Essay Kiyutin DamiÀ - Disertacion para aquellas personas que esten cursando 4º en el grupo ARA. PDF

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Disertacion para aquellas personas que esten cursando 4º en el grupo ARA....

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DAMIA MARTÍNEZ – CARDÓS VERDÚ – 4º ARA GROUP. Essay on Kiyutin vs. Russia.

The ECHR decision in Kiyutin is a landmark decision in antidiscrimination law for a number of reasons (as discussed per teams in the classroom). Please list them and develop those that you consider more relevant. Discuss the impact Kiyutin can have in the protection of rights of people living with HIV. Since the European Court of Human Rights (ECtHR) was created, many legal concepts have been developed through its case law. In this essay I am going to focus on the concept of discrimination and which is the approach that the Court followed when redefining this term, this is going to be done having the Kiyutin vs. Russia case as the cornerstone around which this essay will turn; I will summarize this case to show how it helped to develop the concept of discrimination and the impact of its strengthening.

First of all, we should establish a definition for the concept of discrimination, this is a concept with such a great importance and relevance that it can be defined from different fields of science and knowledge. However, this is a legal essay so we have to take into consideration a juridical understanding of the concept; the starting point would be Art. 14 of the European Convention on Human Rights (ECHR) as it already includes the word “discrimination” and its grounds. Moreover, the ECtHR case law has also developed the concept, in the Paragraph 59 of the final judgment in Kiyutin vs. Russia the Court expresses its conception “discrimination means treating differently, without an objective and reasonable justification, persons in analogous, or relevantly similar, situations”, which came from the jurisprudence established in the cases D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007, and Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008-. From this definition we can also obtain the conclusion that it is not fair to treat equally different situations what entails that sometimes discrimination is allowed as it is objectively justified. However, the aforementioned Art. 14 of the Convention is not the only provision, at European level, about discrimination, this one is limited as it necessarily demands that discrimination must happen in connection to the rights comprised in the ECHR. As a result, it was created the Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms in order to un-limit the concept and it states in its Article 1 that “The enjoyment of

any right set forth by law shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. As well as saying that no one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.”

Once we have defined the main concept of this case, I consider convenient to summarize the case we are studying and explain the reasons why Kiyutin vs. Russia is a landmark and the impact it had in the protection of people with HIV. The Foreign National Act from the Federation of Russia contemplates the fact of being HIV non-positive as a requirement for being allowed to reside there and it obliges foreigners to show a medical certificate for proving so. Kiyutin was an Uzbekistan citizen living in Russia and had legal links with the country as he was married with a Russian woman and therefore, her daughter was Russian too. As it must be done, he asked for the permanent residence permit but it was declined and the ground used by the Russian Administration was that he was HIV positive; is this justification discriminatory? Kiyutin considered so and it appealed until the case arrived to the ECtHR, he alleged violation of art. 14 (equality and non-discrimination) in relation with art. 8 (respect for private life) plus article. 13 and 15, but on the other hand the Russian Government alleged that there was no violation because every State has the capacity to deny a residence permit, and therefore they could do so on the grounds of avoiding HIV propagation and spending more money in research on this issues; so these were the two parties of the conflict. The European Court of Human Rights decided to examine only the article 14 in conjuction with article 8, and finally the ECtHR decided that there really was a violation of article 14 in combination with the Article 8 and considered that the State had a discriminatory treatment that could be classified in “based on any other status” as “health” is not itself one of the categories established by Art. 14 (Paragraph 57 of the sentence). Clearly there was an unfavorable treatment against Kiyutin in relation to other people with Russian legal ties and negative in HIV asking for the residence permit, this different treatment can be justified sometimes as there are occasions when the State has a legitimate aim and the measure to do so is proportional (see Paragraph62 of Kiyutin’s sentence). In fact the ECtHR considered that Russia had a legitimate aim for trying to prevent the spreading of the HIV; however, the measure to do so, not granting the residence permit to Kiyutin, totally fails when applying the proportionality test: First of all, we have to check whether the measure at strike, not granting the residence permit to Kiyutin, is adequate to succeed on the legitimate aim that the measure follows, in this case the

prevention from HIV spreading. In the paragraph 67 the Court remembers which has been the globally agreed opinion on the matter “The World Health Organization rejected travel restrictions as an ineffective way to prevent the spread of HIV as long ago as 1987 ( Report on the Consultation on International Travel and HIV Infection, 2-3 March 1987). […]At the European level, the European Parliament and the European Commission acknowledged that “there are no objective reasons for a travel ban on HIV infected people” (Resolution of 22 May 2008).” And in the paragraph 68 it finally expresses its opinion when saying that “Excluding HIV-positive non-nationals from entry and/or residence in order to prevent HIV transmission is based on the assumption that they will engage in specific unsafe behaviour and that the national will also fail to protect himself or herself. This assumption amounts to a generalisation which is not founded in fact and fails to take into account the individual situation, such as that of the applicant.” It even arrives to consider the measure harmful for the aim Russia was pursuing as it explains in paragraph 71. Once the measure fails the adequacy test, we don’t have to run the necessity one, anyway the Court did so I will briefly say that there are many other measures which could be easily less restrictive that the one appealed and at the same time, much more effective (adequate) . Finally it would also fail the proportionality in strict sense test as these two rights encompassed in the Articles 8 and 14 must prevail. Moreover, the State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject-matter and the background (see Burden, § 60; Carson, § 61, and Clift, § 43), this is also shared by an author studied in class called Samantha Besson as she says that “the margin will be narrower where the right at stake is crucial to the individual's effective enjoyment of intimate or key rights” (Samantha Besson, EVOLUTIONS IN NON DISCRIMINATION LAW WITHIN THE ECHR AND THE ESC SYSTEM: IT TAKES TWO TO TANGO IN THE COUNCIL OF EUROPE, The American Journal of Comparative Law, Volume 60, Issue 1: January 2012. p. 172). In fact the Court following its case law from Alajos Kiss v. Hungary and stated that “if a restriction on fundamental rights applies to a particularly vulnerable group in society, who have suffered considerable discrimination in the past, such as the mentally disabled, then the State’s margin of appreciation is substantially narrower and it must have very weighty reasons for the restrictions in question . . . The reason for this approach, which questions certain classifications per se, is that such groups were historically subject to prejudice with lasting consequences, resulting in their social exclusion. Such prejudice may entail legislative stereotyping which prohibits the individualized evaluation of their capacities and needs”. (par. 42).

As I already said early in this essay, the Court finally decided that there was de facto, a violation of article 14 in relation to article 8 and that is the reason why this is such a relevant case, as the content of Article 14 was enlarged, the limits to the State’s margin of appreciation established, and the concept of vulnerable group more developed, I have explained them throughout the essay but I consider useful to explicitly mention them to make easier to keep them in mind. This Judgment represents the first time a binding institution recognized a disease as a possible subject of discrimination and an important factor for the belonging to a social group as it could be the culture, the sexual orientation, the ethnicity, as the Court set up. I have already mentioned paragraph 68 and from the content cited above, we could obtain the conclusion that another of the reasons why this is a landmark case regarding to discrimination and stereotyping of persons with HIV:

this is that the Court scrutinized the state’s justifications and dismantled a

stereotype that underlies the state’s measure, namely that persons infected with HIV will fall in an unsafe behavior. In this case vulnerability functioned as a justificatory instrument for the Court to protect groups whose protection against discrimination had previously not been guaranteed in the Court’s jurisprudence. Therefore, vulnerability opens the way for a more inclusive protection of different groups and individuals from discrimination, and here is the quid of the question the crux of the matter, as recognizing an individual or a group as vulnerable can have several legal implications, including expanded positive obligations on the state, a narrowed margin of appreciation for the state and procedural implications like the reversal of the burden of proof.

Thanks to this judgment the HIV-positives were considered a vulnerable group and received a higher protection at an European level (members of the Council of Europe), in addition we have to say that the pronouncements of the ECtHR are taken into consideration by other judicial organs all over the world, so the fact that the Court decided to end the stigmatization against the HIV positives had an impact in other places. So to sum up in one sentence I would say that the Kiyutin judgment, expressly listed sex, ethnicity, sexual orientation, and disability as discrimination grounds potentially related to vulnerable groups, thus adding the discrimination ground of disability to the list as originally set out in Alajos Kiss vs Hungary case.

In order to end I will also like to share my opinion, which is to applaud the decision of the Court for stablishing different groups which must be considered vulnerable, as this allows to provide them a higher protection, which is totally necessary for them in order to protect their interest in equal conditions to the rest.

BIBLIOGRAPHY:

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European Court of Human Rights, FIRST SECTION DECISION. Application no. 2700/10, Case of Kiyutin v. Russia.

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European Convention on Human Rights (Council of Europe: November 1950).

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Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms (Council of Europe: November 2000).

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Besson, Samantha, Evolutions in Non-Discrimination Law within the ECHR and the ESC Systems: It Takes Two to Tango in the Council of Europe (The American Journal of Comparative Law, Volume 60, Issue 1: January 2012).

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Yussef Al Tamimi, The protection of vulnerable groups and individuals by the European Court of Human Rights, May 2015.

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Alexandra Timmer, Kiyutin V. Russia: Landmark case concerning the Human Rights of people living with HIV, March 2011.

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Andrew Altman (2015), Discrimination. Stanford Encyclopedia of Philosophy.

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Hellman, D., & Moreau, S. (Eds.). (2013). Philosophical foundations of discrimination law. OUP Oxford....