The AGORA lawyers appealed to the Constitutional Court of the Russian Federation: the law on extradition of foreigners with HIV status was contrary to the Constitution
Lawyers of the Interregional Association of Human Rights Organizations "AGORA" appealed to the Constitutional Court of the Russian Federation with the statement that “Rospotrebnadzor” and courts of the Russian Federation did not take into account the judgment of the Constitutional Court of 12 May 2006. The judgment read that the decisions on the expulsion of foreign nationals with HIV status should take into account actual circumstances of the case, on humanitarian grounds. The lawyers also asked the Constitutional Court to recognize the laws governing the extradition of foreigners with HIV status as contrary to the Constitution of the Russian Federation.
On 28 August 2014 two applications on behalf of foreigners, who have been extradited from Russia because of their HIV status, were lodged to the Constitutional Court of the Russian Federation. These applications concern the fact that, despite the ruling of the Constitutional Court, “Rospotrebnadzor” continues to take the decisions on extradition of foreign nationals with HIV not taking into account the presence of families, their long stay in Russia, lack of information confirming the danger of their stay in Russia and the threat of infection.
The first application was filed on behalf of a Russian citizen, who officially registered marriage with HIV-infected Ukrainian citizen on 16 March 2012. On 9 June 2012 “Rospotrebnadzor” decided to extradite the Ukrainian citizen, who was seven months pregnant. The appeal against this decision was lodged to the Sochi court, and then to the appeal and cassation courts, which upheld the decision of “Rospotrebnadzor”. All courts indicated that Petrova’s disease constituted a threat to all citizens of the Russian Federation.
In August, the family had a son, who was not HIV-infected. After the child’s birth, the family left to Ukraine. The return to the territory of the Russian Federation was prohibited to the wife, so she remained in Ukraine, and her husband with the child returned to Russia, St. Peteburg. Legal aid in courts was provided by Ilnur Sharapov, an AGORA lawyer.
The second application was filed on behalf of a Ukrainian citizen, who lived in Russia since 2003. In 2010, he married a Russian woman and received temporary residence permit in Russia. At the time of receiving the permit he was not HIV-infected.
In April 2013, after 10 years of residence in Russia, the applicant was diagnosed with HIV. His wife’s HIV tests were negative. On 22 July 2013 “Rospotrebnadzor” issued decision No. 7745 on the undesirability of applicants stay on the territory of Russian Federation. This decision was challenged in the court that ordered extradition deportation of the applicant, stating that Ivanov’s presence in Russia "poses a threat to his wife and other persons." The Appeal court upheld this decision, stating that "the applicants argument that he is married to a citizen of the Russian Federation is not a ground for cancellation of the decision, with regard to the interests of the foreign citizen and his family, and the majority of the population of the Russian Federation. “Rospotrebnadzor”... is entitled to protect the interests of majority of the population of the state”. “Rospotrebnadzor” and Federal Migration Service, guided by the Federal Law "On prevention of expansion of HIV infection", continue to take decisions on extradition of foreign nationals with HIV. The legal advice to the applicant was provided by another AGORA lawyer, Ramil Ahmetgaliev.
When considering the case "Kiyutin v. Russia", where a citizen of Uzbekistan was refused a residence permit because of his status, despite the fact that his brother and mother lived in Russia, he was married to a Russian citizen and they had a daughter in marriage, the European Court recognized that Russian Federation violated Articles 8 and 14 of the European Convention.
AGORA lawyers deal with four more cases with similar circumstances, which have already passed the stage of communication in the European Court, and the proceedings are pending. In one of these cases, the Russian authorities explained to the Court that "the domestic courts are not obliged to take into account the information on the state of applicant’s health or his/her family ties."
"The European Court asked”, - says Ramil Ahmetgaliev, “why, despite the judgment of the Constitutional Court, there was a practice of arbitrary extradition of foreign nationals with HIV, endorsed by courts. In our statement we wrote about ignoring the judgments of the Constitutional Court in law enforcement practice. In our statements we also asked the Constitutional Court to declare that law provisions that allow issuing such decisions were read literally. Therefore, we asked the Constitutional Court to state that the provision applied by “Rospotrebnadzor” and national courts contradicted the Constitution, as such ruling should entail the obligation of the State Duma to make amendments to the law."
The lawyers hope that these statements will change the existing discriminatory practices and prevent future violations against foreign nationals living with HIV.
Станислав Ежи Лец