4 Results

4.1 Overview

Respondents from 41 out of 45 countries provided information for the study. Of the respondents from the 41 countries that were able to provide information, it was reported that in at least 36 countries the actual or potential transmission of HIV can constitute a criminal offence. This supported anecdotal evidence that increasingly the law is seen as a tool for regulating conduct that can lead to HIV transmission. (See Table I). In 21 of these countries, it was reported that at least one person has been prosecuted.

TABLE I: Prosecution Table

Respondents from the 36 countries reported that 14 countries had legislation enacted or amended to deal specifically with transmission of HIV and/or other sexually transmitted infections [8]. (See Table II) Amongst these, only the respondent in Georgia cited the UNAIDS paper, Criminal Law, Public Health and HIV Transmission: A Policy Options Paper, as the impetus behind the creation of a new piece of legislation designed to address the issue.

Of the countries using existing legislation, it appeared that the United Kingdom had the oldest piece of legislation (1861). The age of this legislation suggested that it might not be suitable for application to the highly complex issues relating to an epidemic that is little more than 20 years old. In Cyprus, the respondent was able to report little about the 1957 law that was used to secure a conviction, apart from that it was enacted to deal specifically with the prevention of typhoid, cholera and venereal diseases.

There appeared to be no correlation between the number of people prosecuted/convicted in those countries in which prosecutions have occurred and the total number of people living with HIV and AIDS in each of those countries . The respondents in Russia, which had the highest number of people living with HIV in the study group, did not provide statistical information of the numbers prosecuted. However, a sample of the countries showed that respondents reported the following: Austria, 1 prosecution for every 3500 people reported to be living with HIV/AIDS; Azerbaijan, 1 for every 467; Czech Republic, 1 for every 1125; Estonia, 1 for every 3900; Finland, 1 for every 150; France, 1 for every 30, 000; Georgia, 1 for every 3000; the Netherlands, 1 for every 1730; Portugal, 1 for every 11,000; Romania, 1 for every 1300; Slovakia, 1 for every 100, and Sweden 1 for every 120.

Specific data concerning the number of prosecutions and convictions, as well as the gender/mode of transmission, were the data least readily available. From the respondents in the 41 countries that provided information, the most precise data concerned countries that had recently had their first conviction or those who had not prosecuted anyone: Armenia (0), Belgium (0), Bulgaria (0) Croatia (0), Cyprus(1), Georgia(2004), Iceland(0), Ireland(0), Latvia(0, Malta(0), the Netherlands (1989 but 9 cases since 2001), Slovakia(1999), Turkey(0), and the United Kingdom (2001).

On the other hand, the least precise date emanated from countries that had been prosecuting people for HIV transmission for more than 10 years: Austria (14 years), Finland (15 years), France, Italy, Romania (10 years), Sweden (12 years) and Switzerland (16 years.) Respondents from these countries could not provide exact figures of the numbers of people convicted. Of these, it appeared that Austria, Finland, Sweden and Switzerland had, between them, convicted more than 60 per cent of the total number of people convicted for transmitting HIV in Europe. In the case of Switzerland there appeared to be no centralised system of data collection for prosecutions and convictions, with each Canton maintaining its own data base. Therefore, those trying to collect data nationally were faced with collecting data from 26 Cantons.

Centralisation of the statistical data did not always result in that data being readily available. In Portugal, because criminalisation of HIV transmission was effected under existing assault laws, all were reported as ‘Common Danger Crimes’ making it impossible to separate HIV transmission-related convictions. This was also the case in Finland, Sweden and the United Kingdom. In terms of finding cases, those in the United Kingdom were at somewhat of an advantage as prosecutions for HIV transmission were a relatively new event.

No pattern emerged to indicate which organisations or authorities would have the best access to the required information. Small NGOs were just as likely not to have access to the required data as official sources such as the Ministry of Justices or its equivalent, or Public Health or Prosecution Services.

Continue : 4.2 Transmission of HIV: Criminal or Not Criminal > > >

FOOTNOTES: Click the corresponding number to return to your place in the text

3. Shows that the number refers to the number of convictions, at least those known to the respondent.
4. Exact information not available, however it was reported that 11 people have been convicted and it was suggested that most prosecutions led to convictions. It is estimated that 13 prosecutions have occurred in the past.
5. Three cases known to the Hungarian Civil Liberties Union.
6. Information not available, however two cases known to Positivo - the responding organisation.
7. Exact information not available but respondents indicated that there have been less than five.
8. Any country with a specific mention of HIV in the wording of the law.

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