The definition of discrimination

• Author: Kostic-Mandic, Maja
• Pages: 16-32

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2THE DEFINITION OF DISCRIMINATION

2.1Grounds of unlawful discrimination explicitly covered

The following grounds of discrimination are explicitly prohibited in the main legislation

transposing the two EU anti-discrimination directives: race, skin colour, national

affiliation, affiliation to a minority nation or national minority community, language (as

an aspect of ethnicity),20 religion or belief, sexual orientation, disability and age.

Furthermore, the following grounds of discrimination are also explicitly prohibited in

national law: social or ethnic origin, political or other opinion, sex, sex change, gender

identity, sexual orientation and / or intersex characteristics, health conditions, material

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

group, political party or other organisation as well as other personal characteristics.

2.1.1Definition of the grounds of unlawful discrimination within the directives

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

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

a)Racial or ethnic origin

The Constitution of Montenegro in its Preamble emphasises the determination 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 Montenegro’. In Article 79 the Constitution proclaims

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

shall be guaranteed... rights and liberties, which 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:21

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

position of a person in the belief that race, colour, language, 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 discrimination was specified, sanctioning: ‘anybody who spreads ideas of

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

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

traditional origin, as expressed in the decision by the ECJ in Case C-83/14 (CHEZ Distribution Bulgaria AD v

Commission for the Protection of Discrimination), issued in response to a request for a preliminary ruling

under Article 267 TFEU from the Administrative Court of Sofia (ECJ decision of 5 February 2014, para 46).

On this occasion, the ECJ also refers 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, para 43 to 45 and 50, ECHR 2009).

21European 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.

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race, gender, disability, sexual orientation or other personal characteristic, or incitement

to racial or other discrimination’.

Ethnicity

Regarding ethnic origin, there is a wide definition of minorities under the Law on Minority

Rights and Freedoms,22where 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 Muslims and the smallest are Roma, Egyptians, Croatians

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

Democracy and Human Rights,23ethnic 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

concern. The data indicate that almost every second citizen of Montenegro exhibits

considerable distance from the Roma population, which is a particularly vulnerable group.

The issue of Roma inclusion remains a serious challenge for institutions and Montenegrin

society as a whole.

b)Religion and belief

There is no definition of religion or belief as such in Montenegrin law. Although it is an

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

Legal Position of Religious Communities24 is still applicable. Article 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 performing religious ceremonies and other 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 observances 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 integral 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 separate unit, have a separate entrance and meet the

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

22 Montenegro, Law on Minority Rights and Freedoms (Zakon o manjinskim pravima i slobodama), Official

Gazette of Montenegro Nos. 31/06, 51/06, 38/07, 2/11, 8/11, 31/17.

23CEDEM (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.

24 Montenegro, 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.