Author: Iliya Shablinsky
Keywords: deportation; discrimination of HIV-positive foreigners; freedom of movement; HIV positive status; HIV-positive persons; The European Court of Human Rights; the right to respect for the private and family life
This article considers decisions of the European Court of Human Rights regarding the discrimination of HIV-positive foreigners in the Russian Federation in the wider context of implementing their right to respect for their private and family life. The primary cases for analysis are Shvalya v. Russia, Kostycheva v. Russia, and Novruk and others v. Russia. The European Court of Human Rights decided on these three cases, which share similar fact patterns, within the same week. The applicants were discriminated against in the interest of maintaining public health. The article relays the stories of each case in detail. The European Court had already heard cases connected with the discrimination of HIV-positive persons. In particular, an important example was the ECHR’s judgment in Kiyutin v. Russia. The ideas and principles which were formulated in this judgment have shaped the material and legal basis for other decisions in similar cases, such as Shvalya v. Russia, Kostycheva v. Russia, and others. One of the cornerstones of the Court’s legal reasoning was the consensus of a majority of scientists, experts, and lawyers that HIV-positive persons should not be limited in their freedom of movement and travelling because of they are not a threat for the public health. The European Court has endorsed the Russian Constitutional Court’s decision in the same case in which the Constitutional Court ruled as unconstitutional some provisions of a Russian law that limited the rights of HIV-positive persons to cross Russia’s border and live in the country.
About the author: Ilya Shablinskiy – Doctor of Sciences in Law, Professor, Higher School of Economics, Moscow, Russia.
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