CEDH · CASELAW;CLIN;ENG — 15 mars 2016

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Russia - 31039/11, 48511/11, 76810/12 et al. Judgment 15.3.2016 [Section III] Article 14 Discrimination Difference in treatment of HIV-positive aliens regarding application for residence permit and permanent ban on re-entering Russia: violation Facts – Between 2008 and 2012 the five applicants applied for a temporary residence permit in Russia but their applications were rejected, in accordance with the applicable domestic law, on the grounds that they had been diagnosed HIV-positive. Their appeals were unsuccessful. Law – Article 14 in conjunction with Article   8: The first three applicants were married to Russian citizens and their children had acquired Russian nationality by birth. Thus, they all enjoyed family life. As to the fifth applicant, he had lived with his same-sex partner since 2007. Despite the domestic courts’ refusal to recognise that their relationship amounted to a family or at least a social link, the Court was satisfied that the couple had been living in a stable de facto partnership falling within the notions of both private and family life. The fourth applicant had joined her sister and her son who lived in Russia permanently, shared household expenses with her son’s family and did not have friends or relatives outside Russia. Her situation was thus covered by the notion of private life. The facts of the case therefore fell within the ambit of Article   8 of the Convention. Since a distinction made on account of an individual’s health status, including HIV infection, was covered by the term “other status”, Article   14 taken in conjunction with Article   8 was applicable. The Court further noted that the authorities had based their refusal to grant the applicants a residence permit only on the grounds of their HIV-positive status. Therefore, they were in a situation analogous to that of HIV-negative aliens. As to whether the difference in treatment was objectively and reasonably justified, the Court first noted that at international and national levels there had been a marked improvement in the situation of people living with HIV as regards restrictions on their entry, stay and residence in a foreign country. Since the expulsion of HIV-positive individuals did not reflect an established European consensus, and had no support in other member States, the respondent State was under an obligation to provide a particularly compelling justification for the differential treatment of the applicants. In Kiyutin v. Russia (2700/10, 10   March 2011, Information Note   139 ), the Court found that it was internationally and unanimously agreed that entry, stay and residence restrictions on people living with HIV could not be objectively justified by reference to public-health concerns. The Court observed in that respect that the domestic courts had based their exclusion order against the fifth applicant on the manifestly inaccurate premise that he could transmit the infection by using shared facilities in a student dormitory. This view was in turn based on the assumptions that HIV-positive non-nationals would engage in specific unsafe behaviours and that nationals would also fail to protect themselves, which amounted to an unwarranted generalisation having no basis in fact and failing to take into account the specific situation of the applicant. Moreover, unlike the position in Ndangoya v.   Sweden ((dec.), 17868/03 , 22   June 2004), the applicants in the instant case had not been suspected of, or charged with, having unprotected sexual intercourse with others without disclosing their HIV-positive status. As to the fifth applicant, the domestic authorities had deduced an increased risk of unsafe behaviour on his part from his refusal to name his former partners, despite the fact that (a) he had told the authorities that he had disclosed his HIV status to his previous partners and (b) he was living in a stable relationship. Thus, the alleged risk of unsafe behaviour on his part had amounted to mere conjecture unsupported by facts or evidence. Finally, the decisions declaring the presence of the third to fifth applicants undesirable set no time-limit on their exclusion from Russian territory. As they had been issued in connection with their infection with HIV, which was by today’s medical standards a lifetime condition, they had the effect of a permanent ban on their re-entry to Russia, which was disproportionate to the aim pursued. In the light of the overwhelming European and international consensus geared towards abolishing the outstanding restrictions on the entry, stay and residence of HIV-positive non-nationals, who constitute a particularly vulnerable group, the Court found that the respondent State had not advanced compelling reasons or any objective justification for their differential treatment Conclusion : violation (unanimously). Article 46: The Court also found that the Russian authorities’ discriminatory application of the domestic provisions on entry and residence based on the applicants’ HIV-positive status amounted to a structural problem which could give rise to further repetitive applications. However, in 2015 the Russian Constitutional Court had declared the legislation at the heart of the instant case – the Entry and Exit Procedures Act, the Foreign Nationals Act, and the HIV Prevention Act – incompatible with the Constitution in so far as they allowed the authorities to refuse entry or residence or to deport HIV-positive non-nationals with family ties in Russia solely on account of their diagnosis. A draft law implementing the Constitutional Court’s judgment had already been submitted to the Russian Parliament. Since the legislative reform was currently under way the Court abstained from formulating general measures. The Court also found that the authorities had not hindered the fifth applicant’s right of individual petition, and that their behaviour had thus been in compliance with Article   34 of the Convention. Article 41: EUR 15,000 each in respect of non-pecuniary damage. (See the Factsheet on Health )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes