The definition of discrimination

AuthorMaja Kostić-Mandić
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:
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
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:
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.

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