Procedural expenses should not be confused with costs, which may be the subject of this sentence. Any trial or process carries with it the risk of losing it and therefore suffering a sentence, since the court costs affect any judicial process.
Legal framework for the imposition of costs
At the end of a judicial process, The judge or the Court must rule on the costs. This ruling may be the imposition of payment of costs to one of the parties in litigation or to none.
The imposition of the sentence on costs is regulated by:
- Civil Procedure Law for the costs of civil proceedings in its articles 394 to 398. It establishes as a general principle that the costs are imposed on the losing party in the litigation, without embargo, there are exceptions and limitations. Other articles of this law that are applicable are article 539 on the ordering of costs in execution, articles 559 and 561 on criteria to be followed in the imposition of costs based on the principle of expiration.
- Law 1/2013, on imposition of costs payable in the case of mortgage foreclosure.
- Criminal Procedure Law for the regulation of costs in criminal proceedings, article 239, at the same time it defines which are the coasts in the jurisdiction criminal in article 241. In the criminal jurisdiction, the ruling on the sentence for costs to the accused party is mandatory.
Imposition of the sentence on costs
The procedural costs cover different expenses depending on whether it is a civil or criminal trial and the impositions are also different in each jurisdiction.
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Condemnation of costs in civil jurisdiction
In civil jurisdiction, the costs are made up of various expenses, including:
- Defense and technical representation fees when mandatory.
- Mandatory publication of announcements or edicts.
- Expert rights and other payments.
- Copies, certifications and other documents that must be requested according to law.
- Customs duties.
- Court fees.
1. Except as provided in the Free Legal Aid Law, each party will pay the expenses and costs of the process caused at its request as they occur.
Expenses of the process will be considered those disbursements that have their direct and immediate origin in the existence of said process, and costs will be the part of those that refer to the payment of the following concepts:
1. Defense and technical representation fees when mandatory.
2. Insertion of announcements or edicts that must be published in the course of the process.
3. Deposits necessary for the presentation of resources.
4. Rights of experts and other payments that must be made to people who have participated in the process.
5. Copies, certifications, notes, testimonies and similar documents that must be requested in accordance with the Law, except those that are claimed by the court from public records and protocols, which will be free of charge.
6. Tariff fees that must be paid as a consequence of actions necessary for the development of the process.
7. The fee for the exercise of jurisdictional power, when mandatory. The amount of the fee paid in the execution processes of mortgages constituted for the acquisition of habitual residence will not be included in the costs of the process. Nor will it be included in other execution processes derived from said loans or mortgage credits when they are directed against the executed person or against the guarantors.
Article 241 of the Civil Procedure Law
The judge or court must rule on the procedural costs. This statement can be:
1. Orders the losing party to pay
The general principle is that they are imposed on the losing party when the rejection of the claims is total. The conviction implies taking charge of the costs of the winning party.
1. In declaratory proceedings, the costs of the first instance will be imposed on the party that has seen all its claims rejected, unless the court appreciates, and so reasons, that the case presented serious factual or legal doubts.
To determine, for the purposes of ruling on costs, that the case was legally doubtful, the jurisprudence relapse in similar cases.
Article 394.1 of the Civil Procedure Law
However, if the dismissal is partial, the loser must pay half of the common costs. On the other hand, the order in costs cannot exceed one third of the amount of the process for each of the convicted litigants.
2. If the estimation or rejection of the claims is partial, each party will pay the costs incurred at its request and the common costs in half, unless there are merits to impose them on one of them for having litigated recklessly.
3. When, in application of the provisions of section 1 of this article, the costs are imposed on the defeated litigant, he or she will only be obliged to pay the part that corresponds to the lawyers and other professionals who are not subject to a fee or fee, a total amount that does not exceed one third of the amount of the process, for each of the litigants who have obtained such a ruling; For these purposes alone, the inestimable claims will be valued at 18,000 euros, unless, due to the complexity of the matter, the court orders otherwise.
Article 394 of the Civil Procedure Law
In the case of monetary execution, the law provides that the costs will be borne by the executed person without the need for express imposition in the judgment. In the case of housing foreclosure, the order for costs cannot exceed 5% of the amount claimed in the demand. In turn, if the losing party is the Public Prosecutor's Office, it can never be ordered to pay costs.
2. Condemnation of the plaintiff
The plaintiff may be ordered to pay costs in the event of withdrawal, if this is not accepted by the defendant.
1. If the process ends due to the plaintiff's withdrawal, which does not have to be consented by the defendant, the defendant will be ordered to pay all costs.
2. If the withdrawal that puts an end to the process is consented to by the defendant or defendants, none of the litigants will be ordered to pay costs.
Article 396 of the Civil Procedure Law
Regarding the costs of resources such as appeal, cassation and extraordinary due to procedural infringement, according to article 398 of the Civil Procedure Law, the dismissal of the appeal in the second instance necessarily entails the imposition of costs on the appellant.
1. When all the claims of an appeal, extraordinary for procedural infringement or cassation, are rejected, the provisions of article 394 will apply, regarding the costs of the appeal.
2. In the event of total or partial approval of an appeal, extraordinary for procedural infringement or cassation, none of the litigants will be ordered to pay the costs of said appeal.
Article 398 of the Civil Procedure Law
3. No express imposition of costs on any of the parties
It can occur in different cases. For example, that the convicted person has received free legal assistance, when the outcome of the process is doubtful or when one of the parties is the Public Prosecutor's Office, which can never be ordered to pay costs. Another case is when a withdrawal is presented and accepted.
The provisions of the previous paragraph will not apply when the court declares the recklessness of the litigant sentenced to pay costs.
When the person sentenced to pay costs is the holder of the right to free legal assistance, he or she will only be obliged to pay the costs incurred in defense of the opposing party in the cases expressly indicated in the Free Legal Assistance Law.
4. In no case will the costs be imposed on the Public Prosecutor's Office in the processes in which it intervenes as a party.
Article 394 of the Civil Procedure Law
Condemnation of costs in criminal jurisdiction
The concept of costs in criminal jurisdiction includes:
- Sealed paper refunds.
- Tariff duties.
- Fees lawyers, experts and attorneys.
- Compensation to witnesses that they had claimed them.
- Other expenses incurred by the instruction of the cause.
- According to jurisprudence The costs of the accusing party must also be included unless they are disproportionate, erroneous or heterogeneous.
The costs will consist of:
1.º In the refund of the sealed paper used in the case.
2.º In the payment of Tariff rights.
3.º In the fees accrued by the Lawyers and experts.
4.º In the compensation corresponding to the witnesses who had claimed them, if they were paid, and in the other expenses that would have been incurred in the investigation of the case.
The judge or court must rule adopting one of these three criteria:
- Declare the costs ex officio.
- order to pay the costs accused. If the sentence is condemnatory, the order for costs is mandatory. When there are several convicted persons, it must be distributed proportionally.
- Condemn the complainant, whether a private or civil action. It must be proven that he acted in bad faith or recklessly.
This resolution may consist of:
1. To declare the costs ex officio.
2. In condemning the defendants to pay, indicating the proportional part that each of them must respond, if there were several.
Costs will never be imposed on defendants who are acquitted.
3. In ordering payment to the private plaintiff or civil actor.
These will be sentenced to pay the costs when it results from actions that have been carried out recklessly or in bad faith.
Calculation and payment of costs in case of conviction
Throughout the process each party bears its own costs. At the end of the trial, If the court ruled on the sentence for costs, the winning party has a right of credit, through which it can claim the economic amounts that have been generated as a result of the trial.
For To calculate the total claimed, a cost assessment procedure must be carried out. It consists of submitting a request to the court for the appraisal to be carried out, accompanied by proof of expenses.
Once the appraisal has been carried out, the Judicial Secretary notifies the parties and, if it was not contested within 10 days, said appraisal is approved.
The party that has been ordered to pay costs must satisfy it at the end of the process. Once established the final sentence that contains the sentence for costs, the convicted person has a period of 20 business days to make a voluntary and extrajudicial payment to the plaintiff.
In the case of convicted persons who have enjoyed the benefit of free legal assistance, they are exempt from payment, although the sentence remains valid for a period of 3 years, during which they must make the payment if an improvement in their finances is verified.