Information Note on the Court’s case-law No. 139
March 2011
Kiyutin v. Russia - 2700/10
Judgment 10.3.2011 [Section I]
Article 14
Discrimination
Difference in treatment of HIV-positive alien regarding application for residence permit: violation
Facts – Under Russian law aliens married with a Russian national or who have a Russian child are eligible for a temporary residence permit provided that they produce a medical certificate showing that they are not HIV-positive. Non-nationals found to be HIV-positive are liable to deportation. The applicant, an Uzbek national, arrived in Russia in 2003 and married a Russian national with whom he had a daughter. His application for a residence permit was refused on the grounds that he had been tested HIV-positive. He challenged the refusal in the domestic courts, claiming that the authorities had not taken into account his precarious state of health, which required highly active antiretroviral therapy, his lifestyle or his strong family ties in Russia. That challenge and his subsequent appeals were unsuccessful.
Law – Article 14 in conjunction with Article 8
(a) Applicability – The relationships that arose from the applicant’s lawful and genuine marriage to a Russian spouse with whom he had a child constituted “family life” and thus fell within the ambit of Article 8 of the Convention. Although Article 14 did not expressly include health status or any medical condition among the grounds on which discrimination was prohibited, the Court had recently recognised that physical disability and various health impairments fell within the scope of that provision. That approach was in line with the views expressed by the international community*. Accordingly, a distinction made on account of health status, including HIV infection, was covered by the term “other status” and Article 14 in conjunction with Article 8 was applicable.
(b) Merits – Having established strong family ties in Russia the applicant was in an analogous situation to that of other foreign nationals seeking a family-based residence permit there, but had been treated differently on account of his HIV-positive status. As to whether that difference in treatment was reasonably and objectively justified, the State’s margin of appreciation in this sphere was narrow as people living with HIV were a particularly vulnerable group who had suffered considerable discrimination in the past and there was no established European consensus for the exclusion of HIV-positive applicants from residence. Accordingly, particularly compelling justification would be required for the difference in treatment.
While accepting that the impugned measure pursued the legitimate aim of protecting public health, the Court noted that health experts and international bodies agreed that travel restrictions on people living with HIV could not be justified by reference to public-health concerns. Although such restrictions could be effective against highly contagious diseases with a short incubation period such as cholera or yellow fever, the mere presence of an HIV-positive individual in the country was not in itself a threat to public health. HIV was not transmitted casually but rather through specific behaviour and the methods of transmission were the same irrespective of the duration of a person’s stay in the country or his or her nationality. Despite this, HIV-related travel restrictions were not imposed on tourists or short-term visitors, or on Russian nationals returning to the country, even though there was no reason to assume that they were less likely to engage in unsafe behaviour than settled migrants. Further, while a difference in treatment between HIV-positive long-term settlers and short-term visitors could be objectively justified by the risk that the former could place an excessive demand on a publicly-funded health-care system, this argument did not apply in Russia as non-Russian nationals had no entitlement to free medical assistance other than emergency treatment. Finally, travel and residence restrictions on persons living with HIV could not only prove ineffective in preventing the spread of the disease, but might also actually be harmful to public health, for example, where migrants chose to remain illegally to avoid HIV screening or if the local population were to come to view HIV/AIDS as being solely a “foreign problem”. A matter of further concern for the Court was the blanket and indiscriminate nature of the impugned measure. The provisions requiring applicants for a residence permit to show their HIV-negative status and the deportation of non-nationals found to be HIV-positive left no room for an individualised assessment based on the facts of a particular case. In the instant case, the domestic authorities had rejected the applicant’s application solely by reference to the statutory provisions without taking into account his state of health or his family ties in Russia. In sum, taking into account the applicant’s membership of a particularly vulnerable group, the absence of a reasonable and objective justification, and lack of an individualised evaluation, the Government had overstepped their narrow margin of appreciation and the applicant had been a victim of discrimination on account of his health status.
Conclusion: violation (unanimously).
Article 41: EUR 15,000 in respect of non-pecuniary damage.
* Parliamentary Assembly of the Council of Europe (Recommendation 1116 (1989)); United Nations Commission on Human Rights (Resolution nos. 1995/44 of 3 March 1995 and 2005/84 of 21 April 2005); United Nations (Convention on the Rights of Persons with Disabilities).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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