In an important decision of the Plenum of the Supreme Court on December 26, 2023, Tajikistan has marked a significant step towards decriminalization of HIV exposure and transmission in its pursuit of justice for people living with or affected by HIV.
Through a new resolution, the courts are asked to examine more objectively issues related to criminal liability for HIV exposure and transmission under Article 125 of the Criminal Code. The resolution obliges judicial practice to be based on new norms that take into account international standards and recommendations including the Undetectable = Untransmittable concept endorsed by UNAIDS and WHO which asserts that people who are living with HIV who are on antiretroviral treatment and have an undetectable viral load cannot transmit HIV.
Article 125 of the Criminal Code currently criminalizes HIV transmission and exposure with a penalty of up to two years’ imprisonment (Part 1), while transmission by someone aware of their status is penalized with two to five years’ imprisonment (Part 2), increased to five to ten years’ when committed against multiple people or a minor (Part 3).
In some cases, decisions were made solely based on a person’s HIV-positive status, criminalizing people living with HIV rather than ensuring access to HIV services, treatment and support.
More than 70% of people convicted under Article 125 have been women living with HIV. Women living with HIV may be subjected to domestic violence, stigma, and discrimination and do not seek justice in courts, due to the fear of accidental disclose of their HIV status and further criminal prosecution.
“This new resolution is encouraging because it allows for more fair interpretation of existing laws (which is very important) but it does not establish new laws or change the Criminal Code which still criminalizes HIV exposure and transmission. Therefore, it is important to continue advocacy to change the Criminal Code and decriminalize HIV transmission and exposure.” said Tahmina Haidarova, Head of the Network of Women Living with HIV in Tajikistan.
The new move towards a more just legal framework has been the result of collaborative efforts of the Supreme Court and civil society organizations, as well as long-term advocacy of UNAIDS, UNDP, and the Global Fund to fight AIDS, TB and Malaria that reflects a holistic and inclusive approach to addressing the complexities of HIV-related legal matters.
The consequences of a punitive approach, where law enforcement takes precedence over medical professionals, has contributed to the growth of the HIV epidemic in Tajikistan - the number of new HIV infections has increased by 20% over the past 10 years. The percentage of new HIV cases among women has also grown - from 31% in 2011 to 36% in 2022.
International partners, including UNAIDS, UNDP, and the Global Fund, echo the call to repeal laws criminalizing HIV. The negative impact of such legislation on HIV testing rates and adherence to treatment cannot be overstated. An evidence-based approach is crucial for fostering a healthier society.
“Tajikistan's move towards HIV decriminalization marks a positive step towards commitment to justice, inclusivity, and public health,” said Eamonn Murphy, UNAIDS Regional Director for Asia-Pacific and Eastern Europe and Central Asia. “This journey is guided by the principles of compassion, cooperation, and evidence-based policymaking. UNAIDS, together with partners, welcomes the efforts of the Supreme Court to reduce prosecution and humanize the judicial system. UNAIDS will continue to support the country in its journey to fulfil the human rights of all people living with HIV.”
