Legal Costs in Criminal Proceedings: Who Pays When the Case Ends

It is one of the most repeated questions and one of the worst answered: when a criminal case ends, who pays? There is no single answer. The Criminal Code sets out the principle, the Criminal Procedure Law (LECrim) sets the rules on the ruling and its content, and the enforcement stage determines the amount. It is worth distinguishing the three levels, because they are easily confused.

You have been reported and are wondering who pays the legal costs

First things first: the ruling on legal costs is not optional. Art. 239 LECrim provides that the orders or judgments which bring a case or any of its incidental proceedings to an end must rule on the payment of the legal costs (costas procesales). A ruling that is silent on this point is incomplete, and a request can be made for it to be clarified or completed.

And second, which spares a lot of worry: a conviction in costs never falls on a defendant who is acquitted. Never.

What legal costs are and what they cover

Art. 124 CP establishes that legal costs comprise the fees and compensation arising from the judicial proceedings. Art. 241 LECrim breaks them down into four items:

• Reimbursement of the stamped paper used in the case.
• Payment of the official fee schedule (Arancel) charges.
• The fees accrued by lawyers and expert witnesses.
• The compensation owed to witnesses who claimed it, where payable, and the other expenses incurred during the investigation of the case.

Excluded are expenses the law places on the Administration regardless of the outcome of the proceedings, such as translation and interpretation costs under Art. 123.1 LECrim for anyone who does not speak or understand the language of the proceedings.

If there is a conviction: Art. 123 CP

The basic rule is one line long: legal costs are deemed by law to be imposed on those criminally liable for any offence. The prosecution does not need to request them, nor does the judgment need to give reasons for imposing them: they follow the conviction by operation of law.

When there are several defendants convicted, Art. 240.2 LECrim requires the ruling to state the proportional share each must bear. And when the judgment convicts on some offences and acquits on others, the correct approach is to apportion the costs by the number of offences tried and to declare, ex officio, the share corresponding to the acquittals.

If there is an acquittal: costs borne ex officio

Art. 240 LECrim gives the court three options: to declare the costs borne ex officio, to order the defendants to pay them, or to order the private prosecutor (querellante particular) or civil claimant to pay them. And it adds, without qualification, that legal costs will never be imposed on defendants who are acquitted.

When the accuser pays: recklessness or bad faith

Art. 240.3 LECrim allows the private prosecutor (querellante particular) or the civil claimant to be ordered to pay the costs, and it narrows the scope of the rule: they shall be ordered to pay the costs where it results from the proceedings that they acted with recklessness or bad faith.

The bar is deliberately set high. It is not enough for the prosecution case to fail; it must be shown that an accusation was pursued that lacked any reasonable basis or was pursued for a purpose other than obtaining judicial protection. This is the natural territory of criminal complaints (querellas) filed after a case is dismissed and of situations bordering on a false accusation and the simulation of an offence, although one does not automatically lead to the other: a conviction in costs is a procedural consequence, not a finding that an offence was committed.

The costs of the private prosecution

Art. 124 CP requires that legal costs shall always include the fees of the private prosecution (acusación particular) in offences that may only be prosecuted at the request of the injured party. Reading this a contrario has consequences: in offences that are prosecuted ex officio, that inclusion is not automatic.

In those cases the settled criterion is that the fees of the private prosecution are included unless its involvement was superfluous, useless or disruptive in relation to that of the Public Prosecutor's Office. The dispute is raised at trial itself and resolved in the judgment: leaving it for the taxation of costs stage is usually too late.

Taxation of costs and challenges

The amount is not set out in the judgment. It is fixed afterwards, at the enforcement stage, through the taxation of costs (tasación de costas). Art. 242 LECrim provides that lawyers' and expert witnesses' fees are proven by bills signed by those who accrued them, that witness compensation is calculated on the amount fixed in the case, and that the remaining items are settled by the court clerk (LAJ) having regard to the supporting vouchers.

The same provision allows the parties to challenge bills as improper or excessive, in which case the matter proceeds under the Civil Procedure Law. Improper items are those that do not correspond to work done in that case; excessive items are those that exceed what is reasonable for the work actually carried out. It is a short procedure with a deadline: letting it lapse amounts to accepting the taxation.

Finally, Art. 126 CP sets out the order in which payments made by the convicted person are applied: first, reparation of the harm and compensation for damage caused; then, compensation to the State for expenses incurred on its account; then, the costs of the private or particular prosecution, if imposed; next, the remaining procedural costs — including those of the defence; and, lastly, the fine.

What the defence looks at

• That the judgment rules on legal costs. This is mandatory under Art. 239 LECrim, and its omission is corrected through clarification or completion.
• The apportionment by offence. In mixed judgments, expressly request that the costs corresponding to the offences resulting in acquittal be declared ex officio.
• The exclusion of the private prosecution. If its involvement was superfluous or disruptive, this is raised at trial and requested in the defence submissions, not at the enforcement stage.
• The recklessness of the private prosecutor. Where it is present, it must be requested expressly and with reasons: it is not readily found by the court of its own motion.
• Review of the bill. Check for duplicated items, work unrelated to the case and disproportionate amounts before the taxation is approved.

If you have an open criminal case and want to understand the real financial scope of each scenario, it is worth analysing it before setting the procedural strategy. You can contact us at +34 91 078 65 74.