Illegal is the detention committed in the absence of the listed grounds for its application or in violation of the procedural order (for example, without drawing up a protocol of detention). The corpus delicti is formal. The crime is considered completed from the moment of illegal detention.
Competent persons and citizens for their illegal or unjustified detention or abuse of authority during detention are subject to liability established by law. According to Article 234 of the Criminal Code of Uzbekistan, knowingly illegal detention can be punished with imprisonment of up to 1 year.
The clients of the REActors were detained in the evening in Tashkent, in the park of Babur. They walked, and later sat down on a bench. After some time, a representative of the Milliy Guard (the National Guard of the country) approached them and said that he had been watching them for a long time and, in his opinion, they were behaving very suspiciously. After that, he called three more employees of this unit. Then the clients began to be interrogated, threatened with insulting words that there are cameras everywhere and they recorded everything. That now the police will be called and the detainees will be handed over to them. The clients didn’t mind. Representatives of the internal organs arrived, they were taken to the district office. There, two representatives of the police organized an interrogation, photographed and fingerprinted, and released them three hours later.
Clients were consulted on human rights. They do not mind making a statement if law enforcement officers start calling them again on this issue. At the moment, contact with them is maintained.
In addition to interrupting therapy, the resumption of treatment also poses a threat to human health, as resistance (virus resistance) to treatment can develop in the body. It can also lead to side effects and psychological complications.
During the client’s treatment at the Specialized Infectious Diseases Hospital, namely consultations about his adherence, a problem was identified. The low adherence of a person was caused by the fact that law enforcement officials deprived him of the right to take ART for the period of his detention for 15 days. These cases were repeated more than once, which over time caused a deterioration in health and an increase in viral load.
The reason for the client’s arrest was his own sister, with whom they live in their parent’s apartment, conflicts occur between them with corresponding consequences.
The person received counseling on the treatment of HIV, the concomitant disease of hepatitis C, as well as on the rights of PLHIV, their assertion and obtaining disability due to illness. Then he was redirected to consult a lawyer to resolve legal issues and solve life situations.
In situations of refusal of medical care, be sure to ask for a written document with the conclusion (refusal) of the doctor, head of the department based on the results of the appeal. Further, you should immediately contact the head physician in order to minimize the time for a possible solution to the problem. You need to try to document all actions in a medical institution, so that later there will be evidence to defend your rights in higher authorities.
During the course of treatment in a specialized infectious diseases hospital, the client told the REACtor about his problem. He said that in addition to HIV, he has an incurable disease called lupus, which must be treated so that there are no complications. At his place of residence, he took the necessary documents and went to Tashkent, to the dermatovenerological hospital. There, during registration, they found out that he had HIV infection and refused, referring to the fact that they did not have a place and that he needed to be treated elsewhere, at his place of residence in the region.
During the consultation with the REACtor, the client received the necessary information on the issues of HIV treatment and prevention, as well as on the rights of PLHIV, and was further referred for consultation with a lawyer in order to investigate this case. He went to the hospital again, with a referral, already informed by the lawyer how to defend his rights. And as soon as they wanted to refuse again, he began to do it. The client informed that in case of repeated refusal of treatment, he would apply directly to the Ministry of Health with already prepared complaint documents. The medical staff got scared, and the client was put on treatment in turn.
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.”
Ganna Dovbakh
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.”
Infection with HIV infection through the blood (parenteral route of transmission) occurs when infected blood enters the body – directly into the bloodstream, skin damage and mucous membranes, in contact with blood and other fluids, tissues and organs of the body.
The client turned to REACtor during her treatment in a specialized infectious diseases hospital. She said that in December was a car accident, where she received injuries that require surgery and a blood transfusion. After treatment and rehabilitation, the woman was discharged home. Six months later, her health began to deteriorate. The client went to the doctors, underwent medical examinations, but they did not give results. Then she was offered to take a blood test for HIV and as a result the test was positive. The woman was in shock – she is a married woman, has children, had no other relationship. When interviewed by an epidemiologist about whether she had any medical manipulations or operations, the client replied that she had an accident and received a blood transfusion. After that, the woman was registered and began her treatment.
The client received the necessary advice regarding her health and HIV treatment, further on the rights of PLHIV, consulted a psychologist and was referred to a lawyer. The lawyer, having studied the whole situation, offered to help draw up an application and file a lawsuit against the hospital in which the operation was made. But alas, the client refused, because she did not want anyone else to know about her HIV status and this would bring problems to her family and loved ones.
Disclosure of medical confidentiality is the disclosure of such information to at least one person (with the exception of the patient himself, his legal representatives or the medical staff involved in the treatment of this patient). It does not matter who they became known to: a friend, a colleague of the victim, or strangers.
While undergoing treatment in a specialized infectious diseases hospital, a client turned to the REACtor. During counseling, he told his story. Being at his place of residence, one day a patronage nurse asked him where the person lives and named the client’s full name. The man did not show that he knew who it was and that he lived there. Then he asked why the nurse was looking for a person. The woman replied that he hasAIDS and he needed to urgently come to the district clinic for a medical examination and a note from an infectious disease doctor.
After the client was consulted at the REActor on the prevention and treatment of HIV, as well as on the rights of PLHIV, in order to further resolve the problem of disclosing his status, he was referred to a lawyer for advice and step-by-step actions. Upon returning home, he turned to the head physician of the district clinic about the situation that had happened to him and this nurse. The head doctor asked for forgiveness for his employee, and the nurse herself repented and apologized for her misconduct. Since other outsiders were not witnesses to this event, the client forgave her, but with a warning that if such an action is repeated, he will demand proceedings and go to court.
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.
Lawyer’s comments
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.
