By amending the Decision on the criteria for determining the conditions for acquiring Montenegrin citizenship by admission, published yesterday, systemic legislative discrimination against a large number of people who objectively, according to the provisions of the Law on Montenegrin Citizenship and the European Convention on Citizenship ratified by Montenegro in 2010, have acquired the conditions for admission to Montenegrin citizenship and realization of full personal status with other citizens, citizens of Montenegro, announced today Božidar Čarmak, Acting Director General of the Directorate for Criminal and Civil Legislation in the Ministry of Human and Minority Rights.
"Thus, a fantastic success was achieved in the field of fighting against discrimination and the implementation of European obligations," pointed out Čarmak.
Yesterday, the Official Gazette published the Decision on the amended criteria for determining the grounds for acquiring Montenegrin citizenship by admission, which was adopted by the Government of Zdravko Krivokapić immediately before it was voted no-confidence in the Assembly on February 4.
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"The adoption and amendment of the Decision is in the exclusive competence of the Government of Montenegro, both in terms of the preparation of the proposal and in terms of adoption in accordance with Article 17 of the Law on Montenegrin Citizenship. This is why it is surprising the pressure of colleagues from other areas of public administration who make their statements contrary to the prescribed legal competences from Article 17 of the Law on Montenegrin Citizenship, extending their competence to the obligations of the Government, instead of deriving their competence from the orders and obligations of the Government. The pressure of some colleagues from the public administration, with elements of official and public incitement to illegal influence, is especially surprising and worrying. , to the management and the director of the Official Gazette, not to publish the adopted Decision, contrary to all their official obligations from the Law on the Publication of Regulations and other Acts," said Čarmak.
He added that the Law on Montenegrin Citizenship stipulates that the condition for acquiring Montenegrin citizenship is admission and that a foreigner has been legally and continuously residing in Montenegro for ten years before submitting an application for admission to Montenegrin citizenship, which norm in that period is harmonized with the regulation from Article 6 paragraph 3 of the ratified European Convention on Statehood, which prohibits the determination of residence for more than ten years before applying for citizenship.
"Neither the Law nor the Convention make a distinction between residence based on permanent or temporary residence. The Law and the Convention require that residence for a period of no longer than 10 years be continuous and legal. The legality of residence is determined by the regularity of applications and the provisions of the Law on Foreigners of Montenegro, and it cannot be degraded by any by-law," said Čarmak.
He said that Article 86 of the Law on Foreigners stipulates that a permanent residence permit can be issued to a foreigner who, until the date of the application for the permit, has legally resided in Montenegro continuously for five years on one of the grounds for temporary residence in Montenegro.
"Therefore, the legality of the residence of foreigners is prescribed by the provisions of the Law on Foreigners, and Article 86 of the same law stipulates that a permit can only be issued to a person who has legally and continuously resided in Montenegro for at least 5 years. Therefore, during the administrative procedure for issuing a permanent permit residence of a foreigner, the state authority determines that the foreigner has resided legally and continuously for 5 years in Montenegro. It is clear that a foreigner does not begin his "legal residence" by obtaining a permit for permanent residence, as was wrongly standardized by the previous Decision, but begins his legal residence by entering and settling Montenegro in accordance with the Law on Foreigners. The principle of the unity of the legal order mandates the obligation that if the same administrative body determines that a foreigner has legally and continuously resided in Montenegro for five years in order to obtain a permanent residence permit, the same can this fact of "legal and continuous" residence in Montenegro as determined to be used in the exercise of other rights.The decision recognizing permanent residence as the only type of legal residence excluded the "legality" of residence established by the final decision of the same administrative body. This is how the provision of Article 86 of the Law on Foreigners, as well as the written international obligation of Montenegro from Article 6, Paragraph 3 of the European Convention on Citizenship, has been degraded," said Čarmak.
According to him, Article 9 of the Constitution of Montenegro stipulates that international treaties and generally accepted rules of international law are an integral part of internal law and that they have primacy over national legislation.
"The European Convention on Citizenship prescribes a ban on the signatory state that, when determining the conditions for naturalization, it cannot prescribe a period of residence longer than ten years before submitting the application. The Convention does not limit the type and form of residence to "permanent residence" or any other specific form of residence, so it the previous Decision represented a flagrant violation and falsification of the European Convention on Citizenship. With the regulation formulated in this way, the period of "legal and continuous" residence in Montenegro was increased from 10 to 15 years, contrary to the Law and the Convention. The breach of the maximum permitted period of residence from 10 to 15 years of legal and continuous residence is expressly prohibited by the cited provision of the Convention. Finally, for the sake of full application of the Convention and the eradication of discrimination in this area, it is prescribed that the state has the obligation to process applications for admission to citizenship within a reasonable time, as well as the prohibition of discrimination in these procedures. Accordingly, it is necessary for the Government, in order to fulfill the obligations of the Convention, to request from the Ministry of Internal Affairs information on the status of cases for admission to Montenegrin citizenship, on the delay in their processing in relation to the deadline of one year from the date of submission of the application for admission, and to determine whether the requests for admission, they resolve equally quickly and positively in relation to the countries of all applicants' countries of origin, and in relation to religion, nationality, gender, race and other characteristics protected by the anti-discrimination provisions of Article 5 of the same Convention," Čarmak concluded.
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