Strengthening the role of judges in the HIV response

January 5, 2022

Photos: Jodi Hilton / UNDP

Eastern Europe and Central Asia remains one of the three regions in the world where the HIV epidemic continues to grow. The COVID-19 pandemic further exposed inequalities affecting the most vulnerable groups of the population, including the rights of People living with HIV.

In recent years though, there have been a number of positive trends in the judicial community to set a positive example in strengthening the role of judges in the HIV response. We interviewed four judges in the region, who are well positioned to instigate change and contribute to further using the law to protect the rights of these populations, and asked them what needed to be done to end AIDS and inequalities from their perspective in the judiciary.

Sharof Alanazarzoda, Judge of the Supreme Court of the Republic of Tajikistan

In accordance with the legislation, liability is provided not only for the deliberate transmission of HIV, but also for the risk of infection with the virus.

As a result, all people living with HIV and who have sex can become targets of persecution, thereby depriving them of their right to sexual health. This does not take into account the informed consent of the other partner, the use of protective equipment during sexual contact and undetectable viral load when using antiretroviral therapy, even though, according to the latest scientific studies, the risk of transmission of the HIV is minimal.

To increase the effectiveness of global action and overcome existing barriers, it is necessary to improve legislation in the field of criminal and administrative law.

For the full enjoyment of the rights of people living with HIV, key populations and other people affected by the epidemic, legislation and policies, in particular on the decriminalization of HIV, must be improved in line with international standards.

Vitalie BUDECI, Judge of the Chisinau District Court (office Buiucani), Moldova

Since the first cases of AIDS were reported forty years ago, remarkable progress has been made in a diverse set of countries and communities to end AIDS by 2030, but there are still lots of problems regarding exclusion and inequalities of people living with HIV.

It is possible to confront these inequalities if we do not accept the status quo. The role of judges goes beyond ensuring compliance with legislation and legitimizing the procedures, but also applying international practices to the national context and successful implementation, especially in the context of protecting the rights of key populations, such as people living with and affected by HIV.

It is necessary for each country to update needs assessments that are being conducted as part of efforts to develop a curriculum to integrate HIV issues into judicial training institutes across the world, and to encourage all judges follow seminars on this subject, in order to support the development of a new generation of judicial leaders familiar with issues of HIV, human rights and the law.

Oksana Koval, Judge of Svyatoshin district court of Kyiv, Ukraine

The problem of changing, improving, legislation in terms of protecting the rights of HIV-positive people is very important and relevant. But no less important is the issue of the mental perception by judges and civil society as a whole of the current situation of inequality of rights, which only exacerbates the situation with the HIV epidemic.

We judges must understand that our decisions affect people's lives. Therefore, they should be based on the latest scientific achievements and evidence.

Obviously, stigma in any form only hinders efforts to end the HIV epidemic, so we must all together become a driving force in protecting the rights of the People Living with HIV , which will generally help in the fight against the epidemic.

Olena Volkova, Judge of Yuzhnoukrainsk City Court, Mykolaiv region, Ukraine

People living with and affected by HIV, tuberculosis and hepatitis belong to vulnerable groups. A large number of vulnerabilities make it possible to use their health status as a ground for invoking certain norms of the Criminal Code.

It is therefore of utmost importance to amend current medical standards and the Criminal Code of Ukraine in order to clarify and comprehensively explain part one of Article 130 of the Criminal Code of Ukraine and to thus prevent "massaging" facts so that they can be criminalized under this norm.

I believe that legal and medical ignorance, along with existing commentaries on the article, turn it [Article 130] into a punitive instrument, which is rarely used for its intended purpose.

UNDP works to improve the intersection of health and governance by enabling legal, policy and regulatory environments. The annual Judges' Forum raises awareness and increases knowledge of judges on HIV, key and vulnerable populations, supports and expands the regional platform for information and experience exchange on different aspects of adjudication of cases related to HIV and co-morbidities, and enhances cooperation between the judiciary and other state and non-state actors for better protection of human rights for all.