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HIV INFECTED / TRANSMITTED PERSON'S RESPONSIBILITY IN TERMS OF CRIMINAL LAW

HIV INFECTED / TRANSMITTED PERSON'S RESPONSIBILITY IN TERMS OF CRIMINAL LAW

What is HIV / AIDS?

First of all, it should be noted that HIV (Human Immunodeficiency Virus) can settle in various tissues of the body as a result of birth, sexual contact, blood transfusion, and multiple uses of the same injection, and over time weaken the autonomous immune system of the person (causing the death of white blood cells). It is a disease that can lead to death as a result of exposure to the slightest infection. It is popularly known as AIDS. According to the data of the World Health Organization, approximately 37 million people are found to be HIV-positive up to date. But, unfortunately, the main reason for considering the consequences of this disease in legal terms is that there is no definitive treatment today. Therefore, with early diagnosis, the disease can be controlled but cannot be cured. 

In the light of all this information, this disease, which brings along some legal problems that we encounter during the normal course of life, has been examined from different perspectives worldwide, and legal inferences have been made.

HIV INFECTED / TRANSMITTED PERSON'S RESPONSIBILITY IN TERMS OF CRIMINAL LAW

In Turkey, the first AIDS case was identified in 1985. Since this date, the Ministry of Health has included AIDS disease within the scope of infectious epidemics. Therefore, with the awareness-raising activities of the World Health Organization, administrative regulations have been made for the first time. However, no new regulations were made in the continuation, and the circulars issued in addition to the existing regulations and the decisions of the Ministry were found satisfying.

Therefore, the legal legislation was insufficient and the deficiencies in the law were tried to be compensated with doctrinal views, Supreme Court decisions, and legal reasons.

The most important of the legal problems discussed in the doctrine are the factors affecting the transmission of HIV. Was the virus transmitted deliberately due to the result of the virus, or was it negligently predicted that the result would not occur?

In Italy, an HIV-infected perpetrator was caught and detained by the police while trying to sell heroin. However, when the perpetrator was wanted to be searched during his detention, the perpetrator acted with the awareness that he had AIDS, and spat bloody towards the police officer's eye. 

As a result of this incident, the police officer complained the police were also tested, and fortunately, the test was negative.

However, although the test was negative, the court stated that the perpetrator had committed this act knowingly, and willingly, and that he risked the consequences, and that the element of caste was formed, so the act was eventual intent; as stated in Article 21/2 of the TPC (Turkish Penal Code), the person did the act even though he predicted that the legal elements could occur in the concrete event as a result of his act. 

In the case of Italy, the court sentenced the perpetrator to deliberately attempted murder, stating that the perpetrator had acted with eventual intent as given in the definition and wanted to cause the death of the police officer. Therefore, the court took into account whether the perpetrator was aware of the risk factor that his behavior might pose, whether he had committed the act with his consent, and whether the possible outcome was accepted or not.

In our country, in a case that became a subject of the decision of the 1st Criminal Chamber of the Supreme Court of Appeals labeled as E.2002/3171, K.2002/3584, D.15.10.2002; the perpetrator who knows he infected with the HIV himself hides this situation and also does not fulfills his obligation to take precautions. The victim whom he married was infected with HIV and brought a criminal case together with the divorce case. The court focused on whether the perpetrator did this knowingly and voluntarily, as a result of his wife's exposure to HIV. In case of conscious negligence, the verdict was given in clause 87/2-a of the TPC is “in case the act of willful injury causes the person to enter into an incurable disease or vegetative state, a penal action will be applied for the aggravated state due to the result of the deliberate injury.” 

Evaluation

Criminal responsibility arises as a result of the evaluation of AIDS disease, which is evaluated within the scope of Article 87 of the Turkish Penal Code No. 5237, through possible intentional and deliberate negligence actions in terms of the perpetrator wanting or predicting the outcome of the crime to continue his activities in terms of criminal responsibility. Therefore, in my opinion, if the perpetrator does not know that he/she has AIDS, he/she will not have criminal liability. When we evaluate this situation in the constitutional framework since it has stated that individuals have the right to live, to protect and develop their spiritual and material existence (Constitution article 17), the guarantees of both parties regarding the protection of public freedom are regulated within the framework of the law. In this context, while an individual with HIV must take responsibility for this, society should be aware that AIDS patients have equal rights to live freely and without discrimination, as every individual.


Tags
HIV, AIDS
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