Discrimination of HIV-Positive Persons Judgment

Today the Court concluded in a case against Russia that the refusal of a residence permit to an Uzbek national solely because he was HIV-positive was in violation of the European Convention of Human Rights. The case of Kiyutin v Russia related to a man who had settled in Russia and married a Russian wife and had a daughter with her, also of Russian nationality. When he applied for a residence permit, he was obliged under Russian law to undergo a HIV test and the result was positive. On the basis of the test outcome his permit was refused by reference to Russian legislation.

The European Court chose to assess the case under a combination of Articles 8 (right to family life) and Article 14 (prohibition of discrimination). First, the Court had to decide whether a difference of treatment based on HIV-positive status fell within the prohibited grounds of Article 14. Since health as such is not mentioned in that Convention provision, the Court had to decide whether this case could fall under the notion of "any other status". In earlier cases in the past two years, the Court had already found that physical disabilities and health impairments fell within the scope of the prohibition of discrimination. Building on this earlier case-law (and on pronouncements by the UN and the Parliamentary Assembly of the Council of Europe), but now in a more general and explicit way, the Court held that (para. 57):

"a distinction made on account of one’s health status, including such conditions as HIV infection, should be covered – either as a form of disability or alongside with it – by the term “other status” in the text of Article 14 of the Convention."

Subsequently, the Court found that Mr Kiyutin was in an analogous situation to other foreigners applying for a residence permit on account of their family ties to Russia. It then went on to consider, under its standard test, whether the difference in treatment was objectively and reasonably justified. It is in the assessment of the width of the margin of appreciation that the true importance of this judgment can be found: the Court held that people with HIV/AIDS have suffered from prejudice, stigma and exclusion in the last three decades. In a short but clear and admirable overview, the Court summarizes what this entailed (para. 64):

"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 UN Declaration of Commitment on HIV/AIDS noted that the stigma “increase[d] the impact of the epidemic on individuals, families, communities and nations” (see paragraph 28 above) and UN Secretary General Mr Ban Ki-moon acknowledged that “to greater or lesser degrees, almost everywhere in the world, discrimination remain[ed] a fact of daily life for people living with HIV” (6 August 2008). 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."

Difference of treatment on the basis of HIV/AIDS are thus put in the same series of earlier established suspect grounds of difference in treatment such as sex, sexual orientation, race or ethncity, mental faculties, or disability. This is the main reason for narrowing the state's margin of appreciation and for a strict scrutiny by the Court of measures based on this distinction. The second reason for a narrow margin relates to the concrete practice of excluding people with HIV/AIDS from residence permits. On that latter point, the Court found that there is no European consensus to defend this, since the overwhelming majority of Council of Europe member states do not exclude people on that basis.

Having established the narrow margin of aprpeciation, the Court tests the measure in-depth.

First, it goes into the relevance of the justificiation: is the protection of public health truly served by the measures at stake. The answer is a clear and resounding 'no!'. Travel restrictions on people with HIV/AIDS have, by a wide range of experts and organisations, been deemed to be ineffective ways to combat the disease. As the Court noted, it is not a highly contageous disease such as bird flu or SARS. Moreover, the argument of health protection adduced by Russia is fatally weakened by the fact that no restrictions on that basis applied to tourists, short-term visitors or Russian nationals travelling to and from Russia. In what might almost be called an exaggerated attempt at pedagogy, the Court even emphasized that the policy might be counterproductive (para. 71):

"Finally, it is noted that travel and residence restrictions on persons living with HIV may not only be ineffective in preventing the spread of the disease, but may also be actually harmful to the public health of the country. Firstly, migrants would remain in the country illegally so as to avoid HIV screening, in which case their HIV-status would be unknown both to the health authorities and to migrants themselves. This would prevent them from taking the necessary precautions, avoiding unsafe behaviour and accessing HIV prevention information and services. Secondly, the exclusion of HIV-positive foreigners may create a false sense of security by encouraging the local population to consider HIV/AIDS as a “foreign problem” that has been taken care of by deporting infected foreigners and not allowing them to settle, so that the local population feels no need to engage in safe behaviour."

Thus the Russian policy was not an appropriate means of protection public health.

The second fatal blow to Russian practice was the "blanket and indiscriminate nature" of the ban; no individualised assessment seemed to be possible by national courts, since the legal provision was so absolute. All in all, the Russian government went beyond the narrow margin of appreciation and the Court unanimously found a combined violation of Articles 8 and 14.

It is important to see how influential the third party submission of the NGO Interights was on the Court's reasoning. That submission compiled a host of international materials (amongst others from the United Nations and WHO) on some of the key questions in the judgment. While these third party interventions are in most instances aimed at progressively developing human rigths prudence - usually to the benefit of the applicant, this does not always need to be the case. The forthcoming Grand Chamber judgment in Lautsi v Italy (Friday 18 March) is a case in which third parties also intervened to support to defendant state's position.

The judgment is a key symbolic step in recognition of the negative effects of the pernicious and persistent prejudices against people with HIV/AIDS and as such its importance goes beyond the issue of residence permits - it will resound in all policy areas all over Europe wherever people are treated differently merely on the basis of living with HIV/AIDS.

ECHR Articles in Newest Issue of HRLR

The March issue (vol. 11, issue 1, 2011) of the Human Rights Law Review includes a number of articles on the ECHR.

* Steven Greer, 'Should Police Threats to Torture Suspects Always be Severely Punished? Reflections on the Gäfgen Case'

In Gäfgen v Germany the majority of a Chamber of the European Court of Human Rights affirmed that police threats to torture suspects always violate Article 3 of the European Convention on Human Rights, but that in certain circumstances such as those presented by this case, charging and convicting but leniently punishing the officers concerned provides adequate redress. A majority of the Grand Chamber held that, on the contrary, such violations should always be severely punished even when motivated, as here, by the urgent imperative of rescuing a kidnapped child. This article argues that, on Article 3, the majority of the Chamber reached the right result but not entirely for the right reasons, while the judgment of the majority of the Grand Chamber is methodologically, substantively and morally flawed. Having explored the central underlying normative dilemma neglected by all judges on both panels—how should conflicts between two competing instances of the same ‘absolute’ human right be resolved?—it concludes that, in such circumstances, courts have no legitimate alternative but to make a moral rather than a legal choice taking fully into consideration what is at stake for both parties in the widest possible senses. The verdict of the majorities on both panels that there was no violation of the applicant’s right to a fair trial is also defended, and the issues raised by the Gäfgen case are contrasted with the much-debated ‘ticking bomb’ scenario with which it is easily but mistakenly confused.

* Nicolas A. J. Croquet, 'The International Criminal Court and the Treatment of Defence Rights: A Mirror of the European Court of Human Rights’ Jurisprudence?'

The International Criminal Court (ICC) has been a mirror of the European Court of Human Rights when defining the scope of defence rights and limiting their exercise on public interest grounds. The ICC has been consistently deferential to the Strasbourg Court in the interpretation of the accused’s rights to disclosure of evidence and to cross-examine prosecution witnesses, leaving the door open for a virtual theory of implied external limitations upon defence rights. The ICC has nevertheless failed to provide a rationale, besides its non-systematic reference to the ICC Statute’s human rights enabling clause, when cross-fertilising with the Strasbourg Court. The latter has not only exerted influence over other international human rights monitoring bodies but also accounted for judicial developments within domestic and international fora when tailoring its own human rights standards. The ICC has overall proven to be a promising platform for extrapolating regional interpretations of fair trial rights to the international legal order.

And a shorter article on one of the important judgments of last year:

* Loveday Hodson, 'A Marriage by Any Other Name? Schalk and Kopf v Austria'

Article on EU Antitrust and ECHR

The connections between EU antitrust law and the ECHR receive increasing attention. Earlier, Felix Ronkes Agerbeek guest posted about it on this blog here. Now, Wouter Wils, connected to the European Commission and to King's College London, has published an upcoming article on SSRN, to appear in World Competition: Law and Economics Review (Vol. 34, No. 2, June 2011). It is entitled 'EU Antitrust Enforcement Powers and Procedural Rights and Guarantees: The Interplay Between EU Law, National Law, the Charter of Fundamental Rights of the EU and the European Convention on Human Rights'. This is the abstract:

This paper deals with the powers of the European Commission and the competition authorities of the EU Member States to enforce Articles 101 and 102 TFEU, and with the procedural rights and guarantees that circumscribe or limit these powers. It focuses in particular on the interplay between the different sources of law governing these matters: EU and national legislation, the Charter of Fundamental Rights of the EU, the European Convention on Human Rights, and the case-law of the EU Courts and the European Court of Human Rights.

The Court's Practice Directions for Litigants

A special page of the website of the European Court of Human Rights is dedicated to practice directions. These directions contain clear and succinct information on a number of aspects of the procedures before the European Court and are mainly directed at lawyers litigating cases in Strasbourg. As highlighted earlier on this blog, there is a specific practice direction concerning requests for interim measures, as well as a special page with information on such measures. The other Practice Directions concern the following issues:

* Institution of proceedings
* Written pleadings
* Just satisfaction claims
* Secured electronic filing
* Requests for anonymity

A very useful - and essential - tool for lawyers in the process of lodging a complaint in Strasbourg.

New Book on NGOs and ECHR

Loveday Hodson of Leicester University has published the book 'NGOs and the Struggle for Human Rights in Europe' with Hart Publishing. It focuses on the extent and effects of NGO involvement in litigation at the European Court of Human Rights - a fascinating topic! This is the abstract:

This publication provides a fresh perspective on the litigation of the European Court of Human Rights by focusing upon the role that non-governmental organisations play in it. The inspiration for this work was the growing literature that points to human rights as the outcome of political and social struggles. The role that NGOs play in these struggles is well-documented in the context of other international and regional human rights tribunals, but has been less widely written about in the context of the European Court of Human Rights. The Court is typically subject to legalistic, as opposed to socio-political, scrutiny. In this book the Court's litigation is re-cast as a site where politically motivated actors attempt to impact upon the meaning that is given to the language of the European Convention on Human Rights and to use the Convention as a mechanism that can contribute to social change.

For the purposes of this research a mixture of quantitative and qualitative research techniques are adopted. These methods facilitate the author's desire to obtain both a de-centred perspective on the Court's functions and a systematic picture of the scale of NGO involvement in the Court's litigation. The core of this work is primarily based on data obtained from a sample of cases in which the Court had delivered judgment, and a plethora of associated materials, including extensive interviews with NGOs that were involved in those cases. Ultimately, this book challenges the idea that the litigation of the Court is bound to the idea of achieving individual justice and highlights the meaningful impact that NGOs have on certain important sections of the Court's litigation.

ECHR, Counter-Terrorism and Refugees

Jens Vedsted-Hansen of Aarhus University School of Law has published an article entitled 'The European Convention on Human Rights, Counter-Terrorism, and Refugee Protection' in the Refugee Survey Quarterly (vol. 29, No. 4, pp.189-206). This the the abstract:

The legal developments pertaining to the non-refoulement principle under Article 3 of the European Convention on Human Rights provide ample illustration of the dilemmatic relationship between refugee protection and anti- or counter-terrorism measures. Following the terrorist attacks on 11 September 2001 a variety of attempts were made to have the European Court of Human Rights modify its interpretation of Article 3 as providing absolute protection against refoulement. The article depicts these efforts and the intertwined usage of law and policy measures by various actors in the European arena. The Court’s response is described and analysed extensively, demonstrating its insistence on fundamental protection principles. However, problems of national security are still perceived as serious by the executive branches of Governments and their security services, resulting in renewed efforts to control the movement and secure expulsion of persons considered dangerous. In that connection, diplomatic assurances have come to play an important role, partly beyond what can be considered sustainable, and thus an issue of further legal disputes.

Article on ECHR and Domestic Violence

Lee Hasselbacher has published 'State Obligations Regarding Domestic Violence: The European Court of Human Rights, Due Diligence, And International Legal Minimums of Protection' in the Northwestern University Journal of International Human Rights (Vol. 8, No. 2, 2010). The article places the Eurpean Court's Opuz judgment in a broader international human rights law perspective. The Journal's articles are freely available online.

TV Programme on the European Court

Following the controversy in the United Kingdom on the Court's judgments on voting rights for prisoners, the BBC programme 'The Record Europe' has dedicated an episode to the European Court of Human Rights. It explains the controversy and the role and functioning of the Court. You can watch it on youtube (in two parts) here and here. This is the programme's own announcement:

The Record Europe has been to the European Court of Human Rights in Strasbourg, the institution at the centre of a storm in British politics about prisoner voting rights. Is it a model for the rest of the world, or an institution intent on expanding its reach into the territory of national parliaments and courts?

In his first broadcast interview since the furore, the court's most senior judge, Jean-Paul Costa talks to Shirin Wheeler. In Britain some have called for the UK to ignore the rulings of the Court and leave the Convention on Human Rights after the Court ruled the British blanket ban violated the convention. But Jean Paul Costa says that would be a disaster:

"The only country which denounced the convention actually was Greece in 1967 at the time of dictatorship of the Colonels....I cannot imagine even if I can understand some irritation, that UK which is a great country - I admire the UK - could be in the same situation as the Colonels in 1967".

Shirin also speaks to two ambassadors to the Council of Europe about their role in reform of the court, and deciding whether countries' responses to its rulings are adequate. She is joined by Urszula Gacek from Poland and Daryal Batibay from Turkey.
Finally, a debate is held to discuss where the powers of the court should begin and end.

HT to Ed Bates for pointing this out!

Article on Pilot Judgments in EHRLR

Stuart Wallace of the University of Nottingham has published an article on the pilot judgments at the European Court in the newest issues of the European Human Rights Law Review (No. 2011) pp. 71-81. It is entitled 'Much ado about nothing? The pilot judgment procedure at the European Court of Human Rights'. This is the abstract:

The pilot judgment procedure at the European Court of Human Rights is described as an innovation in the way the court deals with cases and an effective means of combating the court's backlog. This article analyses the court's jurisprudence and procedural rules to determine whether the pilot procedure is an innovation and whether it is an effective means of achieving its goals. At the outset it should be noted that the objectives of the pilot procedure are not being questioned here, systemic human rights abuses should be eradicated wherever they arise and the court has an important role in tackling them, this article merely critiques the means adopted by the court to tackle these issues. The primary argument of this article is that the component parts of the pilot judgment procedure are not innovative and that the use of pilot judgments has the potential to damage the court on many levels by further delaying the processing of applications, politicising the
court and undermining the court's authority more generally.

Dutch Short Videos on Key ECHR Rights

A collection of short videos explaining, through the real-life cases of Dutch people, the significance of a number of key ECHR rights is available online (including the right to liberty, the freedom of expression and the right to a fair trial). The videos were developed at the occasion of a symposium organised last year in Middelburg, under the guidance of professor Barbare Oomen. Although only available in Dutch (and by that fact possibly only of interest to the Dutch and Belgian readers of this blog), they offer very accessible introductions to the practical value of the rights contained in the European Convention for citizens. You can watch them here. Recommended!