Commentary on Article 118. Human Immunodeficiency Virus (HIV) Infection of the Criminal Code of the Republic of Kazakhstan
- 1. Knowingly placing another person at risk of contracting the human immunodeficiency virus (HIV) — shall be punishable by a fine in an amount of up to two hundred monthly calculation indices, or correctional labour in the same amount, or community service for a period of up to one hundred and eighty hours, or arrest for a period of up to fifty days.
- 2. Infection of another person with HIV by a person who knew that they had this disease —
- shall be punishable by deprivation of liberty for a term of up to five years.
- 3. An act provided for in Part Two of this Article, committed against two or more persons or against a person who is knowingly a minor —
- shall be punishable by deprivation of liberty for a term of five to ten years.
Note. A person who has committed acts provided for in Parts One or Two of this Article shall be exempt from criminal liability if the other person who was placed at risk of infection or infected with HIV was duly warned of the first person's having this disease and voluntarily consented to perform the actions that created the risk of infection.
The public danger of the criminal offence (Part 1 — a criminal misdemeanour; Parts 2 and 3 — crimes) lies in the fact that the human immunodeficiency virus (HIV) poses an increased danger and infection with it leads to disease.
Acquired immunodeficiency syndrome (AIDS) is the final stage of HIV infection, in which pathological manifestations caused by deep impairment of the human immune system by the human immunodeficiency virus (HIV) are observed.
A virus carrier may sometimes be unaware of their illness, since the incubation period lasts for years and sometimes for decades. By violating hygiene and sanitation rules when interacting with other people, such a person may infect a large number of people, condemning them to death, since, to date, there are no medical drugs that cure HIV infection.
The Article under consideration establishes liability for two independent elements of a criminal offence: a) placing another person at risk of HIV infection; b) infecting another person with HIV (Parts 2–3).
The object of this criminal offence is human health.
The objective element consists in knowingly placing another person at risk of contracting the human immunodeficiency virus (HIV), regardless of the method of transmission. Medicine has established that the virus can be transmitted sexually (with a predominance noted in homosexual contacts), through blood, through the use of non-sterile instruments and syringes, infusion systems during surgical procedures, blood transfusions, etc. The disease may be transmitted from an infected mother to a child during breastfeeding.
The objective element of placing another person at risk of HIV infection is expressed through an act in the form of an action or omission which, under the specific circumstances, may lead to another person becoming infected, and where such infection does not occur only as a result of accidental circumstances or measures taken by the victim or third parties. The methods of placing a person at risk may vary and depend on the mechanism of HIV transmission.
The composition of the criminal misdemeanour provided for in Part 1 of Article 118 of the Criminal Code is formal in its construction. The criminal misdemeanour shall be deemed completed from the moment the victim is placed at risk of contracting the human immunodeficiency virus.
The subjective element is characterized by direct or indirect intent. The perpetrator knows that their actions create a real possibility of infecting another person with HIV infection and either desires this or is indifferent to such a possibility. In other words, the perpetrator is aware that, being a virus carrier, they are violating the established prohibition on engaging in sexual intercourse with another person or other precautionary rules.
The intentional nature of guilt is emphasized by the legislator by indicating that the placing of another person at risk of infection is knowing. Knowing means that a person consciously violates precautionary rules, having reliable knowledge of the possibility of infecting the victim. If the subject observes all precautionary measures, liability under Part 1 of Article 118 of the Criminal Code is excluded.
The subject is a sane natural person who has reached the age of 16 and knew that they had HIV infection.
The aggravated offence (Part 2 of Article 118 of the Criminal Code) provides for liability for the actual infection of another person with HIV by a person who knew that they had this disease.
The objective element of the act provided for in Part 2 of the Article under consideration is characterized by an act in the form of an action or omission, a consequence in the form of the victim's infection, and a causal relationship between them.
The composition of the crime provided for in Part 2 of the Article under consideration is material, i.e. it is deemed completed from the moment the consequence in the form of another person's infection with HIV occurs.
In this case, infection means the victim becoming infected, regardless of how long the incubation period of the disease lasts and when the disease caused by HIV develops.
If it is impossible to establish whether the victim became infected specifically as a result of the accused person's actions or omissions, the possibility of holding that person liable under Part 1 of Article 118 of the Criminal Code for knowingly placing another person at risk of HIV infection is not excluded.
Part 3 of Article 118 of the Criminal Code provides for HIV infection of two or more persons or a person who is knowingly a minor.
Infection of two or more persons means infecting them with HIV either simultaneously or at different times, provided that the limitation period for the first act has not expired. A minor victim is a person who has not reached the age of 18, which the perpetrator must have known before committing the specified act.
The act provided for in Part 1 of Article 118 of the Criminal Code is classified as a criminal misdemeanour.
The act provided for in Part 2 of Article 118 of the Criminal Code is classified as a crime of medium gravity.
The act provided for in Part 3 of Article 118 of the Criminal Code is classified as a serious crime.
According to the Note to this Article, a person who has committed acts provided for in Parts 1 or 2 of the Article under consideration shall be exempt from criminal liability if the other person who was placed at risk of infection or infected with HIV was duly warned of the first person's having this disease and voluntarily consented to perform the actions that created the risk of infection.
Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan, by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the National Academy of Natural Sciences of Kazakhstan, Member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, Member of the Working Group on Reform of the Law Enforcement System under the Security Council of the Republic of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.*
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