March 21, 2011
Recently, the Court came down with a judgment that strongly condemns the stigmatization of people living with HIV. Kiyutin v. Russia is, as far as I was able to ascertain, the first case in which the Court rules on the merits of a claim of discrimination on the ground of a person’s HIV-positive status. Straight away, the Court has chosen to become a leader in the battle against stigma and discrimination of people with HIV.The applicant in the case, Mr Kiyutin, is an Uzbek national living in Russia. He is married to a Russian woman, with whom he has a young child. Mr Kiyutin’s application for a residence permit was refused by the Russian authorities, because such permits are not issued to foreign nationals who are HIV-positive. Mr Kiyutin complained to the Strasbourg Court that articles 8,13, 14 and 15 of the Convention were violated. The Court decided to examine the issue under art. 14 (the prohibition of discrimination) in conjunction with art. 8 (the right to family life).
In this case, the Court follows the line that it set out in Alajos Kiss v. Hungary. That case concerned a restriction on voting rights of people with a mental disability. The Court ruled that “if a restriction on fundamental rights applies to a particularly vulnerable group in society, who have suffered considerable discrimination in the past, such as the mentally disabled, 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 may entail legislative stereotyping which prohibits the individualised evaluation of their capacities and needs”. (par. 42)
Analogously, the Court has now decided that people living with HIV also belong to a vulnerable group. The consequence of this reading is that the State is afforded only a narrow margin of appreciation. The relevant paragraph is worth quoting at length here, because the Court denounces the stigma that is attached to people living with HIV in a very thoughtful and thorough way.
“From the onset of the epidemic in the 1980s, people living with HIV/AIDS have suffered from widespread stigma and exclusion, including within the Council of Europe region . . . In the early years of the epidemic when HIV/AIDS diagnosis was nearly always a lethal condition and very little was known about the risk of transmission, people were scared of those infected due to fear of contagion. Ignorance about how the disease spreads has bred prejudices which, in turn, has stigmatised or marginalised those who carry the virus. As the information on ways of transmission accumulated, HIV infection has been traced back to behaviours – such as same-sex intercourse, drug injection, prostitution or promiscuity – that were already stigmatised in many societies, creating a false nexus between the infection and personal irresponsibility and reinforcing other forms of stigma and discrimination, such as racism, homophobia or misogyny. In recent times, despite considerable progress in HIV prevention and better access to HIV treatment, stigma and related discrimination against people living with HIV/AIDS has remained a subject of great concern for all international organisations active in the field of HIV/AIDS. . . The Court therefore considers that people living with HIV are a vulnerable group with a history of prejudice and stigmatisation and that 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.” (par. 64)
Subsequently, the Court applies the very weighty reasons-test and subjects the justifications that the State has brought forward for the rule that prevents HIV-infected persons from obtaining citizenship to a rigorous scrutiny. It is noteworthy that, while scrutinizing the justifications, the Court dismantles a stereotype that underlies the State’s measure, namely that persons infected with HIV will indulge in unsafe (read: promiscuous and unsafe) behaviour: “Excluding HIV-positive non-nationals from entry and/or residence in order to prevent HIV transmission is 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.” (par. 68) After an in-depth investigation of the justifications brought forward by the State, the Court concludes that these are not reasonable and objective and that the applicant is a victim of discrimination.
As to the possible consequences this judgment might have, Interights, the NGO which has submitted a third party intervention which has clearly been very influential with the Court, comments: “While there remains a sizeable minority of countries in the world that enforce HIV-related travel restrictions in some for 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.” (see here)
Last year, I blogged about Alajos Kiss that “this is the sort of perspective the Court should embrace in all disability cases.” Now, with Kiyutin v. Russia, the Court shows us what a human rights approach to HIV can look like.