Southern Europe

A draft HIV-specific criminal law mandating disclosure to spouses following an HIV-positive diagnosis was proposed in 2004, but it is unclear whether this law has ever been enacted.

Cyprus has prosecuted one person for HIV transmission, in 1997, under a law intended to prevent the spread of typhoid, cholera and venereal disease. The complainant was an English woman who successfully campaigned for charges to be brought against a Cypriot fisherman, who was sentenced to 15 months in prison. He was freed by a presidential pardon after serving one-third of his sentence.¹

Italy has been prosecuting HIV exposure and transmission since at least 1999 using existing public health, assault, sexual assault and homicide laws. Judgments have established that non-disclosure before unprotected sex is considered to be dolus eventualis (indirect intention) – which is more or less equivalent to the standard of culpability characterised as ‘recklessness’ in common-law systems.

Data are difficult to confirm, but there have been at least ten prosecutions and convictions, all but one for heterosexual sex, and all but one involving Italian nationals. Possibly the world’s first-ever homicide conviction for sexual HIV transmission took place in Italy in 2000, when an Italian man was found guilty of culpable homicide and sentenced to 14 years in prison for infecting his wife, who subsequently died. (Mentioned, but not highlighted, on the Global Criminalisation Scan website.) In 2009, Italy’s highest court ruled that a previous decision by the Vatican Court – to nullify an 18-year marriage because the husband had used condoms to prevent passing on a chronic illness that can be transmitted via sex – could stand, and that a marriage without the purpose of  begetting children is not legal, even if there are health concerns, such as HIV, that require protected sex.²

In March 2010 a Thessaloniki court found a 42-year-old man guilty of "bodily injury through serial negligence" and "violation of measures imposed by the authority responsible for the spread of disease from deliberate negligence" because he unknowingly donated HIV-positive blood that ultimately resulted in the infection of several blood recipients.³ The court stated that the man – who was undiagnosed at the time – was culpable because he had not disclosed that he had previously had sex with a sex worker. He was sentenced to 33 months’ imprisonment, suspended for three years. There is no information regarding laws or prosecutions for sexual HIV exposure or transmission.

In 2005, Malta added HIV to the list of conditions which could be prosecuted under its 2002 Criminal Code (Section 244A) for either “knowingly” or “carelessly” transmitting a disease (hepatitis B and C and Tuberculosis are also on the list).⁴ The same year a Nigerian national was found guilty of "knowingly" infecting three women and imprisoned for five years. The Court of Appeal reversed the decision in 2007 stating that the women were probably infected prior to "knowing" HIV transmission becoming a crime. A second case is currently before the courts. (See http://criminalhivtransmission.blogspot.com for the latest on this case.)

Several existing laws in the Penal Code can be applied to HIV-transmission offences. At least two prosecutions related to HIV transmission through injecting-drug use have taken place, although the outcomes are unknown.