EUROPEAN COMMISSION FOR DEMOCRACY THROUGH
LAW
(VENICE COMMISSION)
DRAFT LAW
on
prohibition of discrimination
of MONTENEGRO
I GENERAL PROVISION
Article 1 - Subject of the Law
This Law regulates general
prohibition of discrimination, prohibition of various forms of discrimination,
prohibition of special cases of discrimination, institutional framework for
prohibition of discrimination, procedure for protection against discrimination,
as well as other issues important for implementation of this law.
Article 2 - Purpose of the Law
The purpose of the Law is prevention
and fighting discrimination and achieving equality in rights and by laws.
Article 3 - Definition of
discrimination
Discrimination in the spirit of this
Law is any legal or physical distinction, giving preference, exclusion or
restriction made on the basis on race, national or ethnic origin, language,
religion or confession, political conviction, opinion, birth, sex, sexual
orientation, material status, social background, health condition, disability,
marital status, parenthood or any other personal trait on the basis of which
the recognition, enjoyment or exercise of someone’s human rights are impaired
or nullified in civic, political, economic, social, educational, cultural,
sports or any other field of life.
Special measures, adopted solely for
the sake of providing for adequate progress of certain national, racial or
ethnic groups or persons who need protection, deemed necessary for the sake of
guaranteeing, enjoying and exercising human rights and fundamental freedoms
under equal terms shall not be considered as discriminatory measures so long
as they do not result in persistence of different rights for different groups
and that they do not persist after the objectives for which the measures were
undertaken are achieved.
All terms that are used in this Law
in masculine form shall refer likewise to the same terms in feminine form.
Article 4 - Consent
Consent of a person who is
considered a victim of discrimination to a discriminatory treatment shall not
relieve the discriminator of liability.
Article 5 - Protected persons
In compliance with the Constitution,
law and international treaty, the provisions of this Law shall apply to any
individual who stays in the territory that falls within jurisdiction of
Montenegro, irrespective of whether the individual thereof is a citizen of
Montenegro, some other state or s/he does not have citizenship at all.
A foreigner in Montenegro, within
the limits determined by the Constitution, law and international treaty shall
have the same legal status as a citizen of Montenegro.
Everyone is entitled to protection
from all forms of discrimination before competent courts and other state
authorities.
II - PROHIBITION OF DISCRIMINATION
AND FORMS OF DISCRIMINATION
Article 6 Principle of equality
Everyone is equal and enjoys equal
status and equal legal protection, irrespective of personal traits.
Everyone is obliged to respect the
principle of equality or prohibition of discrimination.
Article 7 - Prohibition of
discrimination
Any form of discrimination on any
grounds whatsoever is prohibited.
Any promotion, incitement or
invocation to discrimination is prohibited.
Prohibition of discrimination cannot
be restricted or suspended even times of war or emergency.
Article 8 - Direct and indirect
discrimination
Direct discrimination, in the spirit
of this law, exists if an individual or a group of individuals, in the same or
similar situation, are put or have been put in unfavorable position by any act,
action, absence of act or action due to his/her or their personal trait.
Indirect discrimination, in the
spirit of this law, exists if a person or a group of persons due to their
personal trait are put into unfavorable position by passing an act, by is
performing or failure to perform an action that is nominally based on the
principle of equality and non-discrimination except if that act or action is
justified by a legitimate aim and the means for achieving the goal thereof were
appropriate and necessary.
Article 9 - Harassment and sexual
harassment
Harassment, in the spirit of this
Law, is a form of discrimination that represents unwanted conduct and action
related a personal trait of a person with the purpose or effect of violating
dignity or causing the state of intimidation, inconvenience, aggression,
humiliation or offending.
Sexual harassment, in the spirit of
this Law, is any unwanted physical, verbal or non-verbal behavior of sexual
character for the purpose or effect of inflicting harm to personal dignity or
generating state of fear, inconvenience, aggression, humiliation or offending.
Article 10 - Mobbing
Mobbing, in the spirit of this Law,
is any physical abuse at work, or moral terror at work that leads to mental,
psycho-somatic and social suffering of a victim and which is aimed at harming
personal dignity or generating state of fear, inconvenience, aggression,
humiliation or insult.
Article 11 - Grave forms of
discrimination
Grave forms of discrimination are:
-
incitement
and encouragement of inequality and intolerance that leads to serious
consequences;
-
incitement
or encouragement of hatred and intolerance based on national, racial, religious
or political background;
-
promotion
or practice of discrimination by state authorities, in procedures before the
state authorities, by means of media and by writing and exhibition of
materials and symbols with discriminatory contents in public places;
-
slavery,
human trafficking, apartheid, genocide, ethnic cleansing and their promotion.
Discrimination against a certain
individual based on more than one ground stipulated in Article 3, paragraph 1
of this Law, discrimination committed several times (repeated discrimination)
or discrimination committed over a long period of time (extended
discrimination) shall each be considered a grave form of discrimination, in
the spirit of this Law.
Article 12 - Segregation
Segregation, in the spirit of this
Law, represents a coercive and systemic separation of individuals in groups and
putting them into disadvantaged position on the grounds of racial, ethnic,
national, religious descent, sex, disability or other personal trait.
Segregation is considered to be
discrimination, too, pursuant to Article 3, paragraph 1 of this Law.
Article 13 - Protection from
victimization
No one who by acting conscientiously
reports a case of discrimination or in any capacity gives a deposition before a
competent authority investigating a case of corruption shall suffer damaging
consequences.
III - SPECIAL CASES OF
DISCRIMINATION
Article 14 - Discrimination in
procedures before authorities of the state
Everyone is entitled to equal access
and equal protection of his/her rights and freedoms before the courts and other
state authorities.
Discriminatory treatment towards a
party in procedure before the court or other authority shall be considered the
reason for remedial against the decision pertaining to his/her right or based
on the statutory interest, in compliance with the law that stipulates that
procedure.
Discriminatory action of a judge or
a lay-judge shall be considered a neglectful performance of function in case of
discrimination, wile repeated discrimination shall be considered a more serious
form of discriminatory action and more serious violation of duty at work.
Prosecutor’s discriminatory action
in relation to the selection of a defendant in criminal prosecution shall be
considered a negligent performance of prosecutorial function.
Article 15 - Discrimination in field
of public service delivery
In the field of delivering public
services, practices shall be considered discriminatory if an individual or a
group solely or mostly due to their personal characteristics:
-
is/are
denied a service;
-
is/are
conditioned for receiving service with conditions that are not requested from
other individuals or groups.
-
a
service is delivered later even though s/he/they requested it and met
conditions for it before other individuals or groups.
An individual who is found to have
acted in discriminatory way in delivering service shall be fined, and if s/he
has acted in a discriminatory way at work or in relation to work, s/he shall
also be called to disciplinary account for grave breach of duty.
Service, in the spirit of paragraph
1 of this Article is a service that a physical or legal person delivers as a
part of his/her profession or occupation.
Article 16 - Discrimination in use
of facilities/buildings and areas in public use
The construction of
facilities/buildings for public use shall be done in a way that will enable
unrestricted access, mobility, stay and work to individuals with reduced
mobility or disabled persons, in compliance with special regulations.
The owner of a facility in public use
is obliged to make adaptations to the facility thereof to the effect of meeting
conditions laid down in paragraph 1 of this article provided that other legal
and physical persons have managed to provide two thirds of funds required for
adaptation thereof.
In the spirit of paragraph 1 of this
Law, the facilities in field of education, health, social care, culture,
sports, tourism, environmental protection, protection from natural disasters
etc. are considered facilities in public use.
In the spirit of paragraph 1 of this
Law, parks, public green spaces and recreational grounds, squares, streets,
pedestrian crossings and other public roads are considered areas in public use.
Article 17 - Discrimination on the
grounds of condition of health
Any forced detention in a health
care facility, sheltering or undertaking any other forced medical measure,
except in (special?) cases and in a manner prescribed by the law, shall
prohibited.
Article 18 - Discrimination in field
of education and vocational training
Everyone has right to pre-school,
elementary and secondary education and vocational training under equal terms in
compliance with the law.
It is prohibited to make it
difficult to or prevent any individual or a group of individuals on the grounds
of their personal characteristics from enrolling into an educational
institution or to disqualify/expel them from those institutions, make it more
difficult or deprive them from possibility to attend teaching and participate
into educational activities, classify students by their personal traits, harass
them or in any other way make unjust differentiation and treating them
unequally.
It is prohibited to discriminate
against educational institutions that work by laws and other regulations and
against persons that use or have used services of these institutions in
compliance with the law.
Article 19 - Discrimination in field
of work
Discrimination is prohibited in
field of work i.e. it is prohibited to impair equal opportunities for
employment or enjoyment on equal terms of all rights based on work – such as
right to work, to free selection of employment, promotion in service,
professional advancement and professional rehabilitation, equal pay for equal
work, fair and satisfactory conditions for work, to break/leave from work,
education, association in trade unions as well as to protection from
unemployment.
Individuals who are employed,
part-time working individuals or those who work by contract for services or by
some other contract, a person who does a sideline work, public official, an
individual looking for a job, a student or an apprentice, individuals who took
training for professional advancement even though not employed, a volunteer and
any other person who partook in work on any other terms are eligible to resort
to protection from discrimination from paragraph 1 of this article.
Article 20 - Discrimination of
persons with disabilities
Any practice contrary to the
principle of respect of equal rights and freedoms of persons with disabilities
in political, economic, cultural and other aspects of public, professional,
private and family life shall be considered discrimination.
The way of exercise or and
protection of rights of persons with disabilities shall be stipulated by a
separate law.
Article 21 - Discrimination on the
basis of sex
Discrimination on the grounds of sex
is prohibited.
The manner in which the rights based
on gender equality are to be provided as well as measures for eliminating
discrimination on the basis of sex and creating equal opportunities for
participation in all fields of social life shall be stipulated in a separate
law.
Article 22 - Discrimination on the
basis of sexual identity and sexual orientation
Sexual identity and sexual
orientation is a private matter and no one can be called upon to publicly
declare his/her sexual identity and sexual orientation.
Everyone has right to publicly
declare his/her sexual identity and sexual orientation.
Discriminatory practice based on
assumed or publicly declared sexual identity or sexual orientation is
prohibited.
The rights that are recognized in
paragraphs 1 and 2 of this article pertain likewise to the cases of
transsexuals.
Article 23 - Discrimination on the
grounds of spousal and family relations
Any action by which someone is
deprived of right to marriage, given special conditions for getting married or
for exercising parental rights, or rights to adoption in contravention to the
law shall be considered discrimination in relation to spousal and family
relations.
Article 24 - Discrimination by
religion
Discrimination on the grounds of
religion exists in case that there are practices contrary to the obligation of
impartiality of the state towards religious communities, particularly if
special rights and freedoms are unjustly provided to the individuals belonging
to some religions or if it unjustly refuses to recognize certain religious
communities.
Discrimination exists if actions are
taken contrary to the principle of free exercise of religion, or if an
individual of group are deprived of the right to acquire, keep, express and
change religious beliefs as well as the right to act in compliance to their
religious convictions.
Article 25 - Discrimination of
minorities
Discrimination of minority nations
and other national communities and people belonging to them (hereinafter
referred to as: minorities) on the grounds of national descent, ethnicity,
religious belief, culture, language and ties to some national minority is
prohibited.
The way in which the protection of rights
of minorities is exercised and protected shall be regulated by law.
IV - INSTITUTIONAL FRAMEWORK AND
SUPERVISION
Article 26 - Mechanism for
protection from discrimination
Everyone who considers that s/he has
been discriminated by an act, action or inaction of an authority can address
the Protector of Human Rights and Freedoms by a complaint.
The complaint from paragraph 1 of
this article is filed in compliance with the Law on the Protector of Human
Rights and Freedoms.
Article 27 - Supervision of the
enforcement of the Law
The Ministry competent for
protection of human and minority rights shall supervise the implementation of
this law.
Article 28 - Juridical protection from discrimination
Provisions of the laws that regulate
civil litigation procedure shall accordingly regulate the procedure pertaining
to any wrongs inflicted by discrimination, unless otherwise prescribed by this
Law.
Any procedure thereof shall be
expedient.
Deadline for complaint is 15 days.
Article 29 - Territorial
jurisdiction
In the procedure of protection from
discrimination, apart from courts of general jurisdiction, the court in whose
territory the seat or residence of a plaintiff is shall have territorial
jurisdiction.
Article 30 - Initiating procedures
The procedure in an action for
protection from discrimination is instituted by an action for remedy vis a
vis discrimination (hereinafter referred to as the: Action).
The action for remedy thereof can be
brought by any individual who thinks that s/he is a victim of discrimination or
his/her attorney or any other person who is eligible hereto by law.
If an act of discrimination against
a certain group has been committed by means of media, at a public gathering or
by a public authority, or if it has caused serious consequences, the action for
protection from discrimination can be brought by organization that deals with
the protection of freedoms and rights of humans and citizens or with the
protection of a that specific group.
Article 31 - Remedial action
The action from Article 30,
paragraph 1 of this law can be means to request:
- Prohibition of execution of an
activity that bears potential threat of discrimination, prohibition of
further progress of a discriminatory activity, or bring the repetition of
discrimination to an end;
- Establishing the fact that the
respondent has acted in wrongful way towards the plaintiff or other
person;
- Compensation for damage in
compliance with the law.
If an action has been brought in
compliance with the provision of the Article 30 of this law, it can also
specify the request for compensation for damage inflicted.
For bringing action as of paragraphs
1 and 2 of this Article, the plaintiff has to prove that his/her legal interest
is legitimate.
Article 32 - Provisional order
A plaintiff can enclose the request
from Court to stay a certain act with the action paper against an individual
act or action if the act’s execution can inflict irreparable damage.
In the proposal to issue a
provisional measure, the plaintiff has to provide arguments that the measure
thereof is necessary to the effect of eliminating threat from violence based on
discriminatory action, (and) preventing use of force or cause for irreparable
damage.
The court has to decide about the
motion for issuing provisional measure within three days as of the receipt of
the motion thereof.
Article 33 - Burden of proof
If a plaintiff makes probable the
facts that the respondent committed an act of discrimination, the burden of
proof that that act did not affect the principle of equality or equal rights
principle rests with the respondent thereof.
Article 34 - Publishing of the
verdict
At the proposal of a plaintiff the
court can request that the verdict from Article 31 of this Law is published at
the respondent’s cost.
The proposal of the paragraph 1 of
this article can be lodged before the trial is completed.
Article 35 - Revision
In the action for protection against
discrimination revision is allowed at all times.
IV - TRANSITIONAL AND FINAL PROVISIONS
Article 36 - Acting Protector
The Protector of Human Rights and
Freedoms shall act in cases of discrimination that take place as of the day
when this Law enters into force.
Article 37 - Entering into force
This Law shall enter into force on the
eighth day as of the day when it is published in the “Official Gazette of
Montenegro”.
