Structural Problem in Russia: Discriminatory Legislation Against HIV-Positive Foreigners as Regards their Rights to Entry, Stay and Residence
Rusya’da Yapısal Problem: HİV ile Yaşayan Yabancıların Rus Topraklarına Giriş, Kalış ve İkamet İzinlerine İlişkin Ayrımcı Yasal Düzenlemeler
Serkan SEYHAN
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. 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.
The European Convention on Human Rights, People Living With HIV, The Right to Respect For His Private Life, Discriminatory Legislation.
Dava, HIV pozitif yabancıların Rusya’ya giriş ve oturma izinleri ile ilgilidir. AİHM, belirli bir ülkeye girme ya da yerleşme hakkının Avrupa Sözleşmesi tarafından garanti edilmediğini kararında yinelemiştir. Ancak bir devlet, göçmenlik politikalarını yabancı uyruklu insan hakları, özellikle de özel hayatına veya aile hayatına saygı gösterilmesi ve ayrımcılığa uğramama hakkına uygun bir şekilde kullanmak zorundadır. Özellikle savunmasız bir grup olan HIV ile yaşayan insanların giriş, kalma ve ikamet etme konusundaki bariz kısıtlamaları ortadan kaldırmaya yönelik Avrupa ve uluslararası konsensüs göz önüne alındığında, Rusya, sağlık durumuna dayalı ayrımcılıkla ilgili hukuki gerekçelerini ortaya koyamamıştır. Mahkeme ayrıca, başvurucuların hak ihlallerinin ortaya çıkmasına neden olan kusurlu mevzuatın, tekrar eden uygulamalara neden olabilecek yapısal bir sorun olduğunu tespit etmiştir. Bununla birlikte, Mahkeme, Rusya’da şu anda yasal reformun sürdüğünü belirterek, bu aşamada, mevcut kararının doğru bir şekilde uygulanmasına yönelik herhangi bir genel tedbiri formüle etmemeye karar vermiştir.
Avrupa İnsan Hakları Mahkemesi, HİV ile Yaşayan Birey, Özel Hayata ve Aile Hayatına Saygı Hakkı, Ayrımcı Yasal Düzenlemeler.
I. Facts
The applicants are two Moldovan nationals; an Ukrainian national; an Uzbek national and a national of Kazakhstan.
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, decided to move to Russia to follow her extended family, which included her son and his family. The fifth applicant moved to Russia in 2006 to study and has been living there 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 three cases, 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 foreigners who are discovered to be HIV positive.
The applicants challenged the decisions denying them residence rights before domestic courts. These challenges were dismissed on the ground that the migration services’ decisions to reject their applications had been in compliance with the law. The applicants’ HIV-positive status was cited as the reason for those decisions, once again in view of the applicable legal provisions.
II. Decision of the Court
The ECHR found that Article 14 taken in conjunction with Article 8 was applicable in the applicants’ case, on the grounds that:
- The first three applicants had all lawfully married Russian nationals and have children born of those marriages and therefore enjoyed “family life” in Russia;
- The Uzbek National, 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;
- Mr V.V. has been in a stable partnership with his same-sex parter since 2007 and has led “family life” with him.
