Ukraine introduced an HIV-specific criminal law in 1998. Article 130 contained a number of provisions, including mandating HIV disclosure prior to any activity that may risk infection. The law also mandated that newly diagnosed individuals must also undergo a period of compulsory hospitalisation during which it is expected that they will sign an undertaking to obey this law. In addition, “conscious exposing to danger of infection [HIV exposure], or infection [HIV transmission]” is subject to prosecution, with a maximum penalty of ten years’ imprisonment.
Under Article 130, neither malicious intent nor actual transmission are required. Furthermore, what constitutes “danger of infection” is not defined, but may include having unprotected sex, blood donations, sharing needles etc. Criminal liability could also be assumed based on “risky” behaviour (for example if they are injecting drug users) even without an HIV-positive diagnosis.
Article 131 also criminalises the transmission of HIV or another incurable infectious disease as a result of medical negligence. A doctor from the Donetsk region was found guilty of transmitting HIV to three children in 2005 and sentenced to five years to prison in 2012.
The transmission of other sexually transmitted infections is also criminalised under Article 133.
As well as the Criminal Code, Ukraine has an HIV-specific statute, The law on the response to the spread of diseases caused by the human immunodeficiency virus (HIV), and the legal and social protection of people living with HIV. Article 12 of this law imposes a number of responsibilities on people living with HIV, including disclosing HIV status to partners, and refraining from donating blood or other fluids, organs or tissues.
In 2017, international and national stakeholders assessed the political and legal environment in the relation to the HIV response in Ukraine and recommended the repeal of Articles 130 and 133 of the Criminal Code as well as the removal of references to HIV from other articles that could be used in the context of criminal liability. Further advocacy highlighted the fact that the HIV criminalising provisions of the Criminal Code of Ukraine contradicted the implementation of the HIV response as set out by the state policy.
Statistical information provided by the State Judicial Administration of Ukraine on the number of persons convicted of crimes under Article 130 of the Criminal Code, reported 73 convictions between 2003 and 2018. Since 2015, the only cases of prosecutions have been against women.
Criminal Code - Article 130. Infection with HIV or any other incurable contagious disease
Section 2 – Criminal Code of Ukraine, Crimes against life and health
Article 130. Infection with HIV or any other incurable contagious disease
Part 1. Knowingly placing of a person in danger of HIV exposure or any other incurable contagious disease dangerous to human life, – is punished by arrest for a term up to three months, or by restraint of liberty for a term up to five years, or imprisonment for a term up to three years.
Part 2. Infection of another person with HIV or any other incurable contagious disease by a person who was aware of himself or herself being a carrier of this virus, – is punished by imprisonment for a term of two to five years.
Part 3. Acts envisaged in part 2 of this Article, committed against two or more persons or a minor, – is punished by imprisonment of three to eight years.
Part 4. Deliberate contamination of another person with HIV or any other incurable contagious disease dangerous to the person’s life, – is punished by imprisonment for a term of five to ten years.
Article 131. Inappropriate fulfillment of professional duties resulting in infection of a person with human immunodeficiency virus or other incurable infectious disease
1. Inadequate performance by a medical, pharmaceutical or other employee of his professional duties as a result of a careless or dishonest attitude towards them, which entails infection of a person with human immunodeficiency virus or other incurable infectious disease that is dangerous to human life, –
- the applicable sentence is the restriction of liberty for a term of up to three years or the deprivation of liberty for the same term with the deprivation of the right to occupy certain positions or engage in certain activities for a term of up to three years.
2. The same act, if it entailed the infection of two or more persons, –
- the applicable sentence is deprivation of liberty for a term of three to eight years, with the deprivation of the right to occupy certain positions or engage in certain activities for a term of up to three years.
Article 133. Infection with a venereal disease
1. Infection of another person with a venereal disease by a person who knew that he had this disease, –
- shall be punished by correctional labor for a term of up to two years, or arrest for a term of up to six months, or restriction of liberty for a term of up to two years, or imprisonment for the same term.
2. The actions provided for in the first part of this article, committed by a person previously convicted of contracting another person with a venereal disease, as well as the infection of two or more persons or a minor
- shall be punished by restraint of liberty for a term of up to five years or imprisonment for a term of up to three years.
3. The actions provided for by parts one or two of this article, if they entail grave consequences, –
- the applicable sentence is deprivation of liberty for a term of two to five years.
The law on the response to the spread of diseases caused by the human immunodeficiency virus (HIV), and the legal and social protection of people living with HIV (AIDS Law) in Ukraine
Article 12. Responsibilities of People Living with HIV
1. People living with HIV are obliged to:
1) take measures to prevent the spread of HIV infection by health authorities;
2) inform the persons who were their partners before the detection of the fact of infection about the possibility of their infection;
3) refuse to donate blood, its components, other biological fluids, cells, organs and tissues for their use in medical practice.
2. In case of non-fulfilment of the obligations defined in the first paragraph of this article, people living with HIV from among foreigners, as well as stateless persons, who by their behaviour endanger the health, protection of rights and legitimate interests of Ukrainian citizens, may be expelled outside Ukraine in the manner prescribed by law.
Authors: Eurasian Women’s Network on AIDS (EWNA)
Regional HIV criminalisation report that summarises the state of play regarding HIV criminalisation laws and known prosecutions in the EECA region.