The Basic Court in Podgorica determined that the state did not discriminate three years ago John M. Barca, preventing him from subsequently being registered in the civil registry of same-sex life partnerships.
This is a first-instance verdict, following a lawsuit filed by the LGBT Forum Progress three years ago.
President of the Board of Directors of this non-governmental organization Bojana Jokić She said they filed an appeal to the High Court for all legal reasons.
LGBT Forum Progres decided to sue the state after Barac contacted the registry office of the Capital City in 2022, requesting information regarding the registration of Montenegrin citizens who enter into a civil partnership abroad in the civil partnership registry of persons of the same sex, because he planned to enter into such a partnership abroad and register it in Montenegro, as a Montenegrin citizen.
The Capital City official then informed Barca that he did not have the right to subsequently register. The lawsuit stated that the lack of secondary rules for the implementation of the Same-Sex Life Partnership Act of 2020 created legal uncertainty and resulted in discrimination, both on the basis of sexual orientation and on the basis of life partnership.
According to the Basic Court, it is clearly and unambiguously prescribed how a life partnership between persons of the same sex can be concluded in Montenegro, with the first step being submitting an application for concluding a partnership to the competent local government body.
"The plaintiff did not provide evidence that John M. Barac filed such a report, which implied that the competent authority would undertake certain administrative actions/activities or adopt certain administrative acts. The request itself is based on the claims that John Barac would be potentially discriminated against if he decided to enter into a partnership with his partner in a foreign country, and then enter the information about the fact of the partnership concluded in a foreign country between him and his partner in the domestic register in Montenegro. In this regard, the exercise of rights before a state authority, or a local self-government authority, requires the submission of a formal request, which was absent here," the judge concludes. Mladen Paunović.
Additionally, the court pointed out that the law provides for the registration of partnerships of Montenegrin citizens concluded in Montenegro or in another country, as well as partnerships of foreigners concluded in Montenegro.
"Therefore, in relation to a possible life partnership between a Montenegrin citizen and a foreign citizen, which was concluded abroad, the court concludes that, as of the current situation, it is not possible under the applicable regulations. However, such a fact cannot be the basis for the conclusion that John M. Barco was discriminated against on some of the legally prescribed grounds, and this is taking into account the allegations of the lawsuit that marriages concluded abroad are allowed to be registered in the domestic registry," the verdict states.
The Court also determined that in the specific case, it cannot be assumed that there is a comparable group that would make Barac discriminated against on some basis, because he is not in the same or similar circumstances as persons who intend to register a marriage concluded abroad in the domestic registers of married persons.
"Montenegro has incorporated into its legal system a method of legal recognition of such unions in the form of registered partnerships, but exclusively those concluded in Montenegro. The law, in accordance with the Constitution, regulates the ways of exercising human rights and freedoms, when necessary for their exercise. At the same time, the court could not consider such a situation to be a legal gap... Since the law is precise in this regard, there is no legal uncertainty among citizens regarding the expectation that such unions will be allowed to be registered, because they are not legitimate," the verdict concludes.
In a statement to "Vijesti", Jokić reminds that the lawsuit is limited to one euro and that no procedural costs are requested, which shows that the goal of the lawsuit is not to "enrich" someone, but to "force" the state to harmonize bylaws with the Law.
She believes that "the court, as the guardian of constitutionality and legality in such cases, has a positive obligation to provide effective protection against discrimination, and not to deepen it through an exclusively formalistic approach."
"This failed to interpret the Law on Same-Sex Life Partnership in light of its purpose, but rather, by arbitrarily separating communities, indirect discrimination based on sexual orientation was committed," she said.
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