Shabalina, Y.M. Legal positions of the Constitutional Court of the Russian Federation and the European Court of Human Rights on the issues of deporting citizens on HIV-based grounds

Abstract: In March of 2011, the European Court of Human Rights has made its judgment on the case of Kiyutin versus Russia (complaint n. 2700/10) where the court has found a violation of rights to personal and family life due to the implementation of the Russian legal norms on deporting a foreign citizen on a ground of him being HIV-infected. In this decision the ECHR did not just apply the articles of the Convention to the claimant’s situation, taking into account the interpretation of norms outside the scope of membership in the European Convention on Human Rights, referring to the UN program on HIV/AIDS, International Organization for Migration and UN High Commissioner for Human Rights. In spite of the fact that the Political Declaration on HIV/AIDS provides that within the framework of prophylactic measures against the spread of the disease domestic legislation should apply in specific states, the same document provides for termination of the national legislative norms limiting the freedom of movement of HIV-infected persons. The Russian legislation provides for the deportation of HIVinfected foreign citizens, which is due to a number of factors (territorial, amount of medical aid to the category of HIV-infected persons). Striving to conform to the humane policy and principles towards HIV-infected persons, the Constitutional Court of the Russian Federation held that the courts may take into account such criteria as health condition, family, and place of work and dwelling of a person subject to deportation. Analysis of the current legislation and legal practice allows to draw a conclusion on the balance between the migration legislation requirements aimed to expose persons unlawfully residing In Russia and the obligations to provide medical aid to the HIV-infected foreign citizens by application of a specific procedure for the individualized commission-based decision-making on whether it is desirable for a person to remain in a state, following the humane positions, democratic principles and guarantees, which follow from the provisions of the Constitution of the Russian Federation and the international treaties to which the Russian Federation is a party.

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