There was held to be unlawful discrimination under the European Convention of Human Rights were a Government refused to grant a residence permit to those who were HIV positive. This was a vulnerable group so the State had only a narrow margin of appreciation (ie range of discretion). There had to be very weighty reasons for the restriction. Here the ban was not shown to have an objective and reasonable justification.
European Court of Human Rights (ECtHR), March 2011. Full judgment: bailii.org.
The applicant, an Uzbek citizen, had married a Russian national and they had a daughter.Russia refused him a residence permit because he was HIV positive.
Held by the European Court of Human Rights: the claim succeeded. There had been discrimination contravening the European Convention on Human Rights. There was a breach of Article 14 (the anti-discrimination provision) of the European Convention on Human Rights, in conjunction with Article 8 (right to private and family life).
HIV status is within Article 14 (non-discrimination)
Although Article 14 does not expressly list a health status or any medical condition among the protected grounds of discrimination, the court had recently recognised that a physical disability and various health impairments fall within the scope of this provision (see Glor v Switzerland, and G.N. and Others v. Italy). The courted noted the view of the UN Commission on Human Rights that the term “other status” in non-discrimination provisions in international legal instruments can be interpreted to cover health status, including HIV-infection. This approach was compatible with a Recommendation by the Parliamentary Assembly of the Council of Europe which called for reinforcement of the non-discrimination clause in Article 14 by including health among the prohibited grounds of discrimination, and with the UN Convention on the Rights of Persons with Disabilities which imposes on its State parties a general prohibition of discrimination on the basis of disability. The ECtHR concluded:
Accordingly, the Court considers that a distinction made on account of one’s health status, including such conditions as HIV infection, should be covered – either as a form of disability or alongside with it – by the term “other status” in the text of Article 14 of the Convention.
57. “… Accordingly, a distinction made on account of one’s health status, including such conditions as HIV infection, should be covered – either as a form of disability or alongside with it – by the term “other status” in Article 14.”
Justification under Article 14
The court had established in its case-law that discrimination means treating differently, without an objective and reasonable justification, persons in analogous, or relevantly similar, situations.
Once the applicant had shown that there has been a difference in treatment, it was then for the respondent government to show that the difference in treatment could be justified. “The justification must be objective and reasonable or, in other words, it must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject-matter and the background…”. (The ‘margin of appreciation’ is broadly the amount of leeway allowed to the State). The court went on to say:
“If a restriction on fundamental rights applies to a particularly vulnerable group in society that has suffered considerable discrimination in the past, then the State’s margin of appreciation is substantially narrower and it must have very weighty reasons for the restrictions in question. The reason for this approach, which questions certain classifications per se, is that such groups were historically subject to prejudice with lasting consequences, resulting in their social exclusion. Such prejudice could entail legislative stereotyping which prohibited the individualised evaluation of their capacities and needs (see Alajos Kiss v. Hungary…). In the past the Court has identified a number of such vulnerable groups that suffered different treatment on account of their sex (…), sexual orientation (…), race or ethnicity (…), mental faculties (see Alajos Kiss…), or disability (see Glor…).”
People living with HIV/AIDS had suffered from widespread stigma and exclusion, from the onset of the epidemic in the 1980s. They are a vulnerable group with a history of prejudice and stigmatisation and the State should be afforded only a narrow margin of appreciation in choosing measures that single out this group for differential treatment on the basis of their HIV status. (The “margin of appreciation” means roughly the State’s ‘range of discretion’, or ‘room for manoeuvre’.)
The Court pointed to numerous international instruments and reports rejecting travel restrictions as an ineffective way to prevent the spread of HIV. Excluding HIV-positive non-nationals to prevent HIV transmission was based on the assumption that they will engage in specific unsafe behaviour and that the national will also fail to protect himself or herself. “This assumption amounts to a generalisation which is not founded in fact and fails to take into account the individual situation, such as that of the applicant.”
In the light of this and various other considerations, although the protection of public health was indeed a legitimate aim, the Russian Government were (said the court) unable to adduce compelling and objective arguments to show that this aim could be attained by excluding the applicant from residence on account of his health status.
A matter of further concern for the court was the blanket and indiscriminate nature of the impugned measure. The legal provisions left no room for an individualised assessment based on the facts of a particular case.
Taking into account that the applicant belonged to a particularly vulnerable group, that his exclusion had not been shown to have a reasonable and objective justification, and that the contested legislative provisions did not make room for an individualised evaluation, the court found that the Russian Government “overstepped the narrow margin of appreciation afforded to them in the instant case.” There was a breach of Article 14 of the Convention taken together with Article 8.
- Kiyutin v. Russia: landmark case concerning the human rights of people living with HIV (strasbourgobserver.com)