LAW ON CIVIL PROCEDURE
("Official Gazette of the Republic of Montenegro", no. 22/04)
PART ONE
GENERAL PROVISIONS
CHAPTER I
BASIC PROVISIONS
Article 1
This Code define rules of proceedings on the basis of which the court
deliberates and decides on personal and family disputes, labor disputes and
property and other civil disputes between natural and legal persons, if not
provided otherwise in a separate law.
Article 2
In civil proceedings the court shall decide within the limits of the
claims which have been filed during the procedure.
The court can not refuse in deciding of claim if it is jurisdiction for its.
Article 3
The party must have legal interest for the claim and any other civil
actions.
Article 4
Parties may freely dispose of their claims they filed during the
proceedings.
They can renounce the claim, recognize the claim of the opposing
party or settle the dispute.
The court shall not recognize dispositions by the parties, which
contravene mandatory regulations and moral rules.
Article 5
Unless otherwise provided, the court shall decide claims on the basis
of an oral, direct and public hearing.
If the law prescribes it, the court decides on the disputes on the written
legal actions and on the basis of indirect evidence.
If the law prescribes it, the court may decide that main hearing shall
be closed to the public.
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Article 6
Each party shall have the right to present his/her arguments on the
proposals and claims of the adverse party.
The court shall be authorized to decide upon a claim with regard to
which the adverse party has not been given a possibility to respond, only
when so provided by this law.
Article 7
The civil procedure is conducted in the language, which is in official
use in the court.
The parties involved and other participants in the proceeding may use
their native language or other language which the parties can understand.
Article 8
Parties shall be obliged to present all facts on which they base their
claims and present evidence proving those facts.
The court is authorized to take into consideration facts that
were not presented by the parties if the outcome of the hearing and
presentation of evidence indicate that the parties intend to dispose of a nondisposition
claim. (Article 3 Paragraph 2).
Court cannot ground its decisions on the facts about which the parties
were not given a possibility to be heard.
Article 9
The court shall decide which facts shall be considered as proved, on
the basis of free evaluation of evidence. The court shall conscientiously and
meticulously evaluate each individual piece of evidence and all evidence in
their entirety.
Article 10
Parties, third parties and their representatives will be obliged to tell
the truth before the court and conscientiously use the rights conferred on
them under this law.
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Article 11
The court shall be obliged to conduct the proceedings without any
unnecessary delay, with the lowest possible costs, and prevent any abuse by
the parties in the proceedings of rights to which they are entitled.
If the parties, third parties, their legal representatives and authorized
agents, in order to cause damage to others or with a purpose to abuse the
rights guaranteed to them by this Law, which is in contravention with good
practice, conscience and honesty, the court is authorized to pass the
sentence on the merits, charge a fine, judge the compensation of damage or
prohibit the instituting of proceedings.
Article 12
The party that does not have a qualified representative (a lawyer, or a
person who did a bar examination) and therefore does not exercise a right
provided under this Law because of not being aware of the existence of
such a right, shall be informed by the court about the motions it is entitled
to undertake.
Article 13
As a rule, the first instance proceedings shall consist of two court
sittings – one for the preparatory hearing and one for the main hearing.
Article 14
When the court's ruling depends on a preliminary ruling regarding the
existence of a certain right or legal relation, and such a ruling has not yet
been made by a court or another competent body ("Preliminary Issues"), the
court itself may resolve the issue unless otherwise stipulated by special
regulations.
The court's ruling on a Preliminary Issue shall have legal effect only
in the civil proceedings in which that issue has been determined.
Article 15
With respect to the existence of a criminal act and criminal liability of
the perpetrator, the court shall be bound in the civil proceedings by a final
judgment of the criminal court pronouncing the accused guilty.
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Article 16
A single judge shall adjudicate in the first instance proceedings and
proceedings upon the motion for reopening.
A three-judge panel shall adjudicate in the second instance
proceedings.
During the procedure of decision making on the revision and request
for protection of legality, the court operates as a panel of fifth judges.
When the court operates as a Panel of three judges about the conflict
of jurisdiction and determination of territorial jurisdiction.
Article 17
Unless the Law prescribes the form of submission by the parties in
civil proceedings, submissions must be made in writing outside the hearing
and orally at the hearing.
CHAPTER 2
COURT JURISDICTION
JOINT PROVISIONS
Article 18
Upon the receipt of a claim, the court shall assess if the matter falls
within its jurisdiction.
When assessing its jurisdiction, the court shall take into consideration
the statements in the complaint and the facts known to the court.
If the circumstances on which the jurisdiction of a court is based
change during the proceedings, the court that was competent at the moment
of filing the complaint shall remain competent, even if another court would
be competent due to those changes.
Article 19
During the proceedings the court shall, ex officio, have due regard to
whether the dispute falls within the jurisdiction of the court.
When, in the course of proceedings, the court finds that another body
has jurisdiction for resolving the dispute, it shall declare that it is not
competent, annul the actions conducted and reject the claim.
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When in the course of proceedings, the court finds that a court in does
not have jurisdiction over the dispute, it shall ex officio declare that it is not
competent, annul the actions conducted and reject the claim.
Article 20
During the proceedings, every court shall, ex officio, have due regard
to its subject matter jurisdiction.
Article 21
If the parties have already agreed upon the arbitration, the court that
the claim is filed to in the same dispute between the same parties shall,
upon the objection of the defendant, declare itself non-competent, terminate
the conducted activities in the proceedings and dismiss the claim, unless it
finds out that the contract on the arbitration is not legally effective (Article
456 of this Law), that it has ceased to be effective or that it cannot be
fulfilled.
The objection from paragraph 1 of this Article the defendant may file
to the court in the reply to the claim at the latest.
Article 22
If the court finds, before the ruling on the main subject matter has
been rendered, that the proceedings should be conducted in accordance with
the rules of non-contentious procedure, it shall issue a decision on the
cessation of civil (contentious) proceedings. After the decision becomes
final, the proceedings shall be continued before the competent court in
accordance with the rules of non-contentious procedure.
Actions carried out and rulings rendered by the contentious civil court
including on-the-spot investigation, expert evaluation, hearing witnesses
and the like, shall not be considered null and void due to the fact that they
were carried out in the contentious proceedings.
Article 23
The court may, upon the defendant’s objection, which must be filed
no later than at the time of responding to the complaint, declare that it has
no territorial jurisdiction.
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The court acting ex officio may declare that it has no territorial
jurisdiction, only when another court has the exclusive territorial
jurisdiction, and not after the response to the complaint was submitted.
The court will decide from objection from paragraph 1 of this Article,
no last at preparatory hearing or at the main hearing if the preparatory
hearing is not held.
Article 24
After the court's decision declaring that the matter does not fall within
its jurisdiction (art. 21, 22) becomes final, the court shall promptly, and no
later than within three days, forward the case to the competent court.
The court, to which the case has been forwarded as the competent
court, shall continue the proceedings as if they were initiated before that
court.
Actions such as on-the-spot investigation, expert evaluation, hearing
of witnesses and the like taken by a court which does not have jurisdiction
over the matter shall not be considered null and void due to the fact that
they were carried out by a court that was not competent.
Article 25
If a court to which the case has been forwarded as the competent
court, considers that the jurisdiction lies with the court that forwarded the
case or another court, it shall send within three days the case to the court
which is competent to resolve the conflict of jurisdiction, except if it finds
that the case was forwarded by mistake when it should have been sent to
another court. In such instance the court shall forward the case to another
court and inform accordingly the court which has originally forwarded the
case.
When the second instance court passed a ruling acting on an appeal
against a first instance ruling declaring that the first instance court does not
have territorial jurisdiction, the determination as to jurisdiction shall be
binding for the court to which the case has been forwarded, if the second
instance court which passed the ruling was competent for resolving the
conflict of jurisdiction between those courts.
The ruling of the second instance court declaring that the first instance
court does not have jurisdiction as to the subject matter shall be binding for
any court to which the same case is subsequently forwarded, if the second
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instance court was competent for resolving the conflict of jurisdiction
between those courts.
Article 26
Until the conflict of jurisdiction is resolved, the court to which the
case has been forwarded shall undertake those procedural actions that may
be affected by delay.
The decision on conflict of jurisdiction shall not be subject to appeal.
Article 27
Each court shall conduct procedural actions on its territory of
jurisdiction, but if there is a danger of delay, the court shall conduct some
actions on the territory of another court. The court on whose territory these
actions are to be taken shall be informed accordingly.
Article 28
In respect to the jurisdiction of the courts of the Republic of
Montenegro for trying foreign citizens who enjoy immunity, and for trying
other foreign states and international organizations, the provisions of the
international law shall be applied.
JURISDICTION OF COURTS IN DISPUTES WITH
INTERNATIONAL ELEMENTS
Article 29
The court of Republic of Montenegro (hereafter: domestic court) has
the authority to act in the disputes involving international elements when its
jurisdiction is expressly provided by the Law, or by an international
agreement. If the Law or international agreement does not contain an
explicit provision about jurisdiction of the domestic court for particular
category of disputes, the domestic court shall also decide in such disputes
where its authority originates from the provisions of the law related to
territorial jurisdiction of the domestic court.
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SUBJECT MATTER JURISDICTION
Article 30
In civil proceedings, courts shall adjudicate within the scope of their
subject matter jurisdiction, as determined by this law or another applicable
law.
VALUE OF THE DISPUTE
Article 31
The plaintiff shall be obliged to state the value of dispute in the
monetary complaint.
Only the value of the main claim shall be taken as the value of the
dispute.
Interest, contract penalties and other secondary claims shall not be
taken into account in assessing the value of the dispute unless they are a
part of the main claim.
Article 32
If the claim concerns some future installment payments, the value of
dispute shall be calculated according to their total sum, but only up to the
sum that equals the payments conducted over a five-year period.
Article 33
If one complaint against the same defendant includes several claims
based on the same factual and legal basis, the value shall be decided
according to the sum of all claims.
If the claims in the complaint arise from different bases but have been
filed against several defendants, the value shall be determined according to
the value of each individual claim.
Article 34
Where the dispute concerns the existence of lease or rental agreement,
or the utilization of an apartment or business premises, the value shall be
calculated under the one year lease, or rent, unless when the rent or lease
has been contacted got a shorter period.
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Article 35
If the complaint requests only the security for certain claim or the
determination of a pledge right, the value of the dispute shall be determined
according to the amount of claim that needs to be secured, and if the value
of the pledged object has lower value than the claim that needs to be
secured, the value of the dispute shall be the value of pledged object.
Article 36
If the Statement of Claim does not disclose a monetary value, but the
plaintiff states in his/her claim that he/she accepts a certain monetary sum
instead, that sum shall be taken as the value of dispute.
In other cases, when the Statement of Claim is not for a monetary
amount, the value stated by the plaintiff in the claim shall be taken as the
value of dispute.