The definition of discrimination

• Author: Maja Kostić-Mandić
• Pages: 17-33

17

2 THE DEFINITION OF DISCRIMINATION

2.1 Grounds of unlawful discrimination explicitly covered

The following grounds of discrimination are explicitly prohibited in the mai n legislation (as

listed in th e In troduction) transposing and implementing the two EU anti-discrimination

directives: race, skin colour, national affiliation, affiliation to a minority nation or national

minority commun ity, lang uage ( as an aspect of ethnicity),21 religion or belief, disability ,

age, social o r ethn ic origin, p olitical or other opinion, sex, sex ch ange, gender identity,

sexual orientation and / or intersex characteristics, health conditions, material statu s,

marital or family status, membership of a group or assumed membership of a group,

political party, syndicate or other organisation as well as other personal charact eristics.

2.1.1 Definition of the grounds of unlawful discrimination withi n the directives

Grounds of discrimination are largely un defined in national legislation. However, for a few

grounds of discrimination a definition is provided by the anti-discriminat ion laws.

a) Racial or ethnic origin

The Constitution of Montenegro in its Preamble emphasises the determin ation that, ‘we,

as free and equal citizens, members of peoples and national minorities living in

Montenegro: Montenegrins, Serbs, Bosnians, Albanians, Muslims, Croats and others are

committed to democratic and civic Montene gro’. In Article 79 th e Constitution proclaims

that, ‘persons belonging to minority nations and other minority national communities shall

be guaranteed ... righ ts and liberties, wh ich they can exercise individually or collectively

with others’.

Racial origin

In Article 17 of the Law on the Prohibition of Discrimination, a definition of ‘racial

discrimination’ was provided in accordance with the General Policy Recommendation No 7

of the European Commission against Racism and Intolerance:22

‘Racial discrimination is any distinction, unequal treatment or placing in an unequal

position of a person in t he belief that race, colour, la nguage, nationality or national

or ethnic origin justifies contempt for a person or group of persons, or justifies the

notion of superiority of a person or group of persons in relation to those who are not

members of that group.’

In addition, with regard to ‘crimes against humanity and other goods’ protected by

international law, the Criminal Code was amended (Article 443) and a criminal offence of

racial and other discrimi nation was specified, sa nctioning: ‘anybody who spr eads ideas of

the superiority of one race over another or promotes hatred or in tolerance on the basis of

race, gender, disability, sexual orientation or other personal characteristic, or incit ement

to racial or other discrimination’.

21 The concept of ethnicity implies a group with a common nationality, religious faith, language, cultural and

traditional origin, as expressed in paragraph 46 of the CJEU’s judgment of 5 February 2014, CHEZ

Distribution Bulgaria AD v. Commission for the Protection of Discrimination, C-83/14 (issued in response to

a request for a preliminary ruling under Article 267 of the TFEU from the Administrative Court of Sofia). On

this occasion, the ECJ also referred to the case law of the European Court of Human Rights in relation to

Article 14 of the ECHR and its judgments in the following cases: Nachova and Others v. Bulgaria [GC],

Nos. 43577/98 and 43579/98, ECHR 2005-VII and Sejdić and Finci v. Bosnia and Herzegovina [GC],

Nos. 27996/06 and 34836/06, paras. 43 to 45 and 50, ECHR 2009).

22 European Commission against Racism and Intolerance (ECRI) (2012) ECRI Report on Montenegro, p. 13,

available at: www.coe.int/t/dghl/monitoring/ecri/Country-by-country/Montenegro/MNE-CbC-IV-2012-005-

ENG.pdf.

18

Ethnicity

Regarding ethnic origin, there is a wide d efinition of minorities under th e Law on Minority

Rights and Freedoms,23 where people from minorities and other minority communities are

defined as ‘any group of citizens of Montenegro, numerically smaller than the rest of the

predominant population, having common ethnic, religious or linguistic characteristics,

different from those of the rest of the population, being historically tied to Montenegro and

motivated by the wish to express themselves and maintain their national, ethnic, cultural,

linguistic and religious identity’ (Article 2). No difference between a national and an ethnic

minority is recognised by the law.

Numerically, the largest national/ethnic communities in Montenegro are Montenegrins,

Serbs, Bosnians, Albanians and Mu slims and the smallest a re Roma, Egyptians, Croatians

and others. According to public opinion research conducted by an NGO, the Centre for

Democracy and Human Rights,24 ethnic distance (measuring the extent to which individuals

or groups are removed from or excluded from participating in one another’s lives based on

their ethnic affiliation) in relation to the Roma population is a matter of conc ern. The data

indicate that almost every second citizen of Montenegro exhibits considerable distance

from th e R oma population, which is a particularly vulnerable group. The issue of Roma

inclusion remains a serious challenge for institutions and Montenegrin society as a wh ole.

b) Religion and belief

There i s no definition of religion or belief as such in M ontenegrin law. Although it is an

anachronous law which certainly requires significant cha nges in this area , the Law on the

Legal Position of Religious Communities25 is still applicable. A rticle 8 stipulates:

‘Citizens cannot be restricted in exercising their rights under the law because of their

religious beliefs, affiliation with a religion or religious community, or because they

perform or participate in per forming religious ceremonies and oth er religious

sentiments.

No-one may enjoy any privileges, advantages or special protection on the basis of

[their] religious beliefs.’

Article 9 of this Law stipulates:

‘Religious ob servances and congregations may be performed in churches, temples

and official premises of religious communities, as well as in the grounds and

cemeteries associated with these buildings if they form an in tegral part of them.

Religious gatherings and religious activities may be performed in other publicly

accessible premises used by the religious community in accordance with the law.

These premises must form a sep arate unit, have a separate entrance and meet the

requirements laid down by law for gathering people and holding rallies. ’

The LPD defines discrimination based on religion or belief. Article 17 states that:

‘Discrimination based on religion or belief is considered to be any act contrary to the

principle of freedom of religion. That is, any unequal treatment, differentiation, or

23 Law on Minority Rights and Freedoms, Official Gazette of Montenegro, Nos. 31/06, 51/06, 38/07, 2/11,

8/11, 31/17.

24 CEDEM (2013) Etnička distanca u Crnoj Gori: Empirijsko istraživanje (Ethnic distance in Montenegro:

empirical research), p. 19, available at: www.cedem.me/publikacije/studije-i-javne-politike/download/69-

studije-i-javne-politike/720-etnika-distanca-2013.

25 Law on the Legal Position of Religious Communities (Zakon o pravnom položaju vjerskih zajednica), Official

Gazette of Montenegro, Nos. 9/77, 26/77, 29/89, 39/89, 27/94, 36/03.