1. Knowingly putting another person at risk of contracting HIV infection -
shall be punishable by restriction of freedom for a term of up to three years, or forced labor for a term of up to one year, or arrest for a term of up to six months, or imprisonment for a term of up to one year.
2. Infection of another person with HIV infection by a person who knew about the presence of this disease -
is punishable by imprisonment for a term of up to five years.
3. The act provided for in part two of this article, committed in relation to two or more persons or in relation to a minor, -
shall be punishable by imprisonment for a term of up to eight years with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to ten years.
4. Infecting another person with HIV infection as a result of improper performance by a person of his professional duties -
shall be punishable by forced labor for a term of up to five years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it, or imprisonment for a term of up to five years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.
Note. A person who has committed the acts provided for in parts one or two of this article is exempt from criminal liability if another person, placed at risk of infection or infected with HIV infection, was promptly warned about the presence of this disease in the first and voluntarily agreed to commit actions that created danger of infection.
- Article 121. Infection with a venereal disease
- Article 123. Illegal abortion
Commentary to Art. 122 of the Criminal Code of the Russian Federation
The commented article establishes liability for two independent elements of crime: a) leaving one at risk of contracting HIV infection (part 1) and b) contracting HIV infection (parts 2 - 4).
The object of these crimes are social relations that arise regarding the realization by a person of the natural right to life and health and ensuring the security of these social benefits. This understanding of the object is due to the specifics of HIV infection. In accordance with Federal Law No. 38-FZ of March 30, 1995 “On preventing the spread of the disease caused by the human immunodeficiency virus in the Russian Federation,” HIV infection is defined as a chronic disease caused by the human immunodeficiency virus (Article 1). It is a slowly progressive infectious disease that occurs as a result of infection with the human immunodeficiency virus, which attacks the immune system, resulting in the body becoming highly susceptible to opportunistic infections and tumors, which ultimately lead to the death of the patient.
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According to the preamble to the Federal Law of March 30, 1995 N 38-FZ “On preventing the spread of the disease caused by the human immunodeficiency virus in the Russian Federation,” HIV infection is a disease that is becoming widespread throughout the world, causing severe socio-economic and demographic consequences for the Russian Federation, poses a threat to personal, public, state security, as well as a threat to the existence of humanity, necessitates the protection of the rights and legitimate interests of the population.
NW RF. 1995. N 14. Art. 1212.
When there is a risk of contracting HIV infection, there is a danger of harm to relationships that ensure the safety of life or health; When HIV infection occurs, real harm is done to these relationships.
The objective side of putting another person at risk of contracting HIV infection is expressed by an act in the form of an action or inaction, which in given specific conditions can lead to infection of another person, and if this infection does not occur, then only due to random circumstances or measures taken by the victim or third parties persons. The possibility of committing a crime through inaction is explained by the fact that a number of persons are required by regulatory legal acts not to create a threat of HIV infection. In particular, any person who is a carrier of HIV, in accordance with Art. 13 of the Federal Law of March 30, 1995 N 38-FZ “On preventing the spread of the disease caused by the human immunodeficiency virus in the Russian Federation”, an employee of a medical institution must be notified of the need to take precautions to prevent the spread of the disease and of criminal liability for the spread of the disease. at risk and for infecting another person with HIV infection. In accordance with the Rules for conducting compulsory medical examination for the detection of human immunodeficiency virus (HIV infection), approved by Decree of the Government of the Russian Federation of October 13, 1995 N 1017, employees of certain professions, industries, enterprises, institutions and organizations, the list of which is approved by the Government of the Russian Federation, if they are diagnosed with HIV infection, they are subject, in accordance with the legislation of the Russian Federation, to transfer to another job that excludes conditions for the spread of HIV infection. According to Art. 68 Fundamentals of the legislation of the Russian Federation on the protection of the health of citizens of July 22, 1993 N 5487-1 medical and pharmaceutical workers who have committed violations of the rights of citizens in the field of health care due to dishonest performance of their professional duties are liable for harm caused to health, in accordance with current legislation . Failure to fulfill the obligations prescribed by regulations to comply with precautionary rules in order to prevent the spread of HIV infection can be committed both through action and through inaction.
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NW RF. 1995. N 43. Art. 4070.
Gazette of the SND of the Russian Federation and the Armed Forces of the Russian Federation. 1993. N 33. Art. 1318.
The methods of exposure may vary and depend on the mechanism of transmission of HIV infection. Science has established that vector-borne (through bloodsuckers), household (through air, drinking water, food, etc.) transmission of the virus is practically impossible. The leading role in contracting HIV infection is through the contact mechanism of transmission of the pathogen, which can be sexual (the most common) and blood contact (through infected blood, for example, during the transfusion of blood and some of its preparations, during the reuse of infected medical instruments, including syringes and needles, etc.). Another known medical practice is the vertical mechanism of pathogen transmission; for example, it is possible for a healthy child to become infected through the breast milk of a sick mother. Each of them involves its own methods of putting one at risk of infection, which do not affect the qualification of the act (this could be, in particular, sexual intercourse, other actions of a sexual nature, injections, etc.).
It seems that, despite the possibility of transplacental (through the body of a pregnant woman) route of HIV transmission, it cannot be brought to criminal liability under Art. 122 of the Criminal Code of the Russian Federation, an infected woman who becomes pregnant or gives birth to a child, since current legislation does not provide for HIV infection as an indication for performing an artificial abortion operation for medical or social reasons.
The elements of the crime in question are formal; it is considered completed from the moment the victim is placed in danger of contracting HIV infection.
The subjective side of knowingly putting another person at risk of contracting HIV infection is characterized by guilt in the form of intent. By committing an act, the subject is aware of the social danger of putting another person at risk of contracting HIV infection. The deliberate nature of guilt is emphasized by the legislator, pointing out the knowledge of placing in danger of infection. Knowingly means that a person deliberately violates the precautionary rules, knowing for certain about the possibility of infection of the victim. In a situation where the subject observes all precautions, liability under Part 1 of Art. 122 of the Criminal Code of the Russian Federation is excluded.
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Science has expressed the opinion that the subjective side of deliberately putting one at risk of contracting HIV infection is characterized by indirect intent or criminal frivolity. See: Commentary on the Criminal Code of the Russian Federation / Under general. ed. Yu.I. Skuratova, V.M. Lebedeva. M., 1996. P. 277 (author - Professor E.F. Pobegailo).
The subject of the crime provided for in Part 1 of Art. 122 of the Criminal Code of the Russian Federation is a sane individual who has reached the age of sixteen. They can be either an HIV-infected person or a healthy person, for example, an employee of a medical institution. The subject of the crime is common.
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Science has expressed the opinion that the subject of the crime provided for in Part 1 of Art. 122 of the Criminal Code of the Russian Federation, are only HIV-infected and HIV-infected patients. See: Criminal Law Course. Special part: Textbook. for universities / Ed. G.N. Borzenkova, V.S. Komissarova. M., 2002. T. 3. P. 197 (author - associate professor V.I. Zubkova).
The objective side of infecting another person with HIV infection (parts 2 - 4 of Article 122 of the Criminal Code of the Russian Federation) is characterized by an act in the form of action or inaction, a consequence in the form of infection of the victim and a causal relationship between them. These crimes are material and are completed from the moment the consequences occur in the form of infecting another person with HIV infection. Infection in this case means infection of the victim, regardless of how long the incubation period of the disease lasts and when the disease caused by HIV occurs.
Methods of infection may vary and depend on the mechanism of transmission; they largely coincide with ways of putting people at risk of contracting HIV infection.
An obligatory element of the objective side is a causal connection. If it cannot be established whether the victim became infected precisely from the actions or inaction of the accused, the latter may be held accountable under Part 1 of Art. 122 of the Criminal Code of the Russian Federation for knowingly putting in danger of contracting HIV infection.
The subjective side of the crimes provided for in Part 2, Part 3 of Art. 122 of the Criminal Code of the Russian Federation, is characterized by guilt in the form of direct or indirect intent, as well as negligence in the form of criminal frivolity.
The subjective side of the crime provided for in Part 4 of Art. 122 of the Criminal Code of the Russian Federation, is characterized by guilt in the form of direct or indirect intent or negligence in the form of frivolity or negligence.
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At the same time, the most widespread opinion in science is that this crime can only be committed through negligence. Allowing a deliberate form in the composition provided for in Part 4 of Art. 122 of the Criminal Code of the Russian Federation, we proceed from the interpretation of Part 2 of Art. 24 of the Criminal Code of the Russian Federation, and also from the fact that the rule on liability for contracting HIV infection is special in relation to the rules on liability for causing harm to health.
The subject of crimes provided for in Part 2, Part 3 of Art. 122 of the Criminal Code of the Russian Federation is a sane individual who has reached the age of sixteen and is aware of the presence of HIV infection. The subject is special.
The subject of the crime provided for in Part 4 of Art. 122 of the Criminal Code of the Russian Federation, - special; a person obliged by virtue of his profession or position to comply with certain professional safety standards.
In Part 3 of Art. 122 of the Criminal Code of the Russian Federation contains a qualified element of infecting another person with HIV infection by a person who knew about the presence of this disease. Signs that increase liability are the special characteristics of the victim: the commission of a crime against two or more persons or the commission of a crime against a known minor.
In the note to the commented article, the law provides for a special non-rehabilitative basis for exemption from criminal liability for committing crimes under Parts 1 and 2 of Art. 122 of the Criminal Code of the Russian Federation. The conditions for exemption from liability are:
a) special characteristics of the subject of the crime, which is only an HIV-infected person; exemption from liability of healthy persons (employees of medical institutions) on the basis of the note in question is impossible;
b) timely, i.e. committed before the perpetrator’s actions, warning the victim about the presence of the perpetrator’s infection and the danger of contracting HIV infection;
c) voluntary (i.e., consciously and explicitly expressed without coercion, violence or deception) consent of the victim to commit actions that create a risk of contracting HIV infection.
According to the literal interpretation of the note, exemption from criminal liability in the presence of the specified conditions is the responsibility of the law enforcement officer. A person is exempt from liability on the basis of this norm, regardless of what the relationship between the perpetrator and the victim is after the commission of the crime (friendly or conflicting).
If infection occurs
In this case, a person who is a carrier of the HIV virus will be prosecuted under Article 122 of the Criminal Code of the Russian Federation for his crime, but only if the infected person knew in advance that he was sick with this dangerous disease. But how can you find out that a citizen deliberately infected another person with this disease? After all, the attacker can say that he did not know that he had HIV.
In this case, everything is quite simple. After all, people who know that they are sick with such a fatal disease are specially registered with an infectious disease specialist in the hospital and take therapy to maintain their health. Therefore, it will not be difficult for law enforcement officers to establish this fact.
Some attackers deliberately infect others with a deadly virus, and then admit to it. The punishment in this case can be up to five years in isolation from society.
Judicial practice under Article 122 of the Criminal Code of the Russian Federation
Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 16, 2017 N 15
19. Administrative supervision in relation to an adult who is released or released from prison and has an unexpunged or unexpunged conviction for committing an intentional crime against a minor can be established only if the specified sign is provided as a sign of a crime (simple or qualified) in the relevant norm of the criminal law (for example, paragraph “d” of part 2 of article 117, part 2 of article 121, part 3 of article 122, paragraph “b” of part 2 of article 127.1, articles 150 - 151.1, 156 of the Criminal Code of the Russian Federation).
Resolution of the Supreme Court of the Russian Federation dated November 29, 2019 N 48-UD19-19
convicted under Part 1 of Art. 228 of the Criminal Code of the Russian Federation to 1 year of imprisonment; according to Part 2 of Art. 228 to 3 years 6 months imprisonment; for each of the two crimes provided for in Part 2 of Art. 167 of the Criminal Code of the Russian Federation, to 2 years in prison; according to clause “a”, part 3, art. 131 to 8 years 6 months imprisonment; according to clause “a”, part 3, art. 132 of the Criminal Code of the Russian Federation to 8 years in prison, under Part 1 of Art. 122 of the Criminal Code of the Russian Federation to 9 months in prison.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated June 29, 2017 N 72-APU17-12sp
convicted under Part 2 of Art. 122 of the Criminal Code of the Russian Federation to two years in prison; according to paragraph “c” of Part 4 of Art. 162 of the Criminal Code of the Russian Federation to eleven years in prison; according to paragraphs “c”, “g”, “h”, part 2 of Art. 105 of the Criminal Code of the Russian Federation to fifteen years in prison; according to Part 3 of Art. - part 2 art. 167 of the Criminal Code of the Russian Federation to three years in prison.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated December 26, 2017 N 5-APU17-124
As follows from the presented material, within the framework of criminal prosecution, the actions of Karavaev A.A. were qualified under Part 3 of Art. 157 of the Criminal Code of the Republic of Belarus. These actions are punishable under Russian criminal law and correspond to Part 3 of Art. 122 of the Criminal Code of the Russian Federation, the sanction of which provides for punishment in the form of imprisonment for a term of over 1 year.
Cassation ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated December 27, 2017 N 127-UDp17-19
The Presidium of the Supreme Court of the Republic of Crimea, taking into account the provisions of this Law, amended the verdict and the appeal ruling by reclassifying the actions of E.V. Karelin. and Karelina A.E. from paragraph “d”, part 2, art. 112 of the Criminal Code of the Russian Federation on Part 1 of Art. 112 of the Criminal Code of the Russian Federation, reasonably indicating that in accordance with the Criminal Code of Ukraine, which was in force in the territory of Crimea at the time the convicted committed the crime, the actions of the Karelins would be subject to qualification under Part 1 of Art. 122 of the Criminal Code of Ukraine - intentional infliction of moderate bodily harm, which did not provide for such a qualifying feature as the commission of a crime by a group of persons.
How should it be understood?
If we turn to the norm fixed in part one of Art. 122 of the Criminal Code of the Russian Federation, you can immediately see that it only deals with intentional infection with HIV. Here it must be pointed out that in this case the person infected with the deadly virus also knows that he has this disease. Nevertheless, the latter consciously commits actions that put another person at risk of contracting HIV. For example, performing sexual intercourse without a condom or using the same instrument for injection (assuming that nothing will happen and a healthy citizen will not catch a fatal infection).
At what point is the crime considered over?
In order to hold the perpetrator accountable for contracting HIV, the act must end. Art. 122 suggests two points for this:
- According to Part 1 – from the moment the danger of infection arose. In this case, any action that could result in the transmission of the virus to another person (blood transfusion, unprotected sex, sharing a syringe, tattoo needle, etc.) will be considered a danger. To qualify for this part, infection itself is not required - it is enough that the possibility of infection is real.
- For other parts - from the moment the infection occurred.
Subject and object of the crime
Separately, it is necessary to note the subject of the criminal act.
In this case, it can be not only an infected citizen who is already 16 years old, but also an official (special subject) who, due to dishonest performance of his duties, allowed a completely healthy person to become infected with HIV.
The subjective side is characterized by intent and carelessness, negligence. The latter applies to those persons who, through improper performance of their professional duties, allowed healthy people to become infected with a deadly virus.
The objective side of the act will be a deliberate exposure to the risk of contracting HIV or infecting a person with this disease.
The object, as mentioned earlier, is the safety of human life and health.
A comment
Sanctions for infecting healthy people with such a dangerous disease as HIV are prescribed in Article 122 of the Criminal Code of the Russian Federation. It’s impossible to disagree with the 2021 comments here. After all, infected people, who know in advance about their illness, are obliged to exercise caution during close contacts with citizens who are not carriers of this virus. In addition, HIV-positive people must warn their partners in advance that they have such a fatal disease. Otherwise, the latter must be held accountable for their actions to the fullest extent of the current law.
On practice
Anything can happen. In addition, law enforcement officers are not always able to prove that a person was infected with HIV within the walls of a medical institution through a blood transfusion or from a specific citizen who is a carrier of the virus. Thus, judicial practice under Art. 122 of the Criminal Code of the Russian Federation is quite diverse.
In certain situations, citizens live with one partner for a long time, and then learn about the latter’s terrible diagnosis. Who will be to blame here? Of course, the partner who became infected with HIV and transmitted the virus sexually to another person. But it can be very difficult to prove the fact that this particular person did this, especially in cases where people used drugs together for a long time and led an immoral lifestyle.
Currently, the danger of HIV infection awaits people almost everywhere. For example, in beauty salons, if a master does a manicure with unprocessed tools or tattoos a person’s body. Therefore, there is risk everywhere.
But the worst thing is that in practice there are also cases where people were infected with HIV in medical institutions. If a hospital employee took blood with non-sterile instruments, and especially with a syringe that was already in use, then he may face liability under Part 4 of Article 122 of the Criminal Code of the Russian Federation. Practice also shows that HIV infection often occurs at stations where blood transfusions are carried out. Because not all health workers treat their duties properly.
