The state did not discriminate against the Faculty of State and European Studies (FDES), and therefore is not obligated to pay the institution 450.000 euros in damages, according to the first-instance ruling of the Basic Court in Podgorica.
Judge Vesna Banjević According to the ruling, which "Vijesti" has access to, it also determined that the state should not pay FDES money for more years of study, at the expense of financing programs at private institutions, if they are of public interest.
FDES, headed by Đorđe Blažić, in the lawsuit, he claimed, among other things, that this private higher education institution was discriminated against because the state did not make decisions on study programs of public importance at private faculties based on the Law on Higher Education, and that in 2022, without a legal basis, it decided to finance religious schools - the "Mehmed Fatih" Madrasa and the "Sveti Sava" Secondary Religious School - with 1,7 million euros.
"The claim seeking to oblige the defendant to pay the plaintiff the amount of 450.000 euros in damages for the discrimination committed, as well as the amount of 6.300 euros for the costs of financing tuition fees for three-year basic and one-year specialist studies for students with disabilities, with statutory default interest from the date of filing the claim until final payment, is rejected as unfounded," the verdict states, among other things.
The draft Law on Higher Education envisages the deletion of the previous provision according to which the state could determine the public interest and finance private faculties, or students at these institutions. Instead, according to the working version of the future regulation, Montenegrin higher education students who have the opportunity to study abroad at one of the prestigious universities will be granted scholarships from the state budget.
The public debate ended at the end of 2024, but the Bill has not yet been determined.
Possibility is not an obligation
Judge Banjević notes that it is undisputed among the parties that the Government of Montenegro in 2022 reached conclusions on financing the Secondary Religious School of the Gymnasium "Sveti Sava" with 900.000 euros, and the Madrasa "Mehmed Fatih" with 800.000 euros.
"Contrary to the above, it is disputed whether direct discrimination was committed against the plaintiff by failing to adopt a Decision on study programs of public interest at private institutions for the 2022/23 academic year in accordance with Article 68 of the Law on Higher Education, and whether by adopting decisions on financing the religious schools "Medresa" and "Sveti Sava" without a legal basis and any criteria, the plaintiff was discriminated against, because he was prevented from financing study programs of public interest that are implemented at the plaintiff. In this regard, the question arises whether discrimination against the plaintiff was committed by the defendant and whether the plaintiff is therefore entitled to compensation for non-pecuniary damage in the amount of 450.000 euros...", the verdict states.
Judge Banjević cites the provisions of the Law on the Prohibition of Discrimination, the Constitution of Montenegro, as well as domestic and international case law.
"Therefore, it follows from the content of the cited regulations and case law regarding discrimination that in order to establish discrimination, three conditions must be met. The first is unequal treatment (distinction, giving preference or exclusion) in relation to a person or group that are in comparable situations. If there is no unequal treatment, or difference in treatment in a comparable situation, there is no discrimination. The second condition is that the unequal treatment is a consequence of one of the grounds for discrimination (nationality, race, skin color, gender, religion...)... Finally, the third condition is that the unequal treatment results in the inability to exercise a right, regardless of whether there was an intention to have such a consequence. In other words, the motive to discriminate against someone is not an essential element of the existence of discrimination, and the motive is not examined, but it is sufficient to prove that the effect was discriminatory...", the verdict states.
According to the document, FDES states that by failing to adopt a Decision on study programs of public interest at private institutions for 2022/23, in accordance with the obligation under Article 68 of the Law on Higher Education, and by adopting a decision on financing secondary religious schools, discrimination was committed against that institution.
"Given the above, the court first proceeded from the provision of Article 68, paragraph 1 of the Law on Higher Education, which stipulates that funds may be provided from the budget of Montenegro for financing students at private institutions in study programs of public interest that are not implemented at a public institution. The prescribed possibility of providing funds from the budget of Montenegro does not imply an obligation in that direction, which is why the court considers that the plaintiff could not have expected the defendant to adopt a Decision on study programs of public interest at private institutions for the year 2022/23," the verdict emphasized.
They did not prove discrimination.
Judge Banjević specifies that FDES "did not make it probable that he was discriminated against because of his personal characteristics, nor that there was unjustified discrimination or unequal treatment towards him compared to other educational institutions."
“...The above, bearing in mind that the situation in question does not involve unequal treatment within the same category of legal entities. The plaintiff, as a higher education institution, provides higher education, which aims to provide deeper, specialized knowledge, as well as to train students for highly qualified jobs. Although both types of institutions are part of the educational system, secondary schools and higher education institutions have different functions, goals and methods, and therefore their activities are regulated by different legal regulations... Also, bearing in mind that these are different institutions of the educational system, the criteria by which decisions are made about their financing are different, considering the number of pupils or students, specific programs, or capacities of these institutions, all of which are provided for in the laws on the basis of which decisions are made about their eventual financing”, the judgment states, adding that “since the unequal treatment in this specific case is not based on the personal characteristics of the plaintiff, nor is there any room for it to be unjustified, and since these are not comparable situations, this cannot be said to be discrimination against the plaintiff”.
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