Introduction

• Author: Maja Kostić-Mandić
• Pages: 12-14

12

INTRODUCTION

The national legal system

Montenegro is a democracy, defined in its Constitution as a ‘civil, democratic, ecological

state with social justice, based on the rule of law’. The Constitution also establishes a

separation of legislative, executive and judicial powers. Montenegro is a civil law country

with the Constitution as its supreme legal act. The law must be in conformity with the

Constitution and ratified international agreements, and other regulations must be in

conformity with the Constitution and the law (Article 145 of the Constitution). All legislation

in Montenegro may be subjected to review by the Constitutional Court.

Montenegro has ratified all the major international human rights treaties, including the

European Convention on Human Rights and its Protocol 12, the European Social Charter

(revised) and United Nations conventions – the International Covenant on Civil and Political

Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention

on the Elimination of All Forms of Discrimination Against Women and the Optional Protocol

to this Convention, the International Convention on the Elimination of All Forms of Racial

Discrimination, the UN Convention on the Rights of Child and the Convention on the Rights

of Persons with Disabilities and its Optional Protocol.

Montenegro has also ratified two main Council of Europe minority rights instruments – the

European Charter for Regional or Minority Languages and the Framework Convention for

the Protection of National Minorities.

Montenegro is also a state party to International Labour Organization (ILO) conventions,

including those on discrimination in employment and occupation and the Equal

Remuneration Convention.

International treaties are directly applicable in Montenegro and do not need to be

incorporated by an act of Parliament, thus theoretically offering effective protection against

discrimination in domestic law, although the courts seldom invoke international law as a

basis for their decisions. Article 9 of the Constitution provides that, ‘ratified and published

international agreements and generally accepted rules of international law shall form an

integral part of the national legal order, shall have supremacy over national legislation and

shall be directly applicable when they regulate relations differently from domestic

legislation’.There is no unanimous doctrinal attitude, neither in the official legal attitude

of the Constitutional Court norinthat of the Supreme Court, regarding whether the

supreme position of the Constitution over other sources remains the case. In practice,

Montenegrin courts rarely invoke international anti-discrimination standards other than

those deriving from the European Convention on Human Rights and the jurisprudence of

the European Court of Human Rights. If and when they do so, the courts generally invoke

the norm without properly engaging in a discrimination test in accordance with the

generally accepted standard of testing.5

A somewhat different situation applies when the standards of the UN Convention on the

Rights of Persons with Disabilities are applied but only when it comes to the accessibility

of public buildings. However, even in these cases there is no reference to specific case-law

from the jurisprudence of international judicial or quasi-judicial bodies.

The Stabilisation and Association Agreement with the European Union came into force on

1 May 2010. This international treaty has had far-reaching consequences for the legal order

of Montenegro. Namely, according to Article 72 of this agreement, Montenegro has

committed itself to gradually approximating its legislation and policies with the acquisin

line with the European Partnership priorities. With the same provision Montenegro

5For example, Nikšić Basic Court, decision of 11 October 2017, P. No. 1890/15.