Introduction

• Author: Kostic-Mandic, Maja
• Pages: 11-13

11

INTRODUCTION

The national legal system

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

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

separation of legi slative, executive and judicial powers. Montenegro i s a civil law country

with the Constituti on 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 Con stitution and the law (Article 145 of the Constitution ). All

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

Montenegro has rati fied all the major international human right s 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 Ri ghts, the International Covenant on Economic, Social and Cultural Rights, the

Convention on the Elimination of All Forms of Discrimination Against Women and the

Optional Prot ocol to this Conventi on, the International Convention on the Elimination of

All Forms of Racial Discrimination, the UN Convent ion on the Rights of Child and the

Convention on the Rights of Persons with Disabilities and its Opti onal Protocol.

Montenegro has also rati fied two main Council of Europe mi nority right s 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 general ly 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 di fferently from

domestic legislation’. In practice, Montenegrin courts rarely invoke international anti-

discrimination standards other than those from the European Convention on Human

Rights and the ju risprudence 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 .6

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

Rights of Person s with Disabilities are applied but only when it c omes 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-j udicial bodies.

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

1 May 2010. This international treaty has h ad far -reaching consequences for the legal

order of Montenegro. Namely, according to Article 72 of this agr eement, Montenegro has

committed itself to gradually approximating its l egislation and policies with the acquis in

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

undertook to harmonise national legislation in line with EU law. This process was

supposed to start on th e date of signing of this Agreement, gradually being extended to

all the elements of the acquis c ommunautaire until the end of the transition period of five

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