General legal framework

• Author: Maja Kostić-Mandić
• Pages: 15-16

15

1 GENERAL LEGAL FRAMEWORK

Constitutional provisions on protection against discrimination and the promotion

of equality

The Constitution contains a general prohibition in Article 8 of both direct and indirect

discrimination ‘on any grounds’.14 So far the Constitutional Court has addressed

discrimination issues only in the context of abstract control of legislative complian ce with

the Constitution in relation to social benefits in the childcare system and access to polling

stations for disabled people.15 In addition, Article 7 of the Constitution states that, ‘infliction

or encouragement of hatred or intol erance on any grounds shall be prohibited’. As can be

concluded from this formulation, the constitutional protection from discrimination in

Montenegro is wider than required by the directives, since it includes a potentially limitless

list of grounds. An illustration of what might constitute these grounds can be found in

Article 25 of the Constitution, which provides that:

‘While the exercise of certain human rights and freedoms may be dero gated in time

of war or other public emergency to a necessary extent, the p rohibition of

discrimination cannot be derogated from nor c an derogations be introduced on the

grounds of sex, nationality, race, religion, langu age, ethnic or social origin, political

or other beliefs, financial status or any other personal characteristics.’

Since the concept of discrimination from EU law has not yet been applied in the practice of

the Constitutional Court, this judicial institution analyses the violation of the prin ciple of

non-discrimination/equality before the law, primarily based on principles developed in the

jurisprudence of the European Court of Human Rights (ECtHR). Therefore, on the basis of

the l egal reasoning of the Constitutional Court, the analysis of the existence of

discrimination is subject to a procedure consisting of three interdependent elements

(similar, i.e. comparable situations where there is equal or different treatment, diff erence

in treatment based on the individual’s particular status, less fav ourable treatment due to

the individual’s status or equal treatment in significantly differ ent circumstances).16

The Constitutional Court examined the concept of protected grounds in a review of th e

constitutionality of the law on the payment of foreign currency funds of citizens deposited

with a number of banks operating in the territory of Montenegro. In this case, the

Constitutional Court did n ot accept the fact of residence (domicil e) as a protected ground

which could lead to violation of the principle of equality, that is, non -discrimination.17

The C onstitution explicitly guarantees broad special welfare-based protection f or people

with disabilities (Article 68) and equality between men and women (Article 18). With regard

to the latter, the Constitution also provides fo r the state’s duty to dev elop equal

opportunities policy (also A rticle 18). Other provisions of the Constitution c ontain

guarantees of equality before the law (Article 17) and equal protection of rights and

freedoms (Article 19) and prohibit ‘infliction or encouragement of hatred or intolerance on

any grounds’ (Article 7) and ‘operations of political and other organisations directed

towards [...] instigating national, racial and religious and other hatred and intolerance’

(Article 55).

The Constitution permits positive action by providing that, ‘regulations and introduction of

special measures aimed at creating conditions for the exercise of n ational, gender and

overall equality and protection of people who are in an unequal position on any grounds

shall not be considered discrimination’. Under the Constitution, special measures may only

14 Constitution of Montenegro, Article 8, Official Gazette of Montenegro, No. 1/07.

15 Constitutional Court, decision U-I No. 6/16; Constitutional Court, decision U-I No. 32/14.

16 Constitutional Court, decision of 26 December 2012, U-I No 3/09.

17 Constitutional Court, decision of 22 October 2009, U No. 95/08.