Spain

Last updated on: 25 April 2012

Criminalisation of HIV transmission/exposure

Spain
Whether Specific law enacted: 
No
Number of people prosecuted: 
Est. 12
Number of people convicted: 
Est. 12
Applicable law: 

Title III Articles 147-156 on body injuries of the Criminal Law.

Key wording in the law: 

English Article 147.1 One who inflicts upon another bodily injury affecting his/her integrity, mental or physical health through any means or procedures, shall be sentenced to six to three years imprisonment, when the injury requires, besides an initial assistance, medical or surgical treatment to heal. Follow up will not be considered medical treatment. (All of Title III of the Criminal Law refers to injuries and could be applied to HIV transmission.)

Also noteworthy is Article 152 of the Penal Code, which regulates the penalties in cases in which the judge becomes aware that there has been less intent but recklessness.

"1. Serious negligence which will cause some of the injuries listed in the preceding articles shall be punished:

1 ) With the penalty of arrest of seven to twenty-four weekends in the case of lesions of the art. 147.1. (...)

3. When the injuries they be committed by professional negligence shall also impose the penalty of disqualification for the exercise of the profession, trade or office for a period of one to four years."

The penalty would be reduced according to Article 155 of the Penal Code as "the crimes of injury, whether valid consent has mediated, free, spontaneous and expressly given the offense, the penalty is less than one or two degrees. Not valid consent given by a minor or incompetent. "

Key Cases: 

An analysis of laws used and key cases (in Spanish only), provided to us by Joan Bertran de Bes, Observatorio de DDHH y VIH/sida - REDVIH, is attached below.

Discussion: 

Our 2012 informants, Joan Bertran de Bes, Observatorio de DDHH y VIH/sida - REDVIH and Professor Josefina Alventosa,  University of Valencia have detected 12 cases in Spain during last 15 years.

Professor Alventosa notes the following:

1. There are no specific laws in Spain that criminalise HIV transmission or exposure. Some researchers claim that Spanish law protects against discrimination, but in some cases some laws could be improved.

2. In those cases where HIV transmission has been a reason for conviction, the main facts considered were intent, non-disclosure and lack of prevention measures.

3. The courts have applied the same principles to the prosecution of Hepatitis C.

Advocacy

In 2010 REDVIH organised a meeting with 53 Spanish NGOs to reach a consensus on how to respond to HIV criminalisation. They all agreed that criminalisation had a negative impact on the HIV/AIDS response and violates human rights.  The consensus statement is attached below.

Survey respondents/Organisations working on HIV and the Law: 

Survey respondents

2012: Joan Bertran de Bes, Observatorio de DDHH y VIH/sida - REDVIH and Professor Josefina Alventosa, University of Valencia.

2008: Ministerio de Sanidad y Consumo, Madrid, Spain

Organizations working on HIV and the Law

Observatorio de DDHH y VIH/sida - REDVIH

Further reading: 

Luis Fernando Barrios Flores' 2008 book, 'HIV / AIDS and Law, The legal framework: rights of patients and responsibilities of health care' also discusses key cases related to HIV exposure and transmission prosecutions up to 2007. 

Chapter 2.5, 'The crime of willful injury or reckless transmission' (in Spanish only) is attached.

Other laws and policies with an impact on responses to HIV

Laws and regulations relating to entry, stay or residence in the country: 

There are no legal restrictions affecting entry or stay of people living with HIV/AIDS in Spain. People suspected to be affected by an infectious disease may be obliged to undergo medical examination within the first three months after arrival (free of charge).

For updated information, please go to: www.hivrestrictions.org

Laws relating to same sex, sexual relations: 

Male to Male relationships: Legal

Punishments for male to male relationships:  No law

Female to Female Relationships: Legal

Age of consent:  Equal for heterosexuals and homosexuals

Marriage and Substitutes for Marriage: Recognized on national level

For updated information, please go to: http://ilga.org