Annex I Background Paper
2 Survey responses: Mapping of HIV-related legal services
2.4 Success stories
Most examples of success involved negotiating good outcomes for clients, rather than winning court cases.
• The Philippines (ACHIEVE)
A discrimination complaint was made against a maritime school that refused entry to a student who failed a medical exam because of his HIV status. The case was resolved through a Human Rights Commission complaint. Informal settlements allowed the student to return to school to finish his degree.
• Cambodia (CLS)
A complaint was made against the police for unlawfully detaining a child of a sex worker, and unlawful confiscation of property. Representations to the police secured the release of the child and return of the property.
• Indonesia (LBHM)
Representations to prosecutors were successfully made to protect the rights of HIV positive persons arrested for drugs offences, including
o right to be transferred to detention centre where state will provide treatment;
o right to release to be placed in care of family when rehabilitation center unwilling to provide HIV care.
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• China
The legal service assisted in the first three court cases of HIV discrimination in employment (applicants for teachers’ jobs who failed medical exams because they have HIV). These cases have not succeeded in court, but are considered
‘ice breaking’. Campaigning to change the law has involved assisting the three clients to write a letter to the government asserting that the requirement for a medical examination is discriminatory, and called upon the State Council to investigate the standards. We sent the Government over 12,000 “Smile”
Photos calling for change. (Yirenping)
Compensation was obtained for a child infected with HIV by blood transfusion.
Court claim was successfully settled out of court. (Dongjen)
Lawyer challenged the conduct of police who required a former drug user to submit to a urine test for illegal drugs, in circumstances where there was no reason to suspect drug use. (Dongjen)
• Papua New Guinea (PNGDLA) The service:
o obtained a restraining order to protect a woman living with HIV from her violent husband;
o successfully negotiated for the return to work of a man living with HIV who was dismissed after taking sick leave;
o Assisted in securing the release of a woman who was jailed for failing to pay a civil debt. Although the legal claim technically failed, advocacy with police and family succeeded.
•
Vietnam
Legal services have assisted many cases relating to the right of people living with HIV to attend school, to work, to take care of children after divorces, to integrate into the community, and to not be stigmatized and discriminated against; e.g. successfully advocated with authorities to ensure a 9 year old orphan with HIV could attend primary school, teachers and parents were educated on non-discrimination. (CCLPHH)
Obtained personal identification documents for client with HIV so he could access health care and welfare benefits. (Law Consultancy Centre HCMC)
• Australia (HIV/AIDS Legal Centre)
Action was taken against the state Coroner to challenge a policy of not reconstructing bodies of deceased people who had HIV or hepatitis C virus.
The case is still under appeal in the High Court of Australia.
An insurance discrimination complaint was settled after the case was lodged in the Federal Court. The insurance policy sought to exempt people with HIV from coverage. The exemption was removed.
A client faced financial problems after he had to resign and leave the workforce because of HIV-related illness. The Centre was able to assist him to access his pension and to avoid eviction. The Centre helped him and his partner to stabilize their income and living situation.
The Centre has many clients who are living with HIV and have complex mental health problems that result in them requiring legal assistance in multiple areas, as well as referral to other support. For example, one client
31 with brain injury was facing a criminal charge, did not have the capacity to manage his financial affairs and was unable to access a pension. The Centre succeeded in having his criminal case dealt with by mental health laws rather than criminal laws, negotiated with his bank for return of mismanaged funds and secured access to a pension.
Building the capacity of lawyers, NGOs & health care workers
ChinaIn 2010 a successful seminar held on discrimination in employment. Lawyers, scholars, client and NGO workers attended to discuss recent court cases.
Vietnam
Many lawyers at the Legal Consultancy Centers of Provincial Lawyers Associations were afraid of working with clients with HIV. To address these fears, lawyers were trained on HIV and people living with HIV were recruited to participate in an internship program. Attitudes of lawyers improved after working with interns on a daily basis.
National Legal Aid Agency:
• regularly organizes training courses for legal aid providers. Each course has from 50 to 70 participants. One part of these courses addresses skills of providing legal aid services to people living with HIV.
• organized training courses on the HIV/AIDS Prevention and Control Law to legal aid providers in pilot Provincial Legal Aid Centers and 400 members of legal aid clubs.
• 232 participants attended a training course on providing legal aid to people living with HIV in 2010.
Pacific
PIAF provided legal advice to the public health authorities in Kiribati and Cook Islands on a human rights-based approach to contact tracing as an HIV response.
It resulted in their withholding of an effort to conduct contact tracing for newly diagnosed HIV cases. PIAF also conducted HIV Legal Training and consultations in 3 countries and provided a Draft Legal Instrument.
2.6 Challenges
Indonesia (LBHM)
• Apathy of community members due to lack of confidence in the legal system.
• Citizens are disappointed with the government for having unfair regulations.
• We are still far away from a condition where all of the citizens, including marginalized communities, understand and are willing to claim their rights, and where the government treats their citizens fairly.
Cambodia (CLS)
• Sex workers lack social support, NGOs working on service delivery receive less funds, sex workers receive less health care, access to ARVs and transport.
• Knowledge and Education: Some NGOs and sex worker communities have limited understanding of universal access, legal rights, rights to support when arrested.
• Lack of belief in the judicial system.
• International policy: EU and India agreement on patents (TRIPS).
32 Pacific (PIAF)
• Lack of emphasis on the legal response to HIV in the region, which is mainly due to the human rights based approach perceived as foreign.
• People living with HIV are referred to as “sinners” and “immoral”.
• Many Pacific Island countries do not have national HIV legislation and for those that have had HIV legal training, the process is so slow.
• Many Pacific Island people are voicing frustration after several years of legal awareness training.
• The stigma and discrimination is still harsh and the political will is missing which is why PIAF has had to remind the political leaders to fast-track the legislative process.
Papua New Guinea (PNG DLA)
• Weak law enforcement mechanisms and lack of government funding.
• Because of lack of government support, we can only concentrate on one province. We have 22 provinces with an estimated population of 8 million people who we know are not familiar with the HIV Laws.
• The HIV law has never been enforced in court. There is no case precedent.
• There is still a lot of misunderstanding by senior management on the health issues giving rise to legal issues; the challenge is to dispel this misunderstanding.
The Philippines (ACHIEVE)
• Limited funding for the legal referral network and in mainstreaming HIV in the legal service institutions and in the justice system in general.
• Lack of information and education and capacity to handle HIV-related cases among legal services.
• Lack of national guidelines and policies on legal management and referral of HIV-related cases (re. risk of identity disclosure in court).
• Lack of knowledge among HIV communities on legal services.
• Police lack of information and education about HIV and the importance of providing access to HIV-related services of sex workers.
• Police have a moralistic stance to justify raids and arrests. Police expose sex workers and men who have sex with men to arbitrary arrests, extortion and harassment.
China (Dongjen & Yirenping)
• The courts refuse to accept cases; clients are afraid of discrimination or disclosure of HIV status, and choose not to go to court; lack of funding for projects, lack of funding to hire qualified staff; difficult to find appropriate lawyer for cases, and the lawyers do not know about HIV issues.
(Dongjen)
• We need to deepen mobilization; get close to the HIV community; improve the participation and awareness of other citizens; mobilize the attention and participation of the entire society to collectively work to change the nation’s policies, thus further influencing society’s perception of people living with HIV and those affected by HIV. (Beijing Yirenping)
Vietnam (CCLPHH, Vietnam Lawyers Association & National Legal Aid Agency)
• Resources for HIV legal services are being reduced and no funds are available from State budgets for NGOs providing HIV legal services.
(CCLPHH)
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• Budgets for providing legal aid services in general are very limited, so resources are not enough to develop legal aid activities to people living with HIV.
• The Project “Support to the Legal Aid System in Vietnam, 2005 – 2009”, piloted provincial legal aid centers, but there were no funds to expand this model to other provinces.
• The Law on Legal Aid 2006 does not specify people living with HIV as entitled to legal aid, although they are eligible for legal aid is they are considered to be disabled people. These regulations limit the awareness of people living with HIV about their right to be provided legal aid services.
• People living with HIV fear disclosure and are often afraid of coming to a legal aid office. Most legal aid activities are provided by mobile clinics in centers of care, treatment and education of people living with HIV.
• Legal aid providers lack knowledge and skills in providing legal aid to people living with HIV. There are not enough training courses.
• Knowledge of international law.
Malaysia (PT Foundation)
• Many requests are received for advice about unfair dismissal from work due to HIV status, but there is little legal expertise available. There is no legal protection for people living with HIV who are treated unfairly in the workplace.