Ukraine

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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

Ukraine: Revised HIV law may no longer mandate disclosure

11 Nov 2010
A new version of Ukraine’s HIV-specific law, adopted by the Ukrainian Parliament in its first hearing on 21 October, promises several positive changes, including removal of the statute mandating disclosure of known HIV-positive status prior to any activity that may … More

Last reviewed 01 June 2017

Country overview

Ukraine introduced HIV-specific laws in 1998 mandating disclosure of HIV-positive status prior to any activity that may risk infection. Newly diagnosed individuals must also undergo a period of mandatory hospitalisation during which it is expected that they will sign an undertaking to obey this law. The reckless or intentional “conscious exposing to danger of infection [HIV exposure], or infection [HIV transmission]” is subject to prosecution, with a maximum penalty of ten years’ imprisonment. 

There have been at least six prosecutions and four convictions under these laws. A civil society initiative highlighting the unreliability of scientific evidence for determining the source of a person’s HIV infection has recently deterred the State from initiating several more prosecutions.

Specific laws

Specific law enacted Yes

Specific law criminalising HIV non disclosure, exposure, or transmission: Yes

Prosecuted using non-HIV specific laws: No

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 6

Convictions

Number of convictions 4

Laws

Applicable laws

The law of Ukraine " About the prevention of disease AIDS and social protection of the population " from 1992, with changes brought in 1998, clause 14.

The Criminal code of Ukraine (clause 130).


Applicable key wording

Article 130. Infection with HIV or any other incurable contagious disease

1. Willful placing of a person in danger of being infected with HIV or any other incurable contagious disease dangerous to human life, -

shall be punishable 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.

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 circulator of this virus, -

shall be punishable by imprisonment for a term of two to five years.

3. Any such acts as provided for by paragraph 2 of this Article, if committed in respect of two or more persons or a minor, -

shall be punishable by imprisonment of three to eight years.

4. Willful infection of another person with HIV or any other incurable contagious disease dangerous to the person's life, -

shall be punishable by imprisonment for a term of five to ten years. 

CHAPTER 2: CONDITIONS AND ORDER OF MEDICAL SURVEY FOR THE PURPOSE OF HIV-INFECTION DETECTION, REGISTRATION OF HIV INFECTED / AIDS PATIENTS, GRANTING MEDICAL CARE AND MEDICAL SUPERVISION TO THEM.

Article 9 The person determined as HIV positive in accordance with the data of medical survey is notified about it by a health-care worker of health protection body, where the survey had been carried out, in view of the requirements of this Act about confidentiality of the specified information. Simultaneously HIV infected persons are notified on the necessity to adhere to preventive measures directed on the prevention of HIV-infection spreading, guarantees of observance of the rights and freedom of HIV-infected persons, and also about the criminal responsibility for the conscious exposing to danger of infection of other persons by HIV.

CHAPTER 3: CONSEQUENCES OF HIV INFECTION DETECTION AND HIV INFECTED PERSONS' DUTIES

Article 14 In case of reception from health authority the information about infection by HIV, the warning of necessity of observance of preventive measures for the purpose of the prevention of HIV-infection spreading and the criminal responsibility for conscious exposing to danger of infection or infection of other person (persons), HIV positive persons are obliged to fix in writing the fact of reception of the specified information and warning.

Article 15 HIV-infected persons and the AIDS-patients are obliged: To arrange for the prevention of HIV-infection spreading, offered by health authorities, the first part of Article 9 of this Act; To inform the persons who were in sexual contact with them before detection of the presence HIV-infection and the possibility of their infection, To refuse from donorship of blood, its components, other biological liquids, crates, bodies and fabrics for use in medical practice.

Article 16 HIV infected and living with AIDS foreigners, and also persons without citizenship, which do not carry out the offered by health protection bodies preventive measures, create by their behavior threat to health of other persons, and expelled from Ukraine, as established by the Act of Ukraine, "About the legal status of the foreigners", (3929-12) order. - HIV-infected bears the criminal responsibility for the deliberate decision in threat of transmission HIV and infection HIV of other persons. - Infection other 2 or more persons or a minor HIV or another incurable infectious disease, the person knowing, that it is the carrier of this virus which is punished by imprisonment from 3 up to 8 years. - Deliberate infection of other person of a HIV or infectious disease which is dangerous to human life which is punished by imprisonment from 5 up to 10 years.


Discussion

The Ukrainian legislation allows to sentence an HIV-positive person to three years in prison for "a conscious exposure of another person to the risk of HIV infection." Today, Ukraine is among the countries that apply a punitive policy towards people living with HIV that has a negative impact on access to testing, prevention and treatment.

Article 130 of the Criminal Code provides penalties for: i) a conscious exposure of another person in danger of contracting HIV; ii) infecting another person with HIV by a person who is aware that he is a carrier of the virus; iii) the same action with relation to two or more persons or a minor; iv) intentional HI transmission.

Further reading

Latest cases and news can be found at: http://www.hivjustice.net/site/cases/?casetype=-1&country=231&from-month=-1&from-year=-1&to-month=-1...


Cases

Overview

Latest cases on Ukraine can be found at HIV Justice Network /Ukraine

According to some of the published court sentences against HIV-positive people it does not matter whether the transmission occurred in consequence of the exposure or possible risk of transmission[1]. Thus, a person can be sentensed even if his reckless actions did not lead to HIV transmission to another person. However, it is worth noting that the jurisprudence indicates frequent cases of release from serving a sentence for HI exposure on probation or under amnesty in the past few years.

In March 2016, in open access was placed an acquittal of the court of appeal, the only  of this kind for today, in relation to HIV-positive woman who "put her partner in danger of HIV infection." The court acquitted the defendant because of the lack of evidence. Moreover, the court in its judgment indicated inability to bring her to justice, because no adverse effects on the action of the HIV-positive woman occur.

The opposing court decisions in similar cases occured earlier. Thus, in 2012 the court sentenced[2] an HIV-positive woman to two years of imprisonment for the fact that she exposed to the risk of HIV her roommate by entered into unprotected sex. At the hearing, she fully acknowledged her guilt and said that she did not dare to disclose her HIV status to her partner, because she was ashamed. At the same time, she said, she strongly advised her partner to use a male condom during the intimate contact, but her partner consistently refused. When the woman made a second abortion, the partner learned of her HIV-positive status, but did not believe it and insisted on the continuation of their relationship. However, a year later their relationship were still stopped by the initiative of the woman. The man, without being infected, insisted on the prosecution of his former parnter, because he believed that he suffered non-pecuniary damage as a result of her decision to expose him to HIV. Despite the fact that his HIV test was negative, the court issued a guilty verdict.

A similar sentence was imposed in June 2013 in relation to the defendant HIV-positive woman who was sentenced to a two-year imprisonment. A year later, the court released her from punishment according to the Law of Ukraine 'On amnesty in year 2014'. [3]

In June 2015, an HIV-positive man was convicted on three articles of the Criminal Code of Ukraine: for an intentional slight bodily harm, HIV exposure and for robbery. [4] After robbing a shop he was stopped by a passersby who tried to apprehend the robber till the police arrival. To break free and run away from the scene, the convicted bit for the passer's hand. As the convict knew he was HIV-positive, the court found him guilty of robbery, and not only, but also in HIV exposure. The court did not try to find out from specialists and experts, was a bite enough in this particular case to expose another person to a risk of HIV infection.

A few years earlier, in 2009, there was a similar sentense to a conviction of an HIV-positive man, trying to escape from police. Once committed the administrative offense the man was beaten by the police officers at the police department, he bit the two employees causing wounds on their hands when they tried to handcuff him. Immediately after the incident, the victims appealed to the central hospital, where they were given antiretroviral drugs in order to prevent infection. HIV tests taken later were negative. Despite this, the court sentenced the HIV-positive man to five years in prison for deliberate infection with HIV and violence against police officers. With this same sentence, he was released from serving the sentence on probation.

These rulings of courts suggest the lack the knowledge of prosecutors, lawyers and judges on how HIV is transmitted, on cases where the probability of infection is very small or zero. But the important thing is that, as can be seen from the text of judicial rulings, it is possible to talk about the failure of judges to understand the risks and to establish whether it is possible in principle, in each particular case to talk about the potential HIV exposure.

At the same time it is worth noting a positive trend of the exemption from punishment for the condemned for HIV exposure. This may indicate a certain willingness of the Ukrainian Law Enforcement System to reject criminal responsibility for this act.

[1] См. http://www.reyestr.court.gov.ua/Review/22243971

[2] http://www.reyestr.court.gov.ua/Review/28056435

[3] http://www.reyestr.court.gov.ua/Review/39448431

[4] http://www.reyestr.court.gov.ua/Review/49764820 

Source: Legal Analysis of HIV criminalization cases of Ukraine by the All-Ukrainian Network of PLHIV

Last reviewed 01 June 2017

Last reviewed 01 June 2017

Last reviewed 01 June 2017