Committee on the Elimination of Racial Discrimination

Ninety-sixth session

Summary record of the 2648th meeting

Held at the Palais Wilson, Geneva, on Tuesday, 7 August 2018, at 3 p.m.

Chair:Mr. Amir

Contents

Consideration of reports, comments and information submitted by States parties under article 9 of the Convention

Combined fourth to sixth periodic reports of Montenegro

The meeting was called to order at 3 p.m.

Consideration of reports, comments and information submitted by States parties under article 9 of the Convention

Combined fourth to sixth periodic reports of Montenegro (CERD/C/MNE/4-6; CERD/C/MNE/Q/4-6)

At the invitation of the Chair, the delegation of Montenegro took places at the Committee table.

Ms. Radošević Marović (Montenegro), introducing the combined fourth to sixth periodic reports of Montenegro (CERD/C/MNE/4-6), said that the latest amendments to the Law on Prohibition of Discrimination had extended the scope of that legislation. It now applied to both the public and the private sectors and also covered hate speech. It explicitly prohibited discrimination on the basis of race, skin colour, nationality or ethnic origin, notably in the fields of education, employment, vocational training, social welfare, health care and housing, and stiffer penalties had been introduced. Awareness-raising campaigns continued and the level of discrimination in Montenegrin society was monitored regularly with a view to adapting anti-discrimination policies; the results to date had been encouraging.

Amendments had been made to the Law on Minority Rights and Freedoms with a view to supporting institutions working in that area and improving the transparency and efficiency of procedures for allocating funds to projects.

A new strategy had been drawn up for the period until 2019 to continue addressing the status issues of refugees and displaced persons from the former Yugoslavia. Under the 2009–2017 strategy, around 96 per cent of applications for permanent or temporary residence had been successfully settled. In addition, funds were to be provided under the Regional Housing Programme to accommodate over 1,000 vulnerable households currently in informal centres such as the Konik Camp.

As to asylum, she said that the Law on International and Temporary Protection of Foreigners, which had entered into force at the beginning of the year, fully implemented European standards and had received a positive assessment from the European Commission.

Under the Council of Europe project on Support to National Institutions in Preventing Discrimination in Montenegro (PREDIM), which focused on the promotion and protection of the human rights of marginalized social groups such as the Roma, a curriculum had been devised for training judges and prosecutors on discrimination on grounds such as race, nationality and colour.

The main emphasis of efforts to integrate the Roma and Egyptian populations was on education, including preschool education and the prevention of early dropout. Campaigns were conducted to encourage the enrolment of Roma children in elementary school and language support and supplementary classes were provided. Textbooks were made available free of charge and specialist assistance was provided in schools. Scholarships were granted for secondary school and university students. In order to promote Roma and Egyptian access to the labour market, financial resources were allocated to encourage their involvement in the work of the Employment Bureau, which promoted employability and social inclusion.

Turning to the questions put by the Committee in the list of themes in relation to the report (CERD/C/MNE/Q/4-6), she said that data on the ethnic composition of the population had been collected since 2009. The National Statistics Office was currently running its second multiple indicator cluster survey (MICS), focusing particularly on persons residing in Roma settlements.

No direct reference to the Convention had been made by the national courts because domestic legislation was largely in line with the Convention. Given that, under the Constitution, ratified international treaties formed part of the internal legal order, the courts needed to invoke them directly only where national law diverged.

With regard to the absence of provisions criminalizing organizations promoting and inciting racial discrimination, she said that the Constitution prohibited activities by political and other organizations aimed at provoking national, racial, religious or other forms of hatred and intolerance. Article 42 (a) of the Criminal Code, relating to racist motivation as an aggravating circumstance, had been applied in two cases in 2017, one relating to gender identity and the other to religious hatred. The trials were still under way. According to representatives of the judiciary, the fact that the provisions on racist motivation were not applied more frequently in criminal cases could not be attributed to a lack of knowledge of the legislation; it was rather a matter of lack of evidence confirming the existence of the circumstances required by law.

The Judicial Training Centre had run 11 training sessions for police, prosecutors, lawyers and judges in 2017 and 2018, covering discrimination, hate crimes, freedom of association and freedom of assembly.

In 2017 the Protector of Human Rights and Freedoms had employed 34 staff, including 11 new recruits. Appropriate premises and workspace were provided. The budget covered work in all areas of protection under that mandate and increased year on year; the institution’s financial independence had been enhanced by the recent amendments to the Law on the Protector of Human Rights and Freedoms. In general the Ombudsman’s recommendations were implemented promptly by the courts.

Montenegro guaranteed every child’s right to official birth registration, whether or not they were born in a health facility. Late registration was required if the 30-day deadline expired without registration. A non-contentious court procedure was in place for determining the time and place of childbirth, which enabled cases to be resolved even where evidence was insufficient.

On the question of marginalization of Roma and discrimination in employment, she said that, at the end of 2017, Roma had accounted for 1.8 per cent of total registered unemployed. Given that the main problem was a lack of education and qualifications, funds were being made available to improve employability in line with overall employment strategy and the Strategy for Social Inclusion of Roma and Egyptians in Montenegro.

Activities under the project “Step closer to the labour market” had been launched in February 2017, the main goal being to strengthen social inclusion and employability by means of specially designed training programmes to help Roma obtain an initial qualification; employers were also informed about subsidies available for employing Roma or Egyptians. In addition, mediator posts had been created to assist with the inclusion of Roma in employment.

The first subproject under the Regional Housing Programme had been fully implemented, providing housing for some 60 families, and the first phase of the second subproject, for the residents of Konik Camp, had been completed. Further subprojects were planned for the end of 2018.

Some 1,800 children from the Roma and Egyptian population had been enrolled in elementary school for the academic year 2017/18; 142 Roma students, including 63 girls, in secondary school; and 27 in various university faculties. Exemption from fees for preschool, and campaigns among Roma parents, had resulted in an increase in kindergarten enrolments. A protocol on multidisciplinary cooperation to prevent early dropout had been implemented under the Strategy for Social Inclusion.

As to non-citizens, migrants, asylum seekers and refugees, the Law on International and Temporary Protection of Foreigners had enabled the establishment of a centre for the reception and accommodation of up to 80 foreigners and alternative accommodation for 150. The centre provided food, clothing and hygiene products, psychosocial treatment and counselling, occupational therapy and mediation with a view to obtaining financial assistance. It also had an outpatient facility with medical workers and a doctor, and residents were entitled to attend secondary and tertiary-level health facilities.

With regard to stateless and internally displaced persons, she said that the Law on Montenegrin Citizenship applied the principles of the European Convention on Nationality and helped to prevent statelessness and arbitrary deprivation of citizenship; it prevented discrimination and established the right to citizenship, in accordance with the international conventions ratified by Montenegro. The Law on International and Temporary Protection of Foreigners set forth the procedure for determining status and issuing travel documents to stateless persons and, under certain conditions, granting permanent or temporary residence. Permanent residence status enabled internally displaced persons to integrate into Montenegrin society through access to the labour market, education, recognition of qualifications and other social benefits. Between 2009 and 2018 to date, 8,359 of the 8,527 permanent residence applications received from internally displaced persons from Kosovo had been resolved, with 7,241 of those applicants receiving permanent residence; of the 1,508 applications for temporary residence received in the same period, 1,228 had been settled, with 442 applicants receiving temporary residence for up to 3 years.

Ms. Chung (Country Rapporteur) said that it was regrettable that no civil-society report had been submitted, which left the Committee with no information on how non-governmental organizations (NGOs) were involved in the reporting and follow-up processes. The State party should update and improve the way it collected information on the ethnic composition of its population and should provide up-to-date data, disaggregated by socioeconomic situation, ethnicity and national minority. Information of any steps that the State party had taken to collect data on the implementation of legislation and to make that data available for consultation would be welcome. Moreover, the Committee would be interested in examples of the ways in which the International Convention on the Elimination of All Forms of Racial Discrimination had been incorporated into the Montenegrin legal framework, with specific mention of cases in which the Convention had been directly invoked by the domestic courts.

The State party should provide information on any legal provisions criminalizing organizations that promoted and incited racial discrimination. The Committee was interested to learn about any legislation that criminalized the act of financing such organizations. It would also be useful to see statistics relating to the application of aggravating circumstances in the sentencing of criminal offences motivated by race, nationality or ethnicity.

The Committee would appreciate an update regarding complaints of racial discrimination submitted before domestic courts and the findings of the Protector of Human Rights and Freedoms with regard to racial discrimination. Moreover, the reporting State should describe any steps it had taken to facilitate the filing of complaints of racial discrimination and to ensure that such complaints were properly registered by the police, particularly when the complainants were from Roma, Ashkali and Egyptian communities.

The Committee would appreciate clarification as to whether the Convention was systematically included in the human rights training afforded to law enforcement officials and whether such training had helped to improve the detection of racial discrimination as a motive in complaints brought to the police. General information on the outcome of the provision of training would also be welcome.

Additional details on the State party’s general awareness-raising campaign to promote inter-ethnic dialogue and understanding and to prevent discrimination against persons belonging to Roma, Ashkali and Egyptian communities and its outcomes would be welcome. Although the introduction of a court procedure for the late birth registration of persons born outside the health system was welcome, the State party should ensure that all children were registered at birth. The reporting State should also consider the importance of raising awareness of birth registration among Roma, Ashkali and Egyptian communities. The Committee was interested to learn about the results of any measures that had been taken to combat growing unemployment, in those communities in particular. It would also be useful to learn about any measures that had been adopted to prevent urban segregation and eviction following the allocation of social housing to Roma.

On the issue of school enrolment, the Committee was interested to hear about the results of the school enrolment campaign for Roma and Egyptian children mentioned in paragraph 221 of the periodic report. It would also be interesting to learn of any additional steps that the State party had taken to ensure the availability of preschool education for all Roma children. Information on the results of the Strategy of Inclusive Education in MONTENEGRO 2015–2017 would also be appreciated. The Committee would be grateful for information on any steps that had been taken to institutionalize the recruitment of Roma mediators to follow up on cases of school dropout.

The State party should take measures to put an end to the labour exploitation of Roma, Ashkali and Egyptian children, should strengthen its efforts to eliminate child marriage, and should conduct a comprehensive situation analysis to determine the scope and causes of child begging, collate statistics on the number of children living on the street, and prepare a comprehensive and multisectoral strategy to tackle that issue. An evaluation of the results of the National Strategy (2012–2018) to combat and prevent trafficking would also be appreciated.

Government officials should distance themselves from racist hate speech. Such speech should be investigated and those who used it should be prosecuted and sanctioned appropriately. In that regard, the Committee would appreciate information on the work of the Montenegrin Computer Incident Response Team and the Cybercrime Division of the National Police in countering hate speech on the Internet. It would be useful to know whether those institutions had sufficient resources and expertise to carry out their work.

The Committee would welcome an update on the functions of the National Minority Councils and the results of any measures that they had taken. It would also be interesting to know more about the application of the Law on Amendments to the Law on Minority Rights and Freedoms, with particular regard to the framework of the participation of minorities in self-government units.

The Committee would appreciate an update on the representation of national and ethnic minorities in public and political affairs, as well as on radio and television coverage of issues affecting national minorities. In addition, it would be interesting to learn what the State party had done to ensure that quality textbooks and manuals on all subjects were available and taught in minority languages at all levels of education and to encourage schools to use the general curriculum as an opportunity to reflect the identities and cultures of persons belonging to national minorities.

The reporting State should explain what it had done to restitute property that had been confiscated from ethno-religious minorities, and should also describe the outcomes of the measures that it had taken to ensure that the perpetrators of war crimes were prosecuted, in line with the practice of the International Criminal Tribunal for the former Yugoslavia.

It would be interesting to know how the State party planned to manage potential challenges to its reception capacity arising from the upward trend in the number of asylum seekers arriving in and transiting through Montenegro. The State party should fully implement its newly established statelessness determination procedure, enhance access to its refugee determination procedure, improve the quality of its reception standards for all asylum seekers, and ensure the local integration of persons granted asylum in order to more fully comply with its obligations under articles 1 and 5 of the Convention. Lastly, the Committee would appreciate information on the living conditions of persons residing in asylum seekers’ centres.

Mr. Kut (Follow-up Coordinator) said that he hoped that the State party’s follow-up report to the concluding observations resulting from the present session would be submitted on time. Having considered the State party’s previous follow-up report (CERD/C/MNE/CO/2-3/Add.1) and the present periodic report, he would appreciate more detailed information on the training afforded to the judiciary, the Protector of Human Rights and Freedoms, the police and NGOs on how to provide protection from discrimination, particularly regarding training on how to report cases of discrimination and bring them to court, as well as on the provisions of criminal legislation relating to racism, equal treatment and non-discrimination. He would like to know whether lawyers and prosecutors undertook similar training.

It would be useful to receive more information on the operational status of the database of cases of discrimination of the Protector of Human Rights and Freedoms. Up-to-date information on the situation of displaced and internally displaced persons and the success of the simplification of registration procedures would be appreciated. Additionally, it would be interesting to receive updated, detailed information on the State party’s strategy to increase the birth registration rate in Roma, Ashkali and Egyptian communities.

Lastly, he would be grateful for more detailed information on the improvement of access to the education system for all children, especially Roma, Ashkali and Egyptian children whose births had not been registered, and would welcome clarification as to whether a strategy had been devised in that regard.

Mr. Avtonomov said that he would like to know why there was no mention of the Ashkali community in the State party’s periodic report. He was also interested to know more about how the Constitutional Court of Montenegro interpreted international treaties. In addition, it would be useful to have a full account of the measures that had been taken by the State party to encourage the social and labour integration of Roma and Ashkali communities for the period between 2016 and 2020, including statistics and a list of activities. He would appreciate information on how article 17 of the Law on Prohibition of Discrimination was implemented in practice and how its amendment would affect the institutions that worked to improve the situation of Roma and Ashkali communities. Lastly, he wished to know what the State party was doing to integrate persons of African descent into Montenegrin society.

Mr. Calí Tzay said that he wished to know what proportion of the prison population was from an ethnic minority background; whether the courts had dealt with any cases involving racial discrimination and, if so, how many; what their outcomes had been and whether any cases were pending. While welcoming the amendments made to the Criminal Code with respect to racial discrimination, he wondered why aggravating circumstances were applicable only to certain offences, leaving the majority of offences involving racial discrimination to be treated as misdemeanours. He asked whether there was a problem with the scope or application of the law and, if so, whether further amendments were envisaged.

He would like to know whether the Protector of Human Rights and Freedoms had sufficient human and financial resources to handle the increased number of complaints it received and whether the Government had conducted any information campaigns to raise awareness among the population, including among ethnic minorities, of that institution and its work. Lastly, since Roma children were statistically more likely to experience problems at school and less likely to complete their primary education, he wondered whether the Roma mediators currently provided for by the Institute for Education were sufficient in number to address the problem.

Mr. Murillo Martínez, noting that the State party had legally declared itself to be an “ecological State”, said that he wished to know what action the Government of Montenegro had taken to honour its commitment to become an environmentally friendly country. In the light of the immense climate-change-related challenges faced by individual countries and by humanity as a whole, he would welcome information on efforts made to achieve the Sustainable Development Goals, particularly Goal 13 on taking urgent action to combat climate change and its impacts.

It would be useful to know whether the legal reforms introduced to combat racial discrimination had included the reversal of the burden of proof in civil and labour law cases involving racial discrimination and, if not, whether there were plans to make that change in the near future. Referring to paragraph 57 of the State party’s report, he asked how many members of the judicial and police personnel had received training on anti-discrimination legislation and whether the latest technologies had been leveraged to improve uptake and increase accessibility. Information on constitutional recognition of collective property, such as whether it related to specific ethnic groups, would also be appreciated.

Ms. Dah said that she wished to know whether the Government intended to take the necessary steps to ensure that the Protector of Human Rights and Freedoms, which currently held B status under the principles relating to the status of national institutions for the promotion and protection of human rights (the Paris Principles), could qualify for A status.

She welcomed government efforts to legislate against racial and religious discrimination and to establish segregation as a form of discrimination and she expressed the hope that those laws would soon be tested in the courts. Lastly, the State party’s approach to gender equality had struck her as an interesting one, not least because it had highlighted the fact that gender equality did not stop at promoting women’s participation. It was also sometimes necessary to foster men’s involvement in areas where they were underrepresented.

Mr. Bossuyt, referring to paragraph 6 of the State party’s report, said that he wished to know what criteria were used by the Government to differentiate between Roma and Balkan Egyptian communities. He wondered to what extent the Law on International and Temporary Protection of Foreigners, adopted in 2016, had actually provided for faster, more effective procedures, given that the European Union directives and legislation that it was intended to implement were very complex. Regarding paragraph 30 of the periodic report, on the official use of national minority languages in local self-governing areas where national minorities represented at least 5 per cent of the population, he asked in which specific domains those languages were used and how many self-governing areas were currently implementing that practice.

He noted that persons could request protection from the Constitutional Court provided that all other domestic legal means had been exhausted and he wondered whether information could be provided regarding what those means were. Plans to amend the Law on the Prohibition of Discrimination in order to define practices that were not considered to be discrimination seemed unusual and he would therefore be interested to know how the State party intended to go about it. Lastly, he would welcome clarification on the inheritance rights of foreigners in Montenegro.

Mr. Diaby said that he was concerned that there were no NGOs present during the dialogue and thus wished to know the extent to which the Government interacted with civil society, whether NGOs had been involved in the drafting of the State party’s periodic report and whether NGOs enjoyed freedom of expression in Montenegro. In the light of the legislative changes that had occurred since the State party’s previous review, he would like to know what improvements had been made in terms of access to justice.

He wondered to what extent members of national minorities and ethnic minorities were able to gain access in their own languages to public media, education and other services. He noted with satisfaction that Montenegro had become a party to the Convention relating to the Status of Stateless Persons and the Convention on the Reduction of Statelessness and asked whether the Government intended to adopt a national plan to eliminate statelessness in the country within, perhaps, a decade. He would also welcome information on the training provided to the police and the judiciary regarding racial discrimination and the extent to which such training took account of the reality of life and the diversity of the population in Montenegro.

Ms. Mohamed asked whether there were special courts in Montenegro and, if so, how they operated; whether judges and magistrates generally enjoyed immunity in the exercise of their functions and independence in their decision-making; whether, under the 2011 Law on Non-governmental Organizations, minority groups had the right to join political associations and trade unions; and what percentage of seats in Parliament were occupied by members of minority groups.

The meeting was suspended at 5.05 p.m. and resumed at 5.20 p.m.

Ms. Bandović (Montenegro) said that the Montenegrin courts were committed to creating a legal space where human rights could be exercised without discrimination and where there was equal access to justice for all. The Constitution and the Law on Courts enshrined the right of all persons to have a case heard and decided by a legally established court. While the Constitution established the primacy of international treaties over domestic legislation, the former were only directly applicable in the event of a divergence between them. To date, the Montenegrin courts had not explicitly referred to or applied the Convention in any case brought before them. They had, however, invoked the European Convention on Human Rights and referred to the case law of the European Court of Human Rights on many occasions.

The Law on Prohibition of Discrimination outlawed discrimination on any grounds whatsoever and empowered victims to take legal action. From 2010 to the present day, the Montenegrin courts had issued final decisions on 12 criminal cases involving racial discrimination. Although the majority of the cases brought involved incitement to racial hatred, a small number involved violation of religious freedom or unequal treatment.

The punishment for criminal offences involving racial discrimination were determined on a case-by-case basis in accordance with the applicable criminal procedure legislation and the range of penalties provided for in the Criminal Code. Mitigating and aggravating circumstances were always taken into account and could have a bearing on the severity of the punishment imposed. In practice, perpetrators of criminal offences involving racial discrimination had received conditional sentences or prison sentences of between 3 and 5 months. In certain cases, the existence of mitigating circumstances had led to sentences being reduced below the legally prescribed minimum. The Montenegrin courts had found in fact that a large number of criminal offences involving racial discrimination amounted to misdemeanours, including in cases where religious slurs had been used during disturbances of public order. To date, only a handful of cases had been brought under the Law on Prohibition of Discrimination. The complainants had sought, inter alia, non-pecuniary damage, the protection of their reputation and protection against discrimination on the grounds of religion or ethnic origin.

Training for judges and prosecutors was dispensed by the Judicial Training Centre, which in 2015 had become an independent legal entity. In 2017, the Centre had launched an intensive training programme covering the concepts of hate crime and discrimination, applicable international legal standards, the case law of the European Court of Human Rights, the work of the Committee and the interpretation of relevant domestic legislation. The Centre did not measure the long-term impact of its training activities. There was evidence to suggest that the training provided by the Centre had raised the awareness of judges and prosecutors regarding the applicability of criminal law provisions on aggravating circumstances in cases involving discrimination or hate crime.

Through the adoption of the Law on Free Legal Aid, Montenegro had created the conditions for all persons, irrespective of their financial situation, to obtain equal access to justice. Upon ratifying the European Convention on the Compensation of Victims of Violent Crimes, Montenegro had accepted the obligation to introduce a special compensation mechanism, an obligation which it had honoured by adopting the Law on Compensation of Damages for Victims of Criminal Offenses of Violence. Under that Law, victims could bring a case before the State directly and seek compensation. However, the Law contained a provision to the effect that it would enter into force only once Montenegro had joined the European Union.

Ms. Mašanović (Montenegro) said that free legal aid was generally available to persons who, on account of their financial situation, were unable to seek legal protection of their rights or those of their family. The Law on Free Legal Aid guaranteed the exercise of that right without discrimination on the grounds of, inter alia, ethnic origin, race, colour, language, political belief, gender or disability. Montenegrin citizens, non-citizens residing in the country lawfully and beneficiaries of international protection could all access free legal aid on an equal footing. Between 2014 and 2017, some 1,900 applications for free legal aid had been received, some 1,600 of which had been approved. The vast majority of the applications had been submitted by Montenegrin citizens.

In 2017, article 42 (a) of the Criminal Code had been amended to include disability as an additional aggravating circumstance in hate crimes on account of the vulnerability of persons with disabilities. Disability had also been included as an aggravating factor in the provisions of the Criminal Code dealing with gender-based discrimination.

Although the Constitution prohibited organizations from engaging in activities likely to incite discrimination, Montenegrin criminal legislation did not include a specific provision outlawing such activities. The Criminal Code did, however, include provisions prohibiting criminal associations or organizations, including those promoting racial discrimination, and prescribed prison sentences of between 1 and 12 years in the case of the former, depending on the nature of the offence. The establishment of a criminal association or organization constituted a criminal offence per se, regardless of whether it had gone on to commit criminal acts.

Foreign nationals residing in Montenegro enjoyed the same inheritance rights as Montenegrin citizens. Only the concept of joint, not collective, property existed in Montenegro. Joint property was regarded as property belonging to several persons which could be divided into shares if need be, although it was unusual to do so in advance.

Ms. Ražnatović (Montenegro) said that article 42 (a) of the Criminal Code provided that, if a criminal offence was committed out of hatred towards another person on the grounds of national or ethnic origin, race, religion, disability, sex, sexual orientation or gender identity, the court would consider there to be aggravating circumstances unless such circumstances were prescribed as a characteristic of the basic form of the criminal offence in question. The penalties imposed for aggravated criminal offences were naturally more severe, including in cases where the safety of another person was endangered in the sense of article 168 (2) of the Criminal Code.

The two cases brought under article 42 (a) of the Criminal Code in 2017 involved an act of violence committed against an individual on account of his or her gender identity and an act of rape committed against a Muslim woman on account of her religious affiliation, respectively. Both cases had been correctly identified and prosecuted as hate crimes under that provision and the corresponding trials were ongoing. Prosecutors and judges were well aware of their obligation to identify such aggravating circumstances.

While 17 cases had been brought under article 168 (2) of the Criminal Code, only five persons had been convicted. All the cases in question involved hate crimes against members of the lesbian, gay, bisexual, transgender and intersex community. The perpetrators of those hate crimes had all received prison sentences of between three and five months, one of which was conditional. The other cases brought under that provision had been rejected owing to a lack of evidence. In 2018, a case involving discrimination on the grounds of political affiliation brought under article 443 of the Criminal Code had initially been rejected by the court of first instance. Upon appeal by the prosecutor, the court of second instance had found a misdemeanour to have been committed.

Since 2015, the Supreme State Prosecutor’s Office had been implementing a strategy to investigate war crimes. In order to step up the fight against impunity for such crimes, a special prosecutor’s office had been set up to identify Montenegrin citizens suspected of involvement in wars during which war crimes had been committed. The Montenegrin authorities were exchanging data and evidence with prosecutors’ offices and other authorities in countries across the region and were cooperating in bringing perpetrators to justice.

The meeting rose at 5.55 p.m.