Communicated on 15 November 2016
THIRD SECTION
Application no. 25402/15
Kozim Rakhimovich TOSHMIRZAYEV
against Russia
lodged on 20 May 2015
STATEMENT OF FACTS
The applicant, Mr Kozim Rakhimovich Toshmirzayev, is a national of Uzbekistan, who was born in 1987 and lives in Namangan, Uzbekistan. He is represented before the Court by Mr I. Sharapov, a lawyer practising in Moscow.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant lived in Russia since 2010. He met Ms L., a Russian national, and in August 2012 they had a child together who acquired Russian nationality by birth.
On 5 April 2013 the applicant and Ms L. married.
In November 2013 the applicant underwent a mandatory medical examination and discovered that he was HIV-positive. He went back to Uzbekistan for more tests and anti-retroviral treatment.
In December 2013, on his way back to Russia from Uzbekistan, the applicant was stopped at the Yekaterinburg international airport and refused entry to Russia. He was told that on 12 April 2013 the Consumer Protection Authority (CPA) had pronounced his presence in Russia undesirable because of his medical condition (the “exclusion order”).
The applicant challenged the exclusion order before a court.
On 23 September 2014 the Tverskoy District Court in Moscow rejected the complaint. It held that the CPA had lawfully issued the exclusion order within its competence on the basis of an established medical diagnosis. It further found that the applicant “had avoided the antiretroviral therapy” and that he had failed to adduce evidence capable of “guaranteeing his treatment until full recovery”. The District Court finally observed that the complaint was to be rejected on the merits rather than as a belated one because the case-file did not contain any information about the date when the exclusion order had been notified to the applicant.
In his grounds of appeal, the applicant pointed out that the District Court’s finding that he avoided treatment had no basis in fact. He explained that antiretroviral therapy is indicated only when the count of CD4 cells falls below a certain level.[1] The early stage of his condition did not require the therapy at the material time but he began taking it at a later date. The requirement to supply guarantees of “full recovery” suggested that the District Court misunderstood the nature of HIV-infection which is a life-time condition and as of yet cannot be fully treated. He finally submitted that the District Court gave no assessment to the impact that his separation from his wife and very young child had had on their family life.
On 20 January 2015 the Moscow City Court upheld the District Court’s decision in a summary fashion, stating that all his grounds of appeal “were essentially a request for a new assessment of the facts of the case and of the evidence and [could not] warrant the quashing of the judgment”.
On 30 April and 30 July 2015 the City Court and the Supreme Court of Russia, respectively, refused the applicant leave to appeal to the cassation instance, repeating the same formula for rejecting the applicant’s arguments: “the argument that the claimant had begun therapy from 4 July 2014 is seeking to give a new assessment to the court’s findings and does not lead to the quashing of the judgments”.
In the wake of recent legislative developments (see the Domestic Law below) the applicant’s wife asked the CPA to revoke the exclusion order.
By letter 15 February 2016, the CPA refused her request:
“The validity of the exclusion order is not limited in time.
The CPA may only revoke an exclusion order on the basis of a judicial decision; the applicable legislation does not allow it to suspend or review the order.
According to the available information, the judgment by the Tverskoy District Court dated 23 September 2014, as upheld on appeal by the Moscow City Court on 20 January 2015, rejected your claim to set aside the CPA’s exclusion order no. 9439 of 23 January 2014.”
B. Relevant domestic law
For a summary of relevant domestic law provisions and the case-law of the Constitutional Court, see Novruk and Others v. Russia, nos. 31039/11, 48511/11, 76810/12, 14618/13 and 13817/14, §§ 49-61, 15 March 2016.
The draft law referred to in paragraph 62 of the Novruk and Others judgment was adopted as Federal Law no. 438-FZ on 30 December 2015. It amended in particular section 11 of the HIV Prevention Act by adding paragraph 3 which establishes that an exclusion order (a decision pronouncing the presence in Russia undesirable) shall not be issued against HIV-positive foreigners who have Russian spouses or children provided that they have not committed any breaches of Russian law relating to countering the spread of the HIV infection.
COMPLAINTS
The applicant complains under Article 8 of the Convention, taken on its own and in conjunction with Article 14, about the exclusion order that was issued against him because of his medical condition.
QUESTIONS TO THE PARTIES
1. As regards the procedure for making the decision pronouncing the applicant’s presence in Russia undesirable (the “exclusion order”) and its subsequent review by courts, was it compatible with the requirements of Article 8 of the Convention? In particular,
(a) Was the applicant given an opportunity to be heard and to put forward factual and legal arguments against his exclusion from Russia?
(b) Did the decision give specific reasons or mention concrete facts which may have rendered the applicant’s presence in Russia undesirable?
(c) Did the Consumer Protection Authority take into account the relevant facts, such as the applicant’s family and social attachments in Russia before issuing the decision?
(d) Was the exclusion order properly notified to the applicant?
(e) Did the Russian courts examine the matter with due regard to the criteria that the Court uses to assess whether an expulsion measure is necessary in a democratic society (see Üner v. the Netherlands [GC], no. 46410/99, §§ 57-58, ECHR 2006-XII)? Did the courts ground their factual findings on all the available evidence and on scientifically valid premises (see I.B. v. Greece, no. 552/10, § 88, ECHR 2013, and Novruk and Others v. Russia, nos. 31039/11, 48511/11, 76810/12, 14618/13 and 13817/14, § 104, 15 March 2016)?
(f) Was the permanent nature of the exclusion order taken into account by the domestic authorities?
(g) Did the CPA’s refusal to review its own decision in the light of the new legislative developments afford due respect to the interests safeguarded by Article 8 of the Convention?
2. Having regard to the principles established in the Court’s case-law in similar cases (see Kiyutin v. Russia, no. 2700/10, ECHR 2011, and Novruk and Others v. Russia, nos. 31039/11, 48511/11, 76810/12, 14618/13 and 13817/14, 15 March 2016), was there a violation of the applicant’s right to be protected against discrimination under Article 14 of the Convention, read in conjunction with his right to respect for his private and family life under Article 8?
[1]. See, for details, Khayletdinov v. Russia, no. 2763/13, §§ 60-61, 12 January 2016, and Kozhokar v. Russia, no. 33099/08, §§ 75-79, 16 December 2010.
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