In recent years, there has been substantial anecdotal evidence that prosecutions for HIV transmission have been on the increase across Europe - most noticeably in a series of cases in Finland, the Netherlands, Sweden, and the United Kingdom. During this same period, HIV incidence and prevalence has increased, particularly in the countries of Eastern Europe and the Western and Central Asian Republics. In light of this and high profile media coverage of HIV transmission cases, there is concern that States might increasingly choose to legislate the criminalisation of the transmission of HIV and prosecute people who transmit HIV, leading to the infringement of the human rights of people living with HIV or AIDS (PLWHA). Furthermore, such laws may be increasingly seen within the new legal framework of an enlarged European Union as a viable tool to curb conduct that carries the risk of HIV transmission, without other options being adequately considered.

In this context, the current study sought to identify, briefly describe, and analyse the law in relation to the criminalisation of HIV transmission in use at the time of the study (2004) by signatory States to the European Convention for the Protection of Human Rights (ECHR) and Fundamental Freedoms. This was done so as to (a) provide an analysis of current trends in the criminalisation of HIV transmission in Europe; (b) assist governments, non-governmental organisations and people living with HIV and AIDS in examining the compatibility and conformity of these laws with human rights principles and obligations; and (c) realise an informed and measured approach that is based on human rights and public health to the use of law for regulating conduct that may result in HIV transmission.