CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 24 octobre 2023

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margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }   SECOND SECTION CASE OF MEMEDOVA AND OTHERS v. NORTH MACEDONIA (Applications nos. 42429/16 and 2 others)   JUDGMENT   Art 34 • Victim • Finding of a violation of the right to liberty of movement without monetary compensation for non-pecuniary damage, in case circumstances, insufficient redress Art 2 P4 • Freedom to leave country • Refusal of permission to persons of Roma ethnicity to leave Respondent State’s territory • Jurisprudential inconsistency as to whether Schengen Borders Code part of the domestic legal order and ambiguity as to its applicability in the applicants’ case • No regard to applicants’ individual circumstances • Interference not in accordance with domestic law and not justified Art 14 (+ Art 2 P4) • Discrimination of applicants based on their Roma origin • Way in which relevant domestic border control instructions applied in practice by border officers resulting in disproportionate number of Roma being prevented from travelling abroad • Convincing prima facie case of indirect discrimination • Lack of objective and reasonable justification   STRASBOURG 24 October 2023   FINAL   24/01/2024   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Memedova and Others v. North Macedonia, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Arnfinn Bårdsen , President ,   Jovan Ilievski,   Pauliine Koskelo,   Saadet Yüksel,   Lorraine Schembri Orland,   Frédéric Krenc,   Davor Derenčinović , judges , and Hasan Bakırcı, Section Registrar, Having regard to: the applications (nos.   42429/16, 8934/18 and 9886/18) against the Republic of North Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five applicants, all Macedonians/citizens of the Republic of North Macedonia, listed in the appended table (“the applicants”), on the various dates indicated therein; the decision to give notice to the Government of the Republic of North Macedonia (“the Government”) of the complaints under Article 2 of Protocol No. 4 taken alone and in conjunction with Article 14, and Article 1 of Protocol No. 12 to the Convention, and to declare the remainder of the applications inadmissible; the parties’ observations; Having deliberated in private on 3 October 2023, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The present case concerns border incidents in which the applicants, all of Roma ethnicity, were not allowed to leave the territory of the respondent State. They complained under Article 2 of Protocol No. 4, taken alone and in conjunction with Article   14, and under Article 1 of Protocol No.   12 to the Convention, that they had been singled out by the border police officers owing to their Roma ethnicity. THE FACTS 2.     The applicants’ details are set out in the appendix. 3.     The Government were represented by their acting Agent, Ms   D.   Djonova. Background to the cases 4.     From 19 December 2009 entry by the respondent State’s citizens into the Schengen Area was simplified for those holding a biometric passport issued by the respondent State. 5 .     On 28 April 2011 the Ministry of the Interior (“the MOI”) sent an alert to the regional centres for border affairs, the Sector for Border Affairs and Migration and other relevant bodies within the Ministry, indicating that an increasing number of nationals were applying for asylum in the European Union and the Schengen member States and were thus abusing the existing visa-free regime. One of the measures proposed by the MOI was strengthening border controls for organised groups of citizens leaving the country who were potential asylum-seekers, under section 15 of the Border Control Act ( Закон за гранична контрола , Official Gazette nos. 171/2010 and 41/2014), which provides for minimum border checks to verify the identity and the validity of documents of those crossing the State border. In particular, police officers are entitled to check the appropriate records and electronic databases in order to establish whether such persons pose a threat to national security, public policy, international relations or public health. Circumstances of the case and civil proceedings inSTITUted by the applicants The first applicant (Ms Memedova) 6 .     On 29 November 2014 the first applicant was prevented from leaving the country via Skopje Airport. After her passport had been checked, it was returned to her with a stamp that had been crossed with two parallel lines, which meant that the entry or exit stamp had been cancelled (as specified in the Rules on the form and content of the entry and exit stamp of the Republic of North Macedonia and the procedure for stamping travel documents ( Правилник за формата и содржината на штембилот за влез и излез во Република Македонија и начинот и постапката на неговото втиснување , Official Gazette, no.46/2012)). 7 .     On the same day an official note of the MOI stated that, in line with section 15(4) of the Border Control Act (see paragraph 5 above), the first applicant had not been allowed to leave the country because she had posed a threat to public policy and to the State’s relations with the member States of the European Union (EU), and because she had not provided evidence of sufficient financial means for her planned length of stay, nor had she presented a return ticket or a formal letter of invitation or sponsorship. 8 .     On 30 March 2015 the first applicant brought a civil action against the MOI under the Discrimination Act arguing that her rights to equal treatment and to leave the country had been violated. She claimed that the border officer had insulted her by saying that she, like other Roma persons, would seek asylum. She added that she had tried to explain to the officer that she was retired and was travelling in order to visit her children and that she had tried to present documents showing that her son was resident in Germany. In the course of the proceedings, the first applicant’s other son gave oral evidence confirming that his brother was resident in Germany. The first applicant also relied on the practice of the domestic courts (judgment no. GZh-183/15 – see paragraph 30 below), a decision of the Constitutional Court (see paragraph 28 below) and the 2013 annual report of the Ombudsman (see paragraph 32 below). She further claimed that she had previously travelled to Germany without being asked to present a letter of sponsorship. Her passport had been stamped by the German authorities during her previous stay, which attested to that fact and could not be interpreted, as the border officers had apparently done, as evidence of a previous attempt to seek asylum in Germany. Lastly, she noted that on the relevant date some other Roma persons had been allowed to cross the border. 9 .     On 23 June 2015 the Vinica Court of First Instance dismissed the first applicant’s claims and held that she had not been discriminated against. She had not been allowed to travel because of her failure to justify her purpose and reason for travel with credible documents, as required by law. The court further referred to her statement that other passengers of Roma origin had been allowed to leave the country on the same day and found that the checking of her previous German entry stamp (see paragraph 8 above) had been conducted as part of the border checks in order to establish whether she fulfilled the conditions for crossing the border. The court concluded that the available evidence did not prove that other persons in comparable circumstances had been allowed to leave the country. 10.     In her appeal against the first-instance decision the first applicant argued that, among other things, there had been a violation of Article 2 of Protocol No. 4. She also argued that she had never received an official decision stating the reasons for her being prevented from crossing the border. 11 .     On 18 January 2016 the Shtip Court of Appeal upheld the lower court’s judgment and found that her rights to equal treatment and to leave the State had not been violated. It also found that in order to leave the territory of the respondent State and enter a member State of the Schengen Borders Code, it was not enough to have a valid biometric passport and that other conditions also had to be met, such as providing a letter of sponsorship and demonstrating sufficient financial means, so that the person could prove his or her purpose and reasons for travel to and stay in the EU member States. In that connection the court referred to Article 5 of Regulation (EC) No.   562/2006 of the European Parliament and of the Council of 15 March 2006 (Schengen Borders Code; see paragraph 27 below). The border check had been performed in order to prevent and detect illegal immigration and other threats to public and legal order, national security and international relations.   The second applicant (Ms Kurtishova) 12 .     On 19 June 2014 the second applicant was prevented from leaving the respondent State via Skopje Airport, on the grounds that she had not presented a credible letter of sponsorship and did not have sufficient funds. 13 .     On 18 July 2014 she brought a civil action under the Discrimination Act arguing, among other things, that her right to liberty of movement had been violated. In support of her claims, she referred to reports of the Council of Europe Commissioner for Human Rights (see paragraphs 38-39 below) and the European Roma Rights Centre, which reported that between 2011 and April 2014 it had documented 91 cases of Roma individuals who were prevented from leaving the country and had become aware of another 33 such cases. She also submitted the letter of sponsorship she claimed she had presented to the border officer, which indicated the German municipality where she had intended to stay and in which her host (her brother-in-law) confirmed that he would cover the costs of her stay. She further submitted a certified copy of her permanent employment contract with a company in the respondent State, which she also claimed to have presented to the border officer. The second applicant also referred to a Constitutional Court decision (see paragraph 28 below) and a statement by the Minister of the Interior given on 8 February 2013 during an official visit to Sweden that in order to prevent abuse of the recent visa liberalisation, almost 8,000 citizens had been stopped from crossing the border. During the main hearing the second applicant stated that she had travelled abroad before but had not been asked to present letters of sponsorship. 14.     At a hearing in the Skopje Court of First Instance, an MOI employee who had witnessed the events of 19 June 2014 at the border crossing stated that he had refused to allow the second applicant to cross the border in accordance with the Schengen Borders Code and section   15(4) of the Border Control Act (see paragraph 5 above) because she had not had sufficient financial means, the letter of sponsorship had been illegible, and she had not presented a hotel reservation or invitation. He also stated, without presenting any supporting documents, that on that day he had not allowed anyone to cross the border unless they fulfilled the conditions required of the second applicant. 15 .     Following a remittal, on 29 March 2017 the Skopje Court of First Instance dismissed the second applicant’s claims, finding that she had not met the requirements set out in the Schengen Borders Code for entering an EU member State (see paragraph 27 below) and that she had not been allowed to leave the country because she had not provided the original of the purported letter of sponsorship and it did not confirm that she had sufficient financial means. The court held that the applicability of the Schengen Borders Code in the respondent State derived from the Stabilisation and Association Agreement (Law on Ratification of the Stabilisation and Association Agreement between the European Communities and their Member States and the former Yugoslav Republic of Macedonia ( Закон за ратификација на Спогодбата за стабилизација и асоцијација ), Official Gazette no.   28/2001) under which the parties had agreed to cooperate in fields visas, border control, asylum and migration and the respondent State had undertaken to readmit any of its nationals illegally present on the territory of a member State at the request of the State in question and without further formalities once such persons had been positively identified (ibid., section 76). In addition, the court held that the second applicant had not been discriminated against as she had not identified a person who had been allowed to leave the country at around the same time and under the same conditions as in her case, nor had she noticed what documents had been required of other passengers. Lastly, the court held that the decision of the Constitutional Court (see paragraph 28 below) declaring certain provisions of the Passport Act invalid was inapplicable to the second applicant’s case. 16.     On 17 July 2017 the Skopje Court of Appeal upheld the findings of the first-instance court. The third, fourth and fifth applicants (Mr Abazov, Ms Abazova and Mr   Memedovski) 17.     On 14 March 2014 the third and fourth applicants, who are spouses, arrived together with the fifth applicant at the Tabanovce border crossing into Serbia in two vans decorated according to Roma culture, headed for a traditional wedding ceremony in Kosovo. [1] There were two drivers, one of whom was the fifth applicant, making six people in each van, among them the third and fourth applicants. The third and fourth applicants were not allowed to cross the border after being questioned by the border officers; their passports were stamped and the stamp was crossed with two parallel lines (see paragraph 6 above). As to the fifth applicant, there were contradictory statements as to whether he was actually prevented from crossing the border or whether he chose not to do so voluntarily after the passengers in his van were denied exit from the country (see paragraph 22 below). 18 .     On the same date, in an official note of the MOI entitled “Denial of exit of MKD nationals”, it was stated that in accordance with section 15(4) of the Border Control Act (see paragraph 5 above), all the people travelling in the two vans had been refused permission to leave the country because they had posed a threat to public policy and the relations of the State with an EU member State, and because they had not had sufficient financial means and letters of sponsorship to cover their planned stay abroad. The fifth applicant was also listed in the note, with a remark that there had been an alert for him in the Border Control Sector system. The relevant parts of the note read as follows: “ ... [I]t was established that the vehicles, their drivers, and some of the passengers ... were named in alert 229 of 4 March 2014 issued by the Border Control Sector in conjunction with alert 68 of 7 March 2014, which is why they were questioned [by the border police inspector] ...; they argued that the reason for their journey was to attend a wedding ...; however, because they did not have sufficient financial means or a written letter of sponsorship covering their stay abroad, they were not allowed to leave [the country].” 19 .     On 1 July 2015 the three applicants brought a civil action under the Discrimination Act against the MOI, complaining of a violation of their rights to equal treatment and liberty of movement. They argued among other things that after being prevented from leaving the country, they had started to protest together with the other passengers. They claimed that the police officers had acted rudely towards them and made offensive comments related to their ethnicity. They enclosed an expert report supporting their claim for compensation for the non-pecuniary damage caused by the violation of their rights to both equality and freedom of movement which they claimed to have suffered as a result of the events of 14 March 2014 (see paragraph   17 above). 20 .     In support of their claim, the applicants referred to the report of the Ombudsman for 2014 (see paragraph 33 below) and a notification of 25   February 2016 addressed to the applicants’ representative in the domestic proceedings, in which the Ombudsman stated that in 2013 the number of complaints by Roma persons who claimed to have been victims of ethnic discrimination at the borders had rapidly increased. The Ombudsman further stated that he had found violations in several of these cases, about which he had informed the MOI and had made recommendations, but he had not received a proper reply and, in his view, the situation at the border remained unchanged. The Ombudsman further noted in that letter that because of the Government’s inactivity in resolving the situation at the border, the negative discriminatory practice had been noted in his Annual Report for 2014 and in a separate report submitted to the United Nations Committee for Protection of Human Rights in respect of the implementation of the International Convention on the Elimination of All Forms of Racial Discrimination (see paragraph 33 below). 21 .     The applicants also relied on reports of the Council of Europe Commissioner for Human Rights (see paragraphs 38-39 below) and Frontex, statistics published by the European Roma Rights Centre and the US State Department, and a statement by the MOI regarding the number of citizens who had been stopped from crossing the border (see paragraph 13 above). Moreover, the applicants referred to a presentation given by the Assistant Minister of the MOI in May 2014 to a meeting of the Ad hoc Committee of Experts on Roma Issues in Strasbourg, in which the Assistant Minister had stated that the profile of people who had been prevented from leaving the country corresponded to the profile of those citizens who had been forcibly returned from the EU member States, indicating that Roma persons made up the greatest proportion by ethnicity and that the people who had been forcibly returned mostly came from municipalities with majority Roma populations. The applicants further referred to a decision of the Constitutional Court (see paragraph 28 below) and several other domestic court judgments (see paragraphs 30 and 31 below). 22 .     The fifth applicant argued that he had been refused permission to cross the border together with the passengers, and that, as was the case with the others, his passport had been stamped by the domestic authorities and then crossed with two lines, but that stamp had later been covered up by another one that had been put in his passport by officials at the Bulgarian border. 23 .     In its response to the civil action, the MOI contested the fifth applicant’s statement (see preceding paragraph) and argued that he had been allowed to cross the border but had chosen not to, as he had been driving one of the vans carrying passengers who had not been allowed to cross the border. An inspector responsible for border policing who was questioned during the main hearing submitted that, after questioning the third, fourth and fifth applicants on 14 March 2014, he had informed the border officers that there was no suspicion that the applicants might abuse the visa-free regime. 24 .     On 9 March 2017 the Skopje First-Instance Court partly allowed the third and fourth applicants’ claim and found a violation of their right to liberty of movement but dismissed their discrimination claim and their claim in respect of non-pecuniary damage. The court relied on the border police inspector’s statement (see preceding paragraph) and further held that the respondent State was not legally bound by the Schengen Borders Code, and that therefore it had not been necessary to ask the third and fourth applicants to provide documents concerning their stay and the purpose of their travel. However, on the basis of the witness statements of the MOI employees, the court was satisfied that the police had treated people of different ethnicity equally and, accordingly, had not discriminated against the applicants. There had been no internal alert or guidelines requiring the police officers to pay specific attention to Roma people. The court emphasised that although most of the witnesses were not entirely familiar with the applicable constitutional provisions, they had acted in accordance with the Border Control Act and their supervisors’ directions. It also held that the applicants themselves had not provided any evidence to show that the refusal of permission for them to leave the country had been based on their Roma origin and, therefore, it found their statements contradictory. It further found that the third, fourth and fifth applicants had not been insulted on the grounds of their ethnicity by the border officers. Any insulting words which might have been uttered by the border officers after the applicants’ protests were not relevant because by then the applicants had already been stopped from crossing the border, and in any case, there was no evidence supporting those claims. In respect of their claim for compensation for non-pecuniary damage, on the basis of the expert report submitted by the applicants (see paragraph 19 above), the court found that it related only to their discrimination claim, which it had dismissed. 25 .     The court dismissed the fifth applicant’s claims in their entirety and held that he had not been prevented from crossing the border but had voluntarily turned back together with the other passengers as he had been the one who had been driving. That finding was supported by the arguments made by the MOI in its response to the civil action (see paragraph 23 above). The finding had been further supported by an inspection of the applicant’s passport, in which there was no stamp with two crossed lines from the date in question. The stamp with two crossed lines that the fifth applicant had in his passport was dated 20 March 2014 and related to a border crossing from Bulgaria. The courts assessed the fifth applicant’s oral statements but found them illogical, unconvincing and divergent from the written evidence. 26.     On 5 July 2017 the Skopje Court of Appeal upheld the findings of the first-instance court. RELEVANT LEGAL FRAMEWORK AND PRACTICE European UNION LAW Regulation (EC) No. 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) 27 .     Article 5 § 1 of Regulation (EC) No. 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), as in force at the material time, provided that for stays of up to three months in a six-month period, third-country nationals should, among other things, justify the purpose and conditions of the intended stay and show that they had sufficient means of subsistence both for the duration of the intended stay and for the return to their country of origin or transit to a third country into which they were certain to be admitted, or were in a position to acquire such means lawfully. Moreover, they should not be considered to be a threat to public policy, internal security, public health or the international relations of any of the member States, in particular where no alert had been issued in the member States’ national databases for the purposes of refusing entry on the same grounds. Paragraph 3 of the same Article provided that the means of subsistence should be assessed in accordance with the duration and the purpose of the stay and by reference to average prices in the member State concerned for board and lodging in budget accommodation, multiplied by the number of days of the stay. Declarations of sponsorship, where such declarations were provided for by national law, and letters of guarantee from hosts, as defined by national law, where the third-country national was staying with a host, might also constitute evidence of sufficient means of subsistence. Relevant domestic practice Constitutional Court 28 .     In its decision U.br.189/2012 dated 25 June 2014, the Constitutional Court decided to declare invalid certain provisions of the Passports Act by which a request for the issuing of a passport or a visa would be rejected if the person had been forcibly returned or expelled from another country because he or she had infringed that country’s rules for entry and stay. The Constitutional Court held that for a country to restrict a person that had a valid passport from leaving his or her own country, there had to be serious and exceptional circumstances such as those specified by Article 27 of the Constitution, namely the national security, the prevention of crime and the protection of health. The protection of the State’s reputation and the enforcement of another country’s entry and stay regime could not be considered grounds for limiting a person’s right to leave his or her own country. Citing Stamose v. Bulgaria (no.   29713/05, ECHR 2012), the court held that the automatic imposition of a measure restricting a person’s right to leave his or her own country because of a previous infringement of another country’s entry and stay regime would be disproportionate and not in accordance with the principle of the rule of law. 29.     In its decisions U.br. 99/2013 dated 5 February 2014 and U.br.   108/2013 dated 18 February 2015, the Constitutional Court dismissed requests for protection of the rights and freedoms of several persons who claimed that they had not been allowed to cross the State border owing to their Roma origin. The court held that the claimants had not provided sufficient evidence in support of their discrimination claims, meaning that there was no evidence that the border police officers’ actions had related to the applicants’ ethnic origin rather than merely enforcement of the law, and therefore it was not able to examine the merits of the cases. Courts of general jurisdiction 30 .     In two final judgments nos. GZh-183/15 and GZh-518/15 , dated 9   March and 15 May 2015 respectively, the Shtip Court of Appeal upheld first ‑ instance decisions finding a violation of the right to equal treatment of Roma persons who had not been allowed to cross the border owing to their ethnic origin. The court held in both cases that the burden of proving that there had been no discrimination had shifted onto the defendant (meaning the MOI), but the latter had not provided any evidence to show that the plaintiffs had not had sufficient financial means or that there had been any other legitimate reason for not allowing them to cross the border. 31 .     The Skopje Court of Appeal, in judgments no. GZh-5169/14 of 23   September 2015 and GZh-3162/18 of 5 July 2018, upheld first-instance judgments finding a violation of the right to equal treatment of Roma persons who had not been allowed to cross the border owing to their ethnic origin. In the first case, the court held that the plaintiff could not have caused the border officers to have any reasonable doubts that might have justified their not allowing him to cross the border. He had sufficient financial means, a letter of sponsorship and a wedding invitation. Most importantly, an MOI employee questioned as a witness during those proceedings had stated that he had been directed to pay particular attention to the Roma population. The victims in the second case had been travelling together with the third, fourth and fifth applicants in the present case. The court found that the plaintiffs who had valid passports (no consideration seems to have been given to whether they had a letter of invitation and sufficient funds) met the criteria for leaving the country, and if they had been potential asylum-seekers, it would have been for the country they were entering to assess any such claims. Furthermore, the court stated that the Schengen Borders Code was not part of domestic law and was not legally binding on the respondent State. The court also held that the MOI had not indicated any legal provisions which regulated the kind of documents a person was required to present at the border when leaving the country. relevant domestic documents The respondent State’s Ombudsman 32 .     The relevant parts of the 2013 Annual Report read as follows: “... These ethnicity-based discrimination claims include specific complaints submitted by Roma citizens who were not allowed to cross the State border, in relation to which the MOI did not accept the Ombudsman’s recommendations. While investigating these cases, the Ombudsman requested information from relevant bodies within the border police, pointing out that discrimination was prohibited ... and that restrictions on liberty of movement were also prohibited ... the Ombudsman delivered a Note to the Minister of Internal Affairs and the Government ... pointing out the obligation to implement domestic and international standards in respect of guaranteeing the liberty of movement and the prohibition of discrimination.” 33 .     The relevant parts of the Ombudsman’s 2014 Annual Report read as follows: “... In respect of ethnicity-based discrimination, it should be emphasised that this year there were more complaints from citizens from the Roma and Albanian communities who sought protection from the Ombudsman after being turned back at the State border. Those citizens consider that the prohibition on their crossing the border or their being turned back for trying to travel on an ID card ( лична карта ) was not justified and that they were being turned back only because of their ethnic origin. ... The MOI did not confirm that in these cases there had been an unjustified turning back of citizens, but it also did not convince the Ombudsman that this behaviour had not been discriminatory. On the contrary, the Deputy Ombudsman [who is of Roma ethnic origin, as indicated in a Periodic (Alternative) Information note submitted in 2015 by the Ombudsman to the United Nations Committee on the Elimination of Racial Discrimination] faced the same problem while on a business trip, when she was questioned about the purpose of her trip by passport control officers at ... Skopje Airport, ..., which was not the case with her associate, who was allowed to leave the [country] freely. This not only confirmed the Ombudsman’s position that the behaviour shown towards citizens from the Roma and Albanian communities and the restriction of their right to liberty of movement has discriminatory elements, but it also confirmed that the MOI restricts citizens’ right to liberty of movement because of their Roma and Albanian ethnic origin, that is, discriminates against them.” 34 .     The relevant parts of the Ombudsman’s 2015 Annual Report state: “... [I]n the cases in which citizens complained of being discriminated against on the basis of their ethnic origin, having their right to liberty of movement restricted and being turned back at the State border, the MOI did not accept any of the Ombudsman’s recommendations, although it was established beyond dispute that there had been a violation of the right to liberty of movement of Roma citizens.” relevant international documents Council of Europe documents European Commission against Racism and Intolerance (ECRI) (a)    General Policy Recommendation No. 11 on combating racism and racial discrimination in policing on 29 June 2007 (CRI(2007)39) 35.     This Recommendation defines racial profiling as follows: “1. ... For the purposes of this Recommendation, racial profiling shall mean: The use by the police, with no objective and reasonable justification, of grounds such as race, colour, language, religion, nationality or national or ethnic origin in control, surveillance or investigation activities;” 36.     The Explanatory Memorandum to the Recommendation, regarding paragraph 1 of the Recommendation, reads, in so far as relevant: “34. iii) ... Research has shown that racial profiling has considerably negative effects. Racial profiling generates a feeling of humiliation and injustice among certain groups of persons and results in their stigmatisation and alienation as well as in the deterioration of relations between these groups and the police, due to loss of trust in the latter ...” (b)    Report on “The Former Yugoslav Republic of Macedonia” (fifth monitoring cycle) adopted on 18 March 2016 37 .     The relevant parts of the report state: “83. ... During a meeting with the ECRI delegation, it became evident that, in spite of training received, the border police did not seem to be aware of the discriminatory impact of racial profiling and did not have any intention of stopping its use. 84. ECRI recommends that the authorities ensure that the country’s border police force receives adequate training to be able to carry out its duties under the visa-liberalisation regime with the European Union without applying racial profiling.” Council of Europe Commissioner for Human Rights (a)    Report by Nils Muiznieks, Council of Europe Commissioner for Human Rights, following his visit to the former Yugoslav Republic of Macedonia from 26 to 29 November 2012, published on 9 April 2013 38.     The relevant parts of the report state: “99. There are indications that passports are regularly confiscated from those persons who are forcibly returned to ‘the former Yugoslav Republic of Macedonia’, and that Roma make up the majority of persons who have been prevented from leaving the country and had their travel documents confiscated. Several NGOs have collected information to this effect. It has also been reported that the practice of the border authorities is to stamp the passport of those persons who are prevented from leaving the country. ... 101. The Commissioner is fully cognizant of the necessity for the authorities to implement binding rules and policies in the context of the country’s EU accession process. Moreover, states have a legitimate authority to control their borders and regulate migratory movements. However, it is of serious concern to him that these measures are being applied through profiling at borders. Even though the authorities have argued that these 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 EU countries ...” 39 .     The Commissioner concluded as follows: “106. The Commissioner considers that the measures adopted by the authorities of ‘the former Yugoslav Republic of Macedonia’ in response to EU demands for management of migratory outflows interfere with the freedom to leave a country, including one’s own, guaranteed under Article 2 of Protocol No. 4 to the ECHR ... Roma are clearly disproportionately affected by the exit control measures and the confiscation of travel documents, which effectively amount to travel bans.” (b)    The right to leave a country, Issue Paper by the Council of Europe Commissioner for Human Rights, October 2013 40.     The relevant parts of the paper (pp. 6-7, 48) state: “... One of the most worrying aspects of recent interferences in Europe with the right to leave is evidence that such measures are taken against specific ethnic groups, in particular the Roma. ... The recent years’ rise in asylum applicants from the Western Balkans in certain EU states has led to the intensification of legal and other measures by Western Balkan governments aimed at managing and stemming migration flows to, including seeking asylum in, western Europe. Although the migrants’ numbers are not alarming, seen through the overall EU migration figures, the measures taken by certain Western Balkan states raise serious issues of compatibility with human rights standards, including the right to seek and enjoy asylum. They are also inconsistent with the principle of non-discrimination given that the social group primarily targeted and affected by these measures is, in practice, the Roma, who continue to suffer in the Western Balkans from institutionalised discrimination and social exclusion. ... What appears to be happening in the Western Balkans is that as EU member states increase pressure on these states to the effect that if the numbers of their nationals applying for asylum in the EU does not decrease, then all nationals of the state will be subjected to a mandatory visa requirement (again), the authorities of these states are seeking to restrict the departure of individuals who they consider at risk of applying for asylum, that is, the Roma. The Council of Europe Commissioner for Human Rights in his report following his visit to ‘the former Yugoslav Republic of Macedonia’ in November 2012 was advised by the Minister of Interior that between December 2009 until the end of November 2012 about 7   000 citizens of this state had not been allowed to leave the country.” Advisory Committee on the Framework Convention for the Protection of National Minorities 41 .     The relevant parts of the Fourth Opinion on “the former Yugoslav Republic of Macedonia”, issued on 24 February 2016, read as follows: “... 27. Moreover, there are documented incidents of ethnic profiling at external borders directed primarily at persons belonging to the Roma minority. Repeated independent surveys point to an established practice of not allowing Roma to exit the country, despite having valid travel documents. The Ministry of the Interior confirmed the practice to the Advisory Committee as a procedure that, in an apparent effort to comply with the EU visa-liberalisation agreement, is based on ‘risk-analysis’ and the established profile of so-called ‘fake asylum-seekers’. This practice reportedly continues despite an increasing number of court decisions that have condemned it and despite the Ministry of the Interior having been ordered to pay compensation to affected individuals. According to officials, the court decisions were prompted by the failure of individual police officers, who have since been reprimanded, rather than the result of a systematic practice. ... 30. Practices of ethnic profiling and other means of ethnically based discrimination must further be discontinued immediately and relevant court decisions implemented without delay.” United Nations documents Human Rights Committee (HRC) 42 .     The relevant parts of the concluding observations of the HRC on the third periodic report of the former Yugoslav Republic of Macedonia on the implementation of the International Covenant on Civil and Political Rights, issued on 17 August 2015, read as follows: “16. The Committee is concerned about the fact that between 2011 and the end of 2014, thousands of State party nationals were denied exit from the territory of the State party and about allegations of ethnic profiling, particularly of Roma, limiting freedom of movement across the State party’s borders (art. 12). The State party should take measures to ensure that the right to liberty of movement in the State party is fully respected, in compliance with article 12 of the Covenant.” Committee on the Elimination of Racial Discrimination (CERD) 43 .     The relevant parts of the concluding observations by the CERD on the combined eighth to tenth periodic reports of the former Yugoslav Republic of Macedonia on the implementation of the International Convention on the Elimination of All For