Month: November 2019

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How the new Labor Bill protects against gender discrimination

 

At today's session, the Government adopted the long-awaited Bill on Labor. We were interested in how the law protects against gender discrimination at work and here are the first conclusions:

 

  • A key innovation compared to the previous law is the duration of a fixed-term employment contract, which has been extended to 36 months instead of the previous 24 months.

 

  • In addition to the provisions prohibiting all forms of discrimination, including gender discrimination, the new law introduces a novelty in respect of the protection of pregnant women and women in childbirth, in accordance with the EU Directive on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers birthing or breastfeeding (92/85 / EEC of 19 October 1992) and the EU Directive implementing a revised framework agreement on parental leave (2010/18 / EU of 8 March 2010). Thus, Article 123, paragraph 5 introduced the novelty that “an employee whose term of employment is terminated during pregnancy, the use of temporary restraint on the grounds of pregnancy maintenance, maternity or parental leave, the period for which the employment contract based on it extends the fixed term until the expiration of the entitlement to that leave. ”However, the period of 36 months for the duration of the fixed-term contract does not include the length of time for which the employee has been extended the employment contract for maintenance of pregnancy, which still leaves room for discrimination against the basis of motherhood.

 

  • Article 121 provides that an employer may not refuse to enter into a contract of employment with a woman for pregnancy, nor may she offer her to modify a contract of employment under adverse conditions because of pregnancy, birth or breastfeeding. The employer cannot condition the establishment of an employment relationship, that is, the conclusion of a contract of employment with proof of pregnancy, unless it is a job where there is a significant risk to the health of the woman and the child determined by the competent health authority. Also, the employer cannot ask for any information about the pregnancy, nor can it instruct another person to request it, unless the employee personally requests a specific right provided by law or other regulation.
  • The law allows women to be absent for 1 month during the month for prenatal examinations (Article 122)

 

  • An employer cannot terminate a contract of employment for a pregnant employee and an employee while exercising the right to maternity and parental leave.

 

  • The employer cannot terminate the employment contract with the parent, adoptive parent and foster parent because of the exercise of the right to parental, adoptive and foster parental leave; the right to work part-time for the care of a child with severe disabilities; a single parent who has a child up to seven years of age or a child with developmental disabilities, if he or she fulfills obligations in accordance with the law, collective agreement and employment contract.

 

  • During absence from work due to child care, temporary disability to work on the basis of pregnancy maintenance, use of maternity, parental, adoption, foster care leave, the employer cannot declare the employee the person whose work has ceased to be needed.

 

  • The new law also provides for the possibility of a contract of employment outside the premises of the employer: teleworking, work from home and domestic work, as a special type of employment contract, and the novelty is that annual leave cannot be replaced by financial compensation.

 

  • We believe that the Bill should be further aligned with the new EU Directive on work-life balance, which aims to provide more flexible working hours as well as paid parental leave for fathers and other carers (4 months 'reserved' for fathers, at least of which one must be non-transferable to the mother) in order to establish a more equal division of family responsibilities, fathers get more childcare opportunities, and women get more opportunities for paid work.

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Decisive measures to eradicate violence against women in all spheres of society needed

 

Available research and statistics indicate a worrying extent of violence against women and girls in Montenegro in all spheres of society. Family and intimate partner violence against women, sex selection due to the son preference, discrimination in the field of labor  and employment, poverty and social exclusion of women, especially self supporting mothers, elderly women, women with disabilities, Roma and LBT women – are burning social problems that require the Government of Montenegro to take concrete and comprehensive measures to address them.
According to the latest survey (OSCE, 2018), almost one in five women (19%) in Montenegro has experienced physical and / or sexual partner or non-partner violence after the age of 15.

A survey conducted by the NGO Women's Rights Centre on Gender Discrimination in the Field of Labour and Employment found that one in three respondents had experienced sexual harassment in the workplace, and as many as 5% said they had been forced to have sex with their colleague or superior.
At the same time, research and practice of non-governmental organizations supporting victims of violence shows a  low level of trust in the work of institutions, further weakened by recent cases of gender-based violence that have come to the public, which showcased the institutional discrimination of women  of violence survivors.
Despite the adoption of the new Protocol on the Treatment, Prevention and Protection of Domestic Violence and Violence Against Women, the practice shows that the competent institutions do not inform victims about their rights, including the possibility of using a  free legal aid. Courtrooms do not provide special waiting rooms and entrances for victims, who are often intimidated by encountering a perpetrator in front of the courtroom and even in the courtroom itself. Contrary to international standards, courts continue to apply the practice of confronting victims and perpetrators, even in particularly sensitive cases of sexual violence. Victims are rarely allowed to testify from a separate room, through appropriate communication technologies.
The media do not respect the privacy of victims, who are often uninformed about legal possibilities for protection of private life.
The state has not yet earmarked funds for direct financial assistance and support for the reintegration of victims, nor has it solved the longstanding problem of alimony payments, which makes victims of violence and their children economically dependent and exposed to theconstant risk of poverty.
According to the latest survey of criminal policies in domestic violence cases ( Women's Rights Center and the Council of Europe, 2018), most of the domestic violence cases are prosecuted as misdemeanors, including cases of physical violence against women that caused bodily  injuries, resulting in ineffective penalties and poor victim protection. A mild criminal policy does not have a deterrent effect on perpetrators of violence, as evidenced by the high rate of – as many as one in two reoffenders in criminal cases, or one in three in misdemeanor cases.

A study conducted by the Women's Rights Center with the support of UNICEF (2018) shows that institutions most often do not recognize the severe position of child victims and witnesses of domestic violence, and accordingly qualify violence as an act of less responsibility. Often, the right of abusive parent  to maintain a contact with children – is favored over the mother-child safety , and therefore we urge institutions to make the existence of  domestic violence a compulsory element of assessing the “best interests of the child” and to provide support and protection accordingly.

A data on sanctioning policy of domestic violence for 2018
 (prepared by NGO Women's Rights Centre):

In terms of domestic violence, data for 2018 show a 20% increase in prison sentences in criminal cases compared to 2017, but still a relatively high number of suspended sentences and fines – as much as 45% and a low percentage of the imposed security measures Restraining Order – only 3.6% of total convictions.
In misdemeanor cases, almost two-thirds of the total number of convictions (58%) consisted of fines and suspended sentences, correctional measures andwarnings, and imprisonment in only 10% of convictions. Misdemeanor courts continue to under-enforce safeguards that provide physical protection of  victims, so the measure of restraining order against the victim was imposed in only 7.6 %, and the measure of removal from the apartment in only 4% of the total number of cases settled by misdemeanor courts in 2018.

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REACTION OF WOMEN’S RIGHTS CENTER IN RESPECT OF THE ACTION OF BASIC STATE PROSECUTOR’S OFFICE IN BERANE IN CASE OF VIOLENCE FOR WHICH MUHAMED RAMUSOVIC IS ACCUSED

 

Supreme State Prosecutor's Office

Ivica Stankovic, Supreme State Prosecutor

 

Dear Mr Stankovic,

 

We are addressing you regarding the treatment of Basic State Prosecutor’s Office in Berane against the injured Jelena Krstic, interviewed in the presence of her attorney Srdjan Ljeskovic and representatives of the NGO SOS Telephone Berane, in Berane, on November 15 2019. On this occasion we are also recorded her statement, which is why we are sending you this letter.

On November 4 2019 on the record we had access to, in Case Kt. 257/19, the injured Jelena Krstic informed Basic State Prosecutor Gorica Golubovic that she had hired her attorney Srdjan Ljeskovic through NGO Women's Rights Center from Podgorica, which provides support and legal representation to women and children victims of violence.

On November 5 2019 without notifying the injured party's attorney or NGO Women's Rights Center from Podgorica that hired her legal representative, explaining that required to provide documentation of the pelvic X-ray, the Basic State Prosecutor called the injured party by telephone to access the premises of Basic State Prosecutor’s Office in Berane.

As she has not yet recovered from her injuries, she has been traumatized by therapy with the violence she survived, the injured party did not want to make a statement in the absence of her attorney, but she did so as a result of pressure from the Basic State Prosecutor, Gorica Golubovic.

 

According to the injured party's statement, the Basic State Prosecutor used one form of pressure upon the pretense of “good intentions”, saying that the injured party should “forgive” the defendant and denies the allegations she made to the media. In addition, by not informing the attorney of injured party that she would be heard and by insisting that injured party should continue to make the statement despite her poor state of health, the Basic State Prosecutor did not comply with the Criminal Procedure Code as well international standards for the protection of the interests and rights of victims. Further, the injured party states that the prosecutor, instead of focusing on the situation, emphasized her national declaration that she was a Serb, asking is why she needed to write a petition for the Serbian Orthodox Church.

According to these allegations, the Basic State Prosecutor grossly violated the rights of the injured party – a victim of violence, whom should be treated with respect, in a sensitive and professional manner without discrimination of any kind. In all contact with the victim, the competent authority had to take into account the sex of the victim, the trauma she has endured, the state of health, the sense of personal vulnerability and fear and its immediate needs during the hearing. It's also not

a respectful obligation to protect the victim from secondary and repeated victimization and intimidation, thus preventing her from having proper access to justice, since heard without an attorney, although she informed the Basic State Prosecutor that as an ignorant party does not want to make a statement on her own.

We must also address the fact that Basic State Prosecutor did not act immediately after the case in question although she was notified by City of Berane Police Department, she has been handling the case 8 days after the event and after the NGOs for the protection of women and

of Human Rights addresed to the head of the Basic State Prosecutor’s Office in Berane and Supreme State Prosecutor Ivica Stankovic, during which time the defendant was released.

We believe that such treatment of the Basic State Prosecutor is not in the interest of justice and fairness, that it is not leads to establishing the true facts about a critical event. Therefore, we ask that it be investigated the conduct of Basic State Prosecutor’s Office in Berane in this case and that Prosecutor Gorica Golubovic be excluded as well from this subject.

In support of the above, we provide you with a statement from the injured party describing the conduct of competent Basic State Prosecutor.

As this is not the first time we have noticed serious omissions in the conduct of the prosecution in defense women victims of violence (recalling a recent case in Kolasin in June 2019 in which we also asked for your intervention) we ask that you take action measures that are within your competence to prevent future failures and to establish practices which will provide access to justice and the best protection for victims.

NGO Women’s Rights Center, Podgorica, November 15th 2019

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REACTION OF NON-GOVERNMENTAL ORGANIZATIONS SOS TELEPHONE BERANE, WOMEN'S RIGHTS CENTER, WOMEN’S SAFE HOUSE, SOS TELEPHONE PODGORICA, SOS TELEPHONE NIKSIC, SPECTRA AND HUMAN RIGHTS ACTION

 

ON THE CASE OF VIOLENCE IN BERANE

 

                                    Basic State Prosecutor's Office Berane

                                    Sujkovic Amra, Deputy Chief

 

            Podgorica, November 1 2019

 

            Dear Ms Sujkovic,

 

            We are addressing you about the case of the beating of a single mother, Jelena Krstic, who lives and works in Berane, who was attacked and seriously injured in the workplace by Muhamed Ramusovic. Yesterday, SOS Telephone activists in Berane visited Jelena Krstic at Berane General Hospital and on behalf of NGOs dealing with the protection of the rights of women and children victims of violence, supported her and offered assistance. Based on the conversation of the SOS Telephone activist with the injured party and media photos, it is evident that Jelena is in bad condition because of the violence committed against her by Muhamed Ramusovic, for which she was kept in hospital and unable to care for her minor children and to do the work on which their livelihood depends. We have learned from several media outlets that they consider the defendant a person of interest. It is also alleged that the police filed a criminal complaint against Muhamed Ramusovic for the violent behavior, but that he was released after being heard at the Basic State Prosecutor’s Office in Berane. We think that it is in the public interest to obtain information as to why the duty prosecutor defined to release the defendant Ramusovic, who, through wanton violence, without any reason, injured the aggrieved party in to the extent that she needs hospital treatment. We also ask you to explain how you ensured Jelena Krstic's security and her continued protection against threats and intimidation.

Action of Basic State Prosecutor’s Office in Berane is critical to the success of the entire proceeding, and in particular it is important to ensure timely and effective protection and respect for the rights of victims of violence, and therefore we require Basic State Prosecutor’s Office in Berane to take all measures within its jurisdiction to this case is brought to justice and the victim protected.

 

                                                                                  

NGO SOS Telephone Berane

NGO Women’s Rights Center, Podgorica

NGO Women’s Safe House, Podgorica

NGO SOS Telephone Podgorica

NGO SOS Telephone Niksic

NGO Spectra, Podgorica

NGO Human Rights Action, Podgorica