II. Protection from discrimination and system of measures ... - OHCHR

| | |CERD/C/MNE/2-3 |
| |ADVANCE UNEDITED VERSION |Distr.: General |
| | |13 June 2013 |
| | | |
| | |Original: English |


Committee on the Elimination of Racial Discrimination

Reports submitted by States parties under article 9 of the
Convention


Second and third periodic reports of States Parties due in 2011


Montenegro* **


[27 September 2012]


Contents

Paragraphs Page

I. General legal and political framework in relation to
the elimination of discrimination 1-35 3

A. Introduction 1-18 3

B. Asylum 19-23 6

C. Gender equality 24-35 7

II. Protection from discrimination and system of measures for its
suppression 36-85 10

A. Article 2 of the Convention 36-62 10

B. Article 3 of the Convention 63 16

C. Article 4 of the Convention 64-85 16

III. Respect of special rights and freedoms in function of
the elimination of discrimination 86-308 20

Article 5 of the Convention 86-308 20

IV. Legal protection and control of constitutionality and legality
309-314 60

Article 6 of the Convention 309-314 60





I. General legal and political framework in relation to the
elimination of discrimination[1]


A. Introduction

1. In relation to the structural data provided in the Initial Report[2]
should be noted that there are signs of changes in the ethnic structure
what can be confirmed only after the announcement of official data from the
Census conducted in Montenegro in April 2011. It is unrealistic to assess
the extent to which there is a difference from the previous Census held in
2003, but this conclusion arises from the data on the increase in total
population of Montenegro[3]. Likewise, the demographic structure has been
estimated according to the official survey within the framework of creation
of "Database of RAE population in Montenegro"[4], which was conducted by a
Statistical Office of Montenegro (MONSTAT) in 2008. The project was done in
cooperation with Roma non-governmental organisations, the Council of Roma
in Montenegro and other institutions that were in position to provide data
on demographic, educational, ethnic and cultural, economic and other
characteristics of this population.

2. The constitutional framework for the implementation of human rights
stayed in whole unchanged, whereas it should be noted that Montenegro is
the state whose Constitution stipulates the primacy of international law
(concluded, ratified and published international agreements) over the
national legislation, that is, the provisions of these agreements are
applied directly when an issue is regulated differently by the national
legislation (Article 9 of the Constitution). The Constitution also
stipulates that the rights and freedoms shall be exercised on the basis of
the Constitution and ratified international agreements. Article 118 of the
Constitution of Montenegro stipulates that national courts shall rule on
the basis of the Constitution, laws and ratified and published
international agreements.

3. The Law on the Constitutional Court of Montenegro (Article 44)
stipulates that if in a proceeding pending before a national court has been
raised an issue of compatibility of a law with the Constitution and
ratified and published international agreements or an issue of
compatibility of some other regulation with the Constitution and law, the
national court shall stay the proceeding and initiate proceeding for review
of constitutionality or legality of such legal act before the
Constitutional Court. However, bearing in mind the provision of the
Constitution on the direct application of international agreements, this
norm applies only in so-called boundary cases, that is, when the court does
not have enough elements or is not convinced about the scope and content of
the protected right in case of direct application of international law. In
such cases the Constitutional Court of Montenegro shall initiate the
proceeding for assessment of conformity of domestic regulation with the
international agreement.

4. Guaranteed human rights and freedoms may be limited only by the law to
the extent permitted by the Constitution and international legal standards,
in the volume necessary to, in an open and free democratic society, satisfy
the purpose for which the limitation has been allowed. Limitations cannot
be introduced for purposes other than those for which they were prescribed.
During the state of war or emergency may be limited the exercise of certain
rights and freedoms, however only to the extent necessary to achieve the
purpose of limitation. Limitations cannot be imposed based on sex,
nationality, race, religion, language, ethnic or social origin, political
or other opinion, property status or any other personal characteristic.

5. According to Article 25 of the Constitution, cannot be limited the
rights to: life; legal remedy and legal assistance; personal dignity and
respect; fair and public trial and the principle of legality; the
presumption of innocence; right to defence; compensation of damages for
unlawful or arbitrary deprivation of the liberty and ungrounded conviction;
freedom of thought, conscience and religion; marriage. The bans that cannot
be suspended are: provoking or inciting hatred or intolerance;
discrimination; retrial and conviction for the same offense; forced
assimilation. Measures of limitations can be imposed for no longer than
duration of the state of war or emergency.

6. In addition to previous commitments and concluded agreements, in this
reporting period, the State of Montenegro has ratified a number of
international agreements that have direct or indirect effect on the
elimination of discrimination. From the agreements pertaining to the United
Nations should be noted that Montenegro, on 24 September 2009, signed
(still considering the possibility of ratification) the Optional Protocol
to the International Covenant on Economic, Social and Cultural Rights.
Regarding the International Convention on the Protection of the Rights of
All Migrant Workers and Members of Their Families, which has not been
ratified yet, the authorities envisaged the ratification process to finish
during 2012.

7. In addition, the series of agreements under the auspices of the
Council of Europe was concluded and they are concerning the exercise and
protection of fundamental human rights and freedoms with legally binding
effect in domestic legal order, including anti-discriminatory clauses
contained in the texts of these agreements.[5]

8. The European Commission Opinion on Montenegro's application for
membership in the European Union from 9 November 2010 [COM (2010) 670]
emphasizes that "Montenegro's legal and policy framework regulating human
rights and the respect for and protection of minorities is largely in place
and broadly corresponds to European and international standards. The
institutional framework is largely adequate."

9. According to this document, human rights are generally respected,
although there is a need to further strengthen the anti-discrimination
policy regarding the effectiveness, through established anti-discrimination
legal framework.

10. In Montenegro is quite widespread the network of institutional forms
of protection of human rights and freedoms, the basis of which is the
institution of the Protector of Human Rights and Freedoms. In addition to
this, great number of other institutions affecting the degree of
elimination of discrimination in society is engaged in the protection of
human rights and freedoms (such as the Agency for Electronic Media, the
Agency for Personal Data Protection, the Council for Civic Control of the
Work of Police in Montenegro and the like).

11. In relation to the protection of the rights of ethnic minorities in
Montenegro should be noted the establishment of three important
institutional mechanism, that is, the establishment of councils of all
minority communities, the establishment of the Fund for Minorities through
which is performed financing of the projects of importance for the
protection of minority rights, and the establishment of the Centre for
Preservation and Development of Culture of Minorities. These mechanisms are
legal categories and are forming the part of the corpus of minority rights
which is more closely regulated by the Law on Minority Rights and Freedoms.
This framework Law has been partially amended after the decision of the
Constitutional Court of Montenegro which repealed provisions of Articles 23
and 24, which referred to the political representation of minorities on
central and local level (in the Parliament and the assemblies of local self-
governments), in accordance with the principle of affirmative action.

12. Since the Committee's Recommendation No. 10 requires from Montenegro
to harmonize national legislation with the current Constitution (especially
the Law on Minority Rights and Freedoms), it should be noted that the
essence of the Constitutional Court decision refer exactly to the fact that
the substance of the provisions of Articles 23 and 24 of the Law on
Minority Rights and Freedoms was considered an infringement of the right on
free and democratic elections and violation of the concept of equality in
the enjoyment of this right guaranteed by the international law and the
national Constitution. For this reason, this matter is conceived as part of
the electoral legislation and in that framework currently is ongoing the
se