New York Law School

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European Human Rights Convention Protects People Living With HIV From Discrimination

Posted on: March 11th, 2011 by Art Leonard No Comments

A chamber consisting of eight judges of the European Court of Human Rights announced on March 10 that it had found Russia to be in violation of the European Convention on Human Rights for denying a residence permit to an Uzbeki man on the sole ground that he is infected with Human Immunodeficiency Virus (HIV), the pathogen associated with Acquired Immunodeficiency Syndrome (AIDS).  Ruling unanimously in Case of Kiyutin v. Russia, Application No. 2700/10, the court found that this case presented an instance of impermissible discrimination affecting the right to private life, and awarded damages to the applicant.

The applicant, Viktor Kiyutin, was born in the Soviet Republic of Uzbekistan in 1971 and became an Uzbeki citizen upon the dissolution of the Soviet Union.  In 2002, his brother bought land and a house in the Oryol Region of Russia, and the next year Viktor moved there with his half-brother and their mother.  Viktor quickly married a local woman and they had a child, who was born early in 2004.  Shortly after the wedding, Viktor applied to the authorities for a residence permit.  Under a 1995 statute, applicants for a residence permit must provide documentary evidence that they are free of HIV infection.  The medical examination for his residence application provided Viktor with the news that he was infected, which he claims not to have previously known.  He was denied the permit by local authorities, and the denial was upheld by the Oryol Regional Court.

The court's opinion does not relate whether Viktor then returned to Uzbekistan or remained with his family in Russia at that time, but reports that he applied anew for a temporary residence permit in April 2009, which brought him to the attention of the Federal Migration Service, which in turn imposed a fine of 2500 Russian roubles for unlawful residence and ordered him to leave within three days or be subject to deportation.  He challenged this in  court, but the Severniy District Court of Oryol rejected his appeal on August 13, 2009, finding that due to his HIV status his applicant was properly rejected.   He appealed to the Oryol Regional Court, unsuccessfully, and then appealed to the European Human Rights Court in Strasbourg.

The 1995 Russian statute, called The HIV Prevention Act, apparently predates Russia's decision to become party to the European Convention.  As the court cites no prior precedent on point, it appears that this case presented a question of first impression concerning HIV-discrimination in the context of emigration into a country and granting the privilege of permanent residence to a non-citizen.  The court was careful to point out that countries do retain the right to control immigration and residence, but that the Convention imposes a supervening obligation not to engage in unjustifiable discrimination in wielding that authority.

The government argued that as a person who lacked a residence permit, Viktor would be able to stay in Russia for periods of 90 days, so long as he left and spent time outside the country before re-entering for another 90 days, and so on.  The government maintained that the statute is justified by public health concerns about the spread of HIV. 

The court found that in maintaining this policy Russia was out of step with the policy pronouncements on HIV by international bodies and the actual policies of the other countries that are parties to the Convention.  According to a 2009 UNAIDS survey, "124 countries, territories and areas worldwide have no HIV-specific restrictions on entry, stay or residence," wrote the court.  The other 52 countries surveyed did impose various restrictions.  However, narrowing the focus to Member States of the Council of Europe, it appears that all member states allow visas and short-term stays to HIV-positive people.  Three states (Armenia, Moldova and Russia) will deport foreigners who are found to be HIV-positive, and these and three other states (Andorra, Cyprus and slovakia) require proof that an individual is HIV-negative before issuing a residence permit.  Lithuania has a more general requirement of a declaration whether an individual has a "disease threatening to public health" as part of the residence application process.  The overwhelming majority of Member States do not impose a disqualification for residence permits upon HIV-positive individuals.

The court needed to determine whether being HIV-positive could be considered a "status" for purposes of the non-discrimination policy articulated in Article 14 of the Convention.  Article 14 has a list of prohibited grounds which is non-exhaustive, as it extends to "other status" as a basis of discrimination.  Reviewing recent history, the court found that persons living with HIV have been treated categorically in adverse ways, such that international bodies had adopted statements condemning discrimination on this basis.  "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."

Article 14 adopts the general principle of non-discrimination, but is only actionable with respect to particular rights spelled out elsewhere in the Convention.  An applicant must show that he is in a position analogous to others similarly situated, and that the discrimination against him does not lie within the "margin of appreciation" accorded to Member States in pursuing their policy interests. In this case, Article 8, respect for private life, came into play.  Given his marriage to a Russian woman and the residence of his family members in Russia, the court found that Viktor occupied a position analogous to other aliens seeking residence permits, so the issue was whether Russia had an objective, reasonable justification for treating him differently from others who are not HIV-infected.

In a process somewhat analagous to the U.S. constitutional caselaw on "suspect classifications" and "heightened scrutiny" in the context of equal protection, the European Court will adjust the "margin of appreciation" according to the basis of discrimination.  In this case, the Court "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."  This meant that Russia would have to come up with a "particularly compelling justification," and the court found that the justifications argued by the government were insufficient.

The court said that Russia failed to show how its national security and public health needs were advanced by denying a residence permit to Viktor.  The government's own position was that he could continue to live in Russia with his family so long as he stayed no more than 90 consecutive days, so clearly keeping him out was not the issue.  The court noted that "the mere presence of an HIV-positive individual in a country is not in itself a threat to public health" because of the lack of casual transmission of the virus. 

Inasmuch as Russia places no HIV-related restrictions on tourists and business travellers, and doesn't impose HIV testing on Russian nationals leaving and entering the country, "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," the Court continued.  "There is no reason to assume that they are less likely to engage in unsafe behavior than settled migrants."  The Court stated its "great concern" with Russia's submission that Viktor could circumvent the rules without having a residency permit by limiting the length of his stays, saying that this "casts doubt on the genuineness of the Government's public health concerns relating to the applicant's residence in Russia."

Indeed, the main concern may have been that as a permanent legal resident, Viktor would have a claim on public health services, but the Court observed that because Viktor would be a resident alien rather than a Russian national, he would have to pay for his health care expenses, and thus "the risk that he would represent a financial burden on Russian health care funds was not convincingly established."  The court also pointed out that the government's policy was not particularly well suited to combating the spread of HIV, since it would deter migrants from getting tested and seeking treatment and could lead to complacency in the general public, who could be led to believe that those allowed to stay in the country were all HIV-negative and that AIDS was a "foreign" problem. 

The Russian constitutional court had one prior ruling from 1996, when it indicated that HIV-related decisions should be made on a case by case basis, upon which Viktor relied in bringing this case. The court observed that this prior ruling seems to have had little effect, since Viktor was denied categorically without any consideration of his actual health status and family situation, or at least none reflected in the opinions issued by the prior tribunals in his case. 

The court stated its conclusion: "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."  The court awarded Viktor 15,000 euros for damages and 350 euros for his expenses in connection with the case, in which he was represented by Ms. L. Komolova, a lawyer practicing in Oryol, Russia.

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