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Analysis of the EECA legislation �regarding the criminalization �of HIV and key populations��-------------------------

UNDP HHD Istanbul Regional Hub

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Structure of the presentation

Background and UNDP’s mandate�
HIV criminalization and human rights

Global Review�
Key challenges related to laws, policies, practice in the context of KPs�
Criminalization of HIV transmission and exposure in EECA

Summary analysis of legislation regarding KPs�
Opportunities moving forward

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Background and UNDP’s mandate

UNDP Strategic plan

HHD Connecting the Dots Strategy

Sustainable Development and SDGs

UNAIDS division of labour

Supplement Report of the Global Commission on HIV and the Law�

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HIV criminalization and human rights

The criminalization of HIV and key populations affects a range of human rights enshrined in international instruments, including:

The right to health (Art.12 ICESCR)
The right to privacy (Art.17 ICCPR)
The right to freedom from discrimination (Art.2 ICESCR, Art.2 ICCPR)

Negative impacts of criminalization on HIV response are highlighted in UN guidelines, reports of Secretary General, High Commissioner for Human Rights, Special Rapporteur, as well as UN human rights treaty bodies

Inefficiency of criminalization in controlling the epidemic is confirmed by multiple studies, while decriminalization – coupled with scale up of prevention, treatment and support programs – is proven to significantly improve health outcomes of people living with HIV and key populations

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As of July 2018, 68 countries criminalized transmission, exposure or non-disclosure of HIV, or allowed using HIV-positive status as a circumstance that aggravates liability or punishment

As of September 2017, cases of HIV-related prosecution were reported in 69 countries, with top four being Belarus, Russia, Canada and the United States

The number of countries decriminalizing “risky behavior” is slowly reducing, although some countries are restricting their legislation on key populations

Global Review

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Key challenges:

Laws, policies, practices in relation to key populations

Criminalization of exposure and transmission

Criminalization of sex work

Criminalization of drug use

Homophobic laws (“anti-gay propaganda”)

Criminalization of homosexuality

Travel restrictions

Punitive laws targeting NGOs

Punitive laws against PLHIV

Lack of enabling legislation and funding

STIGMA. DISCRIMINATION. NO SERVICES.

While there have been significant improvements in the legal environment relevant to HIV in the region, certain gaps still persist and they are closely related to the rights situation of PLHIV, key populations most at risk of HIV and the legal and policy regulatory frameworks that govern national efforts in prevention, treatment, care and support. At the same time, we continue to see worrying tendencies in legislation and policy development that are likely to hamper national responses to HIV. These are: homophobic and transphobic laws disguised as “anti-propaganda” legislation; re-criminalization of sex work or introduction of increased punitive measures against sex workers; forced and coerced HIV testing; punitive “prevention” measures against people with HIV as a category of people “more likely to commit crimes”. Recent laws requiring premarital compulsory HIV testing have been passed in Tajikistan and Turkmenistan, which may contribute to the further discrimination of PLHIV and key populations at higher risk of HIV since such measures are not evidence based and don’t have proven positive impacts on population health. There has been certain progress with waiving immigration restrictions (especially in Belarus and the Russian Federation). On the other hand, most EECA countries still criminalize HIV transmission, including for involuntary transmission. Other legal issues that serve as potential barriers to accessing services include regulations that limit the ability of community based-services to provide HIV testing (including rapid testing) and the absence of legal frameworks to enable state funding for NGO social contracting.

Recent polices raids of sex workers in Central Asian countries and the Russian Federations (with combined with violence and forced HIV and STI testing). Sex work is criminalized in some form or illegal in countries of Eastern Europe and Central (except for Hungary).

Sample sex relationships and contacts are criminalized in Turkmenistan and Uzbekistan

In May 2011 UNDP co-organized a Regional Dialogue of the Global Commission on HIV and the Law in Chisinau bringing together more than 100 participants from approximately 20 countries.

UNDP HHD team has since implemented a series of activities to follow-up on the Global Commission on HIV and the Law recommendations, in the field of the human rights situation of key populations – e.g. the regional project co-financed by the EU further building the capacities of non-state and state actors to identify key priorities for further protecting and promoting the rights of PLHIV and key populations at higher risk of HIV (the project ended in 2015), by supporting SWAN, ECOM and other regional networks (in collaboration with UNFPA) to carry out dialogues with government representatives in the context of HIV and rights, supporting a network of human rights lawyers and free legal aid providers that has expanded in Central Asia (now covers 9 countries in the region – mainly Russian speaking part of the region - http://hiv-legalaid.org/en/) and providing technical support to the regional project of EHRN, which is funded by the Global Fund on prevention and harm reduction and advocacy for the right of people who inject drugs. The regional team also supports in collaboration with UNFPA and UN Women on the strengthening of associations/networks of women and girls living with HIV in countries of the region – Eurasian Network of Women Living with AIDS (EWNA).

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Situation in EECA

All EECA countries criminalize HIV transmission

Other than Latvia and Estonia, all EECA countries criminalize HIV exposure

In Belarus, Kazakhstan, Kyrgyzstan, Moldova and the Russian Federation, Criminal Codes were amended to include a note or a provision that exempts HIV-positive people from liability in case of informed consent of the other person

In terms of HIV criminalization rate, Belarus and Russia are among the world’s “leaders”

Personal drug use and possession was decriminalized in most countries of the region, though:

There are exceptions (e.g. Georgia)
Maximum allowed amount of drugs is inadequately low and does not take into account individual differences
“Narcological registration”, not being a punishment per se, creates a lot of issues

Two countries (Turkmenistan and Uzbekistan) criminalize consensual sex between adult men

Sex work is not criminalized, but prosecuted under “administrative legislation”; lack of protection leads to abuse of law and rights, physical and mental violence, including by law enforcement

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Albania	Criminalization of transgender people Criminalization of sex work Criminalization of same-sex sexual acts Drug use or possession for personal use an offence Parental consent for adolescents to access HIV testing Spousal consent for married women to access sexual and reproductive health services
Albania	a	a	a	a	a	a
Armenia	a	a	a	a	a	a
Azerbaijan	a	b	a	i	p	a
Belarus	a	a	a	a	a	a
Bosnia and Herzegovina		c	h
Georgia	a	a	a	a	a	a
Kazakhstan	a	d	a	j	a	a
Kyrgyzstan	a	a	a	a	a	a
Montenegro	a	a	a	a	a	a
North Macedonia		g	h
Republic of Moldova	a	e	a	a	a	a
Russian Federation	a	f	h	k	a	a
Tajikistan	a	a	a	a	a	a
Turkmenistan			h
Ukraine	a	a	a	a	a	a
Uzbekistan	a	a	h	o	q	a

Laws penalizing same-sex sexual acts have been decriminalized or

never existed, or no specific legislation

Possession of drugs for personal use or drug use or consumption are specified as a criminal offence

Possession of drugs for personal use or drug use or consumption is specified as a non-criminal offence

Laws criminalizing the transmission of, non-disclosure of or exposure to HIV Laws or policies restricting the entry, stay and residence of people living with HIV (a, j) Mandatory HIV testing for marriage, work or residence permits or for certain groups
a		a
a		a
a		a
a		a

a		a
a		a
a		a
l		a

a		a
l		a
a		a
l		n
a		a
a		a

Source: UNAIDS Report 2019

Summary analysis: Laws and policies scorecard,

Eastern Europe and Central Asia

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Build national coalitions against criminalization (including CSO initiatives)
Provide updated UN Guidance on decriminalization
Promote access to legal aid and monitoring of rights violations
Conduct a legal environment assessment and implement recommendations
Capacity building and sensitization of law enforcement agencies (police, prosecutors)

Capacity building / training
Publications

Capacity building and sensitization of judges

Regional Judges’ Forum on HIV, Human Rights and the Law / Interactive platform
Country level trainings for judges – Albania, Tajikistan, Ukraine
Capacity building / training – compendium of Strategic litigation cases
Publications

Work with the Supreme Court

Strategic litigation & Case law review
Advocacy for the development and adoption of the Resolution of the Supreme Court Plenum on the judicial practice on cases of HIV transmission, exposure and non-disclosure

Work with the parliament
Media advocacy

Opportunities moving forward

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Thank you!