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Cadre constitutionnel

Religion is directly mentioned 19 times in eight articles of the Constitution of Montenegro : Separation of the religious communities from the State (art. 14), Temporary limitation of rights and liberties (Art. 25), Right to asylum (Art. 44), Freedom of thought, conscience and religion (Art. 46), Objection of conscience (Art. 48), Prohibition of censorship (Art. 50), Prohibition of operation and establishment (Art. 55), Protection of identity (Art. 79). The most important of them, in which fundamental freedom of religion is guaranteed, titled Freedom of thought, religion and conscience (Art. 46), reads as follows :
“Everyone shall be guaranteed the right to freedom of thought, conscience and religion, as well as the right to change the religion or belief and the freedom to, individually or collectively with others, publicly or privately, express the religion or belief by prayer, preaches, customs or rites.
No one shall be obliged to declare their own religious and other beliefs.
Freedom to express religious beliefs may be restricted only if so required in order to protect life and health of the people, public peace and order, as well as other rights guaranteed by the Constitution.”
Forum internum of this freedom is absolutely safeguarded, while its expression in forum externum can be subject to limitations on grounds listed in Art. 46, par. 3. These limitations, according to Art. 24, can be imposed “only by the law, within the scope permitted by the Constitution, to the extent necessary in an open and democratic society in order to satisfy the purpose for which the limitation has been permitted”. During the proclaimed state of war or emergency, religion cannot be a ground for limitation of human rights (Art. 25).
As an organic part of this freedom, the Constitution separately guarantees objection of conscience, stipulating in Article 48 that “everyone shall have the right to objection of conscience and that no one shall be obliged, contrary to own religion or conviction, to fulfill a military or other duty involving the use of arms”.
Religion appears explicitly as a protected object in the constitutional norms which regulates prohibition of cenzorship and prohibition of operation and establishment, of which former allow competent court to “prevent dissemination of information and ideas via the public media only, among other things, if so required in order to prevent propagating of religious hatred or discrimination (Art. 50), and latter stipulates that „the operation of political and other organizations... instigating ... religious and other hatred and intolerance shall be prohibited” (Art. 55).
Religion is also directly mentioned in article related to the right of asylum, which allows foreign nationals reasonably fearing persecution on the ground of religion to request asylum in Montenegro (44).
Religious identity is particularly protected as a part of minority rights, so that persons belonging to minority nations and other minority national communities shall be guaranteed the right to exercise, protect, develop and publicly express religious particularities, and to establish and maintain contacts with the citizens and associations outside of Montenegro, with whom they have common religious beliefs (Art. 79).
One should also mention constitutional norms in which religion is not directly, but certainly is substantially, regarded. The first norm is inward-oriented : “Direct or indirect discrimination on any grounds shall be prohibited” (Article 8 Prohibition of discrimination). The second norm is outward-oriented : “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 apply directly when they regulate relations differently than the national legislation” (Article 9 Legal order). This article represents the door through which international conventions in the field of human rights (The Universal Declaration of Human Rights, International Covenant on Civil and Political Rights and the European Convention on the Protection of Human Rights and Fundamental Freedoms with additional protocols..) are entering (and becoming part of) the legal order of Montenegro, placed above legislation, in the hierarchy of legal acts, and below the Constitution, which is the highest legal act of the State.

D 18 juillet 2016    ANikola B. Šaranović

CNRS Unistra Dres Gsrl

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