Human rights to healthcare: how strategic litigation helps to protect them (interview)

UHHRU lawyers Olena Protsenko and Oleksandr Pavlichenko were talking about double stigma of the people living with HIV/AIDS and people with mental disorders, protection of their rights and strategic litigation in the new issue of the program “Pravonastup”.

Legal protection of the people living with HIV/AIDS

UHHRU Executive Director Oleksandr Pavlichenko: At the moment there is a serious problem with disclosure of the status of such persons, the issue is also that this illness is associated with the number of marginalized social groups, for example, the injection drugs users, persons, which often have unprotected sexual relations. Correspondingly the protection shall be complex: at the medical, social and legal levels.

The issues of legal protection have become the problem with which, in particular, works at present our organization, UHHRU, which provides support in different cities of Ukraine: consultations, legal support, advocacy measures, work with MPs, specialists of specific ministries, in particular Ministry of Health.

This is important in the context of the ongoing reforms, in particular of the system of medical services provision, court system reform. We see both progress and drawbacks appearing along with the progress, we try to give feedback based on our practical work, providing specific recommendations or legal support to the victims suffering from possible violation of rights in the issues related to the status of a person, not providing and ineffective provision of a number of social services, treatment. For example, often this is related to improper procurement in prisons.

There are a lot of situations, which attract attention and shall be corrected both in a specific case, and strategically: the safeguards shall be developed at the national level.

Access to medical services

Olena Protsenko, the Lawyer of UHHRU Strategic Litigation Center: The list of “horrible” diseases and stigma imposed on those infected are formed not only in the society but also by the Ministry of Health, because there is still the separate order stating that it is not allowed to do artificial insemination for women living with HIV. The law allows to do this, but MoH regulation directly prohibits that. Fighting against this order is one of the directions of our advocacy work, unfortunately there is no such strategic case, only because it is difficult to find the client which would be ready to fight, it cannot be guaranteed that in the process of work her status is not disclosed.

Rather similar problem: according to the law, persons having HIV cannot adopt children. This procedure covers persons which would like to become guardians. Even if a person receives antiretroviral therapy, and have zero viral load and the virus cannot be transmitted, still at the legislative level such a person is deprived of the opportunity to lead normal family life. We are looking for a person, which would like to go to court, go the whole way through to European Court of Human Rights. If we cannot do it through advocacy, through ECHR we can try to change the existing practice and fight against stigmatizing and discrimination.


Olena Protsenko and Oleksandr Pavlichenko (UHHRU)

The majority of applications I receive are from detention facilities. These are, as a rule, prisons or pretrial detention facilities. This is because people do not receive medical care or it is of poor quality.

We have cases where the clients were receiving antiretroviral therapy with significant breaks, though it is widely accessible and free of charge in Ukraine. They actually have the medicines there, but very often there are interruptions, for example, the convicted person is transferred from one prison to another, if he uses the scheme of treatment which is not very wide spread there can be no such medicines in other prison. But we cannot exclude human negligence here.

Disclosure of the status

Olena Protsenko: We have one strategic case in which the doctor issued a certificate to the husband of the client, where he indicated that the client had such status. Thanks to our advocate this doctor received a reprimand. At the moment there is no more progress on this case. We are fighting in the law enforcement bodies, and think that we shall use another way – file the civil case with the court. Such problems still exist, and the doctors do not know that they cannot disclose the status.

Very often in the hospitals on the medical record cards it is directly stated “B20”. One can come to the cards registry and see which people have which illnesses. All this information shall be coded and cyphered inside the card.

The parents shall be very careful when they provide such information to the kindergartens. They are not obliged to do so. If they are required to provide medical information not envisaged by the law they shall immediately address the lawyers, advocates, which will help to fight in the legal field.

We had interesting case: the woman wanted to adopt her grand-daughter, but she had HIV. The form of documents which shall be submitted for adoption envisage mandatory HIV test. The woman did not want to pass this test, as she knew what would be the result. She submitted the form with empty line about her HIV status and she managed to adopt her grand-daughter.

One shall not disclose this information, as you can face persecution, and if such information is demanded, you shall apply for legal help.

Oleksandr Pavlichenko: Based on my own experience I can state that in narrow and closed collectives, for example, detention facilities, the issue of non-disclosure is not even considered. We were visiting one of women prisons, one of the convicted herself showed the interest for communication with us and immediately said: “I have HIV/AIDS”. The group of other convicted were there, and she said: “Everybody knows that here”. There is no closed information in such collectives.

Strategic litigations: why is it important

Olena Protsenko: We cannot discuss the problem in the abstract terms, we take a specific person, try to protect his/her rights at the national court. If we lose in all three judicial authorities in Ukraine, we will apply to ECHR. Having recognized the violation of the Convention, ECHR can oblige Ukraine to change particular legislative provisions.

There is a good example, which I like very much: the case “Natalia Mykhailenko against Ukraine”. The client did not even have the opportunity to apply to court for renewal of her civil capacity. She had mental disorder in the result of what one of her relatives applied to court which recognized her legally incapable. Legally incapable person exits de-facto, and he/she does not exist de-jure. All decisions for such a person are taken by his\her guardian, who also disposes of property rights of such a person. Unfortunately, often in practice virtually all decisions are taken for legally incapable person.

In the past such persons could not apply to court and initiate reinstatement of their civil capacity. The court simply did not file such applications – formally this was correct and lawful. Through ECHR we managed to alter such practice. Now anybody can apply to court with such issue. We reinstate civil capacity at the application of a person. We have fairly large number of such cases, which, to my opinion demonstrates: there is a tendency to recognize legally incapable all persons even with insignificant mental disorders, which can be incidental.

The author of the program Larysa Denysenko


The program is prepared with the support of Canada Fund for Local Initiatives.

Ukrainian Helsinki Human Rights Union implements the project “Development of the legal network for protection of the people leaving with HIV/AIDS, representatives of key PLHIV communities and persons ill with TB” with the financial support of the Charitable organization “All-Ukrainian Network of the People Living with HIV/AIDS” in the framework of implementation of the project “Releasing the Burden of TB and HIV infection through creation of the open access to timely and quality diagnostics and treatment of the TB and its resistant forms, expanding evidence based prevention, diagnostic and treatment of HIV infection, and creation of stable and sustainable health protection systems”, which is implemented with the financial support of the Global Fund to Fight AIDS, TB and Malaria.

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