In June 2013 Constitutional Court of the Russian Federation has ruled on the case of Moldovan citizen Mr. Kh. Appeal to the Constitutional Court was prepared by lawyer Dmitry Bartenev, who represented the interests of Mr. Kh. based on an agreement with ADC “Memorial”.
The claimant has questioned constitutionality of article 25 (10) of the federal law No.114-FZ “On the entry to and exit from the Russian Federation”, which states that foreign citizens and people without citizenship could be subject to decision on desirability of their stay in the Russian Federation. Unconstitutionality of this legal norm allows for a decision to ban a foreign citizen from entering the territory of the Russian Federation based solely on the fact that a person is infected with HIV in spite of the person’s marital status, health condition and other relevant factors. The article also doesn’t provide for possible further overruling of such a decision, which is a violation of the right of a foreign citizen to live together with his family and take care of one’s children.
The legal norm in question violates the right of the claimant, who was deprived of a possibility to live with his family and take care of his children: in 2005 Mr. Kh. has married a Russian citizen and has lived with his wife and children (born in 2005 and 2008) in Saint Petersburg. On July 17, 2008 Federal Migration Service (FMS) of the Russian Federation ruled that Mr. Kh.’s dwelling on the territory of the Russian Federation is undesirable. The basis for this decision was a report from the Centre for prevention of AIDS and infectious diseases concerning the fact that Mr. Kh. had contracted HIV. On August 1, 2008 FMS has informed Mr. Kh. of its decision, on August 4, 2008 Mr. Kh. left Russia and was banned from entering the country since then. Appeals to Russian courts has not resulted in overruling of this ban on entering the country.
Based on an appeal from Mr. Kh. Constitutional Court of the Russian Federation has made a positive ruling, that is, the court has not considered the essence of the case, but cited legal norms and arguments for this case, de facto making an interpretation of them from the constitutional point of view. In particular, the Constitutional Court has stated that “since the decision on undesirability of a HIV-infected foreign citizen’s stay in the Russian Federation or entry to the country are made by law-enforcement agencies based on humanitarian concerns and all factual circumstances of the case (family status, health condition, etc.)… the courts of general jurisdiction when considering decisions of the respective body of executive authority concerning the undesirability of a HIV-infected foreign citizen’s stay in the Russian Federation or one’s entry to the country are not should not limit themselves with considering only formal grounds and should study and evaluate all relevant circumstances, which make such decisions necessary and applicable. Moreover, when adopting such decisions, international regulations, including the Convention on the rights of the child (approved by the General Assembly of the United Nations Organization on November 20, 1988), should be taken into account, in particular that the appeals of children and their parents for entry to a country, which is a member of the Convention, should be considered in a positive, humanitarian and timely fashion (article 9, sections 1 and 4; article 10, section 1 and others)”.