KIYUTIN V. RUSSIA

Case Citations and Basic Information

Case Name: Kiyutin v. Russia

Case Citation: Application no. 2700/10, ECLI:CE:ECHR:2011:0310JUD00)270010 (10 March 2011)

Court: The European Court of Human Rights

Date of Decision: 10 March 2011

Bench Composition (Bench Strength : 7 Judges) : Nina Vajić (President of the Chamber), Anatoly Kovler, Christos Rozakis, Peer Lorenzen, Elisabeth Steiner, Mirjana Lazarova Trajkovaska, Julia Laffranque (Judges), and Søren Nielsen (Section Registrar)

 Introduction

 Kiyutin v. Russia is considered Russia’s landmark case in human rights law starting from the date of the decision, up until the present moment for many significant reasons; It was the first instance wherein the European Court of Human Rights came down with a judgement that strongly condemned the stigmatisation of individuals living with HIV-positive status. The court had finally recognised people living with HIV as a “vulnerable group” which requires a heightened protection by authorities because of the historical discriminatory treatment. Additionally, by classifying as a “vulnerable group”, the court has significantly narrowed the acceptable area of sovereign judgement in immigration matters, requiring sufficient reasons for any disparate treatment. Lastly, it expanded the meaning of article 14 because the said provision does not explicitly state “health” which made the provision up for interpretation to the courts, however, the meaning was expanded which made “health” fall under the protection of “other status” including HIV infection. It significantly brought recognition that there are instances in which Human Rights protection, specifically non discrimination and family life, override traditional state sovereignty in immigration law even if the justifications were in regards to concerns of public health.

Facts of the Case

The applicant, Victor Kiyutin, was born in Uzbekistan in 1971. In October 2002, his brother had bought a house in Lesnoy in the Oryol Region of Russian and this had served the applicant’s family to come from Uzbekistan to settle in Russia.

In July 2003 the applicant married a Russian citizen, with whom had a daughter and in taking the necessary next step towards a long term lawful residence had sought for a temporary residence permit. Mr. Kiyutin, under Russian immigration rules, underwent a mandatory medical examination during which it was found out that he had tested positive for HIV. On the account of the given circumstance, his application to obtain a residence permit was refused. At the time, Russian federal litigations had strict immigration consequences on non citizens with HIV positive status. That said, the refusal had relied solely on statutory provisions of:

• The HIV Prevention Act (1995), it was required for foreign nationals applying for a residence permit or a work permit, for more than three months, to provide a documented clearance certifying of HIV negative status
• The Foreign Nationals Act (2002), Section 6(8) and Section 7(1)(13)

Section 6(8): “..the list of documents that must be enclosed with an alien’s application for a residence permit. Among other documents, an applicant must produce a medical certificate showing that he or she is not HIV-positive”

Section 7: “Contains a list of grounds for refusing a temporary residence permit or annulling a previously issued residence permit. In particular, an application for a residence permit will be refused if the foreigner is a drug abuser or is unable to produce a certificate showing that he or she is not HIV-positive”

History of Proceedings

• First Judicial Challenge (2004): Mr. Kiyutin challenged the First Rejection (2003) by arguing that the authorities did not consider taking an individualised assessment of his circumstances, health, family ties, or if he posed any actual risk. Also, his deportation that was ordered by the authorities would consequently destroy his family ties due to the fact that his wife and child are Russian citizens.

The claim was dismissed by bringing it up that it was the law and mandatory.

• Second Application (2009): After living for several years in Russia without legal status, he had decided to reapply for a temporary residence permit to obtain a lawful long term stay.
• Final Domestic Decision (2009): His application was rejected the second time following on the previous grounds and he was fined for an unlawful stay, he was commanded to leave Russia within three days. He had tried and filed an appeal but again was unsuccessful due to the justification being that he posed risk to public health in Russia.
• Proceedings Before the ECHR (2009 – 2011): Mr. Kiyutin filed to the European court of Human Rights arguing that a violation had occurred under Article 14 in conjunction with Article 8.

It had been accepted for a third party intervener, the NGO intersights, before the court with their thorough medical examination data showcasing that travel bans on HIV-positive individuals do not minimise the spread of the HIV infection. Russia is inconsistent with the measures they have taken to prevent the spread of the HIV infection because long term visitors or returning nationals do not face the same testing as for foreigners who have HIV-positive status. Therefore, there are other factors present which need to be taken into consideration for public health, rather than just basing it on Mr. Kiyutin’s HIV status.

Legal Issues

 Whether the denying to grant a residence permit to the applicant interfered with the right to respect for private life and family life under Article 8 of the European Convention on Human Rights

Whether the applicant was subject to discrimination merely on account of HIV positive status, which is contrary to Article 14 read together with Article 8 of the European Convention of the Human Rights

Whether public health concerns could have justified the automatic immigration restrictions on HIV-positives without an individualised assessment

Whether people with HIV-positives constitutes a “vulnerable group” that requires a heightened protection by authorities from discrimination

Whether Russia exceeds its acceptable area of sovereign judgment in immigration matters by imposing a blanket statutory ban on residence permits for HIV positive foreigners

Arguments Presented

Appellant’s Arguments

• The authorities had failed to take an individualised assessment of his circumstances, those being his health, family ties and/or whether he posed any actual risk to the population
• Violation of Article 14 taken in conjunction with Article 8
• He respected the rules posed by Russia and did not engage in activities which may hinder the health of the population and that this indicates the inadmissible discrimination towards him because of his HIV result
• It was destroying his family ties because he had married a Russian national and had a child. In Russia he developed his whole life and in Uzbekistan he had nothing and he did not know about the infection until later on
• The reason he was not deported yet was because the authorities were waiting for the judgments to come out just like it was done with the domestic courts

Respondent’s Arguments

• The applicant still lived in the Oryol Region and had not been deported given his family ties and health condition. Due to that reason, the refusal did not constitute an interference with the right to respect for private and family life
• It was a necessity to prevent HIV infection because Russian authorities had voiced their concerns about the massive spread of HIV epidemic in the nation
• There had been socio-economic consequences in the Russian Federation, the threat it posed to humankind had to be taken with serious measures to ensure the protection of the rights and interests of the population
• The applicant did pose danger to the general public which was confirmed by the prevalence of the HIV infection in the world
• It was said that the applicant had been convicted of serious criminal offences in Uzbekistan so the domestic courts were not required to take assessment of his individual situation, the information of his state of health or lifestyle because such consideration was legally irrelevant to determine in the present case

Court’s Reasoning and Analysis

Firstly, the court discussed the applicability of Article 14, the statutory provision remained up to interpretation for the courts because it did not explicitly list “health” status or any other medical condition. The court expanded the meaning of the provision in order to recognise that physical disability and many health impairments fall within the scope of this statute under the “other status”. The terminology “other status” is deemed to be a non discriminatory provision which covers a list of health status, including HIV infection.

Secondly, if a restriction on fundamental rights is applied to a marginalised group that has suffered discrimination in the past, then the state margin of appreciation is narrow and it is supposed to give a very reasonable justification for that reason being. Historically, discrimination was widespread with minimum to no consequence being given, resulting in social exclusion happening. The long term aim that was trying to be achieved with the ruling was to put an approach to things which allow individualised evaluation of their capacities and needs. The applicant who was HIV-positive was recognised as part of the “vulnerable group” as there was a difference in treatment among those who had HIV-positive, compared to those with HIV-negative. There had not been a reasonable justification, as the court stated, and there was no individualised assessment of his circumstances like family ties, health, or if he posed actual risk to the public health.

Thirdly, the court evaluated the approach of public health justification presented by the respondent Government. It was subject to dismantlement by the courts. HIV is not transmitted through casual contact or the mere presence of a person with HIV-positive status being in the country. This was proven through thorough expert investigation, WHO and UNAIDS. Additionally, Russia’s travel restrictions on long term residents who tested HIV-positive could not be a reasonable justification of public health concerns. It was taken into account as inconsistent to what was being presented because long term visitors and returning nationals were not subject to the same testing nor restrictions which in turn proved the differential treatments being taken at hand by authorities to a specific group of individuals only.

Lastly, the court rejected the justification that HIV posed socio-economic consequences to the federation and that restricting migration helped contain those burdens. It was found to be lacking factual evidence that Mr. Kiyutin himself would expose the nation to these burdens. It was speculative and generalised rather than individualised which the court reiterated once again that discrimination cannot rest on assumption or stereotype. Furthermore, non nationals were not entitled to free medical care anyway and had to pay for medical services themselves so the government’s claim that HIV-positive migrants would overburden the healthcare system was not a justification.

Judgment and Ratio Decidendi

The court constituted that there was a violation of Article 14 taken into conjunction with Article 8 and that the respondent State ought to pay the applicant EUR 15,000 within three months from the date the judgment becomes final.

A state is not able to substantiate a blanket restriction on the residency of foreign nationals merely on the basis of their HIV-positive status. Such measures being taken lack an objective and reasonable justification, fails to account for individualised assessments, and constitutes unlawful discriminatory treatment against the recognised “vulnerable group”.

Critical Analysis

The major strength of the ruling was that it recognised that there are certain circumstances in which a statute cannot automatically take precedence over fundamental rights. In the present case human rights protections, specifically non discrimination and family life, overrides traditional state sovereignty in immigration policy.

However, the criticism is considered to be that the courts failed to declare a complete ban on HIV based immigration restrictions. The courts rejected the argument mainly for it being disproportionate and insufficiently justified, rather than stating that exclusion solely based on HIV status is fundamentally deemed to be discriminatory in all circumstances and that it is inherently incompatible with human rights law. This leaves room for the authorities to present much stronger arguments in justifying that immigration restriction, like in the present case, could still be considered lawful. Whilst it is believed that the courts protected the applicant, it had missed a fundamental opportunity to declare a clear and universal principle that condemned HIV based immigration restrictions in future cases.

Conclusion 

Kiyutin v. Russia reiterates how fundamental rights of individuals, especially those who are more inclined to face discrimination, are protected by the courts. The ECHR ruled that Russia violated Article 14 in conjunction with Article 8 by automatically dyeing a temporary residence permit based solely on his HIV-positive result.

Reference(S):

Kiyutin v. Russia, Application no. 2700/10 (ECtHR, 10 March 2011)