CASE OF GARZICIC v. MONTENEGRO
Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
5. The applicant was born in 1924 and lives in Podgorica. She is also a paraplegic. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 4 October 2000 the applicant lodged a property-related claim with the Court of First Instance (Osnovni sud) in Podgorica, seeking declaratory relief. In so doing, she failed to specify the exact value of the claim in question (vrijednost spora). However, on 2 November 2000 she paid court fees of approximately 10 euros (EUR), which corresponded to the value of claims ranging between EUR 50 and EUR 150. 8. On 29 April 2004, at the end of the main hearing (glavna rasprava) and after additional evidence had been examined, the applicant specified that the value of the claim was EUR 37,000. 9. On the same day the Court of First Instance ruled in favour of the applicant. The judgment stated, inter alia, that the value of the claim was EUR 37,000 and noted that “[an expert witness had assessed that] on 10 October 1984 ... the total value of ... the property ... [at issue had been] ... EUR 72,877.79”. 10. On 22 October 2004 the High Court (Viši sud) in Podgorica quashed that judgment and ordered a re-trial. 11. On 15 June 2005 the applicant, after the main hearing had ended and on the court's request, specified that the value of the claim was EUR 9,900. On the same day the respondent's representative submitted his claim for costs based on the value of the claim being EUR 11,637. 12. On 19 July 2005 the Court of First Instance ruled against the applicant. The judgment specified, inter alia, that the value of the claim was EUR 11,500 and once again referred to the said expert's findings. 13. On 7 April 2006 the High Court upheld that judgment on appeal. 14. On 10 October 2006 the Supreme Court (Vrhovni sud) in Podgorica rejected the applicant's appeal on points of law (revizija) as inadmissible, stating that the court fees (sudska taksa) paid by the applicant had indirectly set the value of the claim significantly below the statutory threshold (see Article 382 § 3 at paragraph 19 below). 15. Sections 35-40 provide general rules as regards the means of establishing the value of a civil claim. 16. Section 40 § 2 provides that in cases not relating to pecuniary requests the relevant value of the claim shall be the one indicated by the plaintiff in his/her claim. 17. Section 40 § 3 further provides that when the value specified by the plaintiff appears to be obviously incorrect, the competent first-instance court shall “at the latest at the preliminary hearing (pripremno ročište) or, if there was no preliminary hearing, at the main hearing before the examination of merits, speedily and in an adequate manner, check the accuracy” of the specified value. 18. Section 186 § 2 provides that when the right to an appeal on points of law depends on the value of the claim “the plaintiff has a duty to indicate [the value of the claim] in the statement of claim”. 19. Section 382 § 3 provides that an appeal on points of law shall not be admissible in non-pecuniary matters where the value of the claim does not exceed approximately EUR 1,470. 20. Under sections 383 and 394-397, inter alia, the Supreme Court may, should it accept an appeal on points of law lodged by one of the parties concerned, overturn the impugned judgment or quash it and order a re-trial before the lower courts. 21. Sections 8 and 154 of this Act stipulate that legal guardianship shall be provided only to persons not capable of taking care of their “person, rights and interests”.