HIV is a disease that affects various spheres of people’s life, including healthcare, legal, labour and other aspects. Tajikistan, being a rule of law based secular and social state, adopted development programmes to address priority problems in the legal and social sphere. To address HIV-related issues, the Government of Tajikistan periodically adopts relevant National Programs every three years.

 

In 2020, the Government of Tajikistan approved the National Programme to Combat the Human Immunodeficiency Virus (hereinafter HIV) and Acquired Immunodeficiency Syndrome (hereinafter AIDS) Epidemic in the Republic of Tajikistan 2021 – 2025, along with the overall budget and Action Plan which includes the SDGs and other international human rights and HIV instruments.[1]

 

According to the data presented in the National Program, the total number of officially registered HIV cases in the country is 11,986, of which 7,698 people (64.1 per cent) are men and 4,288 people (35.8 per cent) are women. However, it is estimated that the number of people living with HIV could be 13,000.

 

In 2019, 1,320 new cases of HIV infection (adults and children) were registered in Tajikistan, which roughly corresponds to the number of cases in 2018 and 2017 (101 cases less than in 2018 and 115 cases more than in 2017). Of these new HIV cases registered in 2019, 772 were men (58.5 per cent) and 548 women (41.5 per cent). In recent years, there has been a general trend towards an increase in the proportion of women among all new HIV infections, from 30.9 per cent in 2011 to 41.5 per cent in 2019. Overall, the cases in the country amount to 14.5 per 100,000 population.

 

The Constitution of Tajikistan enshrines the fundamental human and civil rights and freedoms that are equally binding for all persons living in Tajikistan, with some exceptions for foreign citizens and stateless persons.[2] Persons living with HIV, based on the principle of non-discrimination, have all the rights and freedoms provided for all in Chapter Two of the Constitution – the right to life, judicial protection, education, physical and mental health and social protection, information, privacy and others.

 

In 2016, Tajikistan ratified the ‘Political Declaration on HIV and AIDS: speeding up the fight against HIV and ending the AIDS epidemic by 2030’. In 2017, the Health Code was adopted, which in Chapter 24 pays attention to the issues of HIV treatment and prevention, and prohibits discrimination against people living with HIV (PLHIV) in all fields of life. It defines the rights of PLHIV in receiving free qualified and specialised medical care, including medication, in public healthcare institutions, and recognises the principle of voluntary HIV treatment, as well as confidential and voluntary medical examinations for HIV. PLHIV, upon disclosing their medical diagnosis of HIV, have the right to compensation for moral and material damage. Children with HIV under the age of 16 receive a food allowance, and parents or legal representatives of children born to mothers infected with HIV have the right to receive breast milk substitutes from the moment they are born until the time they are finally diagnosed with HIV, with the aim of further reducing risk of HIV infection.

 

Despite these progressive provisions in Tajik legislation, practice has shown that PLHIV unfortunately continue to be discriminated against in all spheres of life. The reasons for such discrimination are different, ranging from: false ideas/knowledge of the disease; low qualifications of doctors, judges, and law enforcement officers; low legal awareness in the general population including PLHIV themselves; gender stereotypes; contradictions between healthcare laws and criminal and administrative legislation; discriminatory provisions of the Criminal Code and the Code of Administrative Offences; new discriminatory by-laws adopted, which are better implemented in practice than laws; and generally weak law enforcement.[3]

 

The new National Programme also underlines the existence of barriers for creating an enabling environment to support the development of programmes for counteracting the epidemic, including the need for legislation to mitigate the high level of stigma and discrimination against people living with HIV and other key populations. Unfortunately, there is currently no single and comprehensive anti-discrimination law in Tajikistan.

 

The Criminal Code of the Republic of Tajikistan has a separate corpus delicti for HIV infections. In accordance with Article 125 of the Criminal Code, criminal liability is provided for the infecting of someone with HIV/AIDS, as well as for knowingly leaving someone at risk of being infected with HIV. At the same time, the legislation does not take into account exceptions in the form of informed consent of the other sexual partner (regardless of whether there was the risk of HIV infection), or whether the virus carrier is taking precautions.[4] In addition, the legislation does not define the form of warning a partner should take about their status. Thus, all persons living with HIV who have sexual intercourse can be prosecuted, thereby violating their right to sexual health. When a criminal case is initiated under this Article, the status of both the suspect and the victim is simultaneously opened.

 

Thus, the wording of 125 of the Criminal Code leads to the situation whereby law enforcement agencies initiate criminal cases only on the basis of endangering HIV infection and HIV infection. Article 125 has already become a ‘routine Article’ for law enforcement agencies. In 2018, and for four months of 2019, law enforcement agencies identified 138 cases of deliberate infection of people by HIV-infected persons. 33 criminal cases were initiated against 26 HIV-infected persons therein in 2018, and 39 criminal cases were initiated against 32 HIV-infected persons in 2019.

 

In addition, Article 162 of the Health Code gives doctors the right to disclose the status of HIV patients at a simple request from the investigating authorities without providing a justification for it. Some criminal cases under Part 1 of Article 125 were initiated after the AIDS Center disclosed information on HIV to law enforcement agencies. During the investigation and trial, the accused’s right to confidentiality over their HIV status is not ensured because the investigators, officers, court clerks and judges are able to request medical information under provisions of the health code without conditions.

 

At a roundtable organised by the Public Organisation Human Rights Center (PO HRC) on December 1^st 2020, dedicated to the problem of HIV criminalisation, one of the representatives of the PLHIV community in Tajikistan stated: “One gets the impression that law enforcement agencies are fighting not the infection, but rather the PLHIV.”

 

Amendments to the Family Code, adopted as a Government Decree on August 23^rd 2016 (No.374), violate the right of PLHIV to voluntariness and confidentiality of HIV testing. In particular, the amended Article 14 now requires every future spouse to submit to a compulsory medical examination as a mandatory condition for marriage, and this was. The rules indicate that the examination includes, among other things, an enzyme-linked immunosorbent test (HIV/AIDS) and the couples must be familiarised with the results of each other’s examination. Without a medical document proving such examinations, the registry office does not have the right to register a marriage.[5] This requirement violates the right to privacy of everyone who wishes to marry. For PLHIV and other persons who have the disease Hepatitis B, C, drug addiction, in case of refusal to voluntarily disclose information about their disease to a partner, a medical certificate is not issued, so the marriage shall not be registered. A medical certificate is also not issued to persons who have drug addiction, Hepatitis B and C, mental illness, until they are cured and pose a threat to the life and health of another person who is getting married. Treatment is carried out at the expense of patients and after treatment they must undergo a repeated examination.

 

In turn, Articles 119 and 120 of the Code of Administrative Responsibility of the Republic of Tajikistan provide for an administrative penalty in the form of a fine for refusing to have mandatory medical examinations and HIV treatment, as well as for concealing the source of HIV infection, which is a significant barrier for PLHIV to receive ARV therapy.

 

There is a free legal hotline for these groups at the PO HRC. Over the period from November 2018 to December 2019, 167 calls were received by the hotline, of which 67 were from men and 100 from women. From January to December 2020, 415 calls were received, 163 from men, 214 from women, and 38 from government agencies. The calls were associated with various violations of rights against PLHIV.

 

In 2019 to 2020, legal assistance was provided for cases such as:

• 11 initiated criminal cases under Part One of Article 125 (deliberate exposure to the risk of HIV infection);
• Two criminal cases under Part Two of Article 125; and
• Three criminal cases under Part Three of Article 125.

 

Most of the criminal cases were brought against women. Many of the calls to the hotline are by the employees of public organisations who work directly with communities. They complain that police officers detain them, demanding them to disclose the status of all their beneficiaries with whom they work on adherence to HIV treatment, and threaten to initiate a criminal case against them under Part One of Article 125 of the Criminal Code of the Republic of Tajikistan. They also demand to write receipts stating that they undertake not to infect HIV, which means for them not to have an intimate relationship.

 

In 2019, the PO HRC conducted an analysis of the criminal procedure legislation of Tajikistan. Within the framework of this analysis, law enforcement practice was also taken into account in connection with which 13 criminal cases under Article 125 were covered. The analysis revealed the following problems:

 

• When considering cases under Part One of Article 125, there is a lack of direct evidence. The accusation is based not on facts, but on the words of a person, which are often impossible to verify. As a rule, the court takes the side of the one who was put at risk.
• Another difficulty comes from prejudice and poor awareness. For example, in Tajikistan, representatives of the local judicial system do not yet have a complete understanding of the characteristics of the disease, and regularly do not distinguish HIV from AIDS. There is no Resolution of the Plenum of the Supreme Court on such categories of cases that would explain to the courts what is meant by putting under the risk of HIV. Guidelines for these categories of cases to prosecutors have not been adopted.
• At the first medical examination for HIV after determining a positive diagnosis in accordance with the guidelines for diagnosis, treatment and dispensary observation for HIV infection (for adults and adolescents) requires infected persons to sign a paper stating that they have been warned of criminal liability for infecting another person with HIV. The fact that a person is aware of their HIV infection does not necessarily imply that they are also aware of the ways of passing of the virus. As PLHIV themselves note, in practice they are faced with low quality of information before and after the test consultation, or lack of it. As a rule, the signing of documents often occurs after people learn about their incurable disease for the first time when they are in state of confusion or shock. The issue of adapting a HIV-positive person to their own diagnosis is very acute. In other countries, there is practice on how to show the partner their HIV-positive status. Among the proposed forms are a statement, a verbal announcement in the presence of witnesses or a doctor, in a self-help group. At the same time, these recommendations are not stipulated anywhere in the legislation of Tajikistan, and their implementation is difficult due to psychological barriers. Psychological services are not provided free of charge at HIV/AIDS centers.
• The right to receive documents (resolution on the initiation of a criminal case, indictment, sentence and others) of criminal proceedings in a language accessible to the accused and convicted, in particular in Russian and Uzbek, is violated. The right to testify in an accessible language for Russian-speaking and Uzbek-speaking suspects and detainees is also being violated. Translators are not present during the inquiry, and the suspects are forced to sign explanations recorded from their words in Tajik on their behalf. The indictment is not served in a language accessible to the accused in accordance with Part One of Article 250 of the Criminal Procedure Code of the Republic of Tajikistan.
• State lawyers who are involved by investigators in fulfilling their duties to protect PLHIV are reluctant, or because of ignorance of HIV, and they overlook many important points.
• Most cases under Part One of Article 125 are initiated according to the data of the HIV/AIDS centers without signs of a crime, but only on the basis of information about the HIV disease. Patients with HIV are called to the interrogator, and they are openly asked: “Who are you sleeping with?” This is also facilitated by Article 162 of the Health Code, which allows doctors to disclose a patient’s HIV diagnosis at the request of the investigating authorities without any conditions.
• Attention is drawn to the fact that only two criminal cases out of 13 were initiated on the basis of the victims’ statements. Eight out of 13 criminal cases are private prosecution cases under Part One of Article 125, which are initiated in the presence of claims from victims. The study of all 13 sentences showed that under Part One of Article 125, nine victims and under Part Two of of Article 3 of the victims had no claims against the convicted. In 2018, there were no criminal cases terminated by the courts on the basis of Articles 72-75 of the Criminal Code (exemption from criminal liability in connection with reconciliation with the victim, sincere repentance, etc.), which is provided by the Criminal Procedure Code for Part One of Article 125. Despite the fact that in one of the cases the so-called victim in court declared: “I have no complaints against the defendant, I love her, please set her free.” As a result, the court pronounces a sentence of one year and two months in prison. The cassation and supervisory instance courts did not find any irregularities or omissions in the trial.
• According to Part Three of Article 24 of the Criminal Procedure Code, cases under Part One of Article 125 are initiated upon the claim of a person who has suffered from a crime. In the event of reconciliation of the person who suffered from the crime with the accused, and compensation for the harm caused to the victim, the proceedings are terminated. According to Article 147 of the Criminal Procedure Code if the case is of particular public importance or if the victim is in a helpless state, dependent on the accused or for other reasons is unable to defend their rights and legitimate interests, the prosecutor has the right to initiate a criminal case even in the absence of a victim’s statement. But unfortunately, the legislation does not provide an explanation of the wording ‘special public importance’ and the prosecutors interpret it based on their personal understanding. There were cases when criminal cases were initiated under Part One of Article 125 by the police without a victim’s statement, and the courts did not pay attention to this.
• Complaints against the verdict of the first instance in accordance with the norms of the Criminal Procedure Code are submitted through the court of first instance, and the judge who passed the verdict, who is appealed, prepares the case and the complaint and sends it to the higher cassation court. The supervisory appeal is considered by the same court as the cassation appeal, only in a different composition of judges, but in essence it is the same court. Accordingly, there is a risk that the court will not be objective in this matter and will not take a positive decision on the complaint against itself. In this connection, lawyers repeatedly apply in a supervisory manner to the Supreme Court of the Republic of Tajikistan, which delays the consideration of complaints.
• There is a lack of coordination between the doctors of HIV/AIDS centers and temporary detention centers, which leads to the fact that PLHIV do not have access to Antiretroviral Therapy (ARVT) drugs, which entails a violation of their right to health.
• In cases involving people who inject drugs, and at the same time have been participants in the opioid substitution therapy programme for many years, the courts additionally prescribe compulsory drug addiction treatment under Article 101 of the Criminal Procedure Code, without clarifying how it can harm the convict and what is opioid substitution therapy. According to Article 194 of the Health Code, substitution therapy is considered to be one of the types of assistance, and Article 101 of the Code of Criminal Procedure also contradicts the Article 203 Health Code. It states that compulsory treatment is applied by a court verdict to persons who have committed a crime, including persons who have committed administrative offenses and who at the same time need treatment for a confirmed neurological illness, when they refuse voluntary treatment. But in our case, our beneficiaries do not refuse substitution therapy, which is an alternative treatment, as it is stated in Articles 194 and 197 of the Health Code.
• Attention is drawn to the fact that in Tajikistan there are more children infected with HIV via an unknown route than children infected with HIV via the vertical route. Moreover, the Ministry of Health is not taking the necessary measures to find out how children are infected. When a child is diagnosed, when both parents are healthy, doctors at HIV/AIDS centers do not send information to prosecutors for proper investigation. Moreover, in the proceedings of the PO HRC there is a case where a lawyer defends the interests of a girl, currently ten years old, who was infected when she was 20 months old. The case has already been initiated for several times and terminated due to lack of evidence. The lawyer petitioned for a re-examination, request for information about the donor, the plasma that was transfused to the girl, and other investigative actions that enable a high-quality investigation. But this petition was never approved, and the case was again terminated. Unfortunately, the judicial practice does not have any positive precedents yet. But if the fact of HIV infection in state medical institutions is proven, the state will be obliged to pay benefits to PLHIV for a lifetime, as well as compensate for material and moral damage, and provide them with housing.

 

In addition to problems with access to justice in the criminalisation of HIV, PLHIV also face social problems, which can be expressed in the absence of implementation of the principle of rule of law.

 

Thus, the Health Code provides for the right for parents of children born to mothers with HIV to receive breast milk substitutes from the moment of their birth until the time they are finally diagnosed with HIV. Statistics show that cases of HIV detection among children born to HIV-infected mothers in 2017 were 60 children, 53 children in 2018, and 45 children in 2019.[6] There is also a problem with the realisation of this right, when not all parents of children born to mothers with HIV have access to breast milk substitutes. This is due to the fact that the mechanism for implementing this norm has not yet been developed, funding is not provided in the state budget, and funds for these needs are not always allocated from the local budget.

 

Government Resolution No. 232 dated May 10^th 2010 provides for the issuance of benefits for children with HIV up to 16 years of age. There are bureaucratic mechanisms for granting benefits, from the moment of filing an application until its permission, which can take more than a year, the parents of children are forced to provide information to local authorities that the children are alive and while the information is being checked the issuance of benefits is suspended.

 

Resolution No. 475, dated September 25^th 2018, defines the List of Diseases, which subsequently does not give people living with HIV the right to study in educational medical institutions, nor the right to adopt a child, be their guardian or custodian.

 

The Health Code provides for free treatment and examination of all types of medical and drug assistance in public health institutions. However, in practice, except for ARV therapy, all other services are paid for by patients, and in practice this norm practically does not work.

 

A HIV test is also required for employment, even when opening a retail outlet for small entrepreneurs, and there is a practice of refusing to hire a HIV-positive person. PLHIV do not appeal against this illegal practice for fear of disclosing their status, since PLHIV mostly live in small areas, villages where everyone knows each other and it is impossible to keep information about the disease a secret.

 

In labour relations, when hiring and subsequently when working, according to the Labour Code and other by-laws of the Republic of Tajikistan, an HIV test is required only for medical workers in the surgical field (including surgeons, dentists, obstetrician-gynecologists, etc.); those working in blood transfusion services; specialists in infectious diseases; and departments in which there is an increased risk of infections.

 

In practice, this requirement is not observed and the HIV test in particular, and the results of medical examinations in general, is demanded in the hiring process for any type of work and position, even when opening a retail outlet for small entrepreneurs. There are cases of refusal to hire a HIV-positive person. PLHIV do no appeal against this illegal practice for fear of disclosing their status, since they mainly live in small settlements, where everyone knows each other and it is difficult to keep information about the disease a secret.

 

In 2019, the Government tested children for HIV in schools in pilot districts. The testing took place while parents were not present, mandatory consulting was not provided before and after the test, and the result was disclosed to the school administration. There were even statements regarding the exclusion of a child from school due to their positive HIV status.

 

Representatives of civil society regularly communicate with various state bodies to improve the situation with the rights of PLHIV in Tajikistan. Civil society has proposed amendments to the new Criminal Code, which is currently being developed by a working group approved by the decree of the President of the Republic of Tajikistan. The proposals are aimed at decriminalising the first part of Article 125 of the Criminal Code. The good news is that the working group on the development of the new Criminal Code has included a footnote to Article 125, which provides for the exemption from criminal liability of HIV-positive people in the case of the informed consent of the sexual partner.

 

In addition, within the framework of advocacy activities, work is underway to develop a draft Resolution of the Plenum of the Supreme Court of the Republic of Tajikistan on the consideration of cases related to the criminal prosecution of PLHIV, including an explanation of Article 125. The Supreme Court has already analysed about 100 court cases, which were considered over the period 2018-2020.

 

Also, as it was noted above, the National Programme was adopted and it has already been approved by the Resolution of the Government No. 50 (dated November 27^th 2020). According to the recommendations of the civil society, all the problems mentioned above were also included in this programme. We hope that all the initiatives undertaken by the civil society will result to an improvement in the situation with the observance of the rights of PLHIV in Tajikistan.

 

In this connection, the following recommendations for solving problems are offered:

 

On the criminalisation of HIV:

• To decriminalise Article 125, and to criminalise and prosecute only for intentional HIV infection within the framework of the general article causing harm to health of moderate severity;
• To people living with HIV in cases related to HIV infection, to provide obligatory participation of a lawyer in criminal cases at the expense of the state;
• It is advisable to clarify the issue of protecting the confidentiality of the diagnosis and provide that in order to obtain data on the state of health and HIV status, a petition from the prosecutor and a court order is required. For this, appropriate amendments should be made to the Law on Operational-Investigative Activities and Articles 49 and 162 of the Health Code, expressly indicating that data constituting a medical secret can be disclosed to the bodies of inquiry or investigation only with the approval of the court;
• Exclude compulsory treatment for PWID as an additional measure of punishment, amend the Criminal Code with the possibility of prescribing alternative treatment for PWID, instead of compulsory treatment. Include in the Criminal Code or Criminal Procedure Code the concept of alternative treatment and the procedure for its appointment;
• Given that there are many myths and stigmatising attitudes regarding HIV, people living with HIV and those affected by the epidemic, it is imperative to ensure regular training of police officers, prosecutors and judges on HIV, including the latest scientific and medical data on HIV infection as a chronic disease, risk of transmission, effects of antiretroviral therapy and precautions, etc., and the importance of maintaining confidentiality of diagnosis and privacy;
• To develop and adopt the Resolution of the Plenum of the Supreme Court on cases related to Article 125, taking into account modern scientific advances in HIV treatment before the abolition of this article; and
• For investigative bodies and prosecutors to develop instructions for conducting criminal cases under Article 125, as well as oversight in HIV prevention.

 

For voluntary HIV testing:

• Given the concentrated nature of the HIV epidemic in Tajikistan, replace the mandatory medical examination for HIV of persons entering into marriage with voluntary and confidential HIV testing, and with the provision of pre- and post-test consulting;
• To reform all legislation, taking into account the observance and non-discrimination of the rights of PLHIV; and
• To strengthen the responsibility of doctors, medical personnel, and government officials, who have access to information on the presence of HIV, regarding the disclosing of confidential information without any connection with aggravating consequences and for refusing medical care and services.

 

On issues of violation of other rights of PLHIV:

• Adopt the Government Resolution on the issue of infant formula for children born to HIV-infected mothers, and provide funding for these purposes, both in the local budgets of Tajikistan and at the state level in the case of subsidised financing of subsidised districts;
• Simplify the procedure for granting benefits to children with HIV and amend the Health Code, increasing the age of children eligible for benefits to 18 years old;
• To terminate the widespread practice of HIV testing upon admission to school, vocational educational institutions and upon employment in all types of work; and
• The Ministry of Labour will strengthen its work with employers on the observance of safety measures at the workplace, including clarifications on HIV prevention and prohibition of discrimination against PLHIV.

 

Larisa Alexandrova is an expert on gender, human rights and HIV. Since 2011, it has been advocating for women’s rights in access to justice for victims of domestic violence and other women’s rights. Author of guidelines for conducting a gender analysis of legislative acts for State bodies, as well as an assessment of the legal and regulatory environment in the area of HIV/AIDS in the Republic of Tajikistan, and a gender and anti-discrimination analysis of the draft law “Protection against Discrimination” and other laws concerning the rights of women living with HIV.

 

Image by USAID in Central Asia under (CC).

 

[1] The National Program to Combat the Human Immunodeficiency Virus and Acquired Immunodeficiency Syndrome Epidemic in the Republic of Tajikistan 2021 – 2025. This programme was approved by the decree of the Government of the Republic of Tajikistan No. 50 dated November 27, 2020.

[2] Article 16 of the Constitution

[3] HRC, Assessment of the legal and regulatory environment in the field of HIV/AIDS in the Republic of Tajikistan, February 2020, https://hrc.tj/archives/325; Е. Maron, L. Aleksandrova. “Assessment of the Legal and Regulatory Environment in the Field of HIV/AIDS in the Republic of Tajikistan. Dushanbe. 2019г.

[4] Such as wearing a condom.

[5] REPORT FOR THE UNIVERSAL PERIODIC REVIEW FROM THE NGO RULE OF LAW AND ACCESS TO JUSTICE NETWORK. 39^th session of the UPR Working Group, October-November 2021

[6] The national programme to combat the HIV/AIDS epidemic for the period 2021-2025 was approved by Government Decision 50 of 27 November 2020.