Facts
X. is accused of intentionally infecting sixteen persons with the HIV virus between approximately May 2001 and May 2005. He is alleged to have regularly obtained blood samples or samples of other biological material containing HIV viruses from one or more HIV-infected persons, under the pretext that he could heal them. X. is then said to have repeatedly processed the contaminated blood or other biological material in order to later inject it into the bodies of his victims using needles or needle-like objects, thereby infecting them with the HIV virus.
The Regional Court of Bern-Mittelland convicted X. of multiple counts of serious bodily harm within the meaning of Art. 122 of the Swiss Criminal Code (StGB) and multiple counts of spreading human diseases within the meaning of Art. 231 para. 1 sentence 1 StGB, and sentenced him to a custodial sentence of 12 years and 9 months. The Cantonal Court of Bern upheld the first-instance judgment on the issues of guilt and civil liability, and sentenced X. to a custodial sentence of 15 years.
Considerations
The Federal Supreme Court confirms the assessment of the lower courts that the infection of the victims with the HIV virus fulfills the elements of the offense of serious bodily harm within the meaning of the general clause of Art. 122 para. 3 StGB. Contrary to the appellant's view, this does not contradict the more recent case law of the Federal Supreme Court.
The Federal Supreme Court states that while the HIV infection can no longer be classified as a life-threatening injury within the meaning of Art. 122 para. 1 StGB, it nevertheless represents an adverse pathological change with the character of an illness, which is to be assessed as bodily harm. In assessing whether the infection falls under the offense of simple or serious bodily harm,…