The Ministry of Interior of Montenegro discriminates against children because of the sexual orientation of their parents
Children of same-sex parents, one of whom is a Montenegrin citizen, cannot obtain Montenegrin citizenship, even though they have a legal right to do so, because the Ministry of Interior Affairs (MUP) has not decided on this process for five years.
This discriminates against these children the MUP compared to other children who live in families with parents of different genders or with one Montenegrin citizen parent, as well as their parents based on their sexual orientation. Therefore, the family has filed two lawsuits against the state of Montenegro - the MUP to competent courts, with the support of the Queer Montenegro organization.
The Executive Director of the ERA – LGBTI Equal Rights Association for the Western Balkans and Turkey, Danijel Kalezić, said that over the five years, they had tried all formal and informal communication channels to resolve this case.
"Unfortunately, we have not encountered understanding and willingness to respect the laws of this country when it comes to the last three governments. This proves deep-rooted institutional homophobia and the absence of the rule of law. As we know, Montenegro grants a huge number of citizenships every year to people who have a lot of money, many of whom have dubious biographies," Kalezić said.
He explained that the law is very clear and that children meet the requirements of the law.
"The fact that the Ministry of Internal Affairs has not made a decision in the administrative procedure initiated for five years and does not grant Montenegrin citizenship to these children while hundreds of privileged foreigners receive Montenegrin citizenship through very questionable procedures is evidence of the erosion of the rule of law and gross violation of human rights," Kalezić believes.
He emphasized that there was an expectation that Prime Minister Dritan Abazović would make efforts to comply with the law and that children would obtain the citizenship to which they are entitled.
"I informally talked to him and the Minister of Interior Affairs, Filip Adžić. Despite the promises that the case would be resolved, we also had a formal meeting at the MUP, where we were told that a decision regarding this case would be made. Unfortunately, we have to state that this did not happen," Kalezić explained.
According to him, this is a strategically important case for the overall rule of law in Montenegro, stating that ERA will continue to monitor this case and provide support with international partners and the international community to resolve this case.
"This case must be resolved by admitting children to Montenegrin citizenship and holding accountable all those who have acted illegally in this case," Kalezić added.
The executive director of the organization Queer Montenegro, Miloš Knežević, emphasized that this case is yet another indication that Montenegrin institutional systems are not ready to accept legal changes happening when it comes to LGBTIQ individuals and their families. In doing so, they deny the legal regulation and acceptance of same-sex families as such.
"Today, when you have full acceptance of LGBTIQ families in all modern societies, in Montenegro, we are living in a moment where our institutions remain silent and thereby show us that they are not ready to change the law and, therefore, adapt its protective instruments to the newly arisen changes and social relations," Knežević stated in a statement to PR Centar.
He pointed out that institutions refuse to provide LGBTIQ individuals and their families with the rights that belong to them, which is nothing more than the right of any other citizen of Montenegro.
"This is a clear message to all LGBTIQ individuals in Montenegro that Montenegrin society still denies our basic human right - the right to family - thus pushing us to the margins of existence," Knežević said.
He emphasized that Queer Montenegro will continue to monitor this case "because it is a very open and clear discrimination based on sexual orientation."
Attorney Marijana Laković-Drašković, the family's legal representative, stated that the Ministry of Internal Affairs had not decided on the application for Montenegrin citizenship, which indicates "administrative silence," "so we have filed a lawsuit with the Administrative Court."
"However, it is necessary to point out that the provision of Article 29 of the Law on Montenegrin Citizenship is imperative, as it prescribes the obligation of the Ministry of Internal Affairs to decide on citizenship acquisition within one year from the date of initiation of the procedure, as well as a legal remedy for the protection of the rights of the applicant, so we expect someone to be held responsible for illegal behavior, i.e., for not deciding for more than five years," Laković-Drašković stated.
She explained that, as the family's legal representative, she had submitted a proposal for mediation proceedings to the Center for Alternative Dispute Resolution, which the Ministry of Internal Affairs did not accept.
"In this way, procedural prerequisites for initiating a lawsuit for protection against discrimination have been met, which I, as the family's legal representative, have done," Laković-Drašković said.
She pointed out that the plaintiffs' discrimination is reflected in other children and parents in the same or similar situation regarding the regulation of citizenship status.
"By refusing to register the children in the appropriate registers, the Ministry of Internal Affairs violated the human rights of the plaintiff-children, prescribed by the United Nations Convention on the Rights of the Child, the European Convention on Citizenship, and positive legal regulations of Montenegro, thus preventing equal access of children to education, health care, and social security, as well as grossly discriminating against the plaintiff-parents based on their sexual orientation," Laković-Drašković said.
According to her, the fact that national legislation at the horizontal level is still not harmonized with international agreements and the Law on Life Partnership of Same-Sex Persons and the Law on Prohibition of Discrimination should not produce further legal consequences concerning the plaintiffs.
"The state's failure to fulfill its legislative obligations must not result in violating the human rights and basic freedoms of both children and parents," added Lakovic-Draskovic.
As she stated, expectations are that competent courts will apply the legal standpoint from the rich case law of the EU Court of Justice, given that the Ministry of Internal Affairs has not done so, especially considering that national case law is aligned with the practice of the EU Court of Justice and the European Court of Human Rights.
"This would provide protection against further implementation of discrimination, which has undoubtedly occurred, primarily towards children in relation to other children who acquire Montenegrin citizenship by origin under the same legally prescribed conditions, and the consequence is reflected in the prevention of equal access to education, healthcare, and social security," said Lakovic-Draskovic.
She claims that the Ministry of Internal Affairs' actions have also led to discrimination against prosecutors - parents based on their sexual orientation.
"It was precisely this basis that determined the Ministry of Internal Affairs not to carry out the actions for which it is authorized, and which it would otherwise carry out in any other case where the legal conditions are met," Lakovic-Draskovic concluded.