Criminal Code of the Russian Federation in the latest edition:
Article 122 of the Criminal Code of the Russian Federation. HIV infection
1. Knowingly putting another person at risk of contracting HIV infection -
shall be 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. Infection of another person with HIV infection by a person who knew about the presence of this disease -
is punishable by imprisonment for a term of up to five years.
3. The act provided for in part two of this article, committed in relation to two or more persons or in relation to a minor, -
shall be 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 -
shall be 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 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 term 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.
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Comments on Article 122 of the Criminal Code of the Russian Federation
HIV infection is defined as a chronic disease caused by the human immunodeficiency virus. It is a slowly progressive infectious disease that occurs as a result of infection with the human immunodeficiency virus, which attacks the immune system, resulting in the body becoming highly susceptible to opportunistic infections and tumors, which ultimately lead to the death of the patient.
Article 122 of the Criminal Code of the Russian Federation establishes liability for two independent elements of crime:
- putting you at risk of contracting HIV infection (Part 1);
- HIV infection (parts 2 - 4).
When there is a risk of contracting HIV infection, there is a danger of harm to relationships that ensure the safety of life or health; When HIV infection occurs, real harm is caused to these relationships.
The method of committing a crime can be different, for example, an HIV-infected person committing sexual intercourse with a healthy person, using the same syringe when injecting a sick and healthy person, in particular when injecting drugs, non-compliance with sanitary and hygienic standards and rules for donation, personal hygiene etc. Since it is recognized in medicine that the immunodeficiency virus is not transmitted through the air, through everyday contact, through non-sexual contacts, for example, by shaking hands, then such actions of the virus carrier when communicating with people around him are not criminal, since they do not form the objective side of the crime.
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.
Part 1 art. 122 of the Criminal Code of the Russian Federation - knowingly putting another person at risk of contracting HIV infection
Object of crime . The direct object of the crime is the life and health of a specific victim, whom another person knowingly put at risk of infection or infected with HIV infection.
The crimes provided for in paragraphs 2 - 4 of Article 122 of the Criminal Code of the Russian Federation encroach on the same object (human life and health).
The objective side of putting another person at risk of contracting HIV infection is expressed by an act in the form of an action or inaction, which in given specific conditions can lead to infection of another person, and if this infection does not occur, then only due to random circumstances or measures taken by the victim or third parties persons.
The possibility of committing a crime through inaction is explained by the fact that a number of persons are required by regulatory legal acts not to create a threat of HIV infection. In particular, any person who is a carrier of HIV must be notified by an employee of a medical institution of the need to take precautions to prevent the spread of the disease and of criminal liability for endangering and infecting another person with HIV infection.
The method of committing a crime does not affect qualifications and is determined by the method of spreading the immunodeficiency virus: through sexual intercourse, through blood in the process, for example, transfusion, etc.
The crime under Part 1 of Art. 122 of the Criminal Code of the Russian Federation is formal and is considered completed from the moment another person is placed at risk of infection.
The subjective side of the crime is expressed by direct intent, since the law states “deliberately putting in danger of contracting HIV infection.”
Knowingly means that a person deliberately violates the precautionary rules, knowing for certain about the possibility of infection of the victim. In a situation where the subject observes all precautions, liability under Part 1 of Art. 122 of the Criminal Code of the Russian Federation is excluded.
The subject of the crime provided for in Part 1 of Art. 122 of the Criminal Code of the Russian Federation - a sane individual who has reached the age of 16. It can be either a person infected with HIV or anyone else who can put the victim at risk of contracting HIV infection, for example, a person who distributes, induces drug use, or provides a syringe after use by an HIV-infected drug addict. The subject may be, for example, an employee of a medical institution. The subject of the crime is common.
Release from liability
In practice, criminal law knows cases where HIV infection is not punishable by law .
This happens if the victim was notified in advance that the person is HIV positive.
Most often, this happens within married couples, where one of the spouses consents to contracting HIV infection.
In this case, the infected person is not criminally liable, and the victim is not.
Note to Article 122 of the Criminal Code of the Russian Federation
According to the note to Article 122 of the Criminal Code of the Russian Federation, an HIV-infected person is exempt from criminal liability if three conditions are met simultaneously:
1) the act committed by him falls under Part 1 or Part 2 of Article 122 of the Criminal Code of the Russian Federation;
2) the victim was promptly warned about the presence of this disease in the HIV-infected person, i.e. before committing actions that create a threat of infection, for example, before engaging in sexual intercourse with an HIV-infected person, before injecting a drug with a syringe used before by an HIV-infected person, etc.;
3) the victim voluntarily agreed to commit such actions. In this case, it does not matter whether the HIV-infected person himself or other persons, for example, relatives, friends, acquaintances, etc., warned the victim about the presence of the disease, since the condition for release is only the voluntary actions of the victim, who was timely informed about the danger of contracting HIV infection, and non-HIV-infected person.
Responsibility
If a citizen has placed another person in a dangerous position due to the risk of contracting HIV infection, he is deprived of liberty for a period of one year, or by arrest for six months, or by forced labor for a period not exceeding one year, at the discretion of the court and the penal inspection.
If a person knowingly knew that he had such a disease, he is deprived of liberty for a term of five years . If a crime is committed against a minor or several persons, then such a crime is punishable by imprisonment for a term exceeding eight years .
If a person has become infected with HIV as a result of poor quality and dishonest performance of any of his duties, then he is punished by deprivation of the right to hold certain positions, as well as forced labor, arrest or imprisonment for a period prescribed by a court verdict.
Nuance
If a person infected with a fatal disease warned another person about his illness in advance, then the HIV patient is exempt from punishment if the partner is still infected. Most often this happens between spouses and cohabitants. After all, many people simply turn a blind eye to the fact that a loved one has HIV and live with it.
It should also be noted here that in this case only those persons who committed the acts recorded in parts one and two of Art. 122 of the Criminal Code.
Arbitrage practice
In judicial practice, there are many cases where an infected person hid the disease from his sexual partner. For example, in 2010, a woman registered for pregnancy and found out that she was infected with HIV. It turned out that her husband had been infected for 2 years, but did not warn his wife about it. Before marriage, the woman took an HIV test and it was negative. Taking into account all the circumstances, the man was sentenced to 2 years of imprisonment to be served in a maximum security colony.
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Infection
Intentional infection with HIV is an intentional act committed by an HIV-infected person or another person (for example, a medical worker) and causing the infection of a healthy (HIV-negative) person or causing a potential danger of infection.
Due to the dangerous nature of this disease, deliberate infection with HIV is criminally punishable. The penalties imposed on the perpetrator vary depending on the specific situation, the presence of aggravating circumstances, the goals and motives of the perpetrator, as well as other factors directly related to the incident.
Regulatory regulation
HIV infection is the abbreviated name for the human immunodeficiency virus, which attacks the immune system and leads to the emergence and development of AIDS. Since the beginning of the 20th century, HIV and AIDS have become one of the global threats to humanity, as a result of which many states began to fight them.
Federal Law No. 38-FZ imperatively states that HIV infection is a disease caused by the corresponding HIV virus. At the same time, the legislator argues that HIV infection is becoming widespread throughout the world, creating a threat to the individual and the state, which is why it is necessary to take effective measures to prevent and protect the population.
Article 13 of the legislation under consideration establishes that any person who is a carrier of the infection must be notified in writing by a medical officer of the importance of further compliance with precautionary measures. This is necessary to avoid further spread of infection and prosecution under the article of the Criminal Code of the Russian Federation for contracting HIV infection.
General
What is HIV? This question interests many people who have heard about this disease more than once from others. So, as it turned out, HIV is a viral infection that penetrates the human body and begins to slowly destroy it. Thus, a person’s immunity is greatly reduced, he begins to get sick often and can die from any disease that would not be fatal for a healthy citizen.
Proof of guilt
Due to the specific nature of the infection process, in some cases it is difficult or impossible to find clear evidence of the malicious intent of the perpetrator. Therefore, in criminal practice, the awareness of the perpetrator about his own illness is crucial when considering such cases , which in most cases is the main evidence of the intentional nature of the actions committed.
The suspect’s awareness of his own diagnosis is easily revealed by the presence or absence of relevant information in the databases of municipal and regional health care institutions.
Punishment for disclosing confidential information
Employees of medical institutions are subject to administrative, disciplinary, and criminal liability for maintaining the personal data of each patient. This indicator is the main one when assessing professional suitability. Responsibility for maintaining medical confidentiality extends to the following medical employees:
- doctors;
- pharmacists;
- pharmacists;
- reception staff;
- students undergoing internship;
- orderlies.
A clinic employee bears criminal and administrative liability for disclosing medical confidentiality. Administrative liability is a fine of 50 minimum wages. In addition, the clinic employee will be involved in community service for up to 250 hours.
An employee of a medical institution may lose his position for up to 3 years if medical confidentiality is disclosed, or he will be assigned community service for up to 2 years.
Special Qualification
But what can an attacker living with a diagnosis of HIV expect if, knowing about his diagnosis, he infected a citizen who is not even 18 years old or several people with the virus? If the criminal act is proven, the latter will face the punishment specified in Part 3 of Art. 122 of the Criminal Code of the Russian Federation. And this is up to eight years in places of isolation from society. In addition, in the form of additional sanctions, the judicial authority may impose a ban on engaging in certain types of activities.
How and where to undergo a medical examination for HIV infection
Anyone can undergo a medical examination for HIV infection (HIV test), free of charge. To do this, you need to contact the Center for Prevention and Control of AIDS or a clinic at your place of residence and donate blood. It is best to do this on an empty stomach.
You can take the test anonymously. (clause 2 of article 8 of the Law “On preventing the spread of HIV infection in the Russian Federation”)
Article 9 of the Law “On Preventing the Spread of HIV Infection in the Russian Federation” defines the circle of persons required to undergo a medical examination. Thus, donors, medical and scientific workers of specialized institutions, foreigners and stateless persons arriving in the Russian Federation for a period of more than 3 months are required to undergo examination.
It is also necessary to take an HIV test before a planned operation, for pregnant women and some other categories of citizens.
