Évora Court of Appeal - 4771 / 17.7T9FAR.E1
II – The simple infection by HIV virus is to qualify as a disease and in view of the incurability of the virus and the affects of the functioning of the organism that it causes, it is a permanent disease.
They agreed, in a conference, in the Criminal Section of the Court of Appeal of Évora
1 . REPORT
In the file in reference, of a common proceeding, before a single court, which ran under the terms of the Local Criminal Court of Faro of the Judicial Court of the District of Faro, the Public Prosecutor’s Office filed a charge against the accused MM , imputing the practice, in material authorship and in the consummated form, of a crime of spreading disease, p. and p. by art. 283, paragraph 1, point a) of the Penal Code (CP).
CC filed a claim for civil damages against the defendant / defendant, requesting that the defendant be ordered to pay him the sum of € 32,757.09, plus interest on arrears due and falling due from the notification to contest until effective and full payment, property and non-property damage suffered as a direct and necessary consequence of the defendant’s actions.
The defendant did not file a defense, but he did list a witness.
After the trial was made and a sentence was handed down, it was decided to:
– judge the charge partially proven and well founded and, as a result:
– absolve the accused of the practice of the crime of spreading disease, p. and p. by art. 283, paragraph 1, point a), of the CP;
– changing the legal characterization of the facts of the prosecution, convictthe accused for the commission of a crime of offense to serious physical integrity, p. and p. by art. 144, paragraph c), of the CP, in the sentence of 4 (four) years and 6 (six) months of imprisonment suspended in its execution for the same period of 4 years and 6 months , subject to the proof regime , oriented to the awareness of the evil of crime and compliance by the defendant with the following obligations :
– to maintain employment;
– deposit a lump sum of € 10,000 (ten thousand euros) to the court order during the suspension period due to the indemnity due to CC, proving quarterly the deposit of the minimum amount of € 400 (four hundred euros) and justifying any non-compliance until the end the respective quarter;
– remain in contact with the Court and DGRSP technicians during the suspension period and provide the information and documents required;
– be subject to monitoring by the technicians of the DGRSP and adhere to the social reintegration plan that will be prepared and approved.
– dismiss the claim for civil compensation deducted by the applicant CC partially proven and well founded and, as a result:
– condemning the MM defendant to pay him the sum of € 2,666.67 (two thousand six hundred sixty-six euros and sixty-seven cents ), plus legal interest from the notification to contest until effective and full payment, as property damage, absolving you from the others petitioned for this purpose;
–order the defendant MM to pay him the sum of € 30,000 (thirty thousand euros), plus interest on arrears from the decision to actual and full payment as non-pecuniary damage.
In disagreement with such decision, the defendant filed an appeal , formulating the conclusions :
I. The factual fact taken as proven and contained in point 4., 5., 6., and 32 of the proven facts is incorrectly judged.
II. In view of the evidence produced, namely for the content of the social report (pages 282 and 283 of the case file) and for the statements made by the defendant, and by the witness Dr. AP, recorded respectively in the Audio file 20190326142143_4011875_2870889 and in the Audio file Audio file 20190411142419_4011875_2870889, already transcribed, the contested factual fact must:
a. Point 4. of the matter of fact must be changed and it should now be stated that “In the period between the month of December 2016 and February 2017, on several occasions and normally with bi-weekly periodicity the defendant maintained relations of complete copulation with CC ”;
B. Point 5. of the matter of fact must be taken for granted;
ç. Point 6. of the matter of fact must be taken for granted;
d. The matter in point 32. of the factual facts of the proven facts must be taken as unproven and replaced by the following proven matter: “The accused showed himself to be collaborative, giving a coherent and apparently honest account of his life history. He was emotionally sensitive and able to live the emotions of others. He assumed adequate beliefs regarding socially inappropriate behavior as well as a critical judgment of the legal assets in question in the context of this case. He revealed special censorship regarding the crime of spreading the disease, insisting on the care that must be taken in situations similar to his ”.
III. In view of the alteration of the factual fact that must be taken as proven and not proven, any legal type of crime is not fulfilled and the defendant must be acquitted.
IV. Even if the fact of the matter should not be changed, there is no evidence of any intent in the transmission of the HIV virus through unprotected sexual contacts by an infected person.
V. In the absence of possible intent and much less direct intent, the legal type of crime of offense to serious physical integrity, p. and p. in article 144, al. c) of the Penal Code, for which reason the applicant should always have been acquitted.
SAW. The appellant has not committed any unlawful act which can be compensated, so he must be absolved of the claim for civil damages.
VII. Even if the appellant had committed the offense of which the non-pecuniary damages suffered by the applicant have been accused do not justify the arbitrated compensation amount, and should, in terms of equity, be fixed, taking into account the provisions of Articles 494 and 496, paragraph 4 of Civil Code, in the amount of approximately 7,500 €.
VIII. The penalty of 4 years and 6 months, taking into account the degree of guilt and the seriousness of the situation, as well as the other circumstances referred to in article 71 of the Penal Code, is excessive, and should be reduced to a penalty of no more than 2 years and 6 months.
IX. The conditions imposed for the suspension of the execution of the prison sentence prove to be unreasonable wounds as they are impossible to be fulfilled by the accused, which is why they must be revoked.
X. The provisions of article 144, al c), 71, 50 and 51, all of the Penal Code, as well as articles 494 and 496, paragraph 4 of the Civil Code, have been violated by the appealed sentence, among others. .
Terms in which the present appeal must be upheld and, consequently, the learned sentence should be revoked and replaced by another that absolves the accused of the crime of offense to qualified physical integrity, p. and p. by article 144, al. C) the Penal Code of which he was accused and the claim for civil compensation against him.
And if this is not understood, the penalty to be applied to the accused should always be reduced to 2 years and 6 months, suspended in his execution without being subject to the payment of indemnity amounts and duty to maintain work, as well as the reduction of civil compensation for non-patrimonial damages for the amount of about 7,500 €, with which the usual JUSTICE will be done!
The appeal was admitted.
The Public Prosecutor presented a response , concluding:
1. The arguments invoked by the appellant, on which his disagreement is based, do not allow, except for due respect, a decision different from the one handed down by the Judge “a quo”;
2. The court correctly assessed and valued the evidence produced and examined in the hearing in the light of the principle of free appreciation of the evidence, under the terms of article 127 of the Code of Criminal Procedure;
3. The judgment of the facts in points 2, 3, 4, 5, 6, and 32 does not deserve any censorship.
4. The objective facts resulted from the statements of the offended CC that were sincere and corroborated by the statements of Dr. AP, doctor of the accused, CM and AB and the documents attached to pages 318, 329, 353 to 355 and 381.
5. In contrast, the defendant’s statements were contradicted, from the outset, by the documentary evidence and the statements of his assistant physician.
6. Paragraphs 6 and 32 of the proven facts result from the defendant’s posture and from the proof of the objective facts from points 1 to 5 considered as proven by the Court.
7. The conviction to which the judge learned was supported by the evidence actually produced in the trial, whose reasoning, or mental iteration, was complete and duly justified and expressed clearly in the sentence.
8. The penalty is fair, adequate, does not exceed the measure of guilt, nor is it impossible for the defendant to breach it, taking into account that the defendant earns about 750 euros per month, has no housing charges and only supports alimony in the amount 250 euros per month.
9. Therefore, no legal provisions have been violated.
Terms in which it concludes by endorsing the position adopted by M mª “a quo” in the learned syndicated sentence, dismissing the appeal filed by the appellant as unfounded, as is the case with all JUSTICE.
At this Court of Appeal, the Worthy Deputy Attorney General issued a reasoned opinion that the appeal was unfounded.
In compliance with the provisions of paragraph 2 of art. 417 of the Criminal Procedure Code (CPP), nothing was presented.
Once the legal visas have been collected and the records have gone to the conference , it is necessary to appreciate and decide.
2 . GROUNDS
The object of the appealit is defined by the conclusions that the applicant drew from the motivation, as follows from art. 412, paragraph 1, of the CPP, without prejudice to matters of unofficial knowledge, such as those provided for in arts. 379, paragraph 1 and 410 paragraph s 2 and 3, the CPP particular case as determined by judgment of the STJ Plenum Chamber Criminal No. 7/95 to 19:10, in DR IA Series of 12.28.1995, Simas Santos / Leal-Henriques, in “Resources in Criminal Procedure”, Rei dos Livros, 3rd edition, p. 48, and Germano Marques da Silva, in “Course on Criminal Procedure”, Editorial Verbo, 1994, vol. III, p. 320/321.
Thus, delimiting it, lies in appreciating:
A) – the challenge of the facts;
B) – the consequent acquittal;
C) – the measure of the penalty;
D) – absolution / reduction of compensation.
In terms of the facts , the sentence appealed appears :
Facts proven :
With emphasis on the decision of the case, the following facts were proved:
1. On a date not specifically determined in December 2005, the defendant became aware that he is a bearer and is infected with the HIV 1 virus, being followed up in an immunodeficiency consultation at the Centro Hospitalar Universitário do Algarve, in Faro, since February 2006.
2. The accused is aware of the virus he carries and of the ways in which it can be transmitted to other people since, at least, the date he became aware that he has the virus.
3. The defendant knows that the virus can be transmitted to another person through sexual intercourse without a condom.
4. In the period between the month of December 2016 and February 2017, on several occasions and normally with biweekly periodicity, the accused maintained relationships of complete copulation with CC, at least three of them without using a condom, on his initiative.
5. As a direct consequence of these sexual relations, CC contracted the HIV 1 virus, becoming infected by it.
6. The defendant was well aware that by having sexual intercourse without a condom with the victim, he could transmit the virus to which he was a victim and he conformed to that possibility, knowing that such a virus and the acquired immunodeficiency syndrome cannot be cured.
7. The accused acted freely, voluntarily and consciously, aware that his conduct is prohibited and punished by law.
The claim for civil damages also proved that:
8. By exchanging daily messages and sharing their daily lives and the details of their family and professional life with each other since November 2016, CC gained confidence in the defendant and began to have loving feelings for him.
9. CC was unaware that the defendant had HIV or any disease or infection.
10. As mentioned in 5., between February and March 2017, CC suffered an inflammation in the nodes, spots on his back and abdomen, he had pain in his neck and throat, fever, weight loss and appetite and he felt very tired.
11. As a result of that mentioned in 5., she felt desperate, nervous and discouraged, started to live in anguish and lost her tranquility.
12. Felt and feel shame, disgust and sadness.
13. He lost the joy of living and stopped dreaming about starting a family, getting married or having children.
14. You are in an early menopause situation.
15. He took refuge at home and moved away from his friends.
16. She felt betrayed by being infected by someone she trusted and who knew that she had the HIV virus.
17. Do not consider the possibility of having a relationship again for fear of infecting other people.
18. You cannot accept that you have an illness for life and you feel angry.
19. Has weekly psychological monitoring since the knowledge of the infection to the present date at the MAPS Institution – Movement to Support AIDS Issues, in Faro.
20. Due to the defendant’s conduct, he supported the payment of:
a) Expenses with medical consultations, exams and analyzes in the amount of € 1,135.28; and
b) Pharmacy expenses, in the amount of € 401.39.
21. Attentive to his health condition and weight loss, on medical recommendation he attended a gym with personalized training to restore his physical condition and regain weight.
22. Which imported the € 1,130 cost.
More has been proven that:
23. Although the victim reported the symptoms mentioned in 10. and the defendant had not taken antiretroviral medication since December 2015, she never showed concern for her health.
24. The accused has secondary education as a literary qualification.
25. After leaving school, he continued to work.
26. He maintained an affective relationship for 9 years, from which two children were born, currently 11 and 2 years old.
27. After the end of the relationship mentioned above and for about 3 years, she lives with her mother.
28. He has been working as a driver for the C .. company for 3 years, earning a monthly net salary of € 750.
29. Pays alimony to the children, in the total amount of € 250.
30. Contributes about € 100 to the household’s savings.
31. The defendant has no convictions recorded on the criminal record certificate.
32. He denied the practice of the facts and showed no criticism for his conduct.
Unproven facts :
Relevant to the decision of the cause, it has not been proved that:
A) CC is at risk of life since infection with the HIV virus1.
B) The defendant was well aware that people infected with the HIV virus are at risk of life, a possibility with which he complied.
*
The list of proven or unproven facts that:
– the defendant wanted to infect the victim with HIV, insofar as this was not part of the object of the process (since the defendant had not been accused in this way by the Public Prosecutor’s Office, nor was it required to open an investigation with a view to subjecting the defendant to trial for committing the crime with direct intent), nor did it result from the discussion of the cause that the CC infection was intentional;
– the plaintiff felt cheated and rejected, as the alleged rejection and deception were not the result of the accused’s criminal conduct imputed in the indictment.
Motivation :
The court’s conviction was based on a critical appraisal of all the evidence produced at a trial hearing, in the light of the rules of common experience (Article 127 of the CPP).
Regarding the matter contained in the indictment, in addition to the documents attached to the case file, the statements of the defendant and the plaintiff and the statements of witnesses AP, AB and CM were taken into account.
From the statements made, the plaintiff’s afiguraram is much more reliable and credible than the defendant, for the reasons below best describe.
With regard to the assessment of testimonial evidence, AP and CM have no personal relationship with any of the procedural subjects and have limited themselves to reporting the facts of which they are aware in the exercise of their functions [1], being the first doctor of the accused and the second psychologist of the victim in the MAPS. Although witness AB is a friend of the plaintiff, he was also surprised in his speech to be quite calm and able to distance himself. Therefore, and considering the detailed and spontaneous way in which they testified, all the witnesses proved to be reliable and credible.
Concretizing.
Facts 1 to 3 were indisputably demonstrated, insofar as the accused admitted them, go against the content of the fls document. 59 and were confirmed by witness AP, a doctor who has been accompanying the defendant since the HIV virus was detected and explained that he informed him about the risks and how to transmit it to third parties.
As for the other facts in the indictment, the defendant’s and the plaintiff’s statements were consensual as to having had sex between December 2016 and February 2017 (the defendant stated that such relationships started between November and December and the plaintiff stated that they started in the last month) and regarding the frequency of sexual contacts in the initial phase of the relationship (alluding to the defendant 3 or 4 times a week and the plaintiff at least 2 to 3 times), differing as to the period during which it lasted their relationship and whether or not they used a condom at all times when they had full intercourse.
Although there was no other direct evidence of whether or not to use a condom, as is natural given the intimacy of the topic, the Court had no doubt that the version presented by CC was the one that corresponded to the truth and faithfully portrayed what happened.
We started to explain why.
Firstly, the way in which each of the procedural subjects made statements was quite different: CC described the facts in an exhaustive, detailed and secure way, while the defendant MM did so more than once in a hesitant and hesitant way; in addition, the defendant’s refusal to answer the questions that the Court intended to ask him after collecting the documentary evidence he deemed necessary to understand what his monitoring and treatment had been in the last few years, from which it is inferred, who feared incurring contradictions and / or incriminating themselves.
Secondly, the defendant stated that not only did he always use condoms, he was also the one who took care to pick them up and put them on every time he had sex with CC, but this claim did not reap, since after being asked about the place in the house where she kept the condoms revealed clear hesitations and ended up giving, in an insecure way, an answer that would be against what will be the most frequent situation for most people (“ on the bedside table or in the bathroom ” ), clearly indicating that he was not telling the truth and that he was not the one who healed to fetch the condoms to put them on when he had relations with the victim.
Thirdly, the defendant tried to convey an image that after being aware of his HIV-positive status, he has been a responsible and compliant person, but, in what could be demonstrated by testimony and documents, his statements were clearly not confirmed, since the testimony of medical AP and fls. 318 to 329 and 353 to 355 and 381 the absence of an appearance in consultation between October 2015 and July 2017 and the absence of medication withdrawal in his name, by himself or third parties, between December 2015 and July 2017, are removed.
Fourth, as opposed to what happened to the defendant, the plaintiff did not see her statements contradicted, but rather confirmed, by the other evidence produced, namely the telephone records of fls. 297 to 308 (referring to the period between January and April 2017), from which it is clear that both communicated with daily frequency and several times a day between January and 07/04/2017 and, just as CC mentioned , communications only started to be more spaced after the mentioned date.
In view of what has just been said, and considering that the plaintiff stated that they had a relationship without a condom in December 2016 and others in the period between returning from Dubai (around the last week of January) and becoming ill (February 2017), it was proved that the accused and the plaintiff had sexual intercourse between December 2016 and March 2017 and that, in a number of times not found, but at least three did not use condoms in acts full copulation (fact no. 4).
The document on pages has been analyzed. 32, it was also proved that the plaintiff is infected with the HIV virus (fact no. 5, 2nd part).
Although it is known that the accused had been infected with the HIV virus since 2005, that he knew that he was infected with the same virus in 2017 and after having unprotected sex with him, we believe that it does not necessarily follow that it was the accused who transmitted you the virus.
In this regard, first of all, it is important to make a brief reference to the risk of HIV infection and the (in) determinability of the moment of infection with the virus in question.
As explained by the infectious disease specialist heard during the trial hearing and as a result of the medical literature, [2] not all HIV-positive people transmit the virus. Everything will depend on the body’s response to treatment with antiretrovirals and the viral load they present.
According to the WHO, the success of the treatment can be proven by counting the viral load below 1000 copies / ml with 3 months interval between them. [3]
Although, as a precaution, the infectious medical AP indicates to patients that they should have counts below 20 copies, it is currently established in the scientific community that if the viral load is below 200 copies, its carrier will not transmit the virus. [4]
Even if the carrier has reached an undetectable charge, it will remain so only if the medication is meticulously complied with; if you don’t, your viral load will rise again to levels that will depend on those you had when you started antiretroviral medication.
In view of what has just been exposed, it can be said that people with HIV whose body responds to treatment with prescribed antiretrovirals, who have undergone periodic tests to ensure that the viral load has already dropped to non-transmissible levels (called undetectable) ) and complying with medication will not transmit the virus to sexual partners with whom they have unprotected relationships.
Although it is not possible to determine exactly how long a person has been infected only by means of clinical examinations, it was explained by the AP witness that it will be possible to determine the period of seroconversion if the symptoms do not go unnoticed (as will happen in most cases, in patients confuse such symptoms with a simple flu) and it will be possible to exclude a recent infection by CD4 values.
The seroconversion phase usually occurs between 13 and 42 days [5] after transmission of the virus and is characterized by inflamed nodes, fever, weight loss, erythema or spots on the trunk (which are not to be confused with Kaposi’s sarcoma, whose spots will only disappear with antiretroviral medication), and the symptoms will disappear after a few weeks[6] .
In the seroconversion phase, CD4 levels fall to 500 or less and after this phase the body regains immunity and goes back up to 500-1500. [7]
That said, for the proof of virus transmission, the care of the carrier, the sexual activity of the infected person and the first signs of infection by the virus are extremely relevant, and these elements must be complemented with existing clinical documents, assessed in the light of current scientific data.
Let’s see:
· Concatenation between the testimony of the medical AP, the statements of the accused and the documents that the Court requested during the trial hearing and are shown together on pages. 318 to 329 and 353 to 355 and 381 results that:
– the defendant became aware of being infected with HIV in December 2005 and started to be followed at the infectious service of Hospital de Faro in December 2006, having responded to the therapy prescribed; in 2007, his viral load dropped to undetectable values, which allowed him to have two children who are not carriers of the virus in 2007 and in 2016, despite both he and his ex-partner being HIV positive;
– between 2007 and 2013 in most of the analyzes he underwent, he had undetectable viral loads and less than 40 copies, which happened in particular between 2013 and March 2015;
– on 10/05/2015 it had a viral load of 1,160 copies and on 10/19/2015 a viral load of 210 copies;
– was absent from consultations between October 2015 and July 2017 and medication was not taken in his name between December 2015 and July 2017;
– on 06/26/2017 had a viral load of 182;
– took medication on 07/17/2017, 08/22/2017, 09/28/2017 and 11/17/2017, without doing so between the latter date and 01/07/2019;
– on 07/01/2019 he had a viral load of 683,268;
– on 03/11/2019 he had a viral load of 188;
· It is extracted from the medical report of pages 52 that CC did tests in 2008 that tested negative for HIV;
· CC claimed to have had a dating relationship between 2009 and 2014 and said she had no other partners during the dating relationship nor was she aware of the boyfriend’s having and only had sex with the defendant between the end of such relationship and the realization the test that confirmed that you have the HIV virus;
· The statements by CC were corroborated in the testimony of witness AB, who confirmed that before the accused he had only met the plaintiff with a boyfriend and added that she spoke to him about the defendant for the first time in late December and even said that he was thinking of telling the plaintiff. family;
· Compiling the declarations of CC, the medical report of pages 52 and the results of the analysis of pages 342 to 351 we have to:
– from the beginning of February 2017 he had weight loss, fever, sore throat, brownish spots on the trunk and swollen neck nodes;
– on 07/03/2017, the CD4 values amounted to 702.
Compiling all the evidential means that precede, we have evidenced the lack of scrupulous compliance of medication by the defendant in the period in which he had sex with the plaintiff, inasmuch as he did not had gone to get medication in 2016.
In addition, it is possible to exclude that the plaintiff had been infected with HIV for many years, since the CD4 levels were perfectly compatible with those that the virus carriers usually present after the seroconversion phase and it is known that, without medication, these values gradually decrease until reaching the AIDS phase itself (values below 200 cells / mm 3 ). [8]
That said, the convergence of evidence is evident in the sense that it was the defendant who transmitted the virus.
And let us not say that the fact that in June 2017 the defendant had a viral load incompatible with the transmission of the virus (182) is a counter-indication that allows the above inference to be removed .
In effect, it only follows that, although the defendant did not take medication between 2016 and June 2017, he would still have some medication in his possession, which he will have taken either during the period when he started sexual activity with the victim or later, since if it had not done so, the values would probably rise to those to which they rose in January 2019 (683,268) in the absence of compliance with therapy for about 1 year.
It matters retain that although the infeciologist confirmed that she told the defendant that it was not likely that he had been the one to transmit the virus, this assertion was based on an assumption that turned out to be erroneous: the defendant had not taken the medication regularly and he did not comply with the necessary therapy to control viral load, as he supposed he would have done.
Due to the foregoing, the court had no doubts in giving as evidence that the HIV virus was transmitted to CC by the defendant as a direct and necessary consequence of the unprotected sexual relations that he had with her (fact no. 5, initial part).
Although in the prosecution it is said that CC has been at risk of life since it was infected, the court was not persuaded that it was so, for three essential reasons: (i)the infectious medical AP did not confirm it; (ii) the plaintiff, who is accompanied by a doctor distinct from the mentioned witness, stated that today she knows that one does not die of HIV; (iii) the reading of scientific studies on the subject also does not reach such a conclusion, but before that in developed countries, early access to antiretroviral treatment allowed HIV + individuals to reach an average life expectancy similar to that of non-infected individuals, having -is seen a change in treatment from an almost always fatal disease to a chronic condition where the transmission of the virus to third parties can be prevented. [9]
Thanks to the foregoing, fact A and, consequently, fact B have yet to be demonstrated, and it is certain that the defendant’s knowledge will be identical to that of the offended person, both of whom are accompanied in the immunodeficiency consultation.
Although the generic risk of transmission of the HIV virus is not high for each sexual intercourse, [10] for the affirmation of possible intent it will suffice to realize that all unprotected sexual contact can be that which, among many, has the consequent transmission of the virus. [11]
Now, in the present case, the witness WP stated that he clarifies his patients about what it means to have HIV and AIDS, warning them that if they do not comply regularly with therapy or in the periodic (semi-annual) exams, it is verified that HIV is no longer undetectable they can pass it on to third parties if they have had unprotected relationships and are more likely to contract AIDS.
On the other hand, it was clear that the accused did not comply with the therapeutic scheme, nor did he analyze his viral load before beginning unprotected sexual relations with the victim.
Combining these two vectors, it was proved that the defendant knew he could transmit the virus to CC and is aware that neither the HIV virus nor AIDS can be cured and, even so, he wanted to have sex without a condom, conforming with HIV infection, although he did not want it, nor did he represent this result as necessarily due to his conduct (fact No. 6).
Appreciating in the light of the rules of common experience the objective and subjective factuality that precedes and also noting that the denial of the maintenance of unprotected sexual relations was precisely related to the notion of criminal censorship of conduct, fact no. 7 .
Through the combined analysis of the documents of fls. 297 to 308, the plaintiff’s statements and AB’s testimony, it was shown that CC and the accused communicated daily during the period in which they maintained an intimate relationship, that they shared their daily lives with each other and because of that, they gained confidence in accused and began to have feelings for him (fact # 8).
The fact no. 9 was proven by CC having said that she did not know about any disease of the accused and by the fact that he acknowledged that he never informed her that he was HIV positive or ill.
The symptoms that the plaintiff presented between February and March 2017 (fact no. 10 [12]) proved based on the statements of the company, corroborated and complemented by the testimony of AB and the medical report of fls. 52.
Regarding the other consequences of HIV infection, the following was valued:
· With the exception of witness AP, who does not know the plaintiff and could only confirm that there are studies that suggest that the HIV virus can accelerate menopause, the others confirmed that she was very disgusted with the discovery of having been infected (mainly because she was an habitually careful person), she cried and sometimes continues to cry when she talks about the subject, she is depressed, she often says that her life is worthless and she has no desire to live and, well, she was not very sociable before it happened and extroverted, but now these characteristics have become more acute and she avoids leaving home and living;
· After clarifying that he met the plaintiff at the psychology consultation at MAPS in February 2018, following the referral due to depressive symptoms reactive to the HIV virus, the CM witness also mentioned that in the early days she had insomnia, deep sadness, anxiety , difficulties in concentration and attention, lack of motivation and lack of interest in activities of daily living. As for the frequency of consultations and the applicant’s evolution, this psychologist said that in an initial phase when consultations were biweekly and currently are weekly (although she has an indication to contact MAPS whenever she sees an aggravation of the state), after having resumed the dance and the gym was a noticeable improvement,
· Analysis of the medical diaries of fls. 383 et seq., It is clear that at the beginning of the follow-up in an immunodeficiency consultation in November 2017, she presented depressive / reactive symptoms to the diagnosis, took a list of questions about HIV infection, maintained a feeling of great revolt towards her ex-partner , had great emotional lability and despite the slight improvements in mood in December 2017 and to follow up in a psychology consultation, in April this year 2019 continues to show difficult acceptance of the diagnosis, to keep crying easy and to have insomnia, resisting to anxiety medication with fear that it affects your kidney;
· Asked to clarify what she felt after a positive HIV diagnosis, in a sorry and sincere way, the plaintiff explained: first she thought she was going to die; after being told at the hospital that she was not going to die but she needed to take medication, she was scared because she didn’t have a kidney and thought that “if she didn’t die of the disease, she would die of the cure”; over time she started to get more rested, but she can’t help feeling anxious about the disease and whenever she takes a shower, she checks that she has no marks on her body; she had the dream of having a partner and children, but now she believes that no one will want to share her life with her because she is HIV positive; despite being only 40 years old, she stopped having her period due to the virus that accelerates menopause; she is afraid of being harmed at a professional level if she changes jobs; besides the mother and the friend AB who is a nurse, she did not tell anyone else about her diagnosis for fear of the reaction and shame; he felt and feels sad and he did not go to work for a while because he did not want to face anyone; after the diagnosis, he moved away from people because it was “difficult to show a normality that doesn’t exist”; although a doctor who consulted her at the infectious disease service told her that it is scientifically demonstrated that those who have an undetectable viral load do not transmit it do not trust that it will always be so and will never have an unprotected relationship, nor will they ever come to trust anyone; he started having psychological counseling in June 2017 at the hospital and is currently keeping him at MAPS. he felt and feels sad and he did not go to work for a while because he did not want to face anyone; after the diagnosis, he moved away from people because it was “difficult to show a normality that doesn’t exist”; although a doctor who consulted her at the infectious disease service told her that it is scientifically demonstrated that those who have an undetectable viral load do not transmit it do not trust that it will always be so and will never have an unprotected relationship, nor will they ever come to trust anyone; he started having psychological counseling in June 2017 at the hospital and is currently keeping him at MAPS. he felt and feels sad and he did not go to work for a while because he did not want to face anyone; after the diagnosis, he moved away from people because it was “difficult to show a normality that doesn’t exist”; although a doctor who consulted her at the infectious disease service told her that it is scientifically demonstrated that those who have an undetectable viral load do not transmit it do not trust that it will always be so and will never have an unprotected relationship, nor will they ever come to trust anyone; he started having psychological counseling in June 2017 at the hospital and is currently keeping him at MAPS. although a doctor who consulted her at the infectious disease service told her that it is scientifically demonstrated that those who have an undetectable viral load do not transmit it do not trust that it will always be so and will never have an unprotected relationship, nor will they ever come to trust anyone; he started having psychological counseling in June 2017 at the hospital and is currently keeping him at MAPS. although a doctor who consulted her at the infectious disease service told her that it is scientifically demonstrated that those who have an undetectable viral load do not transmit it do not trust that it will always be so and will never have an unprotected relationship, nor will they ever come to trust anyone; he started having psychological counseling in June 2017 at the hospital and is currently keeping him at MAPS.
Globally assessing the evidence that precedes the normality of what happened, facts no. 11 to 19 were demonstrated.
Based on the plaintiff’s report, on the medical report on pages 52 and in the accompanying documents on pages 145 to 190, it was clear that after having the first symptoms of seroconversion (urinary infection in February) he went to consultations, made several analyzes and tests to try to find out what he had and to address the physical and psychological consequences of HIV infection, which imported a cost of € 1,135.28 (fact no. 20, paragraph a)) – and not € 1,150.28, as alleged, as the plaintiff stated that she only started to have the first symptoms of infection in February 2017 and, as such, it was not possible to establish any causal relationship between the payment of the first expense of 01/31/2017 and the plaintiff’s infection.
Notwithstanding the invoices and pharmacy receipts attached to the records of the pages. 191 to 204 prove the expenses incurred by the plaintiff between February and July 2017 and the value of the acquired goods actually amounts to € 476.81, inasmuch as the plaintiff and the interviewed witnesses did not mention any relationship between the purchase of dental or hair hygiene and HIV infection, nor does the Court see it, unlike what happened with the other medications and vitamin supplements that the plaintiff acquired, it was not possible to establish any causal link between HIV infection and the acquisitions of Hextril (€ 10.72), Arthrodon gel (€ 8.40), hair products (€ 25.81), Elgydium (€ 5.40 and € 3.30) and tongue scraper (€ 6.79), where there are to deduct from the amount of the loss in pharmacy expenses the amount of € 60.42. In addition, it is clear from the accompanying documentation that there were purchases in which the plaintiff used discount vouchers (the 1st invoice on pages 192 was discounted € 5; the 2nd invoice on pages 196 was discounted € 2; 2nd invoice on pages 200 was discounted € 8), there being no doubt that the payment actually borne is not the sum of the products purchased, but the difference between the value of purchases and that of discounts (whose global value amounted to € 15). Subtracting the aforementioned amounts from the total amount of pharmacy costs, it is concluded that, as a consequence of the defendant’s conduct, the plaintiff supported € 401.39, which is why fact no. 20, al. B) 196 € 2 was discounted; 2nd invoice of pages 200 were discounted € 8), there being no doubt that the payment actually borne is not the sum of the products purchased, but the difference between the value of purchases and that of discounts (whose global value amounted to € 15). Subtracting the aforementioned amounts from the total amount of pharmacy costs, it is concluded that, as a consequence of the defendant’s conduct, the plaintiff supported € 401.39, which is why fact no. 20, al. B) 196 € 2 was discounted; 2nd invoice of pages 200 were discounted € 8), there being no doubt that the payment actually borne is not the sum of the products purchased, but the difference between the value of purchases and that of discounts (whose global value amounted to € 15). Subtracting the aforementioned amounts from the total amount of pharmacy costs, it is concluded that, as a consequence of the defendant’s conduct, the plaintiff supported € 401.39, which is why fact no. 20, al. B) as a consequence of the defendant’s conduct, the plaintiff paid € 401.39, which is why fact no. 20, al. B) as a consequence of the defendant’s conduct, the plaintiff paid € 401.39, which is why fact no. 20, al. B), with its restrictive wording.
Finally, there are proven expenses for training sessions in the total amount of € 1,130 (pages 205 to 208) and it is clear from the documents proving the expenses with consultations that the applicant attended a nutrition consultation after starting to show weight loss, having as a result of his statements in conjunction with those of CM, he was advised by the medical and psychological council that he went to the gym to regain weight and improve his mood, from which facts 21 and 22 proved.
As the plaintiff stated that she showed the accused the stains, she said that she was not feeling well and he never tried to find out about his health status after sexual contacts ceased, which he did not mention either, fact 23 has been proven.
The facts concerning the defendant’s personal and economic conditions (facts 24 to 30) have been proven through the articulation between the statements he himself made, the content of the social report of pages. 282 and 283 and the applicant’s statements.
The proof of the absence of convictions recorded in the defendant’s criminal record (fact No. 31) was extracted from the competent certificate, along with pages. 386.
It was extracted from the statements made by the defendant during the trial hearing and from the position taken by the defendant during the hearing that not only denied the facts, but did not show a critical resonance of the conduct (fact no. 32) – reason why there was no as proven that the defendant was emotionally sensitive and able to live the emotions of others, despite this in the social report.
*
Appreciating :
A) – the challenge of the facts : It
constitutes a general principle that the relations know in fact, under the terms of art. 428 of the CPP.
Despite this, regardless of the unofficial verification of defects in the decision, provided for in art. 410 (2) of the CPP, the challenge of the matter of fact, in the most extended form, obeys the conditions required by art. 412, No. s 3 and 4, CPP, just so may lead to modification in this context (Art. 431, b) CPP), the following them perfectly justified and for the purpose target.
All the more so when, as is known, the factual appeal in this aspect does not constitute a new trial, but only a remedy for errors of judgment, through the re-examination of the evidence, which is not intended, however, to limit (or remove ) the principle of free appreciation enshrined in art. 127 of the CPP, nor can it supply the immediacy and orality that the court that judged had.
As Damião da Cunha emphasized, in “The Structure of Resources”, in the Portuguese Journal of Criminal Science, year 8, April-July, 1998, pgs. 259 et seq.,the appeals are configured in the Code of Criminal Procedure as a remedy and not as a new judgment on the object of the process (…) Thus, the appellant is required to present the points of fact that deserve the censure of incorrectly decided (…) No it is enough, however, that the appeal expresses the disagreement and, well, the evidence (…) that not only demonstrates the possible incorrect decision, but also allows to configure a decision alternative .
And in accordance with the STJ ruling of 10.03.2010, in CJ Acs. STJ year XVIII, volume I, p. 219,As the Supreme Court of Justice has reaffirmed the appeal of the matter of fact before the Appeal, it is not a new trial in which the 2nd instance appreciates all the evidence produced and documented in the 1st instance, as if the trial did not exist, being a legal remedy to remedy errors of judgment (…) The object of the 2nd degree of jurisdiction in the assessment of the facts is not the simple and simple repetition of the hearings before the Court, but, more simply, the detection and correction of specific, punctual and clearly pointed out and justified errors of judgment (…) The interference of the Relationship in the factual domain will be limited to a “surgical” intervention, in the sense of delimited, restricted to the question, point by point, of the existence or not of the concrete errors de facto judgments pointed out by the appellant,proceeding to its correction, if applicable, and only as far as it results from the documentation filter (…) Downstream, a final limit will be imposed, which has to do with the fact that the review can only determine changes to the matter in fact based if the Court of Appeal finds that the evidence imposes a different decision and not just allows another decision.
The interpretation of the appropriate form of compliance with the legal requirements for this purpose was well reflected in the STJ ruling on the Fixing of Jurisprudence no. 3/2012, of 08.03, in DR I Série, of 18.04.2012, whose rationale is illuminating.
In particular, it appears that the applicant has fulfilled these obligations, resulting from his motivation, and specified, the points of fact he intends to challenge (facts proven in 4, 5, 6 and 32) and the evidence that allegedly supports the their position (their statements, testimony of AP, documents on pages 318 to 329 and 353 to 355 and 381 and social report), presenting transcription of excerpts from the statements and testimony and mention of the respective location on the recording medium in audience.
In this way, proceeding to the analysis of the challenge, thus expanded, reported to the intended evidential review, even if surgical, taking into account the excerpts offered and confronting the decision motivation, without prejudice to the faculty referred to in paragraph 6 of referred art. 412, which was used, through the full hearing of that oral evidence summoned to the appeal.
Let’s see.
As to the fact proved in 4 (“ In the period between the month of December 2016 and February 2017, on several occasions and normally with biweekly periodicity, the defendant maintained relations of complete copulation with CC, with at least three of them without using condom, on the initiative of that”), The applicant, bringing to the extracts excerpts from his statements, proposes that the final segment be eliminated, with at least three of them without using a condom, on the initiative of the former, claiming that, in this respect, there are absolutely contradictory statements between the victim and defendant, there being no other element, testimonial or documentary that confirms or demines any of the versions and, therefore, that the reasoning used by the honorable judge a shows arbitrary and based on assumptions that have no connection with the evidence produced andthe statement dispute between the offended and the accused can only be resolved by applying the principle in dubio pro reo.
Now, after analyzing the Court’s motivation, it turns out that he was sensitive to the verified discrepancy in these pieces of evidence, although he stated that “ he had no doubts that the version presented by CC was the one that corresponded to the truth and faithfully portrayed what happened ”, explaining the reason for the conclusion drawn in relation to what was raised.
Thus, it follows, as stated in the sentence, that “CC described the facts in an exhaustive, detailed and safe way, while the defendant MM did so more than once in a hesitant and hesitant way; in addition, the defendant’s refusal to answer the questions that the Court intended to ask him after collecting the documentary evidence he deemed necessary to understand what his monitoring and treatment had been in the last few years, from which it is inferred, that he feared incurring contradictions and / or self-incriminating himself “, besides that” after being asked about the place in the house where she kept the condoms, she revealed clear hesitations and ended up giving, in an insecure way, an answer that was against what will be the most frequent situation for most people ”.
While it is not possible to overlook what immediacy and orality make it possible to perceive with regard to the evidence in question, the Court also reported that “ the accused tried to convey an image that after having been aware of his HIV-positive status, he has been a responsible person and compliant ”, which ended up being confirmed by the testimony of AP, a doctor who has accompanied him, and by the documents of“ fls. 318 to 329 and 353 to 355 and 381 ”, while portraying the“ no-show in consultation between October 2015 and July 2017 and the absence of medication withdrawal in his name, by himself or third parties, between December 2015 and July 2017 ”.
In addition, according to what was obtained from hearing his statements, despite the statement that he always used a condom in the relationships he had with CC, he gave evasive responses as to the circumstance of those who habitually tried to ensure that they had them, revealing uncertainty and even, as you mentioned, that you didn’t pay attention, in addition to trying to put the emphasis on your version, when referring to condom use, that you were undetectable (in a situation that was not susceptible to virus transmission) , which shows, unsurprisingly, that its credibility had not been presented in such a way that the Court could, without more, accept it, having recognized, in particular, that, even undetectable, it always had a medical indication that it should not do without of that use and that, at the time, had left,taking medication during a period that was not successful.
And all the more so, despite the alleged divergence with the testimony of CC, this, contrary to what happened with the statements of the applicant here, portrayed, especially by reference to the time in which they would have happened, relationships without a condom, without having noticed any contraindications that tended to keep it from the truth, and, as the Court underlined, ” described the facts in an exhaustive, detailed and secure way “.
If so, the alleged discrepancy between their statements and the victim’s testimony does not support that the Court could not value them as it did, since it is not the fact that they were different that required the respective assessment to be different and , in the underlying analysis, care was taken to measure them in the face of other tests, in which they indirectly had the potential to influence it.
Similarly, the invocation of the in dubio pro reo principle is nothing more than the prospect that the appellant wants the assessment to have been settled by doubt, but this does not seem to be reflected in the decision motivation, nor is there any reason why the Court would necessarily have to engage in any doubt.
About the fact proved in 5 (“As a direct consequence of these sexual relations, CC contracted the HIV virus 1, becoming infected by it ”), the applicant argues that he should be considered as unproven, invoking, as he says, that no testimonial or documentary evidence is attached to the records that possible to establish the necessary and direct connection between the sex that accused and injured maintained and contraction by that said HIV virus and Rather the witness Dr.. AP medical accused assistant, said detail and several times it was not possible to establish such relationship or causation .
It presents excerpts from the testimony of the witness, essentially referring to the period of seroconversion, the symptoms of seroconversion, the variability from person to person of the persistence or disappearance of these symptoms, the difficulty in asserting, before a positive examination, of when the virus was contracted.
These extracts, it is true, do not allow to establish the assertion that the Court was based on, as well as any other to the contrary.
However, the witness transmitted much more than what is transcribed and his testimony was inevitably combined with other elements to achieve the concrete under discussion.
In fact, it does not deserve to neglect the rest of the excerpts offered to challenge the proved in 6, according to which it can be seen that, in relation to the applicant, despite the fact that on 26.06.2017, he had presented the viral load of 182 and, in a reduced degree attentive to the situation of no-shows to consultations (between October 2015 and July 2017) and of not taking medication (between December 2015 and July 2017), which led her to be surprised that she had transmitted the virus to offended, she did not fail to highlight that only in a situation of undetectability can one guarantee that there is no transmission.
Thus, it is worth saying what the Court, rightly, underlined that “although the infeciologist confirmed that she told the defendant that it was not likely that he had been the one to transmit the virus, this assertion was based on an assumption that turned out to be erroneous: the defendant had not taken the medication regularly and did not fulfilled the necessary therapy to control viral load, as he supposed he would have done ”.
And also, with complete correctness, that “ it should not be said that in June 2017 the defendant had a viral load incompatible with the transmission of the virus (182) is a counter-indication that allows to remove the above inference ”, because “it only follows that, although the defendant did not take medication …, he would still have some medication in his possession, which he will have taken either in the period when he started sexual activity with the victim or afterwards, since if he had not done so, values would probably rise to those they rose to in January 2019 (683,268) in the absence of compliance with therapy for about 1 year ”.
It should also be noted that the witness said that, for the purpose of achieving an undetectable viral load, as a rule, six months of medication are enough, but when the treatment is interrupted, there is no determined period in this scope and the absence of medication for 1/2 months affects, immediately, the viral load, having detailed, through the consultation to the relevant documentation, the periods when the applicant did not go to the consultations, did not carry out exams and did not raise medication.
In addition to other considerations, the Court explained:
– “ The seroconversion phase usually occurs between 13 and 42 days ”;
– “In the seroconversion phase, the CD4 levels drop to less than or equal to 500 and after this phase, the body regains immunity and goes back up to values between 500-1500 ”;
– “ for the proof of virus transmission, the care of the carrier, the sexual activity of the infected person and the first signs of infection by the virus are extremely relevant, and these elements must be complemented with the existing clinical documents, assessed in the light of scientific data. current ”;
– the defendant “ on 10/05/2015 had a viral load of 1,160 copies and on 10/19/2015 a viral load of 210 copies ”;
– “he was absent from consultations between October 2015 and July 2017 and no medication was taken in his name between December 2015 and July 2017 ”;
– “ on 06/26/2017 he had a viral load of 182 ”;
– “ CC claimed to have had a dating relationship between 2009 and 2014 and said that she had no other partners during the dating relationship nor was she aware of the boyfriend’s having and only had sex with the accused between the end of such relationship and the conducting the test that confirmed that you have the HIV virus ”;
– ” The statements by CC were corroborated in the testimony of witness AB “;
– “ on 07/03/2017 the CD4 values (from CC)amounted to 702 ”
-” we have evidenced the lack of scrupulous compliance with medication by the defendant in the period in which he had sex with the plaintiff, as he had not gone to get medication in 2016 “;
– “it is possible to exclude that the plaintiff had been infected with HIV for many years, since the CD4 levels were perfectly compatible with those that the carriers of the virus usually present after the seroconversion phase and it is known that, without medication, these values are gradually decreasing until the AIDS phase is reached (values below 200 cells / mm 3 ) ”.
Contrary to what was claimed by the appellant, the testimony of AP did not disprove what was substantiated in relation to the other means of evidence, which, with undeniable corroboration between them and, also, with support in the elements that have been produced on the matter, that the Court mentioned (in footnotes), allow the reflected illation.
It is not clear that, in view of the collection of evidence available, carefully evaluated as it was, other evidence could be called to achieve the desideratum of material truth.
Through what was analyzed, with the required detail, in view of the evidence produced and examined, either directly or indirectly, the causal relationship in the infection contracted by CC, proves to be perfectly supported, and it is clear that the testimony brought by the applicant did not it has virtuality for the different perspective that would result, yes, after all, in putting a hypothesis well contradicted by what was observed and due to the rules of experience.
Regarding the fact proved in 6 (“ The defendant was well aware that by having sexual intercourse without a condom with the victim, he could transmit the virus to which he was a carrier and he conformed to that possibility, knowing that such virus and the syndrome of acquired immunodeficiency have no cure”), Which the appellant recommends that he does not consider to be proven, in essence he alleges, summoning the documents of pages. 318 to 329 and 353 to 355 and 381 , which, by means of these documents, as it refers, constituted by analyzes of the defendant’s viral load, in which are found the period after the one in which the sexual relations were maintained , it is verified that the his viral load was low, being very difficult or almost impossible that in these conditions he could have transmitted HIV to the victim through sexual intercourse , to which he adds, it was confirmed by his assistant doctor, Dr. AP, who stated that for this reason it was very unlikely that the accused had transmitted the virus to the victim .
In addition, he disagrees with the constant reasoning of the Court’s motivation, this in the sense that it could have happened because the defendant had taken medication very recently , because the defendant had not been taking medication for over a year and it is accepted that the viral load of that it remained stable in the years 2015, 2016 and 2017 , concluding, then, that the probabilities of transmission were extremely low and it does not seem possible that it conformed to the possibility of transmitting HIV to the victim .
From the Court’s motivation, it follows that:
“Although the generic risk of transmission of the HIV virus is not elevated by each sexual intercourse for the affirmation of the possible deceit, the awareness that all unprotected sexual contact may be that which, among many, has the transmission of the virus.
Now, in the present case, the witness WP stated that he clarifies his patients about what it means to have HIV and AIDS, warning them that if they do not comply regularly with therapy or in the periodic (semi-annual) exams, it is verified that HIV is no longer undetectable they can pass it on to third parties if they have had unprotected relationships and are more likely to contract AIDS.
On the other hand, it was clear that the accused did not comply with the therapeutic scheme, nor did he analyze his viral load before beginning unprotected sexual relations with the victim.
Combining these two vectors, it was proved that the defendant knew he could transmit the virus to CC and is aware that neither the HIV virus nor AIDS can be cured and, even so, he wanted to have sex without a condom, conforming with HIV infection, even though he did not want it, nor did he represent this result as necessarily due to his conduct ”.
As such, the aforementioned reasoning is supported by the evidence, without neglecting what the experience and the other elements on the subject that the Court mentioned have been teaching and, moreover, it does not dispute, either with the documentation or with the deposition, alleged by the applicant.
With relief, it follows that the alleged viral load (182) was revealed on June 26, 2017 and, thus, as the applicant acknowledges, at a later time, about six months later, that the relationship with the victim had ceased, without hindering, because , to which there had been a transmission of the virus in question.
All the more so when, as the Court pointed out, “ he did not comply with the therapeutic regimen, nor did he analyze his viral load before beginning unprotected sex with the victim.”, Resulting very clearly, not only from the aforementioned testimony, but also from the viral load values that the applicant was denoting, a great variation of them, whether in 2015, 2017 or 2019, attributed to factors related to the therapy and, also, to the very person, without the witness having excluded the possibility of transmission, on the contrary, when he mentioned that in undetectability there is no transmission, so it is only there that the agent can say that there is no transmission if it is undetectable .
For its part, as already noted, the Court operated the correct reasoning when it understood that the referred viral load, in June 2017, was not a counter-indication to rule out the possibility of transmission, even considering the lack of therapy in the previous period. , since December 2015, since, necessarily, it would result, as it happened between the end of 2017 and the beginning of 2019, in a much higher value if he had not taken any medication that he would still have in his possession.
Even if the applicant believed that the possibilities of transmission of the virus to the victim were not high, there is no reasonable reason why he should have concluded this, since he did not ignore that he had failed to comply with the therapy and knew in detail the medical indications that had been given to him. given.
Another conclusion is not viable, except that this possibility of transmission existed and, for the applicant, concretely perceptible, reason why, if he was willing to have sex with the victim without a condom, with that, inevitably, he conformed.
Regarding the fact proved in 32 (“ He denied the facts and did not reveal criticism for his conduct ”), the applicant claims, as he says, that he denied that he had had sex without using a condom and there is no documentary evidence or testimonial that supports the fact that the defendant did not reveal criticism for his conduct .
More claims thatthe only proof that exists in this respect is the social report contained in the file on pages 282 and 283, made by DRGS to the defendant in which it refers that: The defendant has shown himself to be collaborative, giving a coherent and apparently honest account of his life. He was emotionally sensitive and able to live the emotions of others. He assumed adequate beliefs regarding socially inappropriate behavior as well as a critical judgment of the legal assets in question in the context of this case. He revealed special censorship regarding the crime of spreading the disease, insisting on the care that must be taken in situations similar to his ” and, therefore, that, in place of what has been proven, this will be shown as proven.
For its part, the Court stated that “It was extracted from the statements made by the defendant during the trial hearing and from the position taken by the defendant during the hearing that not only denied the facts, but does not show critical resonance of the conduct (fact No. 32) – which is why it did not happen as proven that the defendant was emotionally sensitive and able to live the emotions of others, despite this in the social report ”.
In fact, despite the content of the social report, which is subject to the court’s free assessment, it contains conclusively conclusive statements and, in addition, without regard to what happened in the appellant’s statements, at the hearing and, above all, in the part of the diverse perspective that has been established regarding his conduct, while damaging the victim’s physical integrity.
There is, therefore, nothing to censor as to what was reflected in the fact, analyzed in view of the stance that the appellant assumed in the hearing.
Thus, the combination of all the evidential elements, objectively weighed, does not, in any way, lead to a different hypothesis from that reached by the Court.
Having benefited from immediacy and orality, he established logical reasoning and based on the rules of experience, without censorship deserving the way in which the facts in question were proven.
The path taken so that he had attributed these elements to the valuation that was established does not in any way offend the legal criteria for assessment.
The recursive argument, therefore, ends up returning to the mere criticism of the extracted conviction and, also, by underlining aspects that, analyzed the completeness of the evidence, do not prove to be consistent and, much less, to impose a different decision.
The contested facts do not, therefore, merit modification.
The same is true of the remaining factuality, since no decision-making defect is still wiped out, as there is no evidence that the Court has failed to investigate all the relevant matter, that there is some incompatibility between the facts that have been proven and, as regards to the evidential basis, which this, in its entirety, reveals a failure or incongruity in the rational path that presided over it.
For this reason, the matter of fact established must be taken for granted.
B)– the consequent acquittal :
The acquittal of the appellant, as a result of the modification of the facts, which did not proceed, is remote.
Even so, the appellant raises the question that the eventual fraud does not exist, which is not accepted in light of what has already been explained and, still, apparently, defends that this modality of fraud is not compatible with the practice of the crime, p. and p. by art. 144 of the CP, for which he was convicted.
It is supported, as he says, in what Jorge de Figueiredo Dias teaches, with regard to deceit, regarding the issue of transmission of the HIV virus through unprotected sexual contacts by an infected person that the extremely low probability of transmission of the HIV virus in a relationship sexual (the author making reference to 0.1 to 1% of possibility for each sexual contact) leads to the denial of the possible intent to offend physical integrity and such denial is justified, for two orders of reasons: the first because the awareness of the consequence ( decision) of HIV transmission would have to be taken by the agent, at the moment of acting as a real possibility and not as a mere abstract danger (which does not exist due to the low probability of transmission); and the second and more relevant in the present case, because the transmission of HIV would have to be foreseen as the end of the (sexual) conduct of the agent and not as a side consequence (which is excluded in the present case by the appellate sentence that expressly states that the defendant did not wish to infect the victim) .
*
Most relevant, it results from the reasoned in the sentence :
Whoever offends the body or the health of another person in such a way as to
c) Cause him a particularly painful or permanent illness […], or serious or incurable psychic anomaly; or
d) To cause danger to his life;
is punished with a prison sentence of two to ten years. ”
The legal asset protected by this type of crime is the physical integrity of people, a legal asset with constitutional protection (art. 25, no. 1 of the CRP).
To the extent that filling in the type presupposes an effective affect on the victim’s physical integrity – even if he does not suffer any objective bodily injury, disability or pain [13] -, the crime in question is a crime of result.
This is a crime of free execution, in that it can be committed by any means capable of producing the typical result.
Analyzing the objective type in question, we found that it can be filled in two ways:
– offense in the body ; or
– health offense (which should be understood as affecting the normal functioning of the victim’s bodily functions, harming him; all production or deepening of a pathological constitution belongs to this scope; [14] according to Paula Ribeiro de Faria it is qualify as a health injury, in the first place, the creation of a disease state, either through an infection, the contagion of a sexually transmitted disease or by any other route);
– the other person.
The subjective type requires that the conduct be practiced as a fraud, in any of its modalities.
The crime of offense to serious physical integrity requires the intent of damage, that is, it requires that the intent not only covers the offense, but also its result, even in the form of an intentional intent. [15]
In the present case , it was proved that, between December 2016 and February 2017, the accused and CC had unprotected sex and, as a direct and necessary consequence of such relationships, the first transmitted HIV 1 to the second (proven facts 4 and 5).
On the other hand, it was proved that the accused acted freely, deliberately and consciously, aware that he had the HIV1 virus, that it has no cure and that by having unprotected sex he could transmit it, with what he complied, despite knowing that his conduct was prohibited and punished by criminal law (proven facts 6 and 7).
Although this was widely discussed in the early days of the discovery of HIV and AIDS, we now believe that the simple infection by the HIV virus qualifies as a disease, [16] all the more so since the period of seroconversion is marked by changes in the body which, as above we have seen, go through fever, inflamed nodes, etc. It should also be noted that, with Ordinance No. 103/2005, [17] HIV infection was even included in the list ofcontagious diseases with mandatory reporting, alongside AIDS.
Furthermore, in view of the incurability of the virus and the effects on the functioning of the organism that it causes, we also have no doubt that it is a permanent disease.
Despite the authority of some authors who defended the contrary and maintained that for the production of the result of permanent disease, the contraction of the virus would have to degenerate into AIDS [18] , it should be noted that their positions were based on the state of knowledge then, which is quite different from the current one.
Indeed, the definition of disease in the individual with HIV has undergone important reformulations in the last three decades due to the development of new antiretroviral therapies. In the 1980s and 1990s, it translated into a simplistic dichotomy between the carrier (HIV +, CD4> 200 cells / mm3) versus the patient (HIV +, CD4 <200 cells / mm3, AIDS diagnosis), that is, the individual was considered to be effectively sick when they reached (the inevitable) stage of AIDS. With the advent of combination antiretroviral therapy, it has become possible to be infected with HIV for decades with CD4 counts> 200. However, these individuals have come to be considered chronically ill. In fact, although your CD4 count remains high and your viral load undetectable, treatment is not curative. By mechanisms yet to be elucidated, chronic HIV disease is associated with a new range of problems, generically referred to as non-HIV morbidity or premature aging. On the other hand, the drugs used are not innocuous, presenting potential cumulative toxicity for decades. Thus, chronic HIV disease is characterized by metabolic syndrome, renal and / or liver dysfunction, neuropathy, osteoporosis and increased risk of neoplasia.[19]
Here, we conclude by filling in the objective and subjective type of the crime of offense to serious physical integrity, p. and p. by article 144, al. c) the Penal Code, imposing the conviction of the accused for the practice of the same because there are no causes of exclusion or guilt to be considered.
*
In view of what has been proven, there is no doubt that the applicant’s conduct was correctly framed in the legal type of art. 144th – offense to serious physical integrity – and, regarding the subjective aspect, for having acted with eventual intent, in line with the provision of art. 14, no. 3, of the CP.
Although the appellant brings the perspective of the doctrine, in this case, Figueiredo Dias, in“Criminal Law, General Part, Volume I, Fundamental Issues, The General Doctrine of Crime”, Coimbra Editora, 2004, p. 357, giving rise to the difficulty of combining the possible intent with situations of transmission of the HIV virus, this must be interpreted as the imposition of a relative increase in weight in the assessment of the real possibility that the transmission will occur, in the sense that the mere abstract danger .
No, however, it seems, to exclude that the possible fraud is sufficient for the practice of the crime, given that it admits any modality of the fraud (cf. Paula Ribeiro de Faria, in “Conimbricense Comment of the Penal Code, Special Part”, Coimbra Editora, 1999, tome I, page 234, and Paulo Pinto de Albuquerque,in “Commentary on the Penal Code”, Universidade Católica Editora, Lisbon, 2008, p. 390).
And following Figueiredo Dias, ob. cit. p. 358, about the guilt reported by the agent’s indifference towards the legal asset that he intends to protect, The agent who reveals an absolute indifference for the violation of the legal asset, despite representing the consequence as possible, clearly overrides the satisfaction of his interest devaluation and for this reason it is decided (although not in the form of a considered resolution, although only implicitly, to achieve the objective type. So much so that the subjective type of illicit should be classified as intentional.
Here is what has been proven, consistent with the recognized need for increasing protection due to situations of susceptibility to transmission of this specific type of virus, with the resonance that the community attributes to it.
The appellant’s sentence must therefore persist.
C) – the measure of the penalty :
The appellant considers the measure of the penalty, fixed at 4 years and 6 months in prison, to be excessive, proposing that it should be close to the minimum, never exceeding 2 years and 6 months .
He claims the relative low gravity of the situation and the low degree of guilt , which is primary, is socially and laborally integrated, is of low economic condition, living off his work ,he is not accused, nor has he been the subject of any conviction for other facts and is prepared to maintain lawful conduct in the conduct of his life and the absence of other convictions in these periods, before and after, must be revealed in favor of the defendant, this circumstance militates in its favor, and not against, as the honorable judge a quo erroneously claims .
Yet, although expressing agreement with the suspension of the execution of the prison, the same is not true of the conditions to which it was subject.
Thus, it claims that the imposition of maintaining a professional occupation and depositing the amount fixed on account of the compensation violates the provisions of art. 51, No. s 1 and 2 of the PLC.
As regards the first mentioned, itdoes not depend on his will , as he is subject to the vicissitudes inherent in his contract, the market in which he works, the activity of the company for which he works and a multitude of other situations over which he has no control and, over second mentioned, it will be impossible to fulfill , as it earns € 750 net monthly and has fixed expenses of € 350 we will have to conclude that it has a surplus of € 400 monthly , taking into account the tax to be fulfilled within 4 years and six months (54 months) we have that the monthly value will be 185,18 € andit must be concluded that the court considers it reasonable that the appellant has available a monthly amount of € 214.18, which is € 7.16 per day. (€ 400 – € 185.18) .
*
It follows from the sentence :
As we have seen, the crime of offense to serious physical integrity is punishable by 2 to 10 years in prison.
According to article 71, no. 1 of the Penal Code, the determination of the measure of the penalty, within the limits defined in the law, is made according to the fault of the agent and the prevention requirements.
As Maria João Antunes [20] says, “when talking about prevention as a general criterion or regulatory principle of the measure of the penalty, we have in mind the meaning that is given to the expression in terms of the purposes of the penalties”.
It is necessary, then, to appeal to article 40, paragraph 1 of the Penal Code, which establishes that the application of penalties and security measures aims at the protection of legal assets and the reintegration of the agent in society.
In turn, Article 40 (2) of the Penal Code provides that under no circumstances can the penalty exceed the measure of guilt.
Based on these provisions, we can conclude that the measure of the penalty must be given by the measure of the need for protection of legal assets, without exceeding the measure of guilt, acting from the point of view of special prevention of socialization between the optimum and the community still bearable point of protection of such goods.
In fact, if, on the one hand, the penalty aims to restore the legal peace affected by crime, seeking to respond to the requirements of general prevention, on the other hand, it is necessary to meet the agent’s re-socialization needs (positive special prevention or integration) and personal warning (special negative prevention), all within the limits of your fault.
According to article 71, no. 2 of the Penal Code, when determining the penalty, all circumstances that, not being part of the type of crime, give for or against the agent, must be taken into account. whether these circumstances are relevant to guilt or prevention.
In the present case, the following circumstances were considered:
– illegality and method of execution of the facts: the defendant and the victim had at least 3 unprotected sexual intercourse, with the defendant not using a condom;
– guilt : the accused had no intention of transmitting the HIV virus to the victim, having acted with the least intense form of intent (eventual);
– feelings and motives that determined the crime: nothing was found out except that the transmission of the disease took place during sexual intercourse and in an unreflective way;
– consequences of conduct(particularly serious): the victim suffered pain, fever, loss of weight and appetite and felt very tired; she suffered from a disease that forces her to take medication for the rest of her life to prevent HIV-positive people from becoming AIDS; she felt desperate, nervous and discouraged and started to live in anguish; felt and feels shame, disgust and sadness; he is in a situation of early menopause, he has lost the joy of living and he has stopped dreaming of starting a family; does not equate the possibility of having a relationship again for fear of infecting other people; he took refuge at home and moved away from friends; she felt betrayed in her confidence; feels revolted; and lacks weekly psychological counseling from the moment the infection is known to the present date at the MAPS Institution – Movement to Support the Problem of AIDS,
– anterior and posterior conduct and personality : nothing was found in favor of the agent other than the absence of other convictions; against the defendant, he immediately disregards the victim’s health status despite knowing that he had repeatedly and repeatedly failed to take antiretroviral medication and that she had told him that he was not in good health; on the other hand, it did not fail to be noted that the accused wanted to remove all responsibilities despite being aware of his negligent action, even denying the maintenance of unprotected sexual relations; finally, the lack of critical resonance of conduct and the lack of any reparation or moral satisfaction to the victim was taken into account;
– the defendant’s personal, social and economic conditions: it is inserted at the social, professional and family level, but such circumstances were already verified when the facts were practiced and did not prevent him from quitting taking medication, exposing the risks to his own health and for dangerous conduct;
– special prevention requirements: they are not reduced in spite of the fact that the accused is primary and inserted, given the way in which the facts were carried out (which stands out as his initiative to maintain unprotected sex) and the absence of any attitude that shows regret. or care;
– general prevention requirements: they are high because crimes of offense against physical integrity violate personal legal assets and create a judgment of strong social disapproval, particularly when victims suffer from an incurable and still highly stigmatizing disease such as HIV infection; as such, the community must be given a clear signal of intolerability of the practice of such crimes, so that the validity and validity of violated legal rules is reaffirmed.
Considering all the elements mentioned above and taking into account the legal framework indicated for the crime in question, it was decided to fix the defendant a sentence of 4 years and 6 months in prison for the crime of offense to serious physical integrity.
(…)
Under the terms of article 50, no. 1 of the Criminal Code, the court suspends the execution of the prison sentence applied to a measure not exceeding five years if, taking into account the personality of the agent, the conditions of his life, his conduct before and after the crime and the circumstances of it conclude that the simple censorship of the fact and the threat of imprisonment adequately and sufficiently fulfill the purposes of punishment.
Despite the defendant having seriously affected the physical integrity of CC, infecting it with HIV virus, we believe that the modality of deceit (eventual) with which the defendant acted, the (reduced) time period in which unprotected sexual intercourse took place and the social, family and professional insertion patented in the records make a reasonable prognosis favorable to the defendant’s ability to re-socialize through the mere threat of serving a prison sentence.
On the other hand, it does not appear that the defense of the legal system calls for the application of an effective prison sentence to the sub judice situation, not only because it is common knowledge of informed citizens that the probability of transmission of the HIV virus is not high for each sexual intercourse, but also, and above all, because the accused did not intentionally infect the victim.
In view of the above, it is understood to be to suspend the execution of the sentence.
After the date of practice of the facts, the wording of Articles 50, paragraphs 5 and 53, paragraph 3 of the Penal Code [21] was changed and the subsequent law is applicable, however favorable the defendant , [22]insofar as it allowed the fixing of the period of duration of the suspension to a lesser extent than the duration of the sentence and stopped imposing the subordination of the suspension to a proof regime.
Despite the application of the new law, given the insensitive and irresponsible personality of the accused evidenced during the trial hearing and his resistance to the regular taking of antiretroviral medication, we understand that the community will only be pacified and the devaluation of the conduct will only be properly internalized. if the defendant MM continues to threaten to fulfill an effective deprivation of liberty for the period corresponding to the sentence abovefixed period, during which he must be subjected to a test regime aimed at sensitizing the need to take the medication (to avoid new transmissions).
With a view to the elaboration of the social reintegration plan and the effective monitoring by the DGRSP, the accused will be obliged to remain in contact and provide the information and documents that are required (art. 52, no. 1, al. c) of the Penal Code).
In addition, it appears that the partial reparation of the victim during the suspension period (in the amount of € 10,000) and the need for quarterly proof of payment of the minimum amount of € 400 will not fail to make an important contribution to the realization of the preventive purposes of the penalty, which is why, concomitantly with the duty to partially repair the injury during the period of suspension in such a manner, the defendant must also impose on the defendant the duty to maintain work occupation that allows him to satisfy the established pecuniary obligations (art. 51 .º, n.º 1, al. A) and 52º, n.º 1, al. c) of the Penal Code) – and that are due to him in view of the income and charges determined and the circumstance of being an employee (article 51, no. 2 of the Penal Code).
*
Analyzing:
Respecting the purposes of punishment (art. 40 (1) of the CP), in the protection of legal assets, a purpose of preventing harmful behaviors that affect goods and values, that is, of general prevention, is inherent. The prediction, application or execution of the sentence must also pursue the realization of preventive purposes, which are capable of preventing the practice of future crimes by the agent, that is, a special prevention purpose.
The purposes of the penalties – of general positive prevention and of integration and of special prevention of socialization – are combined in the pursuit of the common objective of, through the prevention of harmful behaviors, to protect community valuable legal assets, whose violation constitutes a crime.
Following Fernanda Palma, in“The Reforming Amendments to the General Part of the Penal Code in the 1995 Review: Dismantling, Strengthening and Paralysis of the Punitive Society” in “Days on the Review of the Penal Code”, AAFDL, 1998, pp.25-51, and in “ Cases and Criminal Law Materials ”, Almedina, 2000, pp. 31-51 (32/33),the protection of legal assets implies the use of the penalty to deter citizens from committing crimes (general negative prevention), to encourage the conviction that criminal rules are valid and effective, and to deepen citizens’ awareness of legal values (general prevention) positive). The protection of legal assets also means special prevention as a deterrent to the potential offender himself. On the other hand, the reintegration of the agent means special prevention in the choice of sentence or in the execution of the sentence. And finally, retribution is not necessarily required for the protection of legal assets. Penalty as a censure of the will or of the decision contrary to the law may be unnecessary, according to special preventive criteria, or ineffective for carrying out general prevention .
Considering, then, that the model of determining the measure of the penalty commits to guilt the function (unique, but by no means less decisive) of determining the maximum and insurmountable limit of the penalty; general prevention (integration) the function of providing a prevention framework, the maximum limit of which is given by the optimal measure of protection of legal assets – within the limits of guilt – and the minimum limit is provided by the essential requirements of defense of the legal order; and to special prevention, the function of finding the exact “quantum” of penalty, within the aforementioned prevention framework, which best serves the socialization requirements (or, in particular cases, warning or security) of the offender (Figueiredo Dias, in Portuguese Journal of Criminal Science, year 3, 2nd to 4th, April-December 1993, pgs. 186 et seq.), It is understood that the measure of the penalty found is clearly proportional and fair, in no way exceeding the axiological-normative assumption (guilt) that underlies it.
The relevant factors were adequately taken into account by the Court and through valuation in line with what reality offered, inevitably, the penalty of reaching a dimension that the requirements of prevention and socialization impose.
In fact, it does not reveal all the circumstances whose gravity could be reduced by the application of a penalty close to the legal minimum.
As well as it is not accepted that the applicant alleges the low gravity of the situation, since what appears is the reverse, even though he acted with eventual intent, in the aspect, which is manifest, of the critical resonance that his conduct deserves to all. levels, highlighting, as the Court reported, its particularly serious consequences, without, at least, the appellant having shown an attitude of interiorization of his devaluation.
The balance of all the circumstances reflected shows that the weight of the aggravating factors exceeds that of the mitigating factors, although, contrary to what the applicant claims, the absence of previous or subsequent convictions had been met in his favor.
The preventive requirements are clearly high and the punishment has to present itself as the response they require.
Therefore, in view of the applicable legal limits, the fixed measure (4 years and 6 months), which did not reach the legal average (6 years) and this was still some distance away, approximately halfway between the minimum and the same average, is fully to accept.
Justified the suspension of the execution of the arrest, the Court also went about making it subject to a proof regime and, from the outset, namely to the appellant’s duties to keep working and (without prejudice to what will be analyzed below) deposit an amount for account of what was due as compensation.
This is shown to be an important factor in the sense of better punitive reinforcement, not only for the appellant to see it as a requirement in view of the very criticized behavior he pursued and the consequent need for the reparation of the crime, but also for the victim to try to ensure, as far as desirable, that this reparation, even if partial, becomes minimally effective, that is to say that it presents itself to the applicant as a translation that goes beyond the threat of punishment and censorship of the facts that to the suspension of the execution of the prison respect.
And do not say that the obligations that burdened the measure prove to be inadequate, due to excessive or damaging fundamental rights.
It is already seen, contrary to the appellant, that the obligation to maintain a professional occupation has to be interpreted in the way that was underlying the decision, that is, in the sense, as referred to in the sentence, “ that allows him to satisfy the established pecuniary obligations ”, by means of conduct that, in this context, proves to be in line with this aim.
However, it is true that this aspect may not depend solely on you, also because of your posture you may be influenced, since you will not be tolerated if you put yourself in a position to hinder or even make unfeasible, which it is up to you to satisfy, which means that you will have to demand that you invest for the purpose, earning income and, moreover, ensuring that the benefit of the suspension of the suspension of the execution of the prison, which is in your interest, is not frustrated.
For its part, the definite obligation to remedy the evil of crime, by means of the indicated payments, represents an imposition proportional to the preventive requirements that they face, despite their economic condition showing that they will have to make some sacrifice to achieve this.
The overall amount to be paid by the appellant did not fail to take into account the important sequelae it caused, and a period was defined enough to carry it out, still with an adequate criterion of execution, during which it will be the effort to do so, which is justified.
According to Figueiredo Dias, in “Portuguese Criminal Law, The Legal Consequences of Crime”, Editorial Notícias, 1993, p. 351, he stressed, regarding the obligations that we are dealing with here, it will be necessary to pay attention, in terms of its enforceability, in which the essential criterion is that they (duties and rules of conduct) must be in a strict relationship adequacy and proportionality with the desired preventive purposes .
Thus, in particular, the situation does not allow the reservations placed by the applicant, since it does not appear that the fulfillment of the duties imposed represents an excess that should not reasonably be required of him (cf. art. 51 (2) , of the CP).
Everything leads to the conclusion that the penalty remains.
D) – the acquittal / reduction of the indemnity :
The acquittal of the appellant, as defendant, having been dismissed, since there was no change in the facts, contrary to what he would have intended, also defends the reduction of the arbitrated indemnity as damages non-patrimonial, understanding it as maladjusted and arbitrary in the face of the evidence produced and the other social and economic circumstances present , claiming, in what may now be relevant, thatthere is no danger to the life of the victim of contracting HIV in the current terms of medical science , most people who contract HIV viruses today manage to make their lives in perfect conditions normal, namely starting a family, having children, playing sports, exercising demanding work and taking advantage of all the circumstances that life provides them , the economic situation of the accused and the victim and the equity criteria referred to in article 496, 4 and 494, both of the Civil Code , concluding that it would be more fair and equitable to set the amount of non-patrimonial damages suffered by the claimant in an amount of about 7,500 €.
*
Withdraws from the sentence :
As a plaintiff, CC filed a civil damages claim against the defendant MM, asking for his conviction to pay him a lump sum of € 32,757.09, as property and non-property damage suffered with the crime.
Under the terms of article 71 of the Proc. Criminal, the claim for compensation that can be deducted in criminal proceedings is only one that is based on the commission of a crime.
Since compensation for losses and damages arising from crime is materially subordinated to civil law, it is important to pay attention to article 483, paragraph 1, of the Civil Code, which establishes that“Whoever, with intent or mere guilt, unlawfully violates the right of others or any legal provision designed to protect the interests of others, is obliged to compensate the injured party for the damages resulting from the violation”.
From the combination of the above rules, it follows that the obligation of compensation based on the criminal liability of the agent has as its basic assumption that the illicit and guilty act perpetrated by him has caused harm to others.
Damage is any offense against the property or interests of others protected by the law [23] . It is usual to distinguish between property damage and non-property damage, depending on whether or not they are susceptible to financial evaluation.
(…)
In non-patrimonial damages, assets that are not part of the injured person’s assets are affected, such as the physical and psychological pain suffered, the disgust, the weakening of the person’s health as a result of the injury, and our legislator admits its compensation as long as their severity so justifies (art. 496, no. 1 of the Civil Code).
The assessment of the severity of the damage, “although it must be based on the concrete circumstantialism surrounding it, must operate under an objective criterion, within a framework of exclusion, as much as possible, of the subjectivity inherent in some human sensitivity”. [24]
On the other hand, the pecuniary amount of the compensation must be determined equally, taking into account the degree of culpability of the agent, the economic situation of the agent and the injured party and the other circumstances of the case (cf. art. 496, n. 3 and 494 of the Civil Code).
That said, let us appreciate the situation in the file.
There is no doubt that the voluntary acts practiced by the defendant, in addition to being unlawful – integrate the crime of offense to serious physical integrity -, are reprehensible to the extent that the defendant, due to his capacity, and in the face of concrete circumstances, could and I should have done otherwise.
It is also unequivocal that, as a direct and necessary consequence of the defendant’s illicit and culpable conduct, CC suffered emergent damages which resulted in the payment of expenses with consultations, tests, medication and gym for the recovery of weight and physical condition, in the global amount of € 2,666.67 (proven facts 20 to 22).
The same is true for non-pecuniary damage, as it was proved that as a result of the defendant’s conduct, the plaintiff suffered pain, fever, weight loss and appetite, he felt very tired, he suffered from an incurable disease, he felt desperate, nervous and discouraged, she started to live in anguish, she felt and feels shame, disgust and sadness, she is in a situation of early menopause, she lost the joy of life, she saw her dreams about the constitution of her family frustrated, she took refuge at home and moving away from friends, she felt betrayed in her confidence,feels disgusted and lacks weekly psychological counseling from the time the infection was known to the present date at the MAPS Institution (proven facts 10 to 19) – non-patrimonial damage that assumes sufficient gravity and objective relief to deserve the protection of the law and, as such, are liable to compensation, under the terms of article 496, paragraph 1 of the Civil Code.
As for the aforementioned non-pecuniary damages, it is considered fair to set the compensation for them in the amount of € 30,000, taking into account the circumstances of the case, the fault of the agent (possible fraud) and the conditions of the injured party and the injured party (driver and accountant).
The amounts now set as non-pecuniary damages and biological damage bear interest from the sentence, taking into account the provisions of article 805, paragraph 3 and 806, paragraph 1 of the Civil Code – as jurisprudence established by judgment 4/2002. [25]
*
In fact, in addition to property damage, “ When setting compensation, non-property damage must be taken into account, which, due to its gravity, deserves the protection of the right– art. 496, no. 1, of the Civil Code (CC) -, which refer to physical pain, moral disgust, vexation, anguish, loss of reputation, complexes, which, not subject to financial evaluation, can be compensated, as a legitimately founded form of satisfaction.
These damages or losses of a non-patrimonial nature correspond to what, in legal language, is usually called pretium doloris or tendential compensation for anguish, physical pain, illness or psychic-emotional shock, assuming, therefore, that assets such as health, well-being, beauty, honor or good name.
For this purpose, the assumptions that condition the obligation to compensate imposed on the injured party and arising from “Aquilian” liability are valid, that is: that the facts of the agent are embodied in facts that are dominable or controllable by the will, that translate a behavior or a form of human conduct; that these facts are unlawful, reflecting illegality in the violation of another’s right or of a provision designed to protect the interests of others; that the nexus of subjective imputation of the facts to the victim is verified, which expresses the psychological connection of the agent with the production of the event and reflects the degree of censorship that the conduct deserves; that there is damage or prejudice, which represents the devaluation inflicted on the legal assets of others and due to the action of illegal acts; and that there is a causal link,
Thus, justifying the applicant’s liability, the measurement of the severity of the damage must be done with consideration of the circumstances of the specific case, in the light of objective criteria and will be assessed according to the protection of the law, in the sense that the damage must reveal such seriousness that justifies the attribution of a pecuniary satisfaction to the injured party (Antunes Varela, in “Das Obrigações em geral”, Almedina Coimbra, 8th edition, vol. I, p. 617).
And yet, according to the same Author, ob. cit., 5th edition, vol. I, p. 568,in the case of non-pecuniary damage, compensation is of a markedly mixed nature: on the one hand, it aims to compensate in some way more than compensation, the damage suffered by the injured person; on the other hand, he is not unfamiliar with the idea of reproving or punishing, in civilian terms and with the means proper to private law, the conduct of the agent .
Therefore, it translates into a monetary compensation, tending to provide a certain degree of experiential satisfaction, in order to mitigate, as much as possible, the moral, physical or affective sufferings suffered by the injured person as a result of the wrongful conduct of the injured person.
For the establishment of the compensation amount, the law imposes, in paragraph 3 of that art. 496 of the CC, that the court uses equity and, also, taking into account the circumstances referred to in art. 494 of the CC, that is, the degree of culpability of the agent, the economic situation of the agent and the injured party and the other circumstances of the case, among which are the injuries suffered and the corresponding sufferings, and you should not forget yet, to avoid solutions that are too marked by subjectivism, the compensation standards generally adopted in case law or fluctuations in the value of the currency (STJ judgments: of May 26, 1999, in CJ, Acs. STJ, year I, volume II, p.130, and of 10.23.1979 , in RLJ, year 113, page 91, and of 3.18.1997, inCJ, Acs. STJ, year V, tome I, p. 163; Antunes Varela, ob. cit., 9th edition, vol. I, p. 629).
It should also be borne in mind, as our jurisprudence has consistently stated, that the compensation for non-patrimonial damages cannot be symbolic, but must be of an amount that enables the purpose for which it is intended, to mitigate the pain suffered by the injured person and, therefore, the STJ’s jurisprudence in terms of non-patrimonial damages has evolved, say positively, in the sense of considering that the indemnity, or compensation, should constitute a relief for the damages sustained, and should not, therefore, , be miserable, under penalty of human dignity itself being devalued.
It is, then, in this case, to attribute a fair compensation for the important damages suffered by CC, which the Court duly explained, according to what has actually been proven and dispenses with repeating here.
If so, there is no reason to criticize the amount fixed as compensation for non-property damage.
What the applicant claims does not allow another perspective.
These are considerations that reflect the happy evolution of medical science but that do not take anything away from the relevance of the proven damages, being certain that, even though there is no danger to the injured person’s life, her experience is still marked by all the limitations inherent to those who are infected with the virus in question.
To ignore this reality means ignorance and insensitivity.
The compensation awarded deserves acceptance.
3. DECISION
In view of the foregoing, it is decided to:
– dismiss the appeal filed by the defendant and, thus,
– maintain the appeal fully .
Costs borne by the applicant, with a court fee of 4 UCs.
Processed and reviewed by the rapporteur.
10.March.2020
______________________
(Carlos Jorge Berguete)
______________________
(João Gomes de Sousa)
__________________________________________________
[1] After having been released from professional secrecy by the respective beneficiaries.
[2] Justiz Vaillant AA, Gulick PG. HIV Disease. [Updated 2019 Feb 22]. In: StatPearls [Internet]. Travel Island (FL): StatPearls http://www.sermais.pt/media/86/File/Publicacoes/25PgFreq_SobHepatite_IsabelAldirManuelaDoroana.pdf
[3] Carmona S et al. Curr Opin HIV AIDS. 12 (2): 157-164.
[4] Eisinger RW et al. (2019) JAMA. 321 (5): 451–452; LeMessurier J et al. (2018) CMAJ. 190: E1350-60.
[5] Https://wwwn.cdc.gov/hivrisk/how_know/window_period.html
[6] Https://wwwn.cdc.gov/hivrisk/what_is/stages_hiv_infection.html ; http://www.sermais.pt/media/86/File/Publicacoes/25PgFreq_SobHepatite_IsabelAldirManuelaDoroana.pdf .
[7] Institute of Medicine (US) Committee on Social Security HIV Disability Criteria. HIV and Disability: Updating the Social Security Listings. Washington (DC): National Academies Press (US); 2010. 3, Low CD4 Count as an Indicator of Disability).
[8] Institute of Medicine (US) Committee on Social Security HIV Disability Criteria. HIV and Disability: Updating the Social Security Listings. Washington (DC): National Academies Press (US); 2010. 3, Low CD4 Count as an Indicator of Disability.
[9] Danforth K et al In: Holmes KK, Bertozzi S, Bloom BR, Jha P, editors. SourceMajor Infectious Diseases. 3rd edition. Washington (DC): The International Bank for Reconstruction and Development / The World Bank; 2017 Nov. Chapter 2.
[10] According to several studies in the field, the average risk of HIV transmission to women through vaginal penetration is 0.08%; when biological risk factors compete, such as bacterial vaginosis or some sexually transmitted disease, the risk will be increased to 1%, meaning that in 100 exposures to risk there will be 1 transmission; however, the scientific community draws attention to the fact that the person with the greatest number of exposures to risk is at greater risk of becoming infected: “If a woman has unprotected vaginal sex 100 times with a man who is HIV-positive, the cumulative risk is approximately 10% and may be higher if biological risk factors are present ”- see Boily MC, Baggaley RF, Wang L et al. Heterosexual risk of HIV-1 infection per sexual act: systematic review and meta-analysis of observational studies. Lancet Infectious Diseases. 2009 Feb; 9 (2): 118–29.
[11] Tröndle / Fischer, apud ob. infra, p. 355.
[12] With its restrictive wording as to the time period and the location of the spots.
[13] In this sense, Maia Gonçalves, Cód. Penal Anotado, 18th ed., P. 563.
[14] Lakner / Külh, Tröndle / Fischer, apud Conimbricense Commentary on the Penal Code, Volume I, 2nd edition, pgs. 306 to 308.
[15] Judgments of the TRC of 05/03/1989 of the STJ of 12/02/2003, CJ, tome III, p. 92 and SASTJ, no. 68, p. 59, respectively.
[16] So too, Bernd Schumann, stressing that given the typical stages of the disease, since the late 1980s that German jurisprudence and doctrine have maintained that HIV infection itself represents a serious injury to physical integrity, even though is not accompanied by the appearance of any externally noticeable symptom – in Problems legal penales del sida, Santiago Mir Puig (ed), p. 26.
[17] Diário da República no. 17/2005, Series IB, of 25/01/2005.
[18] Augusto Silva Dias, ob. cit., p. 25, was based on 2001 studies whose scientific conclusions came to be removed.
[19] Deeks et al. 2013. Lancet. 382 (9903): 1525–1533.
[20] Legal Consequences of Crime, Coimbra, p. 22.
[21] In the wording introduced by Law no. 94/2017, of 23/08.
[22] Art. 2, no. 4 of the Penal Code.
[23] Mário Júlio de Almeida Costa, Law of Obligations, p. 380.
[24] Judgment of the STJ, of 22/09/2005, case no. 05B2470, available at www.dgsi.pt.
[25] Published in DRE 146, Series IA, of 06/27/2002.
