violates the civil rights of prisoners, enshrined in the Constitution and international treaties ratified by Belarus.

Certain measures of disciplinary punishment cannot be used towards such prisoners.

In terms of implementation of the principles of differentiation and individualization of punishment it is undeniable that the same punishment is much more difficult for an ill person than for a healthy one, as abnormal state of health is not presumed by the court when issuing a penalty.

It should be noted that the prisoners who are exempt from serving the penalty in the case of serious illness are exempt from serving the penalty, not from criminal liability. The person has been publicly condemned and called the offender; conviction entails consequences – a criminal record.

The likelihood of committing a new crime by a liberated person with a serious illness is negligible. According to a study conducted in Russia in 1999, out of 78,000 kept in correctional facilities there were only 22 people who had been exempt from serving the previous penalty because of an illness.

The criteria which, according to the law, are to be taken into account while deciding the question of exemption from punishment, are excessively vague, which unduly expands the boundaries of the court's opinion when making a decision. Only the following limitations of the possibility of one's exemption from punishment due to a disease seem to be objectively justified: the cases when the prisoners intentionally acquire or exacerbate severe illnesses and shy away from effective treatment while serving their sentences.

Court verdicts on exemption from punishment due to illness are non-appealable: only supervisory appeals can be filed, which is not an effective means of protecting violated rights. Together with the practical violation of the right to a fair trial, prisoners are deprived of many rights and possibilities which are standard for a democratic society.

In particular, the rights of prisoners to receive legal assistance, to gather and present to the court evidence of their position on their cases are not guaranteed. Therefore, the position of the prison administration and law-enforcement bodies that form the court conviction, depending on their own interests, becomes the determining factor.

The latter circumstance does not allow to fully compare the legislation of various countries in this field: legal provisions, which have similar wording can lead to different results when cases are considered in accordance with the standards of a fair trial.

There are also statistics from the Russian court (there is no publicly accessible court statistics in Belarus on this matter): in the Volgograd region, 19 out of 143 prisoners who had applied for exemption from punishment because of illnesses, died during the year, while their requests were pending.