Swiss Court Frees HIV+ Man

posted: 10/03/2009

In the first ruling of its kind in the world, the Geneva Court of Justice has freed a man given 18-months prison for exposing someone to HIV.The court ruled that the risk of HIV transmission while the man was on treatment was far too low to justify the conviction.

In Switzerland, public health law effectively made it a crime simply for people with HIV to have any  unprotected sex. However this court has now changed this. It accepted expert testimony from Professor Bernard Hirschel – one of the authors of the Swiss Federal Commission for HIV/AIDS consensus statement on the effect of treatment on transmission – that the risk of sexual HIV transmission during unprotected sex on successful treatment is 1 in 100,000. It ruled that this level of risk was far too low to keep unprotected sex a public health crime.

The case began in Lausanne in 2007, when a court sentenced the HIV-positive man, originally from the Democratic Republic of the Congo, to a suspended 28-month sentence for having unprotected sex, without telling his woman partner his HIV status.

Swiss HIV Law

Under the public health parts of the Swiss criminal law, Article 231 allows prosecutions against HIV-positive individuals for having unprotected sex, with or without disclosure. The UK doesn’t have a public health criminal law about disease exposure. Prosecuting and criminalising public health was dropped in the UK because it goes against the principle of encouraging people to come for testing and treatment. Criminalising public health drives people with health needs underground and protecting public health becomes far more difficult.

People with HIV in Switzerland can also be prosecuted under Article 122, for an attempt to engender grievous bodily harm. This makes it an attempted grievous bodily harm to have unprotected sex, even if there is no HIV transmission. People with HIV in Switzerland are jailed simply for having unprotected sex. This can't happen under English law. Here HIV transmission has to take place before the charge of "grievous bodily harm" can be made. There is no English crime of attempted grievous bodily harm.

Deborah Glejser of Swiss community HIV organisation, Groupe SIDA Genève, explains that although this public health law could be used even more harshly, to prosecute unprotected sex even when HIV status has been disclosed, in practice, the Swiss only prosecute HIV exposure without disclosure. Suspended sentences are normal so this man’s imprisonment was unusual.

Trial judge refused to consider Swiss statement

A second complaint last year led to the man standing trial again in Geneva in November 2008. According to a report in The Geneva Tribune, an expert medical witness had testified that although treatment greatly reduces the risk of transmission, there remained a residual risk. Although the man's lawyer had put forward the statement by the Swiss Federal Commission for HIV/AIDS as evidence, and Geneva's deputy public prosecutor wanted to suspend the hearing to consult with the Swiss HIV Commission, the lower Geneva court refused to allow this. This made it his second conviction so he was sent to jail for 18 months, in December 2008.

This clearly annoyed the deputy Public Prosecutor who felt justice was not being done or being seen to be done. The court refused to consider the evidence even the prosecutor thought was relevant. We are left with the suspicion that a white Swiss native would have not been jailed for 18 months like this black African migrant. The British pattern of a disproportionate numbers of migrants being jailed for HIV crimes is found across much of the globe

It's Super-Public-Prosecutor to the rescue

Late in February the deputy public prosecutor came to the rescue and told the Geneva Court of Justice that he was convinced by the Swiss Federal Commission for HIV/AIDS that the risk of transmission for an HIV-positive individual on successful treatment was less than 1 in 100,000. Under the circumstances he wanted to appeal so as to withdraw the charge and for the court to cancel the conviction.

On Monday, the Geneva Court of Justice acquitted the man, who was freed  after almost three months in prison. Geneva’s deputy public prosecutor, Yves Bertossa, called for the appeal, told the newspaper Le Temps that although there is still some debate regarding the slight risks of transmission in people on successful treatment this should not be used unfairly: "One shouldn't convict people for hypothetical risks,” he said.

Swiss statement did what it set out to do

Professor Hirschel said that he was very pleased with the outcome. It was, he said, the main reason that he and his colleagues issued their January 2008 statement of advise for courts and prosecutors.

The Swiss panel has had enormous global attention and a great deal of criticism for openly talking about and applying the lessons of modern HIV treatment to the lives of people living with HIV. Swiss HIV clinicians wanted to put a stop to much of the jailing of people with HIV - simply for having unprotected sex without any HIV transmission.

Deborah Glejser of Groupe SIDA Genève added that Monday’s ruling means that, in Switzerland, HIV-positive people on treatment which is working properly should no longer be prosecuted for having unprotected sex. She hopes that this ruling will help people in other countries that prosecute HIV exposure – and she’s been contacted by many already.

Hopes for fall in global prosecutions

Last May, a five member US Court of Appeals for the Armed Forces panel rejected, but only by a narrow majority, an appeal by an HIV-positive soldier who had previously pleaded guilty to HIV exposure, following unprotected sex with two women without disclosing his HIV status. And last July, a Canadian court considered and rejected the Swiss statement in the case of a man charged with having unprotected sex with six women.

Following Monday's ruling, however, Geneva’s deputy public prosecutor, Yves Bertossa, believes it is only a matter of time before other jurisdictions realise that prosecutions for HIV exposure should not take place when the accused is on successful antiretroviral therapy. He told Radio Lac: “There are some medical advances which can change the law. I think that in other [parts of Switzerland] or in other countries, the same conclusions should apply to their laws."

source

Discrimination Protection for Partners

posted: 28/11/2008

Help push for the 2009 Equality Bill to protect partners, family and friends of people living with HIV from discrimination.

Over the last few years the laws protecting people living with HIV from prejudice and discrimination have greatly improved. However, a small loophole in current legislation means that the friends, family and carers of those same people can be discriminated against because others believe they might have HIV. In July the European Court of Justice made a landmark ruling that it is unlawful to discriminate against someone because they care for or associate with someone with a disability.

This effectively means that friends, family, partners and carers of people living with HIV are now protected from harassment and discrimination on the grounds of their loved-one's HIV status.

The Equality Bill which come before parliament in 2009 will need to properly recognise the ruling and its principles by including provisions to prevent "associative discrimination" in the Equality Bill when it comes before Parliament next year.

More details here

You can help push for this change by contacting your MP through Terrence Higgins Trust - very quick and easy to do here

Refused Asylum Seekers Face Court Ban

posted: 01/09/2008

Ministers plan to stop refused asylum seekers appealing to the high court against their deportation. A Home Office consultation paper published on 21 August proposes "streamlining" the asylum appeals process by blocking access to high court judicial reviews for some failed asylum seekers. Their cases are to be heard by a new “Upper” level of tribunal instead.

2007 asylum statistics - lowest since 1993

The Home Office also published its annual asylum statistics, which show 23,430 new claims for refugee status in 2007 - the lowest level since 1993 - with 12,300 claims in the first six months of this year. Most came from Afghanistan, Iran, China and Iraq. Zimbabwe produced 8% of all asylum applicants, the fifth largest number of applicants in 2007, with around 1,800 people. This was about 10% more Zimbabwean applicants than the year before, reflecting the political repression associated with the elections.

In 2007 just 6,540 asylum claims were approved, compared with the 23,430 applications in the same year - only about 1 in 4 applications are accepted.

Removal of failed asylum seekers in the first six months of this year fell to 6,000 as the Border and Immigration Agency focused resources on deporting foreign national prisoners reaching the end of their sentences. Total removals over the period reached 32,200, including 2,500 prisoners. The Home Office said it hoped to speed up deportations by increasing the capacity of the immigration detention centres by 60%.

Donna Covey of the Refugee Council said it was vital that the integrity of the asylum appeals process was maintained.
"One in five appeals are successful - this clearly shows that appeals provide a vital safety net," she said. We must ensure that the process is of the highest quality and that it is subject to effective judicial scrutiny." She added: "If the low numbers of asylum seekers to the UK were the result of the world becoming a safer, more peaceful place, then we would have something to celebrate. As it is, we have real concerns that people who need our help and protection are not able to get here to access it. We need to ensure that our borders remain open to refugees who are in fear for their lives."

The consultation paper Immigration appeals: Fair decisions, faster justice can be downloaded.
 

Consultation responses may be sent electronically to the consultation response mailbox appeals@homeoffice.gsi.gov.uk  Please include the words 'consultation response' in the subject title.
Or you can post your response to:
Andrew Elliot
Immigration appeals consultation
UK Border Agency
1st Floor Seacole
2 Marsham Street
London SW1P 4DF
Consultation closing date is 16 October 2008.
If you want your name kept confidential you must say so clearly.

Asylum statistics 2007 http://www.homeoffice.gov.uk/rds/pdfs08/hosb1108.pdf

edited from
http://www.guardian.co.uk/politics/2008/aug/22/immigrationpolicy.immigration
with details from the consultation document and asylum statistics