Kiyutin v Russia

Forum: European Court of Human Rights
INTERIGHTS role: Third party interveners
Keywords: Discrimination, HIV, immigration, family

On 10 March 2011, in the case of Kiyutin v Russia, the European Court of Human Rights held that refusing a residence permit to a foreign national solely on the basis of their HIV-positive status amounted to unlawful discrimination. On 15 September 2011, the judgment became final as a five-judge panel of the Grand Chamber rejected the Russian government's request for referral.

This landmark case is a significant boost to the rights of persons living with HIV/AIDS (‘PLHIV’) in Europe, as the judgment contains two important ‘firsts’: not only has it explicitly recognised that PLHIV are protected as a distinct group against discrimination in relation to their fundamental rights; but it has also recognised that PLHIV are a ‘vulnerable group’ and any restriction of their rights attracts a higher degree of scrutiny on the part of the European Court.

INTERIGHTS submitted a third party intervention which provided an analysis of international, regional and national standards existing in the field of protection of PLHIV against discrimination, in particular in the context of international travel and migration. The Court endorsed most of the brief’s key arguments in the judgment.

The case was lodged by Mr Kiyutin, an Uzbek national living in Russia. Although Mr Kiyutin is married to a Russian national with whom he has a young child, his application for a residence permit was rejected by the Russian authorities on account of his HIV-positive status. The refusal was in accordance with Russian legislation which requires foreigners wishing to stay in the country long term to demonstrate that they are HIV-negative.

The blanket nature of the restriction would have allowed the Court establish a violation of the European Convention on Human Rights on the basis of Article 8 alone. It is therefore commendable that the Court has eschewed this circumspect approach in favour of a robust analysis that emphasises that ‘the mere presence of a HIV-positive individual in a country is not in itself a threat to public health’.

One of the initial elements of the Court’s analysis consisted of establishing that a distinction made on the basis of HIV infection is included – ‘either as a form of disability or alongside with it’ – in the reference to ‘other status’ in Article 14. It is important for the protection of the rights of PLHIV that the Court endorsed the view that HIV/AIDS can be treated as a ‘disability’ in the context of discrimination. This approach enables PLHIV to benefit from the robust antidiscrimination framework established in the UN Convention on the Rights of Persons with Disabilities.

Moreover, the Court’s recognised that PLHIV constitute ‘a vulnerable group with a history of prejudice and stigmatisation’. In practical terms, this classification means that Council of Europe states are afforded only a narrow margin of appreciation in adopting any measures that restrict human rights on grounds of HIV status. The Court also pointed out that the exclusion of HIV-positive applicants from residence did not enjoy broad support among the Council of Europe countries. As a result, in the present case Russia was required to provide ‘a particularly compelling justification’ for the differential treatment of the applicant.

While the Court acknowledged that the protection of public health was a legitimate aim, it unequivocally rejected the idea that the restrictions in question could be justified by reference to that aim. In its examination of whether a common standard exists on the issue of public health protection, the Court expressly relied on INTERIGHTS’ submission that referred to the consensus among experts and international bodies active in the field of public health that HIV-related travel restrictions are not an effective means of addressing public health concerns raised by HIV. HIV is not transmitted casually, but through specific behaviours. Consequently, prevention does not depend entirely on PLHIV but can be achieved by HIV negative persons’ taking steps to protect themselves against infection. The Court stressed that the contested measures were based on assumptions that amount to ‘a generalisation which is not founded in fact’. Remarkably, the Court went even further by noting that travel and residence restrictions on PLHIV were not only ineffectual but also potentially harmful to the public health of the host country. On the one hand, they may compel some migrants to avoid HIV screening for fear of expulsion. On the other hand, they lull the local population into a false sense of security suggesting that HIV/AIDS is a ‘foreign problem’.

The Court concluded that the restrictions imposed by the Russian authorities had no reasonable and objective justification and that the applicant was therefore a victim of discrimination.

While there remains a sizeable minority of countries in the world that enforce HIV-related travel restrictions in some form or other, the potential impact of the Court’s judgment extends beyond the Council of Europe, being the first authoritative condemnation of such measures by an international or regional human rights adjudicator. Moreover, the arguments put forth by the Court lend strong support to arguments against rights restrictions of PLHIV in areas other than migration, such as health care or employment.

Click here to read the third party intervention

INTERIGHTS presented this case to the Global Commission on HIV and the Law (May 2011)

INTERIGHTS contact: Yuri Marchenko, Europe Lawyer