Johanna Westeson - The ICHRP

More documents

Recommendations

Info

it should not be applied when the reason for concealment was the fear of violence or other serious consequences. 208 UNAIDS and the UN Office for the High Commissioner for Human Rights also recommend states to ensure that any application of criminal law to HIV transmission should be in full consistency with their international human rights obligations, respecting in particular an individual’s right to privacy, highest attainable standard of health, freedom from discrimination, equality before the law, and liberty and security of the person. 209 For the purpose of sexual health and rights, the recommendations from UNAIDS provide useful guidance. Public health as well as general human rights concerns strongly suggest a restrictive approach to the application of criminal law in the combat of HIV/AIDS. In the European region general criminal law tends to be used, applying provisions such as causing grievous bodily harm or assault, to prosecute cases of HIV-transmission. Reckless transmission is generally punishable. However, several courts in the region have applied these provisions cautiously on cases of HIV, and, in their jurisprudence, have highlighted the many potential pitfalls of broad penalization of reckless transmission. Courts in the United Kingdom, Switzerland, and the Netherlands have addressed issues such as consent to the risk of contracting HIV on behalf of the sexual partner; real risk of transmission as opposed to a mere theoretical risk; and the need to establish reckless intent to cause harm on behalf of the defendant. In a commendable fashion, the courts have in these cases shed light on legal complexities involved in the application of criminal law on sexual, nonviolent conduct where public health is at stake, and have carved out criteria for a narrower application of provisions criminalizing HIV transmission. 2. Council of Europe Jurisprudence of the European Court of Human Rights The European Court of Human Rights has not addressed the issue of criminalization of HIV transmission directly. 210 However, one case merits attention in this context, which dealt with compulsory isolation of an HIV-positive person. Criminal law had not been applied in his case (but administrative law), but state interference with his rights to liberty and freedom of movement in order to prevent HIV-transmission from taking place suggests parallels with cases of prosecution and punishment for post-facto HIV-transmission. In the case, Enhorn v. Sweden, 211 the applicant was a HIV-positive man who based on his HIV-status had been kept in confinement for long stretches of time by Swedish authorities. 208 UNAIDS, “Policy Brief on Criminalization of HIV Transmission 2008,” available at http://data.unaids.org/pub/BaseDocument/2008/20080731_jc1513_policy_criminalization_en.pdf. Visited on 21 December 2009. See also OHCHR and UNAIDS, International Guidelines on HIV/AIDS and Human Rights (2006), UNAIDS Geneva Guideline 4: “Criminal and/or public health legislation should not include specific offences against the deliberate or intentional transmission of HIV, but rather should apply general criminal offences to these exceptional cases. Such applications should ensure the elements of forseeability, intent, causality and consent are clearly and legally established to support a guilty verdict and/or harsher penalties.” 209 UNAIDS “Policy Brief on Criminalization of HIV Transmission 2008,” referring to Articles 3, 7 and 12 of the UDHR, and Article 12 of the ICESCR. 210 See, however, Z v. Finland (application No. 22009/93, decided on 25 February 1997), where the facts emanated from a prosecution for intentional HIV-transmission, but the main issue regarded the right not to disclose one’s HIV-status, as part of the right to private life under Article 8. 211 Application no. 56529/00, decided on 25 January 2005. 76
Swedish courts had determined that he was unable to comply with measures prescribed to him aimed at preventing him from spreading the HIV infection and had ordered confinement under the Swedish Infectious Diseases Act. In total, the order to deprive him of his liberty was in force for seven years, while the time he spent in isolation amounted to one year and a half. The applicant claimed that the decision to deprive him of his liberty went contrary to his right to liberty and security under Article 5 of the Convention. The Court found that the deprivation of liberty as such had a basis in Swedish law, and that the HIV virus qualifies as a disease sufficiently dangerous to public health and safety as to justify restriction of rights. However, the Court argued that the Swedish government could have taken more lenient measures to prevent the applicant from spreading the virus. Moreover, the length of isolation was such that a fair balance had not been struck between the need to prevent the virus from being spread and the applicant’s right to liberty. In sum, the Court found a violation of Article 5. The case has obvious connections to health and rights. First, it concerns basic rights such as liberty and self-determination when the state takes restrictive measures against an individual whose mere liberty is judged to be a danger to public health. It also highlights how the applicant’s sexuality as such was seen as dangerous by the Swedish state. The authorities had concluded that only detention could possibly prevent this man from engaging in reckless sexual behavior and thereby spread the infection, even though very few facts about his past behavior pointed in this direction. In relation to criminalization of HIV transmission, this case is relevant in that the Court emphasized that Swedish authorities had not complied with its international human rights obligations in its combat against the virus – as strongly urged by the UNAIDS (above). The use of criminal law or, here, administrative law with coercive elements, shall be used as a last resort in measures fighting HIV. Here, coercive measures had been taken that were not deemed to be the last resort available to the authorities. The Court’s decision illustrates that states cannot exclude individuals from rights protection even though they carry the HIV virus; a holding of equal significance for issues of criminalization of HIV transmission. 3. European Union This aspect of criminal law falls outside of the scope of binding EU law. 4. Domestic legislation and case law Research shows that there is a tendency in the region increasingly to resort to criminal law in the combat against HIV. Prosecutions for HIV-transmission have increased in Europe during recent years and several new laws have been introduced in the region with the effect of criminalizing transmission and/or exposure. 212 Opposing trends also exist, however. The examples below have been selected to show that in several countries, although criminal law in fact is available for cases of unintentional transmission – contrary to recommendations by UNAIDS – there are significant legal safeguards to prevent criminal law from being employed in an arbitrary or abusive manner. In particular, jurisprudence 212 SeeGNP+ and Terence Higgins Trust, “Criminalisation of HIV in Europe” (2005), available at http://www.gnpplus.net/criminalisation/rapidscan.pdf, and Hows et al, “Sex, lies, and prosecutions: criminalisation HIV in Europe and Central Asia” (2008), abstract available through link at http://www.aidsmap.com/en/news/B250DD99-C534-4C29-A078-EDF602EFB615.asp. Both sites visited on 21 December 2009. 77
Page 1 and 2:
SEXUAL HEALTH AND HUMAN RIGHTS: EUR
Page 3 and 4:
ACKNOWLEDGMENTS This report was wri
Page 5 and 6:
In choosing these eight topics, and
Page 7 and 8:
amputation, or arbitrary imprisonme
Page 9 and 10:
headquarters situated in Strasbourg
Page 11 and 12:
unfounded applications: the applica
Page 13 and 14:
margin. 18 This standard has been k
Page 15 and 16:
financial, and democratic supervisi
Page 17 and 18:
EU and the Euro as its currency. Th
Page 19 and 20:
3. Domestic legal systems As mentio
Page 21 and 22:
METHODOLOGY The WHO project on sexu
Page 23 and 24:
Because this report, and the projec
Page 25 and 26: grounds for discrimination. Gender
Page 27 and 28: assume large parts of her household
Page 29 and 30: In Lustig-Prean and Beckett v. the
Page 31 and 32: asis of family responsibilities (Ar
Page 33 and 34: promote social justice and protecti
Page 35 and 36: ground that the scheme did not cove
Page 37 and 38: ut also to discrimination arising f
Page 39 and 40: Many constitutions call for equalit
Page 41 and 42: The three criminal provisions inclu
Page 43 and 44: eassignment is defined broadly, ref
Page 45 and 46: iv.4. Gender identity discriminatio
Page 47 and 48: harassed workers out of their emplo
Page 49 and 50: epealed accordingly, but the conten
Page 51 and 52: and reactive) steps to protect the
Page 53 and 54: features of sexual harassment have
Page 55 and 56: harassment to make a claim against
Page 57 and 58: 4. Regional non-binding material Th
Page 59 and 60: he or she he has “no disease caus
Page 61 and 62: In other European countries, calls
Page 63 and 64: Article 10 addresses reasons for pe
Page 65 and 66: her country of origin and cannot re
Page 67 and 68: compromised medical privacy or doub
Page 69 and 70: whether or not the participants wer
Page 71 and 72: uns contrary to EU non-discriminato
Page 73 and 74: provision criminalizing sexual rela
Page 75: 2B. CRIMINALIZATION OF HIV TRANSMIS
Page 79 and 80: infected the women. In the lower co
Page 81 and 82: Several prosecutions of cases of HI
Page 83 and 84: unprotected sex), and can prohibit
Page 85 and 86: The case, when reaching the Court,
Page 87 and 88: material on the internet blurring,
Page 89 and 90: a balancing act on behalf of the le
Page 91 and 92: 4. Domestic legislation, case law,
Page 93 and 94: 5. Concluding remarks Given the sca
Page 95 and 96: 2. Council of Europe Jurisprudence
Page 97 and 98: leaves room for forced examinations
Page 99 and 100: 3A. SAME-SEX MARRIAGE, PARTNERSHIP,
Page 101 and 102: The Court made clear that there is
Page 103 and 104: extend the scope of this Convention
Page 105 and 106: violating the principle of non-disc
Page 107 and 108: held that the law was introducing a
Page 109 and 110: In France, registered partnership i
Page 111 and 112: eform. Thus, allowing for same-sex
Page 113 and 114: woman have the right to marry accor
Page 115 and 116: The law makes clear that the two pa
Page 117 and 118: opposite sex. While the Hungarian,
Page 119 and 120: In the European region, divorce is
Page 121 and 122: 5. Concluding remarks In Johnson, t
Page 123 and 124: concern that such legislation could
Page 125 and 126: exceptions: countries that have cho
Page 127 and 128:
3E. POLYGAMY/POLYGYNY 1. Introducti
Page 129 and 130:
4. Domestic legislation In France,
Page 131 and 132:
In relation to the above, it is rel
Page 133 and 134:
In the European region, there are f
Page 135 and 136:
United Kingdom, 414 the Court consi
Page 137 and 138:
(2) Whoever completes an act of sex
Page 139 and 140:
characteristics are important featu
Page 141 and 142:
discrimination, whereas laws agains
Page 143 and 144:
2. Council of Europe Jurisprudence
Page 145 and 146:
It is possible but not certain that
Page 147 and 148:
When an application has been grante
Page 149 and 150:
Case law: partnership rights for pr
Page 151 and 152:
investigation and the provision of
Page 153 and 154:
In a couple of decisions, the Europ
Page 155 and 156:
very practical aspect of gender ide
Page 157 and 158:
Case law: the right to respect for
Page 159 and 160:
pathologizing the issue of transsex
Page 161 and 162:
gender. Specific legal issues invol
Page 163 and 164:
concerning their young child. Howev
Page 165 and 166:
world, with work, health services,
Page 167 and 168:
on repeated occasions from her husb
Page 169 and 170:
Similarly, the European Commission
Page 171 and 172:
a person who has been acquitted of
Page 173 and 174:
[w]hoever, on repeated occasions or
Page 175 and 176:
International human rights standard
Page 177 and 178:
In M.C. v. Bulgaria, 523 the applic
Page 179 and 180:
With regard to the failure to effec
Page 181 and 182:
Italy offers another example in the
Page 183 and 184:
In Russia, the Supreme Court has pr
Page 185 and 186:
testimony of the victim in rape tri
Page 187 and 188:
number and passport details within
Page 189 and 190:
condemnation of immunity for marita
Page 191 and 192:
some regions have exempted from pen
Page 193 and 194:
The 2007 Council of Europe Conventi
Page 195 and 196:
European Social Charter and the Eur
Page 197 and 198:
takes place, or whether the prosecu
Page 199 and 200:
either to persons who were in fact
Page 201 and 202:
permanently changes them will be se
Page 203 and 204:
6. Concluding remarks European laws
Page 205 and 206:
event of police abuse, on the other
Page 207 and 208:
Greece illustrates this trend. In 2
Page 209 and 210:
(a) must treat the fact that the of
Page 211 and 212:
5E. HONOR CRIMES 1. Introduction Pr
Page 213 and 214:
making provision for penalties to b
Page 215 and 216:
that a decision of the family assem
Page 217 and 218:
(Article 62.2). Mitigation of the s
Page 219 and 220:
persons, regardless of what kind of
Page 221 and 222:
purpose of exploitation) (Art. 4a).
Page 223 and 224:
victims will be granted “standard
Page 225 and 226:
e guilty of an offence, if the traf
Page 227 and 228:
expanded. For example, a victim can
Page 229 and 230:
last decade, on regional as well as
Page 231 and 232:
sexual health services interacts wi
Page 233 and 234:
provide abortion services at a mini
Page 235 and 236:
Convention. These procedures, the C
Page 237 and 238:
5. Domestic legislation and case la
Page 239 and 240:
pregnant woman is disabled or dies
Page 241 and 242:
document the patient’s opportunit
Page 243 and 244:
Generally, it has been difficult to
Page 245 and 246:
2. to provide advisory and educatio
Page 247 and 248:
not anonymous) treatment even thoug
Page 249 and 250:
5. Concluding remarks It is difficu
Page 251 and 252:
information about contraceptive met
Page 253 and 254:
sex with women) is to provide insuf
Page 255 and 256:
a democratic society, the Court rei
Page 257 and 258:
3. European Union The issues of sex
Page 259 and 260:
eduction of sexual risks, the fight
Page 261 and 262:
5. Concluding remarks The European
Page 263 and 264:
conveyed via texts, images, and spe
Page 265 and 266:
images can be easily known from the
Page 267 and 268:
considered necessary in a democrati
Page 269 and 270:
3. European Union The Council of th
Page 271 and 272:
In 2008, the Criminal Justice and I
Page 273 and 274:
By contrast, in Baczkowski, the Cou
Page 275 and 276:
however, the dominance of criminali
Page 277 and 278:
Other legal regimes are more rights
Page 279 and 280:
The Assembly recommends Council of
Page 281 and 282:
Netherlands, when they had not prev
Page 283 and 284:
number. 896 As of late October 2009
Page 285 and 286:
offence only if it includes exploit
Page 287 and 288:
Zoning laws are determined by local
Page 289 and 290:
sexual intercourse, but other forms
Page 291 and 292:
sex workers (like other adults) hav
Page 293 and 294:
DOMESTIC Albania - Law no. 9669 of
Page 295 and 296:
Portugal - Law No 6/2001 of 11 May
Page 297 and 298:
APPENDIX II: TABLE OF CASES Within
Page 299 and 300:
- Gabrielle Defrenne v Société An
Page 302 and 303:
APPENDIX IV: SELECT BIBLIOGRAPHY Ha
Page 304:
STI AIDS Netherlands, “A Delicate
show all

Johanna Westeson - The ICHRP

Create successful ePaper yourself

Delete template?

Save as template?