The Czech Republic does not have an HIV-specific criminal law but people have been prosecuted under two sections in the Czech Criminal Code 2009 relating to ‘spreading an infectious disease’. Section 152 criminalises intentional transmission, with a penalty of 6 months to 3 years’ imprisonment, disqualification or forfeiture of items. The sentence can be increased to up to 8 years in certain circumstances including if the act caused grievous bodily harm, and up to 10 years if the act related to more than one person or caused death. Section 153 of the Code criminalises negligent transmission, punishable by up to 1 years’ imprisonment, disqualification or forfeiture of items. Again, the sentence can be increased to up to 6 years in certain circumstances including if the act caused grievous bodily harm, 8 years if they grossly violated public health laws, and 10 years if the act caused the death of more than one person.
People may also be prosecuted under section 145, causing serious bodily harm, which can result in imprisonment of up to 16 years.
A 2005 ruling by the Czech Supreme Court found that any unprotected sex by a person living with HIV can be considered as spreading of infectious disease, with no defence available if a partner was aware of the person’s HIV-positive status and consented to the act.
In 2015, an amendment to public health law was proposed, which would have allowed the introduction of mandatory HIV testing of some people from high risk groups, including men who have sex with men. Community advocates mounted a campaign against the amendment and ultimately, the proposal was unsuccessful.
Prior to 2015, the Czech Republic had four known cases of HIV criminalisation, none of which involved transmission. These included three prosecutions of gay men for HIV exposure (1998, 2004 and 2004), with sentences ranging from five months to 3 ½ years. The fourth case (2012) involved an 18 year old HIV-positive pregnant woman who was prosecuted for having condomless sex without disclosing her HIV status. She was sentenced to 2 ½ years’ imprisonment.
Since 2015, there has been a significant surge in HIV-related prosecutions. Between October 2015 and December 2018, 15 cases were reported, making the Czech Republic a global HIV criminalisation hotspot, ranked second in the world (after Belarus) for prosecutions per capita of people diagnosed HIV-positive (5.5 prosecutions per 1000 people living with HIV) as of December 2018.
During that period, the Czech Republic also had the notorious case of Prague’s Public Health Authority passing files to the police of 30 gay men living with HIV who had been diagnosed with a sexually transmitted infection. The Authority considered an STI diagnosis was proof that the men had practiced condomless sex, violating the Criminal Code (per the 2005 Supreme Court ruling, above). Eventually, charges were dropped against all of the men. The lack of success has led the Public Health Authority to refrain from filing criminal complaints for alleged HIV exposure.
Recent prosecutions have included those of female sex workers, including one woman charged for having condomless oral sex (no transmission), who had her sentence reduced by the High Court to five years. Another case involved a gay man extradited from Thailand after allegedly transmitting HIV to more than one person, who also had his initial sentence reduced. In 2018, the court considered the case of a young HIV-positive man who had condomless sex with five women (no transmission), with the Prague Supreme Court upholding a non-custodial/3-year suspended sentence. The recent approach to sentencing suggests that higher level courts may be developing a better understanding of HIV science, and consequently a less severe response to HIV. The Czech Supreme Court has recently acknowledged the importance of viral load when assessing risk of HIV exposure or transmission, and in one case, police decided to drop charges against an HIV-positive man who was accused of HIV exposure when he proved that he had an undetectable viral load.
§145 Těžké ublížení na zdraví (Serious bodily harm) … “indirectly” intended according to § 15 Úmysl (Intention).
(1) A crime is committed intentionally if an offender
a) wanted to infringe or endanger an interest protected by the law, (direct intention), or
b) knew that his/her conduct may cause such infringement or exposure, and was made aware of it (indirect intention)
§145 Těžké ublížení na zdraví (Serious bodily harm)
(1) imprisonment from 3 to 10 years if: direct or indirect intend, includes attempt
(2) imprisonment from 5 to 12 years if: two or more victims, repeatedly,
(3) imprisonment from 8 to 16 years if: causes death
Spread of contagious human disease
(1) Any person who intentionally causes or increases the risk of the introduction or spread of a contagious disease in humans shall be punished by imprisonment for six months to three years, by prohibition of activity or forfeiture.
(2) The offender shall be liable to imprisonment for two to eight years,
(a) commits an act referred to in paragraph 1 as a member of an organized group;
b) if he / she commits such an act in a state of threat or state of war, natural disasters or other events seriously endangering the life or health of people, public order or property,
(c) if he / she violates an important obligation arising from his / her employment, occupation, status or function or imposed by law under such act; or
(d) it causes serious injury to such an act.
(3) The offender shall be punished by imprisonment for three to ten years if he / she causes serious injury to at least two persons or death by an act referred to in paragraph 1.
(4) The offender shall be punished by imprisonment for five to twelve years if he / she causes the death of at least two persons by the act referred to in paragraph 1.
(5) Preparation is punishable.
The spread of contagious human disease through negligence
(1) Any person who negligently causes or increases the risk of the introduction or spread of a contagious disease in humans shall be punished by imprisonment of up to one year, by prohibition of activity or confiscation.
(2) The offender shall be punished by imprisonment for six months to three years,
(a) if he / she commits the offense referred to in paragraph 1 in a state of emergency or state of war, a natural disaster or other events seriously endangering the life or health of people, public policy or property;
(b) if he / she violates an important obligation arising from his / her employment, profession, status or function or imposed by law under such act; or
(c) it causes serious injury to such an act.
(3) The offender shall be liable to a term of imprisonment of one to six years,
(a) if he causes death by the act referred to in paragraph 1; or
(b) if it causes the act referred to in paragraph 2 (a) to: (b) severe personal injury.
(4) The offender shall be punished by imprisonment for two to eight years if he commits the offense referred to in paragraph 3 on the grounds that he / she has grossly violated the laws for the protection of public health.
(5) The offender shall be punished by imprisonment for three to ten years if he / she causes at least two persons by the act referred to in paragraph 1 for a gross violation of public health protection regulations.
ACT of July 14, 2000 on protection of public health and amendment to some related Acts
Measures against Spreading of Contagious Diseases by Natural Persons Secreting Infectious Germs
Additional Public health regulations:
(1) A natural person, who has been infected by a human immunodeficiency virus, and a natural person, who, following typhoid fever, paratyphoid fever A, B and C, bacillary dysentery, salmonellosis, diphtheria, viral liver inflammation B, C and D, tuberculosis, syphilis and gonorrhea, secretes infectious germs for a prolonged period of time, where such fact has been notified to him(her) or the legal representatives thereof (hereinafter a “carrier”), shall be obliged
a) to undergo medical supervision, necessary laboratory examination, treatment and other epidemiological measures,
b) to follow the instructions of the doctor on protection of other natural persons against transfer of a contagious disease of which (s)he is a carrier,
c) not to carry out activities in which the health of other natural persons would be endangered given the fact of him(her) being a carrier,
d) to inform the doctor of the fact of him(her) being a carrier, prior to examination or medical operation and on admission to institutional care; if the carrier has lost consciousness, (s)he shall do so immediately when enabled by his(her) health condition,
e) to disclose the fact of him(her) being a carrier at his(her) admission to a facility of social care,
f) to provide his(her) physician, with whom (s)he is registered,11) with personal data (name, surname, date of birth, place of permanent and temporary residence), data on employment and changes in such data.
Our thanks to Hall & Wilcox and the Czech AIDS Help Society for their assistance confirming current relevant legislation and cases.