The Russian government is considering removing Article 122 (Infection with Human Immuno-deficiency Virus) from the Criminal Code, according to an article published earlier this month on the RBC website.
Deputy Prime Minister Olga Golodets has instructed a number of ministries to work together to examine whether it is possible to eliminate this HIV-specific criminal law.
The Ministry of Justice, Ministry of Health, Ministry of Internal Affairs, the Federal Service, Prosecutor General's Office, the Supreme Court and the Institute of Legislation and Comparative Law under the Government have been given a deadline of October 1, 2017.
Article 122. Infection with Human Immuno-deficiency Virus (HIV)
1. Posing a conscious threat to infect a person with HIV
Shall be punishable by restraint of liberty for a term of up to
three years, or by compulsory labour for a term of up to one year,
or by arrest for a term of up to six months, or by deprivation of
liberty for a term of up to one year.
2. Infection of another person with HIV by a person who knew that
he had such disease, Shall be punishable by deprivation of liberty
for a term of up to five years.
Federal Law No. 14-FZ of February 29, 2012 amended part 3 of
Article 122 of this Code
3. The act described in the second part of this Article,
committed against two or more persons, or against an obvious juvenile,
Shall be punishable by deprivation of liberty for a term of up to
eight years with deprivation of the right to hold definite offices
and to engage in definite activities for a term of up to ten years
or without such.
4. Infection of another person with HIV through the improper
discharge by a person of his professional duties, shall be punishable
by compulsory labour for a term of up to five years accompanied by
deprivation of the right to hold specified offices or to engage in
specified activities for a term of up to three years or without
such or by deprivation of liberty for a term of up to five years
accompanied by deprivation of the right to hold specified offices
or to engage in specified activities for a term of up to three years.
Note: A person who has committed the deeds provided for by
Parts One and Two of this Article shall be released from criminal
liability if the other person subjected to the risk of being
infected, or infected, with HIV was warned in due time that
the former had such disease and agreed of his own free will to
commit the actions posing the risk of infection.
During their deliberations, the ministries will consider instead applying Articles 111, 112, 115 of the Criminal Code relating to the intentional infliction of "serious," "average" or "light" bodily harm, respectively.
(Scroll to the bottom of the page for the full text of these Articles.)
Opportunities and Threats
Without clear prosecutorial guidelines, however, it is possible that the punishment for alleged HIV transmission could be much more harsh under these general laws (from up to 5 years to up to 10 years) than under the present HIV-specific statute.
However, this may also be an opportunity to decriminalise potential or perceived HIV exposure without prior disclosure of known HIV-positive status, since no bodily harm has been inflicted.
Nevertheless, the article notes that applying general laws could also allow for prosecutions relating to other serious and dangerous communicable diseases, which has the potential to greatly expand the use of the criminal law against a number of vulnerable populations in Russia that are disproportionately impacted by, for example, hepatitis and TB.
The proposal to delete the article on HIV infection was advanced by lawyer Konstantin Dobrynin during a meeting on 3 February of the Council of the Government of guardianship in the social sphere of which he is a board member. Having such a law is parcularly discriminatory for patients with HIV, he said. "This article appeared in the legislation in 1996, since then has passed 21 years, the world has moved forward," said Dobrynin.
Dobrynin stressed that the law usually does not consider as a defence the use of condoms and whether the patient is on treatment, noting that condom use and antiretroviral treatement creates a "negligible" probability of infection. "We propose to recognize the article about HIV infection as invalid and to register a new article for the infection of all kinds of infectious diseases, the list of which is to be approved by the State," summarized Dobrynin.
[However], the proposal to create a separate article for all infectious diseases was not reflected in Golodets' order.
During the 30-month period: April 2013 to October 2015, we found that Russia had the highest number of HIV-related cirminal cases in the world during this period (at least 115), followed by the United States.
The RBC article states that there were 19 convictions under Article 122 in the first half of 2016 and 45 in 2015. This means that only some of the cases we highlight on our site are reported in the news.
It is widely believed that Russia currently faces a tipping point in how it tackles its growing HIV epidemic.