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Three reasons led on Wednesday the Constitutional Court to overturn Article 411 of Law No. 599 of 2000 criminalizing the spread of the acquired immunodeficiency virus, HIV, the origin of AIDS and the hepatitis B.
A first reason is that this standard was not a necessary and proportional measure. The second stigmatized a population. And the third is that there is another rule in the Penal Code that already characterizes the spread of epidemics.
The Court's decision accepts several arguments of the plaintiff. According to this, the norm violated the right to equality and restricted the free development of personality, especially badual freedom.
The rule states that there would be a prison sentence of 6 to 12 years for those who, knowing themselves to be HIV-infected or with hepatitis B, "adopt practices by which they can contaminate another personor give blood, sperm, organs or general anatomical components ".
According to the trial, this sanctioned the fact that a person living with these diseases had bad and made it a crime regardless of whether that person took preventive measures that made it unlikely to transmit diseases such as antiretroviral therapy. .
The plaintiff argued that while the purpose of this measure was to protect public health, this did not justify prohibiting a group of the population from freely expressing their baduality, and emphasized that that it would not hurt to create consensual relationships in which steps would be taken to prevent infections. .
On the violation of equality, The lawsuit argued that the article referred only to people living with HIV or hepatitis B and did not penalize them, any more than people with potentially contagious and sensitive diseases.
Other voices
As part of the debate on this standard, the Court has received 15 concepts from different organizations, ministries, universities and even the Constitutional Court of South Africa – against – to feed its considerations. And there were almost as many arguments for and against.
The Colombian AIDS League supported this request, saying that the law violated human rights.He added that laws that criminalize HIV exposure leave the entire burden of prevention to those who live with him and said that the real challenges are more education and better access to counseling services. medical and screening.
The concept sent by the Ministry of Justice gave the plaintiff the reason why the rule was discriminatory because it only targeted people living with HIV – who were also recognized as subjects of special constitutional protection – or hepatitis B. He also argued that this was not the case. He warned that the standard was aimed at people with both diseases and not others who are aware of the existence of different communicable diseases.
However, faced with the restriction of badual freedom, the Ministry of Justice has held that: "the rule" does not violate the right to free development of the personality, but is limited to establishing the penal consequences that its abusive and harmful exercise entails the rights of others and the community ".
On the contrary, the Ministry of Health stated that the requested standard did not violate the right to equality or the free development of the personality and asked to leave it as it is.
The Attorney General agreed with the complainant that the law punished the fact of having bad even in the absence of transmission of the disease, which, according to the public prosecutor, is false. For the Attorney General's office, the standard was clear: in order for the offense to be configured, there must be an intent to cause harm by implementing practices that could lead to contagion. The public prosecutor asked the Court to declare itself inhibited.
Justice
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