As a first step of the analysis, we performed descriptive statistics on the countries against which the applications were lodged, demographics of the individuals involved in the applications, and the Articles of the European Convention of Human Rights involved in the judgments. In the majority of the cases under deliberation, the ECtHR ruled on several articles in one case or only on particular paragraphs or aspects of a single article. For example, several analyzed judgments involve violation of a one sub-paragraph of an article or the court stated in its decision that the substantive aspect of an article was violated, while there was no breach of a procedural aspect. For our analysis, counted were violations of articles if at least one of their sub-paragraph or aspect were breached, even if the court held no violation of other sub-paragraphs or aspects of the involved articles.

In the following step, we performed a thematic analysis of all N = 28 relevant judgments. Thematic analysis is a qualitative approach used for identification and analysis of common or recurring themes or patterns in text materials (24, 25). Relevant parts of the analyzed judgments were manually coded, extracted, and compared. Based on this procedure, we inductively formulated 4 main thematic categories and 8 sub-categories. These categories were critically discussed in the multi-professional team including a psychiatrist (T.S.), a physician and expert in the history, philosophy and ethics of medicine (F.S.), and a medical ethicist and political scientist (M.O.). These categories represent important thematic patterns involved in judgments of the ECtHR regarding the research questions. The categories are not mutually exclusive; therefore, several analyzed cases were grouped into more than one category. Each of the categories is illustrated by a representative case report and provides an insight into the situations of limited access to healthcare for PLHIV.

The analyzed judgments involved applications against N = 6 countries. N = 12 applications were filed against Russia (42.86%), N = 9 against Ukraine (32.14%), N = 2 against each Romania, United kingdom and Greece (7.14% each), N = 1 against Latvia (3.57%).

The examined N = 28 judgments deal with a total of N = 67 PLHIV. In N = 2 cases, the applicants involved in the case are not PLHIV. In these instances, we have only considered the PLHIV with whom these cases are concerned. In the analyzed judgments there is a clear dominance of the number of male PLHIV (m:f = 61:6). N = 57 applicants (85.07%) were people in detention. The age range of PLHIV in the analyzed judgments ranged from 20 to 63 (mean 28.56 years), although for 20 applicants it was not possible to determine their age. N = 18 PLHIV also suffered from other infections: N = 13 had viral hepatitis and N = 11 had tuberculosis (Table 1).

Only in N = 2 cases (7.14%), the ECtHR found no violation of any Article of the European Convention on Human Rights (appl. no. 26565/05, N. v. the United Kingdom and appl. no. 76317/11, Bubnov v. Russia). In the remaining N = 26 cases (92.86) the ECtHR found at least one violation of a total of eight Articles of the European Convention on Human Rights. The article that has been found to be breached in most cases is Article 3 (N = 20, 71.43%), followed by Article 13 (N = 8, 28.57%) and Article 5 (N = 6, 21.43%) (Table 2).

We were able to identify several ways in which PLHIV are denied access to healthcare. We formulated a total of four main thematic categories (each with a different number of subcategories) describing the limitations in access to healthcare experienced by PLHIV. These categories are: (I) refusal of diagnostic procedures (N = 7, 25%), (II) failure of providing information about HIV testing (N = 3, 10.71%), (III) refusal of adequate therapeutic support (N = 22, 78.57%) and (IV) administrative failures (N = 10, 35.71%). Some of the analyzed cases could be assigned to several categories (Table 3).

The vast majority of the analyzed cases come from Russia and Ukraine (N = 21, 80.77%). Especially in Russia, the country with the largest HIV epidemic in Europe (26), the situation for PLHIV is disastrous. They suffer from stigmatization, marginalization, and discrimination and have no access to relevant prevention programs (26). In addition, there is a high level of dissatisfaction with the quality of specific healthcare as well as negative attitudes towards PLHIV among medical staff (7). Furthermore, there are major challenges for PLHIV in Russia to receive antiretroviral therapy due to various systemic factors such as high bureaucratic hurdles (27). This may also be the reason why there is a long delay between HIV diagnosis and the start of therapy in Russia, a general disengagement from therapy and a rapid increase in HIV-associated mortality over the last 20 years (27, 28). In Ukraine, the situation of PLHIV is also far from optimal: only 62% of adults with HIV receive antiretroviral therapy and only 75% know their HIV-status (29). In comparison, almost 75% of adults with HIV worldwide receive antiretroviral therapy and 85% know their HIV-status (30). The situation is even more favorable for Western Europe and North America, where 82.61% of PLHIV receive appropriate therapy (30). If we look at Germany alone, we even find that 96% of PLHIV receive antiretroviral medication (31). It is therefore not surprising that most of the verdicts included in our analysis come from Russia and Ukraine. In Ukraine, the situation for PLHIV has deteriorated significantly since the beginning of the Russian invasion: access to healthcare has declined even further, supplies of antiretroviral medication are dwindling and other forms of support for PLHIV have to be severely cut back (32). Regarding these two countries, there is clearly an enormous need to improve access to healthcare for PLHIV. Considering the mentioned massive discrepancies regarding the healthcare situation of PLHIV compared to other countries, it can be seen as an ethical obligation to ensure improvements. In our opinion, an ethical obligation to help and support also applies to those countries in which the healthcare of PLHIV seems to be significantly better.

A striking finding at first sight regarding the PLHIV in the cases we analyzed is that N = 57 of the individuals (85.07%) are prisoners. This is all the more remarkable because our study did not explicitly focus on the identification of people in captivity. However, this is not surprising considering that prisoners are one of the most vulnerable groups among PLHIV. Reasons for this are a lack of knowledge (33–36), a lack of prophylaxis and often occurring examples of sexual abuse, unprotected sex or intravenous drug use. Moreover, prisoners frequently underestimate the risk of infection and the healthcare system in prisons is often inadequately equipped for their needs (37). Interestingly, the challenges for PLHIV in receiving adequate healthcare are not limited to the period of incarceration: having been incarcerated has also been shown to be a risk factor for suboptimal access to antiretroviral therapy (38). Unfortunately, prisoners face a lengthy application process if they want to claim their rights in court, and the impact of ECtHR judgments on the situation of prisoners is limited, although not entirely insignificant (39). The analyzed cases are therefore only a few examples of a successful case application for prisoners. Nevertheless, they provide an important insight into the situation of PLHIVin prisons, in particular showing the disastrous situation of prisoners in Russia and Ukraine, which seems to be in urgent need of improvement.

In the majority of cases (N = 24, 92.86%), the ECtHR found a violation of at least one Article of the European Convention on Human Rights. This can be seen as a reflection of the high sensitivity the ECtHR displays towards restrictions to access to healthcare for PLHIV. Such restrictions are considered “inhumane and degrading” by the ECtHR (see A.B. v. Russia, appl. no. 1439/06) and have been clearly condemned in all the analyzed cases. The article most frequently found to be violated in our analyzed judgments is Article 3 (prohibition of torture, violation found in 71.43%). In view of the many prisoners among the PLHIV who played a role in the judgments we analyzed, this is not surprising: in its guide on Article 3, the ECtHR explicitly mentions that it is a violation of Article 3 if a person in captivity does not receive adequate medical care. The ECtHR makes the distinction that it is not sufficient for a detainee to have been seen by a doctor and prescribed a particular treatment, but that adequate healthcare includes the keeping of a medical record, prompt diagnosis and care, regular supervision, a comprehensive therapeutic strategy and conditions that permit appropriate treatment (40). In this respect, the frequent violation of Article 3 in the cases we analyzed also reflects the restrictions regarding healthcare PLHIV receive in captivity. The fact that the ECtHR’s rulings can be taken as ethical guidance in relation to various Human Rights violations underlines the high ethical obligation to help PLHIV gain adequate and unrestricted access to healthcare. However, this is not limited to the countries from which the analyzed cases originate but is to be understood as a universal ethical impetus directed at PLHIV worldwide.

Access to healthcare for PLHIV was found to be limited in different ways in our analysis. We were able to identify four main categories, with the refusal of adequate therapeutic support being by far the most significant category with N = 22 cases (78.57%). Here, we subsumed not only a refusal of adequate medical conditions (N = 15, 68.18%) or the refusal of antiretroviral medication (N = 15, 68.18%) but also the refusal to release a prisoner from imprisonment although his state of health did not allow him to remain in prison (N = 8, 36.35%). In the assessment of the ECtHR, the refusal of provision of antiretroviral medication for a PLHIV is a serious breach of Human Rights. This also applies to situations, in which a HIV-diagnosis is not communicated immediately after discovery but only after a delay so that the appropriate therapeutic and diagnostic steps cannot be initiated instantly. This situation occurred in N = 3 (10.71%) of the analyzed cases. Furthermore, in N = 7 cases (25%) we found a refusal of an HIV-test or of diagnostic consequences of a positive HIV-test, or a refusal of necessary medical examinations in the context of HIV-infection, such as the determination of the number of CD-4 cells (see Logvinenko v. Ukraine, appl. no. 13448/07). The immediate start of antiretroviral therapy in the case of newly diagnosed HIV-infection not only delays the onset of the disease and reduces the occurrence of primary and secondary consequences, but also reduces the extent of further transmission (41). Therefore, it is the clear recommendation of the WHO that antiretroviral therapy should be started immediately for all PLHIV, regardless of clinical condition and CD4-cell count, as soon as patients allow it (42). The lack of such action, as observed in the analyzed cases, not only violates the right of PLHIV to unrestricted healthcare but also contributes to a worse prognosis with regard to their disease. The ECtHR’s rulings underline the moral obligation to help all PLHIV gain adequate access to healthcare, regardless of their social status. The fact that this does not apply to people in detention is a ground for concern. In our view, it would be the task of every legislation to consistently pursue such Human Rights violations and to exert all available pressure on the respective countries in order to put the vulnerable group of PLHIV on a much more equal footing with those without HIV-infection. In N = 10 cases (35.71%) we found administrative failures contributed to diminished healthcare of PLHIV. These included incomplete medical records or the denial of the right to seek legal investigation into their medical care. In our view, such administrative aspects are not infrequently overlooked in research on the topic of access to healthcare. This is regrettable, as full participation in healthcare also includes upholding appropriate administrative obligations and assurance of patients’ rights in legal disputes regarding their healthcare. This applies particularly to people in detention, whose rights to freedom are severely restricted and who therefore require special support in legal proceedings.

We believe that restricted access to healthcare should be understood as a form of discrimination and stigmatization of PLHIV, regardless of whether or not Article 14 (prohibition of discrimination) was applied in the cases we analyzed in this article. This is important to consider because HIV-related discrimination is itself associated with the risk of further deterioration in the health status of PLHIV. It has been shown that HIV-related discrimination is associated with depressive symptoms and alcohol abuse (43, 44) and leads to increased psychological stress and a reduced overall health-related quality of life (14, 45). However, stigmatization experiences also have a reverse effect that in turn worsens access to healthcare for PLHIV. HIV-stigma has been shown to be a factor that encourages people not to get tested for their HIV-status. They do this in order to escape stigmatization and discrimination (46). This creates a vicious cycle, which we believe could be efficiently broken by providing unrestricted access to healthcare for PLHIV.

HIV has been a part of our reality for more than 30 years. However, the provision of adequate information on HIV-infection is still lacking and those affected still suffer significantly from stigmatization, discrimination and limited access to healthcare (47, 48).

The results of this research need to be viewed in light of its limitations. First, the analyzed judgments represent only cases that were submitted to the ECtHR. A case needs to be considered in all national legal instances before an application to the ECtHR is possible. Thus, an analysis of ECtHR judgments can never show the whole picture in terms of Human Rights violations, but only the tip of the iceberg. Secondly, the categories into which we have placed the restrictions on access to healthcare for PLHIV are not exclusive but overlapping. However, in our opinion, this does not significantly limit their meaningfulness. Moreover, it seems natural that with such complex phenomena as the restriction of access to healthcare, no clearly delimited categories can be defined without omitting important aspects of reality. Finally, it might be seen as a limitation that we only focused on “HIV” in our search algorithm and did not explicitly search for “AIDS.” As explained, however, it was our concern to shed light on the special situation of PLHIV, who do not necessarily show visible external signs of their disease.