The decision of the Constitutional Court of the Russian Federation issued on May 12, 2006 № 155-O
The decision of the Constitutional Court of the Russian Federation as of 12 May 2006 № 155-O “On the complaint filed by the citizen of Ukraine concerning the violation of his constitutional rights by the provisions of paragraph 2 Article 11 of the Federal Law “On the prevention of the disease caused by human immunodeficiency virus (HIV)”, by the provisions of paragraph 13 Article 7 and of paragraph 13 Article 9 of the Federal Law “On the legal status of foreign citizens in the Russian Federation”.
The citizen of Ukraine Mr. X., with registered residence in Odessa, is HIV-positive. In 2003 he married a citizen of the Russian Federation, in 2004 unto them a child was born who currently holds a citizenship of the Russian Federation; both of them (the girl and the wife) permanently reside in Moscow.
Moscow Passport and Visa Department in its letter, addressed to Mr. X as of 30 November 2004, explained that under paragraph 13 Article 7 of the Federal Law “On the legal status of foreign citizens in the Russian Federation” failure of a foreign citizen or stateless person to provide the Department with a certificate confirming his or her HIV-negative status, constitutes a sufficient ground for a refusal of temporary residence permit.
Mr. X filed a complaint to the Constitutional Court of the Russian Federation, having stated that his application for temporary residence permit would not be accepted by the authorities without providing a certificate confirming his HIV-negative status. Otherwise, in case he provided the information of his HIV-positive status, he would be immediately deported from the Russian Federation and banned from entering its territory for 5 years from the date of the deportation.
Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms envisages the right of everyone to respect for his or her private and family life (paragraph 1). At the same time there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others (paragraph 2).
The Court referred to the rules of the Constitution of the Russian Federation, the Declaration of Commitment on HIV/AIDS adopted by the UN General Assembly on 27 June 2001, the International Guidelines on HIV/AIDS and Human Rights 1996, the United Nations Convention on the Rights of the Child, Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, underlying the principle of non-discrimination, respect for private and family life and the principle of proportionality of the established restrictions to public interest and security in relation to certain groups of people. The Court also referred to the principles of adequacy and proportionality of the legal measures.
The Constitutional Court stated, that the provisions of paragraph 2 Article 11 of the Federal Law “On the Prevention of the disease caused by the human immunodeficiency virus (HIV)” and of paragraph 13 Article 7 of the Federal Law “On the legal status of foreign citizens in the Russian Federation” do not rule out that law enforcement authorities and courts, guided by the humanitarian considerations, have the right to take into account marital status, health condition of a HIV-positive foreign citizen or stateless person (including clinical stage of the disease) and other exceptional circumstances when deciding on the necessity to deport this person from the territory of the Russian Federation, as well as when deciding on his or her temporary residence permit. The Constitutional Court also stated that this person is not exempted from the obligation to observe the rules on preventive anti-HIV measures.
The Constitutional Court of the Russian Federation found the complaint of Mr. X to be inadmissible for further consideration by the Constitutional Court of the Russian Federation since the final decision is not necessary to resolve Mr. X’s complaint.
The text of the decision in Russian (see the link)