Communicated on 22 January 2015
FIRST SECTION
Application no. 75781/14
Olga KOSTYCHEVA
against Russia
lodged on 2 December 2014
STATEMENT OF FACTS
The applicant, Ms Olga Kostycheva, is a Moldovan national, who was born in 1983 and lives in Dolgoprudnyy, Russia.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 2007 the applicant moved to the Moscow Region from Moldova.
On 7 June 2008 the applicant married Mr A.K., a Russian national, with whom she had a son N., born on 1 January 2009. Their son is a Russian national. The family have been living together and expect a second child in 2015.
During her pregnancy the applicant was diagnosed HIV-positive.
In March 2014 the applicant applied to the Federal Migration Service of the Moscow Region for a residence permit, invoking exceptional humanitarian grounds. By letter of 22 April 2014, she was informed that her application was rejected 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 applicant challenged the Migration Service’s decision before a court.
On 9 June 2014 the Dolgoprudnyy Town Court of the Moscow Region found that the decision was unlawful. In so finding, the Town Court noted that the applicant was married and had a son, that she lived with her family, had a registered place of residence in Dolgoprudnyy, and that her son went to a local kindergarten. The court also considered it relevant that the applicant could not find employment because she did not have a residence permit. Turning to the applicant’s state of health, the court observed that she underwent regular checkups at different medical facilities of the Moscow Region, received antiretroviral treatment in Moldova and had a good prognosis. It further noted that the applicant’s husband, also HIV-positive, and her son were also regularly examined at the Moscow Regional Centre for Aids Prevention. The court heard the applicant’s husband in the witness stand and noted that he wished the family to stay together. The court concluded that in the light of the applicant’s family situation and, since she was willing and able to receive treatment, her expulsion from Russia would be in breach of her right to respect of family life. The court noted that the impugned decision did not take into account the case-law of the Constitutional Court. It required the Migration Service to issue a residence permit to the applicant.
On 8 October 2014 the Moscow Regional Court examined the Migration Service’s appeal and quashed the judgment of the Town Court. Its summary reasoning solely relied on section 7 § 1 (13) of the Foreign Nationals Act, without addressing the applicant’s arguments in any detail.
B. Relevant domestic law and practice
For a summary of relevant domestic law and practice, see Kiyutin v. Russia, no. 2700/10, §§ 16-27, ECHR 2011.
COMPLAINT
The applicant complains under Article 8 of the Convention, in conjunction with Article 14 of the Convention, that she was a victim of discrimination on account of her health status in the determination of her application for a residence permit.
QUESTION TO THE PARTIES
Having regard to the principles established in the Court’s judgment concerning the refusal of a residence permit to an applicant on account of his health status (see Kiyutin v. Russia, no. 2700/10, §§ 53-74, ECHR 2011), was there a violation of the applicant’s right to be protected against discrimination under Article 14 of the Convention, read in conjunction with her right to respect for her private and family life under Article 8?
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