The definition of discrimination
| Author | Kostic-Mandic, Maja |
| Pages | 16-32 |
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2 THE DEFINITION OF DISCRIMINATION
2.1 Grounds 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, di sability 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 or assumed membership of a
group, political party or other organisation as well as other personal characteristics.
2.1.1 Definition of the grounds of unlawful discrimination withi n 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 i n its Preamble emphasises the determi nation that, ‘we,
as free and equal citizens, memb ers 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 guarante ed... rights an d 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:21
‘Racial discrimination is any di stinction, unequal treatment or placi ng 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 justi fies 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 discrimin ation was specified, sancti oning: ‘anybody who spreads ideas of
the superiority of one race over another or pro motes 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.
27996/06 and 34836/06, para 43 to 45 and 50, ECHR 2009).
21 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.
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race, gender, disability, sexual orientation or other personal characteristi c, or i ncitement
to racial or other discrimination’.
Ethnicity
Regarding ethnic origin, there is a wide definition of minorities under th e Law on Minority
Rights and Freedoms,22 where people from minorities and other minority communities
are defined as ‘any gro up of ci tizens of Monten egro, 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 reli gious 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 are Roma, Egyptians, Croatians
and others. According to public opinion research conducted by an NGO, the Centre for
Democracy and Human Rights,23 ethnic distance (measuring the extent to which
individuals or groups ar e remov ed 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 i nstitutions and Montenegrin
society as a whole.
b) Religion and belief
There i s 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 appli cable. Article 8 stipulates:
‘Citizens cannot be restricted in exercising their rights under the law because of
their religi ous beliefs, affiliation with a religion or reli gious 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 i ntegral 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 a nd meet the
requirements laid down by law for gathering people and holding ralli es.’
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.
23 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.
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.
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