The judgment of the Constitutional Court 140/2016, dated July 21, 2016, resulted in a victory for legal associations (lawyers, judges, prosecutors) and private associations, who had claimed their disappearance for violating the right to effective judicial protection, , Are court fees repealed? The correct answer is no … or at least not all.
They are still valid in certain cases. Although limited to legal persons, they have not been affected by the sentence of the Constitutional fixed quotas established in art. 7.1 of Law 10/2012, of November 20, for the exercise of judicial actions in the civil order, that is, for the filing of a lawsuit in civil proceedings in the first or only instance, whose amounts range between € 100 and The 300 €.
If, instead, the fixed rates for the filing of appeals in this jurisdictional order have been eliminated, and the variable rates that were calculated according to the economic value of the litigation, considering themselves disproportionate.
This small fiscal “redoubt” will continue to finance, in a certain way, the public coffers, because in these cases the obligated entities should continue to pay for the services they receive from the Administration of Justice, unless the exemptions or bonuses provided in the law.
As the Constitutional Court has repeatedly pointed out, the court fees are not in themselves unconstitutional, so they are unlikely to disappear altogether.
Table of the judicial rates still in force
The rates in force are applicable to legal persons in the civil jurisdictional order.
On the one hand, according to point 3 of the decision of STC 140/2016, it is declared unconstitutional and therefore void:
The art. 7, paragraph 1, of Law 10/2012, of November 20, in the following paragraphs:
‘In the civil judicial order: … appeal: € 800; Cassation and extraordinary for procedural infringement: 1,200 € »…
And, on the other hand, the legal basis 11 of the judgment, indicates that
“It is therefore important to specify that the claim does not raise any question about the fixed fee established in art. 7.1 of Law 10/2012 for civil proceedings in the first or only instance (its amount, depending on the type of process, ranges from € 100 of the order process and € 300 from ordinary trial), which precludes us from pronouncing on she”
Therefore, the current rate table for legal entities (including small and medium-sized enterprises and NGOs) would be this:
Verbal and exchange rate
Monitoring, * European monitors and incidental demand in the bankruptcy proceedings
Extrajudicial execution and opposition to the execution of judicial titles
* When after the opposition of the debtor in a monitorio follows an ordinary process will be deducted from the rate the amount already paid in the process monitorio.
As we have already mentioned, natural persons (including owner communities) are not subject to the payment of fees still in force (article 4.2 of the law)
Why have not they also been annulled?
The fixed fees for the filing of lawsuits in civil declaratory proceedings (article 7.1 of Law 10/2012) have not been annulled by the Constitutional Court because the lawsuit that the high court resolves in its ruling does not object to its unconstitutionality . That is, they had not been appealed.
An economic resource to defray the cost of Justice
In order to understand the reason for the validity of these judicial rates, it is necessary to make a brief historical review of the implementation of this tax measure, which is intended to some extent to cover the cost of the judicial system.
The economic resource to the tax in the scope of the Administration of Justice starts from its concept in tax law. This model has evolved, being subject to successive reforms promoted by different governments, resulting in different occasions more or less burdensome for the citizens.
Law 53/2002 of 30 December, known as Fiscal, Administrative and Social Order Measures, approved under the government of Aznar, recovered in the area of the Administration of Justice the fee for the exercise of jurisdictional power, a system that The Constitutional Court itself declared in accordance with our fundamental norm in its judgment 20/2012, of February 16, 2012.
However, former Minister of Justice Alberto Ruíz Gallardón, considered that this model could be deepened, as there were “mismatches” that justified the adoption of a new regulation, approved by Law 10/2012, of November 20, and Which involved the imposition of large, fixed and variable rates, both for the lodging of lawsuits and for appealing them and affecting in a general way both individuals and companies. According to their explanatory memorandum, they sought a dual objective: mixed financing of justice, and avoiding the abuse of litigants, ie abuse of the right to appeal.
This controversial measure untied the box of thunder, and obtained from the first moment the opposition of all the legal operators, who considered that the same were unconstitutional for hindering in excess the access to the justice of the citizens, that could not in these conditions Enforce their right to judicial protection.
However, the claim against Gallardón’s fees, which were subsequently amended to exempt natural persons, had its maximum expression with the appeal lodged by the Socialist Group of Congress, which has been received in part by the Tribunal Constitutional in its sentence, and which has meant the cancellation of most of the fees and the end of the model of Law 10/2012.
Do these rates affect the right to access to justice?
The right to access to justice is a constitutionally guaranteed right, so any measure that prevents its exercise or causes a deterrent effect would be unconstitutional. It is therefore necessary to analyze the consequences of maintaining a rate of these characteristics and their implications.
On the one hand, the very preamble to Law 10/2012, stated that “the right to effective judicial protection should not be confused with the right to free legal aid.” That is, it is being recognized that the citizen can pay for the services he receives from the Administration of Justice. Only in those cases where there is evidence of “insufficient resources to litigate” is the Constitution itself which establishes the gratuitousness of justice.
For its part, the Constitutional Court has established that for these to be constitutional, and consistent with the aims pursued, court fees must respect the principle of proportionality.
The current fixed fees currently pay to individuals the payment of an amount, depending on the type of process, which ranges from 100 euros of the order process and 300 euros of ordinary judgment. Are they disproportionate?
The Constitutional Court, although it can not pronounce on this in its judgment of July 21, points out that it can not be overlooked that art. 4.1.c) of contested law (Law 10/2012) declares exempt from the payment of the fee to civil proceedings for claim of amount up to 2,000 euros, except when it concerns the execution of extrajudicial titles. It seems therefore that the High Court does not reproach them for lack of proportionality.
Are any appeals pending before the Constitutional Court?
Before the ruling of July, the Constitutional Court had admitted to proceedings other appeals filed against the fee law, considering that the new law establishes fees for the exercise of the jurisdictional power that they considered detrimental to the right to effective judicial protection .
Two of the most recent are:
– The one presented by the Government of the Canary Islands, Appeal of unconstitutionality No. 4972/2013, against articles 1; 2 (c), (e) and (f); 4; 5.2 and 3; 6; 7 and first final provision of Law 10/2012, of November 20
– The one presented by the Diputación de Aragón: Appeal of unconstitutionality no. 4948/2013, against Articles 2 (e) and 7 of Law 10/2012, in relation to its application to the Aragon regional appeal.
There are also the appeals of unconstitutionality of the autonomous governments of Andalusia and Catalonia and the question of unconstitutionality presented by the National Court.
In relation to the appeal already resolved in its ruling of July 21, the Constitutional Court has maintained the bulk of the contested articles: arts. 2, 5, 6 and 11 of Law 10/2012. If it does, however, with respect to Articles 1, 3.1 and 7 of the contested law, the latter, which establishes the amounts of the fees, affected by nullity, stating that with regard to the challenge of the Arts. 1 and 7, in its application to natural persons, in respect of which it declares the loss of the object.
It is to be expected that in the future judgments that resolve the pending remedies, refer to the already established in its judgment of July 21, which resolves the cited appeal of the Socialist Parliamentary Group No. 973/2013, when the subject of the appeal coincides.
Was not it enough to establish a deposit to appeal?
Judicial fees also seek to avoid abuse of the right to appeal. The Constitutional Court accepts that one of the limiting purposes of the right of access, both to the jurisdiction and to the resource, is to prevent or deter abusive behavior in its exercise.
However, it has also maintained that in order to sanction the abusive, reckless or bad faith exercise of the right of access to justice, different measures already exist such as condemnation of costs, loss of deposits and bonds, imposition of fines for recklessness Or other similar ones.
The debate remains open.
SOURCE: LEGAL NOTICES.