CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 15 mars 2016

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RUSSIA   (Applications nos. 31039/11, 48511/11, 76810/12, 14618/13 and 13817/14)                 JUDGMENT     STRASBOURG   15 March 2016       FINAL   15/06/2016   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Novruk and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Luis López Guerra, President,   Helena Jäderblom,   Helen Keller,   Johannes Silvis,   Dmitry Dedov,   Pere Pastor Vilanova,   Alena Poláčková, judges,, and Stephen Phillips, Section Registrar, Having deliberated in private on 23 February 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in five applications (nos.   31039/11, 48511/11, 76810/12, 14618/13 and 13817/14) 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 five individuals, whose names, dates of birth and nationality are set out below (“the applicants”). 2.     The applicants’ representatives are listed below. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights. 3.     The applicants alleged that they were victims of discrimination on account of their health status in the determination of their applications for residence permits. 4.     On 8 October 2013 and 19 May 2014 the applicants’ complaints of discrimination were communicated to the Government and the remainder of the application was declared inadmissible. The Court put additional questions to the parties about the structural nature of the underlying problem. 5.     The Moldovan and Ukrainian Governments, who had been informed of their right to intervene in the proceedings, under Article 36 § 1 of the Convention, gave no indication that they wished to do so. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     The case of Mr Novruk (application no. 31039/11, lodged on 10   May 2011) 6.     The applicant, Mr Mikhail Novruk, is a Moldovan national who was born in 1972. He is represented before the Court by Ms I. Khrunova, a lawyer practising in Kazan. 7.     In 2000, Mr Novruk and Ms O., a Russian national, started living together as a couple in Moldova. In 2001, a boy was born to their union; he acquired Russian nationality by birth. Two years later O. and their son moved to the Primorskiy region of Russia, where most of her family lived. In 2005 Mr Novruk joined them in Russia, and in the same year they married. They divorced in 2008. 8.     In 2009, Mr Novruk met Ms S., a Russian national. In March 2010, he travelled to Moldova to renew his passport, where he discovered that he was HIV-positive. Three weeks later Mr Novruk returned to Vladivostok and on 24 April 2010 he and S. married. S. has a daughter from her previous marriage and she is also a foster parent to nine orphaned children, some of whom are HIV-positive. 9.     In June 2010 Mr Novruk applied to the Primorskiy Region Federal Migration Service for a temporary residence permit. By a letter of 8 July 2010 he was informed that his application was refused by reference to section 7 § 1 (13) of the Foreign Nationals Act, which restricted the issue of residence permits to foreign nationals who could show that they were HIV ‑ negative. 10.     On 4 October 2010 the Sovetskiy District Court of Vladivostok, dismissed a challenge by the applicant to that decision, finding in particular that the Federal Migration Service had been required by law to reject his application for a residence permit. On 16 November 2010 the Primorskiy Regional Court upheld that judgment on appeal. B.     The case of Ms Kravchenko (application no. 48511/11, lodged on 24 July 2011) 11.     The applicant Ms Anna Viktorovna Kravchenko is a Ukrainian national who was born in 1982. She is represented before the Court by Ms   N. Yermolayeva, a lawyer practising in Moscow. 12.     In 2003, Ms Kravchenko married Mr D., a Russian national. They started living in Moscow. During her pregnancy she was diagnosed as HIV ‑ positive. On 4 April 2003 her son F. was born. He acquired Russian nationality by birth. 13.     In 2009, Ms Kravchenko applied for a temporary residence permit. By a letter of 25 May 2009 the Federal Migration Service refused her application by reference to section 7 § 1 (13) of the Foreign Nationals Act and ordered her to leave Russia within fifteen days or face deportation. Ms   Kravchenko challenged the refusal with the courts. 14.     On 23 September 2009 the Zamoskvoretskiy District Court, Moscow, found for Ms Kravchenko, noting in particular that the Migration Service had decided on her application without taking into account that her minor child and husband were both Russian nationals. It directed the Migration Service to reconsider the application. 15.     Further to the District Court’s decision, Ms Kravchenko lodged a new application for a residence permit. On 15 January 2010 the Migration Service rejected it, referring to the same provision of the Foreign Nationals Act. 16.     Ms Kravchenko applied again for a judicial review. By a judgment of 3   September 2010, the Zamoskvoretskiy District Court of Moscow granted a stay of enforcement of the Migration Service decision and ordered it to reconsider the matter in the light of the Constitutional Court’s decision of 12 May 2006 and the Convention principles. Ms Kravchenko appealed; she submitted that the District Court should have ruled that the Migration Service refusal had been unlawful. 17.     On 8 February 2011 the Moscow City Court dismissed Ms   Kravchenko’s appeal against the District Court’s judgment, finding that “there were no grounds to vary the judgment, because the Moscow division of the Federal Migration Service had actually complied with it”. C.     The case of Mr Khalupa (application no. 76810/12, lodged on 30   October 2012) 18.     The applicant, Mr Roman Khalupa, is a Moldovan national who was born in 1974. He was granted legal aid and is represented before the Court by Mr D. Bartenev, a lawyer practising in St Petersburg. 19.     In 2005, Mr Khalupa married Ms E., a Russian national. Their children, a girl A. and a boy B., were born in 2005 and 2008 respectively. The family were living in St Petersburg. 20.     In early 2008 Mr Khalupa took a blood test with a view to obtaining a health certificate to support his application for a temporary residence permit. He was found to be HIV-positive. The hospital reported the results of his test to the St Petersburg division of the Federal Migration Service, which issued a decision of 4 June 2008 on the undesirability of Mr   Khalupa’s stay in Russia because he would pose a “real threat to public health”. On 17 June 2008 the director of the Federal Migration Service ratified that decision. 21.     On 1 August 2008 the decision was notified to Mr Khalupa; he left Russia three days later, in compliance with the law. He took up residence in Dubossary in the “Moldavian Republic of Transdniestria”. 22.     On the day following the pronouncement of the Kiyutin v.   Russia judgment (no. 2700/10, ECHR 2011), Ms E., acting on Mr Khalupa’s behalf, applied to the St Petersburg division of the Federal Migration Service, asking it to set aside the decision by which his presence in Russia had been pronounced undesirable. She submitted medical documents showing that Mr Khalupa posed no danger to public health because he was receiving appropriate treatment. Her request was forwarded to the legal department of the Federal Migration Service for review. In a letter of 5   May 2011 addressed to the deputy director of the visas and registration department of the Federal Migration Service, the director of the legal department acknowledged that the decision of 4 June 2008 had not taken fully into account Mr Khalupa’s family ties in Russia. Nevertheless, on 12   September 2011 the deputy director of the St Petersburg division of the Federal Migration Service informed Mr Khalupa and Ms E. that their applications for review of the decision of 4 June 2008 had been refused. His letter did not specify the grounds for refusing the request. 23.     Mr Khalupa complained to court. On 30 January 2012 the Basmannyy District Court of Moscow dismissed his complaint, finding firstly that his rights and freedoms had not been interfered with, and secondly that the director of the Federal Migration Service was not empowered to review or set aside a decision by which an individual’s presence in Russia had been declared undesirable. That judgment was upheld on appeal on 16 May 2012 by the Moscow City Court. On 12   December 2012 the Presidium of the City Court rejected Mr Khalupa’s cassation appeal. 24.     Mr Khalupa also challenged the compatibility of section 25.10 of the Entry and Exit Procedures Act with the Constitution, in that it allowed an executive agency to pronounce his presence undesirable solely because of his HIV-positive status. By decision no. 902-O of 4 June 2013, the Constitutional Court declared his challenge inadmissible, finding that the impugned section was needed for the protection of public health from infectious diseases, including HIV. The Constitutional Court reiterated that its decision of 12 May 2006 (cited in paragraph 60 below) remained valid and applicable, and that the decision pronouncing someone’s presence undesirable must take full account of humanitarian considerations and the factual circumstances of each case, including the family links and state of health of the individual concerned. 25.     On 14 January 2014 Mr Khalupa’s representative asked the Consumer Protection Authority to review the undesirability decision and to allow him to visit his children in Russia. By a letter of 13 February 2014 the deputy head of the CPA replied that it did not have the authority to reverse a decision issued by the Federal Migration Service. D.     The case of Ms Ostrovskaya (application no. 14618/13, lodged on 24   January 2013) 26.     The applicant, Ms Irina Grigoryevna Ostrovskaya, was born in 1953 in the Kurgan Region of the Russian Soviet Federal Socialist Republic of the USSR. She is represented before the Court by Ms O. Leonova, a lawyer practising in Samara. 27.     In 1966 her parents took Ms Ostrovskaya and her sister to live in the Uzbek Soviet Socialist Republic of the USSR. In 1972 Ms Ostrovskaya got married and gave birth to a boy. Two years later her sister also married and moved back to Russia. Following the collapse of the USSR, Ms   Ostrovskaya acquired Uzbek nationality. 28.     After the death of her parents and husband and her son’s move to Russia in 2006, Ms Ostrovskaya remained in Uzbekistan alone. In September 2011 she decided to move to Russia to share the flat occupied by her son’s and her sister’s families. Ms Ostrovksaya’s sister and her husband are Russian nationals; her son and his family are Uzbek nationals with valid Russian residence permits. 29.     In November 2011 Ms Ostrovskaya applied for a temporary residence permit. During a medical examination she tested HIV-positive. 30.     By decision of 17 January 2012, the Samara division of the Federal Migration Service refused her application for residence permit by reference to section 7 § 1 (13) of the Foreign Nationals Act, and informed her accordingly. On 27 March 2012 a further notification to the same effect was sent by the Federal Migration Service. 31.     By a letter of 9 June 2012 the Samara division of the Consumer Protection Authority notified Ms Ostrovskaya that she should leave Russia by 30   June 2012 or face deportation. The letter indicated that on 30   May 2012 the director of the Federal Consumer Protection Authority determined that her presence on Russian territory was undesirable by virtue of section 25.10 of the Entry and Exit Procedures Act. 32.     On 26 June 2012 Ms Ostrovskaya complained to court, relying on humanitarian grounds in her claim that she should be allowed to stay in Russia. By a judgment of 23   July 2012, upheld on appeal on 17 September 2012, the Samara District and Regional Courts held that the decision to refuse her a residence permit had been lawfully given by the Migration Service within its jurisdiction and in compliance with the Foreign Nationals Act and its internal regulations. The District Court declared that it would not take any humanitarian considerations into account because Ms   Ostrovskaya had missed the three-month time-limit for submitting her claim, and she had a receipt of notification as early as 16 February 2012. The undesirability decision had been issued by the Federal Consumer Protection Authority rather than by its Samara division; since Ms Ostrovskaya had designated the latter, but not the former, as the defendant in her claim, the courts refused to review what they described as an “actually non-existent decision”. 33.     On 6 November 2012 the Regional Court refused her leave to appeal to a cassation instance. E.     The case of Mr V.V. (application no. 13817/14, lodged on 10   February 2014) 34.     The applicant, Mr V.V., is a national of Kazakhstan who was born in 1983 and lives in Yekaterinburg. The Court granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 4). 35.     V.V. came to Russia in 2006 to study at a medical college. Since 23   November 2007 he has been living with his partner Mr X, who also represented him in the present proceedings before the Court. They have maintained a common household, shared expenses and travelled together. They have met each other’s parents. V.V. submitted copies of travel documents and family photographs. 36.     On 11 March 2012 V.V. applied to the Sverdlovsk division of the Federal Migration Service for a temporary residence permit. He committed himself to producing an HIV certificate within thirty days. On 16   April 2012 the Sverdlovsk Regional Centre for Aids Prevention and Treatment certified him to be HIV-positive. 37.     On 28 April 2012 the Federal Migration Service refused his application for a residence permit by reference to section 7 § 1 (13) of the Foreign Nationals Act. V.V. challenged the refusal before a court. 38.     On 26 July 2012 the Verkh-Isetskiy District Court of Yekaterinburg upheld the refusal, finding in particular that V.V.’s HIV status amounted to an “actual threat to the health of the Russian population” and that V.V.’s living with a same-sex partner was not equivalent to having a family. 39.     On 21 November 2012 the Sverdlovsk Regional Court heard an appeal by V.V. against the District Court’s decision and, referring in particular to the Kiyutin judgment, held that V.V.’s HIV-positive status could not on its own be a ground for a restriction on his rights. Since the Migration Service did not cite any other grounds in its decision, the Regional Court enjoined it to carry out a new assessment of the application for a residence permit. The judgment became final and enforceable. 40.     In the meantime, on 24 April 2012 the Sverdlovsk division of the Consumer Protection Authority forwarded a copy of V.V.’s diagnosis to the Federal Consumer Protection Authority, with a view to pronouncing his presence in Russia undesirable. On 16 November 2012 the federal authority asked the regional division to re-administer the HIV test. On 25   December 2012 V.V. again tested positive for HIV. 41.     On 15 March 2013 the Federal Consumer Protection Authority pronounced V.V.’s presence in Russia undesirable in accordance with section 25.10 of the Entry and Exit Procedures Act. The decision stated that V.V. had been infected with HIV and had avoided treatment. It cited in evidence medical certificates dated 16 April and 25 December 2012. V.V.’s representative challenged the decision before a court. 42 .     On 26 April 2013 V.V. travelled from Russia to Kazakhstan. On his way back two days later, he was refused entry into Russia by reference to that decision. 43.     On 30 May 2013 the Verkh-Isetskiy District Court allowed the challenge, finding that the undesirability decision had been unlawful because it did not refer to any grounds other than V.V.’s HIV-positive status. It also granted a stay of enforcement of that decision, enabling V.V. to return to Russia, which he did. 44.     However, on 13 August 2013 the Sverdlovsk Regional Court reversed the District Court’s decision and dismissed the claim. It held that the ban against V.V. had been put in place not only because he was infected with HIV but also because he had refused to give contact details of his former partners during an “epidemiological investigation of the HIV infection”, that is when filling out a questionnaire at the hospital. The Regional Court also examined V.V.’s personal circumstances and found that he was single, that his next of kin lived in Kazakhstan, that he did not have a family relationship with any Russian nationals, that he lived in a student hostel rather than in a rented flat, and that he had no resources to pay for HIV treatment. 45.     On 19 February 2014 the Sverdlovsk Regional Court refused leave to appeal to the cassation instance. It found in particular: “The facts which, in the claimant’s view, are of legal significance but which the appeal court failed to take into account, including ... his voluntary compliance with the obligation to inform his former partners about a possible HIV infection, his being in a steady sexual relationship ... cannot be established on the basis of the claimant’s and his representative’s statements alone. The court did not see any evidence of any social links the claimant has in the Russian Federation. The claimant and his representative merely confirmed that they have a sexual relationship, which does not equate to social links. A threat to public health ... could result from the fact that the claimant has a registered place of residence and actually lives in a hostel, which is a public place; this fact alone put the health of the other residents of the dormitory at risk because the claimant may use the same public facilities ...” 46.     On 1 April 2014 a judge of the Supreme Court refused him leave to appeal to the Supreme Court. 47.     After notice of the case had been given to the Government, on 7   July 2014 V.V. informed the Court that the Government Representative’s office had forwarded the case materials to the Prosecutor General’s Office with a request to inquire whether or not V.V. was lawfully present in Russia, whether or not he was continuing his studies, and whether his representative before the Court Mr X could have been his partner. The request contained full personal details of V.V. The Prosecutor General sent the request to the local prosecutor’s office in Yekaterinburg. As it happened, Mr   X was a former employee in that prosecutor’s office. A prosecutor summonsed Mr X for an interview and put questions about the nature of his relationship with V.V., whether V.V. was still present in Russia, and where they lived. Law-enforcement officers also visited their neighbours and asked them how long V.V. and Mr X had lived together and whether they had girlfriends. 48.     The Government submitted a copy of a statement from a prosecutor in charge of human rights and federal law compliance, dated 6 August 2014, from which it appears that on 1 June 2014 Mr X had been asked to attend the Sverdlovsk regional prosecutor’s office in his capacity as V.V.’s representative. He was interviewed about “the exercise by V.V. of his labour, family and migration rights”. The interview was conducted “tactfully” ( в корректной форме ), and no pressure was put on him. The police and migration authorities had established that no one lived at the address which V.V. had listed as his registered place of residence. The Government also produced a copy of the statement signed by Mr   X on 1   June 2014. Mr X clarified that V. had been living in a stable same-sex relationship since 2007. He refused to name V.’s partner or to say whether he was V.’s partner: in his capacity as V.’s representative he was not required to disclose any information about his own private life. He also briefly described V.’s education, employment and migration status. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     The HIV Prevention Act (no. 38-FZ of 30 March 1995) 49.     Section 11(2) provides that foreign nationals and stateless persons who are in Russian territory are to be deported once it is discovered that they are HIV-positive. For the procedure, see paragraphs 53-54 below. B.     The Foreign Nationals Act (no. 115-FZ of 25 July 2002) 50.     Section 6(8) and Government Resolution no. 789 of 1   November 2002 define the list of documents that must be enclosed with an application for a residence permit. Among other documents, an applicant must produce a medical certificate showing that he or she is not HIV-positive. 51.     Section 7 contains the list of grounds for refusing a temporary residence permit or for cancelling 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 HIV-positive (section 7(1)(13)). 52.     Section 8(3.1)-(3.3) – in force since 2 May 2014 – establishes that a non-national who is a habitual Russian speaker ( носитель русского языка ) and whose direct ancestors lived within the state borders of modern-day Russia in the Russian Federation, the USSR or the Russian Empire, is eligible ipso facto for a three-year residence permit and a simplified naturalisation procedure (see also section 14(2.1) of the Russian Nationality Act, no. 62-FZ of 31 May 2002). C.     Entry and Exit Procedures Act (no. 114-FZ of 15   August 1996) 53.     A competent authority may issue a decision that a foreign national’s presence on Russian territory is undesirable. Such a decision may be issued if a foreign national is unlawfully residing on Russian territory or if his or her residence is lawful but creates a real threat to, in particular, public order or health, etc. If such a decision has been taken, the foreign national has to leave Russia or will otherwise be deported. That decision also forms the legal basis for subsequent refusal of re-entry into Russia (section 25.10). 54.     The list of authorities competent to take such a decision was approved by Government resolution no. 199 of 7 April 2003. It included the Ministry of the Interior, the Federal Migration Service, the Consumer Protection Authority, and eight other executive agencies. 55.     A foreign national shall be refused entry into Russia if, in particular, a competent authority issues a decision that his or her presence on Russian territory is undesirable (section 27 § 7). D.     Code of Administrative Offences 56.     Article 6.1 provides that an HIV-positive individual who refuses to disclose the source of infection or identify the individuals with whom he or she had contacts that created the risk of transmission may be fined between 500 and 1,000 Russian roubles (RUB). E.     Regulations issued by the Consumer Protection Authority 57.     On 14 September 2010 the Federal Authority for Consumer Protection and Supervision of Human Well-being, headed by the Chief Sanitary Inspector of Russia, by Order no. 336, approved Guidance on the procedure for preparation, submission and examination of materials leading to a decision on undesirability of the presence of a foreign national or stateless person in Russia. The Guidance established that such a decision must be taken by the head of the Consumer Protection Authority or his deputy (section 2) on the proposal of a regional division of the Consumer Protection Authority (section 3). 58.     On 13 February 2012 the Chief Sanitary Inspector of Russia issued a resolution (no. 16) on urgent measures required for countering the spread of HIV infection in Russia. He noted, in particular, as follows: “In 2011 ... 1,070,887 foreign nationals and stateless persons were tested for communicable diseases. 6,114 persons were diagnosed with diseases dangerous to the public, which is the basis for issuing a decision on the undesirability of their presence in Russia. Of those, 1,215 persons were HIV-positive ... In 2011, the Russian Consumer Protection Authority issued 1,327 decisions declaring the presence of foreign nationals from thirty-eight countries undesirable in the Russian Federation. 727 migrants left Russia or were deported ... A low rate of detection of sexually transmitted diseases among migrants in Vladimir, Tver, Leningrad, Pskov, Samara, Kirov, Pensa ... Regions is a reason for concern. Such a low rate does not correspond to the statistical average and is indicative of a poorly organised regime of medical testing of foreign nationals ...” 59.     According to the report of the conference on the epidemiological monitoring of the measures that were deployed in 2012 for the prevention, detection and treatment of HIV infection and B- and C-type hepatitis (Suzdal, 11-14 March 2013), in 2012 a further 1,357,804 foreign nationals were tested for communicable diseases, of whom 1,403 tested HIV ‑ positive. F.     The case-law of the Constitutional Court 60.     On 12 May 2006 the Constitutional Court rejected a constitutional complaint introduced by an HIV-positive Ukrainian national, who lived in Russia with his Russian wife and daughter (decision no.   155 ‑ O). The Constitutional Court held that section 11(2) of the HIV Prevention Act and section 7(1)(13) of the Foreign Nationals Act were compatible with the Russian Constitution, as the restriction on temporary residence of HIV ‑ positive foreign nationals had been imposed by the legislature for the protection of constitutional values, the main one being public health. The Constitutional Court emphasised the principle of proportionality in respect of the measures adopted in pursuance of constitutional aims, and noted 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-positive foreign national or stateless person, and other exceptional but meritorious circumstances in determining whether the person should be granted temporary residence in the Russian territory. 61.     On 12 March 2015 the Constitutional Court examined a new challenge to section 11(2) of the HIV Prevention Act, section 7(1)(13) of the Foreign Nationals Act, and section 25.10 of the Entry and Exit Procedures Act. The challenge was brought by two nationals of Ukraine and one of Moldova and their Russian spouses. The non-Russian complainants had either been refused a residence permit or declared undesirable in Russia on account of their HIV-positive status. The Constitution Court held that the migration laws can lawfully restrict access to Russia by non-Russian nationals whose medical condition may jeopardise public health and pose a threat to national security. It acknowledged the contemporary medical consensus that HIV does not pose a threat to public health because it is not transmitted merely by the presence of the infected individual in the country or through casual contact, airborne particles, food or water. The Constitutional Court noted, on the strength of evidence submitted by the complainants, that law-enforcement authorities did not systematically take into account its position in the matter, as expressed in its previous decisions of 12 May 2006 and 4 June 2013 (see paragraph 24 above). A continued failure to interpret and apply the provisions in accordance with the Constitutional Court’s pronouncements can be a reason for declaring them incompatible with the Constitution. The Constitutional Court held as follows: “1.     To declare that the closely related provisions of section 25.10 of the Entry and Exit Procedures Act, section 11(2) of the HIV Prevention Act, and section 7(1)(13) of the Foreign Nationals Act are incompatible with the Russian Constitution ... in so far as they allow [the executive authorities] to declare undesirable the presence of a foreign national or a stateless person whose family permanently resides in Russia, to issue a deportation order or an entry ban, to refuse him a residence permit or to cancel a previously issued residence permit solely because that person is HIV-positive, provided that the person has complied with the legal requirements on HIV-positive individuals relating to the prevention of spreading the infection, and provided that no other circumstances would call for such restrictions. 2.     The federal legislation should – in the light of the requirements of the Russian Constitution and the position of the Constitutional Court, as expressed in the present judgment – introduce the necessary amendments into the existing corpus of laws which would clarify the grounds and the procedure for making decisions relating to the right of HIV-positive foreign nationals or stateless persons to stay and to live in the Russian Federation.” Pending such amendments, the Constitutional Court directed that the executive and judicial authorities be guided by the position it had formulated in the judgment. G.     Draft law implementing the Constitutional Court’s judgment 62.     On 20 August 2015 the Russian Government introduced a draft law into the State Duma (registered under number 866379-6). The draft law purports to bring section 11(2) of the HIV Prevention Act, sections 25.10 and 27 of the Entry and Exit Procedures Act, and section 7 (1) of the Foreign Nationals Act into conformity with the Constitutional Court’s judgment of 12   March 2015 (see paragraph 61 above). It provides that HIV ‑ positive non-nationals who have not breached the Russian legislation on the prevention of spreading of the HIV infection and whose spouse, parents or children are Russian or permanently resident in Russia shall not be denied entry into Russia, deported, pronounced undesirable on Russian territory or required to enclose an HIV-negative certificate with their application for residence permit. The Government also directs that the Federal Migration Service should revise their procedure for assessing applications for residence permits within three months of the enactment of the amendments. III.     COMPARATIVE DATA 63.     In May 2009 the Joint United Nations Programme on HIV and AIDS (UNAIDS) published the survey “Mapping of restrictions on the entry, stay and residence of people living with HIV”. The latest version of the survey, updated in September 2015, is available on its website [1] . 64.     According to the survey, as of September 2015, 142 countries, territories and areas worldwide impose no HIV-specific restrictions or conditions on entry, stay or residence. Thirty-five countries and territories imposed some form of restriction based on HIV status. Seventeen countries (Bahrain, Brunei, North Korea, Egypt, Iraq, Jordan, Kuwait, Malaysia, Oman, Qatar, Russia, Saudi Arabia, Singapore, Sudan, Syria, United Arab Emirates, and Yemen) deport individuals once their HIV-positive status is discovered. 65.     Within the European region, two member States of the Council of Europe lifted HIV-related travel and residence restrictions in the period after the Kiyutin judgment: Armenia did so in July 2011 and Moldova in June 2012. In 2013 and 2015, Andorra and Slovakia, which are member States, and Belarus, which is a European non-member State, confirmed to UNAIDS that they applied no restrictions on the entry, stay and residence for people living with HIV. IV.     RELEVANT COMMITTEE OF MINISTERS DOCUMENTS 66.     In the context of the execution of the Kiyutin v. Russia judgment, on 6   February 2012 the Russian Government submitted a report and an action plan (DH-DD(2012)160E). The report indicated that the text of the judgment was translated into Russian and disseminated among law ‑ enforcement officials and courts, and that no further action was necessary, for the following reasons: “... the decision of 12 May 2006 by the Constitutional Court of the Russian Federation ... does not exclude that law-enforcement authorities and national courts, by reference to humanitarian considerations, taking into account the marital status, the health status of the HIV-positive individual and other important considerations for the resolution of the issue whether the deportation of that person from the Russian Federation is necessary ... Therefore, the reading of section 7 § 1 (13) of the Foreign Nationals Act does not exclude the possibility to allow an HIV-positive foreign national to enter and to reside on Russian territory on account of the concrete circumstances of the case and with regard to Article 8 and other provisions of the Convention ... The legal position of the Constitutional Court, as expressed in the above decision ... is obligatory in the entire territory of the Russian Federation for legislative, executive and judicial authorities, local government bodies, State officials, etc ... In consideration of the foregoing, the competent State bodies reached the conclusion that it is not necessary to vary the currently existing legislation of the Russian Federation in connection with the entry into force of the Kiyutin v. Russia judgment. Therefore, the violation of the Convention provisions established in the European Court’s judgment Kiyutin v. Russia resulted from subjective circumstances, such as violations by the concrete State bodies and national courts which rejected the application for a residence permit without taking into account the requirements of the Russian legislation or the interpretation given by the Constitutional Court ...” 67.     On 20 December 2012 the Russian Government submitted a summary of more than twenty-five cases which were heard by Russian courts in 2011 and 2012 and which concerned challenges brought by individual claimants against the Migration Service decisions refusing them residence permits on account of their HIV-positive status (DH ‑ DD(2013)273). In the majority of those cases the courts overturned either the Migration Service or the lower courts’ decisions and found in favour of the claimants, noting in particular their family ties in Russia and state of health. In the other cases the courts upheld the refusal, finding that the claimant had not established any lasting ties in Russia. THE LAW I.     JOINDER OF THE APPLICATIONS 68.     Given their similar factual and legal background, the Court decides that the five applications should be joined pursuant to Rule 42 § 1 of the Rules of Court. II.     ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, READ IN CONJUNCTION WITH ARTICLE 8 69.     The applicants complained that the difference in the treatment to which they were subjected on account of their health status amounted to discrimination within the meaning of Article 14 of the Convention, read in conjunction with Article 8. Those provisions read as follows: 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.     Admissibility 1.     Exhaustion of domestic remedies 70.     The Government submitted that the applicants Mr Khalupa and Ms   Ostrovskaya had not exhausted domestic remedies, because they had appealed to courts against the decisions pronouncing their presence in Russia undesirable outside the three-month time-limit which had been established in Russian law for challenges to such decisions. Furthermore, in their view V.V. had not exhausted domestic remedies by failing to bring a cassation appeal to the Supreme Court of the Russian Federation or to apply for supervisory review to the Presidium of that court. 71.     The applicant Mr Khalupa replied that the Moscow courts had not accepted the Migration Service’s objection as to the allegedly belated filing of the claim, and had proceeded to the examination of its merits and to a substantive review of the grounds for the 17 July 2008 decision. They had found that the contested decision did not violate his rights “at the present time”, that is to say at the time of the hearing in 2012. Mr Khalupa also pointed out that in 2008 only three days separated the notification of the decision from his departure from Russia, which was too short a period to find legal representation, secure evidence and exercise his right to court. Besides, a judicial review of the undesirability decision had no automatic suspensive effect, and would not have prevented his deportation. In conclusion, Mr Khalupa submitted that he had challenged the undesirability decision before the Constitutional Court, and that this showed that he had exhausted all available domestic remedies. Ms Ostrovskaya submitted that she had applied to court on 26 June 2012, that is to say within three months after she had received notification from the Federal Migration Service on 27   March 2012. Mr V.V. pointed out that he had filed a cassation appeal and a supervisory-review application with the Supreme Court, although he did not consider them to be effective remedies. 72.     The rule of exhaustion of domestic remedies referred to in Article   35   §   1 of the Convention obliges those seeking to bring a case against a State to use first the remedies provided by the national legal system, thus allowing States the opportunity to put matters right through their own legal systems before being required to answer for their acts before an international body. In order to comply with the rule, applicants should normally use remedies which are available and sufficient to afford redress in respect of the breaches alleged (see Selmouni v. France [GC], no. 25803/94, §   74, ECHR 1999 ‑ V). 73.     Both the applicants, Mr Khalupa and Ms Ostrovskaya, challenged the decision pronouncing their presence in Russia undesirable before domestic courts. The courts accepted their claims and dealt with the substance of the issues raised, notably Mr Khalupa’s request to set aside the impugned decision and Ms Ostrovskaya’s challenge to the decision. Therefore, since the domestic authorities found the applicants’ appeals against the undesirability decisions admissible and examined them, delivering judicial decisions on the substance of the issues now brought before the Court, it cannot be maintained, as the Government did, that the applicants had not exhausted domestic remedies (see Vachkovi v.   Bulgaria , no. 2747/02, § 58, 8 July 2010; Raichinov v. Bulgaria (dec.), no.   47579/99, 1   February 2005; and, mutatis mutandis , Öztürk v. Turkey [GC], no.   22479/93, §§ 45-46, ECHR 1999 ‑ VI). 74.     The Court has recently held that, following the legislative amendments reforming the Russian civil procedure with effect from 1   January 2012, the new cassation appeal was no longer attended by the previously existing uncertainty, and that any individual who intends to lodge an application in respect of a violation of his or her Convention rights should first use the remedies offered by the new cassation procedure, including a second cassation appeal to the Supreme Court (see Abramyan and Others v. Russia (dec.), nos.   38951/13 and 59611/13, §§ 76-96, 12   May 2015). By contrast, the Court affirmed its constant approach to the supervisory-review procedure, which it does not consider an effective remedy to be exhausted (ibid., § 102). 75.     It is however observed that the issue of whether domestic remedies have been exhausted is normally determined by reference to the date on which the application was lodged with the Court (see Shalya v. Russia , no.   27335/13, § 16, 13 November 2014, and Baumann v. France , no.   33592/96, §   47, ECHR 2001-V (extracts)). In cases where the effectiveness of a given remedy was recognised in the Court’s case-law after the introduction of an application, the Court deemed it disproportionate to require the applicants to turn to that remedy for redress a long time after they had lodged their applications with the Court, especially after the time-limit for using that remedy had expired (see Riđić and Others v. Serbia , nos.   53736/08, 53737/08, 14271/11, 17124/11, 24452/11 and 36515/11, §   72, 1 July 2014, and Pikić v. Croatia , no. 16552/02, §§ 29-33, 18 January 2005, contrast with Nogolica v. Croatia (dec.), no. 77784/01, ECHR 2002‑VIII, in which the applicant could still avail himself of a new remedy). 76.     The applicant V.V. lodged his application with the Court on 10   February 2014, that is to say within six months of the Regional Court’s appeal judgment rejecting his claim. He continued to pursue the domestic chain of appeals concurrently with the Court proceedings, and gave the authorities further opportunities to address his grievances, submitting cassation appeals to both the Regional Court and the Supreme Court (see paragraphs 45-46 above), even though he was not required to do so before the Court recognised the reformed two-tier cassation appeal procedure to be an effective remedy. As to the application for supervisory review, the use of which depends on the discretionary powers of public officials, it was not – and is not – an effective remedy for the purposes of Article 35 §   1 of the Convention (see Abramyan and Others , cited above, § 102). The Court therefore rejects the Government’s objection as to the alleged non-exhaustion of domestic remedies also in the case of Mr   V.V. 2.     Ms Kravchenko’s status as a “victim” of the alleged violation 77.     The Government further alleged that Ms Kravchenko did not suffer any impairment of her rights, because the domestic courts had ruled in her favour. 78.     The applicant replied that the Moscow courts had rejected her claim for her right to be issued with a residence permit to be recognised. They found that, by having reconsidered her application for a residence permit the Migration Service had executed the previous judicial decision in her favour. However, she pointed out that her right to court had been frustrated because a final decision had remained inoperative to the detriment of one party (here she referred to Hornsby v. Greece , 19 March 1997, § 40, Reports of Judgments and Decisions 1997 ‑ II). The Convention requires the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. In her case, a judicial review of the Migration Service’s decision was ineffective in practice and did not provide her with any relief for the violation of her rights which had occurred. 79.     The Court observes that Ms Kravchenko complained about a refusal of residence permit because of her health status. Even though the District Court ruled in her favour on 23 September 2009 and directed the Migration Service to carry out a new assessment of her application for a residence permit, her new application was rejected on the same ground as before (see paragraphs 14-17 above). The City Court dismissed her subsequent complaint, finding that the Migration Service had “actually complied” with the District Court’s judgment. As a consequence, Ms Kravchenko’s situation in relation to her application for a residence permit was no different from how it had been before the start of the judicial proceedings. It follows that she may still claim to be a “victim” of the alleged violation. 3.     Conclusion as to the admissibility 80.     The Court considers that these complaints are not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B.     Merits 1.     Applicability of Article 14 of the Convention taken in conjunction with Article 8 (a)     Whether the facts of the case fall “within the ambit” of Article 8 (i)     Submissions by the parties 81.     The Government distinguished the present case from Kiyutin in that none of the applicants could be considered a long-term or settled migrant within the meaning of the Court’s case-law. They submitted in particular that Mr Novruk’s second marriage had been very recent, that he had not had any children with his new wife and had lived with her at different addresses, and that he did not work or maintain contact with his child from the first marriage. In Ms Kravchenko’s case, the domestic courts had duly taken into accoun