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KIYUTIN v. RUSSIA - 2700/10 [2011] ECHR 439 (10 March 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/439.html
Cite as:
53 EHRR 26,
(2011) 53 EHRR 26,
[2011] Eq LR 530,
[2011] ECHR 439
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FIRST
SECTION
CASE OF KIYUTIN v. RUSSIA
(Application
no. 2700/10)
JUDGMENT
STRASBOURG
10 March
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Kiyutin v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Christos Rozakis,
Peer
Lorenzen,
Elisabeth Steiner,
Mirjana Lazarova
Trajkovska,
Julia Laffranque, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 17 February 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 2700/10) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a national of Uzbekistan, Mr Viktor Viktorovich
Kiyutin (“the applicant”), on 18 December 2009.
The
applicant was represented by Ms L. Komolova, a lawyer practising in
Oryol. The Russian Government (“the Government”) were
represented by Mr G. Matyushkin, the Representative of the Russian
Federation at the European Court of Human Rights.
The
applicant alleged, in particular, that he had been victim of
discrimination on account of his health status in his application for
a Russian residence permit.
On
5 May 2010 the President of the First Section decided to give notice
of the application to the Government. It was also decided to rule on
the admissibility and merits of the application at the same time
(Article 29 § 1 of the Convention).
Written
submissions were received from Interights, the International Centre
for the Legal Protection of Human Rights, which had been granted
leave by the President to intervene as a third party (Article 36 §
2 of the Convention and Rule 44 § 2 of the Rules of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in the Uzbek SSR of the Soviet Union in 1971 and
acquired citizenship of Uzbekistan upon the collapse of the USSR.
In
October 2002 his brother bought a house with a plot of land in the
village of Lesnoy in the Oryol Region of Russia. In 2003 the
applicant, his half-brother and their mother came from Uzbekistan to
live there.
On
18 July 2003 the applicant married a Russian national and they had a
daughter in January 2004.
In
the meantime, in August 2003 the applicant applied for a residence
permit. He was required to undergo a medical examination during which
he tested positive for HIV. On account of that circumstance, his
application for a residence permit was refused. The refusal was
upheld at final instance by the Oryol Regional Court on 13 October
2004.
In
April 2009 the applicant filed a new application for a temporary
residence permit. Following his application, on 6 May 2009 the
Federal Migration Service determined that he had been unlawfully
resident in Russia (an offence under Article 18.8 § 1 of
the Code of Administrative Offences) and imposed a fine of 2,500
Russian roubles.
By a decision of 26 June 2009, the Oryol Region
Federal Migration Service rejected his application for a residence
permit by reference to section 7 § 1 (13) of the Foreign
Nationals Act, which restricted the issue of residence permits to
foreign nationals who could not show their HIV negative status.
The decision indicated that the applicant was to leave Russia within
three days or be subject to deportation. The applicant challenged the
refusal in court.
On 13 August 2009 the Severniy District Court of Oryol
rejected his complaint, finding as follows:
“Taking into account that Mr V.V. Kiyutin is
HIV-positive, the court considers that his application for temporary
residence in the Russian Federation was lawfully rejected.”
The applicant lodged an appeal, relying on the
Constitutional Court’s decision of 12 May 2006 (see paragraph 24
below) and the UN documents on AIDS prevention. On 16 September 2009
the Oryol Regional Court rejected his appeal in a summary fashion.
On
20 October 2009 the applicant underwent a medical examination at the
Oryol Regional Centre for AIDS Prevention. He was diagnosed with the
progressive phase of HIV, Hepatitis B and C, and prescribed highly
active antiretroviral therapy (HAART) for life-saving indications.
On 25 November 2009 the Oryol Regional Court refused
to institute supervisory-review proceedings and upheld the previous
judgments as lawful and justified, finding:
“In his application for supervisory review Mr
Kiyutin argued that the courts did not take into account his family
situation and state of health when deciding on his application for a
residence permit, which was at variance with the Constitutional
Court’s decision of 12 May 2006. This argument is not a ground
for quashing the judicial decisions.
The applicable laws governing the entry and residence of
foreign nationals in Russia do not require the law-enforcement
authorities or the courts to determine the state of health of
HIV-infected foreign nationals or the clinical stage of their disease
for the purpose of deciding whether a residence permit may be issued.
When deciding on the issue of a temporary residence for
a HIV-positive individual, the courts may, but are not obliged, to
take into account the factual circumstances of a specific case on the
basis of humanitarian considerations.
In addition, a foreign national who applies for a
residence permit in Russia must produce a certificate showing his
HIV-negative status; if the status is HIV-positive, the law prohibits
the said permit from being issued.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. HIV Prevention Act (no. 38-FZ of 30 March 1995)
In the relevant part, the preamble to the Act reads: :
“Recognising that the chronic disease caused by
the human immunodeficiency syndrome (HIV),
is spread widely throughout the world,
has grave socio-economic and demographic consequences
for the Russian Federation,
poses a threat to personal, public and national
security, and a threat to the existence of humankind,
calls for the protection of the rights and lawful
interests of the population ...”
Pursuant
to section 4 § 1, the State guarantees free medical assistance
to Russian nationals who are infected with HIV.
Section
11 § 2 provides that foreign nationals and stateless persons who
are in the Russian territory are to be deported once it is discovered
that they are HIV-positive.
B. Foreign Nationals Act (no. 115-FZ of 25 July 2002)
Section
5 provides that foreign nationals who do not require a visa to enter
the Russian Federation may stay in Russia for a period not exceeding
ninety days and must leave Russia upon expiry of that period.
Section 6 § 3 (4) and (6.2) establishes that an
alien who is married to a Russian national or who has a Russian child
is eligible for a three-year residence permit, independently of the
professional quotas determined by the Government.
Section 6 § 8 and Government Resolution no. 789
of 1 November 2002 define the list of documents that must be enclosed
with an alien’s application for a residence permit. Among other
documents, an applicant must produce a medical certificate showing
that he or she is not infected with HIV.
Section
7 contains the list of grounds for refusing a temporary residence
permit or annulling a previously issued residence permit. In
particular, an application for a residence permit will be refused if
the foreigner is a drug-abuser or is unable to produce a certificate
showing that he or she is not infected with HIV (paragraph 1 (13)).
C. Provision of medical assistance to foreign nationals
According to the Rules on the provision of medical
assistance to foreign nationals in the Russian territory (Government
Resolution no. 546 of 1 September 2005), only emergency treatment may
be provided to foreign nationals free of charge (§ 3). Other
medical assistance may be provided on a paid basis (§ 4).
D. Case-law of the Constitutional Court
On 12 May 2006 the Constitutional Court rejected a
constitutional complaint introduced by the Ukrainian national X. who
was HIV-positive and lived in Russia with his Russian wife and
daughter (decision no. 155 O). Mr X. complained that
section 11 § 2 of the HIV Prevention Act and section 7 § 1
(13) of the Foreign Nationals Act violated his right to respect for
his family life and his right to medical assistance and were also
discriminatory.
The Constitutional Court held that the contested
provisions were compatible with the Constitution as the restriction
on temporary residence of HIV-infected foreign nationals had been
imposed by the legislature for the protection of constitutional
values, the principal one being the right to State protection of
public health (§ 3.3).
Referring
to the UN Declaration of Commitment on HIV/AIDS of 27 June 2001, the
resolutions of the UN Commission on Human Rights and other
international instruments prohibiting HIV-related discrimination, as
well as this Court’s case-law on expulsion of foreign nationals
in general and HIV-infected foreigners in particular, the
Constitutional Court emphasised the principle of proportionality of
the measures adopted in pursuance of constitutional aims and noted:
“It follows that, confronted with a conflict
between equally protected constitutional values, the law-enforcement
authorities and courts may take into account, on the basis of
humanitarian considerations, the factual circumstances of a specific
case in determining whether a HIV-positive individual is eligible for
temporary residence in the Russian Federation.
Thus, the provisions of section 11 § 2 of the HIV
Prevention Act and section 7 § 13 of the Foreign Nationals Act
do not exclude the possibility that the law-enforcement authorities
and courts may – on the basis of humanitarian considerations –
take into account the family situation, the state of health of the
HIV-infected foreign national or stateless person, and other
exceptional but meritorious circumstances in determining whether the
person should be deported from the Russian Federation and whether he
or she should be admitted for temporary residence in the Russian
territory. In any event, the individual concerned should comply with
the obligation to respect the legally imposed preventive measures
aimed at curtailing the spread of HIV-infection.” (§ 4.2)
E. Criminal Code
Article 122 provides for criminal liability for
knowingly infecting another person with HIV or for knowingly exposing
someone to the risk of HIV infection. These acts are punishable by
deprivation of liberty of up to one year in duration.
III. RELEVANT INTERNATIONAL MATERIAL
On 27 June 2001 the United Nationals General Assembly
adopted a Declaration of Commitment on HIV/AIDS (Resolution S-26/2)
which provided, in particular:
“1. We, heads of State and Government
and representatives of States and Governments, assembled at the
United Nations ... to review and address the problem of HIV/AIDS in
all its aspects, as well as to secure a global commitment to
enhancing coordination and intensification of national, regional and
international efforts to combat it in a comprehensive manner ...
13. Noting further that stigma, silence,
discrimination and denial, as well as a lack of confidentiality,
undermine prevention, care and treatment efforts and increase the
impact of the epidemic on individuals, families, communities and
nations and must also be addressed ...
16. Recognizing that the full realization of
human rights and fundamental freedoms for all is an essential element
in a global response to the HIV/AIDS pandemic, including in the areas
of prevention, care, support and treatment, and that it reduces
vulnerability to HIV/AIDS and prevents stigma and related
discrimination against people living with or at risk of HIV/AIDS ...
31. Affirming the key role played by the
family in prevention, care, support and treatment of persons affected
and infected by HIV/AIDS, bearing in mind that in different cultural,
social and political systems various forms of the family exist ...
HIV/AIDS and human rights
58. By 2003, enact, strengthen or enforce, as
appropriate, legislation, regulations and other measures to eliminate
all forms of discrimination against and to ensure the full enjoyment
of all human rights and fundamental freedoms by people living with
HIV/AIDS and members of vulnerable groups, in particular to ensure
their access to, inter alia, education, inheritance,
employment, health care, social and health services, prevention,
support and treatment, information and legal protection, while
respecting their privacy and confidentiality; and develop strategies
to combat stigma and social exclusion connected with the epidemic
...”
The United Nations Commission on Human Rights first
spoke out against HIV/AIDS-related discrimination and stigma in its
Resolution no. 1995/44 (“The protection of human rights in
the context of HIV and AIDS”), which was adopted at its 53rd
meeting on 3 March 1995 and read in particular:
“1. Confirms that discrimination on the
basis of AIDS or HIV status, actual or presumed, is prohibited by
existing international human rights standards, and that the term ‘or
other status’ in non-discrimination provisions in international
human rights texts can be interpreted to cover health status,
including HIV/AIDS;
2. Calls upon all States to ensure, where
necessary, that their laws, policies and practices, including those
introduced in the context of HIV/AIDS, respect human rights
standards, including the right to privacy and integrity of people
living with HIV/AIDS, prohibit HIV/AIDS-related discrimination and do
not have the effect of inhibiting programmes for the prevention of
HIV/AIDS and for the care of persons infected with HIV/AIDS ...”
The
UNCHR upheld its stance against discrimination in the context of
HIV/AIDS in its subsequent Resolution no. 2005/84, adopted at its
61st meeting on 21 April 2005.
Article 2 § 2 of the International Covenant on
Economic, Social and Cultural Rights guarantees that the rights
recognised therein “will be exercised without discrimination of
any kind as to race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other
status”. In its General Comment on non-discrimination (no. 20,
2009), the Committee on Economic, Social and Cultural Rights has
expressly included health status and specifically HIV status, among
“other status” grounds referred to in Article 2 § 2:
“33. Health status refers to a person’s
physical or mental health. States parties should ensure that a
person’s actual or perceived health status is not a barrier to
realizing the rights under the Covenant. The protection of public
health is often cited by States as a basis for restricting human
rights in the context of a person’s health status. However,
many such restrictions are discriminatory, for example, when HIV
status is used as the basis for differential treatment with regard to
access to education, employment, health care, travel, social
security, housing and asylum.”
The Parliamentary Assembly of the Council of Europe
has touched upon the subject of HIV/AIDS in a number of documents.
Recommendation 1116 (1989) on AIDS and human rights emphasised
the following points:
“3. Noting that, although the Council
of Europe has been concerned with prevention ever since 1983, the
ethical aspects have been touched upon only cursorily;
4. Considering nevertheless that it is
essential to ensure that human rights and fundamental freedoms are
not jeopardised on account of the fear aroused by AIDS;
5. Concerned in particular at the
discrimination to which some AIDS victims and even seropositive
persons are being subjected ...
8. Recommends that the Committee of
Ministers:
A. instruct the Steering Committee for Human Rights to
give priority to reinforcing the non-discrimination clause in Article
14 of the European Convention on Human Rights, either by adding
health to the prohibited grounds of discrimination or by drawing up a
general clause on equality of treatment before the law ...
D. invite the member states of the Council of
Europe: ...
3. not to refuse the right of asylum on the
sole ground that the asylum-seeker is contaminated by the HIV virus
or suffers from AIDS ...”
Resolution
1536 (2007) reaffirmed PACE’s commitment to combat all forms of
discrimination against people living with HIV/AIDS:
“While emphasising that the HIV/Aids pandemic is
an emergency at the medical, social and economic level, the Assembly
calls upon parliaments and governments of the Council of Europe to:
9.1. ensure that their laws, policies and
practices respect human rights in the context of HIV/Aids, in
particular the right to education, work, privacy, protection and
access to prevention, treatment, care and support;
9.2. protect people living with HIV/Aids from
all forms of discrimination in both the public and private sectors
...”
The United Nations Convention on the Rights of Persons
with Disabilities, which entered into force on 3 May 2008 and which
Russia signed but not ratified, provides in particular:
Article 5 - Equality and non-discrimination
“2. States Parties shall prohibit all
discrimination on the basis of disability and guarantee to persons
with disabilities equal and effective legal protection against
discrimination on all grounds ...”
Article 18 - Liberty of movement and nationality
“1. States Parties shall recognize the
rights of persons with disabilities to liberty of movement, to
freedom to choose their residence and to a nationality, on an equal
basis with others, including by ensuring that persons with
disabilities:
...
2. Are not deprived, on the basis of
disability, of their ability to obtain, possess and utilize
documentation of their nationality or other documentation of
identification, or to utilize relevant processes such as immigration
proceedings, that may be needed to facilitate exercise of the right
to liberty of movement ...”
Article 23 - Respect for home and the family
“1. States Parties shall take effective
and appropriate measures to eliminate discrimination against persons
with disabilities in all matters relating to marriage, family,
parenthood and relationships, on an equal basis with others ...”
The UNAIDS/IOM (Joint United Nations Programme on
HIV/AIDS/International Organization for Migration) statement on
HIV/AIDS-related travel restrictions, June 2004, contained the
following recommendations:
“1. HIV/AIDS should not be considered
to be a condition that poses a threat to public health in relation to
travel because, although it is infectious, the human immunodeficiency
virus cannot be transmitted by the mere presence of a person with HIV
in a country or by casual contact (through the air, or from common
vehicles such as food or water). HIV is transmitted through specific
behaviours which are almost always private. Prevention thus requires
voluntary acts and cannot be imposed. Restrictive measures can in
fact run counter to public health interests, since exclusion of
HIV-infected non-nationals adds to the climate of stigma and
discrimination against people living with HIV and AIDS, and may thus
deter nationals and non-nationals alike from coming forward to
utilize HIV prevention and care services. Moreover, restrictions
against non-nationals living with HIV may create the misleading
public impression that HIV/AIDS is a “foreign” problem
that can be controlled through measures such as border controls,
rather than through sound public health education and other
prevention methods ...
3. Restrictions against entry or stay that
are based on health conditions, including HIV/AIDS, should be
implemented in such a way that human rights obligations are met,
including the principle of non-discrimination, non-refoulement
of refugees, the right to privacy, protection of the family,
protection of the rights of migrants, and protection of the best
interests of the child. Compelling humanitarian needs should also be
given due weight.
4. Any health-related travel restriction
should only be imposed on the basis of an individual
interview/examination. In case of exclusion, persons should be
informed orally and in writing of the reasons for the exclusion.
5. Comparable health conditions should be
treated alike in terms of concerns about potential economic costs
relating to the person with the condition. Those living with HIV/AIDS
who seek entry for short-term or long-term stays should not be
singled out for exclusion on this financial basis.
6. Exclusion on the basis of possible costs
to health care and social assistance related to a health condition
should only be considered where it is shown, through individual
assessment, that the person requires such health and social
assistance; is likely in fact to use it in the relatively near
future; and has no other means of meeting such costs (e.g. through
private or employment-based insurance, private resources, support
from community groups); and that these costs will not be offset
through benefits that exceed them, such as specific skills, talents,
contribution to the labour force, payment of taxes, contribution to
cultural diversity, and the capacity for revenue or job creation.
7. If a person living with HIV/AIDS is
subject to expulsion (deportation), such expulsion (deportation)
should be consistent with international legal obligations including
entitlement to due process of law and access to the appropriate means
to challenge the expulsion. Consideration should be given to
compelling reasons of a humanitarian nature justifying authorisation
for the person to remain ...”
The International Guidelines on HIV/AIDS and Human
Rights (2006 consolidated version), published by the Office of the UN
High Commissioner for Human Rights and the UNAIDS, read in
particular:
“102. The key human rights principles
which are essential to effective State responses to HIV are to be
found in existing international instruments ... Among the human
rights principles relevant to HIV/AIDS are, inter alia:
the
right to non-discrimination, equal protection and equality before
the law ...
the
right to freedom of movement ...
104. Under international human rights law,
States may impose restrictions on some rights, in narrowly defined
circumstances, if such restrictions are necessary to achieve
overriding goals, such as public health, the rights of others,
morality, public order, the general welfare in a democratic society
and national security ...
105. Public health is most often cited by
States as a basis for restricting human rights in the context of HIV.
Many such restrictions, however, infringe on the principle of
non-discrimination, for example when HIV status is used as the basis
for differential treatment with regard to access to education,
employment, health care, travel, social security, housing and asylum
...
127. There is no public health rationale for
restricting liberty of movement or choice of residence on the grounds
of HIV status. According to current international health regulations,
the only disease which requires a certificate for international
travel is yellow fever [footnote omitted]. Therefore, any
restrictions on these rights based on suspected or real HIV status
alone, including HIV screening of international travellers, are
discriminatory and cannot be justified by public health concerns.
128. Where States prohibit people living with
HIV from longer-term residency due to concerns about economic costs,
States should not single out HIV/AIDS, as opposed to comparable
conditions, for such treatment and should establish that such costs
would indeed be incurred in the case of the individual alien seeking
residency. In considering entry applications, humanitarian concerns,
such as family reunification and the need for asylum, should outweigh
economic considerations.”
The Report on the International Task Team on
HIV-related Travel Restrictions, convened by the UNAIDS in 2008,
contained the following findings:
“The Task Team confirmed that HIV-specific
restrictions on entry, stay and residence based on HIV status are
discriminatory, do not protect the public health and do not
rationally identify those who may cause an undue burden on public
funds. In particular, the Task Team made the following findings:
The
Task Team found no evidence that HIV-related restrictions on entry,
stay and residence protect the public health and was concerned that
they may in fact impede efforts to protect the public health.
Restrictions
on entry, stay and residence that specify HIV, as opposed to
comparable conditions, and/or are based on HIV status alone are
discriminatory.
Exclusion
or deportation of HIV-positive people to avoid potential costs of
treatment and support should be based on an individual assessment of
the actual costs that are likely to be incurred, should not single
out HIV, and should not override human rights considerations or
humanitarian claims.”
IV. COMPARATIVE DATA
In
May 2009 UNAIDS, the Joint United Nations Programme on HIV/AIDS,
published a survey Mapping of Restrictions on the entry, stay and
residence of people living with HIV. The latest updated version
of the survey (as of May 2010) is available on its web-site.
According to the survey, 124 countries, territories
and areas world-wide have no HIV-specific restrictions on entry, stay
or residence. The other 52 countries, territories or areas impose
some form of restriction on the entry, stay and residence of people
living with HIV based on their HIV status. The latter category
includes seven Council of Europe Member States.
Not one of Council of Europe Member States refuses
visa or entry for a short-term stay on account of the individual’s
HIV status. Three States (Armenia, Moldova and Russia) may deport
individuals once their HIV positive status is discovered. Those
States and three others (Andorra, Cyprus and Slovakia) require the
person applying for a residence permit to show that he or she is
HIV-negative. Finally, Lithuania requires a declaration as to whether
the individual has a “disease threatening to public health”.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN
IN CONJUNCTION WITH ARTICLE 8
The
applicant complained under Articles 8, 13, 14 and 15 of the
Convention that the decision to refuse him authorisation to reside in
Russia had been disproportionate to the legitimate aim of the
protection of public health and had disrupted his right to live with
his family. The Court notes that the focal point of the present
application is the difference of treatment to which the applicant was
subjected on account of his health status when applying for a
residence permit. Having regard to the circumstances of the case and
bearing in mind that it is master of the characterisation to be given
in law to the facts of the case (see Guerra and Others v. Italy,
19 February 1998, § 44, Reports of Judgments and Decisions
1998 I), the Court considers it appropriate to examine the
applicant’s grievances from the standpoint of Article 14 of the
Convention, taken in conjunction with Article 8 (compare Abdulaziz,
Cabales and Balkandali v. the United Kingdom, 28 May 1985, §
70, Series A no. 94). Those provisions read:
Article 8
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
Article 14
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
A. Submissions by the parties
1. The Government
The Government submitted that the applicant still
lived in the Oryol Region and that, given his family ties and health
condition, he had not been deported. The refusal of a residence
permit did not interfere with his right to respect for his family
life and, even assuming that it did, such interference had a legal
basis in section 7 § 1 (13) of the Foreign Nationals Act. It was
also justified by the Russian authorities’ concerns about the
massive spread of the HIV epidemic and its socio-economic and
demographic consequences in the Russian Federation, the threat it
posed to personal, public and national security and to the existence
of humankind, and the need to ensure the protection of the rights and
lawful interests of the population. The refusal of residence permit
was a necessary measure directed at preventing and combating HIV
infection.
The
Government pointed out that the applicant had the right to remain in
the Russian territory as long as he complied with the regulations on
the entry, exit and stay of foreign nationals. As he was not eligible
for a residence permit but did not need a visa to enter Russia for a
period of up to ninety days, he could leave Russia every ninety days
and then return. Moreover, the refusal of a residence permit did not
prevent the applicant from conducting his family life in Uzbekistan,
where his wife and daughter could join him (the Government referred
to the cases of Slivenko v. Latvia [GC], no. 48321/99,
ECHR 2003 X, and Abdulaziz, cited above).
In their additional observations, the Government
submitted that the potential danger which the applicant presented for
the general public was confirmed by the prevalence of the HIV
infection in the world and also by the fact that he had been
convicted of serious and particularly serious criminal offences in
Uzbekistan. The domestic courts did not need to examine his
individual situation or the information on his state of health or
lifestyle because such considerations were legally irrelevant for
determination of the present case.
2. The applicant
The
applicant disputed the Government’s submission that the
domestic authorities had taken into account his state of health and
family situation. He pointed out that these circumstances had not
been mentioned in the domestic judgments and that the Constitutional
Court’s decision of 12 May 2006 had remained a mere
declaration without practical effect. He believed that he had not
been yet deported solely because of the “wait and see”
attitude of the Russian authorities, who had initially awaited the
outcome of the domestic proceedings and were now waiting for the
Strasbourg Court’s judgment. Besides, when referring to his
health condition, the Government did not specify whether they meant
the HIV infection in general or its recent complication in the form
of aggravated tuberculosis, which required in-patient treatment and
rendered him unfit for transport.
As
regards the existence of an interference, the applicant submitted
that section 5 of the Foreign Nationals Act limited his lawful stay
in Russia to ninety days and that no further extension was possible
by virtue of section 7, which required him to produce a certificate
showing that he was HIV-negative. He learnt of the infection only
after he had moved to Russia and married a Russian national and he
could not therefore have foreseen that he would not able to obtain
residence in Russia. His entire family, including his mother, was in
Russia and his wife and daughter were born there and he had solid
social, economic and personal connections in Russia, whereas he had
no relatives, work or accommodation in Uzbekistan. In the applicant’s
opinion, these elements distinguished his case from that of Slivenko
v. Latvia, in which the Russian authorities had provided the
head of the Slivenko family with a flat in Kursk.
On
the proportionality of the alleged interference with his family life,
the applicant emphasised that the Russian courts had proceeded from
the presumption that he presented a grave danger to the Russian
population’s health. They did not analyse his lifestyle or
explain why it could lead to an epidemic or pose a threat to the
national security, public order or economic well-being of Russia, or
undermine the rights and freedoms of others. He did not engage in
promiscuous sexual contacts or in drug abuse and he respected the
security measures appropriate for his health condition. That the
Russian courts did not heed these circumstances was indicative of
inadmissible discrimination on account of his health status.
3. The third party
Interights
as the third party submitted firstly that the general
non-discrimination provisions of the key universal and regional human
rights treaties were interpreted as prohibiting discrimination on the
basis of HIV or AIDS status, actual or presumed. This interpretation
was adopted by the United Nations Committee on Human Rights, the
Committee on Economic, Social and Cultural Rights, the Sub-Commission
on Prevention of Discrimination and Protection of Minorities, and the
Committee on the Rights of the Child. In the Declaration of
Commitment on HIV/AIDS adopted by the UN General Assembly in August
2001, member states set out their commitment to adopt and enforce
legislation aimed at eliminating all forms of discrimination against
people living with HIV/AIDS. At European level, the Council of Europe
Parliamentary Assembly called for reinforcement of Article 14 of the
Convention with respect to people living with HIV/AIDS and for their
enhanced protection in both public and private sectors.
Secondly,
the third party argued that, in addition to the general
anti-discrimination standards existing under international law,
people living with HIV/AIDS should benefit from the prohibition on
discrimination on account of disability existing in the Court’s
case-law and in other legal systems. The applicability of the
disability anti-discrimination framework established under the
Convention on the Rights of Persons with Disabilities to people
living with HIV/AIDS was endorsed by the Office of the High
Commissioner for Human Rights, the World Health Organisation and the
UN Programme on HIV/AIDS (UNAIDS) in their joint Disability and
HIV Policy Brief (2009). The disability-based approach to HIV was
further supported by the legislation and practice of many countries
that had expressly or implicitly extended their disability laws to
include HIV status (Canada, USA, the United Kingdom, Germany and
Norway). In Glor v. Switzerland, this Court also
recognised that Article 14 of the Convention protected against
discrimination based on disability (no. 13444/04, § 80, ECHR
2009 ...).
International
law does not recognise a right to settle in a foreign country and
travel restrictions may not be illegitimate per se when
applied in a neutral fashion; however, those same restrictions will
be in breach of anti-discrimination standards if they single out
persons living with HIV for differential treatment without an
objective justification. In assessing whether a difference of
treatment is justified, this Court had identified a number of
particularly vulnerable groups – for instance, Roma,
homosexuals, persons with mental disabilities – that suffered a
history of prejudice and social exclusion, in respect of which the
State has a narrower margin of appreciation. In the third party’s
submission, people living with HIV formed one such group, for they
have suffered from widespread stigma and ostracism, including in the
Council of Europe region, and the State should be afforded only a
narrow margin of appreciation in choosing measures that subject
persons living with HIV to differential treatment.
The
third party identified two possible justifications for differential
treatment on account of one’s HIV status: the public health
threat rationale and the public cost rationale. With regard to public
health concerns, it pointed to the existing consensus among experts
and international bodies working in the field of public health that
such measures were ineffective in preventing the spread of HIV
(reference was made to documents and statements by the World Health
Organisation, the UN High Commissioner for Human Rights, the
International Organisation for Migration, the UN High Commissioner
for Refugees, the World Bank, the International Labour Organisation,
the European Parliament and Commission). In 2008 the UNAIDS
International Task Team on HIV-related Travel Restrictions found no
evidence that HIV-related travel restrictions protected public
health. Although HIV is a transmissible disease, it is not contagious
in the sense of being spread by airborne particles or by casual
contact, but rather by specific behaviour, such as unprotected sex or
the use of contaminated syringes, which enables HIV-negative persons
to take steps to protect themselves against transmission. The
public-health justification was further undermined by the argument
that travel restrictions did not apply to leaving and returning
nationals or short-stay foreign tourists. Such measures could also be
harmful to the public health of the country’s own nationals
because they created a misplaced sense of security by portraying
HIV/AIDS as a foreign problem and underplaying the need to engage in
safe behaviour and because they prompted migrants to avoid HIV
screening and to remain in the country illegally, which cut them off
from HIV prevention and care services.
In
the third party’s view, national immigration policies
demonstrated that most countries in the world shared the
understanding that HIV-related travel restrictions were not an
efficient measure to protect public health. This was implicitly borne
out by the fact that a majority of states did not enforce any such
restrictions and that a number of countries had recently lifted such
restrictions and recognised that HIV did not pose a threat to public
health (USA, China and Namibia). Other countries had considered the
possibility of implementing HIV-related travel restrictions but
ultimately rejected it, reflecting the absence of a rational
connection between such measures and effective prevention (the United
Kingdom, Germany). It was moreover acknowledged that less restrictive
but more effective alternatives for the protection of public health
were available and those included voluntary testing and counselling
and information campaigns.
On
the issue of preventing excessive spending in publicly funded health
care systems, the third party pointed to the Court’s finding in
the case of G.N. and Others v. Italy (no. 43134/05, §
129, 1 December 2009), in which it held that in the context of health
policies insufficient resources cannot be used as a justification for
adopting measures based on arbitrary criteria. Immigration
restrictions that single out HIV while omitting other equally costly
conditions such as cardiovascular or kidney disease appear to be
arbitrary and discriminatory. Furthermore, public cost-related
restrictions should be based on the individualised assessment of a
person’s health and financial circumstances rather than on the
mere presence of a certain medical condition. The third party
referred in this connection to the recommendations contained in the
UNAIDS/IOM statement (see paragraph 33 above) and the case-law of the
Supreme Court of Canada, which held that if the need for potential
services were considered only on the basis of the classification of
the impairment rather than on its particular manifestation, the
assessment would become general rather than individual and would
result “in an automatic exclusion for all individuals with a
particular disability, even those whose admission would not cause, or
would not reasonably be expected to cause, excessive demands on
public funds” (Hilewitz v. Canada (Minister of Citizenship
and Immigration); De Jong v. Canada, 2005 SCC 57,
para. 56).
B. Admissibility
The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
C. Merits
1. Applicability of Article 14, taken in conjunction
with Article 8
(a) Whether the facts of the case fall
“within the ambit” of Article 8
The
Court reiterates at the outset that the right of an alien to enter or
to settle in a particular country is not guaranteed by the
Convention. Where immigration is concerned, Article 8 or any other
Convention provision cannot be considered to impose on a State a
general obligation to respect the choice by married couples of the
country of their matrimonial residence and to authorise family
reunion in its territory (see Gül v. Switzerland,
19 February 1996, § 38, Reports 1996 I).
Neither party contests this. However, even though Article 8 does not
include a right to settle in a particular country or a right to
obtain a residence permit, the State must nevertheless exercise its
immigration policies in a manner which is compatible with a foreign
national’s human rights, in particular the right to respect for
their private or family life and the right not to be subject to
discrimination (see Abdulaziz, cited above, §§
59-60, and Nolan and K. v. Russia, no. 2512/04, §
62, 12 February 2009).
As
regards protection against discrimination, it is recalled that
Article 14 only complements the other substantive provisions of the
Convention and the Protocols thereto. It has no independent existence
because it has effect solely in relation to “the enjoyment of
the rights and freedoms” safeguarded by those provisions (see,
among many other authorities, Sahin v. Germany [GC], no.
30943/96, § 85, ECHR 2003-VIII). The application of Article 14
does not necessarily presuppose the violation of one of the
substantive rights protected by the Convention. What is necessary,
and also sufficient, is that the facts of the case fall “within
the ambit” of one or more of the Articles of the Convention or
its Protocols (see Petrovic v. Austria, 27 March 1998, §
22, Reports 1998-II).
The
applicant is an Uzbekistan national of Russian origin who has been
living in Russia since 2003. Admittedly, not all settled migrants, no
matter how long they have been residing in the country from which
they are to be expelled, necessarily enjoy “family life”
there within the meaning of Article 8 (see Maslov v. Austria
[GC], no. 1638/03, § 63, 23 June 2008). However, the concept of
“family life” must at any rate include the relationships
that arise from a lawful and genuine marriage (see Abdulaziz,
cited above, § 62), such as that contracted by the applicant
with his Russian spouse and in which their child was born. In these
circumstances, the Court finds that the facts of the case fall
“within the ambit” of Article 8 of the Convention.
(b) Whether the applicant’s health
status was “other status” within the meaning of
Article 14
Article
14 does not prohibit all differences in treatment but only those
differences based on an identifiable, objective or personal
characteristic, or “status”, by which persons or groups
of persons are distinguishable from one another (see Carson and
Others v. the United Kingdom [GC], no. 42184/05, §§ 61
and 70, ECHR 2010 ..., and Kjeldsen, Busk
Madsen and Pedersen v. Denmark, 7 December 1976, § 56,
Series A no. 23). It lists specific grounds which constitute “status”
including, inter alia, sex, race and property. However, the
list set out in Article 14 is illustrative and not exhaustive, as is
shown by the words “any ground such as” (in French
“notamment”) (see Engel and Others v. the
Netherlands, 8 June 1976, § 72, Series A no. 22, and
Carson, cited above, § 70) and the inclusion in the list
of the phrase “any other status” (in French “toute
autre situation”). The words “other status”
have generally been given a wide meaning (see Carson, cited
above, § 70) and their interpretation has not been limited to
characteristics which are personal in the sense that they are innate
or inherent (see Clift v. the United Kingdom, no. 7205/07, §§
56-58, 13 July 2010).
Following
the disclosure of the applicant’s HIV-positive status, it has
become legally impossible for him to be admitted for lawful residence
in Russia because of a legal provision that restricted issuance of
residence permits to aliens who were unable to show their
HIV-negative status. Although Article 14 does not expressly list a
health status or any medical condition among the protected grounds of
discrimination, the Court has recently recognised that a physical
disability and various health impairments fall within the scope of
this provision (see Glor, §§ 53-56, and G.N.,
§ 119, both cited above). The Court notes the view of the UN
Commission on Human Rights that the term “other status”
in non-discrimination provisions in international legal instruments
can be interpreted to cover health status, including HIV-infection
(see paragraph 29 above). This approach is compatible with
Recommendation 1116 (1989) by the Parliamentary Assembly of the
Council of Europe, which called for reinforcement of the
non-discrimination clause in Article 14 by including health among the
prohibited grounds of discrimination (see paragraph 31 above) and
with the UN Convention on the Rights of Persons with Disabilities
which imposed on its State parties a general prohibition of
discrimination on the basis of disability (see paragraph 32 above).
Accordingly, the Court considers that a distinction made on account
of one’s health status, including such conditions as HIV
infection, should be covered – either as a form of disability
or alongside with it – by the term “other status”
in the text of Article 14 of the Convention.
It
follows that Article 14 of the Convention, taken in conjunction with
Article 8, is applicable.
2. Compliance with Article 14, taken in conjunction
with Article 8
(a) Whether the applicant was in a
analogous position to other aliens
The
Court has established in its case-law that discrimination means
treating differently, without an objective and reasonable
justification, persons in analogous, or relevantly similar,
situations (see D.H. and Others v. the Czech Republic [GC],
no. 57325/00, § 175, ECHR 2007, and Burden v. the United
Kingdom [GC], no. 13378/05, § 60, ECHR 2008 ...).
As
the spouse of a Russian national and father of a Russian child, the
applicant was eligible to apply for a residence permit by virtue of
his family ties in Russia (see paragraph 20 above). For his
application to be completed, he needed to submit to HIV-testing and
enclose a certificate showing that he was not infected with HIV (see
paragraph 21 above). After the test revealed his HIV-positive status,
his application for a residence permit was rejected on account of the
absence of the mandatory HIV clearance certificate. This was the only
ground referred to in the decisions of the Russian Migration Service
and the Russian courts (see paragraphs 11 to 13 above). In so far as
the Government claimed that the applicant also posed a threat to
public order because he had been previously convicted of serious
crimes in Uzbekistan, the Court observes that their allegation was
not supported with any specific evidence or documents and that the
domestic authorities had obviously refused him a residence permit
because of his HIV status rather than because of any criminal history
he may have had.
The
Court therefore considers that the applicant can claim to be in a
situation analogous to that of other foreign nationals for the
purpose of an application for a residence permit on account of their
family ties in Russia.
(b) Whether the difference in treatment
was objectively and reasonably justified
Once
the applicant has shown that there has been a difference in
treatment, it is then for the respondent Government to show that the
difference in treatment could be justified (see Chassagnou and
Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95,
§§ 91-92, ECHR 1999 III). Such justification must be
objective and reasonable or, in other words, it must pursue a
legitimate aim and there must be a reasonable relationship of
proportionality between the means employed and the aim sought to be
realised. The Contracting State enjoys a margin of appreciation in
assessing whether and to what extent differences in otherwise similar
situations justify a different treatment. The scope of this margin
will vary according to the circumstances, the subject-matter and the
background (see Burden, § 60; Carson, § 61,
and Clift, § 43, all cited above).
If
a restriction on fundamental rights applies to a particularly
vulnerable group in society that has suffered considerable
discrimination in the past, then the State’s margin of
appreciation is substantially narrower and it must have very weighty
reasons for the restrictions in question. The reason for this
approach, which questions certain classifications per se, is
that such groups were historically subject to prejudice with lasting
consequences, resulting in their social exclusion. Such prejudice
could entail legislative stereotyping which prohibited the
individualised evaluation of their capacities and needs (see Alajos
Kiss v. Hungary, no. 38832/06, § 42, ECHR 2010 ...).
In the past the Court has identified a number of such vulnerable
groups that suffered different treatment on account of their sex (see
Abdulaziz, cited above, § 78, and Burghartz v.
Switzerland, 22 February 1994, § 27, Series A no.
280 B), sexual orientation (see Schalk and Kopf v. Austria,
no. 30141/04, § 97, ECHR 2010 ..., and Smith and Grady
v. the United Kingdom, nos. 33985/96 and 33986/96, § 90,
ECHR 1999 VI), race or ethnicity (see D.H., cited above,
§ 182, and Timishev v. Russia, nos. 55762/00 and
55974/00, § 56, ECHR 2005 XII), mental faculties (see
Alajos Kiss, cited above, § 42, and, mutatis mutandis,
Shtukaturov v. Russia, no. 44009/05, § 95, 27 March
2008), or disability (see Glor, cited above, § 84).
From
the onset of the epidemic in the 1980s, people living with HIV/AIDS
have suffered from widespread stigma and exclusion, including within
the Council of Europe region (see, in particular, Recommendation 1116
(1989) on AIDS and human rights, and point 9.2 of Resolution 1536
(2007), both cited in paragraph 31 above). In the early years of the
epidemic when HIV/AIDS diagnosis was nearly always a lethal condition
and very little was known about the risk of transmission, people were
scared of those infected due to fear of contagion. Ignorance about
how the disease spreads has bred prejudices which, in turn, has
stigmatised or marginalised those who carry the virus. As the
information on ways of transmission accumulated, HIV infection has
been traced back to behaviours – such as same-sex intercourse,
drug injection, prostitution or promiscuity – that were already
stigmatised in many societies, creating a false nexus between the
infection and personal irresponsibility and reinforcing other forms
of stigma and discrimination, such as racism, homophobia or misogyny.
In recent times, despite considerable progress in HIV prevention and
better access to HIV treatment, stigma and related discrimination
against people living with HIV/AIDS has remained a subject of great
concern for all international organisations active in the field of
HIV/AIDS. The UN Declaration of Commitment on HIV/AIDS noted that the
stigma “increase[d] the impact of the epidemic on individuals,
families, communities and nations” (see paragraph 28 above) and
UN Secretary General Mr Ban Ki-moon acknowledged that “to
greater or lesser degrees, almost everywhere in the world,
discrimination remain[ed] a fact of daily life for people living with
HIV” (6 August 2008). The Court therefore considers that people
living with HIV are a vulnerable group with a history of prejudice
and stigmatisation and that the State should be afforded only a
narrow margin of appreciation in choosing measures that single out
this group for differential treatment on the basis of their HIV
status.
The
existence of a European consensus is an additional consideration
relevant for determining whether the respondent State should be
afforded a narrow or a wide margin of appreciation (see Dickson v.
the United Kingdom [GC], no. 44362/04, § 81, ECHR 2007 XIII,
and S.L. v. Austria, no. 45330/99, § 31, ECHR 2003 I
(extracts)). Where there is a common standard which the respondent
State has failed to meet, this may constitute a relevant
consideration for the Court when it interprets the provisions of the
Convention in specific cases (see Tănase v. Moldova [GC],
no. 7/08, § 176, ECHR 2010 ..., and Demir and Baykara v.
Turkey [GC], no. 34503/97, § 85, 12 November 2008). The
Court observes that, out of forty-seven Member States of the Council
of Europe, only six States require an individual applying for a
residence permit to submit negative HIV test results, that one State
requires a declaration to that effect, and that only three States
make provision for the deportation of aliens who are found to be
HIV-positive (see paragraphs 37 and 38 above). The other Contracting
States do not impose any restrictions on the entry, stay or residence
of people living with HIV on account of their HIV status. It appears
therefore that the exclusion of HIV-positive applicants from
residence does not reflect an established European consensus and has
little support among the Council of Europe member States.
Accordingly, the respondent State is under an obligation to provide a
particularly compelling justification for the differential treatment
of which the applicant complained to have been a victim.
The
Government put forward a number of aims pursued by the impugned
restriction which appeared to follow closely the text of the preamble
to the HIV Prevention Act (see paragraphs 16 and 40 above). They did
not explain how the alleged threats to national security and to the
existence of humankind were relevant to the applicant’s
individual situation, what socio-economic or demographic consequences
his presence in the Russian territory could entail or why the refusal
of a residence permit would enhance the protection of the rights and
interests of others. It transpires nevertheless from the
Constitutional Court’s decision that the restriction on
temporary residence of HIV-infected foreign nationals had the aim of
ensuring the protection of public health (see paragraph 25 above).
Whilst that aim is without doubt legitimate, this does not in itself
establish the legitimacy of the specific treatment afforded to the
applicant on account of his health status. It has to be ascertained
whether there is a reasonable relationship of proportionality between
the aim pursued and the means employed.
The
Court has consistently held that it takes into account relevant
international instruments and reports in order to interpret the
guarantees of the Convention and to establish whether there is a
common standard in the field. It is for the Court to decide which
international instruments and reports it considers relevant and how
much weight to attribute to them (see Tănase, § 176,
and Demir and Baykara, §§ 85-86, both cited
above). In the present case the Court considers undoubtedly relevant
the third party’s submission on the existing consensus among
experts and international bodies active in the field of public
health, which agreed that travel restrictions on people living with
HIV could not be justified by reference to public health concerns.
The World Health Organization rejected travel restrictions as an
ineffective way to prevent the spread of HIV as long ago as 1987
(Report on the Consultation on International Travel and HIV
Infection, 2-3 March 1987). The same view has since been
expressed by the UN High Commissioner for Human Rights (see the
extracts from the International Guidelines on HIV/AIDS and Human
Rights, cited in paragraph 34 above), the International Organization
for Migration (see the UNAIDS/IOM statement, cited in paragraph 33
above), the UN High Commissioner for Refugees (UNHCR, Note on
HIV/AIDS and the Protection of Refugees, IDPs and Other Persons of
Concern, 2006), the World Bank (Legal Aspects of HIV/AIDS,
2007), and, most recently, the International Labour Organization (ILO
Recommendation concerning HIV and AIDS and the World of Work, no.
200, 2010). At the European level, the European Parliament and the
European Commission acknowledged that “there are no objective
reasons for a travel ban on HIV infected people” (Resolution of
22 May 2008). The respondent Government, for their part, did not
adduce any expert opinions or scientific analysis that would be
capable of gainsaying the unanimous view of international experts.
Admittedly,
travel restrictions are instrumental for the protection of public
health against highly contagious diseases with a short incubation
period, such as cholera or yellow fever or, to take more recent
examples, severe acute respiratory syndrome (SARS) and “bird
flu” (H5N1). Entry restrictions relating to such conditions can
help to prevent their spread by excluding travellers who may transmit
these diseases by their presence in a country through casual contact
or airborne particles. However, the mere presence of a HIV-positive
individual in a country is not in itself a threat to public health:
HIV is not transmitted casually but rather through specific
behaviours that include sexual intercourse and sharing of syringes as
the main routes of transmission. This does not put prevention
exclusively within the control of the HIV-infected non-national but
rather enables HIV negative persons to take steps to protect
themselves against the infection (safer sex and safer injections).
Excluding HIV-positive non-nationals from entry and/or residence in
order to prevent HIV transmission is based on the assumption that
they will engage in specific unsafe behaviour and that the national
will also fail to protect himself or herself. This assumption amounts
to a generalisation which is not founded in fact and fails to take
into account the individual situation, such as that of the applicant.
Besides, under Russian law any form of behaviour by an HIV positive
person who is aware of his or her HIV-status that exposes someone
else to the risk of HIV infection is in itself a criminal offence
punishable by deprivation of liberty (see paragraph 27 above). The
Government did not explain why these legal sanctions were not
considered sufficient to act as a deterrent against the behaviours
that entail the risk of transmission.
Furthermore,
it appears that Russia does not apply HIV-related travel restrictions
to tourists or short-term visitors. Nor does it impose HIV tests on
Russian nationals leaving and returning to the country. Taking into
account that the methods of HIV transmission remain the same
irrespective of the duration of a person’s presence in the
Russian territory and his or her nationality, the Court sees no
explanation for a selective enforcement of HIV-related restrictions
against foreigners who apply for residence in Russia but not against
the above-mentioned categories, who actually represent the great
majority of travellers and migrants. There is no reason to assume
that they are less likely to engage in unsafe behaviour than settled
migrants. In this connection the Court notes with great concern the
Government’s submission that the applicant should have been
able to circumvent the provisions of the Foreign Nationals Act by
leaving and re entering Russia every ninety days. This
submission casts doubt on the genuineness of the Government’s
public-health concerns relating to the applicant’s presence in
Russia. In addition, the existing HIV tests to which an applicant for
Russian residence must submit will not always identify the presence
of the virus in some newly infected persons, who may happen to be in
the time period during which the test does not detect the virus and
which may last for several months. It follows that the application of
HIV related restrictions only in the case of prospective
long-term residents is not an effective approach in preventing the
transmission of HIV by HIV positive migrants.
The
differential treatment of HIV-positive long-term settlers as opposed
to short-term visitors may be objectively justified by the risk that
the former could potentially become a public burden and place an
excessive demand on the publicly-funded health care system, whereas
the latter would seek treatment elsewhere. However, such economic
considerations for the exclusion of prospective HIV-positive
residents are only applicable in a legal system where foreign
residents may benefit from the national health care scheme at a
reduced rate or free of charge. This is not the case in Russia:
non-Russian nationals have no entitlement to free medical assistance,
except emergency treatment, and have to pay themselves for all
medical services (see paragraph 23 above). Thus, irrespective of
whether or not the applicant obtained a residence permit in Russia,
he would not be eligible to draw on Russia’s public health care
system. Accordingly, the risk that he would represent a financial
burden on Russian health care funds was not convincingly established.
Finally,
it is noted that travel and residence restrictions on persons living
with HIV may not only be ineffective in preventing the spread of the
disease, but may also be actually harmful to the public health of the
country. Firstly, migrants would remain in the country illegally so
as to avoid HIV screening, in which case their HIV-status would be
unknown both to the health authorities and to migrants themselves.
This would prevent them from taking the necessary precautions,
avoiding unsafe behaviour and accessing HIV prevention information
and services. Secondly, the exclusion of HIV-positive foreigners may
create a false sense of security by encouraging the local population
to consider HIV/AIDS as a “foreign problem” that has been
taken care of by deporting infected foreigners and not allowing them
to settle, so that the local population feels no need to engage in
safe behaviour.
In
the light of the foregoing, the Court finds that, although the
protection of public health was indeed a legitimate aim, the
Government were unable to adduce compelling and objective arguments
to show that this aim could be attained by the applicant’s
exclusion from residence on account of his health status. A matter of
further concern for the Court is the blanket and indiscriminate
nature of the impugned measure. Section 7 § 1 (13) of
the Foreign Nationals Act expressly provided that any application for
residence permit would be refused if the applicant was unable to show
his or her HIV-negative status. Section 11 § 2 of the HIV
Prevention Act further provides for deportation of non-nationals who
have been found to be HIV-positive. Neither provision left any room
for an individualised assessment based on the facts of a particular
case. Although the Constitutional Court indicated that the provisions
did not exclude the possibility of having regard to humanitarian
considerations in exceptional cases (see the decision of 12 May 2006
cited in paragraph 24 above), it is not clear whether that decision
gave the domestic authorities discretion to override the imperative
regulation of section 7 § 1 (13) of the Foreign Nationals Act.
In
the instant case, the Federal Migration Service, the District Court
and then the Regional Court gave no heed to the Constitutional
Court’s position. Although the statement of appeal expressly
relied on the decision of 12 May 2006 and relevant international
instruments, the courts rejected the applicant’s application
for a residence permit solely by reference to the legal requirements
of the Foreign Nationals Act, without taking into account the actual
state of his health or his family ties in Russia. In rejecting the
applicant’s request for supervisory review, the Regional Court
expressly stated that the courts were not obligated to have regard to
any humanitarian considerations and that the provisions of section 7
§ 1 (13) requiring the production of a HIV-negative certificate
cannot in any event be disregarded (see paragraph 15 above). The
Government confirmed in their final submissions to the Court that the
applicant’s individual situation was of no legal relevance and
that the domestic courts had not been required to take into account
the information on his health or family ties (see paragraph 42
above). The Court considers that such an indiscriminate refusal of
residence permit, without an individualised judicial evaluation and
solely based on a health condition, cannot be considered compatible
with the protection against discrimination enshrined in Article 14 of
the Convention (see, mutatis mutandis, Alajos Kiss
v. Hungary, no. 38832/06, § 44, ECHR 2010 ...).
Taking
into account that the applicant belonged to a particularly vulnerable
group, that his exclusion has not been shown to have a reasonable and
objective justification, and that the contested legislative
provisions did not make room for an individualised evaluation, the
Court finds that the Government overstepped the narrow margin of
appreciation afforded to them in the instant case. The applicant has
therefore been a victim of discrimination on account of his health
status, in violation of Article 14 of the Convention taken together
with Article 8.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
applicant also complained under Article 6 § 1 of the Convention
that the domestic courts did not inform him that he had the right to
ask for an examination of his complaint in private and that they did
not order a closed session of their own motion.
The
Court considers that, although the applicant had no legal background
and was not represented, he could have stated his wish to have his
case heard behind closed doors in plain language or at least
mentioned this wish in his statement of claim. Lacking any indication
of the applicant’s preference as to the type of proceedings,
the domestic courts were under no obligation to exclude the public of
their own motion. It follows that this complaint is manifestly
ill-founded and must be rejected in accordance with Article 35 §§
3 (a) and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 20,000 euros (EUR) in respect of non-pecuniary
damage.
The
Government submitted that the claim was excessive.
The
Court accepts that the applicant suffered distress and frustration
because of discrimination against him on account of his health
status. Making its assessment on an equitable basis, the Court awards
the applicant EUR 15,000, plus any tax that may be chargeable on it.
B. Costs and expenses
The
applicant also claimed 14,700 Russian roubles for legal costs and
translation expenses.
The
Government submitted that reimbursement was possible only in respect
of the costs and expenses incurred in the Strasbourg proceedings.
Under
the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 350 for costs and
expenses incurred in the domestic and Strasbourg proceedings, plus
any tax that may be chargeable to the applicant.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint concerning the refusal of
a residence permit admissible and the remainder of the application
inadmissible;
Holds that there has been a violation of Article
14 of the Convention, taken in conjunction with Article 8;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 15,000
(fifteen thousand euros) in respect of non-pecuniary damage and EUR
350 (three hundred and fifty euros) in respect of costs and expenses,
plus any tax that may be chargeable to the applicant on these
amounts, to be converted into Russian roubles at the rate applicable
at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 10 March 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
