| Click here for a summary of Montenegro’s review at the first cycle and/or third cycle. |
15th UPR session
Date of review: 28 January 2013
Date of report adoption: 7 June 2013
Working Group report: A/HRC/23/12
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SUMMARY SOGIESC issues during Montenegro’s 2nd UPR review |
I. Key issues/recommendations identified by NGOs
- Ensure that the Ombudsman and his office are provided with the human, technical and financial resources to implement the anti-discrimination law.
- Consider introducing hate crimes legislation on grounds of sexual orientation or gender identity, as well as to public education programs and sensitivity training to promote respect for all persons, including on these grounds.
- Protect the rights to peaceful assembly and association on grounds relating to sexual orientation or gender identity, and ensure that adequate police and other physical protection against violence or harassment is afforded to persons exercising these rights.
- Take all measures to ensure enjoyment of the right to the highest attainable standard of health, including mental health.
II. Excerpts from input reports
National report
III. Progress in exercising and protection of human rights – implementation of the recommendations, achievements, activities and challenges
A. Fight against discrimination
12. The general anti-discrimination law (2010) specifies the concept of discrimination and concepts of direct and indirect discrimination and provides for the grounds and mechanisms for the protection from discrimination on the ground of any personal characteristic. A separate article lays down the prohibition of discrimination on the grounds of sexual orientation and gender identity. Incitement to discrimination is defined as discrimination, and protection of persons reporting discrimination is also laid down. The law contains provisions governing protection from victimization. In order to give the final shape to the entire system for the protection from discrimination, the law also defines judicial protection, role of inspection services and penal measures, as well as the protection provided by the Ombudsman.
13. The law stipulates special forms of discrimination, while placing emphasis on severe forms of discrimination. Strong emphasis was placed on discrimination on the grounds of sexual orientation and gender identity. Sexual orientation is also explicitly prohibited as a ground of discrimination in the Criminal Code (CC) and the laws governing: labour, prohibition of workplace harassment, and media. Direct and indirect discrimination of job seekers and of the employed on the grounds of sex and sexual orientation is prohibited under the laws governing labour and prohibition of workplace harassment. The Labour Law also lays down the prohibition of sexual harassment, while the Law on Media lays down the prohibition of publishing information and opinions that incite to discrimination, hatred or violence against a person or a group of persons on the ground of their sexual orientation.
M. Training and strengthening awareness of judiciary and police on the rights and protection of human rights
83. Within the Plan of education of civil servants active in the field of providing protection from discrimination, a number of workshops and seminars dedicated to issues of discrimination and human rights protection have been organized. The Plan for implementation of the Law on Prohibition of Discrimination includes the plan for education and media promotion of anti-discrimination behaviours. Activities primarily include marginalized social groups – LGBT population, persons with disabilities and women. The plan of education, organized in annual cycles, envisages training that ensures full qualification for informed and sensitive proceeding and provision of efficient protection in discrimination cases. Selected participants are obliged to participate in all segments of the training so that in the end of the cycle they can be entitled to the appropriate certificate.
84. Broad media campaign was organized within the Plan of promotion of anti- discrimination. The first stage of the campaign was dedicated to the key discrimination – on the grounds of disability, gender identity and sexual orientation.
Compilation of UN information
III. Implementation of international human rights obligations, taking into account applicable international humanitarian law
A. Equality and non-discrimination
8. In 2011, CEDAW welcomed the adoption of the Law on the Prohibition of Discrimination (2010) which defined and prohibited direct and indirect discrimination based on sex, sexual orientation, gender identity and other grounds, provided for remedies and strengthened the role of the Ombudsman in relation to discrimination. UNHCR noted that the capacity of the Ombudsman’s office to address discrimination issues remained a challenge. Noting the low number of complaints submitted to the Ombudsman under the Law, CEDAW recommended that Montenegro, inter alia, strengthen the mandate and resources of the Ombudsman to act on complaints about discrimination based on sex and appoint a Deputy Ombudsperson for Gender Equality; and raise awareness about the complaint procedures under the Law on Gender Equality and the Law on the Prohibition of Discrimination.
Summary of stakeholder information
C. Implementation of international human rights obligations, taking into account applicable international humanitarian law
1. Equality and non-discrimination
8. The Ombudsman had recorded a small number of reported cases of discrimination, which was a consequence of insufficient knowledge about human rights and protection mechanisms, as well as the lack of readiness among citizens to report such incidences. According to information submitted by the CoE, the Commissioner for Human Rights in December 2010 encouraged the authorities to broadly raise awareness on the principles contained in the Law on Anti-Discrimination adopted in July 2010, which included a ban on discrimination on grounds of sexual orientation and gender identity. Society for Threatened People (STP) commented that the Ombudsman and his office did not have enough human, technical and financial resources to implement the law. AI noted that by December 2011 only 20 cases of discrimination had been received by the Ombudsman and was concerned that the institution lacked the competencies and capacity to address such cases. Additionally, CoE-ECRI regretted that the full range of possible powers was not granted to the Protector to combat discrimination effectively.
14. According to JS2, the LGBT community was facing three main problems: a high level of homophobia, meaning a high influence of stereotypes and prejudices on attitudes and low level of knowledge on sexuality and gender identity among the general population and professionals; violence and discrimination, which was rarely reported and documented; and an inadequate legal and institutional framework addressing their needs. JS2 referred to recorded severe cases of hate speech (especially by government and church officials), which were not sanctioned and to unresolved hate crimes. JS2 recommended, inter alia, that the Criminal Code should be amended so that hate crimes against persons of homosexual orientation (homophobia) or transgender persons (transphobia), as well as other forms of hate crimes, would be considered as severe forms of criminal offence. Referring to public gatherings of LGBT persons, JS2 further recommended that the Montenegrin Government should guarantee the right to peaceful assembly and the adequate protection of LGBT persons and their allies; obtain public support of high Government officials e.g. public statements or their participation in the “pride march”; implement campaigns to decrease homophobia and promote the acceptance of queer identities and cultures. JS2 also made recommendations for the right to the best available health care for LGBT persons, including the need for a more consistent LGBT-friendly mental health system and data protection for persons living with HIV, men who have sex with men and on transgender health issues.
III. References to SOGI during the Working Group review
A. Presentation by the State under review
7. Montenegro has achieved significant progress in relation to the previous report in 2008, regarding the following, inter alia: independence of Judiciary; decriminalization of insult and defamation; fight against corruption and organized crime; prison system improvement; legal reforms related to anti-discrimination, domestic violence, trafficking in human beings, strengthening of capacities of Ombudsman; setting up the Council for anti-discrimination, Council for persons with disabilities and Council for rights of the child; advancement of tolerance towards differences, in particular in relation to the LGBT population; social inclusion of the Roma and Egyptian community.
13. Three important international conferences have been organized so far (two of them took place last year), devoted primarily to LGBT rights.
B. Interactive dialogue and responses by the State under review
47. The United States of America recognized success in the areas of LGBT rights, torture prevention and finding housing for refugees in Konik.
49. Germany requested details of plans to promote and defend the rights of the LGBT community.
62. The Netherlands welcomed the legislative framework providing protection against discrimination and the establishment of the Ombudsman. Discrimination on the basis of sex, sexual orientation and gender identity persisted throughout society, despite the improved legislative and administrative framework. It encouraged the Government to promote and defend the rights of the LGBT community and to prosecute the perpetrators of crimes against them.
69. Slovenia welcomed the adoption of legislation and specific measures to address discrimination in general, but especially discrimination on grounds of sexual orientation and gender identity, and legislation to prohibit the publication of information and opinions aimed at inciting discrimination. It also welcomed the adoption of legislation on protection from domestic violence.
70. Responding to comments made, the delegation [of Montenegro] referred to significant steps taken to address the high level of homophobia in Montenegro. In December 2011, the Government set up three working groups (with equal numbers of representatives of ministries and NGOs), with the aim to create the conditions for LGBT persons to obtain equal status in the community.
83. Switzerland welcomed progress made in combating discrimination, particularly efforts to combat discrimination based on sexual orientation and gender identity, and the ratification of the OP-CAT. It remained concerned, however, about attacks and harassment inflicted on the independent press; difficulties encountered by minorities in obtaining full enjoyment of their rights to education and adequate housing; and the dealing with the past.
85. Ukraine commended Montenegro for implementing recommendations accepted during the 2008 review. It particularly welcomed legislative measures adopted to combat direct and indirect discrimination based on gender, sexual orientation and gender identity. Ukraine encouraged Montenegro to intensify its efforts further to promote inter-ethnic harmony and tolerance among the general public.
87. United Kingdom of Great Britain and Northern Ireland urged Montenegro to effectively implement legislation to guarantee the rights of persons with disabilities and combat discrimination and domestic violence. It noted concerns about the independence of the judiciary, public attitudes towards homosexuality and inequalities faced by minorities in living conditions, access to public institutions and education. The United Kingdom encouraged investment in training for the police and judiciary to combat prejudice at all levels.
98. Belgium welcomed progress on implementing a legislative and institutional system to guarantee the enjoyment, protection and promotion of human rights, but was concerned about persistent discrimination against the LGBT community.
IV. Conclusions and/or recommendations
117. The recommendations formulated during the interactive dialogue and listed below have been examined by Montenegro and enjoy its support:
117.26. Take additional concrete steps to combat societal discrimination on the basis of race, sexual orientation, disability or gender identification (Australia);
117.33. Further strengthen efforts to implement the principles contained in the Law on Anti-Discrimination, including by combating discrimination against members of the LGBT community (Norway);
117.34. Fully implement adopted legal measures against discrimination based on sexual orientation and gender identity (Czech Republic);
117.35. Continue the efforts aimed at eliminating all discriminatory treatment based on sexual orientation or gender identity (Argentina);
117.36. Take measures necessary to protect the rights of LGBT persons effectively and investigate and prosecute alleged cases of violence and discrimination against LGBT persons (Netherlands);
117.37. Establish effective mechanisms of dialogue with human rights defenders in the field of sexual minorities (Spain);
118. The following recommendations enjoy the support of Montenegro which considers that they are already implemented:
118.8. Consider amending the Criminal Code so that hate crimes against LGBT persons are considered serious criminal offenses or at least aggravating circumstances (Belgium);
V. Adoption of the Report
The draft report of the Working Group was adopted at the 23rd session of the Human Rights Council in June 2013.
Remarks by the State under review
The Government of Montenegro adopted this May the Strategy for Improving the Quality of Life of LGBT Persons 2013-2018, aimed at eliminating any direct or indirect discrimination on the grounds of sexual orientation or gender identity. Having adopted this Strategy, the Government is committed to work actively to secure that legal and other measures are promoted and effectively implemented; the Government is decisive to stand against stereotypes and prejudice faced by LGBT persons; it is dedicated to activities such as awareness campaigns, trainings of the employed in the authorities competent in protecting LGBT rights, especially in police and prosecutor’s office, as well as to ongoing cooperation with LGBT community, which will significantly contribute to the process of achieving LGBT equality.
Comments by States and other stakeholders
United States
The United States welcomes the Government of Montenegro’s ongoing commitment to engage positively with the UPR process. Once again we commend Montenegro’s recent efforts to protect the human rights of LGBT persons, prevent torture and other mistreatment of individuals, and find durable solutions for refugees and other displaced persons, among other issues. […]
COC Netherlands & Juventa, delivered by Joyce Hamilton
Mister/Madame President,
I make this statement also on behalf of Juventas in Montenegro.
We welcome the commitment made by the Montenegrin Government to the realization of human rights of LGBT people in Montenegro and the Government’s acceptance of recommendations on sexual orientation and gender identity.
In particular, we appreciate the pledge of Montenegrin Government to: take steps to combat societal discrimination on the basis of race, sexual orientation, disability or gender identification; Take measures to protect the rights of LGBT persons effectively and investigate and prosecute alleged cases of violence and discrimination against LGBT persons; Establish effective mechanisms of dialogue with human rights defenders in this field; and consider amending the Criminal Code so that hate crimes against LGBT persons are considered serious criminal offenses or at least aggravating circumstances.
Montenegro is currently making numerous changes to its legal framework, but the protection of human rights hasn’t yet reached international standards and good practices in all areas. Enforcement of newly adopted laws is faced with many challenges. Montenegro recently adopted amendments of the Criminal Code, which now explicitly includes sexual orientation and gender identity as prohibited grounds, but further improvement of the hate speech/crime legislation is necessary. Homophobic and transphobic statements of leading politicians and professionals in various areas, fuelled and gave legitimacy to the widespread discrimination against LGBT people, but none so far has been adequately sanctioned. As a result, level of LGBT people’s trust in state institutions is on a low level, so is the reporting rate as far as violence and discrimination cases are concerned.
Targeted actions should be implemented by local and national authorities and other governmental bodies to allow practice and protection of human rights of LGBT people. In this context, we urge the Montenegrin government:
- To guarantee the right to peaceful assembly as well as ensure adequate i5rotection to LGBT persons and allies no matter how “popular” such actions re within the general public;
- To amend the Law on prohibition of discrimination to recognize sanctions, and provide definitions of term used;
- To amend the Law on Education to enable monitoring and documentation of violence based on sexual orientation and gender identity in schools;
- To amend the Law on Civil Registry and Law on Central Registry to enable legal gender recognition;
- To adopt the Law on same sex partnerships;
- To form a system of free legal aid and empowering of LGBT persons to report violence and discrimination.
Montenegro has made advances in complying with the CM/Rec (2010)5 of the Committee of Ministers of the Council of Europe on sexual orientation and gender identity, but we remind the government that more progress is needed to equally protect trans people against discrimination.
VI. Further information
UPR Documentation
National report: A | C | E | F | R | S
Compilation of UN information : A | C | E | F | R | S
Corrigendum : A | C | E | F | R | S
Summary of stakeholders’ information : A | C | E | F | R | S
Questions submitted in advance : E only
Addendum 1 : E only
Addendum 2 : E only
Addendum 3 : E only
Outcome of the review
Report of the Working group : A | C | E | F | R | S
Addendum 1 : E