Questions & Answers

FAQs - Questions & Answers

Since April 2014, the procedures of enforcement and securing of claims have become part of the competencies of the public enforcement officers, and are regulated by the Law on Enforcement and Securing of Claims published in the “Official Gazette of Montenegro“ no. 36/2011.  Enforcement procedure is initiated by filing a proposal for enforcement based on enforceable document (e.g. judgment, mortgage deed and alike), or based on authentic documents (e.g. invoices with written proof of receipt, bills and alike).  Following that, the enforcement officer decides with his/her enforcement petition, but before that, the judgment creditor is obliged to make an advance payment of the enforcement costs fixed by the enforcement officer in his/her resolution.  It is only after such payment is made that a writ of enforcement is serviced.  The judgment debtor, and in some cases the judgment creditor, as well, have the right to lodge an appeal against the writ of enforcement, however, if it is the case of a writ of enforcement that was based on an enforceable document, an appeal shall not stay the execution of enforcement, while if it is the case of a writ of enforcement that was based on authentic document, then the appeal shall have suspensive effect.

A Panel of the court (basic or commercial) which is competent for the area for which the public enforcement officer is nominated shall decide on the appeal.

When referring to the case of enforcement, a novelty is that it is not mandatory to include it in the proposal for enforcement because public enforcement officers are authorized to choose on their own accord the ones for which they believe to be most expedient.

When it comes to remunerations and tariffs of the public enforcement officers, they are regulated by a Decree on Tariff for Public Enforcement Officers published in the “Official Gazette of Montenegro” no. 28/2013 and no. 14/2014.
This tariff, briefly speaking, foresees the obligation on the part of the judgment creditor to pay a remuneration for the work of the public enforcement officer and compensate for the costs incurred in relation to conducting the cases.

The remuneration for the work of the public enforcement officer is composed of the following:

1.    Remuneration for preparing the case
2.    Remuneration for undertaken actions
3.    Remuneration for successful enforcement

The amount of remuneration for preparing and conducting the case is determined in relation to the amount of the mainclaim and is collected for the claims exceeding 1.000,00 EUR.  Preparation of the case entails determining of the value of proposal for enforcement, calculation of interest and advance payment costs, and alike.

Remuneration for undertaken action is determined based on the action that was undertaken, e.g. delivery of documents by courier, acquiring data on the property of the debtor etc.

The two aforementioned types of remuneration are paid in advance, i.e. prior to the servicing of the writ of enforcement.  

The remuneration for successful enforcement is also determined depending on the amount of claim and is expressed in percentages, ranging from 9 % to 1,2 %.  In the event that the judgment creditor voluntarily meets his obligation immediately after writ of enforcement is serviced, than the remuneration of the public enforcement officer is reduced by 50 %, while if the enforcement was carried through a transfer of funds from the account of the judgment debtor or from the account of the debtor of a judgment debtor or if the enforcement was not attempted in any other way, than the remuneration for successful enforcement is reduced by 25%.

This type of remuneration is paid after the enforcement has been carried out, and the public enforcement officer independently calculates it and charges it from the collected amount.  Considering the fact that this amount is charged, for instance, from the account of the judgment debtor, it is not possible to avoid payment of the remuneration for successful enforcement. 

The first two types of remuneration are paid in advance by the judgment creditor, but are transferred to the debtor. According to the Superior Court's decision of 24.12. 2014. the remuneration for successful enforcement is paid by the debtor. 

In addition to the remuneration, judgment creditor is also obliged to compensate the public enforcement officer for all travel costs, postage, expert witness costs and like.  In the end, costs are born by the debtor. 

Attorney’s fees are calculated separately and are transferred to the debtor.

In accordance with the provisions of the Criminal Procedure Code there are extraordinary legal remedies such as reopening of criminal procedures, request for extraordinary mitigation of punishment and request for protection of legality.

I     Reopening of Criminal Procedures (provision of Articles 420 – 432)

A criminal proceeding may be repeated at a petition of an authorized person in favor of the accused person if the decision is based on a false document, or false testimony of a witness, expert witness or interpreter, if the decision resulted from a criminal offence of the judge or person who undertook evidentiary actions, if new facts or new evidence are presented which on their own or in relation to previous evidence appear likely to bring about the acquittal of the person who was convicted or to his/her conviction on the basis of a less severe criminal law, if a person was tried more than once for the same criminal offense or if more than one person was convicted of a criminal offense which could have been committed only by one person, if the European Court of Human Rights or another court established by a ratified international treaty finds that human rights and freedoms have been violated in the course of the criminal proceedings and that the judgment is based on such violations.

The First instance Panel shall decide on this type of appeal. 

II     Extraordinary Mitigation of Punishment (provision of Articles 433 – 436)

Mitigation of a punishment pronounced by a final judgment which has not been executed or served shall be permitted when, after the decision becomes final, circumstances appear which did not exist at the time the decision was rendered or did exist, but were unknown to the court, provided that they would lead to a less severe sentence.  

The First instance court shall decide on this type of appeal.

III     Request for Protection of Legality (provision of Articles 437 – 445)

The request for protection of legality may be submitted by the Supreme State Prosecutor against final judgments if the law has been violated.  The accused person i.e. their defense attorney can also request from the Supreme State Prosecutor to file this type of request within a month if they are sentenced to an unsuspended penalty of imprisonment of a year or more or to juvenile detention.
The Supreme Court of Montenegro shall decide on this request.

One thing that all these extraordinary legal remedies have in common is that they shall not stay the execution of punishment of imprisonment.

The participation of spouses in the mediation process is voluntary.  It is only the hearing for determining the mediator that is mandatory.  Upon receiving the action the court shall schedule hearing and ask the spouses to make statements immediately as for which mediator they want to approach.  If spouses do not reach the agreement, the mediator shall be appointed by the court.  The spouses shall be duly invited to attend the procedure of reconciliation, however, they are not obliged to respond.  Even if they respond, it does not mean that the mediation will be a success.  If reconciliation is unsuccessful, mediation process shall be continued in the aim of reaching the agreement of spouses on exercising parental rights, if the spouses have children, and agreement on settlement of joint property.  This procedure can be successful, partially successful or unsuccessful, following which the same is continued before the court which is to decide if the relationships between the spouses have seriously and permanently been disturbed and decide on the divorce.

A child acquires full business capability when they complete 15 years of life, but that does not mean that they are obliged to find a job and start earning.  The parents are not excused from obligation of supporting children of this age, even though they generate income from their own work.  Their obligation continues to exist, however the children are obliged to contribute to their maintenance from their own income, even if this is needed for the maintenance of the family they live in.

Parents are obliged to provide support for their minor children.  If a child has not completed education before coming of age, parents shall be obliged to provide support for the child according to their possibilities until the expiry of the period required for completing the education, and if the period of education is extended due to justified reasons, they are obliged to provide support for their children up to the age of 26.

Also, if a child who is of age due to illness or mental deficiency is not capable to work, the parents are obliged to provide support for the child for the time in which such a state of affairs exists.

The court can avoid the Contract of Lifelong Support upon a demand of legal heirs of the recipient due to illness or old age of the recipient of support if the contract constituted no uncertainty for the provider of support.  Legal heirs may claim avoidance of the contract within one year of becoming aware of the contract, and at the latest within three years from the day of recipient’s death.