* Adopted by the Committee at its seventy-seventh session (26 October–5 November 2020).

** The following members of the Committee participated in the examination of the present communication: Gladys Acosta Vargas, Hiroko Akizuki, Tamader Al-Rammah, Nicole Ameline, Gunnar Bergby, Marion Bethel, Louiza Chalal, Esther Eghobamien-Mshelia, Naéla Gabr, Hilary Gbedemah, Nahla Haidar, Dalia Leinarte, Rosario G. Manalo, Lia Nadaraia, Aruna Devi Narain, Ana Peláez Narváez, Bandana Rana, Rhoda Reddock, Elgun Safarov, Wenyan Song, Genoveva Tisheva and Franceline Toé-Bouda.

Background

1.The authors are S.B. and M.B., nationals of North Macedonia of Roma ethnicity, born in 1988 and 1985, respectively. Their complaint concerns denial of access to gynaecological services, notably a denial by a private health-care facility to register them as patients based on their ethnicity, and the lack of gynaecological services in the area in which they live as a form of discrimination against women. They claim that they are victims of a violation of their rights under articles 1, 2 (a), (c) and (e) and 12 of the Convention owing to the State party’s failure to introduce positive measures in favour of the sexual and reproductive rights of Roma women, resulting in inequality in practice in the authors’ enjoyment of their right to health. The Convention and the Optional Protocol thereto entered into force for the State party on 17 February 1994 and 17 January 2004, respectively. The authors are represented by counsel, Natasha Boshkova.

Facts as submitted by the authors

2.1The authors both live with their partners, with whom they each have three children. They are Roma by ethnicity and live in the biggest Roma community in North Macedonia in the municipality of Šuto Orizari. They submit that Roma women in Šuto Orizari experience obstacles to exercising their right to access to high-quality gynaecological services, owing to the lack of such services in the municipality itself, even though more than 13,000 women of reproductive age live there. The difficulties that they face are also attributable to prejudices and discrimination against Roma by health-care professionals working in gynaecological practices in the city of Skopje.

2.2Prior to the events described in the authors’ complaint, there had been several reported cases of similar discriminatory treatment of Roma women at the practice of a gynaecologist, Dr. L.K. In order to obtain evidence of the discriminatory behaviour of the gynaecologist, two civil society organizations, the Helsinki Committee for Human Rights and the Health Education and Research Association, developed a test scenario. The test, or simulation, was conducted at the health facility by female participants of Roma and non-Roma ethnicity (the authors of the present communication and control subjects), all of Macedonian nationality, who were of reproductive age and in need of gynaecological treatment.

2.3On 16 December 2015, one of the authors (S.B., 28 years old on the day of the simulation) went to the private health facility of Dr. L.K. and asked to be enrolled as a patient and to have a regular gynaecological check-up. The nurse employed at the facility refused to register her, claiming that the doctor no longer accepted young patients. On the same day, a non-Roma control subject (23 years old on the day of the simulation), asked to be registered with the same gynaecologist. The nurse proceeded with the registration and, 20 minutes later, she was examined by the doctor.

2.4On 18 December 2015, the second author (M.B., 30 years old on the day of the simulation) also requested to be enrolled as a patient, but she was rejected on the same grounds, namely that the doctor was no longer accepting young patients. On the same day, another control subject (25 years old on the day of the simulation) had her request for registration at the practice approved, and she was examined on the same day.

2.5The authors submit that, although they were involved in a simulation, they were, in fact, looking for a gynaecologist closer to their municipality so that they could have access to gynaecological treatment without travelling to a more remote area, which entailed an additional financial burden for them. They further claim that they experienced emotional pain and suffering as a result of the discriminatory conduct of the private health-care provider.

2.6On 13 September 2016, the authors filed a lawsuit against the private health facility. They asked the court to establish a violation of their right to equal treatment and to award non-pecuniary damages.

2.7On 5 April 2017, during a court hearing, witnesses from both sides were heard. The defendant’s witnesses did not refer to the exact events of December 2015 but spoke in general about the professional work of the gynaecologist. In her statement at the end of the hearing, the defendant explained that she had changed her policy towards Roma patients because, once, the Health Education and Research Association had brought to her practice a Roma couple (a husband and a wife with an infection). They wore filthy clothes and had an unpleasant smell, and after they left, she had to disinfect and ventilate the room as the patient “had a pungent smell, smelled like a sewer” and the gynaecologist feared that other patients might avoid her practice.

2.8On 7 June 2017, the court rejected the authors’ claims as unfounded. The court found that the authors did not act to meet their own needs; rather, the events were to be seen as part of а simulated project of the Health Education and Research Association, which was confirmed also by the report of the Association itself and the statements of the witnesses. The court further stated that the authors were not discriminated against based on their ethnicity but rather, they were rejected because they failed to submit their complete medical file (they were not carrying their health identification cards and medical records). The authors appealed against the decision.

2.9On 17 May 2018, the appellate court delivered its decision without holding a public hearing. It rejected the appeal and upheld the first-instance decision. According to the authors, the appellate court did not provide a reasonable justification for the decision. According to the authors, domestic remedies were thus exhausted.

Complaint

3.1The authors claim that the State’s failure to provide them with effective protection against discrimination in access to health-care services amounts to a violation of their rights under articles 1, 2 (a), (c) and (e) and 12 of the Convention, taking into consideration the Committee’s general recommendation No. 24 (1999) on women and health. They contend that the lack of gynaecological services in the area in which they live is a form of discrimination against women and that the State party’s failure to introduce positive measures in favour of the sexual and reproductive health rights of Roma women resulted in inequality in practice in the authors’ enjoyment of their right to health.

3.2The authors contend, in particular, that they have suffered discrimination as they were refused enrolment as patients by the local gynaecologist and denied a regular gynaecological examination owing to their ethnicity, while non-Roma women were admitted and examined on the same day. They also claim that the court had lacked an understanding of the nature, specificity and intersectionality of the discrimination, as well as its root causes and harmful effects, especially on ethnic minority women, and of the reversed burden of proof falling on the defendant. It had neglected the defendant’s discriminatory statements that she did not want to admit “that kind of people” into her practice and that “the patient had a pungent smell, smelled like a sewer”. It had underestimated the emotional trauma and ignored the psychological suffering of the authors owing to the refusal, while other women from the majority ethnic background had received gynaecological services immediately. It had also disregarded the statements of the control subjects who had experienced different, quite opposite, treatment to that reserved for the authors. The court had also disregarded the poor financial situation of the authors, who needed access to gynaecological services close to their area of residence in order to reduce travel expenses. The court’s decision lacked motives and an analysis of the statements of the victims and the situation that they were facing; its reasoning was based solely on the defendant’s statements.

State party’s observations on admissibility and the merits

4.1The State party provided its observations in a note verbale dated 22 August 2019. It submits that, in 2019, the Ministry of Labour and Social Policy, in cooperation with civil society organizations and the national coordinating body on non-discrimination, following the implementation of the laws, secondary legislation and strategic documents on non-discrimination, started providing basic training on non-discrimination and against hate speech. The training includes a presentation on the provisions of the new Law on Prevention of and Protection against Discrimination of 2019 and is designed for all national institutions and municipalities. In 2019, the recipients of the training included employees of the inspectorates, the State Labour Inspectorate and the Employment Agency, judges, lawyers, trade unions and all social work centres. Funds have been secured to continue the training activities until 2021. In 2020, the training programme is also to be delivered to health-care professionals.

4.2The State party refers to the Constitution, submitting that “every citizen shall be guaranteed the right to health care” and “citizens shall have the right and duty to protect and promote their own health and the health of others”. Furthermore, the State party provides an overview of the legal framework on prevention of and protection against discrimination and the laws related to health protection and patients’ rights, notably referring to the Law on Health Care and the Law on the Protection of Patients’ Rights. It maintains that patients are entitled to exercise the rights granted by those laws or by a ratified international treaty without discrimination on the grounds of sex, race, skin colour, language, religion, political or any other opinion, national origin or social background, affiliation with an ethnic minority, material status, sexual orientation or any other status.

4.3The State party affirms that discrimination is prohibited in the provision of health care and that the personality and dignity of every patient must be respected. The patient has the right to care, treatment and rehabilitation in accordance with his or her individual needs and capabilities and the right to improve his or her health, with a view to achieving the highest possible personal level of health. The patient has the right to personal security during his or her stay at a health institution. In order to promote patients’ rights, the municipalities and the city of Skopje have established a standing commission on the promotion of patients’ rights pursuant to the provisions governing local self-government. Furthermore, the State party refers also to the provisions of the Law on Health Insurance.

4.4The State party submits that, in addition to the legal regulations, for the purpose of improving the availability and quality of health care for vulnerable categories of citizens, the Ministry of Health establishes specific programmes. It envisages measures and activities aimed at raising the awareness of the population about healthy lifestyles and proper health behaviour in the preconception, antenatal, postnatal and breastfeeding periods, and at improving the quality and equality of access to health-care services for mothers and children from vulnerable categories, such as Roma women and women in rural areas.

4.5As part of the implementation of the Decade of Roma Inclusion 2005–2015 and the Strategy for the Roma, in 2012, the Ministry of Health started a project entitled “Roma health mediators”, in cooperation with the civil society sector. The project is aimed at overcoming barriers in communication between the Roma population and health-care professionals. Through field visits, persons or families without access to health care are identified and informed about access to health care and health insurance, and about the availability of free health-care services envisaged by the Ministry to improve the health status of the Roma population. The health mediators are based in the relevant municipality health-care centres so that they are easily accessible to the population and to the health-care professionals. The Ministry undertakes such activities to prevent any type of discrimination on the grounds of race or any other grounds and condemns such discrimination.

Authors’ comments on the State party’s observations on admissibility and the merits

5.1The authors provided their comments on 9 November 2019. They note that the State party does not object to the admissibility of the communication or to the facts, the claims of discrimination suffered or the lack of effective protection against such discrimination. Instead, the State party’s reply provides a brief overview of the legal framework on prevention of and protection against discrimination and the laws related to health protection and patients’ rights.

5.2According to the authors, the State party has an obligation to address all aspects of its obligations under the Convention. They recognize that the adoption of the Law on Prevention of and Protection against Discrimination of 2019 is a significant step towards combating discrimination against women. However, they argue that the State party failed to present the manner in which it secures effective implementation of the law in order to eliminate unequal treatment of women, including the most marginalized. Moreover, to date, the parliament has still not elected the members of the commission for prevention and protection against discrimination, which is supposed to be an independent professional body for promoting equality and preventing discrimination and to serve as an effective mechanism for protection against discrimination.

5.3The authors submit that the State party did not describe steps directly aimed at eliminating customary and all other practices that are prejudicial to women and perpetuate the notion of their inferiority and stereotyped roles of women and men, which violates their rights to sexual and reproductive health. Moreover, no significant progress has been made, at the national or local level, in eliminating prejudices towards and stereotypes surrounding Roma people, in particular those affecting Roma women.

5.4Apart from the training of professionals, including judges and lawyers, on the new aspects of the Law on Prevention of and Protection against Discrimination, the State party failed to fulfil its obligation under the Convention to take a variety of steps to ensure that women and men enjoy equal rights under the law and also in practice, thereby ensuring that Roma women do not face barriers in gaining access to gynaecological services.

5.5The authors note that Roma women continue to face barriers to access to gynaecological services in their municipality and the gynaecological facilities near the municipality of Šuto Orizari. Since 2018, there has been a gynaecologist in the municipality; however, that has not improved access to services for Roma women, in particular. The gynaecologist is from Albania and barely speaks Macedonian or the Roma language. Thus, Roma patients experience a language barrier in their access to high-quality health-care services. In addition, the doctor has publicly expressed her religious beliefs that define her pro-life stance as a gynaecologist. Accordingly, she seeks to influence women to change their decision to terminate pregnancy since abortion is against her religious beliefs.

5.6The authors add that, in 2019, the Initiative of Roma Women in the municipality of Šuto Orizari documented more than 60 cases in which women were unlawfully charged for gynaecological services that should have been provided free of charge in accordance with the Law on Health Insurance (e.g., opening of a medical file, ultrasound examinations, blood and urine tests, Pap test, microbiological tests). A total of 22 individual petitions were lodged with the Ombudsperson’s Office alleging the charging of illegal fees by the gynaecologist for her services. In most of the cases, the Ombudsperson referred the petitioners to the State Health and Sanitary Inspectorate. Thus far, none of the cases has been resolved. Illegal charges continue to be a significant barrier for Roma women in gaining access to gynaecological services.

5.7The authors further state that the municipality of Šuto Orizari has a local action plan. However, health-related activities have not yet been implemented under the plan owing to a lack of finances. The municipality has adopted a programme on the implementation of the general measures for protection of the population against contagious diseases for 2019, yet the authors allege that no specific measures have been taken to improve the enjoyment by Roma women of their sexual and reproductive health rights.

5.8As a result of the systemic discrimination against Roma women and the ongoing indifferent attitude of institutions regarding the lack of available, accessible and affordable gynaecological services, the authors have chosen to enrol as patients of the outpatient clinic’s gynaecologist in their municipality of Šuto Orizari. It is the best option for them with regard to physical accessibility as it is near their homes. However, the illegal charges for health-care services that should be provided free of charge to pregnant women represent an additional barrier in their attempts to regularly monitor their sexual and reproductive health and receive health information in a language that they understand.

5.9In the light of such considerations, the authors invite the Committee to conclude that there has been a violation of their rights under articles 1, 2 and 12 of the Convention and to grant them pecuniary damages for the court and attorney’s fees and non-pecuniary damages resulting from the inability to enjoy their rights and the stress, anxiety, fear and humiliation that they have suffered.

Issues and proceedings before the Committee

Consideration of admissibility

6.1In accordance with rule 64 of its rules of procedure, the Committee must decide whether the communication is admissible under the Optional Protocol. Pursuant to rule 72 (4), it is to do so before considering the merits of the communication.

6.2In accordance with article 4 (2) (a) of the Optional Protocol, the Committee is satisfied that the same matter has not been and is not being examined under another procedure of international investigation or settlement.

6.3The Committee recalls that, under article 4 (1) of the Optional Protocol, it is precluded from considering a communication unless it has ascertained that all available domestic remedies have been exhausted or that the application of such remedies is unreasonably prolonged or unlikely to bring effective relief. In that connection, the Committee notes the authors’ contention that they have exhausted all available effective and relevant domestic remedies. While considering that legal condition to be an essential requirement for the admissibility of a communication, it also notes that the State party has not brought any argument to the contrary and has not challenged the admissibility of the communication on any grounds. The Committee therefore considers that, in the particular context of the authors’ case of denied access to health care, the available domestic remedies have been exhausted. Accordingly, in the present case, it is not precluded by the requirements of article 4 (1) of the Optional Protocol from considering the present communication.

6.4Having found no impediment to the admissibility of the communication, the Committee declares the communication admissible and proceeds with its consideration of the merits.

Consideration of the merits

7.1The Committee has considered the present communication in the light of all the information made available to it by the authors and by the State party, as provided for in article 7 (1) of the Optional Protocol.

7.2The Committee notes that the authors claim that they have suffered intersecting discrimination based on both their gender and ethnicity, in violation of article 2 (a), (c) and (e) of the Convention. It takes note of their contention that the State party failed to: (a) ensure the practical realization of the principle of non-discrimination as concerns access to and provision of gynaecological services; (b) ensure through a competent national tribunal the effective protection of the authors against any act of discrimination; and (c) take all appropriate measures to eliminate discrimination against the authors by any person, organization or enterprise. It also notes their assertion that the State party’s failure has a particularly disproportionate and discriminatory effect on Roma women and girls.

7.3The Committee first recalls that discrimination against women based on sex and gender is inextricably linked with other factors that affect women, such as race, ethnicity, religion or belief, health, status, age, class, caste, sexual orientation and gender identity, that discrimination based on sex or gender may affect women belonging to such groups to a different degree or in different ways to men and that States parties must legally recognize and prohibit such intersecting forms of discrimination and their compounded negative impact on the women concerned.

7.4The Committee further notes the authors’ assertion that Roma women systematically face stigma in their access to gynaecological services and that women from the Roma community tend to be disproportionately affected compared with other women who are of reproductive age and in need of gynaecological services. The Committee also notes the authors’ claim that the State party failed to take appropriate positive measures for the elimination of the discriminatory practice and failed to provide any adequate remedy to the authors. In that connection, the Committee recalls its concerns about the financial, cultural and physical barriers to gynaecological services faced by Roma and rural women (CEDAW/C/MKD/CO/4-5, para. 33). It also recalls the obligation of States parties to eliminate multiple forms of discrimination against women who may suffer from discrimination based on, inter alia, race, ethnic or religious identity, including through the use of temporary special measures. It further recalls that, in its concluding observations on the State party’s combined fourth and fifth periodic reports (CEDAW/C/MKD/CO/4-5, para. 19), it recommended that the State party adopt temporary special measures, inter alia, in situations in which women from ethnic minorities were disadvantaged. The Committee observes that the authors were treated differently from other women of reproductive age not belonging to ethnic minority groups who were seeking gynaecological services at the same time. The Committee also observes 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.

7.5The Committee notes the authors’ contention, which remained unrefuted by the State party, that the courts lacked an understanding of the phenomenon of discrimination and of the vulnerability of Roma women in society and, despite the evidence of unequal treatment, failed to establish that the gynaecologist had demonstrated a discriminatory attitude and to provide redress. It also notes the authors’ argument, also unrefuted, that the court lacked an understanding of the shifting of the burden of proof in a prima facie discrimination case to the defendant to establish that discrimination had not occurred.

7.6The Committee considers with appreciation the information provided by the State party concerning the adoption in 2019 of a new legislative framework on the prevention of and protection against discrimination, especially in the health sector, the training programme implemented by the Ministry of Labour and Social Policy and the Ministry of Health and the project on Roma health mediators as part of the implementation of the Decade of Roma Inclusion 2005–2015. However, it observes that the State party’s overview of legislation and measures is of a general nature and does not address the specific situation and grievances of the authors. In the absence of further information on file, the Committee therefore gives due weight to the authors’ detailed allegations. It observes that the State party did not ensure the practical realization of the principle of equality and the effective protection of the authors against any act of discrimination by any person, organization or enterprise, which constituted a breach of the authors’ rights under articles 1 and 2 (a), (c) and (e) of the Convention.

7.7The Committee further notes the authors’ claims that they faced serious obstacles to the enjoyment of their health rights, in breach of article 12 of the Convention. The Committee notes that it remained undisputed that the authors were refused enrolment as patients at the practice of their local gynaecologist and denied a regular gynaecological examination free of charge despite their poor financial situation, while women of reproductive age from the majority community were accepted as patients and examined on the same day. In that connection, the Committee recalls that States parties’ 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. States parties should report on measures taken to eliminate barriers that women face in access to health-care services and to ensure that women have timely and affordable access to such services, in particular those related to reproductive health.

7.8The Committee observes that the State party did not contest those facts and failed to provide any specific information to the effect that the authors were offered access to any sexual and reproductive health-care services and that appropriate measures were taken to secure the authors’ access, in particular, to regular free of charge gynaecological services near their homes. In the absence of further information on file, the Committee concludes that the authors’ rights under article 12 of the Convention were also violated.

8.In accordance with article 7 (3) of the Optional Protocol, the Committee is of the view that the facts before it reveal a violation of the rights of the authors under articles 1, 2 (a), (c) and (e) and 12 of the Convention. The Committee refers to its general recommendations No. 24 and No. 28 (2010) on the core obligations of States parties under article 2 of the Convention.

9.In the light of the above conclusions, the Committee makes the following recommendations to the State party:

(a)With regard to the authors:

(i)Provide them with appropriate reparation, including through the recognition of the material and moral damages that they suffered as a consequence of their inadequate access to sexual and reproductive health care, in particular to regular gynaecological services;

(ii)Provide them with access to affordable health-care services, in particular sexual and reproductive health care;

(b)In general:

(i)Adopt and implement specific and effective policies, programmes and targeted measures, in accordance with article 4 (1) of the Convention, including temporary special measures, taking into consideration general recommendation No. 25 (2004) on temporary special measures, to combat intersecting forms of discrimination and stereotypes in relation to Roma women and girls, including in health care, ensuring that language is not a barrier to gaining access to health services;

(ii)Effectively implement new legislation relating to health, guarantee and ensure access to affordable and high-quality health care and sexual and reproductive health-care services without language barriers, in particular effective access to regular gynaecological examinations free of charge, and prevent and eliminate the practice of charging women and girls, in particular Roma women and girls, unlawful fees for public health-care services; take administrative measures to eliminate the unequal distribution of gynaecological services in the territory of the State party and allocate financial resources to support the equitable regional distribution of gynaecological facilities, especially in rural areas and areas in which Roma women and girls live;

(iii)Increase the awareness of judges of non-discrimination, including the procedural aspect of shifting the burden of proof during judicial proceedings; and ensure that women have recourse to effective, affordable, accessible and timely judicial remedies, to be addressed in a fair hearing by a competent and independent court or tribunal, where appropriate, or by other public institutions, taking into consideration the Committee’s general recommendation No. 33 (2015) on women’s access to justice;

(iv)Provide training for health-care providers on discrimination against Roma women and girls, their specific needs and the problems that they face;

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

(vi)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 their rights;

(vii)Reinforce the application of temporary special measures, in line with article 4 (1) of the Convention and taking into consideration 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;

(viii)Develop specific poverty alleviation and social inclusion programmes, in particular for Roma women and girls;

(ix)Allocate adequate funds and prioritize regional cooperation within Europe and development programmes to combat all forms of discrimination, including intersecting discrimination, and to promote inclusiveness.

10.In accordance with article 7 (4) of the Optional Protocol, the State party shall give due consideration to the views of the Committee, together with its recommendations, and submit to the Committee, within six months, a written response, including information on any action taken in the light of those views and recommendations. The State party is requested to have the Committee’s views and recommendations translated into the State party’s language, to publish them and to have them widely disseminated, in order to reach all sectors of society.