General legal framework

AuthorKostic-Mandic, Maja
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’.15 So far the Constitutional Court has addressed
discrimination issues onl y in the context of ab stract control of legislative compliance with
the Constitution in relation to social benefits in the childcare system and access to polling
stations for disabled people.16 In addition, Article 7 of the Constitution states that,
‘infliction or encourag ement of hatred or intolerance on any grounds shall be prohibited’.
As can be concluded from thi s formulation, the constitutional protection f rom
discrimination in Montenegro is wider than r equired by the directives, since it includes a
potentially limitless list of grounds. An illustration of what might constitu te these grounds
can be found in Article 25 of the Constitution, which p rovides that:
‘While the exercise of certai n human rights and freedoms may be derog ated in time
of war or other public emergency to a necessary extent, the prohibition of
discrimination cannot be derogated from nor c an derogations be introduced on the
grounds of sex, nationality, race, religion, l anguage, ethnic or social ori gin, political
or other beliefs, financial status or any other personal characteristi cs.’
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 principle
of non-discrimination / equality before the law, primaril y based on principles developed in
the jurisprudence of the European Court of Huma n Ri ghts (ECtHR). Therefore, on the
basis of the legal 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 situatio ns where there is equal or different treatment, di fference
in treatment based on the individual’s particular status, less fav ourable treatment due to
the individual’s status or equal treatment in significantly differen t circumstances).17
The Constitutional Court examined the concept of protected grounds in a review of t he
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 not accept the fact of residence (domi cile) as a protected ground
which could lead to violation of the principle of equality, that is, non-discrimination.18
The C onstitution explicitly guarantees broad special welfare-based protection f or people
with disabilities (Articl e 68) and equality between men an d women (Article 18). With
regard to the latter, the Consti tution also provides for the state’s duty to develop equal
opportunities p olicy (also Arti cle 18). Other provisions of the Con stitution contain
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 [...] insti gating national, racial and religious and other hatred and intolerance’
(Article 55).
The C onstitution permits positive action by providing that, ‘regulation s and introduction
of special measures aimed at creating conditions for the exercise of nat ional, gender and
overall equality and protection of people who are in an unequal position on any grounds
shall not be considered di scrimination’. Under the Constitution, special mea sures may
15 Montenegro, Constitution, Article 8, Official Gazette of Montenegro 1/07.
16 U-I no, 6-16 and U-I no.32-14.
17 Montenegro, Constitutional Court, decision of 26 December 2012, Case U-I No 3/09.
18 Montenegro, Constitutional Court, decision of 22 October 2009, Case U No 95/08.

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