Legal Costs

Criminal: Requirements for the application of LEGAL COSTS to the Private Prosecution.

The Criminal Procedure Act regulates the costs of criminal proceedings in Articles 239 and 240 et seq. of that legal text. In particular, the literal wording of those articles is as follows:

 

“ARTICLE 239

In orders or judgments that bring the case, or any of the incidental proceedings, to an end, a decision must be made on the payment of legal costs.”

 

“ARTICLE 240

This decision may consist of:

1.- Declaring the costs ex officio.

2.- Ordering the defendants to pay them, indicating the proportion for which each of them must be liable, if there are several.

Costs shall never be imposed on defendants who are acquitted.

3.- Ordering the private complainant or civil claimant to pay them.

They shall be ordered to pay the costs when it appears from the proceedings that they have acted recklessly or in bad faith.”

 

Accordingly, and pursuant to those provisions, in orders or judgments that bring a case to an end, the Court must rule on the payment of legal costs, and may adopt one of these three decisions:

A.- Declare the costs ex officio.

B.- Order the defendants to pay them, indicating the proportion for which each of them must be liable, if there are several.

C.- Order the private complainant or civil action to pay them.

 

For these purposes, the following CRITERIA are established:

1. In the event of a conviction, the ruling as to the order for costs against the convicted party is mandatory, and must be apportioned proportionally among those convicted, if there are several.
2. Costs must never be imposed on those defendants or accused who are acquitted.
3. In order to impose costs, where applicable, on the private complainant or civil claimant, it must appear from the proceedings that they have acted recklessly or in bad faith.

 

In accordance with that regulation, the COURTS have unanimously and repeatedly held that, for the imposition of costs, the following criteria must be taken into account:

1.- Notoriety and clear evidence of recklessness and bad faith: Recklessness and bad faith must be notorious and evident, and the burden of proof lies with the party seeking the order.

2.- No automatism: In matters of costs caused by the private prosecution, there is no statutory automatism in their imposition; rather, it must be assessed on a case-by-case basis, depending on the dispute and the litigation, the potential public and/or private offences at stake, as well as the indicia of recklessness and bad faith, and the effective and useful intervention of the defended opposing party.

3.- RESTRICTIVE criterion: The application of “procedural recklessness or bad faith” must follow a restrictive criterion, in the sense that not every dismissal of the private prosecution’s claims entails the imposition of costs.

4.- General rule: NO ORDER FOR COSTS: As a consequence of the foregoing criteria, it has been established that, as a general rule, no order for costs should be made, unless there is notorious and evident proof of recklessness and bad faith.

The following is also taken into consideration:

5.- RELEVANCE criterion: The imposition of costs corresponding to the private prosecution should be refused when that party’s intervention is superfluous or useless.

6.- Nature of the offence: The nature of the offence, whether public or private, influences the consideration of potential costs, since it is accepted that in offences of a public nature it does not necessarily have to be taken into account.

7.- Reasoning: It should be noted that, for the reasons set out above, it is for the party seeking legal costs to develop the argumentation and reasoning in support of the request.

 

The case-law doctrine on the imposition of costs is extensive; however, the following judgments may be cited:

 

Supreme Court Judgment No. 375/2013 of 24 April:

“This Chamber has held, as reflected in Judgment 682/2006 of 25 June, that the concept of bad faith, due to its subjective nature, is easy to define but difficult to prove, unlike recklessness, which exists when the accusation brought lacks consistency to such an extent that it can be said that the person who brought and maintained it could not have failed to know that it was unfounded. These concepts must be interpreted restrictively, so that the general rule will be that they are not imposed (STS 19.9.2001, 8.5.2003 and 18.2, 17.5 and 5.7, all of 2004, among many others).

In this regard, we listed various criteria in STS 1068/2010 of 2 December, recalling that the imposition of costs on the private prosecution, whose purpose is to prevent unfounded complaints or the unjustified attribution of criminal acts, must adhere to the criteria of evident recklessness and notorious bad faith—criteria which this Chamber qualifies, suggesting the exceptional nature of the application of the rule.”

Recklessness and bad faith must be notorious and evident, and the burden of proof lies with the party seeking the order.

“And we recalled in that judgment that the case law of this Chamber has also held on this issue (cf. STS 7-7-2009, No. 842/2009) that, in the absence of an authentic definition of what is to be understood by recklessness or bad faith, a margin of subjective assessment must be recognised for the sentencing court, according to the circumstances present in each case, weighing for that purpose the consistency of the corresponding prosecutorial claim, taking into account, on the one hand, the appropriateness of maintaining a restrictive interpretation of these legal terms, but without forgetting that whoever compels another to endure a procedural situation must be liable for the expenses that such situation has caused, save for limited exceptions in which it may be considered that they had reasons to suppose they were entitled to do so. For these purposes, a reference to the actions of the Public Prosecutor’s Office is generally valid, given the institution’s impartial nature, such that some judgments of this Chamber have gone so far as to say that recklessness exists when the private prosecution’s claim far exceeds both the Prosecutor’s request and what the Court considers to be in accordance with the law.”

 

Supreme Court Judgment of 10 June 1998, cited in the later judgment of 30 May 2007:

“the imposition of costs may be a way of correcting unfounded, capricious, and even fraudulent actions by the prosecution, and it must be understood that they are reckless or malicious when the claim pursued lacks any consistency and basis, such that the person acting in that way could not have failed to know its unreasonableness and injustice.”

 

Supreme Court Judgment dated 7 July 2009:

“in the absence of an authentic definition of what is to be understood by recklessness or bad faith, a margin of subjective assessment must be recognised for the sentencing court, according to the circumstances present in each case, weighing for that purpose the consistency of the corresponding prosecutorial claim, taking into account, on the one hand, the appropriateness of maintaining a restrictive interpretation of these legal terms, but without forgetting that whoever compels another to endure a procedural situation must be liable for the expenses that such situation has caused, save for limited exceptions in which it may be considered that they had reasons to suppose they were entitled to do so. For these purposes, a reference to the actions of the Public Prosecutor’s Office is generally valid, given the institution’s impartial nature, such that some judgment of this Chamber has gone so far as to say that recklessness exists when the private prosecution’s claim far exceeds both the Prosecutor’s request and what the Court considers to be in accordance with the law. It remains to be said that recklessness or bad faith may appear at any time in the case, without it being necessary for them to be appreciated from the outset of the case (see Supreme Court Judgments of 18 February, 17 May, 5 July, 19 June 2004 and 25 January 2006, among others, such as the most recent Supreme Court Judgment 899/2007, of 31 October. However, as regards what is debated here, we must agree, in order to uphold the ground, that Supreme Court Judgment 384/2008, of 19 June, already states that there can be no order for costs for recklessness or bad faith when the classification initially sought by that party was in no way far-fetched or reckless, as demonstrated by the very activity carried out in this regard by the Investigating Judge.””

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