OSCE/ODIHR Opinion on the Draft Law on Amendments to the Law on the Protector of Human
Rights and Freedoms of Montenegro
Rights (hereinafter “the ICC General Observations”), as last amended in May 2013,
which serve as interpretive tools of the Paris Principles.10
13.
In addition, the Protector is responsible under Article 2 of the Human Rights Protector
Law to take measures “to prevent torture and other forms of inhuman or degrading
treatment or punishment”. This signifies that the Human Rights Protector constitutes a
national preventive mechanism under the OPCAT and as such should comply with the
relevant provisions of the OPCAT.
14.
Article 9 of the Human Rights Protector Law as amended by the Draft Law also refers
to the protection of the rights of persons with disabilities. Consequently, the Human
Rights Protector also falls within the ambit of the independent mechanisms for
implementation of the UN Convention on the Rights of Persons with Disabilities11
(hereinafter “the CRPD”) as per Article 33(2) of the CRPD.
15.
As a candidate country to join the European Union,12 Montenegro has undertaken to
make its legislation compliant with the EU acquis. Therefore, and as appropriate, this
analysis of the Draft Law will take into account relevant EU legislation, particularly
the key EU Equality Directives as they relate to anti-discrimination and equality
bodies.13
2.
16.
At the outset, OSCE/ODIHR would like to reiterate some of the main
recommendations of the 2011 Joint Opinion, left un-addressed, or only partially
touched upon, by the Draft Law, particularly as regards:
-
the scope of competences of the Human Rights Protector as stated under Article 2
of the Human Rights Protector Law14 (see also pars 17-19 infra);
-
10
11
12
13
14
15
General Provisions
the lack of an inclusive and pluralistic approach to the selection and appointment
procedures of the Human Rights Protector (Article 7 of the Human Rights
Protector Law) and the recommendation to amend Article 91 par 2 of the
Constitution to provide for a vote by qualified majority of the members of
parliament for his/her appointment and dismissal;15
Latest revised ICC General Observations as adopted by the International Coordinating Committee Bureau at
its
meeting
in
Geneva
on
6-7
May
2013,
available
at
http://nhri.ohchr.org/EN/AboutUs/ICCAccreditation/Documents/Report%20May%202013-ConsolidatedEnglish.pdf.
Convention on the Rights of Persons with Disabilities, adopted on 13 December 2006 during the sixty-first
session of the General Assembly by resolution A/RES/61/106. Montenegro ratified this Convention on 21
September 2010.
Following the entry into force of the Stabilisation and Association Agreement with the EU on 1 May 2010,
Montenegro was officially granted candidate status for EU membership on 17 December 2010. Accession
negotiations between the EU and Montenegro officially started on 29 June 2012.
Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in
employment and occupation (hereinafter the “EU Employment Equality Directive”); Council Directive
2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of
racial and ethnic origin (hereinafter the “EU Racial Equality Directive”); Council Directive 2004/113/EC of
13 December 2004 on equal treatment between men and women in the access to and supply of goods and
services; and Council Directive 2006/54/EC of 5 July 2006 on the implementation of the principle of equal
opportunities and equal treatment of men and women in matters of employment and occupation (hereinafter
both together referred as the “EU Gender Equality Directives”).
See pars 8-12 of the 2011 Joint Opinion.
See pars 15-18 and 25 of the 2011 Joint Opinion and pars 28-29 of the 2010 OSCE/ODIHR Comments.
8