MONTENEGRO
PROTECTOR OF HUMAN
RIGHTS AND FREEDOMS
REPORT OF THE
PROTECTOR OF HUMAN RIGHTS AND FREEDOMS OF MONTENEGRO
ON enforcing the
convention on the rights of the child
from 2006 to 2008
PODGORICA, 2010
INTRODUCTION
The Protector of Human Rights and Freedoms (Ombudsman) of Montenegro is an independent and autonomous institutions the task of which is to protect and improve human rights and freedoms in case of their being violated by an act, action or inaction by a public administration authority. In addition to this function, the Protector’s mission is even broader, meaning that the Protector is to create an awareness of the need of the rule of law; complete and consistent protection of the freedoms and rights of citizens, as well of legal and impartial work of all public administration authorities before which citizens acquire their rights, freedoms,obligations and legal interests.
The Constitution of Montenegro, in its Article 81, establishes that the Protector of Human Rights and Freedoms shall be independent and autonomous institution that shall take actions and measures to protect human rights and freedoms. The authority of and the procedure before the Protector are governed under the Law on the Protector of Human Rights and Freedoms, which was enacted by the Parliament of Montenegro on July 10, 2003. The Protector exercise their functions based on the Constitution and the law and, in doing their functions, they abide by principles of justices and fairness.
The protector is authorized to protect human rights and freedoms when they have been violated by an act, action or inaction by a public administration authority (i.e. either by the Government or a ministry or administration or agency), local self-government (municipal) authority, public service and other holders of public functions (by a health or educational institution or a public company or other legal entity performing public authorities). In relation to courts, the Protector exercise special authorities for a court procedure that is underway, namely in case of a delay of such procedure or obvious misuse of procedural authorities or non-observance of court rulings.
The Protector undertakes certain measures in cases of violated rights of citizens in an administrative procedure, due to inaction upon their requests; withholding information required by them; non-observance of the rendered rulings; unjustifiably long procedures.
The assistance delivered by the Protector to citizens is free of charge.
Since the establishment, the Institution of the Protector of Human Rights and Freedoms has been dealing with the protection and promotion of the rights of the child by acting upon complaints,and by implementing the Project on Protection and Promotion of the Rights of the Child in Montenegro with the expert and financial support from Save the Children Norway. The reached results impose a need to establish department of the protection of the rights of the child inside the Institution, which should be managed by the Deputy Protector for the Rights of the Child.
In 2006, the Institution of the Protector sent the initiative for amendments and supplements to the Law on the Protector of Human Rights and Freedoms, in order to have the area of the rights of the child be regulated normatively.
In 2008, the Parliament of Montenegro approved the resolution on the increase in the number of Deputy Protectors, creating thereby conditions for the appointment of the Deputy Protector for the Rights of the Child.
Thereafter, the Protector submitted a suggestion to the Parliament of Montenegro for the selection of the Deputy who will deal with the protection of the rights of the child. The Parliament of Montenegro appointed the Deputy Protector for the Rights of the Child on July 29, 2009.
In November 2008, the Government of Montenegro sent to the UN Committee on the Rights of the Child the Initial Report on the Enforcement of the Convention on the Rights of the Child from 2006 to 2008.
Pursuant to the General Comment No. 2 of the Committee on the Rights of the Child, we are presenting the Report of the Protector of Human Rights and Freedoms on the Initial Report of the Government of Montenegro, as an additional report that should assist the Committee to have a full and impartial insight in the condition and enforcement of the rights of the child in Montenegro.
I GENERAL EVALUATION
(Articles 4, 42 and 44 (paragraph 6))
The Constitution of Montenegro was enacted on October 19, 2007. The Constitutional provision (under Article 9) prescribed that the ratified and published international agreements and generally accepted rules of international law shall make an integral part of the internal legal order, shall have the supremacy over the national legislation, and shall be directly applicable when they regulate the relations in a way different from that used in the national legislation. In addition, the Constitutional Law for the Enforcement of the Constitution of Montenegro prescribed that laws should be adjusted to the Constitution until April 30, 2010.
Entering into the Accession Agreement with the European Union required a reform of national legislation and the approximation thereof to the EU law.
During the reporting period, numerous amendments to the laws governing the child issues - such as legislation on family relations, health protection, and criminal area – were done. For the first time, national documents expressing the policy of the Government as regards the child and planning the activities to be undertaken by the Government for improving the status of the child were approved, among which the National Action Plan, Roma Decade, Strategy for Social and Child Protection…
The National Action Plan for Children until 2010, which was adopted by the Government in 2004, encompasses the guidelines required for improving the status of the child, i.e. it defines the development directions relevant to individual areas. No specific budget was allocated for the implementation of the National Action Plan, so the process is somewhat difficult.
The approval for the National Action Plan was a basis for passing Local Action Plans. Up to now, six Local Action Plans have been drawn up; however, they are not implemented to the fullest because municipal budgets have not allocated clearly the funds for the purpose.
Regardless of both the activities undertaken by the Government aimed at adjusting the legislation and the commenced reform processes in the areas of public administration and judiciary, the enforcement of the approved legislation has not been ensured yet. Due to the absence of appropriate institutions and professional human resources and the lack of funds, the enforcement of laws is somewhat difficult.
The Government Report gives the review of Montenegrin legislation governing the child issues. In addition to the legal regulations, the Report includes also statistical data relevant to individual areas of the rights of the child and the issues concerning the status of children in the society.
However, the given data do not reflect completely the extent to which the existing legislation is applied. Therefore, based on such data, it is impossible either to derive reliable conclusions as regards the measures undertaken by the Government during enforcement of the regulations, or to identify the areas for which existing legislation has not been adjusted to the UN Convention on the Rights of the Child.
In their Performance Reports, the Institution of the Protector concluded that the impossibility to enforce the law represented actually the major obstacle to the exercise of the rights of the child. In addition, there was a difficulty reflected in the absence of institutions and services that would care for children with developmental disorders; inaccessibility of health protection for all the children; the issue of the inclusion of RAE children and children of displaced persons from the former Yugoslav Republics into regular education; insufficient number of judges acting exclusively upon juvenile delinquent cases; problems of acquiring the rights by children in conflict with the law; and absence of juvenile justice system.
Recommendations
-Ensure a consistent implementation of all laws and particularly of those ones relating to children;
-ensure an additional budget funds for the implementation of NAP, development and implementation of Local Action Plans, and implementation of programmes intended for children;
-ensure an educational program relevant to the area of the application of the rights of the child, intended for professionals working with children, as well as for a broader public and children;
-develop the uniform children’s databases, as well as establish criteria pursuant to which such databases would be kept in order to enable the assessment of progress in achieving the rights of the child;
-continue the implementation of the National Action Plan, ad ensure the implementation thereof in all municipalities;
-continue cooperation and use financial and human resources support from international organizations dealing with the child related issues (UNICEF, UNHCR, WHO, European Agency for Reconstruction and Development, World Bank);
-undertake all necessary steps aimed at ensuring an appropriate allocation of budget resources for the NAP implementation.
II definition of the child (Article 1)
According to the UN Convention on the Rights of the Child, a child means every human being below the age of eighteen years.
The existing legislation in Montenegro does not define precisely the notion of child. However, individual laws recognize the child certain rights based on the age. It is evident that the legislator does not use frequently the notion of child, regardless it is included, but not defined, in the Constitution of Montenegro. Persons under 18 are referred to as juveniles.
In the criminal legislation, each person under 14 is considered as child, whereas those beyond of the age of 14 until the age of 16 are considered younger juveniles and those from 16 to 18 are considered the older juveniles. This classification was done according to the level of criminal liability and criminal sanctions that may be pronounced to juveniles. It results from the foregoing solution that children up to 14 years are not held criminally liable, whereas the classification in younger and older juveniles was done with reference to sanctions applicable to them. Such classification is not in line with the Convention on the Rights of the Child, if it is taken into consideration that the Convention prescribes that a child is any person under the age of 18.
According to the Family Law of Montenegro, a person under the age of 18 may not conclude a marriage. Exceptionally, the relevant court may permit the marriage to a juvenile older than 16 at the request of such person.
Regardless of such legal classification, we face the situation that a significant number of children from ethnic groups (Roma, Ashkali and Egyptian) get in common law marriages or marriages prior to the lawful age and even prior to the age of 16.
Regulations governing health, pension and disability insurance, as well as the right to enjoy these forms of insurance after the age of 15 require the status of full-time pupil if such insurance is acquired via parents. In cases when such insurance is acquired from the public revenues fund, it is required that parents, as being unemployed persons, have been registered with the Employment Agency. It results therefrom that such regulations do not treat a child in the manner provided for under the Convention, since the exercise of the foregoing right is conditioned on the existence of certain status of the child or of their parents.
Statistical records do not contribute to a consideration of the status of the child, since they do not relate to children under the age of 18 but, mostly, to those of preschool of primary or secondary school age. Based on that, the data referring to children encompass also the persons of full 19.
RECOMMENDATIONS
-it is required to make terminology approximation of criminal legislation to the Convention;
-develop programmes of child marriage prevention;
-the right to health protection and the rights stemming from pension insurance should be linked to the status of the child, and not to that of their parents;
-adjust methodology and indicators for monitoring all issues related to the child, as per the structure of 0 – 18 years of age.
III GENERAL PRINCIPLES
(Articles 2, 3, 6 and 12)
3.1. nondiscrimination(Article 2)
One of the basic principles of the UN Convention on the Rights of the Child is the principle of nondiscrimination, which prescribes a ban on discrimination regardless of the child’s race, religion, or capacities and regardless of what they thought or say and regardless of their family origin.
The Constitution of Montenegro prescribes the ban of both indirect and direct discrimination based on whatever grounds. It also prescribes that an introduction of specific measures aimed at creating conditions for reaching national, gender and an overall equality and protection of persons that are in an unequal position on any grounds, which measures may be applicable all until the purpose for which they have been introduced are satisfied, shall not be considered discrimination. In addition, the Constitution provides for also the equality before law, regardless of any specificity or any capacity. Besides, also other laws prescribe the ban on discrimination on any grounds (the Law on Minority Rights, Criminal Code, the Labor law and alike).
However, neither the Law on Non-Discrimination was enacted in Montenegro up to the time of submitting the present Report, nor a law that would govern comprehensively discrimination field in line with the foregoing principle. Draft Law is in the legislative procedure now.
The Law on Social and Child Protection provides for children benefitas a from of money support for children from socially vulnerable families, subject that the Law anticipates such right to be acquired only by the first three born children, causing thereby unequal position for other children in families with more then three kids.
Therefore, notwithstanding the Constitutional and legal guarantees prescribing the ban on discrimination, there are certain forms of discrimination in Montenegro toward children from ethnic groups (Roma, Ashkali and Egyptian), children of displaced persons and children with special needs.
The children who are members of the foregoing ethnic groups are of an unequal status with respect to acquiring the rights to primary education. Namely, the families thereof are facing the hardship. Regulations governing education field prescribe that the primary education is accessible to all and under the equal conditions, as well as that it is free of charge and compulsory. The law prescribes budget financing for regular curriculums, but not for additional or so-called hidden costs resulting from the purchase of textbooks and school accessories. Due to a lack of funds, not a small number of parents decide to avoid sending their children to school, since the state subventions are not sufficient to cover even the purchase of textbooks and school accessories and they are not sufficient at all if we take into consideration that it is about families with several children.
RECOMMENDATIONS:
-Enact the Law on Non-Discrimination;
-establish a national mechanism for the protection from discrimination, within the Institution of the Protector of Human Rights and Freedoms;
-children benefits should be provided to all children meeting the requirements for such kind of support;
-ensure free-of-charge textbooks and school accessories for all the children attending primary school.
3.2 BEST INTEREST OF THE CHILD (Article 3)
All organizations dealing with children related issues are under an obligation to act in line with the best interest of the child. The State shall ensure the child appropriate care if their parents or other persons granted the parental responsibilities cannot do so.
The legislation of Montenegroproclaims, in principle, the best interest of the child in acquiring their rights. However, it is required to prescribe a legal obligation for authorized subjects to be guided by this principle during deciding on the rights of the child.
The Family Law, in certain procedures, prescribes an obligation of such subjects to be guided by the best interest of the child in such deciding, so this obligation should be prescribed also in other areas (such as education, social and health protection, and alike).
The Protector of Human Rights and Freedoms emphasizes, in all their recommendations relating to acquiring the rights of the child, a necessity and obligation to apply the said principle, i.e. the obligation of all subjects to take into consideration the best interest of the child when deciding on the rights of the child.
In acting upon complaints about court procedures relating to maintaining personal contacts between parents and children and the right to maintenance, the Protector has found those procedures as unjustifiably long and a cause of putting the child in the position of social and legal uncertainty - which is not at all the best interest of the child. In addition, there are frequent unjustifiable delays of procedures and untimely acting also by authorities and public administration services (Centers for Social Work, Ministry of Interiors) when it comes to the protection of children (i.e. socially vulnerable children and children who are victims of violence) that lead to endangering the principle concerned.