Challenging the decision of Rospotrebnadzor in court, R.’s defenders pointed out that, in accordance with the Law “On Preventing the Spread of a Disease Caused by HIV in the Russian Federation”, foreign citizens and stateless persons with HIV, whose relatives have Russian, foreign or do not have citizenship, but permanently reside in Russia, have the right to stay in the Russian Federation, and refusal to enter the country or making a decision about the undesirability of stay in relation to such citizens violates their legitimate rights and interests.
R.’s parents, her brother and sister live in Russia and have Russian citizenship, and she herself has never committed any offences. Having considered R.’s complaint, the court found that the law does indeed contain a provision prohibiting expulsion or making a decision on the undesirability of stay in the Russian Federation in relation to foreigners with HIV who have relatives in the Russian Federation. Given the illegality of the actions of Rospotrebnadzor, the court ordered the department to cancel the decision on the undesirability of R.’s stay in Russia, and allow entry into the country.
The illegality and discrimination during decisions on the undesirability of stay and a ban on entry into the Russian Federation in relation to HIV-positive foreign citizens in 2016 were recognized by the European Court of Human Rights in the case “Novruk and others vs. Russia”, which combined five similar complaints on violation of rights of HIV-infected foreigners to respect for private and family life and the prohibition of discrimination (Articles 8 and 14 of the European Convention). One of the applicants was Roman Khalupa, a citizen of Moldova, who was represented by ADC Memorial. When making its decision, the court noted that people living with HIV are a vulnerable group that faces many medical, professional, social, and psychological problems, and therefore, when making decisions that restrict the right to respect for private and family life of this category of citizens national courts must give an individual judicial assessment of all relevant facts. Subsequently, based on the decision of the ECtHR, the Constitutional Court of the Russian Federation also adopted a resolution according to which only foreigners with HIV whose close relatives are citizens of the country and are permanently located on its territory can enter Russia.