Liability

To ensure enforcement of the Federal Law “On the Prevention of the Spread in the Russian Federation of Diseases Caused by the Human Immunodeficiency Virus (HIV-Infection)” of March 30, 1995 the Procedure was established on informing a person diagnosed with HIV. The Procedure says that a doctor provides a diagnosed person with a duly executed medical report on HIV infection detected. The report shall be handed over to the patient who signs off in outpatient medical card and case history. The doctor provides counseling to a patient, explains in details necessary precautions and measures for prevention of HIV transmission. A patient signs that he/she was informed about criminal liability for deliberate exposure of other people to HIV infection.

Abstract from the Criminal Code of the Russian Federation (hereinafter CC):

“Article 122. Infection with Human Immuno-deficiency Virus (HIV)

1. An obvious threat to infect a person with HIV shall be punishable by a restraint of liberty for a term of up to three years, or by compulsory labor for a term of up to one year, or by arrest for a term of three to six months, or by deprivation of liberty for a term of up to one year.

2. Infection of another person with HIV by a person who knew that he had such disease, shall be punishable by deprivation of liberty for a term of up to five years.

3. The act against envisaged by the second part of this Article, committed against two or more persons, or against an obvious juvenile, shall be punishable by deprivation of liberty for a term of up to eight years with the deprivation of the right to hold specified offices or to engage in specified activities for a term of up to ten years.

4. Infection of another person with HIV through of the improper discharge by a person of his professional duties, shall be punishable by a compulsory labour for the term of five years with or without deprivation of the right to hold specified offices or to engage in specified activities for a term of up to three years, or by deprivation of liberty for a term of up to five years with or without deprivation of the right to hold specified offices or to engage in specified activities for a term of up to three years.

Note. A person who has committed the deeds provided for by Parts One and Two of this Article shall be released from criminal liability, if the other person subjected to the risk of being infected, or infected, with HIV was warned in due time that the former had such disease and agreed of his own free will to commit the actions posing the risk of infection” .

De facto, article 122 of CC envisages responsibility for two separate crimes. Item 1 of article 122 speaks about an exposure to an obvious threat of infection when item 2 speaks about direct infection of another person. These two crimes differ by their circumstances only – no circumstances (obvious threat of infection) and due circumstances (infection of another person). Only a person aware of his/her infection shall be held liable under this article. A person of 16 years old and above shall be subject to criminal liability.

The threat of infection with HIV is observed when committed deeds created conditions for transmission of HIV infection to another person but infection did not happen by chance or as a result of a series of measures undertaken by an affected person. There are multiple ways of exposure to an obvious threat of infection. The virus may be transmitted through blood and injured mucosal tunics. The most common threat to infect a person with HIV is a sexual intercourse in both homosexual and heterosexual encounter. During unprotected sexual intercourse (vaginal, oral and anal), through blood, seminal fluid or vaginal secretion HIV infection penetrates a mucosal tunic with further transmission to a partner’s blood. Any sexual intercourse with HIV+ person exposes a partner to an obvious threat of infection even if the sex was protected. This is the recommendation used by the Russian courts. Another way of exposure to an obvious threat of infection is transmission from HIV+ mother to a child through breastfeeding.

An obvious threat to infect a person with HIV may be also the result of improper action of medical personnel while delivering public preventive measures (use of unsterile medical appliances, unavailability of disposable injectors and systems for surgical operations and hemotransfusion, disregard of sanitary-epidemiologic rules, etc). In this case, deeds will be subject to item 4 of article 122 of CC. Responsibility under this item applies to medical workers, blood banks staff, and pharmacist who, in this case, disregard their professional responsibilities which, in its turn, resulted in infection of a person with HIV. The above are pretty much all ways of exposure to an obvious threat of infection.

HIV is not transmitted through regular communication with infected person. The virus cannot be transmitted to a healthy person distantly or through everyday domestic intercourse. Therefore, HIV+ individuals shall not be subjected to criminal liability under item 1 of article 122 of CC if appropriate safety measures were ensures.

Sexual intercourse committed by a person aware of his/her disease is, per se, a complete crime outlined in item 1 of article 122 of CC. However, will the criminal liability take place or not depends on whether affected person was aware of a disease of his/her partner.

The note to article 122 of CC provides that a person committed a deed under item 1 of article 122 shall not be subjected to criminal liability if an affected person had been forewarned about existing disease and proceeded, nevertheless, with the deed on his/her own free will. Therefore, voluntary consent of an affected person to get engaged in sexual intercourse with HIV+ partner and latter’s forewarning about existing HIV infection are preconditions for discharge from criminal liability under items 1 and 2 of article 122.

Crimes under item 1 of article 122 of CC are under jurisdiction of Justice of the Peace institution.

Under certain conditions, HIV+ person may be subject to administrative liability. Article 6.1. of the Code Of Administrative Offences of the Russian Federation provides penalty — imposition of an administrative fine in the amount of five hundred to one thousand RUR — for non-disclosure by HIV+ person of the source of infection and his/her sexual contacts that entail the threat of infection.

This delinquency is committed through inactivity when a person fails to provide medical workers with sufficient information for epidemiological investigation. It should be kept in mind that HIV+ person often does not know exact time and source of infection. People exposed to the threat of infection through contacts with HIV+ individuals are mainly family members and sexual partners as well as co-users if an infected person is a user of injected drugs.

Only individuals of 16 years old and above who got aware of his/her HIV infection by the results of medical examination shall be subject to liability under this article.