Spain

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Spain: Supreme Court upholds nine year sentence for ‘reckless’ HIV transmission; BBC Mundo publishes analysis

03 Feb 2015
Spain’s Supreme Court last week upheld a nine-year prison sentence for a man, known as ‘ABM’, who did not disclose his HIV-positive status to his former partner, who is now also living with HIV.  Although the reports do not state under … More

EATG seeks to ensure that Europe-wide standards of up-to-date scientific evidence limit overly broad HIV criminalisation

28 Oct 2013
EATG’s new position paper on prosecutions for HIV non-disclosure, exposure and/or transmission published last week recommends that the criminal law should only be used in extremely rare and unusual cases where HIV is maliciously and intentionally transmitted and that Europe-wide … More

Spain: Ministry of Health plans national database of HIV-positive people

09 Oct 2008
Update: 9th October 2008. The Constitutional Court has rejected an appeal by several Spanish HIV organisations against the Ministry of Health, which will go ahead with establishing a national HIV database. Spain to establish a HIV registerOct 9, 2008typicallyspanish.com Spain … More

Last reviewed 01 June 2017

Specific laws

Specific law enacted No

Specific law criminalising HIV non disclosure, exposure, or transmission: No

Prosecuted using non-HIV specific laws: Yes

Prosecuted using both specific and non specific laws: No

Is non-disclosure actionable: No

Is exposure actionable: No

Is transmission actionable: No

Prosecutions

Number of prosecutions 12

Estimated

Convictions

Number of convictions 12

Estimated

Laws

Applicable laws

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

Applicable key wording

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. "

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.

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.

Latest cases and news can be found at: http://www.hivjustice.net/country/es/

Cases

Overview

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.

Last reviewed 01 June 2017

Last reviewed 01 June 2017

Last reviewed 01 June 2017