Positive action (article 5, Directive 2000/43 ; article 7, Directive 2000/78)

• Author: Maja Kostić-Mandić
• Pages: 65-68

65

5 POSITIVE ACTION (Article 5, Directive 2000/43 ; Article 7, Directive

2000/78)

a) Scope for positive action measures

In Montenegro, positive action in respect of racial or ethnic origin , religion or belief,

disability, age or sexual orientation is permitted in national la w.

The Constitution of M ontenegro provides that regulations and the introduction of special

measures aimed at creating conditions for the realisation of ethnic, gender and overall

equality and protection of people who are in an unequal position on any grounds is not

considered discrimination, provided that the special measures last only until the

achievement of the aims for which they were undertaken (Article 8). The Constitution also

provides for special minority rights, which include the right to authentic repre sentation of

national and ethnic minorities in the Parliament of Montenegro and in the local government

assemblies, in which they represent a significant share of the population, according to the

principle of affirmative action, as well as the ri ght to proportional representation in p ublic

services, state authorities and local government bodies (Article 79).

Article 79(10) of the Constitution establishes the right for ethnic minorities to proportional

representation in public services, state authorities and local self-government bodies. Article

25 of the Law on Minority Rights and Freedoms (which deals with the rights of ethnic

minorities) states that members of minorities have the right to proportional representation

in public services, state bodies and local government. Competent bodies in charge of

human resources, in cooperation with councils for minorities, must ensure the

representation of members of minorities. However, in practice, these provi sions are not

implemented, especially for Roma, in relation to whom ethnic distance is greater in

comparison with other ethnic minorities.

The Law on the Prohibition of Discrimination, in Article 5(2), provid es that:

‘Regulations and special measures aimed at creating conditions for the realisa tion of

national, gender and overall equality and protection of persons in an unequal position

on any ground may be adopted by authorised state and local authorities, aut horities

of the state administration, public enterprises and other legal persons performing

public powers, as well as other legal and natural persons.’

The measures referred to in Article 5 must be applied in proportion to what is required and

possible and should last until the goals established by those measures are achieved. The

first paragraph, in fact, provides an exc eption for genuine and determining occupational

requirements, while the wording of the second paragraph suggests the int ention to cover

both the concept of reasonable accommodation and that of positive action.

In a recent case, a procedure before the Protector was initiated in order to examine an

alleged violation of the right to equality in relation to employment of the Muslim national

minority117 (and in relation to Article 79(1)(10) of the Constitution of Montenegro). A s the

complaint did not address an individual vi olation of the right to equality in employment in

a specific institution, and the national structure of senior management could not be

determined on the basis of available data, the Protector issued a recommendation to the

Police Directorate that it should take into ac count the representa tion of mi norities in the

police service in respect of the implementation of strategic d ocuments. The deliberations

also addressed the Racial Directive (Article 1, Article 3(1 )(a) and Article 5).

117 The group of citizens addressed the Office of the Protector, stating there were no members of the Muslim

minority employed in senior positions neither at the Bijelo Polje Security Centre, nor at the Border Police

sector in Bijelo Polje. See Protector of Human Rights and Freedoms, Opinion No. 01-248/19-4 of 23

September 2019, available at: http://www.ombudsman.co.me/docs/1570088970_23092019-preporuka-

cbbp.pdf.