In their struggle against various forms of discrimination human rights defenders treat discrimination of HIV-positive people as a special problem, which requires attention. This issue constitutes a sort of the intersection of several forms of accentuated stigmatization and discrimination: it involves exclusion of people from social life based on their health status (which is expressly prohibited by the ECHR and a number of other international norms) and prejudices still prevalent regarding HIV-positive people. In Russia, both legal-wise and in day-to-day practice, we also witness trans-discrimination of foreign nationals with HIV since these people regularly face decisions on “undesirability” of their stay in the country, which means actual expulsion of people, who legally live in Russia and often have their families and children here.
ADC “Memorial” in cooperation with attorneys, who specialize in defending human rights, have repeatedly called to abandon discriminatory practice of expulsion of HIV-positive foreigners from Russia. In some cases we have achieved successes in courts and decisions on expulsion from the country were canceled. However, now we aim to achieve yet another goal: a HIV-positive Ukrainian citizen was given permission to stay in Russia for the first time, overruling a number of earlier court rulings, which denied him the right to live in Russia. This was the first case of an actual positive resolution of a HIV-positive foreigner’s problem through court appeal.
M., a Ukrainian citizen, approached ADC “Memorial” with a request for legal assistance in March 2013 after Rospotrebnadzor, a state agency in charge of disease control, had ruled that his stay in the Russian Federation was undesirable because of the HIV infection he had contracted. ADC “Memorial” together with attorney Dmitry Bartenev has advised M. to make a legal appeal against the ruling of Rospotrebnadzor in order to defend his right to stay in Russia with his family and receive protection against discrimination based on his health status. A legal appeal presented to the Tverskoy district court in Moscow (where Rospotrebnadzor is headquartered) by M. referred to the legal statement by the Constitutional court of the Russian Federation, which had stated that when the cases for deportation of HIV-infected foreign citizens were considered, law enforcement agencies should take into account the family status of foreign citizens, which had not been the case for M. (M. was married to a Russian citizen and at the time of the court ruling lived with her and their child in Russia.) Thus, deportation and ban on entry to Russia violated M.’s right for protection of family life, which is guaranteed by Article 8 of the Convention on the defense of human rights and basic freedoms.
In December 2013 Tverskoy district court of Moscow has ruled in favor of the appeal presented by the lawyer and against the earlier ruling by Rospotrebnadzor about undesirability of M.’s stay in the Russian Federation. Following that M. requested temporary residence permit from the Federal Migration Service (FMS), but the latter refused to issue it, referring to the same reason – M.’s HIV-positive status. In accordance with the federal law №115-FZ “On the legal situation of foreign nationals in the Russian Federation” (adopted on July 25, 2007), HIV infection is indeed considered a reason for refusal to issue temporary residence permission for foreign nationals, but in this particular case officials failed to take into account particular circumstances of his case.
Based on the family situation of M. and also taking into account the legal practice of the Constitutional Court of the Russian Federation, as well as the European Court on Human Rights (in particular the ruling dated March 10, 2011 in the case of “Kiyutin vs. Russia”, which considered such actions against HIV-infected persons discriminatory, as well as “ineffective in terms of prevention of the spread of disease, but also potentially harmful for the state of health of citizens”), the lawyers of ADC “Memorial” together with lawyer Olga Tseitlina made a legal appeal to Dzerzhinsky district court of Saint Petersburg on October 30, 2014 asking to over-rule this decision by FMS and consider it illegal. On December 2, 2014 this appeal received positive ruling of the court and the earlier decision of FMS was over-ruled.
In mid-February 2015 M. received temporary residence permit in Russia. ADC “Memorial” will monitor implementation of this decision, which recognized earlier refusals on the part of FMS unlawful.