Kyrgyzstan: Amnesty law rules out release of prisoners living with HIV as not applying to “diseases that pose a danger to others”

HIV/AIDS prisoners are discriminated and not amnestied

Human rights defenders are trying to achieve the return of HIV / AIDS to the list of diseases that are the basis for presenting convicts with release from serving their sentences.

According to the public foundation “Positive dialogue”, HIV / AIDS and tuberculosis became the cause of death of prisoners in 78 % of cases in 2018. In 2019, statistics was improved slightly and the death rate of convicts from these diseases was decreased to 59 % of the total number of deaths.

In May 2020, the Parliament of the republic adopted the amnesty law in connection with the 75th anniversary of Victory in the Great Patriotic War of 1941-1945 and the 10th anniversary of the people’s April revolution in 2010. However, according to human rights activists, according to this normative act, not a single prisoner with a diagnosis of AIDS was released from prison. This possibility was ruled out by one of the articles of the amnesty law, which states that its application doesn’t apply to convicts suffering from diseases that pose a danger to others. For example, infectious and venereal diseases.

According to the law, amnesty for such persons is applied only after completion of the course of treatment. But, as human rights activists note, although HIV / AIDS is classified as an infectious disease, it doesn’t have a strictly defined course of treatment. Antiretroviral therapy, as a combination of three medicines that suppresses the HIV virus to the maximum and contains the progression of the disease, is prescribed for life.

“Restrictions on the use of amnesty for treatable diseases are not effective for HIV because HIV is not treatable and is not randomly transmitted. Such restrictions for the non-application of amnesty cannot be called objective and reasonable,” the public foundation “Positive dialogue” believes.

In August 2020, the representatives of the foundation appealed to the State Penitentiary Service of the Kyrgyz Republic and the Republican AIDS Center with a proposal to consider the issue of including HIV / AIDS in the list of diseases that are the basis for release for prisoners from serving sentences, as well as to include it in the list of diagnoses that prevent detention, and initiate the procedure for making additions to the specified decrees of the government of the Kyrgyz Republic.

“Such a measure will reduce mortality from HIV and HIV-associated diseases, improve the treatment of sick convicts and will be a proof of the humanistic principles of the penal legislation,” the appeal says.

Human rights activists emphasize that convicts living with HIV are under constant pressure from discrimination and inequality: they cannot be exempted from serving their sentences due to illness and cannot be amnestied by law simply because of their status.

In response, the State Service for the Execution of Punishments reported that in 2017, as part of the judicial and legal reform initiated by the Republican AIDS Center, clinical stage 4 of HIV infection was excluded from the list of diseases that are grounds for release, since concomitant diseases occurring at this stage of infection, were already on the list. At the same time, the working group, that made such a decision, included, on an equal basis with other government agencies, the Republican AIDS Center, which is a specialized national body for the development of measures to prevent HIV / AIDS.

The response of the Republican Center to the request of human rights activists was shocking. It says that the department considers it “inappropriate to include a separate line of people living with HIV in the above lists of diseases”.

“The penitentiary system of the republic has access to testing, treatment with the provision of necessary medicines for HIV treatment, departmental medical institutions for prisoners with the necessary level of conditions for therapy. AIDS service specialists conduct systematic examinations and consultations of patients with serious conditions, subject to their notification”, assured in the Center.

At the same time, representatives of the public foundation “Positive dialogue” have information that during the acute phase of the coronavirus pandemic, convicts with AIDS / HIV received practically no appropriate medical and psychological assistance equivalent to that provided to those who wasn’t in places of imprisonment.

Also, the Republican AIDS Center believes that prisoners don’t die from HIV in prisons, but from diseases associated with this infection.

In addition, the department notes that according to the electronic tracking system for HIV cases since the implementation of the Laws of the Kyrgyz Republic № 53 “On amnesty in connection with the 75th anniversary of Victory in the Great Patriotic War of 1941-1945 and 10 anniversary of the people’s April revolution in 2010” (dated May 8, 2020) and № 34 “On probation” (dated February 24, 2017), the number of convicts with HIV was decreased by 2 times. This, in the opinion of the relevant national body for the fight against AIDS, is a confirmation of the effectiveness of these legal acts.

Meanwhile, the fact of the absence of real statistics on deaths of prisoners from AIDS was confirmed in an interview with one of the local media by the deputy director of the Republican AIDS Center Aybek Bekbolotov. In particular, he told the reporters the following, “We cannot regulate the statistics, because many, when they take a death certificate, don’t want it to be written ‘HIV infection’. Many pass as dead from other diseases. There is a difference between us and the National Statistical Committee.”

“The correspondence with the administration of a medical institution shows how the personal opinion of one person becomes decisive for the fate of many people. Not people, not patients, but the state interests, the interests of the department, statistics – this, I think, is the main pattern – is the scheme of actions of state officials. And this despite the fact that the considerable funds from international donors were allocated for education and material support of the staff of the Republican AIDS Center. How can we assess the activities of the Republican AIDS Center after that?” the lawyer of the Coalition against Torture, Arsen Ambaryan, is indignant.

US: North Dakota Legislature rejects bill to modernise outdated HIV-criminalisation law

North Dakota lawmakers reject bill to soften HIV transmission law

The bill’s primary sponsor, Rep. Gretchen Dobervich, D-Fargo, said the penalty for knowingly transmitting HIV is unfairly harsh and doesn’t align with the infractions North Dakotans face if they willfully infect someone with any other sexually transmitted disease, such as hepatitis or syphilis.

BISMARCK — The Republican-led North Dakota House of Representatives widely rejected a bill on Wednesday, Jan. 13, that would have lessened the penalty for knowingly transmitting HIV.

Currently, residents who consciously infect a sexual partner with the virus could face a Class A felony, which comes with up to 20 years in prison and a $20,000 fine. House Bill 1106 would have made the offense an infraction, which carries a fine up to $1,000 and no jail time.

The bill’s primary sponsor, Rep. Gretchen Dobervich, D-Fargo, said the penalty for knowingly transmitting HIV is unfairly harsh and doesn’t align with the infractions North Dakotans face if they willfully infect someone with any other sexually transmitted disease, such as hepatitis or syphilis.

All but one Republican on the House Judiciary Committee voted to give the bill a “Do Not Pass” recommendation on Tuesday, Jan. 12, because they believed an infraction for transmitting HIV was not a harsh enough punishment.

Only three people have been convicted with a felony under the current law.

There were an estimated 468 North Dakota residents with HIV in 2019, but 80% are virally suppressed, meaning they are very unlikely to transmit the virus, according to the state Department of Health.

China: Southwest Yunnan Province to roll out new regulation making HIV non-disclosure a criminal liability

HIV-hit Yunnan mulls legal punishment for HIV/AIDS patients who conceal conditions from spouses, sex partners

Southwest China’s Yunnan Province, a region most affected by HIV in China, will roll out a new regulation next year where HIV/AIDS patients who conceal their condition from their partners will be prosecuted for criminal liability. The regulation has immediately sparked heated discussions. 

Yunnan recently issued the strict measures to prevent and control AIDS in the province, which would come into effect next March. The rules specify that medical institutions have the right to inform HIV/AIDS patients’ spouses and sex partners if the patients themselves fail to do so. 

It also said that those who conceal the information from their spouses or sex partners would be held accountable under the law. 

For residents who live in AIDS-prevalent areas, the regulation said, there would be free HIV screening for couples before marriage. In addition, it ordered all government bodies, organizations and companies to include HIV tests in physical examinations, and civil servants to take the test every half a year. 

As soon as the rules came out, they drew controversy on social media platforms, where citizens argued over whether the rules have tilted the balance between personal privacy and public health. The topic garnered on Monday 230 million views and nearly 9,000 comments as of press time. 

While some citizens supported the regulation and called for pre-marriage HIV-screening to be promoted nationwide, some asked if the rules will intrude on HIV-infected patients’ privacy.

Liu Wei, director of the Chinese Association of STD and AIDS Prevention and Control, told the Global Times on Monday that the rule on medical institutions’ right to inform patients’ sex partners requires further clarification. 

To diagnose an AIDS patient requires two steps – initial screening and confirmation. Only when a person gets positive results in both tests can he or she be confirmed, which means that medical institutions that have the right to inform must be those with AIDS confirmation qualifications, such as the local disease control and prevention center or other authorized units,” Liu explained. 

With these clarifications given, observers believe that the rule will prioritise the right to health, while guaranteeing patients’ privacy to the largest extent. 

If the AIDS patients choose to engage in sexual activities with another person, then the right to health of the people exposed should be placed above the patients’ privacy, analysts said. Since the rule only grants the institutions the right to inform partners rather than the general public, the patients’ privacy can also be protected, analysts noted.

They noted that many cases showed that AIDS patients who chose to inform their spouses or sex partners with courage usually won more respect, rather than discrimination.

Liu said the new measures should also take into consideration patients’ mental well-being, by allowing a “buffer period” for them to accept the devastating news and prepare themselves to inform their close contacts.

Medical institutions should also provide patients with psychological counseling and consulting services. 

Yunnan is the most affected area by HIV. The province reported 8,723 new cases in 2019, bringing the total to 111,700. Sex transmission remained the major cause, which accounted for 97.5 percent of the total in 2020. Needle injection and mother-to-child transmission continued to drop, the local government announced on December 1. 

Mexico: Green party in State of Mexico (Edomex) proposes law to increase prison sentences for “deliberate transmission” of communicable diseases, including HIV

Green Party seeks to establish prison sentences for deliberate HIV transmission

Automatic translation via Deepl.com. For article in Spanish, please scroll down.

The Green Ecologist Party in the LX Legislature, seeks to establish up to 4 years jail sentences for anyone who deliberately infects another person with a transmissable disease such as Acquired Immunodeficiency Syndrome (AIDS) and at this time of Covid-19 Coronavirus pandemic. 

In this sense, the legislator María Luisa Mendoza Mondragón proposes a reform to the article 252 of the Penal Code of the State of Mexico, which already contemplates the crime of Danger of Infection, and which currently only reaches a privative sentence of up to two years; the initiative contemplates an aggravating circumstance of up to one third, if the active subject is a medical professional. In addition, the initiative, which is currently in committee, proposes to raise this type of action for malice from 60 to 140 units of measurement and to update it.

“The action taken by a sick person who knowingly infects another person must be considered a crime and therefore be punished with a more severe penalty considering the atypical and extraordinary circumstance we face,” said the deputy,

This parliamentary faction also wants to modify the terms of the prosecution of the crime by the state authorities so that the investigation is no longer only by denunciation of the person or persons affected, but rather by office with the intention of punishing whoever commits these acts that attempt against the life of the Mexicans.

This crime is defined in the local law as follows: “Whoever, knowing that he suffers from a serious illness during the infectious period, puts himself in danger of infecting another person, by any means of transmission”.


Partido Verde busca establecer penas de cárcel a quien deliberadamente contagie el SIDA

En este sentido, la legisladora María Luisa Mendoza Mondragón propone una reforma al artículo 252 del Código Penal del Estado de México, en el que ya se contempla el delito de Peligro de Contagioy que actualmente solo alcanza una pena privativa de hasta dos años; la iniciativa contempla una agravante de hasta un tercio, si el sujeto activo es personal médico. Además, la iniciativa que se encuentra en comisiones, propone elevar de 60 a 140 unidades de medida y actualización este tipo de acciones por dolo.  

“La acción desplegada por un sujeto enfermo que contagie a otro con conocimiento de causa tiene que ser considerado como delito y por ende ser castigado con una pena más grave por la circunstancia atípica y extraordinaria que enfrentamos”, dijo la diputada,  

Esta fracción parlamentaria también quiere modificar los términos de la persecución del delito por parte de las autoridades estatales para que la investigación ya no sea solo por denuncia de la o las personas afectadas, sino que más bien sea por oficio con la intención de castigar a quien cometa estos actos que atentan contra la vida de los mexiquenses.  

Este delito en la norma local se define así: “A quien sabiendo que padece una enfermedad grave en período infectante, ponga en peligro de contagio a otro, por cualquier medio de transmisión”.  

Australia: Mandatory Disease Testing Bill is an “inappropriate criminalisation of a health issue”

ACON Condemns Introduction of Mandatory HIV Testing Laws in NSW

ACON has condemned the introduction of legislation by the NSW Government that will enforce mandatory testing of individuals whose bodily fluids come into contact with frontline workers.

On 11 November, the NSW Government introduced the Mandatory Disease Testing Bill (2020) into NSW Parliament.

ACON, along with many other expert and qualified stakeholders strongly oppose mandatory testing as it is ineffective in reducing harm or risk to people involved in potential exposure incidents. Further, such policy will cause different actual harm – particularly to marginalised communities – cost money and add to system pressures.

ACON CEO Nicolas Parkhill said: “We strongly believe in the importance of wellbeing and safety of frontline workers in NSW. We agree they must be protected as much as is reasonably possible in a high-level occupational risk environment.

“We believe that those putting forward this Bill to mandatorily test people are doing so as a well-meaning but misguided gesture of care for emergency services personnel.

“The concern for frontline workers is commendable and shared by all of us. However, this Bill does not afford real protections for our frontline workers – our current policies and procedures do, as evidenced by the fact that there has not been an incidence of occupational transmission of HIV for emergency service workers in more than 15 years.

“This Bill is not in line with evidence, not consistent with multiple state, national and international policies and guidelines, it exacerbates unfounded fear and it does nothing to educate and inform our workers about the real risks associated with bodily fluids,” Parkhill said.

“Our existing laws, policies and procedures work: there are other ways to reduce fear, risk and concern about this issue among frontline workers. We did not resort to mandatory testing in the height of the HIV/AIDS pandemic in the 1980s and 1990s, we certainly don’t need to now, noting the excellent progress we are making in driving down transmissions, and irrefutable evidence that effective treatment prevents onward transmission.

“NSW has every reason to feel incredibly proud of its efforts to contain epidemics and pandemics. We have seen this in NSW’s world-leading HIV response and, more recently, in the way NSW has responded to COVID-19. And we have done this by following the evidence, trusting people with information, and supporting frontline workers while they did their job – not by ignoring science, inciting fear and enacting policy that marginalises already vulnerable people,” Parkhill said.

“This Bill is the antithesis of evidence-based policy, and counter to our experience with pandemics and epidemics long brought under control by NSW using evidence, education, and a supportive approach. Force, criminalisation, misinformation, and fear is not the answer.”

Parkhill said the Bill, in its current form, presents significant concerns such as the lack of clarity in key areas and definitions, inappropriate age of application, and ambiguity around grounds for refusal or review.

“The Bill does not provide clarity on when the transfer of fluids from a third party is a ‘deliberate action’,” Parkhill said. “Medical procedures against the will of the person should not occur on the subjective opinion of a frontline worker and their senior officer, who are unlikely to understand the contemporary evidence around blood borne virus transmission.

“Extraordinarily, this Bill does not require medical advice of an infectious disease expert to be included in the application for a mandatory test,” Parkhill added.

Under the proposed legislation, a person who has appealed a decision made by a senior officer must still undergo venepuncture under threat of a fine or gaol. A person who is detained can have force used against them to ensure this occurs.

Parkhill said: “This is a denial natural justice, a violation of civil liberties and is unacceptable”.

The Bill will also apply to children aged between 14 and 18, which Parkhill labelled as “extremely worrying”.

“NSW reported only three infections among children in this age group in the previous year. On any assessment of risk, that minors are included in the Bill is an overreach and unconscionable.

“Mandatory testing orders for young people will further increase pressures on the Children’s Court and increase the distress of this vulnerable group of people.

“The handful of people likely to have any risk of HIV infections in this age group – and the likelihood these young people will be on treatment – represents perhaps the most egregious aspect of this Bill,” Parkhill said.

“We believe that this Bill is based on fear and ignorance, and flies in the face of decades of evidence-based practice and policy in relation to HIV and other blood borne virus transmission.

“The Bill will increase stigma and discrimination experienced by people living with HIV and other blood borne viruses.

“It also presents risks and harms for many thousands of marginalised people in this state – the overwhelming majority of whom pose no blood borne virus risk to our emergency workforce.

“Homeless people, people who experience mental illness, people struggling with addiction issues, Aboriginal and Torres Strait Islander people and others who are more likely to come into contact with frontline workers, particularly police officers – they also deserve our care and protection,” Parkhill said.

“Fundamentally this Bill is an inappropriate criminalisation of a health issue, one which has been dealt with through world-leading, evidence-based, bipartisan policy.

“Further work is needed on this Bill, and we strongly recommend that an Inquiry is formed to investigate the potential harm of the Bill before its passage through the Parliament,” Parkhill said.

Details of the Mandatory Disease Testing Bill (2020) can be found here.

Australia: “Coercive responses like forced testing and detention should only ever be a last resort”, if at all

Forced testing a last resort

With the COVID-19 pandemic persisting for much longer than expected, particularly in Victoria where rolling lockdowns have affected us all, it’s understandable that there might be calls for legislative reform. But I was saddened to read a call for implementation of widespread coercive testing under the Public Health and Wellbeing Act 2008 (PHW Act) (“Flattening the curve – Why the law should allow for compulsory testing in a pandemic”, LIJ October 2020).

Threats to public health do sometimes require drastic measures, but where human rights are impacted, the legal profession should be the first to question whether such measures are proportional and justified. Existing provisions within the PHW Act allow for testing orders in strictly limited circumstances – as is appropriate given the extreme intrusion into human rights
that those orders can represent. The history of the response to HIV in Australia has frequently seen calls for curtailment of individual rights in the pursuit of the public good, and the current PHW Act was developed in part through consultation with the HIV-affected community. Notwithstanding that, there are powers to detain and test people in the Act and, while rarely used, they can be highly coercive.

The case of Lam Kuoth is an example. Accused of placing a woman at risk of HIV, Mr Kuoth, a young Sudanese man, was placed in public health detention for almost 16 months before his trial. On appeal, the Court of Appeal accepted that that period “amount[ed] to a term of imprisonment”1 in a matter where, ultimately, only a community- based order was imposed.

There is a well-developed international discourse about the most effective ways to protect the health of communities while also safeguarding rights. The Ottawa Charter for Health Promotion is globally recognised as a foundational document.2 The Charter sets out a framework of developing healthy public policy, creating supportive environments, and empowering and educating individuals, as the foundation to effective public health responses.

Victorians have been tested in huge numbers (more than 2.8 million tests). Our second wave wasn’t due to low testing, but emerged from outbreaks in workplaces – aged-care homes, abattoirs, and quarantine hotels – where low-paid workers, often with limited education and training, have been on the frontline of the pandemic. Better safeguards for their health and employment would have limited or prevented those outbreaks without the need for forced testing. Coercive responses like forced testing and detention should only ever be a last resort, if they are used at all. 

Paul Kidd, director, HIV Justice Network (Amsterdam), lawyer, Fitzroy Legal Service.

1. Kuoth v TheQueen[2010]VSCA103.
2. World Health Organisation,The Ottawa Charter for Health Promotion (21 November 1986) http://www.who.int/healthpromotion/ conferences/previous/ottawa/en/.

Uzbekistan: While people with HIV are still criminalised, there is hope for change with the the country’s entry into the UN Human Rights Council

Punishment for illness: why HIV is still a crime in Uzbekistan

Google translation. For article in Russian, please go to: https://uz.sputniknews.ru/analytics/20201028/15275804/Nakazanie-za-bolezn-pochemu-VICh-v-Uzbekistane-do-sikh-por-prestuplenie.html

Unfortunately, people living with HIV in Uzbekistan are victims of a discriminatory legal system. But there is hope that with the country’s entry into the UN Human Rights Council, the situation with obsolete norms will begin to change.

TASHKENT, October 28 – Sputnik, Anna Zhelikhovskaya. Shortly before the introduction of quarantine in Tashkent, an investigation began on the case of 52-year-old Natalya (name has been changed. – Editor’s note), a single mother who works as a hairdresser and colourist. The woman is a professional master all-rounder with over 20 years of experience in this field. She was charged under article 113, part 4 of the Criminal Code of the Republic of Uzbekistan “The spread of a venereal disease or HIV infection / AIDS” – knowingly endangering or getting infected with HIV / AIDS.  

Positive result

In 2014, the List of professional activities prohibited for persons infected with the human immunodeficiency virus was updated. It included, in particular, the profession of a hairdresser associated with cutting and shaving. Natalya’s story began in 2017, when the director of the beauty salon where she worked sent employees to undergo, as it turned out, mandatory HIV testing.   

“My test turned out to be positive. I realised that it was impossible, and retaken the analysis. I don’t know how I got through these days of waiting … The answer was again yes. The first thing I experienced was shock. Before that, I did not know anything about this disease I never came across him. Of course, the doctors talked to me, I registered at the Tashkent City AIDS Center, leaving all my data there, “the woman recalls.

She immediately started taking antiretroviral therapy (ART). This specific treatment helps patients block the virus, which means they do not put others at risk, live a full life, have a family and healthy children. For the next two years, she continued to work in the service industry, realising every day that management should know about her illness. Natalya explained the lack of a certificate to the director by the fact that she could not pay for the test at the moment.

“With the best of intentions, of course, he called the SES and asked if I could still not take the test, since I’m not a beautician, I don’t do tattoos and make-up, neither do manicure. I work with paints and cut my hair, mainly with a machine. replied that in this case, the test can not be taken, “- says the woman.

According to her, she did not report the test results to the director because she was afraid of losing her job. Raising a teenage child alone, a woman treasured her only source of income. In addition, Natalia had already learned enough about her illness and understood that with an undetectable viral load (the amount of virus in the blood), she was safe for others.

“Of course, I do not justify myself in any way. I had to report everything to the management and leave the profession. But I was scared, I was lost and did not understand what to do next, how to live now …”

In March 2020, a few days before quarantine, police officers came to the beauty salon with a purposeful check. According to the woman, one of them took her into a separate room and said that with such a diagnosis she was not allowed to work as a hairdresser. It was explained to Natalia’s colleagues and her management that the problem was in the medical book. At the same time, according to her, one of them reassured her, assuring her that there would be no trial, and she would limit herself only to a fine. However, an investigation soon began and the first court hearing was scheduled. Before the trial began, none of her colleagues and the director knew about the real reason for the audit.

“In a conversation with an operative, a doctor in the AIDS center, in the makhalla committee indirectly, not directly, but it was felt that I was suspected of indecent behaviour. To say that I was mentally and psychologically crushed is to say nothing. I am a believer, I walk to the church. For the trial, even my positive characteristics were provided from there, “recalls Natalya.

Today in the minds of people there is still a deep conviction that this is a disease of the marginalised. And if a woman has it revealed, then she will certainly receive the stigma of the fallen. Antiquated HIV legislation also hinders the fight against this stigma.

A new look at old laws

Uzbekistan’s Criminal Code was approved in 1994, and article 113 has its roots in the 1980s. Then the diagnosis was really a sentence, there was no treatment or diagnosis, and criminal prosecution was considered almost the only type of prevention. Several years ago, the World Health Organization officially recognised HIV as a chronic, not fatal, disease. People who regularly take therapy live long and healthy lives. Therefore, the list of permitted professions and the justice system for positive ones should be revised.

“To date, not only has the status of the disease changed, but there is also a lot of data that make it possible to unequivocally assert that criminal prosecution does not prevent the spread of the virus in any way. The existence of criminal liability for endangering and transmitting HIV, on the contrary, leads to the fact that people who practice risky behaviour, avoid testing. After all, while they do not know about their status, they are not subject to responsibility, “says lawyer Timur Abdullaev.

Natalia’s public defender at the trial was Evgenia Korotkova, coordinator of the Positive Women program “Ishonch va hayot”. She says that they monitored the list of prohibited professions for people with HIV in the CIS countries, and nowhere is the profession of a hairdresser.

“At the very first court session, we petitioned for the appointment of a forensic medical examination with the involvement of an experienced infectious disease expert working with HIV. The investigation established that the accused had zero viral load. danger. The indictment states that in order to prevent infection of third parties, she did not work with cutting tools, but used a typewriter. That is, by her actions, she tried to protect clients from HIV transmission, “says Evgenia.

In world medicine, the thesis “Undetectable = Untransmittable” (the principle “U = U”) has been finally proved. Experts and legislators of Uzbekistan have more than 10 years of their own observations and statistics, confirming international data. This already allows us to revise the list of prohibited professions for people with HIV, the relevant law and decriminalise Article 113.

You can already start by looking at the list of prohibited occupations that people with HIV can do.

“Amendments to this list can be achieved if the convict in question does not stop and continues to defend her rights up to the Constitutional Court and the UN Human Rights Committee,” the lawyer said.

According to him, the UN Special Rapporteur on the Right to Health and representatives of other structures of the organisation spoke about the harm of HIV criminalisation, as well as the fact that it violates a number of rights enshrined in international pacts ratified by Uzbekistan. However, so far no action has been taken in this direction.

According to human rights activists, there is a serious flaw in Article 113, which is found in almost all the criminal codes of the Central Asian countries: it contains the word “knowingly”.

“What is” knowingly “and how it relates to intent, the Code itself does not explain. As a result, such a” trifle “becomes a secondary circumstance. Whether intent or not can affect only the severity of punishment, but responsibility does not cancel out. depending on whether a person wanted to infect someone with HIV or not, the article “shines” in any case, “Timur Abdullaev explained.

Usually such inaccuracies in the legislation are eliminated either by bylaws or by Resolutions of the Plenum. But with regard to Art. 113 there is neither one nor the other. There are only Criminal and Criminal Procedure Codes, and everything else is at the discretion of the court. If the judge does not understand what HIV is and how it is transmitted, then the defendant will have a difficult time.

Moreover, even among scientists there is no consensus on whether the presence of intent is mandatory for the onset of responsibility. If so, what should this intent be? After all, it can be direct – “malicious” or indirect.

We need to talk about it

Evgenia also talks about the low level of awareness of representatives of law enforcement agencies and the judiciary about HIV transmission and treatment. She is convinced that to a greater extent this is what influences the sentencing. In her opinion, the application of modern scientific evidence in criminal cases can limit unfair prosecutions and acts of justice.

“When making a diagnosis, doctors do not tell patients about the ‘N = N’ strategy, but take a receipt of criminal responsibility for infecting others with them. Also, activists have difficulty access to the accused, and most lawyers have a prejudiced attitude towards such clients,” the human rights activist adds …

According to the law of Uzbekistan “On the protection of the health of citizens”, the patient has the right not only to keep confidential information about the diagnosis, but also to choose the persons to whom information about the patient’s health can be transferred in the interests of the patient.

Natalia and HIV activists ask themselves: where did the law enforcement agencies get the information about her diagnosis and why did they come to work, inflicting severe moral and psychological damage on the woman? Thus exposing her to the risk of disclosing the diagnosis. At the request of the editorial office, this question was answered at the Republican AIDS Center. We publish the text in full.

The Republican Council for the Coordination of Citizens’ Self-Government, the Committee on Religious Affairs and the Youth Union of Uzbekistan, the Tashkent AIDS Center provided information to the Criminal Investigation Department of the Ministry of Internal Affairs on February 10, 2020 at the request of citizens who are diagnosed with HIV and who work in salons of personal services. At the same time, the center’s specialists ensure the confidentiality of information about people living with HIV and medical secrets in accordance with Article 45 of the Law “On the Protection of Citizens’ Health” dated August 29, 1996, “the letter says. It was not possible to drop the charges against Natalia. But she escaped real imprisonment and received a two-year suspended sentence.

“A large role in our case was played by the competence and interest in the details of the case, as well as in the topic of HIV and the ways of its transmission on the part of the judge and the prosecutor. But this is more a special case than a rule. The judge gave recommendations to lobby for a revision of the list of prohibited professions for HIV – positive, to exclude the position of a hairdresser from it, “says Evgenia Korotkova.

The media should also participate in the formation of a competent public opinion about HIV, but today this topic is almost never raised in the press, and specialised structures do not interact well with journalists. 

Now Natalia has no official job. Several times the makhalla provided her with material assistance, both in connection with the pandemic and with her current situation. But there is no regular, even minimal, earnings.

On October 15, 2020, Uzbekistan adopted a law “On the Rights of Persons with Disabilities.” It lists the basic principles that ensure their rights and protection against discrimination on health grounds. People living with HIV should have similar guarantees. Uzbekistan recently joined the UN Human Rights Council. Perhaps this status will speed up the revision of Article 113 of the Criminal Code. Lawyers are convinced that the punishment should follow exclusively for willful malicious infection or its attempt. Reforms in this area will significantly strengthen the position of the republic in the field of human rights protection.

Jordan: Health professionals mandated to report individual’s HIV status to the government

Foreigners Living with HIV in Jordan Face an Impossible Choice

Government Mandates Reporting HIV Status, Deports People Living with HIV

In Jordan, medical professionals and health facilities are mandated to report an individual’s HIV status to the government. Foreign nationals found to be HIV-positive are summarily deported regardless of the consequences to their health and safety and banned for life from returning.

Earlier this year, an Iraqi gay man living with HIV fled to Jordan to escape persecution he faced at home for being gay, yet he could not access HIV treatment without being immediately deported. When his health rapidly deteriorated, he could not seek medical attention for fear of being deported. Whatever decision he made would threaten his life. 

Jordan also obliges nationals to undergo HIV testing when seeking employment in the public sector and for non-nationals obtaining work permits, and denies them jobs if they are HIV-positive. It also requires testing for non-nationals renewing residency permits. For LGBT people living with HIV, the stigma and discrimination by medical professionals and employers often bars them from accessing basic rights, without any legal recourse.

Abdallah Hanatleh, executive director of “Sawaed,” an Amman-based organization that facilitates access to HIV treatment, told Human Rights Watch that his organization documents dozens of deportations based on HIV status annually.

Jordan is not alone in this abusive practice. Gulf states including Saudi Arabia and the United Arab Emirates also deport people found to be HIV-positive without any provision for continuity of care. Worse yet, in Jordan, as in Saudi Arabia and the UAE, HIV-positive foreign nationals in the criminal justice system are denied adequate access to treatment in prison. “They are placed in solitary confinement, further isolating and stigmatizing them,” Hanatleh said.

International law prohibits deportations based solely on HIV status. Jordan should explicitly ban discrimination based on HIV status and stop deporting HIV-positive individuals under the principle of non-refoulement. This principle applies to asylum seekers and refugees, and for people with HIV, it means that governments are prohibited from returning them — depending on how advanced the disease — to places where they do not have adequate access to medical care and social support, or where they risk being subjected to persecution or degrading treatment on account of their HIV status.

Jordan should not mandate reporting of HIV status and employers should not be requiring HIV testing in the first place. People living with HIV should never be forced to forego lifesaving treatment in order to avoid deportation to danger.

 

Uruguay: Feminist organisation opposes amendment to penal code that would imprison citizens who do not comply with health measures

MYSU (Women and Health in Uruguay) opposes a project that raises imprisonment for those who violate health provisions in the face of the coronavirus

Google translation, for original article in Spanish please scroll down. 

MYSU (Women and Health in Uruguay) opposes a project that raises imprisonment for those who violate health provisions in the face of the coronavirus

A delegation of Women and Health in Uruguay (MYSU) participated in the Senate Constitution and Legislation Commission to express their opposition to the bill that penalizes those who violate health provisions in the face of the coronavirus, presented in March by two deputies of the National Party . The feminist organization, whose mission is the promotion and defense of sexual and reproductive rights, has a field of practice specifically associated with identifying advances, obstacles and gaps in laws and public policies.

The delegation that appeared in Parliament was made up of Lilián Abracinskas, director of MYSU, Santiago Puyol, head of the Organization’s Sexual and Reproductive Health Policy Observatory, and Bárbara Strauss, head of communication, who presented their position against the amendment of article 224 of the Penal Code. The new wording proposes that “whoever, through violation of sanitary provisions issued and published by the competent authority in order to avoid the introduction into the country or the spread of an epidemic or contagious disease of any nature, puts human or animal health in actual danger, will be punished with three to twenty-four months in prison.The application of the maximum of the aforementioned penalty will be especially justified when the fact is a health emergency declared by the competent authorities ”.

Abracinskas said that although this project has the approval of the Chamber of Deputies, the proposal “did not have a treatment in which organized citizenship could be issued.”

Part of her argumentation was based on the Universal Declaration of Bioethics and Human Rights (UNESCO 2005), which provides a universal framework of principles and procedures that serve as a guide for states in the formulation of legislation, policies and other instruments in the field of bioethics. She particularly pointed out Article 27, which warns that “if limitations must be imposed with laws relating to public security and the rights and freedoms of others must be safeguarded, said law must be compatible with international human rights law.” She added that Uruguayan legislation includes these principles in Law 18,335 on the rights and obligations of patients and users.

For Abracinskas, the current wording of article 224 is already a regulatory framework that allows health authorities to act in the face of the pandemic. “The proposal to modify article 224, which aims to prevent the violation of sanitary provisions in order to prevent the introduction or spread in the country of epidemic or contagious diseases, in its modification of 2001 stipulates the crime of harm, in order to make it applicable. Insisting on modifying the crime of harm, again, for that of danger, generates uncertainties and a feeling of vulnerability, ”he said.

“What would be the legal asset that seeks to protect itself with this modification proposal?” She asked. And she added: “It would not seem to be the health of the person or the guarantees of their rights the center of concern, since people could be accused of committing a crime in the face of sanitary provisions that could become arbitrary or based on other interests that are not there to preserve the health of the population. Or, even from good intentions, to charge crimes without knowing exactly what the affected legal interest is ”.

For MYSU, the situation of the pandemic “has plunged us into profound perplexity”, but “our country is going through the situation without having the adverse impacts of neighbouring countries or other regions.” Although they welcomed the treatment of the pandemic by the authorities, they explained that they appeared before the Commission to “draw attention” since, “in the face of a temporary situation, modifying the Penal Code to apply a prison sentence for non-compliance with measures related to health care exceeds the context and exposes us to a multiplicity of situations that can violate human rights ”.

According to Puyol, “Uruguay has undergone a transition in recent decades towards a health model focused on promotion and prevention, with people as the focus.” For this reason, they consider “contradictory to run the axis of people’s health to pass to a sentence in case of not obeying health decrees”. “The State must guarantee the conditions for the prevention of contagions instead of criminalizing its citizens if they do not comply with the measures,” he said.

For Puyol, this measure could have an impact on different areas of public health. He gave as an example the treatment of gender violence. “What consequences would the implementation of this reformed article have in the face of the declaration of national emergency for gender-based violence that was carried out in December of last year? Has it been considered how this modification would be articulated with the non-compliance with the precautionary measures that protect the victims?

He also questioned the scope of this measure on other issues, such as sexually transmitted infections: “What happens in situations that happen in privacy, such as refusing to use preventive methods, which can generate sexually transmitted infections, including HIV ? Will people be penalized for not using a barrier method to prevent the transmission of a virus that is a global pandemic?

According to data from the observatory that Puyol directs, 33% of men (one in three) are willing not to use a condom in a sexual relationship with someone who does not want to use it. However, 63% never had an HIV test. “What would be done in these cases?” He asked.

The other example he gave was associated with the prevention of dengue: “Will people who have containers with stagnant water in their houses go to jail?”

He also pointed out that the government contradicts itself, since the explanation given by Luis Lacalle Pou, President of the Republic, for not declaring the mandatory quarantine in the face of the pandemic was “not to force what is not going to be fulfilled” and “not to become a Police state ”. “We are struck by the fact that, given the orientation of government policy, in whose measures none makes reference to criminal sanction, the Legislature and its own political force go in the opposite direction,” he explained.

For Strauss, “Uruguay has been an example for the countries of the region both in the way in which the spread of the virus has been contained and in its approach, based on what President Lacalle Pou has called” responsible freedom.

He pointed out that “the model that seems to demonstrate its efficiency and effectiveness has been able to combine respect for individual freedoms with care measures that made it possible to control the circulation of the virus and reduce the impacts of the pandemic.” He stressed that, “as an Argentine resident in Uruguay,” the neighboring country looks closely at the steps followed on this side of the river.

“The reason why legislators who make up the government coalition decide to opt for the modification of the Penal Code with a punitive approach is not understood then. The Executive Power has promoted, in public interviews given to international media, an approach that prioritizes freedom and appeals to citizen responsibility. Decisions that go in the opposite direction to this bill and, particularly, the grounds contained in its explanatory memorandum ”, he expressed.

In this sense, “and without ignoring the legitimacy and autonomy of the Legislative Power in its initiatives,” he said that “it is striking that the same coalition emits contradictory messages.” “We are concerned as an organization that this generates confusion among citizens and undesirable collateral effects,” he added.

He expressed concern that “the amendment of the Penal Code is used, imprisoning those who do not comply with the measures due to the health emergency” and also that “the arguments are not supported by scientific evidence.” “This has been the pillar of the government’s action based on the recommendations of the Honorary Scientific Committee, which has intervened to ensure the prevention of the circulation of the virus,” he said.

For the closing, Abracinskas returned to take the floor and resumed her concern about “these contradictory positions.”

She also emphasized “two substantive issues.” On the one hand, she stressed that modifying the Penal Code is “a long-term solution to a circumstantial problem by definition. “This type of legislative changes with lasting effect cannot be subject to the contingencies of a health emergency with particular characteristics,” she explained.

On the other hand, she questioned: “If it is not guaranteed that the population has sufficient and quality information to comply with the measures imposed on it for the prevention of any epidemic or any health emergency, how will it be ensured that the rights of the citizens are not violated by these decisions? How to ensure that different authorities can issue relevant sanitary measures? Will broad impact dissemination campaigns be carried out to ensure that the measures to be complied with are effectively known? Will this punitive amendment be widely publicized if approved? Who would make it public?

According to the director of MYSU, “it is necessary that the institutions of the State, both the Executive Power and the Parliament, issue clear signals and messages to the population, based on arguments and evidence that reassure and provide security.” She said that, “otherwise, it is fertile ground for worrying reactions to emerge.” In this sense, “we must avoid the proliferation of conspiracy theories and the circulation of false news that, taking advantage of the general confusion, achieve a destabilization of our democratic society.”

She conveyed the concern of the organization she represents, since they verified “the presence in the region of groups that support this type of theories and communicational forms that contribute to the general confusion”. “Given the risk that this presupposes, it is necessary to have clear minds, security in decision-makers, confidence in the measures, personal freedom and the promotion of an awareness of collective well-being. We do not need confusion, irrationality, perplexity or fear, but guaranteeing messages and joining efforts to reassure the population and allow the critical capacity to identify differences ”, he expressed.

That no final sanction be given

MYSU does not have an alternative text to contribute to the change to Article 224. Their suggestion is that the Senate not give it the final sanction it needs to be law. “What we recommend is that, in the event of an exacerbation of the pandemic, a permanent link be maintained with the Executive to provide the regulations that can be resolved by other means, other than the modification of the Penal Code.” For the organization, actions that “give security to the entire population, promoting awareness and not incarceration” should be promoted.


MYSU se opone al proyecto que plantea encarcelamiento para quienes violen las disposiciones sanitarias ante el coronavirus

Una delegación de Mujer y Salud en Uruguay (MYSU) participó en la Comisión de Constitución y Legislación del Senado para manifestar su oposición al proyecto de ley que penaliza a quienes violen las disposiciones sanitarias ante el coronavirus, presentado en marzo por dos diputados del Partido Nacional. La organización feminista, cuya misión es la promoción y defensa de los derechos sexuales y reproductivos, tiene un campo de práctica asociado específicamente a identificar avances, obstáculos y vacíos en leyes y políticas públicas.

La delegación que compareció en el Parlamento estuvo integrada por Lilián Abracinskas, directora de MYSU, Santiago Puyol, responsable del Observatorio de Políticas en Salud Sexual y Reproductiva de la organización, y Bárbara Strauss, responsable de comunicación, quienes expusieron su posicionamiento contrario a la modificación del artículo 224 del Código Penal. La nueva redacción propone que “el que mediante violación de disposiciones sanitarias dictadas y publicadas por la autoridad competente en aras de evitar la introducción al país o propagación de una enfermedad epidémica o contagiosa de cualquier naturaleza, pusiere en peligro efectivo la salud humana o animal, será castigado con tres a veinticuatro meses de prisión. La aplicación del máximo de la pena referida anteriormente estará especialmente justificada cuando el hecho se suscitare declarada una emergencia sanitaria por las autoridades competentes”.

Abracinskas manifestó que si bien este proyecto cuenta con la media sanción de la Cámara de Diputados, la propuesta “no tuvo un tratamiento en el que la ciudadanía organizada pudiese expedirse”.

Parte de su argumentación estuvo basada en la Declaración Universal de Bioética y Derechos Humanos (UNESCO 2005), que proporciona un marco universal de principios y procedimientos que sirven de guía a los estados en la formulación de legislaciones, políticas y otros instrumentos en el ámbito de la bioética. Señaló particularmente el artículo 27, que advierte que “si hay que imponer limitaciones con leyes relativas a la seguridad pública y salvaguardar los derechos y libertades de los demás, dicha ley deberá ser compatible con el derecho internacional relativo a los derechos humanos”. Agregó que la legislación uruguaya recoge estos principios en la Ley 18.335 sobre los derechos y obligaciones de pacientes y usuarios.

Para Abracinskas, la redacción actual del artículo 224 ya es un marco normativo que permite a las autoridades sanitarias actuar ante la pandemia. “La propuesta de modificar el artículo 224, que apunta a evitar que se violen disposiciones sanitarias con el fin de impedir la introducción o la propagación en el país de enfermedades epidémicas o contagiosas, en su modificación de 2001 estipula el delito de daño, para poder hacerlo aplicable. Insistir con modificar el delito de daño, nuevamente, por el de peligro, genera incertidumbres y sensación de desprotección”, señaló.

“¿Cuál sería el bien jurídico que busca protegerse con esta propuesta de modificación?”, se preguntó. Y agregó: “No parecería ser la salud de la persona ni las garantías de sus derechos el centro de la preocupación, dado que las personas podrían ser acusadas de cometer delito ante disposiciones sanitarias que podrían llegar a ser arbitrarias o basadas en otros intereses que no fuese preservar la salud de la población. O, aún desde buenas intenciones, imputar delitos sin saber exactamente cuál es el bien jurídico afectado”.

Para MYSU, la situación de la pandemia “nos ha sumido en una profunda perplejidad”, pero “nuestro país transita por la situación sin tener los impactos adversos de países vecinos o de otras regiones”. Si bien saludaron el tratamiento de la pandemia por parte de las autoridades, explicaron que comparecían ante la Comisión para “llamar la atención” ya que, “frente a una situación coyuntural, modificar el Código Penal para aplicar pena de cárcel ante el incumplimiento de medidas sanitarias excede el contexto y nos expone a multiplicidad de situaciones que pueden vulnerar los derechos humanos”.

Según Puyol, “Uruguay ha atravesado en las últimas décadas una transición hacia un modelo de salud centrado en la promoción y prevención, con las personas como foco”. Por esto consideran “contradictorio correr el eje de la salud de las personas para pasar a una condena en caso de no obedecer decretos sanitarios”. “El Estado debe garantizar las condiciones para la prevención de los contagios en lugar de criminalizar a su ciudadanía si no cumple con las medidas”, expresó.

Para Puyol esta medida podría tener impacto en distintos ámbitos de la salud de la ciudadanía. Puso como ejemplo el tratamiento de la violencia de género. “¿Qué consecuencias tendría la implementación de este artículo reformado frente a la declaración de emergencia nacional por violencia basada en género que se realizó en diciembre del año pasado? ¿Se ha considerado cómo se articularía esta modificación con el no cumplimento de las medidas cautelares que protegen a las víctimas?”.

También cuestionó el alcance de esta medida en otras cuestiones, como las infecciones de transmisión sexual: “¿Qué pasa frente a situaciones que suceden en la intimidad, como negarse a utilizar métodos preventivos, lo que puede generar infecciones de transmisión sexual, incluyendo el VIH? ¿Se penalizará a las personas por no usar un método de barrera para evitar la transmisión de un virus que es pandemia mundial?”.

Según los datos del observatorio que Puyol dirige, 33% de varones (uno de cada tres) está dispuesto a no utilizar el preservativo en una relación sexual con alguien que no quiere usarlo. Sin embargo, 63% nunca se realizó el test de VIH. “¿Qué se haría en estos casos?”, preguntó.

El otro ejemplo que puso estuvo asociado a la prevención del dengue: “¿Irán presas personas que tengan recipientes con agua estancada en sus casas?”.

Señaló también que el gobierno se contradice, ya que la explicación que dio Luis Lacalle Pou, presidente de la República, para no declarar la cuarentena obligatoria ante la pandemia fue “no obligar aquello que no se va a cumplir” y “no convertirse en un Estado policial”. “Nos llama la atención que frente a la orientación de la política de gobierno, en cuyas medidas ninguna hace referencia a la sanción penal, el Legislativo y su propia fuerza política vayan en sentido contrario”, explicó.

Para Strauss, “Uruguay ha resultado ejemplo para los países de la región tanto por la forma en que se ha logrado contener el avance del virus como por su enfoque, basado en lo que el presidente Lacalle Pou ha denominado la “libertad responsable”.

Señaló que “el modelo que parece demostrar su eficiencia y eficacia ha podido conjugar el respeto a las libertades individuales con medidas de cuidado que permitieron controlar la circulación del virus y reducir los impactos de la pandemia”. Resaltó que, “como argentina residente en Uruguay”, el vecino país mira con atención los pasos seguidos de este lado del río.

“No se entiende entonces la razón por la cual legisladores que integran la coalición de gobierno deciden optar por la modificación del Código Penal con un enfoque punitivista. El Poder Ejecutivo ha promovido, en entrevistas públicas brindadas a medios internacionales, un abordaje que prioriza la libertad y apela a la responsabilidad ciudadana. Decisiones que van en sentido opuesto a este proyecto de ley y, particularmente, los fundamentos que contiene su exposición de motivos”, expresó.

En este sentido, “y sin desconocer la legitimidad y autonomía del Poder Legislativo en sus iniciativas”, dijo que “resulta llamativo que la misma coalición emita mensajes contradictorios”. “Nos preocupa como organización que esto genere confusión en la ciudadanía y efectos colaterales indeseables”, agregó.

Manifestó preocupación por que “se recurra a la modificación del Código Penal encarcelando a quien no cumpla con las medidas por la emergencia sanitaria” y también por que “los argumentos no se sostengan en evidencia científica”. “Este ha sido el pilar de la actuación del gobierno en base a las recomendaciones del Comité Científico Honorario, que ha intervenido para asegurar la prevención de la circulación del virus”, señaló.

Para el cierre, Abracinskas volvió a tomar la palabra y retomó la inquietud sobre “estas posturas contradictorias”.

Hizo énfasis además en “dos cuestiones sustantivas”. Por un lado, destacó que modificar el Código Penal supone “una solución de largo plazo para un problema circunstancial por definición”. “Este tipo de cambios legislativos con efecto duradero no pueden estar sujetos a las contingencias de una emergencia sanitaria con características particulares”, explicó.

Por otro lado, cuestionó: “Si no se garantiza que la población cuente con información suficiente y de calidad para cumplir con las medidas que se le imponen para la prevención de cualquier epidemia o cualquier emergencia sanitaria, ¿cómo se asegurará que los derechos de la ciudadanía no sean violentados por estas decisiones? ¿Cómo asegurar que distintas autoridades puedan emitir medidas sanitarias pertinentes? ¿Se realizarán campañas de difusión de amplio impacto para asegurar que se conozcan efectivamente las medidas que se deben cumplir? ¿Se difundirá ampliamente esta modificación punitiva en caso de ser aprobada? ¿Quién lo haría público?”.

Según señaló la directora de MYSU, “es necesario que las instituciones del Estado, tanto del Poder Ejecutivo como del Parlamento, emitan señales y mensajes claros a la población, basados en argumentos y evidencias que tranquilicen y den seguridad”. Dijo que, “de lo contrario, es tierra fértil para que surjan reacciones preocupantes”. En este sentido, “debemos evitar la proliferación de teorías conspirativas y la circulación de noticias falsas que, aprovechando la confusión general, logren una desestabilización de nuestra sociedad democrática”.

Transmitió la preocupación de la organización a la que representa, ya que constataron “la presencia en la región de grupos que sustentan este tipo de teorías y formas comunicacionales que aportan a la confusión general”. “Ante el riesgo que esto presupone, se necesita tener mentes claras, seguridad en los decisores, confianza en las medidas, libertad personal y promoción de una conciencia de bienestar colectivo. No necesitamos confusión, irracionalidad, perplejidades ni miedos, sino mensajes garantizadores y aunar los esfuerzos para tranquilizar a la población y permitir la capacidad crítica para identificar las diferencias”, expresó.

Que no se dé sanción final

MYSU no tiene un texto alternativo para aportar al cambio del artículo 224. Su sugerencia es que el Senado no le dé la sanción final que necesita para ser ley. “Lo que recomendamos es que, en caso de agudización de la pandemia, se mantenga un vínculo permanente con el Ejecutivo para aportar la normativa que pueda resolver por otras vías, que no sea la modificación del Código Penal”. Para la organización, se deben promover acciones que “den seguridad a toda la población, promoviendo conciencia y no encarcelamientos”.