Senija Kjazimova and Alajdin Abdulovski v. North Macedonia

The authors of the communications are Senija Kjazimova and Alajdin Abdulovski, nationals of North Macedonia born in 1968 and 1966, respectively. They allege that the State party has violated their rights under articles 2 (1), 12 (2) and 26 of the Covenant. In addition, Mr. Abdulovski alleges that the State party has violated his rights under article 14 (1) of the Covenant. The Optional Protocol entered into force for the State party on 12 March 1995. The authors are represented by counsel.

On 9 July 2025, pursuant to rule 97 (3) of the Committee’s rules of procedure, the Committee decided to join for a joint decision communications No. 3613/2019 and No. 3616/2019, which had been submitted separately, in view of the substantial factual and legal similarity.

Ms. Kjazimova and her family members are of Roma ethnicity and are immediately identifiable as such by others in North Macedonia because of their dark skin colour.

On 18 March 2015, Ms. Kjazimova, her husband and their 16-year-old daughter were travelling by bus from North Macedonia to France. The purpose of their travel was to visit the couple’s son, who lived in France, and attend a birthday party for their grandson. They possessed biometric passports, €1450 in cash, travel insurance and a letter of guarantee in French, with a certified translation into Macedonian. The letter was signed by a national of France who guaranteed to cover the family’s living expenses from 25 January to 25 April 2015.

Ms. Kjazimova and her family were the only persons of Roma ethnicity on the bus. When the bus arrived at the Tabanovce border checkpoint – located at the North Macedonian border with Serbia – the State party’s border guards conducted a routine passport control. One border guard entered the bus and collected passports from all of the passengers. Shortly thereafter, the bus driver asked for Ms. Kjazimova’s husband by name. The latter exited the bus while Ms. Kjazimova and her daughter stayed on the bus. The border guard in a booth asked Ms. Kjazimova’s husband about his final destination and if he was carrying any money. He declared the amount of currency that he was carrying. The guard informed him that in order to enter France, he was required to carry approximately €3,000. Ms. Kjazimova’s husband disagreed, declaring that the family’s living expenses would be paid by their host. He showed the guard the letter of guarantee. The guard left the booth but quickly returned and informed Ms. Kjazimova’s husband that the family could not travel. The guard asked him to take Ms. Kjazimova and the couple’s daughter off of the bus. After they exited the bus, the guard gave their passports back to them. They had been stamped with an exit stamp. No other passenger was questioned or ordered to exit the bus. The remaining passengers continued their journey. Because of this unexpected situation, Ms. Kjazimova and her family had to find transportation to return from the border to their hometown. They felt that they were victims of racial discrimination and were offended and ashamed in front of the other passengers for being the only passengers who were not permitted to exit the country. They were also ashamed when they returned home and had to explain their situation to the people they knew. Ms. Kjazimova and her husband have not attempted to leave the country since then, though their daughter has since travelled to Germany.

On 23 September 2015, Ms. Kjazimova filed to the Basic Court of Bitola a civil claim against the Ministry of Interior. She asserted, inter alia, that by refusing to allow her to leave North Macedonia on 18 March 2015, the authorities had subjected her to discrimination based on her ethnicity and had violated her right to leave her own country. She requested compensation for moral damages in an amount equivalent to €2,900. She argued that the Ministry of the Interior applied a discriminatory policy to prevent Roma persons from travelling to the Member States of the European Union.

On 16 March 2016, the Basic Court of Bitola partially ruled in favour of Ms. Kjazimova. It found that the Ministry of Interior had violated her freedom of movement and right to leave her own country, and awarded €650 as compensation for non-pecuniary damage. The court found that there was no reason for the Ministry of Interior to deny Ms. Kjazimova and her family the right to exit Macedonia as suspected asylum seekers or for lack of necessary documents, as Ms. Kjazimova had a valid biometric passport and evidence explaining the purpose of her travel. Nonetheless, the operative text of the court’s judgment did not contain any conclusion on Ms. Kjazimova’s claim of discrimination, although the court did state that Ms. Kjazimova had been treated unequally compared to other passengers who were on the bus on that day and who had been able to continue their journey.

On 13 April 2016, the Ministry of Interior lodged an appeal against the decision of the Basic Court of Bitola.

On 6 October 2016, the Court of Appeal of Bitola rejected most grounds in the appeal of the Ministry of Interior and confirmed the judgment of the Basic Court of Bitola. However, the Court of Appeal reduced the amount of compensation awarded to €490. While the Court of Appeal did not mention discrimination in its judgment, it noted that the Ministry of Interior had failed to submit any evidence which could prove that there were justified reasons, prescribed by regulations, for which Ms. Kjazimova had not been permitted to leave North Macedonia and which could prove that she had not been subjected to discrimination.

Ms. Kjazimova maintains that she has exhausted domestic remedies. The Constitutional Court is ineffective for both human rights violations generally and in Ms. Kjazimova’s circumstances. Between 2011 and 2015, inclusive, all of the discrimination-related cases brought to the Constitutional Court were rejected.

On 9 March 2017, Ms. Kjazimova lodged an application concerning the same matter to the European Court of Human Rights.⁵ On 18 May 2017, in a single-judge decision, the European Court declared the application inadmissible on the ground that it did not meet the admissibility criteria set forth in articles 34 and 35 of the European Convention on Human Rights. The European Court did not provide further details regarding its reasoning.

5. Application No. 20780/17. ↩

Mr. Abdulovski is of Roma ethnicity. On 5 July 2014, he was traveling by bus to Austria to visit his children and help his son move into his new house. He was aware of the practice of border guards stopping Roma persons at the border, so he carried on his person a bus ticket, travel insurance, and a notarised guarantee letter signed by his daughter-in-law’s father, who promised to cover all of the costs of his stay.

At the Tabanovce border checkpoint, a border guard stopped the bus to inspect the passengers’ passports. Only Mr. Abdulovski and another Roma person were told that they needed to be checked further. The guard asked Mr. Abdulovski for a letter of guarantee for his stay in Austria and asked how much money he was carrying. After some time, the guard returned the passports to both of them, marked with a stamp struck through with two parallel lines. The marking meant that they had been refused permission to exit Macedonia. The other passengers continued their travel. In the middle of the night, at around 1 a.m., Mr. Abdulovski was left on the road with his luggage and had to find his own way home. The border guards told the two men to move away from the border crossing point quickly and did not let them sit inside while waiting for their transportation to arrive. One border official made an official record in which he stated that Mr. Abdulovski had been refused permission to exit North Macedonia because, with only €500, he lacked sufficient funds to support his 20-day stay in Austria. Mr. Abdulovski was informed about that official record only during the subsequent court proceedings.

On 17 February 2016, Mr. Abdulovski lodged to the Basic Court 2 of Skopje a civil claim against the Ministry of Interior. He alleged that he had been subjected to discrimination and requested the court to prohibit the Ministry of Interior from engaging in further discriminatory acts and to award compensation for pecuniary and non-pecuniary damages. He provided to the court a certificate showing that he was a registered tobacco producer, to establish that he did not have an economic reason for traveling to Austria.

In 2016 and 2017, the Basic Court 2 of Skopje held several hearings on the matter. On 23 March 2017, the court dismissed Mr. Abdulovski’s claim as unfounded. It considered that Mr. Abdulovski had not been prevented from leaving the country based on a discriminatory ground such as his Roma identity. The court stated, inter alia, that Mr. Abdulovski had been denied permission to exit the country because of his lack of sufficient financial means to travel and because, based on a risk assessment, he fit the profile of an unfounded asylum claimant. The court also noted that the internal border instructions of the Ministry of Interior on strengthening border controls did not mention Roma explicitly, and that the border guards treated equally all nationals wishing to cross the border. The court observed that the stamp in Mr. Abdulovski’s passport only indicated an immediate, temporary ban on exiting the country. The court found that while the Ministry of Interior had violated Mr. Abdulovski’s right to leave the country, that was not the subject of his claim and the court therefore could not make a separate finding on that issue. The court considered that the refusal to allow Mr. Abdulovski to leave the country was not discriminatory.

On 6 July 2017, the Skopje Court of Appeal dismissed the appeal filed by Mr. Abdulovski and confirmed the lower court decision.⁶

6. The Court of Appeal upheld the finding that pursuant, inter alia, to article 12 (2) of the Covenant, the Ministry of Interior had violated Mr. Abdulovski’s right to leave the country. However, it considered that because that claim had not been presented to the lower court, it could not render a decision beyond what had been asked of it. ↩

Mr. Abdulovski maintains that he has exhausted domestic remedies and invokes the arguments mentioned in para. 2.8 above. He adds that in 2016, the Constitutional Court rejected all eight discrimination-related cases which came before it. He states that he has not submitted the same matter to another international procedure.

The authors claim that the State party violated their rights under articles 2 (1), 12 (2) and 26 of the Covenant when border guards subjected them to racial profiling and prevented them from leaving North Macedonia because of their Roma ethnicity. The authors and other Roma persons on the buses were the only persons who were questioned and prevented from leaving the country. That fact alone shifts the burden of proof onto the State party to demonstrate that there was no discrimination.⁷

7. See Williams Lecraft v. Spain (CCPR/C/96/D/1493/2006), para. 7.4. ↩

In addition, the domestic courts did not, as required, make a clear finding as to whether Ms. Kjazimova had suffered discrimination. While the judgments included vague obiter dicta suggesting that Ms. Kjazimova had been discriminated against, their operative parts only addressed her right to leave her own country.

In violation of article 14 (1), read in conjunction with article 26 of the Covenant, the State party violated Mr. Abdulovski’s right to a fair procedure. When a State party’s courts have adopted a policy of shifting the burden of proof in discrimination cases, the courts’ failure to shift that burden onto the defendant following a prima facie showing of discrimination by a plaintiff violates the Covenant.⁸ Article 38 of the Law on Prevention of and Protection from Discrimination requires such shifting of the burden of proof. However, in Mr. Abdulovski’s case, the courts instead placed the burden on him to prove that he had faced discrimination. They did not consider the relevant facts that he had adduced regarding his personal circumstances and a pattern of discrimination. Furthermore, the courts based their conclusion that no discrimination had taken place on the fact that Mr. Abdulovski fit the profile of a potential asylum seeker, despite the ample evidence that such profiling is contaminated by racial discrimination.

8. See Committee on the Elimination of Racial Discrimination, V.S. v. Slovakia (CERD/C/88/D/56/2014), para. 7.4. ↩

On 25 June 2014, the Constitutional Court declared that articles 37 (1) (6) and 38 (4) of the Law on Travel Documents were incompatible with the constitutional right to freedom of movement. Those provisions allowed the authorities to impose severe restrictions on the freedom of movement of nationals of North Macedonia. The Constitutional Court noted that protecting the State party’s reputation or the immigration laws or another State did not fall within any of the permissible grounds for restricting the right to leave the country. The Constitutional Court also stated that such a blanket measure was not proportionate because it imposed excessive limitations on the freedom of movement.

The State party’s border officials have engaged in a clear pattern of racial profiling of Roma persons. Since 2011, the authors’ counsel, the European Roma Rights Centre, has documented 145 cases involving 442 Roma persons (322 adults and 120 children) who were denied permission to exit North Macedonia. In 14% of those cases, the border guards expressly referred to the Roma ethnic origin of the persons concerned as part of the explanation for refusing to permit them to leave the country. In 68% of the cases, border officials asked Roma persons to demonstrate that they fulfilled the requirements of the Schengen Borders Code (European Union Regulation 562/2006) for entering the European Union. In 12% of the cases, the Roma persons prevented from leaving were not asked any questions and were simply prevented from leaving the country.

In 2013, the Commissioner on Human Rights of the Council of Europe noted in relation to North Macedonia that “even though the authorities have argued that [border exit controls] are not aimed at any particular ethnic group, there are clear indications that Roma are disproportionately affected by the exit control measures in question. At the same time, it is clear that the Macedonian authorities have developed a profile of a potential ‘unfounded’ or ‘false’ asylum seeker on the basis of information they receive from [European Union] countries”.⁹ On 17 August 2015, the Human Rights Committee, in its concluding observations on North Macedonia, expressed concern that between 2011 and the end of 2014, thousands of North Macedonians had been denied permission to exit the country. In that regard, the Committee expressed concern about allegations that ethnic profiling, particularly against Roma, limited freedom of movement across the State party’s borders.¹⁰

9. CommDH(2013)4, para. 101. ↩
10. CCPR/C/MKD/CO/3, para. 16. ↩

In its report of March 2016, the European Commission on Racism and Intolerance confirmed that racial profiling was applied at the North Macedonian border in order to ensure strict adherence to travel and immigration rules of the European Union.¹¹ According to the European Commission, although border police officials had received trainings, they did not seem to be aware of the discriminatory impact of racial profiling and did not intend to stop engaging in it.

11. ECRI Report on the Former Yugoslav Republic of Macedonia (fifth Monitoring Cycle): Adopted on 18 March 2016. ↩

The domestic Office of the Ombudsperson, in its reports of 2012, 2013 and 2014, stated that it had received a significant number of complaints from Roma persons about ethnic discrimination in relation to their freedom of movement. The Ombudsperson concluded that the Ministry of Interior discriminated against North Macedonian nationals of Roma ethnicity by preventing them from leaving the country.

In its submissions of 18 November 2019 (concerning Ms. Kjazimova) and 25 July and 17 September 2019 (concerning Mr. Abdulovski), the State party considers that the communications are inadmissible on the grounds described below. The State party also maintains that it is possible that the authors have submitted applications to the European Court of Human Rights which have yet to be communicated to the State party.

Ms. Kjazimova did not exhaust all domestic legal remedies, as she did not file a motion for retrial. The Bitola Court of Appeal affirmed the dismissal of her request to enjoin the State party from taking any future measures to violate her right to freedom of movement and to exit the country. Against that finding, Ms. Kjazimova has the right, under articles 392 to 399 of the Law on Civil Procedure, to file a motion for a retrial. She has not done so. A motion for retrial may be filed within 30 days from the date on which the party could have presented new evidence.¹²

12. Article 392 (9) of the Law on Civil Procedure. ↩

In addition, Ms. Kjazimova could have filed an application to the Constitutional Court but did not do so. The Constitutional Court protects human rights and freedoms, including the right to non-discrimination. Citizens may file an application to the Constitutional Court within two months from the date on which they learn of the alleged violation of their rights or freedoms.

Because the individual application filed by Ms. Kjazimova was not transmitted to the State party, it cannot present its position on her allegations.¹³

13. Ms. Kjazimova’s submission was transmitted to the State party twice. ↩

Mr. Abdulovski did not exhaust domestic remedies, for the same reasons as Ms. Kjazimova. Namely, he did not file a motion for retrial to contest his unsuccessful domestic claim, or an application to the Constitutional Court to invoke the alleged violations of his rights.

In addition, the communication of Mr. Abdulovski is inadmissible because it is manifestly ill-founded. As he noted, in its decision of 2017, the Skopje Court of Appeal found that he had not invoked before the lower court the right to freedom of movement, and that it was barred from deciding on issues not raised in lower court claims.

The Basic Court of Skopje correctly found that Mr. Abdulovski had neither been prevented from leaving North Macedonia nor been subjected to discrimination because of his race, skin colour or Roma ethnicity (i.e. on a discriminatory ground). The Basic Court examined the evidence presented and heard witness testimony before determining that the border police officer had not injured Mr. Abdulovski’s right to equal treatment. In addition, he left the country on 8 July 2014, only three days after the event in question. His claims are thus without merit.

In her comments of 7 January 2020, Ms. Kjazimova reiterates that she was not required to apply to the Constitutional Court to exhaust domestic remedies, for the reasons previously stated. She was also not required to file a motion for a retrial, because such a motion must be based on new facts or evidence, which she did not have.

Mr. Abdulovski reiterates that he was not required to file a motion for retrial or an application to the Constitutional Court, which continued its pattern of rejecting discrimination-related complaints in 2017 and 2018.

The fact that Mr. Abdulovski was permitted to leave North Macedonia three days after the incident in question does not weaken his claim. He and other Roma persons have never alleged that all Roma persons at all times have been prevented from leaving the country. That is not how racial profiling works.

Rather, Mr. Abdulovski claims that border guards disproportionately targeted Roma persons, stopped them as part of a pattern, and often prevented them from leaving. Thus, they had to anticipate being profiled and stopped more frequently than non-Roma and had to ensure that they could present evidence that would never be expected of non-Roma persons travelling abroad. That constitutes discrimination.

In 2016, the Advisory Committee on the Framework Convention for the Protection of National Minorities of the Council of Europe issued an opinion in which it stated that there had been documented incidents of ethnic profiling at external borders directed primarily at persons belonging to the Roma minority.¹⁴ It further stated that repeated independent surveys indicated an established practice of not allowing Roma persons to exit the country, despite having valid travel documents.¹⁵

14. “Fourth Opinion on “the former Yugoslav Republic of Macedonia”, adopted on 24 February 2016ACFC/OP/IV(2016)001, para. 27. ↩
15. Ibid. ↩

In its further observations of 13 January 2025 concerning communication No. 3613/2019, the State party maintains that Ms. Kjazimova has been given effective legal remedies, in accordance with domestic legislation and in line with the Committee’s jurisprudence.¹⁶ In particular, in 2016, the Bitola Court of First Instance established that the Ministry of the Interior had violated, with respect to Ms. Kjazimova, the right to freedom of movement and the right to leave the country. Accordingly, the Court ordered the Ministry to pay her a just amount of compensation for non-material damages, in addition to statutory default interest accruing from 16 March 2016 until the date of payment. The appellate court upheld that judgment and amended only the amount of compensation awarded. The Ministry of the Interior paid Ms. Kjazimova in accordance with the court judgment and an enforcement order, thus providing effective reparation.

16. Achabal Puertas v. Spain (CCPR/C/107/D/1945/2010), para. 10. ↩

The State party also took measures to prevent similar violations of rights in the future. Specifically, on 25 June 2014, the Constitutional Court adopted decision No. U 189/2012, in which it nullified and voided two provisions of the Law on Travel Documents of Citizens of the Republic of North Macedonia.¹⁷ Article 37 (1), item 6 of the Law required the rejection of passport or visa applications where the applicant had been forcibly returned or expelled from another State because of actions contrary to regulations on the entry and stay in that State. Article 38 (4) of the Law specified a time limit of one year for the reason for rejection.

17. Official Gazette of the Republic of North Macedonia Nos. 67/1992, 20/2003, 46/2004, 19/2007, 84/2008, 51/2011, and 135/2011. ↩

The Constitutional Court declared that those provisions were unconstitutional, finding that the restriction imposed was disproportionate and excessively limited the right to freedom of movement, specifically the right to travel abroad. According to the Constitutional Court, for a state to restrict the right or freedom of its own citizen who holds a valid travel document to leave their own country, there must be truly serious and exceptional circumstances, such as those expressly outlined in article 27 (3) of the Constitution (for protection of the security of the state, conduct of criminal proceedings, or protection of public health. The protection of the country’s reputation and the protection of entry and stay regimes of other countries (e.g. in the Schengen Area) did not meet the criteria in article 27 (3) of the Constitution. In view of the above, the communication of Ms. Kjazimova is inadmissible and unfounded.

Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under any other procedure of international investigation or settlement.

The Committee notes the State party’s position that the authors did not avail themselves of all domestic remedies, as required by article 5 (2) (b) of the Optional Protocol, insofar as such remedies appear to be effective in the given case and are de facto available to the author.¹⁸ The Committee notes that Mr. Abdulovski did not invoke before the Basic Court 2 of Skopje the right to freedom of movement. The Committee also notes that it is not clear from the communication whether Mr. Abdulovski raised in his appeal the substance of his claim under article 14 (1) of the Covenant. The Committee therefore considers that it has not been demonstrated that Mr. Abdulovski exhausted domestic remedies with respect to his claims under articles 12 (2) and 14 (1) of the Covenant. Accordingly, those claims are inadmissible under article 5 (2) (b) of the Optional Protocol.

18. See, for example, M.A.S. and I.E.J. v. Italy (CCPR/C/134/D/3589/2019), para. 8.4 ↩

Regarding the State party’s position that the authors were required to file motions for retrial, the Committee considers that in view of the authors’ assertion that they had no new facts or evidence upon which to base a motion for retrial, that remedy was unavailable in their circumstances, and they were not required to exhaust it.

The Committee notes the State party’s position that the authors did not exhaust domestic remedies because they did not file applications to the Constitutional Court, which examines violations of human rights and freedoms. The Committee recalls its jurisprudence that although there is no obligation to exhaust domestic remedies if they have objectively no prospect of success, authors of communications must exercise due diligence in the pursuit of available remedies and mere doubts or assumptions about their effectiveness do not absolve the authors from exhausting them.¹⁹ The Committee also recalls that in situations where a State party circumscribes rights of appeal with certain procedural requirements, such as time limits or other technical requirements, an author is required to comply with these requirements before he or she can be said to have exhausted domestic remedies.²⁰ Nonetheless, there is no obligation to exhaust domestic remedies – for example – where under applicable domestic laws, the claim would inevitably be dismissed, or where established jurisprudence of the highest domestic tribunals would preclude a positive result.²¹ In the present case, the authors do not assert that they could not access the Constitutional Court, which has the competence to examine, inter alia, issues of discrimination.

19. See, for example, Nabhari v. Australia (CCPR/C/142/D/3663/2019), para. 7.3; F.C.S. v. Spain (CCPR/C/140/D/4063/2021), para. 6.4; W.L.W. v. South Africa (CCPR/C/140/D/3237/2018), para. 6.4; M.O. v. Germany (CCPR/C/140/D/3232/2018), para. 7.4. ↩
20. V.G. v. Russian Federation (CCPR/C/139/D/2824/2016), para. 8.6. ↩
21. See, for example, Länsman et al. v. Finland (CCPR/C/49/D/511/1992), para. 6.3; S.A. et al. v. Greece (CCPR/C/121/D/2868/2016), para. 6.4; and Gomaríz Valera v. Spain (CCPR/C/84/D/1095/2002), para. 6.4. ↩

Nonetheless, the Committee notes that the State party has not disputed the authors’ assertion that the Constitutional Court was not effective because it had not found any instances of discrimination against the Roma community between 2011 and the time when they could have filed constitutional complaints (i.e. in 2016 for Ms. Kjazimova and in 2017 for Mr. Abdulovski). The State party did not cite any judgments of the Constitutional Court in which discrimination was found to have occurred. The Committee further notes that in 2014 and 2015, the Constitutional Court reportedly dismissed complaints filed by several persons who claimed that they had not been permitted to cross the State border owing to their Roma origin.²² The Constitutional Court declared those complaints inadmissible on the ground that the claimants had not provided sufficient evidence in support of their discrimination claims, meaning that there was no evidence that the actions of the border police officers were linked to the claimants’ ethnic origin.²³

22. See European Court of Human Rights, Memedova and Others v. North Macedonia, applications Nos. 42429/16, 8934/18 and 9886/18, judgment of 24 October 2023, para. 29 (citing U.br. 99/2013 dated 5 February 2014 and U.br. 108/2013 dated 18 February 2015). ↩
23. Ibid, para. 81. ↩

Because the State party did not respond to the authors’ statistics with information which could establish that the Constitutional Court represented an effective remedy for discrimination-related complaints, the Committee considers that the authors were not required to exhaust that remedy with respect to their claims relating to article 26 of the Covenant.²⁴ Accordingly, the Committee finds that article 5 (2) (b) of the Optional Protocol does not constitute an obstacle to the examination of those claims.

24. Ibid. ↩

With respect to the authors’ claims under article 2 (1) of the Covenant, the Committee recalls that the provisions of article 2 lay down general obligations for States parties and cannot, by themselves, give rise to a separate claim under the Optional Protocol, as they can be invoked only in conjunction with other substantive articles of the Covenant.²⁵ The Committee thus declares those claims inadmissible ratione materiae under article 3 of the Optional Protocol.

25. For example, Taylor et al. v. New Zealand (CCPR/C/138/D/3666/2019), para. 6.5; Billy et al. v. Australia (CCPR/C/135/D/3624/2019), para. 7.4; D.C. v. Lithuania (CCPR/C/134/D/3327/2019), para. 8.5; Nepal v. Nepal (CCPR/C/132/D/2615/2015), para. 6.6; X v. Australia (CCPR/C/126/D/3580/2019), para. 4.3. ↩

The Committee considers that the authors have sufficiently substantiated their claims under article 26 of the Covenant, and that Ms. Kjazimova has sufficiently substantiated her claim under article 12 (2) of the Covenant. The Committee thus declares those claims admissible and proceeds to examine them on the merits.

The Committee has considered the communication in the light of all the information made available to it by the parties, as provided for under article 5 (1) of the Optional Protocol.

The Committee notes the authors’ claim that the State party discriminated against them based on their Roma ethnicity when it prevented them from leaving North Macedonia. The Committee notes that the State party did not respond to the substance of Ms. Kjazimova’s specific claim in relation to article 26 of the Covenant and took the position that Mr. Abdulovski had not been denied permission to exit the country on a discriminatory ground and had been granted permission to exit a few days later.

The Committee recalls that according to its general comment No. 18 (1989) on non-discrimination, the term “discrimination” as used in the Covenant should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.²⁶ However, differentiations in treatment based on the grounds listed in article 26 do not constitute discrimination if they are based on reasonable and objective criteria and are in pursuit of an aim that is legitimate under the Covenant.²⁷

26. Thirty-seventh session, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 26 (1994), para. 7. ↩
27. Ibid, para. 13. ↩

The Committee notes the following uncontested statements by the authors. They are Roma and are immediately identifiable as such based on their appearance. They, along with Ms. Kjazimova’s family and another Roma person, were the only persons singled out by the State party’s border officials for checks when they attempted to exit the country. They were the only persons on their respective buses who were not permitted to do so. The purpose of their travel was to visit family and they were each carrying passports, proof of travel insurance and letters of guarantee in which their family members agreed to cover the cost of their expenses while abroad.

The Committee considers that the State party did not present any evidence capable of refuting the authors’ allegations and of showing that they had not been treated differently because of their ethnic origin, or that such treatment was justified based on a legitimate aim.²⁸ The Committee also notes the information provided by the authors regarding a pattern of ethnic profiling by the State party’s officials during attempts of Roma persons to leave the country (paragraphs 3.6-3.9 and 5.5). While the Basic Court of Skopje 2 reasoned that Mr. Abdulovski had been temporarily denied permission to exit based on his profile as an unfounded asylum claimant and on his lack of financial means, the court did not address the letter of guarantee which Mr. Abdulovski alleges he presented to the border official, and did not explain why he and another Roma person were alone selected for checks by the border official. The Committee also considers that the treatment that Mr. Abdulovski encountered during the incident in question is not altered by the fact that he was permitted to exit the country a few days later. The Committee also notes the uncontested assertion of Ms. Kjazimova that the domestic courts made non-operative statements in their decisions to the effect that she had been subjected to discrimination. In the absence of convincing explanations from the State party, the Committee considers it reasonable to infer that the differentiation of treatment to which the authors were subjected – i.e. the denial of permission to exit their country – was based on their Roma identity, not on reasonable and objective criteria. Accordingly, the Committee considers that such treatment constituted discrimination against the authors on the ground of ethnic origin under article 26 of the Covenant.

28. See Williams Lecraft v. Spain (CCPR/C/96/D/1493/2006), para. 7.4. ↩

Regarding article 12 (2) of the Covenant, concerning Ms. Kjazimova’s right to exit her own country, the Committee recalls that freedom to leave the territory of a State may not be made dependent on any specific purpose.²⁹ The Committee notes that the State party’s authorities recognized that Ms. Kjazimova’s rights under that provision had been violated, and awarded compensation of approximately 650 euros; however, this was reduced on appeal to approximately 490 euros without a sufficient explanation. On appeal, the court reasoned that the initial amount had been unjustified because it was disproportionate to the trauma caused to Ms. Kjazimova. Taking into account the degree of emotional distress caused to Ms. Kjazimova during the incident in question, the Committee considers that the reduced amount of compensation does not suffice as an adequate remedy for the violation of her right to exit her country. Accordingly, due to the restrictions on the author’s freedom of movement as well as the manifestly insufficient remedy provided, the Committee concludes that the State party violated the author’s rights under article 12 (2) of the Covenant.

29. General comment No. 12 (1999), para. 8. ↩

The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the facts before it disclose a violation by the State party of the rights of Ms. Kjazimova under articles 12 (2) and 26 of the Covenant, and of Mr. Abdulovski under article 26 of the Covenant.

In accordance with article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the authors with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. The Committee considers that the State party is required to provide the authors with adequate compensation. The State party is also under an obligation to take all steps necessary to prevent similar violations from occurring in the future.

Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory or subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy when it has been determined that a violation has occurred, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the Committee’s Views. The State party is also requested to publish the present Views and disseminate them broadly in the official language of the State party.

Reitero mi criterio externado en comunicaciones anteriores (i.e. 3098-2018; 3157, 3159, 3166/2018). A pesar de que ha sido invocado por los autores en las comunicaciones atendidas, el Comité insiste en no aceptar que se tenga por trasgredido el artículo 26 del Pacto y atiende las peticiones únicamente en el campo de los derechos individuales de los autores (y lo hace adecuadamente en este nivel). Yerra al hacerlo. Se trata, una vez más, de conductas del Estado-parte que discriminan a la comunidad romaní del país.

Los hechos del caso demuestran un claro patrón de discriminación por perfil racial contra los romaníes en Macedonia del Norte. Los autores, identificables como romaníes, fueron los únicos pasajeros de sus respectivos autobuses que fueron interrogados y se les impidió salir del país. Esta no fue una simple violación de la libertad de movimiento de los autores, sino el reflejo de una política de discriminación más amplia. El propio Centro Europeo de Derechos de los Romaníes, que representó a los autores, documentó 145 casos que involucraron a 442 personas romaníes a quienes se les había negado la salida de Macedonia del Norte desde 2011.

En sus Observaciones Finales de 2025 sobre Macedonia del Norte (CCPR/C/MKD/CO/4) el Comité reprocha al Estado parte por sus prácticas de perfilación étnica, que limitan la libertad de movimiento de los romaníes en las fronteras del Estado. Además, el Comisionado de Derechos Humanos del Consejo de Europa y la Comisión Europea contra el Racismo y la Intolerancia han señalado que los romaníes se ven desproporcionadamente afectados por las medidas de control de salida. El Defensor del Pueblo nacional también concluyó que el Ministerio del Interior discriminaba a los ciudadanos romaníes al impedirles salir del país.

A pesar de la abrumadora evidencia, en esta resolución la mayoría del Comité no reconoce la naturaleza sistémica de la discriminación que sufren los romaníes. Al así hacerlo pierde la oportunidad de enviar un mensaje contundente sobre la necesidad de abordar las causas profundas de dicha discriminación estructural tal y como lo propone el propio Comité en sus Observaciones Finales (sigla). La decisión debió haber resaltado que estas acciones no son incidentes aislados, sino parte de una práctica institucionalizada de discriminación contra la comunidad romaní.

Por lo anterior, no puedo unirme al razonamiento de la mayoría.