ECtHR ruled deportation of HIV-positive foreigners from Russia was discriminatory

On March 15, 2016 the European Court for Human Rights (ECtHR) issued a positive ruling in the case of “Novruk and others v. Russia”, which had brought together five similar legal appeals regarding violation of the rights of HIV-infected citizens of Ukraine, Kazakhstan, Moldova and Uzbekistan and had concerned respect for private and family life and the prohibition of discrimination (based on Articles 8 and 14 of the European Convention of Human Rights). One of the applicants was Roman Khalupa, whose legal interests were represented by ADC “Memorial”.

Existing legislation of the Russian Federation at the time of legal appeal to ECtHR had prohibited HIV-positive foreign nationals to live and work in Russia. The list of mandatory documents required for filing for a residence permit in Russia included certificate of negative HIV status and if on examination of a foreign national it was discovered that he or she was HIV-positive, the staff of medical institutions had to report the results of the test to the bodies of authority, which, in turn, made decisions on undesirability of a person’s stay in the Russian Federation and his/her deportation from Russia without taking into account personal circumstances.

Such decision on the undesirability of stay in Russia based on HIV infection diagnosed in 2012 had been made regarding Roman Khalupa, a citizen of Moldova. Lawyer of ADC “Memorial” appealed this ruling by Basmanny District Court of Moscow, stating that Khalupa had been married to a citizen of the Russian Federation and had two minor children in this marriage. Basmanny Court ignored that argument and ruled that the decision on the undesirability of stay in Russia made by the Russian Federal Migration Service had been consistent with both the general principles of the international law and the Russian legislation.

After having failed to get adequate legal protection in the Russian courts, ADC “Memorial” filed a complaint with the ECtHR. The Court ruled that the fact that Khalupa had a family in Russia was an important consideration, so it found it legitimate to use Article 14 (prohibition of discrimination) in conjunction with Article 8 (the right to respect of private and family life).

The Court noted that people living with HIV were a vulnerable group that faced many medical, professional, social, and psychological problems, and so when making decisions that affect the right to respect for private and family life of this category of citizens, national courts should make individual judicial assessments of all the relevant facts. However, in Khalupa’s case national courts had based their rulings on the assumption that a particular group of people was a threat to public health solely because of their medical status, which, in the opinion of the ECtHR, was contrary to the principle of prohibition of discrimination outlined in Article 14 of the Convention.

In addition, the Court particularly stressed that Russia had been the only participant of the Council of Europe, which had enforced deportation of HIV-positive foreign nationals.

The ECtHR found that in the light of European and international agreements aiming at the abolition of significant restrictions on entry, stay and residence of HIV-positive people, who belong to a particularly vulnerable group, Russia had not presented serious evidence or any reason for a differentiated approach to these people based on their health status. Consequently, the applicants were victims of discrimination based on health status, which runs contrary to Articles 14 and 8 of the European Convention.

At the same time, the Court has not ordered adoption of general measures to improve the situation, since on March 12, 2015 the Constitutional Court of the Russian Federation had adopted a very important decision that directly affected HIV-positive foreign nationals: restrictive rules outlined in the law “On the procedure for exit from the Russian Federation and the order of entry into the Russian Federation”, the law “On the legal status of foreign citizens in the Russian Federation” and the law “On prevention of the spread of disease caused by human immunodeficiency virus in the Russian Federation”, had been found to be in contradiction with the Constitution of Russian Federation and subject to change in parts related to the grounds and procedure of decision on the right of HIV-positive foreigners, whose relatives were Russian citizens, to live in Russia. In December 2015 corresponding changes of the Russian legislation were put in force, allowing foreigners with relatives – citizens of Russia – to reside in the Russian Federation.

Despite these legislative changes, the Russian courts continue to deny HIV-positive foreigners the right to live in the Russian Federation and ban them from entering the country on the basis of their “undesirability”. Thus, in the case of D.K., a citizen of Ukraine, who had been legally represented by lawyer of ADC “Memorial”, in March 2016 Basmanny District Court of Moscow had refused to take into account the decision of the Russian Constitutional Court and the personal circumstances of the applicant (his wife is a citizen of the Russian Federation in need of expensive medical treatment, the applicant had long lived in Russia, worked and paid taxes, he is also a native of Donetsk, where military conflict is taking place, and his deportation from Russia can be dangerous for his life).

This recent ECtHR decision is an important step towards protection of HIV-positive foreigners from deportation from Russia. Its implementation should become the basis for the rulings of Russian courts in favor of foreigners who are in the same situation as D.K.