Russia: Government to examine possibility of removing HIV-specific criminal law and broadening prosecutions to all serious communicable diseases under general ‘bodily harm’ laws

Edwin J Bernard - February 28, 2017

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.

Tipping point

It is widely believed that Russia currently faces a tipping point in how it tackles its growing HIV epidemic.

19400179_7The high level discussion on removing Russia’s HIV-specific criminal law is taking place at the same time as a number of other policy decisions relating to HIV, as Russia formulates its Action Plan to implement its Strategy to Combat the Spread of HIV.

A number of ministries are also considering the issue of entry, stay and residence restrictions on foreign-born residents of Russia who are living with HIV.

In 2015, the Russian Constitutional Court halted the deportation of foreigners living with HIV if they had family and/or immediate relatives living in Russia. In January 2017, the Ministry of Health proposed to further relax entry, stay and residency restrictions on foreigners with HIV but this proposal was blocked by the Ministry of the Interior and Ministry of Economic Development. 

Since then, Deputy Prime Minister Olga Golodets has instructed these ministries to work together on this issue as well as to study how to provide medical care for foreign citizens of Russia living with HIV.

Another positive sign is that the Government recently rejected a law – which was meant to be enforced on January 1st 2017 – to mandate registration of all people with diagnosed HIV into a central database, primarily due to concerns that this would drive undiagnosed individiduals underground.

Agencies and organizations spoke out against the introduction of the registry for the HIV-infected and concluded that such a measure will not contribute to “the creation of a trust, a partnership that must be established between providers and patients,” the document stated.

Also, it will cancel the rule on anonymity of HIV testing, the government stressed. This can significantly reduce the number of people willing to take such a test.

 

The full text of Articles 111, 112 and 115 in English
from http://www.legislationline.org/documents/section/criminal-codes/country/7

Article 111. Intentional Infliction of a Grave Injury
1. Intentional infliction of a grave injury, which is hazardous for
human life or which has involved the loss of sight, speech, hearing,
or any organ or the loss of the organ's functions, or which has
expressed itself in the indelible disfiguring of a human face,
and also infliction of other harm which is dangerous to human life
or which has involved an injury to a person's health, joined with
considerable permanent loss of general ability to work by not less
then one third or by the full loss of an occupational capacity for
work, which capacity was evident to the guilty person, or which has
involved the interruption of pregnancy, mental derangement, or the
victim's falling ill to drug addiction or toxicosis, -
Shall be punishable by deprivation of liberty for a term of up
to eight years.
2. The same acts committed:
a) in respect of a person or his relatives in connection with his
official activity or the discharge of his public duty;
b) with respect to a minor or another person who is, knowingly for
the guilty person, in a helpless state, as well as with special
cruelty, torture or torments for the victim; 
c) by a generally hazardous method;
d) by hire;
e) out of malicious motives;
f) by reason of political, ideological, racial, national or
religious hatred or enmity, or by reason of hatred or enmity
with respect to some social group;
g) for the purpose of using the organs or tissues of the victim,
shall be punishable by deprivation of liberty for a term of 
up to 10 years with restriction of liberty for a term up to
two years or without such.
3. Acts provided for by the first or second parts of this Article,
if they are committed:
a) by a group of persons, a group of persons by previous concert,
or an organised group; b) against two or more persons, -
c) abolished
shall be punishable by deprivation of liberty for a term of 
up to 12 years with restriction of liberty for a term up to
two years or without such.
4. Acts stipulated in the first, second, or third part of this
Article, which have involved the death of the victim by negligence,
shall be punishable by deprivation of liberty for a term of up
to 15 years with restriction of liberty for a term up to 
two years or without such.

Article 112. Intentional Infliction of Injury to Health of Average Gravity
1. Intentional infliction of injury of average gravity, 
which is not hazardous to human life and which has not involved
consequences referred to in Article 111 of this Code, 
but which has caused protracted injury to health or 
considerable stable loss of general capacity for work by not less
than one-third, shall be punishable by restriction of liberty
for a term up to three years, or by compulsory labour for a term
of up to three years, or by an arrest for a term up to six months
or by deprivation of liberty for a term of up to three years.
2. The same act committed:
a) against two or more persons;
b) against a person or his relatives in connection with his
official activity or the discharge of his public duty;
c) with respect to a minor or another person who is, knowingly
for the guilty person, in a helpless state, as well as with
special cruelty, torture or torments for the victim;
d) by a group of persons, a group of persons by previous concert,
or an organised group; e) out of malicious motives;
f) by reason of political, ideological, racial, national or
religious hatred or enmity, or by reason of hatred or enmity
with respect to some social group -
g) abolished
shall be punishable by deprivation of liberty for a term of five years.

Article 115. Intentional Infliction of Light Injury
1. Intentional infliction of light injury which has temporarily
damaged health or caused an insignificant stable loss of general
capacity for work,
Shall be punishable by a fine of up to 40 thousand roubles,
or in the amount of the wage or salary or any other income of
the convicted person for a period of up to three months,
or punishable by compulsory works for a term of up to 480 hours,
or corrective labour for a term of up to one year, 
or by arrest for a term of up to four months.
2. The same deed committed:
a) through ruffian-like motives;
b) by reason of political, ideological, racial, national or
religious hatred or enmity, or by reason of hatred or enmity
with respect to some social group -
shall be punishable by compulsory works for a term of up to
three hundred and sixty hours, or by corrective labour for a term
of up to one year, or by restriction of liberty for a term of up
to two years, or by compulsory labour for a term of up to two years.
or by an arrest for a term of up to six months, 
or by deprivation of liberty for a term of up two years.