Introduction

• Author: Vesna Simovic-Zvicer
• Pages: 5-11

5

1 Introduction

1.1 Basic structure of the national legal system

Montenegro is a constitutional parliamentary democracy, with a multi-party system. The

constitution declares Montenegro to be an independent and sovereign state, with a

republican form of government, as well as being a civil, democrati c, ecological and social

justice-based state, which adheres to the rule of law.1

1.2 List of main legislation transposing and implementing the directives

After regaining independence, Montenegro has made significant progress in building a

legislative and institutional framework for ensuring equal treatment for women an d men.

Montenegro has ratified all of the more important international and regional human rights

treaties which contain guarantees of the prohibition of and protection against

discrimination, including the Eur opean Convention on Human Rights and basic freedoms,

as well as Protocol no. 12 to the Convention (adopted in 2000), which is a general

prohibition against discrimination and extends to the enjoyment of all the rights specified

by law.

The Law on Amendments to the Law on the Pr ohibition of Discrimination, adopted in the

Parliament of Montenegro on 29 June 2017,2 realised full compliance with Recast Directive

2006/54/EC and Directive 79/7/EEC of 19 December 1978 on the progressive

implementation of the principle of equal treatment for men and women in matters of social

security.3 In addition, this piece of legislation ensures compliance with the other non-

discrimination directives: the Racial Equality Directive and the Employment Equality

Directive.4

Among other grounds, the current Law on the Prohibition of Discrimination (LPD) prohibits

discrimination b ased on gender ident ity, sexual orientation and/or intersexual

characteristics (Article 19). Amendments to this law introduced a new prohibited ground

of discrimination: the c hange of gender and intersexual characteristics.5 This means that

the protection against discrimination also covers persons with physical characteristics that

do not correspond to the binary medical definition of a m an or w oman and wh o change

the sex that was assigned to them and registered at birth.

The law stipulates that multiple discrimination is one of the aggravated forms of

discrimination, based on two or more of the above-mentioned grounds of discrimination.

Amendments to the law also changed the definition of t he term ‘discrimination’: the

previous law d efined discrimination as any ‘unjustified, legal or factual, direct or indirect

making of a difference’. The new amendments deleted the term ‘unjustified’ because direct

discrimination cannot be justified by the existence of a legitimate aim and proportionate

means. This served to point out that the facts raised in order to justify direct discrimination

do not relieve the perpetrator of resp onsibility. They are legally relevant only in cases of

1 Constitution of 2007, Article 1 par. 2. Available at:

http://www.wipo.int/wipolex/en/text.jsp?file_id=187543,

http://www.skupstina.me/images/dokumenti/ustav-crne-gore.pdf.

2 Law on Amendments to the Law on the Prohibition of Discrimination, Official Gazette of Montenegro,

42/2017.

3 Recast Directive 2006/54/EC and Directive 79/7/EEC of 19 December 1978 on the progressive

implementation of the principle of equal treatment for men and women in matters of social security, OJ L 6.

4 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between

persons irrespective of racial or ethnic origin, OJ L 180; and Council Directive 2000/78/EC of 27 November

2000 establishing a general framework for equal treatment in employment and occupation, OJ L 303.

5 The Law on the Prohibition of Discrimination (among other things) mentions change of gender and gender

identity as a ground of discrimination (Article 2, par 2). According to Article 19(4) of the Law on the

Prohibition of Discrimination, gender identity implies one’s own gender experience, which does not have to

depend on the sex that was established and registered at birth.