8 August 2018
The Committee on the Elimination of Racial Discrimination today concluded its consideration of the combined fourth to sixth periodic report of Montenegro on its implementation of the provisions of the International Convention on the Elimination of All Forms of Racial Discrimination.
Presenting the report, Blanka Radosevic Marovic, Director General at the Ministry of Human and Minority Rights of Montenegro, explained that Montenegro had improved its legislative framework in the field of anti-discrimination with the latest amendments to the Law on Prohibition of Discrimination, which extended its application to the public and private sector. The amendments introduced new grounds for discrimination, a norm regulating hate speech, and they explicitly stipulated prohibition of discrimination on the basis of race, skin colour, nationality and ethnic origin, especially in the fields of education, employment, career choice, vocational training, social protection and benefits, healthcare and housing. Since Montenegrin legislation was largely in line with the Convention, there had been no cases in which courts had directly referred to it. The Constitution as the highest legal act, explicitly prohibited causing or inciting hatred or intolerance on any grounds. Amendments to the Criminal Code of July 2017 prescribed that if a criminal offence was committed against a person belonging to a particularly category (children, persons with disabilities, pregnant women, elderly persons, and refugees), the court would consider that circumstance as aggravating.
In the ensuing discussion, the Committee Experts commended Montenegro’s determination to protect human rights and its standing invitation to all Special Procedures, but regretted that there was no report submitted to the Committee by any non-governmental organization. They inquired about civil society’s participation in the preparation of the State party’s report, data collection, instances when courts invoked the Convention, functioning of the Ombudsman’s Office, and the situation of the Roma and Ashkali (Egyptians) communities, namely concerning unemployment, school dropout, birth registration, early marriage, as well as hate speech against those communities. The Experts also raised the issues of restitution of religious property, prosecution of the war crimes committed in the former Yugoslavia, legal provisions that criminalized racial discrimination, reversal of the burden of proof, the use of minority languages, access to justice, free legal aid, training for the judiciary and police on vulnerable groups, the situation of internally displaced persons and stateless persons, the use of affirmative action, and about the need to clean up the confusing statistics on national and religious affiliation, and on the language structure in Montenegro.
In concluding remarks, Chinsung Chung, Committee Expert and Country Rapporteur for Montenegro, thanked the delegation for their long answers and for the fruitful dialogue with the Committee. Montenegro had demonstrated strong political and strategic determination to protect human rights.
On her part, Ms. Radosevic Marovic thanked all Committee members, especially the Country Rapporteur, for having tackled the issues that fell under the scope of the Convention, adding that Montenegro hoped to become a society with zero tolerance for discrimination based on race, ethnicity and religious affiliation.
Noureddine Amir, Committee Chairperson, thanked and congratulated the delegation for having understood the Committee’s message regarding its aims and goals.
The delegation of Montenegro included representatives of the Ministry of Human and Minority Rights, the Ministry of Culture, the Ministry of Education, the Ministry of Sustainable Development and Tourism, the Ministry of the Interior, the Ministry of Labour and Social Welfare, the Ministry of Health, the Ministry of Justice, and the Permanent Mission of Montenegro to the United Nations Office at Geneva.
The Committee will next meet in public today at 3 p.m., to consider the combined sixth to twelfth periodic report of Latvia (CERD/C/LVA/6-12).
The Committee has before it the combined fourth to sixth periodic report of Montenegro: CERD/C/MNE/4-6.
Presentation of the Report
BLANKA RADOSEVIC MAROVIC, Director General at the Ministry of Human and Minority Rights of Montenegro, emphasised that Montenegro was a contracting party to almost all international legal instruments in the field of human rights, and that it regularly reported on their implementation. Montenegro had improved its legislative framework in the field of anti-discrimination with the latest amendments to the Law on Prohibition of Discrimination, which extended its application to the public and private sector. The amendments introduced new grounds for discrimination, a norm regulating hate speech, and they explicitly stipulated prohibition of discrimination on the basis of race, skin colour, nationality and ethnic origin, especially in the fields of education, employment, career choice, vocational training, social protection and benefits, healthcare and housing. The amendments to the Law on the Protector of Human Rights and Freedoms, among others, further extended the Ombudsman’s competence when it came to providing protection against discrimination. To date, the authorities had been continuously conducting education and media campaigns for the general and professional public on the prohibition of discrimination and affirmation of anti-discrimination behaviour. In addition, once every two years the authorities conducted research about the degree of discrimination in Montenegrin society, which was then used to create policies.
Amendments to the Law on Minority Rights and Freedoms created preconditions for improving the work of existing institutions in order to provide adequate support for the exercise of minority rights and freedoms, and transparency and efficiency of procedures for the allocation of funds for the implementation of projects intended for activities important for the preservation and development of national and ethnic specificities of minorities. As for finding a permanent solution for the refugees and displaced persons from the former Yugoslavia, the new strategy for the period until 2019 had been adopted and it should ensure the continuation of positive results achieved with the previous strategy. Between 2009 and 2017, approximately 96 per cent of applications submitted for granting permanent and temporary residence for up to three years had been settled. When it came to asylum, the Law on International and Temporary Protection of Foreigners, adopted in 2017, was one of the first laws that fully implemented European standards in the field of asylum and it was positively assessed by the European Commission. A new commission for monitoring the implementation of the Gender Equality Strategy 2017-2021 had been appointed in December 2017. On the integration of the Roma and Ashkali (Egyptians), the Government had placed emphasis on education, starting from pre-school education and prevention of early drop out, as well as on promoting their employability and social inclusion. One of the measures for achieving higher employment of Roma was the introduction of Roma mediators in the field of employment.
Since Montenegrin legislation was largely in line with the Convention, there had been no cases in which courts had directly referred to it. The Constitution as the highest legal act, explicitly prohibited causing or inciting hatred or intolerance on any ground. It also stipulated that the competent court may prevent the dissemination of information and ideas through means of public information only if it was necessary, inter alia, to prevent the promotion of racial, national and religious hatred or discrimination, and it prohibited the activities of political or other organizations whose activities were directed at provoking national, racial, religious and other hatred and intolerance. Amendments to the Criminal Code of July 2017 prescribed that if a criminal offence was committed against a person belonging to a particularly category (children, persons with disabilities, pregnant women, elderly persons, and refugees), the court would consider that circumstance as aggravating. The criminal offence of racial and other discrimination had also been amended and it now unambiguously sanctioned the spreading of the ideas of racial superiority or the promotion of hatred or intolerance based on race, sex, disability, sexual orientation, gender identity or other personal characteristics.
Questions by the Country Rapporteur
CHINSUNG CHUNG, Committee Expert and Country Rapporteur for Montenegro, commended Montenegro’s determination to protect human rights and its standing invitation to all Special Procedures. There was no general hostility towards ethnic minorities in Montenegro, but there was racial discrimination of the Roma and Ashkali (Egyptians).
Ms. Chung regretted that there was no report submitted to the Committee by a non-governmental organization. The Committee had no information on how civil society had participated in the preparation of the State party’s report. The Montenegrin Government had provided old statistics in its report, dating back to 2011. There was a need to improve data collection, Ms. Chung noted, especially on marginalized groups. What steps had been taken to collect such data and make it available?
In which cases had courts invoked the Convention? What legal provisions criminalized organizations that promoted racial discrimination, as well as the financing of such organizations? What were statistics on cases of discrimination when courts used aggravating circumstances? What was the number of submitted complaints of racial discrimination and sentences handed down?
Ms. Chung asked whether the Convention was systematically included in the human rights training for law enforcement officials. What was the impact of such training? Moving on to the Office of the Ombudsman, Ms. Chung reminded that it had a B status.
The Roma and Ashkali (Egyptians) communities were the most marginalized ones in Montenegro. What awareness raising campaigns for the general population had been organized to fight discrimination and stigmatization of those communities? Roma faced difficulties in benefiting from free legal aid, especially when it came to late birth registration of children.
Persons from the Roma and Ashkali (Egyptians) communities were persistently discriminated against in employment. Between 2012 and 2017, the number of unemployed had risen and 94 per cent of unemployed were persons without professional qualifications. What measures had the State party taken to avoid the eviction of the Roma and Ashkali (Egyptians) in the field of housing?
A very low percentage of the Roma and Ashkali (Egyptians) finished their primary education. What steps had been taken to ensure the availability of pre-school education to all Roma children? The dropout rate from secondary school remained high, especially among Roma girls due to early marriage. It had been reported that 41 per cent of Roma and Ashkali (Egyptian) women were believed to have married before the age of 18.
The phenomenon of street begging among Roma and Ashkali (Egyptian) children was the most visible problem. Hate speech against the Roma and Ashkali (Egyptians) was on the rise online, at sports events, and by politicians, Ms. Chung noted.
Montenegro had not yet adopted an internationally accepted definition of ethnic minority. The national minority councils had been set up to represent various ethnic communities, but were essentially considered as non-governmental organizations, without any real power. What was the representation of ethnic minorities in political and public affairs?
Ms. Chung further raised the issue of restitution of religious property confiscated by the former communist Government, and prosecution of the perpetrators of war crimes in the former Yugoslavia.
How would Montenegro manage challenges in terms of accommodation capacity for receiving refugees and migrants? Several laws needed to be amended to protect the rights of stateless persons, such as laws on healthcare and social welfare. What were the conditions of persons living in detention centres for asylum seekers?
Questions by Other Experts
GUN KUT, Committee Expert and Rapporteur for Follow-Up to Concluding Observations, informed that Montenegro had submitted its follow-up report somewhat late, after its previous review in 2014. One of the issues selected for the follow-up report concerned education and training for the judiciary, lawyers, police, and civil society on protection against discrimination. The Committee had noted the lack of information on how to report cases of discrimination, and it observed that the database of the Office of Ombudsman had not yet been made operational. The second issue concerned internally displaced persons and the lack of up-to-date information. The Committee regretted the lack of information on birth registration and increasing registration among the Roma and Ashkali (Egyptians). Finally, the Committee had been concerned about guarantees to allow access to education to all children, and especially to Roma and Ashkali (Egyptian) children.
One Expert inquired about the interpretation of international treaties by the Montenegrin Constitutional Court. He noted very slow progress in improving the situation of the Roma and Ashkali (Egyptians) in employment. What measures had the Government taken to improve access to the labour market for the Roma and Ashkali (Egyptians)? How were persons of African descent integrated in Montenegro?
Another Expert asked about the make-up of the prison population in Montenegro. What was the number of cases of racial discrimination? It seemed that the law was too broad to properly deal with racial discrimination. Did minorities know about their rights and about the opportunity to seek assistance from the Ombudsman?
Montenegro styled itself as an “ecological” country in its Constitution, an Expert observed. What were examples of how that proclamation worked? Did the State party have any concept of the reversal of the burden of proof? Who benefited from capacity-building programmes? What did the term “collective property” refer to?
What was the difference between the terms “Roma” and “Tsigan”? In which domains could minority languages be used and recognized, and was it on the same level as the majority language?
What were the prerequisites for the passing of cases to other legal instances? What was the right of inheritance for foreigners?
Could the delegation speak about the interaction between the Government of Montenegro and civil society? What was the space for civil society in the country? Were minority groups represented in Parliament?
How had access to justice changed since the country’s previous review? Were there specific courts and tribunals for the cases of discrimination? Were investigative judges independent in their decision-making?
Replies by the Delegation
The delegation stressed that all courts in Montenegro were committed to the creation of a legal space respectful of human rights. According to the Constitution, everyone had the right to have her or his cases discussed and decided on by a court. There had been no case in which the Convention had been specifically invoked. International treaties had supremacy over national legislation, but they were directly applied only where national legislation differently ruled on the given issue. Montenegro had invested a lot of effort to better implement the Convention in the everyday work of the judiciary.
On statistics on racial discrimination, the delegation explained that a whole set of laws regulated that area. Regular courts dealt with cases of racial discrimination. From 2010 until nowadays, there were 12 final rulings with elements of racial discrimination. Only one case remained open, which had been initiated in 2011. Some cases related to religious freedom, racial and other forms of discrimination, and violations of the principle of equality. Sentences ranged between three to five months. Misdemeanour sentences had been handed down for public disturbances and insults.
As for training of judges and prosecutors, it took place within the Judicial Training Centre. There had been very intense training activities since 2017, a total of 11 programmes, which included modules on hate crimes, and on international legal standards in the area. The Judicial Training Centre did not conduct long-term analysis of the impact of training.
With respect to access to justice and legal aid, Montenegro had created conditions for all persons to have equal access to justice. Persons of weaker financial status received free legal aid, without any discrimination. The Ministry of Justice was analysing cases of free legal aid on an annual basis. In 2016, the Government had also adopted a law on compensation damages for victims of violence.
Amendments to the Criminal Code of July 2017 prescribed that if a criminal offence was committed against a person belonging to a particular category (children, persons with disabilities, pregnant women, elderly persons, and refugees), the court would consider that circumstance as aggravating. With those amendments, Montenegro had aligned its Criminal Code with the Convention.
The Criminal Code did not contain a specific provision that would prohibit the work of organizations that spread racial discrimination. Explaining legal provisions that dealt with hate crimes, the delegation said that there were provisions on incitement of national and religious hatred (article 42 of the Criminal Code). Another article, namely article 168 of the Criminal Code, stipulated the crime of endangering security. Under that article, courts had dealt with cases of hatred and attack on lesbian, gay, bisexual, transgender and intersex persons. Another article dealt with hate crimes committed against persons because of their belonging to a political organization.
On the prosecution of war crimes committed in the former Yugoslavia, the delegation explained that in 2015 Montenegro had adopted a strategy to investigate war crimes committed by Montenegrin citizens. The Supreme State Prosecutor’s Office of Montenegro had good cooperation with the courts of regional countries in that respect, namely with Bosnia and Herzegovina, Croatia and Serbia.
As for foreigners’ right to inheritance, the delegation clarified that foreigners in Montenegro had the same rights as Montenegrin citizens in those countries. There was no “collective” property, but there was “joint” property of several persons.
The delegation explained that courts used the official language (Montenegrin), but courts also used minority languages in parts of the country where minorities made up a significant portion of the population. Otherwise, interpretation services were available. Judges had a permanent mandate and were independent. The Constitutional Court was a sui generis court that determined the constitutionality of all court decisions. If parties were not satisfied with national court decisions, they could address the European Court of Human Rights in Strasbourg.
The total prison population in Montenegro amounted to 32. Discrimination was prohibited and inmates belonging to minorities had the same rights as everyone else. All arrested persons could use interpretation services if they wanted to use their own language. They could fully exercise their right to religion in prison. As for the reversal of the burden of proof, it was on the side of the defendant in civil and labour matters, or on the prosecutor in criminal matters.
The Constitution provided a set of additional rights for minorities. Montenegro used a different definition of ethnic minorities in line with its historical context. In April 2017, Parliament had adopted amendments to the Law on Minority Rights and Freedoms, which had doubled contributions to the Minority Fund. A special council for the promotion of the cultural rights of minorities had been set up in 2009. There were six minority councils in the country: Albanian, Bosniak, Croatian, Muslim, Roma, and Serbian. They should not be confused with non-governmental organizations and they received separate funds.
Minority languages were in official use if minorities comprised a minimum of five per cent of the population in a local community, or the majority of the population. Persons belonging to minorities held the same rights as the rest of the population. In some areas the authorities used the concept of affirmative action to ensure their better integration, such as for example in higher education. About 33.3 per cent of the Government members came from minorities. The proportional representation of minorities was a constitutional category.
As for cooperation with civil society, the Ministry of Human and Minority Rights held regular quarterly meetings with all non-governmental organizations, which received an open invitation to attend all Government meetings. Non-governmental organizations were also invited to provide feedback in law-making.
BLANKA RADOSEVIC MAROVIC, Director General at the Ministry of Human and Minority Rights of Montenegro, clarified that the Law on Prohibition of Discrimination was considered by the European Union as fully aligned with European Union principles and standards. There were multiple measures of protection from discrimination through various court decisions and procedures of the Ombudsman. The Law on Prohibition of Discrimination prescribed very stringent sentences for offences.
The authorities were working on improving the status of the Ombudsman’s Office, for example, by introducing impunity for the staff of the Ombudsman’s Office. As of 2014, the Government had been increasing the funds for the Ombudsman’s Office on an annual basis. The Ombudsman’s Office was very visible through media and presence in different fora, and the number of requests from citizens had increased by 150 per cent in the recent past. Courts, police and prosecutors were obliged to report on their work on every single case of discrimination to the Ombudsman’s Office, which submitted its own report to Parliament in March every year.
Public awareness campaigns and training for the judiciary and police about vulnerable groups (determined according to regular research carried out by the authorities) were frequently and regularly organized. Training consisted of six seminars and interactive workshops, after which attendants would take relevant tests.
Speaking of the birth registration of Roma children, the delegation stressed that there was mandatory universal birth registration of all children in Montenegro, including those born outside hospitals. Those born outside hospitals could be registered within 30 days after birth. In 2015, Montenegro had made the necessary legal changes to ensure that courts would register all children. The Ministry of the Interior had carried out a public awareness campaign (translated in Albanian and Roma languages) on an easy four-step procedure for parents to register their children. Abandoned children were also registered.
Internally displaced persons were mostly persons who had come from Kosovo in 1999. In 2009, the Government had decided to allow them to apply for permanent residence in Montenegro, and it had extended the deadline for their applications to 1 December 2014. Montenegro and Kosovo had signed an agreement to resolve the status of those persons through the deployment of mobile units which had visited internally displaced persons. Thanks to the work of those mobile units, 1,118 persons had received the passports of Kosovo. Most internally displaced persons had the status of foreigners with permanent residence in Montenegro, or residence up to three years. Between 1,500 and 1,600 internally displaced persons from Kosovo had received permanent accommodation solutions.
The Law on Citizenship left little space for the existence of stateless persons in Montenegro. After the census in 2011 in Montenegro, some persons had declared that they were stateless. Accordingly, in 2014 the Ministry of the Interior had issued a public call for persons who did not have proper documents to approach the relevant authorities and regulate their status. Some 486 persons had come forward between September and November 2014. Following investigation, only five persons had been found to be indeed stateless and they had been issued travel documents, in line with the new Law on Foreigners. Asylum seekers received all the necessary support, such as education, accommodation, and legal aid.
The delegation explained that “Tsigan” was a derogatory name, which meant “dirty” and “disgusting” whereas “Roma” meant “man/human being.” All relevant institutions dealing with Roma issues had been involved in the drafting of the Strategy for the Social Inclusion of the Roma and Egyptians 2016-2020. In order to fight school dropout, the authorities provided Roma and Ashkali (Egyptians) children with free-of-charge textbooks and transport to and from school, as well as free of charge summer vacation trips. In addition, there were employment and vocational training programmes for that population.
On eviction and potential segregation of the Roma and Ashkali (Egyptians) communities in housing, the delegation provided examples of neighbourhood co-habitation of the Roma and Ashkali (Egyptians) and other communities in the towns of Niksic and Berane.
As for healthcare for the Roma and Ashkali (Egyptians) communities, more specifically on the provision of contraceptives to Roma and Ashkali (Egyptians) women, the delegation stressed that all women in Montenegro received contraceptives free of charge. In the past five years, the Ministry of Health had organized regular health check-ups for the Roma and Ashkali (Egyptians) communities.
Second Round of Questions by Committee Experts
An Expert reiterated the problem of unemployment among the Roma, who were offered low-skilled jobs even when they had higher education. He also inquired about the conditions for receiving free legal aid.
There was a serious need to clean up the statistics on national and religious affiliation, and on the language structure in Montenegro, especially the general reference to “Muslims,” one Expert observed. The Expert also did not understand the linguistic references to “Bosnian/Bosniak,” “Serbo-Croatian,” and “Serbian-Montenegrin.”
Did Montenegro plan to ratify the International Labour Organization’s Convention No. 189 on Domestic Workers?
Another Expert inquired about the reversal of the burden of proof in civil and labour matters. What was the scope of the constitutional declaration that Montenegro was an “ecological” State?
Who was in charge of carrying out the bi-annual survey on discrimination in Montenegro? How was it carried out, and what were the results and outcomes?
CHINSUNG CHUNG, Committee Expert and Country Rapporteur for Montenegro, asked why civil society had not submitted alternative reports to the Committee.
Replies by the Delegation
Free legal aid was available to persons who could not afford to pay for such aid without financially endangering themselves or their families.
The delegation clarified that the census of 2011 reflected the self-identification of Montenegrin citizens. Some persons had multiple ethnic, religious and linguistic identities and reported them as such. There was an ethnic category of “Muslim” and “Bosniak” in Montenegro, in addition to religious affiliation “Islamic/Muslim.” Those ethnic, religious and linguistic categories reflected the recent political changes that had taken place since the dissolution of the former Yugoslavia, and some of the ethnic and religious categories were inherited from the former Yugoslavia.
Small minorities, such as Ashkali (Egyptians) who numbered only 43, enjoyed advantages in education and employment through affirmative action. The authorities worked to make Roma and Ashkali (Egyptians) competitive in the labour market. In September 2018, the Government would carry out more research on the representation of minorities in various sectors, in order to compare it with the research from 2015.
The Government had adopted a strategy to raise awareness about the necessity to protect the environment. About 13 per cent of the territory of Montenegro was protected as natural parks with rich vegetation and wildlife, explained BLANKA RADOSEVIC MAROVIC, Director General at the Ministry of Human and Minority Rights of Montenegro.
The bi-annual survey on discrimination in Montenegro had first taken place in 2011. It was carried out every second year in order to show the effects of relevant policies. An independent commission chose an agency to carry out the survey on a representative sample of the Montenegrin population. The surveys were very useful in pointing out the most vulnerable groups in the society, among which were Roma and lesbian, gay, bisexual, transgender, and intersex persons, the head of the delegation said.
As for the lack of participation of civil society in the State party’s dialogue with the Committee, Ms. Radosevic Marovic reminded that non-governmental organizations had participated extensively in the preparation of Montenegro’s Universal Periodic Review. However, they expressed low interest in taking part in the discussions before the Committee on the Elimination of Racial Discrimination.
CHINSUNG CHUNG, Committee Expert and Country Rapporteur for Montenegro, thanked the delegation for their long answers and for the fruitful dialogue with the Committee. Montenegro had demonstrated strong political and strategic determination to protect human rights. The Committee still had some concerns, which would be reflected in the concluding observations. Ms. Chung expressed hope that Montenegro would submit its follow-up report on time.
BLANKA RADOSEVIC MAROVIC, Director General at the Ministry of Human and Minority Rights of Montenegro, thanked all Committee members, especially the Country Rapporteur, for having tackled the issues that fell under the scope of the Convention. The Government of Montenegro particularly focused on the results of the implementation of the obtained recommendations. Montenegro hoped to become a society with zero tolerance for discrimination based on race, ethnicity and religious affiliation.
NOUREDDINE AMIR, Committee Chairperson, thanked and congratulated the delegation for having understood the Committee’s message regarding its aims and goals.
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