EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
OPINION
ON THE
DRAFT LAW
ON
PROHIBITION OF DISCRIMINATION
of MONTENEGRO
Adopted by the Venice Commission
at its 80th Plenary
Session (Venice, 9-10 October 2009)
on the basis of comments by
Mr Pieter van DIJK (Member, Netherlands)
Mr Latif HÜSEYNOV (Member, Azerbaijan)
I.
Introduction
1. By a letter
dated 23 March 2009, the then Minister for the Protection of Human and Minority
Rights of Montenegro, Mr Fuad Nimani, requested an opinion on the draft Law on
Prohibition of Discrimination (CDL(2009)119).
2. The Venice Commission received an English translation of the draft on 25 May 2009.
3. Mr van Dijk and
Mr Hüseynov were appointed as rapporteurs and presented their comments (CDL (2009)121
andCDL(2009)120 respectively).
4. In order to
have a better understanding of the local situation, a mission to Podgorica was
organised. Mr Hüseynov and Ms Martin from the Secretariat went to Podgorica on
2-3 September 2009.
5. The mission, well
organised by the Council of Europe office in Podgorica, was very useful. The
delegation had constructive meetings with the Minister for the Protection of
Human and Minority Rights, Mr Dinosa, the Deputy Speaker of Parliament and
other Parliamentarians, the Ombudsman and his Deputies, representatives of OSCE
and EC offices in Podgorica, NGO representatives, as well as with the members
of the Working Group that prepared the present draft.
6. The mission
provided a valuable insight into the national context, the legislative process
so far, key issues and challenges whether national or international facing the
adoption and actual implementation of the new anti-discrimination legislation
in Montenegro.
7. The following
opinion was drawn up on the basis of the rapporteurs’ comments and of the
information gathered during the fact-finding mission ; it was adopted by the Venice Commission at its 80th Plenary Session (Venice, 9-10 October 2009).
II.
Background
information
8. Montenegro became a member State of the Council of Europe (CoE) on 11 May 2007.
9. One of Montenegro’s accession commitments to the CoE was to adopt urgently an anti-discrimination law.
10. The Committee of Ministers
invited Montenegro to adopt the Law on non-Discrimination, in line with CoE
standards, by the next reporting period in its monitoring of Montenegro’s progress in relation to its accession commitments and obligations .
11. Identically, the request
for adoption of a “comprehensive anti-discrimination legislation” can be found
in the short-term priorities of the Council Decision of 22 January
2007 on the principles, priorities, and conditions contained in the European
Partnership with Montenegro (2007/49/EC).
The authorities
have consequently presented the draft law as part of the national programme for
European Union integration.
12. The Minister for the
Protection of Human and Minority Rights who intends to present the draft for
adoption by Parliament as soon as possible prepared the draft law on
prohibition of discrimination.
13. During the mission, the
delegation understood from the discussions with the Working Group and with
NGO’S that only one NGO had been involved in the drafting process. However, the
authorities informed the delegation that prior to the submission on the draft
to Parliament a broad public debate would be organised.
14. Furthermore, the authorities
assured the delegation that before submitting the final draft to Parliament it
would again be submitted to the Venice Commission for an opinion.
III.
General
observations
15. The present opinion on the
draft law on prohibition of discrimination is formulated in the light of the
Council of Europe standards, especially Article 14 of the European Convention on Human Rights (ECHR), its Protocol
12, the European Social
Charter, EU directives against discrimination (in particular, Council Directive
2000/43/EC implementing the principle of equal treatment between persons
irrespective of racial or ethnic origin and Council Directive 2000/78/EC
establishing a general framework for equal treatment in employment and
occupation) and with specific attention to documents of the European Commission
against Racism and Intolerance (ECRI) and its Recommendation No. 7 of 2002
regarding the National Legislation on the Fight Against Racism and Racial
Discrimination.
16. The Constitution of
Montenegro contains a specific provision on the prohibition of discrimination. It
provides a general ban of direct and indirect discrimination.
17. In its opinion on the
draft Constitution of Montenegro, the Venice Commission had already appreciated
this wording since it reflects, “the concern previously expressed by the Venice
Commission that special measures, such as those set out in Article 4 of the
Framework Convention for the Protection of National Minorities, should not be
seen as discrimination. The text is therefore now in conformity with the
Framework Convention. It is also in conformity with ECRI Recommendation No. 7
(2002).”
18. Apart from prohibiting
“direct or indirect discrimination on any grounds” (Article 8(1)), the
Constitution guarantees to everyone “equality before the law” (Article 17),
“equal protection of the rights and liberties” (Article 19) as well as equality
of women and men (Article 18). The Constitution also proclaims that during the
state of war or emergency “there shall be no abolishment of the prohibition of
…discrimination” (Article 25(3)).
19. The present draft for a
specific law concerning the prohibition of discrimination constitutes a further
important step in the fight against discrimination and has to be welcomed.
20. Certain
anti-discrimination provisions are laid down in a number of laws, such as the
Criminal Code, Labour Law, Law on Minority Rights and Freedoms, Law on Gender
Equality and others. It is important to ensure that the new general law on
prohibition of discrimination does not conflict with those provisions and is in
harmony with other relevant substantive as well as procedural rules.
21. It is important to mention
that the English translation of the text submitted to the Venice Commission for
consideration is occasionally unclear and seems not correct in all its details.
Some of the following observations and issues of concern raised might be caused
by a misunderstanding of the correct meaning of the text.
The structure of the draft
22. With regard to the
structure, the present draft is a rather long piece of legislation, however well
structured, divided into four Chapters, with 37 articles altogether.
23. The draft contains some inconstancies
in the order of the provisions, which could jeopardize the logic and
understanding of the draft. For instance, Articles 3, 6, 7 and 8 seem to
constitute doubles with other provisions, or at least could be combined with each
other.
24. Article 6 (“Principle of
equality”) and Article 7 (“Prohibition of discrimination”), which are of a more
general nature, could appear in Section I (“General provisions”). These
articles, particularly Article 7 providing for a blanket prohibition on
discrimination, should precede Article 3, which prohibits discrimination
subject to positive action (“special measures”).
25. The definitions of direct
and indirect discrimination given in Article 8 should be included into Article
3 (“Definition of discrimination”).
26. Article 13 (“Protection
from victimisation”) could be moved to Section IV (“Institutional framework and
supervision”), as the purpose of this provision is to ensure that no
retaliatory action is taken against persons reporting a case of discrimination.
The normative content
27. With regard to the normative
content, the current draft contains several provisions, which cannot be
considered as of statutory nature. In this regard, articles 1 and 2 would for
instance have more the character of a commentary than a normative character. As
the Venice Commission has already pointed out at other occasions, “in
accordance with an acknowledged principle, laws should contain provisions of an
exclusively statutory nature, i.e. which create rights or obligations, set up
bodies and define their duties and responsibilities or lay down their
procedure”.
28. The Venice Commission
would consequently recommend to the drafters to make sure that the draft law
contains exclusively provisions of a statutory nature, which should be drafted in
a clear manner leaving any explanations of the provisions and procedures as
currently enshrined in the law to an explanatory memorandum. The explanatory
memorandum would be also the right place and tool to set out the legal and practical
context of the draft law, references and cross references and links to other parts
of the national legislation and to relevant sources of International and European
law and standards.
The legislative technique
29. The drafters have tried to
cover and to regulate exhaustively any possible situation. As the Venice Commission
had already stated, “whether an act on discrimination issues should be abstract
or concrete depends on national legal culture and context, on the state of the
national legal community, on the administration and the courts”.
30. One of the consequences of
an extensive or concrete drafting, which tries to solve legislatively as many
questions as possible, is that it leaves little room for interpretation and
discretion to the authorities and courts to develop their policy and their case
law, respectively, based on the law. Whether this consequence can be seen as a
drawback or a suitable benefit depends on the level of legal development and
confidence that can be put in the competent authorities and judiciary. Whereas
in old and long established democracies extensive drafting might be considered
as a drawback, it has often been seen as a necessary step in newly established democracies.
31. At the same time, the
provisions happen to be
quite abstract and general, containing almost no cross-references to other
relevant pieces of legislation, and would leave too much room for
interpretation and discretion. The NGO representatives with whom the delegation
of the Venice Commission met during the fact-finding mission raised serious
doubts whether the local courts would be able to apply correctly and
effectively such abstract provisions.
32. Indeed, certain key concepts and definitions used
in the draft law are unclear and obscure. All this may prevent individuals from
properly benefiting from the provisions of the law.
33. Lastly, while a number of
actions described in the draft law as discriminatory do not necessarily
constitute discrimination,
other definitions do not contain any reference to a necessary discriminatory element
that would be prohibited.
34. The Venice Commission
leaves to the national authorities the choice of the legislative technique, but
invites the drafters to elaborate and draft this piece of legislation in a way
that it ensures a correct implementation and understanding of the notions by
both professionals and individuals.
Implementation mechanisms
35. The most serious
shortcoming of the present draft law is that the implementation mechanism
foreseen therein is clearly inadequate.
36. A key element to combat racial
and other forms of discrimination lies not only in the substantive provisions
of the law but in particular in the mechanism that is foreseen to protect from
discrimination and also to ensure that the legislation will be implemented
correctly and effectively.
37. In this regard, ECRI
General Policy Recommendation No. 7, recommends under paragraph 24 that:
“The law should provide
for the establishment of an independent specialised body to combat racism and
racial discrimination at national level (henceforth: national specialised
body). The law should include within the competence of such a body: assistance
to victims; investigation powers; the right to initiate, and participate in,
court proceedings; monitoring legislation and advice to legislative and executive
authorities; awareness-raising of issues of racism and racial discrimination
among society and promotion of policies and practices to ensure equal
treatment.”
38. Whereas the creation of a specialised
body is considered as the best solution, transferring the same competencies to
an already existing institution, which would benefit from the competencies
described above, would be equally adequate.
39. The draft does not provide
for the establishment of a specialised anti-discrimination body as it has been
widely advocated by ECRI.
40 Instead, the draft law
grants enforcement powers to the Protector of Human Rights and Freedoms
(Ombudsman). However, Article 26 of the draft law that envisages these powers
is rather short and vague. It only provides that complaints of alleged
discrimination may be lodged with the Ombudsman as stipulated in the Law on the
Protector of Human Rights and Freedoms (CDL(2009)114). Neither this law, nor
the draft amendments to the law (CDL(2009)110) submitted to the Venice
Commission for opinion gives full powers to the Ombudsman for the
implementation of the anti-discrimination provisions.
41. The current draft also fails
to give the Ombudsman the powers and means the fight against discrimination
implies.
42. The Ombudsman has no
powers in respect of private persons, which he or she would need to combat
discrimination.
The wording of the present draft
and the Law on the Protector of Human Rights
imply that the area of competencies of the Protector is limited to the public
sphere. However, according the ECRI’s Recommendation, the institution in charge
of the protection of and fight against discrimination should cover the private sphere as well.
43. Moreover, neither the
current draft nor the law or the amendments to the law on the Protector
describe or confer to this institution sufficient powers to fulfil its tasks to
combat discrimination, like assistance to victims, investigations powers, right
to initiate and participate in courts proceedings, for instance as are recommended
in ECRI Recommendation No. 7.
44. Furthermore, the current
law does not empower the Ombudsman to seek an amicable settlement through
conciliation, whereas this procedure can be effectively used for the prevention
of discrimination, particularly in such areas as employment.
45. Finally, yet importantly, neither
the current draft nor any other proposed legal instrument foresees the
necessary supplementary human resources, specialised training in discrimination
and financial means for the protection against discrimination that would be
necessary for the Office of the Protector of Human Rights.
46. Consequently, neither the general
current legal framework nor the current draft offer sufficient legal guaranties
and means for a genuine protection against discrimination by the Protector of
Human Rights.
47. The Venice Commission would
consequently strongly recommend reconsidering the mechanism of protection in
view of complying with the requirements of paragraph 24 of Recommendation No. N°7
of ECRI.
Sanctions
48. The second important
shortcoming concerns the sanctions as provided for by the draft.
49. Remedies are foreseen in
only one article in vague terms.
Apart from that, only one article refers to fines, without more specifications
on the possible amounts, decision’s holder, and enforcement.
50. The draft law should be
supplemented by other measures, which could be applied by courts for correcting
the discriminatory behaviour, including that of legal persons. For example, the
restitution of rights, which have been violated, would be one of such measures.
51. Moreover, the draft law
does not indicate, what kind of compensation can be imposed in discrimination
cases; specifically, the criteria to determine the amount of compensation to
which a victim of the discriminatory behaviour is entitled are not specified.
52. Consequently, the
sanctions provided for in the draft law cannot be qualified as “effective,
proportionate and dissuasive”, as required by the EU Directives and ECRI’s
Recommendation No. 7, paragraph 12.
53. Substantially, both of
these issues, the institutional framework and the remedies, need to be regulated
in the draft law in a more comprehensive and detailed way. This would
definitely strengthen the law and contribute to its effective and meaningful
implementation.
IV. Comments related to
specific provisions
Article 1 - Subject of the law, and
Article 2 - Purpose of the law
54. These articles do not have
any normative purposes. Moreover, they are redundant.
55. The delegation was told
that those types of articles could be found in each piece of legislation of the
country and are regarded as a legal tradition. The Venice Commission, however,
would recommend to the drafters to make sure that the provisions of the law are
of a normative nature. The quality of the law and the principle of legal certainty
imply also that repetitions and redundancies are avoided.
Article 3 - Definition of
discrimination
56. The definition of
discrimination provided for in the first paragraph contains a rather
long list of grounds of discrimination.
57. Despite the length, some
grounds provided for under Article 1 Protocol 12 to the ECHR are still missing.
Indeed, there is no express reference to the grounds of colour, association
with a national minority and property.
58. The Venice Commission
would consequently recommend aligning the grounds of discrimination to those of
the Article 1 Protocol 12 to the ECHR.
59. Additionally, when
defining discrimination, trying to cover as many grounds as possible cannot
constitute either a practicable or a constructive approach. The Venice
Commission has already made clear that “such an approach may entail the risk
that the concept of discrimination may become diluted in a way which could weaken
the protection against more serious discriminatory actions”[17]. Moreover,
providing an extensive list of non-discrimination grounds is unnecessary from a
legal point of view, since the list is not exhaustive.
60. According to the definition,
discrimination occurs whenever because of any of the enumerated grounds “the
recognition, enjoyment, or exercise of someone’s human rights are impaired or
nullified...” Although this wording would be in conformity with the scope of
Article 14 of the ECHR, the restriction of the enjoyment or exercise of one’s human
rights is not in conformity with Protocol 12 to the ECHR which has a broader
scope. Indeed, a person can be discriminated against also in cases where no
human rights are involved.
61. The Venice Commission
would therefore recommend aligning the scope of the definition in Article 3 with
Protocol 12 to the ECHR.
62. Furthermore, in order to avoid any
misinterpretation due to the rather broad wording of the definition, the
drafters should specify that the differential treatment described in the
definition constitutes discrimination if it has no objective and reasonable
justification.
63. The expression “religion
or confession” should be formulated as “religion or belief” in accordance with
Article 46 of the Constitution of Montenegro and Article 9 of the ECHR.
64. The meaning of the term
“personal trait” should be defined. This is all the more important, since
during the meeting with the authorities it appeared that this term could be
interpreted too broadly, covering even such physical characteristics of a
person as eye’s colour.
65. Finally, the ways in which
Article 3.1 and Article 6 (Principle of equality) and Article 7 (Prohibition of
discrimination) would relate with each other remains unclear.
66. The second paragraph
introduces the concept of positive action (“special measures”) which is to be
welcomed.
67. However, the current
drafting has, here again, omitted the very important criterion of proportionality,
which should be inserted.
68. Moreover, the wording of
the definition is too broad and obscure. Thus, it is not clear what the aim of
“adequate progress” means. The expression “for the sake of adequate progress of
national, racial or ethnic groups or persons who need protection” should be
replaced by the appropriate wording used in the EU Directives and ECRI’s
Recommendation No. 7: the aim of any positive action should be “to prevent or
compensate disadvantages suffered” by a certain group of persons.
69 In general, the Venice Commission
would recommend that the definition of positive action (“special measures”) be
modelled on EU Directives and ECRI’S Recommendation No. 7.
Article 5 - Protected
persons
70. The fact that the draft
law aims to protect anyone on the territory of Montenegro and is not limited to
Montenegrin citizens is to be welcomed.
71. However, the wording of
this article suggests that legal persons would not be protected.
72. The Venice Commission
would hence advise indicating specifically, either in this Article or elsewhere
in the draft law, that legal persons or entities are also entitled to
protection from discrimination under this law.
Article 6 - Principle of equality
73. The relationship between
the principle of equality enshrined in this article and that contained in the
definition of discrimination under Article 3 raises concern. In the first
paragraph, the provision of equality is formulated in broader terms than the definition
of discrimination under Article 3, while in fact the obligation to respect the
principle of equality is more restrictive than the prohibition of
discrimination, since unequal treatment may be justified in certain cases.
Article 7 - Prohibition of
discrimination
74. The meaning of the term “invocation
to discriminate” remains unclear. Even though one might presume that the
article would also prohibit instructing another person to discriminate, as
required by relevant international standards[18], this should be made more
clear and explicit.
Article 8 - Direct and indirect
discrimination
75. The fact that the draft
law seeks to prohibit both direct and indirect discrimination is to be
welcomed.
76. However, the current
wording of Article 8 does not clearly define and distinguish the two concepts. More
specifically, the definition of indirect discrimination is not consistent with
relevant international standards. It is therefore recommended that, in providing
this definition, the drafters draw inspiration from the above-mentioned EU
directives and ECRI’S Recommendation No.7 (paragraph 1. b and c) which would also
imply the addition of the principle of proportionality, which is missing in the
current draft.
77. Here again, the reference to
“personal trait" in both paragraphs as well as in subsequent provisions should
be avoided and should be replaced by a reference to the grounds enumerated in
Article 3. The notion of “personal trait” can easily give rise to an unduly
broad interpretation.
Article 9 - Harassment and sexual
harassment, and Article 10 - Mobbing
78. The difference between
mobbing and harassment as provided for in Article 9.1 is unclear and should be clarified,
although unlike the definition of harassment, Article 10 does not refer to
“personal trait” as a ground for mobbing.
79. If these articles were to
remain, the Venice Commission would recommend redrafting both articles, by clarifying
the distinction between both definitions, by adding the discriminatory element
prohibited with regard to mobbing and by avoiding referring to the notion of
“personal trait”.
Article 11 - Grave forms of
discrimination
80. The article provides for a
number of “grave forms of discrimination”, without indicating any consequences
for committing such acts. Therefore, the meaning and function of this provision
remain unclear in the framework of a law on the prohibition of discrimination.
81. Moreover, it is not clear whether
these “grave forms of discrimination” will entail criminal sanctions and/or
higher amounts of damages. Thus, the classification provided has no legal
effect, and therefore the relevance of the entire provision is questionable.
82. If this article were to
remain, the drafters should make this article effective by either specifying
the remedies and sanctions for such “grave acts” or by making cross-references
to relevant provisions of criminal and/or civil law.
83. With regard to the current
criterion of serious consequences which is contained in the draft, it is worth recalling
that such a criterion should be left to practice which will assess the
seriousness of a certain discriminatory act while establishing the relevant
facts and consequences entailed.
84. Finally, whether discrimination
by means of the media can constitute an aggravated form of discrimination, as
it is foreseen in this provision, remains questionable. This might be
interpreted as a restriction to the freedom of expression of the media. Given
the vital role that the media play in a democratic society, any limitation must
be done cautiously. Such a restriction might be also excessive given the
media’s “duties and responsibilities” comprised in the exercise of the freedom
of expression (Article 10 ECHR).
Article 12 - Segregation
85. The definition of segregation
is not correctly formulated and deviates from international standards under
several aspects.
86. Firstly, segregation, i.e.
separation or isolation by a natural or legal person of other persons because
of certain grounds (race, national, or ethnic origin, sex, disability etc.)
without an objective and reasonable justification should be considered as
discrimination even when it is not coercive. Thus, the element of coercion should
not be incorporated into the definition of segregation as it is currently.
87. Secondly, the expression
“and putting them into disadvantaged position” is unnecessary and should be deleted.
Indeed, in order to establish whether segregation has occurred there is no need
to prove that a particular person or group of persons has been placed in a
disadvantaged position; the mere fact of separation because of the above-said
grounds would be sufficient to constitute discrimination provided there is no
objective and reasonable justification for that behaviour.
88. Finally, the second
paragraph appears to be superfluous, since what it proclaims clearly derives
from the first paragraph of the article.
89. The Venice Commission
would hence recommend re-drafting this provision in order to be in line with
international standards.
Article 14 - Discrimination in
procedures before authorities of the state
90. This article foresees
remedies, sanctions, and disciplinary measures if discrimination has occurred
during procedures before State authorities, and more specifically before the
courts or the prosecutions offices.
91. This article may raise
serious concern since it opens the door for far-reaching interference with a court’s
functioning and the independence of judges. Any complaint as to discriminatory
behaviour should be judged by an independent court. Likely disciplinary
measures against a judge or a prosecutor may be imposed only through a procedure,
preferably judicial, provided for by law.
92. Discrimination in
procedures before authorities of the state shall certainly be prohibited by
this draft. However, the draft instead of creating specific sanctions should rather
refer to the general procedure of disciplinary measures against a judge or a
prosecutor provided for by law.
Article 15 - Discrimination in the field
of public service delivery
93. This article defines
specific cases of discrimination in the field of public service delivery. However,
even though it is welcome to foresee sanctions, here again the wording “shall
be fined” and “shall be called to disciplinary account’ might imply that no
discretion is left to the court which will decide on the fine or disciplinary
issue.
Article 16 - Discrimination in the use
of facilities/buildings and areas in public use
94. The article requires that
the construction of facilities or buildings for public use be done to enable
unrestricted access to individuals with reduced mobility or disabled persons. This
provision is welcome, although one should admit that it would be very difficult
implementing it adequately, from the financial perspective.
95. The second paragraph of
the article provides that for the owner of a facility to comply with his/her
duty to make appropriate adaptations to the facility, other legal and physical
persons should provide two thirds of the funds required for such adaptations.
However, it is unclear who these “other legal and physical persons” are. More
importantly, the article is not in keeping with the case law of the European
Court of Human Rights[20]
and EU Directives[21],
which refer to the concept of reasonable accommodation; according to this
concept, an employer must provide accommodation to an individual with a
disability “unless such measures would impose a disproportionate burden on the
employer”.
Article 17 - Discrimination on the
grounds of condition of health
96. This article, as it
stands, does not appear to fit in an anti-discrimination law. As noted above,
the conduct referred to therein is not necessarily discriminatory. It would
rather constitute a violation of the right to liberty and security or the right
not to be subjected to ill-treatment. The title of the article does not
correspond to its content. The title implies that discrimination on the ground
of health condition of an individual (for example, because of having a specific
disease) is prohibited. Nevertheless, the text of the article speaks of
discrimination in the field of healthcare.
97. In any case, the text
should be reformulated in order to clearly prohibit discrimination occurring
either on the ground of health or in the field of healthcare.
Article 18 - Discrimination in the
field of education and vocational training
98. The third paragraph should
specify the grounds that fulfil the legal qualification of discrimination of an
action or behaviour.
Article 19 - Discrimination in the
field of work
99. This provision goes very
much into details in enumerating any possible situation.
100. However, it is not clear from
the current wording whether this provision would apply indistinctively to the
public and to the private sphere. The concept of “disciplinary account” would suggest
that only public institutions be covered by this provision. This would be
contrary to international standards and especially to ECRI’s Recommendation,
which states that the law should apply to all public authorities as well as to
all natural or legal persons, both in the public and in the private sectors.
101. Finally, the Venice Commission
would rather recommend drafting a general prohibition of discrimination of any
person in a labour related situation leaving to the authorities and the courts
the scope of application of this prohibition.
Article 21 - Discrimination on the
basis of sex
102. In light of the general
prohibition of discrimination explicitly proclaimed in Article 6 (principle of
equality) and Article 7 (“Any form of discrimination on any grounds is
prohibited”), the first paragraph of Article 21 is not needed.
Article 22 - Discrimination on the
basis of sexual identity and sexual orientation
103. As currently drafted, this provision
would also imply the right of persons of the same gender to marry.
104. If this were the intention
of the drafters, that right should then be more explicitly included, since, in
view of its still controversial character in several member States of the
Council of Europe such a right needs to be clearly stated.
105. Nonetheless, the drafters
should bear in mind that the inclusion of the right of persons of identical
gender to marry would be in contradiction with the Constitution of Montenegro,
which specifically states under Article 71 “Marriage may be entered into only
on the basis of a free consent of a woman and a man”.
Article 23 - Discrimination on the
grounds of spousal and family relations
106. The meaning and purposes of
this provision are unclear. As currently drafted, the wording could imply the
right of persons of the same gender to marry, to found a family, and to adopt children.
If this is the intention of the drafters, these rights should be expressively
stated.
Article 24 - Discrimination by
religion
107. The title of the article
should be changed into “discrimination on the ground of religion or belief”.
Appropriate amendments should also be made in the text of the article.
108. The first paragraph only
prohibits discrimination by State authorities, whereas it is unquestionable
that private persons can also commit discriminatory action against other
persons on the ground of religion or belief. Here again the scope of
application of the draft law seems to be limited to the public sphere.
109. The Venice Commission
recalls that a law on prohibition of discrimination shall apply to all public
authorities as well as to all natural or legal persons, both in the public and
in the private sectors, in all areas.
Article
26 - Mechanism for protection from discrimination and Article 27 Supervision of
the enforcement of the law
110. The relationship between
the two articles remains unclear. While Article 26 confers upon the Protector
of Human Rights and Freedoms a supervisory role, Article 27 does the same in
relation to the Ministry for the Protection of Human and Minority Rights
Protection.
111. The Ministry competent for
the protection of human rights and minority rights is granted supervisory
duties in relation to the implementation of the draft law. In this respect, the
draft law should clarify further the powers and responsibilities the Minister
can carry out to perform his supervisorial duties. It is important to ensure
that this supervisory role of the Minister does not undermine the independence
and autonomy of the Ombudsman.
Article 28 - Judicial protection
from discrimination
112. The relationship between this
provision and that of Article 26 is unclear and jeopardises in practice the
protection mechanism.
113. It is difficult to
understand from the draft whether a victim would have to choose between
judicial protection and a complaint to the Protector, or whether it is possible
to introduce both procedures, simultaneously or consecutively. Moreover, the
very nature of the Protector intervention is unclear; whether his /her decision
would have a binding character is unclear from the current draft. According to the
current Art. 44 of the Law on the Protector, the Protectors decisions do not
have any binding character.
114. Finally, the 15 days
deadline for lodging a complaint is too short and unrealistic.
115. With regard to judicial
protection, the Venice Commission would invite the drafters to be guided by ECRI’s
Recommendation No. 7, especially paragraph 10
and the explanatory report thereto.
Article 29 - Territorial
jurisdiction
116. The provision seems to provide
for a specific ratione loci jurisdiction in addition to ratione materiae
jurisdiction. The provision is unclear since it does not give an indication of
the jurisdiction of a court whether civil or administrative cases or whether parties
are involved [this sentence would have to be redrafted since it is not well
formulated and not clear].
117. The drafters are invited to
determine more clearly the jurisdiction of the courts.
Article 30 - Initiating procedures
118. The third paragraph of the
article allows third parties (in particular, organisations dealing with the
protection of human rights and freedoms) to initiate proceedings on behalf or
in support of victims of discrimination. This provision is, in principle, to be
welcomed.
119. However, the right of third
parties to bring a legal action is limited to certain cases, namely when
discrimination occurs “by means of media, at a public gathering or by a public
authority, or if it has caused serious consequences”. In this part, the
provision deviates from the EU Directives
and ECRI’s Recommendation No. 7 (paragraph 25), pursuant to which third party
action is possible in all cases of discrimination.
Article 35 - Revision
120. The provision is not clear.
It needs to be clarified what the drafters mean under “revision”.
121. The drafters should bear in
mind that in any case, a revision of a court decision can only be decided upon
by a court and only on very specific conditions.
Article 36 - Acting Protector
122. This article seems to
confer competence to the Protector of Human Rights and Freedoms through a transitional
rule to deal with cases of discrimination as from the entry into force of the
law.
123. The same transitional rule should
apply to the courts.
V. Conclusions
124. The intention of the
Montenegrin authorities to adopt a single comprehensive anti-discrimination act
is to be welcomed and encouraged. The act is likely to constitute a significant
step in combating discrimination in the country.
125. The draft law has a number
of positive aspects. The draft law prohibits both direct and indirect
discrimination as well as a wide range of discriminatory actions. It introduces
the concept of positive action. Human rights organisations and other relevant
entities are allowed, although with certain limitations, to initiate
proceedings on behalf or in support of victims of discrimination. The draft law
provides for a shared burden of proof in discrimination cases.
126. However, in several aspects the draft law does not
comply with international and European standards. In this respect, the
following key recommendations can be made:
-
to
provide for the establishment of a specialised anti-discrimination body or in
case of granting enforcement powers to the Ombudsman to ensure that: a) the
Ombudsman has full powers for the implementation of the law; and b) the
Ombudsman institution has the necessary human and financial resources to fulfil
its new tasks, and specialised training in discrimination is provided for its
staff;
-
to
make the draft law more precise and clear;
-
to
avoid repetitions;
-
to
provide for “effective, proportionate and dissuasive” sanctions for breaching
the provisions of the law, and to regulate this issue in a more comprehensive
and detailed way;
-
to delete
or revise the provisions prohibiting the actions which are not by definition discriminatory;
-
to define
clearly the scope of application of the law to the public and private sphere;
-
to specifically
indicate that legal persons or entities are also entitled to protection from
discrimination under this law;
-
to improve the
definitions used in the draft, in particular relating to discrimination, indirect discrimination, positive action and
segregation;
-
to
introduce in the draft law cross-references to other relevant laws.
127. The Venice Commission welcomes
particularly the agreement given by the Montenegrin authorities to have a follow-up
mission taking place. This mission will allow a delegation of the Commission to
meet again with the Working Group in order to assist in the implementation of
the above-mentioned recommendations.
128. The Venice Commission
remains at the disposal of the authorities for any further assistance.
