An analysis of judicial practices reveals that courts lack a unified approach when dealing with criminal cases involving veterans who committed crimes under the influence of post-traumatic stress disorder (PTSD) or other psychological trauma. The legal framework for holding individuals accountable does not include mechanisms for the psychological rehabilitation of offenders with the aim of subsequently releasing them from criminal responsibility, except in cases where forced medical measures are applied.
When forced medical measures are applied due to PTSD or other psychological disorders, the veteran is treated involuntarily. Forced medical measures are applied to individuals who pose a danger to society. After completing treatment and recovering, the individual is supposed to serve their sentence unless the statute of limitations has expired or there are other reasons for exemption from punishment. The time spent under forced medical measures is counted toward the sentence.
In other words, forced medical measures are applied in cases of acute disorders or conditions that make the individual a danger to society. Such an individual is not reintegrated into society but, under the rules, must serve their sentence according to general legal procedures.
Experts from the NGO “Legal Hundred” are conducting research on the possibility of creating such tools within the justice system as part of the project “Analysis of the possibility of implementing veterans’ courts in Ukraine” with support from the “Justice for all” program funded by the U.S. Agency for International Development (USAID). The experts focused on the possibility of implementing a judicial rehabilitation procedure without creating entirely new judicial institutions. This procedure is now necessary for cases involving veterans who, after returning from the war, failed to adapt to civilian life and ended up in the criminal justice system. To understand the necessity of implementing this new institution, it is important to analyze the current provisions regarding criminal responsibility.
Criminal responsibility and the existing legal framework
Criminal responsibility is a type of legal liability that occurs when an individual commits a socially dangerous act that constitutes a criminal offense.
For criminal responsibility to apply, the individual must:
- Be of the age of criminal responsibility.
- Be mentally competent.
The concept of mental competence refers to the ability to understand the meaning of one’s actions (or inaction) and to control them. An individual who was in a state of insanity during the commission of a socially dangerous act is not subject to criminal liability. Such an individual may be subject to forced medical measures according to a court decision. If the individual understood the meaning of their actions at the time of the crime but later became mentally ill before the verdict was issued, the court may apply forced medical measures. Once recovered, the individual may be held criminally liable.
While the concept of insanity is clear, the Criminal Code also contains the notion of “limited sanity.” A person is considered of limited sanity if, at the time of committing a crime, they were unable to fully understand the nature of their actions (or inaction) and/or control them due to a psychological disorder. Such an individual is criminally responsible, but this condition is taken into account when determining the punishment and can serve as grounds for applying forced medical measures. Mitigation of punishment may involve applying a lesser degree of punishment. The individual may still serve their sentence in the form of confinement or imprisonment.
Punishment is a coercive measure applied on behalf of the state following a court verdict against an individual found guilty of committing a criminal offense. It involves the restriction of the convicted person’s rights and freedoms as prescribed by law. The purpose of punishment is not only retribution but also correction and the prevention of future crimes, both by the convicted individual and others. It may be possible to find another way to achieve the goal of punishment – rehabilitation and preventing future crimes.
One approach to achieving this goal was the institution of exemption from criminal punishment. However, exemption from punishment occurs when the court issues a guilty verdict. The individual is found guilty of the offense, but if the offense is minor or not serious, they may be exempted from punishment based on factors such as impeccable behavior or a conscientious attitude toward work. In such cases, the individual is not considered socially dangerous during the court process.
Judicial rehabilitation procedure: a new path forward
Under the proposed judicial rehabilitation procedure, if a veteran successfully completes a rehabilitation program, they should be released not from punishment, but from criminal responsibility. In this case, they would not be a convicted criminal. As a result, they would feel the understanding and support of society if they committed an offense due to PTSD or other psychological trauma.
Exemption from criminal responsibility is not a novelty in our criminal law, which includes grounds for such an exemption: genuine remorse, reconciliation between the offender and the victim, personal guarantee, changes in circumstances, and expiration of the statute of limitations.
It would be appropriate to include the option of exemption from criminal responsibility for veterans who have committed a crime for the first time, have been diagnosed with PTSD or another psychological disorder, voluntarily completed an individual rehabilitation program, and are no longer considered socially dangerous.
However, should these individuals be exempted from all criminal offenses, regardless of the severity? In our opinion, no. To separate categories of crimes and specific offenses, a detailed analysis of judicial practice is required, taking into account the most common crimes committed by such individuals.
Why the judicial rehabilitation procedure is especially beneficial for veterans
In cases where social assistance or rehabilitation is needed, the state, through authorized bodies, can ensure this process by involving the appropriate specialists, whose services will be monitored and controlled according to established methodologies. Potentially, public organizations or private enterprises and institutions can be involved in the judicial rehabilitation process, provided they meet the established criteria and can deliver high-quality services.
The right of a veteran to an individual rehabilitation program within the judicial process is a form of recognition of their contribution to defending the country. The loss of health, psychological issues acquired during military service, and insufficiently effective rehabilitation mechanisms or other forms of support could be the main reasons for criminal behavior.
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Ukraine's judicial system still lacks proper mechanisms that account for the veteran experience and the consequences of PTSD. Lesia Kliarovska, the chief manager of the L.E.A.D. Foundation and a legal expert, explains in her article on Femida.ua why judicial rehabilitation procedures should become an alternative to the purely punitive approach and how they can assist veterans in their reintegration.