issued by the Registrar of the Court

ECHR 091 (2016)

15.03.2016

Structural problem in Russia: discriminatory legislation against HIV-positive

foreigners as regards their rights to entry, stay and residence

In today’s Chamber judgment¹in the case of Novruk and Others v. Russia (application no. 31039/11,

48511/11, 76810/12, 14618/13 and 13817/14) the European Court of Human Rights held,

unanimously, that there had been:

a violation of Article 14 (prohibition of discrimination) of the European Convention on Human

Rights read together with Article 8 (right to private life and family), and

no violation of Article 34 (right of individual petition) of the European Convention.

The case concerned the entry and residence rights of HIV-positive non-Russian nationals.

The Court reiterated that the right to enter or settle in a particular country was not guaranteed by

the European Convention. A State had to, however, exercise its immigration policies in a manner

which was compatible with a foreign national’s human rights, in particular the right to respect for his

or her private or family life and the right not to be discriminated against.

The Court notably found that the legislation aimed at preventing HIV transmission, which was used

in the present case to exclude the applicants from entry or residence, had been based on an

unwarranted assumption that they would engage in unsafe behaviour, without carrying out a

balancing exercise involving an individualised assessment in each case. Given the overwhelming

European and international consensus geared towards abolishing any outstanding restrictions on

entry, stay and residence of people living with HIV, who constitute a particularly vulnerable group,

Russia had not advanced compelling reasons or any objective justification for their differential

treatment for health reasons. The applicants had therefore been victims of discrimination on

account of their health status.

The Court also found that the defective legislation which gave rise to the proceedings in the

applicants’ case amounted to a structural problem which could generate further repetitive

applications. Noting, however, that legislative reform was currently under way in Russia, the Court

decided at this stage not to formulate any general measures about the proper implementation of its

present judgment.

Principal facts

The applicants are Mikhail Novruk, a Moldovan national who was born in 1972; Anna Kravchenko, a

Ukrainian national who was born in 1982; Roman Khalupa, a Moldovan national who was born in

1974; Irina Ostrovskaya, an Uzbek national who was born in 1953; and Mr V.V., a national of

Kazakhstan who was born in 1983.

The first three applicants settled in Russia following their marriage to Russian nationals. They all

have children who have acquired Russian nationality by birth. The fourth applicant, Ms Ostrovskaya,

decided to move to Russia to follow her extended family, which included her son and his family,

1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,

any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges

considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final

judgment. If the referral request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.

Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.

Uzbek nationals with valid Russian residence permits, and her sister and her husband, who are

Russian nationals. The fifth applicant, Mr V.V. moved to Russia in 2006 to study and has been living

since 2007 with his same-sex partner, a Russian national.

To complete their application for Russian residence permits, the applicants were required to have a

medical examination which included a mandatory test for HIV infection. After they tested positive

for HIV, the migration authorities refused their applications because the relevant legislation prevents

HIV-positive foreign nationals from obtaining residence permits. In the cases of Mr Khalupa, Ms

Ostrovskaya and Mr V.V., the hospitals reported their test results to the relevant authorities and

their presence on Russian territory was pronounced undesirable. Such a decision can be made on

the basis of the provisions which mandate deportation of aliens who are discovered to be HIV-

positive.

The applicants challenged the decisions denying them residence rights before domestic courts.

Mr Novruk’s and Ms Ostrovskaya’s challenges were dismissed in November 2010 and September

2012, on the ground that the migration services’ decisions to reject their applications had been in

compliance with the law. As concerned Mr Khalupa, the courts refused to order a new review of the

undesirability decision issued four years ago, arguing that there was no legal provision explicitly

providing for the possibility of such a review.

Even though Ms Kravchenko and Mr V.V. obtained favourable decisions in a first round of

proceedings, Ms Kravchenko’s application for a residence permit was ultimately refused in February

2011 and Mr V.V.’s presence in Russia was pronounced undesirable in March 2013. The applicants’

HIV-positive status was cited as the reason for those decisions, once again in view of the applicable

legal provisions. In a further round of proceedings concerning Mr V.V. two new grounds for refusing

his claim for residence were cited: firstly, in August 2013 the Court of Appeal referred to an

increased risk of unsafe behaviour on his part because he had refused to name his former partners;

and, in February 2014, the Regional Court found that he could transmit HIV by using shared

dormitory facilities in a student hostel. The Supreme Court ultimately refused Mr V.V. leave to

appeal to the Supreme Court in April 2014.

Complaints, procedure and composition of the Court

Relying on Article 14 (prohibition of discrimination) read in conjunction with Article 8 (right to

respect for private and family life and the home), all five applicants alleged that they had been

discriminated against because they were HIV-positive. Also relying on Article 34 (right of individual

petition), Mr V.V. complained that, following the communication of his case by the European Court

of Human Rights to the Russian Government, his partner had been summonsed to the prosecutor’s

office for an interview so as to intimidate the couple.

The application was lodged with the European Court of Human Rights on 10 May 2011, 24 July 2011,

30 October 2012, 24 January 2013 and 14 February 2014.

Judgment was given by a Chamber of seven judges, composed as follows:

Luis López Guerra (Spain), President,

Helena Jäderblom (Sweden),

Helen Keller (Switzerland),

Johannes Silvis (the Netherlands),

Dmitry Dedov (Russia),

Pere Pastor Vilanova (Andorra),

Alena Poláčková (Slovakia),

and also Stephen Phillips, Section Registrar.

Decision of the Court

Article 14 (prohibition of discrimination) read in conjunction with Article 8 (private and

family life)

The Court found that Article 14 taken in conjunction with Article 8 was applicable in the applicants’

case: the first three applicants had all lawfully married Russian nationals and have children born of

those marriages and therefore enjoyed “family life” in Russia; Ms Ostrovskaya, who does not have

any friends or relatives outside Russia, lives and shares household expenses with her son’s family

and must be deemed to have established her “private life” there; and, Mr V.V. has been in a stable

partnership since 2007 and has led “family life” with his partner.

The Court noted that Russia was under an obligation to provide a particularly compelling justification

for the difference in treatment of which the applicants alleged that they had been victims. Firstly,

people living with HIV are a vulnerable group facing many medical, professional, social, personal and

psychological problems, including deeply rooted prejudice even from among highly educated

people. Secondly, as things currently stood, Russia was the only member State of the Council of

Europe and one of 16 States world-wide that enforced deportation of HIV-positive non-nationals.

The Court therefore emphasised that, before taking a decision which curtailed the right to respect

for an individual’s private and family life, there had to be an individualised judicial assessment of all

the relevant facts. Where such a decision was based on a predetermined classification of the entire

group of vulnerable individuals as a threat to public health solely because of their health status, it

could not be considered compatible with the protection against discrimination enshrined in

Article 14 of the Convention.

However, the decisions excluding the applicants from entry or residence, aimed at preventing HIV

transmission, had been based on an unwarranted generalisation with no basis in fact, namely the

assumption that they would engage in unsafe behaviour such as unprotected sexual intercourse or

the sharing of contaminated syringes. The applicants, living with their families or partners, had never

though been suspected of, or charged with, any such acts. What is more, in Mr V.V.’s case, the

Regional Court’s findings had been based on a scientifically false ground, namely that he could

transmit HIV by using shared facilities in a student dormitory.

In sum, the Court found that, in the light of the overwhelming European and international consensus

geared towards abolishing the outstanding restrictions on entry, stay and residence of HIV-positive

non-nationals, Russia had not advanced compelling reasons or any objective justification for their

differential treatment for health reasons. The applicants had therefore been victims of

discrimination on account of their health, in violation of Article 14 taken in conjunction with

Article 8.

Article 34 (right of individual petition)

The Court was satisfied that no pressure had been brought to bear on Mr V.V.’s partner and legal

representative. Thus, it could not be held that the Russian authorities had hindered Mr V.V. in the

exercise of his right of individual petition.

Article 41 (just satisfaction)

The Court held that Russia was to pay each applicant 15,000 euros (EUR) in respect of non-pecuniary

damage. For costs and expenses, it awarded Mr Novruk EUR 2,000, Ms Kravchenko EUR 4,000,

Mr Khalupa EUR 4,320, and Ms Ostrovskaya and Mr V.V. EUR 850 each.

Article 46 (binding force and implementation)

In so far as the domestic proceedings in the applicants’ case stemmed from defective legislation, this

amounted to a structural problem which could give rise to further repetitive applications before the

European Court of Human Rights. However, in March 2015 the Russian Constitutional Court

pronounced the legal provisions which were at the heart of the applicants’ case incompatible with

the Russian Constitution in so far as they allowed the authorities to refuse entry or residence or to

deport an HIV-positive non-national with family ties in Russia solely on account of their diagnosis. As

a result, a draft law implementing that judgment has already been prepared and submitted to the

Russian Parliament. It was not for the Court to speculate about the final shape of the proposed draft

law and it therefore abstained from formulating any general measures about the proper

implementation of its present judgment at this stage. Should the Russian Government’s efforts to

tackle the underlying Convention problem or the remit of the envisaged reform prove to be

insufficient, the Court might, nevertheless, reassess the need to apply the pilot-judgment procedure

in the applicants’ case.

The judgment is available only in English.

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member

States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.