The Fifth EECA Judges’ Forum on HIV, Human Rights and Legislation took place in Chisinau, Moldova, on 27-28 October. The event was organized by the United Nations Development Programme (UNDP) and brought together representatives of the judiciary, national institutions for the training and education of judicial personnel, UN country office staff, civil society activists and communities from the EECA region, as well as representatives of UN headquarters and regional offices.
“For UNDP training and empowerment of judges and prosecutors is a priority, especially in our region, where the space for civil society is shrinking. This year we dedicated the Forum to such topics as drug policy, EU integration and migration as they are the most pressing. We also engaged colleagues from key organizations in the region working with PLHIV and key populations to foster a dialogue between judges and the people who are most impacted by their decisions», said Marina Smelyanskaya, Team Lead, HIV and Health Group, EECA, UNDP Regional Hub for Europe and Central Asia
During the forum, participants discussed a wide range of issues related to the role of the judiciary in addressing critical health and social issues, including HIV infection. In particular, they discussed
- Human rights of people living with HIV
- Legislative support for the HIV response
- HIV litigation
Forum participants emphasized the catalytic role of judges in addressing HIV infection. The justice system can both impede and facilitate health efforts to ensure equitable access to services for people living with HIV.
Currently, many countries in the EECA region are discussing and initiating a number of processes to create an independent, impartial and accountable judiciary, combined with the protection of fundamental human rights. These processes are essential to achieving universal health coverage, including for people living with HIV.
The Minister of Justice of the Republic of Moldova Veronica Mihailov-Moraru noted that “the Ministry of Justice is taking all measures to bring the criminal policy in line with European standards, ensuring human rights is a priority. To this end, sanctions in criminal legislation have been adjusted to humanize and clearly distinguish between cases of drug use and drug trafficking. In addition, it is proposed to diversify penalties to promote alternatives to imprisonment. Improving the system of human rights protection remains a priority for the Ministry of Justice, and each of us understands that we must pursue an active policy in the field of combating drug use, increasing the role of the judiciary in ensuring the rethinking of the rights of this category of people”.
Prior to the war in Ukraine, labor migration was a major factor in the HIV and TB epidemics in the EECA region, and currently IDPs and migrants have limited access to essential health services, including HIV and TB services, as well as legal support. HIV decriminalization and active drug policy reform are long overdue in the region.
The event was attended by Tatiana Deshko, Director of International Programs at the Alliance for Public Health. She presented a report on the role of the judiciary in promoting change in the context of HIV and human rights, HIV decriminalization and drug policy, and shared data collected by the REAct online human rights system in the countries of the EECA and Southeast Europe region.
According to her, the depressing legacy of the Soviet Union in many post-Soviet countries is the desire to preserve the points of state control over society, to preserve the levers that can be used when necessary.
In the area of HIV, this is expressed in the continued criminal prosecution of HIV-positive people for exposing someone else to the risk of HIV infection. In 16 of the 53 post-Soviet countries in the WHO European Region, the risk of HIV infection is criminalized. It is puzzling that there is no definition of “putting someone at risk of HIV infection”. If a person takes drugs, has a low viral load and is physically unable to transmit HIV, but voluntarily engages in sexual intercourse with another person, the judge still decides whether there was a risk or not – in case of prosecution!
Tatiana stressed out that it is high time to put an end to these manipulative norms and to abolish criminal prosecution for risk of HIV infection. The SoS2.0 team’s priority is to revise the criminal codes of Kazakhstan, Kyrgyzstan, Uzbekistan and Georgia to decriminalize HIV exposure.
The frustrating legacy of the Soviet Union in many post-Soviet countries is the desire to maintain points of state control over society, to preserve levers that can be used – if necessary.
The time has come long ago to put an end to these manipulative regulations and abolish criminal prosecution for putting under HIV risk. In SoS project by Alliance for Public Health led consortium funded by The Global Fund we prioritized revision of criminal codes in Kazakhstan, Kyrgyzstan, Uzbekistan and Georgia to abolish criminal persecution for putting someone at risk of HIV, with involvement of local partners and 100% Life. Look forward to seeing progress in 2023-24!
In discussions on the subject in Tajikistan with an attorney, and in Moldova in 5th Judges’ forum, was great to see concerted effort of UNDP WHO Regional Office for Europe, Eurasian Harm Reduction Association , UNAIDS , judges, regional commission on drug policy.
The Forum also included a panel discussion on European integration and strategies for harmonizing legislation and practice. The session discussed the steps towards EU accession: requirements and determining factors, as well as their consequences for the judicial system. The session was moderated by Olena Kucheruk, Secretary of the Commission on Drug Policy for Eastern and Central Europe and Central Asia (ECECACD).
“We now have evidence that countries with more supportive social and legal environments, where punitive policies are replaced by policies that put people and health first and protect the right to non-discrimination, are associated with greater reductions in HIV incidence,” said Vera Ilyenkova, Key Populations and Community Engagement Advisor in the UNAIDS Regional Support Group for Eastern Europe and Central Asia. This year’s UNAIDS report focuses on the opportunities that countries can harness to drive legislative reform and innovation to curb the HIV epidemic.
Key points from presentation by Tatyana Deshko:
Legal hurdles:
Between 2019 and 2023, over 20,000 appeals related to human rights violations among key populations were documented in 14 countries of the region. However, only 0.5% of these appeals found resolution through legal proceedings, emphasizing the challenges in accessing justice. Bureaucratic complexities, financial difficulties, and a lack of trust in the justice system contribute to victims refraining from defending their rights.
Barriers to accessing justice:
Victims face obstacles due to complexities in the state-guaranteed free legal assistance system, with issues such as lack of interest, bribery, and the absence of state-appointed lawyers during investigative actions. Courts’ tendencies to side with the prosecution in cases involving vulnerable populations deter victims from pursuing justice. Moreover, court bailiffs, particularly in Kyrgyzstan, are ineffective in collecting alimony, impacting women, who constitute 95% of victims in such cases.
HIV criminalization: situation analysis:
The disclosure of HIV status, and in Uzbekistan, sexual orientation, can trigger criminal cases, irrespective of intent or adherence to antiretroviral therapy (ART). Investigations often violate privacy rights, with statements coerced under pressure from law enforcement. In Tajikistan, 40 appeals under Article 125 were received, resulting in limited positive outcomes, and Uzbekistan, one trial led to a two-year imprisonment despite legal support.
Advocacy for HIV decriminalization:
Efforts toward HIV decriminalization have gained momentum. In 2022, an alternative report to CEDAW on Uzbekistan recommended repealing laws criminalizing HIV. In 2023, draft laws proposing legal changes to reduce criminalization are being developed in Kazakhstan, Georgia, Uzbekistan, and Kyrgyzstan. These include repealing specific articles and transferring offenses to the framework of general crimes, reflecting a strategic shift.
Future actions:
Looking ahead to 2024, these proposed legal changes will be submitted for public consultation, involving high-level discussions and negotiations with parliamentary members, ministries, and ombudsmen. The aim is to progressively reduce the criminalization of people living with HIV and key populations, fostering a legal environment that aligns with human rights principles.
Drug use criminalization: situation analysis
Law enforcement often uses unrelated articles like “breach of public order” to pursue people, who use drugs, leading to unjustified criminalization. Russia’s repressive drug policy extends its influence to regions like Transnistria, where cases of criminalization without intent to sell have been recorded.
Drug use decriminalization: advocacy and progress
Efforts toward drug use decriminalization have gained momentum. In 2022, the EECA Commission on Drug Policy (ECECACD) initiated its work, outlining guiding principles for effective and humane drug policies. In 2023, Kyrgyzstan, Georgia, and Moldova developed drug policy road-maps, focusing on repealing specific articles and introducing alternatives to punishment. High-level country visits facilitated progress in Lithuania, Kyrgyzstan, and Moldova, while an OHCHR report in 2023 highlighted drug use challenges in the region.
Same-sex criminalization and discrimination
Instances of discrimination persist, such as classifying a same-sex kiss as disorderly conduct in Uzbekistan and persecuting gay men in Tajikistan. A violent attack on a trans* woman faced judicial denial in Kazakhstan. Responses include case submissions to OSCE, alternative reports, and statements on LGBT discrimination in Central Asia during the High-Level Political Forum on Sustainable Development.
Sex work criminalization: uncovering injustices
In Kyrgyzstan, despite sex work not being criminalized, sex workers face pursuit, fines, and detainment for non-compliance or disorderly conduct. Extortion is prevalent, with 314 appeals reporting bribes by local police officers. In Uzbekistan, sex work is considered an aggravating circumstance, leading to severe sentences. Detentions involve compulsory HIV and STI testing, often with the purpose of extortion. Crimes involving sexual assault against sex workers, especially by police officers, are challenging to bring to court due to the lack of necessary infrastructure and the difficulty of proving allegations.
Women in focus: addressing sexual assault challenges
Crimes involving sexual assault, particularly when the victim is a sex worker and the perpetrator is a police officer, pose significant challenges in Central Asian countries. The absence of ratification of the Istanbul Convention further compounds these challenges.
Conclusion and next steps:
The data presented by REAct at the EECA Judges’ Forum highlights the pressing need to confront legal obstacles, champion HIV decriminalization, and foster a justice system that protects the rights of individuals and key populations grappling with HIV.
Examining the intricate legal challenges across the EECA region underscores the necessity for a holistic strategy. Advocacy initiatives for drug use decriminalization, combatting discrimination, and ensuring justice for vulnerable groups must persist as overarching priorities. Looking ahead to 2024, the emphasis should shift toward enacting legislative changes aimed at diminishing criminalization across diverse spheres. This approach aims to cultivate a legal landscape that not only adheres to human rights principles but also champions inclusivity.
