OSCE ODIHR Comments on the draft Law on the Protector of Human Rights and
Freedoms of Montenegro
Protector. Such complaints may also be submitted to the Protector by
organizations or individuals dealing with the protection of human rights, upon
consent of the alleged victim of discrimination. Cases of discrimination and
action taken in this regard shall be reported to the Parliament, complete with
recommendations and proposals for measures to eliminate discrimination
(Article 22). Reporting takes place either in a separate section of the annual
report or in a separate report to the Parliament, if the Protector evaluates that
this is warranted by “exceptionally important reasons”.
73.
While Article 1 of the draft Law provides that the Human Rights Protector
shall take measures for the protection from discrimination, the draft Law does
not take into account the additional competences provided to the Protector by
the Law on Prohibition of Discrimination, 26 in particular the Human Rights
Protector’s special competence to review discrimination complaints against
not only public authorities, but also against private bodies, or persons. This
special competence needs to be mentioned in the draft Law, and special
provisions on this competence’s practical results should be included in the
draft Law. It is recommended to include relevant provisions in the draft Law.
74.
One way to take this additional competence into account in the draft Law
could be to include therein a separate section specifying that in cases qualified
by the Protector as discrimination cases, the Protector may investigate
complaints against public authorities, legal and natural persons. This section
should specify that in such cases, the respondent legal or natural persons
should have the same obligation to cooperate as public authorities do under
Articles 41 and 42. Opinions of the Protector with recommendations should be
submitted in the way proposed under pars 64-65 supra. In discrimination
cases, respondent legal or natural persons could also submit a report on actions
taken to execute the Protector’s recommendations, as required under Article
47 of the draft Law. In case of failure to do so, the Protector should be
permitted to initiate court proceedings under Article 23 of the Law on
Prohibition of Discrimination, upon consent of the victim of discrimination.
75.
The conciliation proceedings leading to extra-judicial settlements mentioned
in Article 20 par 2 of the Law on Prohibition of Discrimination should also be
included in Chapter III of the draft Law. In order to enhance the efficiency of
the Protector, it may be worthwhile to consider adding the power to conduct
conciliation proceedings to the general competences of the Protector regarding
all cases, not only cases involving discrimination complaints. It is
recommended to include such conciliation proceedings in Chapter III of the
draft Law, at least for discrimination cases, but ideally for all cases.
76.
The additional duties related to records on discrimination cases, as well as the
collection and analysis of statistics regarding such cases, should also be
26
This was already noted in previous OSCE/ODIHR comments on draft anti-discrimination legislation
in Montenegro. See OSCE/ODIHR Comments on the draft Anti-Discrimination Law in Montenegro,
no. NDISCR– MNG /135/2009 (TND), of 9 July 2009, par 35, as well as OSCE/ODIHR Comments on
the draft Law on Prohibition of Discrimination in Montenegro, no. NDISCR– MNG/150/2010 (TND),
of 27 January 2010, par 40. All OSCE/ODIHR comments and opinions may be found on the website
www.legislationline.org.
21
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