What punishment does the law provide for HIV infection under Art. 122 of the Criminal Code of the Russian Federation and what should the victim do?

ST 122 of the Criminal Code of the Russian Federation.

1. Knowingly putting another person at risk of contracting HIV infection is punishable by restriction of freedom for a term of up to three years, or forced labor for a term of up to one year, or arrest for a term of up to six months, or imprisonment for a term of up to one year.

2. Infecting another person with HIV infection by a person who knew that he had this disease is punishable by imprisonment for a term of up to five years.

3. The act provided for in the second part of this article, committed in relation to two or more persons or in relation to a minor, is punishable by imprisonment for a term of up to eight years, with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to ten years.

4. Infecting another person with HIV infection as a result of improper performance by a person of his professional duties - is punishable by forced labor for a term of up to five years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it, or by imprisonment for a term of up to five years. with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years.

Note : A person who has committed the acts provided for in parts one or two of this article is exempt from criminal liability if another person, placed at risk of infection or infected with HIV infection, was promptly warned about the presence of this disease in the first and voluntarily agreed to commit actions that created danger of infection.

Legally important introduction

In the minds of most people, the acronyms “HIV” and “AIDS” are usually synonymous – but this is not the case. There is a fundamental difference between them:

• AIDS is acquired immunodeficiency syndrome, a condition in which a person completely or partially loses immunity.
• HIV is the virus that usually causes AIDS.

HIV itself is not a disease : a person can be its carrier without even knowing it. Moreover, this virus itself does not kill humans. However, when HIV infection develops in the body, the immune system is suppressed - and then any other disease becomes fatal.

According to statistics, if HIV infection has reached the AIDS stage, the remaining life of the patient is about 9 months. With timely treatment, an HIV-infected person can live for decades, but this requires specific and expensive therapy (HAART).

Precisely due to the fact that HIV infection is a chronic and still completely incurable disease, legislation provides for liability for those who deliberately expose other people to even the risk of infection. If, as a result of the actions of the perpetrator, the virus was transmitted and the disease began to develop, the severity of the punishment increases. Finally, if several people are infected, or a minor is infected, the liability becomes as severe as possible.

In other words: medicine does not classify the presence of HIV as a disease, this follows from the meaning of the Universal Declaration of the Rights of Patients with AIDS, as well as Federal Law of March 30, 1995 N 38-FZ, but the presence of the virus puts a person in a state dangerous to life and health , so as does not exclude severe and fatal outcomes.

Existing problems

Unfortunately, in practice it is very difficult to prove the elements of the crime and bring the infected person to justice. Indeed, in most cases, many people who are HIV-infected do not know about their diagnosis and find out about it during a random examination. In addition, people who are promiscuous and use drugs never ask themselves which of their partners and acquaintances could have infected them with this disease. Thus, infection of healthy people continues with impunity.

What does the legislation say?

In fact Art. 122 includes several similar compounds:

• Part 1 – Actions expressing that the perpetrator deliberately exposes another person to the threat of infection.
• Part 2 – Actual infection, if it was committed by a person who knew that he was sick.
• Part 3 – The same as in Part 2, but committed against either 2 or more people, or if the victim was a minor.
• Part 4 – Infection caused by the fact that the culprit performed his official duties in bad faith.
  The emphasis of this part is due to the fact that one of the routes of infection is transmission of HIV through blood, which can occur during medical or cosmetic procedures.

The statute of limitations in order to bring the perpetrator under Art. 122 of the Criminal Code of the Russian Federation will also vary depending on its part:

1. according to part 1 – 2 years;
2. according to h.h. 2 and 4 – 6 years;
3. according to part 3 – 10 years.

The statute of limitations for bringing the culprit to justice is counted according to the rules of Art. Art. 78 and 83 of the Criminal Code of the Russian Federation and begin to flow from the moment when the crime was committed (if we are talking about bringing to responsibility), or when the sentence was passed (if we mean the actual execution of the punishment).

Qualifying signs of a crime

Article 122 of the Criminal Code of the Russian Federation provides for two qualifications:

• crime against one person;
• act against a group of persons.

The severity of the crime committed is assessed based on the degree of harm caused to a person’s health: mild, moderate or severe. The strength of the punishment depends on the qualification of the degree of the act. If the injured party withdraws his or her application, a warning is given to the person who has contracted the venereal disease and the consideration of the case is terminated.

At what point is the crime considered over?

In order to hold the perpetrator accountable for contracting HIV, the act must end. Art. 122 suggests two points for this:

1. According to Part 1 – from the moment the danger of infection arose. In this case, any action that could result in the transmission of the virus to another person (blood transfusion, unprotected sex, sharing a syringe, tattoo needle, etc.) will be considered a danger. To qualify for this part, infection itself is not required - it is enough that the possibility of infection is real.
2. For other parts - from the moment the infection occurred.

Responsibility

Responsibility for these actions is provided for in Article 121 of the Criminal Code of Russia. Moreover, even if the accused has received consent for sexual intercourse , this is not a reason to exempt him from liability.

If a person has infected another person with any infection as a result of sexual intercourse, but this disease is not venereal (a venereal examination is carried out to clarify this), the act does not fall under Article 121.

Infection with a sexually transmitted infection is an attack on human health. This criminal act is spelled out in the Criminal Code of the Russian Federation and provides for the responsibility of the perpetrator.

Crimes and criminal liability under Art. 122 of the Criminal Code of the Russian Federation

Since this article of the Criminal Code of the Russian Federation actually includes three different elements, they must be considered separately. According to Part 1, the corpus delicti will look as follows:

• The object is health, and ultimately, human life (in the absence of specific therapy, HIV infection inevitably reaches the AIDS stage - and then any other infection kills the patient).
• The objective side is only actions. HIV is transmitted only in several ways (through blood, through sexual contact, from mother to child), it does not persist in the environment - and therefore it is impossible to infect a person through inaction. The actions themselves can be anything - it is only important that during their implementation there is a real possibility of infection.
• Subject is any person who is capable of putting another person at risk of infection. In this case, it is not required that the culprit himself be HIV-infected: liability is also possible for someone who himself is not a carrier of the virus. However, it is necessary that the guilty person is sane and has reached the age of 16 years.
• The subjective side is intent. It can be either direct (when the perpetrator wants transmission of infection to occur, but for reasons beyond his control, HIV infection does not occur), or indirect (when the perpetrator knows about the risk, but does nothing to avoid it).

Responsibility under Part 1 will be expressed in restriction of freedom for up to 3 years, forced labor for up to a year, or imprisonment for up to a year. The punishment in the form of arrest provided for by this part is not actually applied as of 2022 due to the absence of arrest houses in Russia.

In h.h. 2 and 3 of this article, the composition will be as follows:

• The object is human life and health. The difference will only be in the number of persons who suffered, or in their composition.
• The objective side is also expressed only in the form of actions.
• The subject is special. Only a person who is himself a carrier of the virus and who knows that he has this disease can be held accountable for these parts. If a person has not undergone a medical examination and does not know that he is infected, he cannot be recognized as a criminal under this article.
• The subjective side is only intent, both direct and indirect.

The responsibilities here will be:

1. According to Part 2 - only imprisonment for up to 5 years.
2. Under Part 3 – deprivation, but for up to 8 years, as well as a ban on holding certain positions or certain activities for up to 10 years. The latter punishment is additional and therefore may not be imposed.

Finally, the composition of Part 4 of this article includes the following:

• The object and the objective side are the same.
• The subject is also special. Only a person who is engaged in certain professional activities associated with a possible risk of transmission of infection (medical workers, employees of blood transfusion stations, etc.) can be held liable.
• The subjective side is negligence. It is expressed in the fact that the perpetrator was negligent in his duties.

For a person found guilty under Part 4, the Criminal Code provides for punishment in the form of:

• forced labor up to 5 years;
• imprisonment for up to 5 years.

As an additional measure, a ban on professional activity for up to 3 years can be used.

However, speaking about liability under Art. 122 of the Criminal Code of the Russian Federation, you must remember the note in it. It states that if a person who was at risk or was infected voluntarily agreed to take those actions that caused danger, then criminal liability does not arise. This rule does not apply only to parts 3 and 4 of this article: minors have no right to risk their health, and a specialist cannot expose other people to danger even with their consent.

What to do if an infection occurs?

Since at an early stage HIV infection occurs without symptoms, a person often finds out about the fact of infection too late. However, even in this case it is possible to bring the perpetrator to justice.

Where should I apply and what should I include in it?

First of all, you need to submit an application to law enforcement agencies . You can contact:

1. To the nearest police station.
2. To the prosecutor's office. In accordance with the Federal Law “On the Prosecutor's Office of the Russian Federation”, its employees are required to accept reports of facts of criminal activity, conduct checks and transfer materials to the authorities directly involved in the investigation.

The application must indicate the following:

• Destination. The document is submitted to the head of the police department or the city or district prosecutor. However, you can only indicate the name of the law enforcement agency.
• Applicant information. You will need your full name, residential address, contact information (phone numbers, email, etc.).
• Description of the circumstances under which the infection occurred.
• Known information about the suspect (if available).
• A list of evidence that confirms the fact of the crime. Although Art. 122 and refers to cases of public prosecution (that is, looking for evidence is the responsibility of the investigative authorities), however, this will speed up the verification and initiation of the case.

The application must be considered in the manner prescribed by the Code of Criminal Procedure of the Russian Federation, and an audit must be carried out on it. If the stated facts are confirmed, a criminal case will be initiated.

Legal settlement

If the facts are confirmed, we will be talking about compensation for damage that was caused by criminal actions. You can claim compensation in two ways:

1. By filing a civil claim within the framework of criminal proceedings (in accordance with Article 44 of the Code of Criminal Procedure of the Russian Federation). In this case, the claim is filed either directly to the court before the verdict is rendered, or through the prosecutor.
2. File a claim separately. In this case, compensation will be recovered according to the usual rules of civil procedure.

Jurisdiction will be determined according to the following rules:

• within the framework of criminal proceedings - by the court, which, according to the Code of Criminal Procedure of the Russian Federation, will consider the criminal case;
• within the framework of civil proceedings - according to the usual rules of the Code of Civil Procedure of the Russian Federation, that is, at the place of residence of the defendant.

In both cases, the state duty will not be paid, since we are talking about compensation for harm to health caused by the crime.

The statement of claim states:

• Name of the court to which the document is being filed.
• Last name, first name, patronymic, place of residence and contact information of the defendant.
• The same data regarding the plaintiff.
• The circumstances under which the harm was caused (for criminal proceedings - briefly).
• A reference to the court verdict and the facts established by it (if the claim is filed after the consideration of the criminal case has ended).
• Description of the harm caused by the crime. This may include the need for expenses for treatment and medical procedures, loss of earnings (if before infection the victim worked in an area where the work of HIV-infected people is prohibited and he had to quit for health reasons) and other expenses incurred in connection with the crime.
• Claims (in particular, the amount of compensation for damages).
• Signature of the plaintiff or his representative (if, for example, the victim of HIV infection is a minor).

What to use as evidence?

Since we are talking about compensation for harm caused by a crime, the main evidence is collected during criminal proceedings. However, in addition, the victim himself can collect evidence confirming his stated claims. Such evidence will include:

• Medical documentation confirming the fact of HIV infection.
• Testimony of witnesses who will confirm that the contamination arose due to the actions of the defendant.
• Testimony that will confirm that the perpetrator knew about his illness.
• Written and electronic documents (for example, correspondence with the tortfeasor).
• Audio and video recordings.
• Certificates, conclusions and other official documents issued by competent authorities.

In fact, anything that confirms the stated facts, is relevant to the case, and was obtained without violating the law can be used as evidence (Article 55 of the Code of Civil Procedure of the Russian Federation).

Important! If we are talking about compensation for harm caused by a crime, then the verdict that has entered into force frees the plaintiff from proving whether harm occurred and whether it was caused by the defendant (Part 4 of Article 61 of the Code of Civil Procedure of the Russian Federation).

Is it possible to claim compensation for damage and what will be the amount?

Art. 151 of the Civil Code of the Russian Federation guarantees the right of a citizen to be compensated for moral damage. This right also applies to cases where harm was caused by a crime.

Moral damage, according to paragraph 2 of the resolution of the Plenum of the Armed Forces of the Russian Federation No. 10 of 1994, refers to suffering, both physical and moral, suffered by the victim.

Recovery of moral damages in this case will be associated with two factors:

1. The very fact of infection, when the victim is forced to live under the constant threat of serious illness and death, is already enough to cause moral suffering. Therefore, most courts recognize the fact of moral damage.
2. However, the legislation does not contain rules for calculating the amount that should be recovered from the perpetrator. Here everything remains at the discretion of the plaintiff - and the court has the right to consider the amount disproportionate.

Objective and subjective signs

The object of the crime is the safety of the health and life of the individual. Subject is a person who suffers from such a disease and is aware of his disease.

The objective side of the crime is the fact of a person being infected with a disease . It is characterized by 3 main features:

• action or inaction of the subject;
• consequences of communication - fact of infection;
• cause-and-effect relationship between the act and the consequences.

From the subjective side, the corpus delicti lies in the patient’s awareness of the presence of a sexually transmitted infection before engaging in sexual intercourse or other means of contact with others (evidence that a person knew about his illness can be, for example, the accused going to the hospital with a corresponding problem) .

Otherwise, we can talk about unintentional infection : when the patient himself did not know about his disease.