Last year alone, 70 cases were registered in Uzbekistan, in which the victim is a man who has sex with man or is trans*. Tiberius project staff helped the REAct team to document cases of rights violations in the LGBTQ community. Unfortunately, statistics show that in most cases, violators are extremely difficult to bring to justice, or they are not identified as such, as clients refuse to develop situations, fearing publicity and further discrimination.
The client (MSM) and his friend (sexual partner) lived together in a rented apartment. Neighbors, guessing about their relationship and their non-traditional orientation, at any opportunity insulted, humiliated and dishonored men, demanding that they immediately move out of the apartment, otherwise they would turn to the police, because they do not want to live in the same house and have their children communicate with “such” as they are. The client and his friend had no choice but to find another place of residence as soon as possible and move out, because the neighbors didn’t let them pass at all.
The client and his friend were asked to write a statement about the neighbors who insulted them. They refused, fearing publicity and persecution by law enforcement agencies. It was suggested to talk to the neighbors and explain about the responsibility for violation of human rights. But they also refused, preferring to move out of there as soon as possible and not get involved.
Alas, the number of cases of abuse of power by state executive bodies still remains huge. Especially in relation to vulnerable groups of the population. These situations, in the main, go unpunished, due to the fact that clients fear for their lives and revenge from those who should… protect them.
The client (PWID, former prisoner) was at home when the criminal investigation officers came to him and, without explanation, he was taken in handcuffs to the district department of internal affairs. There he was beaten and asked about some kind of gold chain and money that he allegedly took from a neighbor. It turned out that last night someone attacked his neighbor in the street and took away all the money and the gold chain. Due to being a PWID client and ex-prisoner, he immediately fell under suspicion. The man was kept at the department for two days, periodically “knocking out” evidence from him, and then, without explaining anything, he was released. It turned out that he was lucky, because the real robber was caught.
The man was consulted on human rights issues and was asked to write a complaint against law enforcement officers for unlawful arrest and beating. However, he refused to consult with a professional lawyer and did not want to write a statement, because he does not trust and was afraid of persecution for drug use by the authorities.
On November 17-18, 2022, Tbilisi (Georgia) hosted the Fourth Forum of Judges of the EECA Region on HIV, Human Rights and the Law, organized by the country’s High School of Justice, together with UNDP, WHO, UNAIDS and other partners. The purpose of this event was to discuss and analyze key urgent factors, namely:
– study of the latest scientific, medical and epidemiological data;
– access to and awareness of people living with HIV and other key populations for judicial and legislative responses at the national, regional and international levels;
– problems and experience of their solution in the field of protecting the rights of people living with HIV, as well as other vulnerable groups.
Among the invited participants and speakers are judges, representatives of the National Institute of Justice, coordinators of the UNDP country office on HIV, health and development from selected EECA countries, including Belarus, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Tajikistan, Ukraine, Uzbekistan.
The session of the second day caused a special resonance among the Forum audience: “HIV and human rights. Access to Justice“. It was there that Anna Dovbakh, Executive Director of the Eurasian Harm Reduction Association, presented cases of violation of rights and freedoms collected by the REAct tool on behalf of the communities of the EECA region. The presentation “Access of people living with HIV, affected by TB and key populations to justice, including in context of armed conflicts and other emergencies” fully demonstrates the egregious situation in the region with legal mechanisms. According to the statistics that was managed to record for 2020-2022, in 5 countries of our region, only a small part of the recorded cases reach the court, and every third case is associated with violations of rights by law enforcement agencies.
“With my speech, I wanted to emphasize the special conditions in which our communities find themselves when faced with the legal system. And alas, they are not in our favor,” Anna says. “People do not want to go to court because they simply do not trust the state system. Self-stigma and discrimination also do not help to bring the matter to the end – it is easier for a person to remain silent than to defend his own by right.”
Among the main barriers to access to justice were:
● Particularly vulnerable position of women from risk groups.According to the World Health Organization, one in three women experience intimate partner violence. Women who use drugs are five to twenty-four times more likely to experience gender-based violence than women in general. Only 40 percent of women survivors of violence seek help and only 10 go to the police. Support services for women in situations of violence should take into account the experience of each woman, be accepting and non-discriminatory.
● Drug use as an aggravating factor – if a person from the community is under suspicion, often the authorities put pressure on him, blackmail, dictation, discrimination and falsification;
● Inefficiency of state-guaranteed legal aid – there are no lawyers or they are not at all interested in their case. Or they demand money for their services;
● Application of criminalizing laws – if a person knows that he can be sued for illness, sexual orientation, use of psychoactive substances, he will not go to court as a system to protect his rights, because he is sure the law is not on his side.
“And this is just the tip of the iceberg, because it turns out that REAct clients are the defendants, not the plaintiffs.” Anna adds. “What should be implemented in the near future? Definitely, the maximum introduction and expansion of assistance on the principle of “peer to peer”: documentation by paralegals of cases of human rights violations, analysis of systemic legal trends, development of an advocacy base, which will lead to improved access to medical and social services. I believe that raising awareness, decriminalizing HIV and reducing the risk level in criminal law will lead to building trust in the state bodies of our region on the part of our key groups.”
Nowadays, North Macedonia is a country with low prevalence and concentrated epidemic of HIV. However, the number of cases is increasing, the percentage of people, living with HIV who are aware of their status, is around 60 %, which is way below the goal set by the United Nations. There is still no research on stigma index, but if one is to evaluate the media reporting on the matter of HIV, we can conclude that there is a high level of stigma and discrimination as well. What to do if your status has been revealed and should you react or face it alone in silence?
Tittle-tattle with a social impact
A person employed in one of the university clinics in the country did an HIV test in the laboratory, where he got a positive result. The test result of the HIV test must be confirmed and assessed by a doctor, however very shortly after that, he realized that the information about his HIV status has been shared with most of his colleagues. It was spread around the clinic as a gossip and violated his right to privacy. What’s more, positive results from viral markers had already been entered into the medical system, although, according to Protocol until confirmatory tests were done at the University Clinic for Infectious Diseases and Febrile Conditions/Institute of Public Health, the results cannot be considered confirmed and no diagnosis must be entered in the patient’s medical record.
Flagrant violation of privacy
Some of his colleagues immediately changed their attitude towards him, openly letting him know that they no longer wanted to work with him, because they were afraid that he would transmit the virus to them somehow and that he was a danger. He faced rejection from certain colleagues, humiliation and avoidance. He was extremely surprised that as medical staff, his colleagues were not aware of the way of the HIV transmission. He immediately spoke openly with some of them and tried to explain that there is absolutely no way that it can be transmitted through air, touch, use on the same toilet, cutlery, equipment, etc. And that there really is no potential danger of them getting HIV just because they work in the same workplace, nor that there is any danger in relation to patients receiving health services from his side. His efforts were unsuccessful and certain colleagues continued to behave rudely and humiliatingly with the intention of forcing him to quit his job.
The patient’s rights were also violated in relation to the release of a professional secret, that is, even though he was an employee, he, as a patient, requested a health service: HIV testing within the Clinic, which violated his rights to health care and he faced discrimination as well. In his case, the results of the HIV test were shared with almost all of his colleagues, which is a flagrant violation of privacy and the duty of professional secrecy by the doctor who processed his HIV test data. And all this, because it is about the HIV (a type of health condition about which his colleagues apparently have no knowledge, only prejudices) they assumed that once he was HIV positive, he must be a homosexual as well.
Immediate REAction and positive outcome
The Association for the support of People Living with HIV “Stronger Together”, Skopje, heard about this case and decided to take a control on it. Its representatives prepared a letter, that was sent to the Director of the clinic, who was understanding and very professional. After, some of the colleagues were called to a meeting with him, where they were informed about all the aspects mentioned in the letter (rights of workers, the obligation of non-discrimination in the workspace and the modern aspects of the HIV, including the undetectability = untransmittable).
As a result of the letter and the director’s actions, after one month of returning to the work environment, the person reported no stigma and unequal treatment from colleagues and employers. The client still works in the university clinic.
1. Is a disclosure of status a crime in the North Macedonia? What punishment would people receive if the victim would go to the court?
– The Criminal Code does not contain a specific provision that would constitute disclosing an HIV-status a crime. However, depending on the person who have disclosed the status, that person can be charged for Abuse of personal data, pursuant to Article 149 of the Criminal Code, or Unauthorized disclosure of professional secret, pursuant to Article 150 of the Criminal Code. Depending on the circumstances and the crime, the punishment is either monetary,a prison sentence of one year or three years. The disclosure of personal data, specifically medical data, is also prohibited with the Law on protection of rights of patients.
2. What are restriction for people with HIV regarding professions regarding the North Macedonia legislation? Would this person be able to continue working in laboratory?
– There are no restrictions for people with HIV regarding professions in the Republic of North Macedonia. As a matter of fact, the Law on Labor Relations and the Law on Preventing and the Protection from Discrimination prohibits discrimination based on a person’s health condition. However, all candidates for work positions and employees must disclose health conditions that might prevent them or limit them in completing their work tasks. Although there are no cases so far regarding this provision and employees who are living with HIV, this provision might be misused by employers with respect to HIV-status of employees or potential employees. Notwithstanding that, it would be unproportioned invasion of privacy, and by default unlawful, for employers to use this provision and ask employees or future employees to disclose their status. Speaking about the continuation of work – yes, the client can continue working in the laboratory and still is.