THE NATIONAL COUNCIL AGAINST AIDS AND SEXUALLY TRANMISSIBLE INFECTIONS (CNLS/STI) BILL N° 2005-012 PROTECTING THE PEOPLE WITH HIV / AIDS

The President of the Republic promulgated the law whose content follows

CHAPTER I OF THE GENERAL PROVISIONS

Article 1st. Within the meaning of the present law, one understand by

- AIDS test: research in blood and other biological environments of the antibodies and/or the antigens which translate the presence of the HIV in the organism of an apparently healthy individual,

- Discrimination: any distinction, restriction or exclusion based on the serologic statute of the people living with the HIV/AIDS, without this one being done in their legitimate interest.

- STI: Infections Sexually Transmissible.

- Opportunist Disease: any disease the appearance or aggravation of which is directly or indirectly related to the infection with HIV.

- Person affected: any person in direct relationship or alliance with another living with the HIV/AIDS.

- Person infected : any person living with the HIV, developing or not the disease.

- Professional of the sex :. aA?¯???¨??????ny person engage into the prostitution.

- PVVIH/AIDS: any: person living with the HIV/AIDS, developing or not the disease.

- Seropositivity: the state of a person carrying the HIV in blood. This seropositivity must be established by a serologic examination carried out according to standards' in force.

- AIDS: Syndrome of the Acquired Immunodéficience, disease caused by the infection with the HIV.

- Statute serologic: state of person whom has or not antibodies anti-HIV in its blood.

- Stigmatization: the fact of fustigating, of blaming, of degrading or of punishing a person living with the HIV/AIDS.

- HIV: Virus of the Human Immunodéficience, responsible for the AIDS.

Article 2. The present law has the aim of defining the protection measures of the people as regards the HIV/AIDS such as the people living with the HIV/AIDS, the people working in health sector, the people affected by the HIV/AIDS, the people vulnerable to the HIV and, in general, the family and the community.

Article 3. The provisions of this law apply to the PVVIH/AIDS, the healthy people, the publicly-owned establishments or private of health, to the Non Governmental Organizations (ONG) and associations of fight against the HIV/AIDS, to the families, the communities, the state like with the employers and various service providers.

Article 4. The protection measures cover the fields of the prevention, the AIDS test, the diagnosis, the assistance, research and the social relations.

CHAPTER II - OF MEASUREMENTS OF PUBLIC HEALTH

Article 5. The Institutions and the structures providing service as regards to the HIV/AIDS have the obligation to inform themselves regularly on the state of the scientific and technical training relating to the HIV/AIDS.

The service providers as regards to HIV/AIDS profit from formation, recycling and the suitable protection measures against any infection.

Article 6. The tests of the HIV can be done only with the free assent of the interested parties.

Exceptionally, and by decision of the judge, the tests can be realized by taking account of the important considerations concerning the private life and the personal freedom.

Article 7. In all the cases of AIDS test and diagnosis, advices must be provided before and after the test for acceptance by the infected person of its serologic statute and of its best psychosocial and medical assistance.

Article 8. Any person living with the HIV/AIDS is entitled to the respect of her private life.

No information on its state of seropositivity or its health can be revealed without its assent.

The medical authorities having data for epidemiologic ends are held with the strict compliance with the rules of confidentiality and protection of the private life.

However, it does not constitute an attack to the private life:

- the revelation of the state of seropositivity of a person made by the medical personnel within the framework of a legal procedure;

- the communication by the doctor of information on the health of a person living with the HIV/AIDS to those whom collaborate as professionals in the care and exposed to the contamination. In this case,A?¯???¨?????? information is given only on the elements strictly necessary to the medical acts carried out by the personnel;

- the communication by a doctor of the state of seropositivity of a minor or a major incompetent to his parents or to the people in charge with her guard, its supervision or its trusteeship.

Article 9. Any person infected by the HIV and knowing her serologic statute must inform her spouse like her possible sexual partners and her attending practitioners.

If she cannot do it herself, at her request or with her agreement, the attending practitioner or the competent people can deliver this information to its partners.

Article 10. The attending practitioner or the competent people can, according to the cases and according to the ethical considerations, inform the sexual partners of an HIV positive person, when the conditions enumerated hereafter are met:

- the infected person having received all the advices, refuses to change behavior;
- there is a real risk of transmission of HIV to (X) the partner (S).

CHAPTER III - OF PREVENTION, AIDS TEST AND OF THE DIAGNOSIS

Article 11. Within the framework of measures of prevention, the blood, the cells and the organs provided to medical ends must be free from any contamination by the HIV and other pathogenic agents transmitted by blood.

The list of the obligatory tests is fixed by decree of the minister in charge of health.
The establishments of public health and private must conform to the provisions of the subparagraph 1 of this article.

Article 12. The prevention of the HIV/AIDS must be integrated into the training schemes in all the institutions and centers of formal and/or informal teaching. A?¯???¨??????

Article 13. Any person knowing itself infected by the HIV must abstain from having not protected sexual relations.

She must moreover avoid any behavior likely to transmit the virus to others.

Article 14. The use of the male or female condoms is obligatory at the time of the sexual intercourse at the risk.

Article 15. The practitioner attending like any other person who, in the performance of their duty, detect the HIV must inform the person on the infectious and transmissible nature, on its modes and forms of transmission, like its right to receive suitable care.

In the event of presumption, the attending practitioner or any other person recommends a test of AIDS test to the interested person and gives him the same information contained in the preceding subparagraph.

Article 16. The minister in charge of health will determine by decree suitable measures to guarantee an effective prevention as well to the personnel of health as to the public which approach the PVVIH/AIDS.

These measures are related to: - to the guarantee of minimal measures of biosecurity in favor of the person of the health establishments and others, handling biological material of human origin;

- to the safety requirements concerning the transfusion of blood, blood components or blood products;

- to the hygiene and safety requirements applicable to the people and institution proceeding to interventions provoking damage of the skin such as the hairstyle, esthetic cares, acupuncture, tattooing, piercing and others.

Article 17. The detection and confirmation of an infection by the HIV are carried out in public and private laboratories meeting the standards of quality and good practices.

Article 18. The diagnosis of the AIDS is an act of the exercise of medicine. The tests aiming at diagnosing an infection by the HIV are practiced in the following cases :

- in the presence of epidemiologic antecedents relating it, without damage of the provisions of the chapter V of this law;
- in the event of clinical presumption of an infection by the HIV;
- at the request of the interested party;
- at the request of the father, the mother or the legal representative of the minor or the major incompetent;
- at the request of the judge.

Article 19. The result of the examination aiming at diagnosing an infection by the HIV must be communicated to the patient by the attending practitioner or, in default by a member of the personnel of health duly trained as regards to advices.

CHAPTER IV – OF CLINICAL RESEARCH

Article 20. Clinical research on the HIV/AIDS must obey ethical requirements of the profession in particular the relevancy, harmlessness and the methodological rigor.

The Decrees of the minister in charge of health determine the required skills of research on the HIV/AIDS and their methods of execution.

Article 21. No research or experimentation as regards the HIV/AIDS can be undertaken on a person without her enlightened assent and without it not drawing a medical benefit from it, The assent of the person who involves itself to clinical research must be collected before and in writing. In all the cases, the higher interest of the person who involves itself to research must prevail.

CHAPTER V - PROTECTION OF THE PVVIH/AIDS

Section 1 - Protection against the acts of discrimination and stigmatization

Article 22. People living with the HIV/AIDS enjoy all the rights attached to human dignity. Any breach or restriction on one of these rights because of the serologic statute of a person is prohibited.

Article 23. No one cannot be subjected to isolation, detention, or setting in quarantine because of its serologic statute. The HIV positive or sick people receive within the society a support suited to make them responsible.

Article 24. The admission and the stay in the institution or centers of public and private education, laic or confessional, cannot be refused to the people infected by the HIV or affected by the HIV/AIDS.

Article 25. No infected or affected person can be subjected, for this reason, to housing or working conditions incompatibles with human dignity.

Article 26. No test of AIDS test can be required for the admission or the stay in a sporting center or of leisure.

Article 27. Any person living with the HIV/AIDS, candidate to a remunerated employment enjoys the same rights as those recognized to her healthy competitors.

Article 28, :The recruiting of a worker cannot be subordinated to a test of AIDS test.

Article 29. Any worker living with the HIV/AIDS is entitled to keep his employment with all the advantages y related. In the event of inaptitude noted by an approved medical commission, it profits from the advantages provided for by the laws and work regulations and social protection.

Article 30. Any employer has the obligation to maintain on the work places an atmosphere likely to avoid the rejection or the humiliation of the PVVIH/AIDS.

Article 31. The PVVIH/AIDS have the right to subscribe to all insurances with the insurance companies of their choice, in particular an life insurance.

Article 32. In the event the insurer is informed of the results of the medical analyzes of the policy-holder, it must respect the confidentiality of it.

Article 33. No file of banking loan application must comprise information relating to the serologic statute of the applicant,

Article 34. No financial institution can refuse the granting of a bank loan to a person because of her serologic statute.

Section 2 - Psychosocial and medical assumption of responsibility.

Article 35. The family takes an active part in the maintenance of the health of the PVVIH/AIDS of which it has the responsibility. She owes support and assistance to any member infected by the HIV or patient of the AIDS. Any act of rejection or abandonment of the PVVIH/AIDS by their family is punishable.

Article 36. Any person living with the HIV/AIDS has the right to be consulted by a doctor of her choice. She is entitled also to the medical care most appropriate to her state.

Article 37. No health agent or establishment of health can refuse to provide the care which the health of a person living with the HIV/AIDS requires.

Article 38. The state has the obligation to install suitable mechanisms in order to make available all the drugs necessary to the maintenance of the people living with the HIV/AIDS.

Article 39. The people living in prison cannot be subjected to obligatory AIDS test, except the case of AIDS test ordered by the judge within the framework of a legal procedure.

Article 40. The judge who orders a test of AIDS test must rule in close door in order to protect the right to the confidentiality and dignity detainee .

Article 41. The programs of prevention and maintenance as regards the HIV/AIDS must be provided to the prison population.

Article 42. No discriminatory measure or of segregation can be taken against the PVVIH/AIDS in prison, in particular their displacement in a area distinct of the structure, without damage of the principle of the separation of the prisoners by category base on their sex, their age, their antecedents legal and reasons for detention.

Article 43. The judge can, on the report of the attending practitioner, take in favor of the PVVIH/AIDS a decision of release on parole or commutation of sentence of imprisonment in another sentence.

Article 44. The PVVIH/AIDS in the prisons and other places of detention must benefit from the psychosocial and medical maintenance as required by their state. The prison authorities assume the responsibility for it.

CHAPTER VI - OF PROTECTION OF THE PEOPLE VULNERABLE TO THE HIV/AIDS

Section X - Protection of the women

Article 45. The programs of prevention and maintenance as regards the HIV/AIDS must be set up in favor of the women.

Article 46. No behavior at the risk can be imposed on the woman. The woman has the right to refuse not protected sexual relations, even being a couple legally married.

Section 2 - Protection of the children

Article 47. The children infected by the HIV or affected by the HIV/AIDS must benefit from the help, the support and the assistance of the family, the community, the Non Governmental Organizations (ONG) and of the State.

Article 48. The programs of prevention and maintenance as regards the HIV/AIDS must be organized in favor of the children.

Article 49. Any sexual violence on a child is punishable. In the event of sexual violence on a child, the seized judge must order against detainee the AIDS test.

Section 3 - Protection of the other people at the risk.

Article 50. Without damage to the medical secrecy and private life, the professionals of the sex are compelled, in their own interest and that of the society, to periodic tests of AIDS test and STI.

Article 51. The programs of prevention and maintenance as regards the HIV/AIDS and STI must be regularly organized for the professionals of the sex.

Article 52. The other groups at the risk in particular, the teachers, the truck drivers and the troops, taking into account the proximity or from the mobility which their function implies must profit from the programs envisaged with the preceding article.

CHAPTER VII - PENAL PROVISIONS

Article 53 : Are regarded as crimes : - the doubtful medical practices as regards the HIV/AIDS which cause a serious disability. - the sexual intercourse not protected with the aim of transmit the virus or any other activity of voluntary propagation of the virus.

Article 54. The non-observance of the provisions of subparagraphs 1 and 3 of article 11 above, exposes the authors to two (02) months to three (03) years of imprisonment and a fine of fifty thousand (50.000) to five hundred thousand (500.000) francs CFA without prejudice of the civil proceedings and disciplinary likely to be filed against them.

Article 55: Is punished of a three (03) months to one (01) year imprisonment with a fine of fifty thousand (50.000) to five hundred thousand (500.000) francs CFA or one of these two sentences only, one who, out the cases envisaged by the law, carries out the AIDS test on a person without her assent.

Article 56. Is punished in accordance with the provisions of this law, any professional of health, obligates to the respect of the professional secrecy, which reveals medical data concerning the people infected by the HIV, in violation of the provisions of article 8 above.

Article 57. Whoever, either because of its profession, or because of a function or a mission, holds information in confidential matter on the health of an alive individual with the HIV/AIDS, knowingly reveals it to a person not qualified to share the secrecy of it, is punished of three (03) months to one (01) year of imprisonment and/or a fine of one hundred thousand (100.000) to a million (1.000.000) francs CFA.

The maximum of the fine is carried to ten million (10.000.000) of francs CFA when the infringement is made - by media or multimedia or another mean of communication of mass;
- by a doctor or a professional of health contributing to the care of the person living with the HIV/AIDS.


Article 58. The suit for breach of professional secrecy can be introduced only on complaint of the victim, her legal representative or his legal representatives without damage of the provisions envisaged by the occupational code of ethics.

Article 59. The provisions of article 58 above are not applicable whenever the law imposes or authorizes the revelation of the secrecy.

Article 60. Is punished of one (01) to six (06) months of imprisonment and a fine of twenty thousand (20.000) to two hundred thousands (200.000) francs CFA, the fact of recording or of making record, to preserve or make preserve, personal information in violation of the rules of collection, recording and conservation.

The same sentence is applicable to the disclosure of personal information which have effect:
- to attack the consideration of interested party or to the intimacy of its private life;
- to carry, without authorization of the interested party, this information to the knowledge of a third party which does not have quality to receive them.

Article 61. The discrimination or the stigmatization made with regard to an infected or affected person is punished of one (01) to six (06) months of imprisonment and a fine of twenty thousand (20.000) to one million (1.000.000) francs CFA.

Article 62. The infringements with the provisions of articles 23 to 34 are punished six (06) months to three (03) years of imprisonment and a fine of one hundred thousand (100.000) to five million (5.000.000) francs CFA when they are made by a public agent or any person acting in its quality of public authority or private.

Article 63. Whoever addresses to other a rude insult, publicly or written, comprising a term of contempt related to established or supposed seropositivity of victim, will be punished of sentence envisaged in article 61 above.

Article 64. Any person who omits or refuses to honor the obligation of care to which it is held with respect to an infected person, is liable to the sentence prescribed for the omission to care. The same sentence is applicable to any individual who prevents the person infected to access to the care.

Article 65. Any author or accessory of misleading publicity relating to the drugs and other products of care, to the treatment of the AIDS or the prevention of the HIV/AIDS is punished of two (02) months to two (02) years of imprisonment and a fine of one hundred thousand (100.000) to five million (5.000.000) francs CFA or one of these two sentences only.

Article 66. The fraudulent exploitation of the state of ignorance or the situation of weakness of a person infected or affected by the HIV/AIDS, either to propose to him a fallacious treatment with extortion of money, or to make this person grant an act which is obviously prejudicial for him is punished of sentence applicable to the fraud.
If the administration of harmful substances to health causes a serious disability, its author will be liable of five (05) to twenty (20) years of reclusion.

Article 67. Is punished of criminal reclusion of five (05) to ten (10) years whoever knowing itself carrying the HIV, maintains the sexual intercourse not protected with an aim of transmitting it to another person, without injury of the civil proceeding which can be initiated against him.

In the event of repetition or of rape, the sentence of perpetual reclusion is applied. Is punished with same sentence, whoever knowingly, pursues an activity causing the transmission of the HIV to another person. In the event of rape, the judge cannot allow the benefit of mitigating circumstances, nor grants probation.

CHAPTER VIII - VARIOUS AND FINAL PROVISIONS

Article 68. It is created a national council of fight against the AIDS and the infections sexually transmissible (CNLS-IST). The missions, the composition, the organization and the operation of the CNLS-IST are fixed by decree in the Council of Ministers.

Article 69. Under the supervision of the CNLS-IST, the public organizations and civil society in charge of the defense of the humans’ rights must integrate in their action plans the activities relating to the protection of the people as regards the HIV/AIDS and STI.

Article 70. The Decrees in the Council of Ministers lay down the methods of application of this law.

Article 71. The present law will be carried out like law of the State.

Lomé, December 14, 2005
T HE PRESIDENCY OF THE REPUBLIC
Faure Essozimna GNASSINGBE