S.N. and E.R. v. North Macedonia

Parties (including notable third parties)

S.N. and E.R. (author and alleged victims); North Macedonia (state party)

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Summary of Facts

At the time of submissions, the authors S.N. and E.R. were minors of Roma ethnicity living on the site of their former homes with their partners in a settlement called Polygon near the Vardar River in Skopje. S.N. and E.R. claimed to be nationals of North Macedonia but lacked identity documents. They did not have land tenure and were living in poverty. Neither had public or private health insurance, and were not entitled to free of charge primary health-care services in public hospitals.

S.N. was six months pregnant and did not have any identity documents. She had visited a doctor two or three times and had to pay for the examination.

E.R. was three months pregnant had visited a doctor only once through a non-governmental organisation. Although she had both identity documents and a birth certificate, these had been lost when the authorities demolished her home and she had not obtained new ones as she was unable to pay the fee for them.

On 11 July 2016, the Department of the Inspectorate of the City of Skopje made a decision to “clean up” the settlement.

On 1 August 2016, without prior notice, the police entered the settlement and destroyed the only water source, a single water pump. Later, bulldozers arrived and demolished all the homes on the settlement. The authors were not offered alternative accommodation because they lacked identity documents.

The authors (and others in the community) remained on the site of their former settlement with no access to shelter and water, and the authors had no access to basic necessities or maternal health-care assistance.

The authors submitted that they had no access to a remedy that would suspend the eviction. Further, that as they could not prove they were North Macedonia nationals or that they fell into another category of people eligible for public health insurance, they were ineligible for such assistance.

On 31 October 2016, when registering the communication, the Committee requested the State provide the authors with suitable emergency accommodation, nutrition, clean water and immediate access to health-care services, including maternal health-care services, pursuant to article 5 (1) of the Optional Protocol and rule 63 of the rules of procedure of the Committee.

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Legal Arguments

Legal arguments by the Authors

The authors submitted that there was a continuing breach of their rights under Articles 2(d), 2(f), 4(1) 4(2), 12(1), 12(2), 14(2)(b) and 14(2)(h) of the Convention on the Elimination of all Forms of Discrimination against Women.

Article 2(d):

The authors contend that they have suffered intersectional discrimination on the basis of their gender, ethnicity and health status. Specifically, that the State did not consider the authors’ vulnerable situation and specific forms of support needed in violation of their Article 2(d) rights.

Article 2(f):

The authors contend the State violated Article 2(f) by failing to pursue by all appropriate means a policy which would have modified, abolished or remedied the discrimination against the victims. That is, they failed to undertake any appropriate measures to eliminate discriminatory practice of forced evictions targeting Roma communities, including Roma women and its discriminatory effect on Roma adolescents who are pregnant.

Article 4(1) and 4(2):

The authors claimed that the State violated their rights under Article 4 as it undertook no special measures aimed at fulfilling the specific needs of minor Roma pregnant women in the particular case of eviction.

Article 12(1) and 12(2):

The authors claim that the State subjected them to discrimination by limiting their access to health-care services, including reproductive health services, in violation of Article 12(1) and 12(2).

Article 14(2)(b):

The authors claim that, by not providing accessible and free-of-charge health care services to them as a members of a marginalised community living in conditions akin to a rural setting, the State discriminated against them, especially with regard to their circumstances following eviction.

Article 14(2)(h):

The authors claim that by evicting them without offering timely and appropriate housing, leaving them in fear and anxiety and failing to ensure they had access to adequate living conditions (appropriate housing, nutrition, clean water, sustainable energy and adequate sanitation and hygiene, the State violated their rights under Article 14(2)(h).

Legal arguments by the State

The State submitted that families were offered accommodation and priority was given to families with pregnant women and babies, but that all families rejected that service. Those who were accommodated were provided with a warm meal, clothes, footwear and personal hygiene items. Children were enrolled in a day centre, or school. Further, all individuals accommodated were enrolled in a supported living program to facilitate their reintegration into society.

Legal arguments by the authors in response

The authors submitted that the State’s reply came after more than 2 years had elapsed – exceeding the 6 month deadline in the Operational Protocol and that this should require the Committee to make a separate finding of a violation of Article 6 of the Operational Protocol.

Further, the authors clarified that S.N. received temporary accommodation for 6-7 months but that conditions were extremely poor and inadequate for pregnant women or women who had recently given birth. Once S.N.’s husband obtained a job, S.N. was ordered to leave. Similarly, E.R. eventually received the same accommodation as S.N. but felt compelled to leave as she no longer felt safe there. Both authors were living on the street during their pregnancies as a result of the eviction on 1 August 2016.

Legal arguments by the State in response

The State re-iterated submissions that the relevant individuals were accommodated and that it had taken all urgent and timely measures necessary to protect the Roma families and that those measures were ongoing. Further, that the remedies for the protection of women’s rights exist under the Law on Equal Opportunities for Women and Men of 2012 and under the Law on Prevention of and Protection against Discrimination of 2010, and that Ombudsperson’s Office as a protection mechanism can be used in such cases. As such, the State submitted the Committee should declare the communication inadmissible in accordance with Article 4(1) of the Operational Protocol.

Outcome

Admissibility

The Committee majority considered it was not precluded from considering the communication under Article 4(1) of the Operational Protocol. Therefore, the Committee declared the communication admissible in so far as it raised issues under Article 2(d), 2(f), 12(1), 12(2), 14(2)(b) and 14(2)(h) of the Convention.

The dissenting member (Gunnar Bergby) dissented on the basis that the communication should have been found to be inadmissible under both Article 4(1) of the Operational Protocol on the ground of a failure to exhaust domestic remedies, and under Article 4(2) that the very same eviction was being examined by the European Court of Human Rights under the European Convention on Human Rights (Bekir and others v. North Macedonia), even though the authors of communication No. 107/2016 were not parties.

Article 2(d) and 2(f)

The Committee observed that, despite being minors and pregnant, the authors were treated no differently than other evicted persons and were left homeless and in a condition of extreme destitution. The Committee also observed that the right to be free from discrimination entails not only treating people equally when they are in similar situations, but also treating them differently when they are in different situations.

The Committee considered the State did not respect, protect or fulfil the right of the authors to non-discrimination and did not undertake temporary special measures aimed at addressing the specific urgent needs of minor Roma pregnant women in the particular case of eviction, and concluded that there was a breach of the authors’ rights under Articles 2(d) and 2(f) of the Convention.

Article 12(1), 12(2) and 14(2)(b)

The Committee confirmed that the State’s compliance with Article 12 of the Convention is “central to the health and well-being of women and that special attention should be given to the health needs and rights of women belonging to vulnerable and disadvantaged groups, and the girl child” (at paragraph [9.5]). The Committee noted that the authors were undocumented and without insurance, so that they had no access to adequate health-care facilities and were not entitled to any free health care.

Both authors did not give birth in a specialised hospital but on the streets. The Committee concluded that the authors’ rights under Articles 12(1) and (2) and 14(2)(b) of the Convention were violated.

Article 14

The Committee noted that the authors were not offered suitable alternative accommodation following eviction and that they were exposed to extremely poor living conditions. The Committee observed that this contributed to the extremely vulnerable and precarious position of the authors. The Committee concluded that the authors’ rights were violated under Article 14(d) of the Convention.

Committee Recommendations

In respect of the authors, the Committee recommended to the State that (1) it provide adequate reparation due to inadequate housing and health care during their pregnancies, aggravated by their eviction; and (2) provide suitable accommodation, access to clean water, proper nutrition and immediate access to affordable health-care services.

More generally, the Committee recommended that the State:

(i) Adopt and pursue concrete and effective policies, programmes and targeted measures, including temporary special measures, in accordance with article 4 (1) of the Convention and general recommendation No. 25, to combat intersecting forms of discrimination against Roma women and girls;

(ii) Ensure effective access to adequate housing for Roma women and girls;

(iii) Ensure access to affordable and high-quality health care and reproductive health services and prevent and eliminate the practice of charging Roma women and girls illegal fees for public health services;

(iv) Develop specific poverty alleviation and social inclusion programmes for Roma women and girls;

(v) Reinforce the application of temporary special measures, in line with article 4 (1) of the Convention and the Committee’s general recommendation No. 25, in all areas covered by the Convention in which women and girls belonging to ethnic minority groups, in particular Roma women and girls, are disadvantaged;

(vi) Engage actively, including through the provision of financial support, with civil society and human rights and women’s organizations representing Roma women and girls, in order to strengthen advocacy against intersectional forms of discrimination based on sex, gender and ethnicity, and promote tolerance and the equal participation of Roma women in all areas of life;

(vii) Ensure that Roma women and girls, as individuals and as a group, have access to information about their rights under the Convention and are able to effectively claim those rights;

(viii) Ensure that Roma women and girls have recourse to effective, affordable, accessible and timely remedies, with legal aid and assistance as necessary, to be settled in a fair hearing by a competent and independent court or tribunal, where appropriate, or by other public institutions;

(ix) Ensure that no forced eviction of Roma women and girls is carried out if no alternative housing has been provided to those affected.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
International	Convention on the Elimination of all Forms of Discrimination against Women	Articles 2(d), 2(f), 4(1) 4(2), 12(1), 12(2), 14(2)(b) and 14(2)(h)
International	Operational Protocol to the Convention	Articles 4, 5(1), 6, 7(3)
Domestic	Law on Equal Opportunities for Women and Men of 2012
Domestic	Law on Prevention of and Protection against Discrimination of 2010
Domestic	Law on Social Protection
Domestic	Law on the Protection of Health

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Rosario Grima Algora, 'Advancing Reproductive Justice in Latin America through a Transitional Justice Lens' (2022) 28(2) Michigan Journal of Gender & Law 155

• The author argued that the CEDAW Committee’s recommendation that the state guarantees several economic and social rights (including access to adequate housing, poverty alleviation, and affordable health and reproductive health services) was essential to ensuring the transformative effect of reparations, in a context where Roma women and girls are systematically discriminated against and do not have access to socio-economic rights on an equal basis to non-Roma population.
• Further, the author suggested that the CEDAW Committee was advancing a more nuanced understanding of how intersectional discrimination heightens and shapes violations of women’s productive reproductive autonomy.