Requested by: Kyrgyzstan, Minister of Justice

Recommended Measures:

41. The Venice Commission notes that the compulsory hospitalisation of persons with mental/behavioural disorders in a psychiatric or drug treatment facility is already regulated in the Kyrgyz legislation, which, however, is not covered by the present Opinion. Furthermore, the police have an obligation to assist medical personnel in this regard, including securing access for medical personnel to the person concerned, ensuring the safety of the person and others and searching and detaining the person for the purposes of compulsory hospitalisation. It remains unclear why the existing legal framework is considered insufficient to address the compulsory transfer of intoxicated offenders for emergency drug treatment. 

42. Given the complex nature of the issue, including, among others, human rights and medical aspects, the Venice Commission invites the authorities to ensure meaningful dialogue among the relevant state bodies, civil society and all other relevant stakeholders in order to reach a broad consensus as to the policy regarding the mechanism of compulsory transfer and the relevance of supplementing the current legislation. 

43. The Venice Commission considers that allowing the police to compulsorily transfer intoxicated offenders to a medical facility, in all cases, without obtaining medical evidence from a health professional, entails considerable risks. Giving the police the power to decide on the application of an urgent medical measure without the medical evidence/expertise entails serious risks of arbitrariness. 

44. Overall, the Venice Commission finds that not only the relevant legislation but also its implementation will be of crucial importance for upholding human rights in accordance with international standards, which set out a number of criteria referred to above. The interconnected nature of the work of police and medical services needs to be clearly set out and implemented. In this regard, the legislation should be supplemented by bylaws/protocols to clearly define the role of each (police and healthcare) body and how to react and interact when it comes to the compulsory transfer of intoxicated offenders while abiding by the safeguards foreseen in the law.

45. As regards the draft law, if the authorities reach a consensus to supplement the current legislation, the Venice Commission considers that it needs to be aligned with international standards on a number of aspects. Therefore, the Commission makes the following key recommendations and notes that further detailed recommendations are to be found in the text of this Opinion:

-    defining and clarifying the scope of the concepts used in the draft law in line with the relevant national legislation and international standards;
-    specifying the scope of action of the law-enforcement bodies as well as their obligation to assist and interact with the medical personnel;
-    specifying that compulsory transfer must be a measure of last resort after other, less serious measures appear insufficient;
-    providing that in certain categories of cases, the medical evidence is necessary to decide on the compulsory transfer and on the relevant institution;
-    providing explicitly in the draft law all the necessary safeguards as regards length of the transfer, mandatory medical examination upon arrival, length of compulsory hospitalisation, periodic independent assessments and the obligation to inform relatives/legal representative);
-    prohibit the punitive use of compulsory transfer explicitly to ensure that the implementation of the draft provisions does not result in administrative detention in disguise, in deviation from the appropriate safeguards to protect individuals' rights and ensure that compulsory transfer measures are applied fairly, lawfully, and with appropriate oversight.