Joan Obiols 11, 08034 - Barcelona

Jurisprudential criteria on the award of costs in enforcement proceedings. – Juan Antonio Tavara

TZA
0 Shares

Regarding the award of costs for special procedures regulated by the Law of Civil Procedure, special reference must be made to enforcement processes.
Regarding this, the second paragraph of article 539.2 of the Law of Civil Procedure, corresponding to the general provisions for the execution processes, establishes as a rule that in these the costs are borne by the executed party. without the need for express imposition. This means, contrary sensu, that in all other cases the award of costs must be express.
It is essential to note that in terms of enforcement of judicial or arbitral resolutions or judicially approved agreements, article 548 of the Law of Civil Procedure establishes that the court will not issue enforcement “within twenty days after the one in which the decision of condemnation or approval of the agreement has been notified to the executed”. Therefore, as a general rule, the defendant has 20 business days as a term for voluntary compliance with the sentence imposed or obligation assumed in the agreement. If the defendant complies within that period, there will be no valid executive demand and the costs of the execution against him will not accrue either.

Now, it is important to point out that the non-need for an express order to pay costs operates exclusively with respect to the office of the execution concerned and does not include the different incidents that may take place in an executive process. In effect, in incidents such as opposition to the dispatched execution or to specific executive measures, the sentence for costs must be express, as established in the first paragraph of the aforementioned article 539.2 of the Law of Civil Procedure.

Of course, following the criterion of justice that guides the procedural institution in question, the basis on which the costs accrued in each incident will be calculated will not be the total amount for which execution has been dispatched ( which will serve as the basis for calculating the costs of the entire procedure) but only the amount of what is discussed in each specific case. For example, if the executed object to the execution only in relation to one end of it, the costs of said incident must be calculated based on the value or amount of the disputed end. Said amount, systematically and analogically applying the procedural rules, can be perfectly determined with the special rules established in articles 251 and 252 of the Civil Procedure Law for determining the amount. We will proceed in the same way if what the executed party questions are the specific executive measures adopted for the purposes of the procedure, having to take into account the economic value of the measures whose execution is disputed for the purposes of assessing the sentence in costs of the opposition incident.

Now, a point of particular conflict in terms of the costs of the execution is the one that refers to the costs of the provisional execution of the judicial resolutions that is regulated in article 524 to 537 of the Law of Prosecution Civilian.

In principle, the indicated procedural rules do not say anything in this regard and there are those who, relying on the provisions of the aforementioned second paragraph of article 539.2 of the Civil Procedure Law, understand that the simple presentation of the executive demand by part of the “provisional winner” accrues the corresponding costs in his favor without the need for an express pronouncement by the Judge.

Others, on the contrary, applying article 524.3 of the Law of Civil Procedure, which provides that “in the provisional execution of convictions, the parties will have the same procedural rights and powers as in the ordinary”, they understand that the 20 days of voluntary compliance established by the aforementioned article 548 of the same legal text operate both in the provisional execution and in the final judgment and therefore, the costs of the provisional execution will only accrue if 20 days have elapsed working days since the executed is notified with the order that dispatches the execution and does not voluntarily serve the sentence.
In this regard, we must note that the first difference between the definitive and provisional enforcement of court decisions is that the former can be validly requested as long as the aforementioned 20 days of voluntary compliance have elapsed, while the second, in accordance with the provisions of article 526 of the Civil Procedure Law, can be requested “at any time from the notification of the ruling in which the appeal is considered prepared or, where appropriate, from the transfer to the appellant party of the brief of the appellee adhering to his reccourse”.
For the rest, it is very clear from the provisions of the aforementioned article 526 that the provisional execution of judicial resolutions is a power of the executor that may or may not be exercised by him. Thus, while the provisional non-enforcement of the first-instance conviction would not have -in principle- to cause any damage to the executor (who, in his case, could even benefit from the accrual of interest on procedural arrears in his favor); The provisional execution of said sentence could mean economic damage if it is totally or partially revoked by the hierarchical superior who resolves the challenge of the executed one, since according to the provisions of articles 533 and 534 of the Civil Procedure Law, it would have to return what was received in the provisional execution, also compensating the executed for the damages that it would have caused. All this with the additional danger that the provisional executor will not later have a way to respond for what he received in his day. Let us not forget that the current Law of Civil Procedure, unlike that of 1881, does not require the executor to provide any security for the purposes of the provisional execution of judicial decisions.
In this regard, the Judgment of the Provincial Court of Bizkaia no. 181/2008, of April 8, states that “the provisional execution in the current L.E.C. configured as a performer right; and this if one takes into account that it is based on the existence of a sentence of conviction against which an appeal is formulated. However, even when the sentence whose execution is provisionally urged contains a conviction, it lacks finality, and at the time of filing an appeal there is no obligation on the part of the convicted person to satisfy the sentence set, an obligation that will arise in any case, obviously if it is so requested when the beneficiary precisely requests its provisional execution, execution of which he is not obliged to request, being therefore a right that the law recognizes and not an obligation that is legally imposed on him”.
In fact, logically and fairly, in no case should the obligation imposed on the provisionally executed person be more burdensome than the definitive execution, since the former always has the possibility that the sentence that has been imposed will be totally or partially revoked.

This being the case, although it is reasonable that the provisional execution can be requested from the notification of the order in which the appeal is considered prepared, it is not reasonable that the defendant does not have a term of voluntary fulfillment of the provisional sentence to avoid the costs of the execution. It is true that sentences and other judicial resolutions should be fulfilled spontaneously by the parties, but it is also true that whoever challenges a judicial decision does so because they do not agree with it and consider that it should be reviewed.
In any case, the provisionally executed person will only know that the executor intends to comply with the judgment appealed in advance when the writ of executive demand is served, being from the moment the execution is dispatched that is obliged to comply with the ruling that – on the other hand – seeks to be revoked. Thus, it is logical and reasonable that said execution dispatch would give rise to a term of voluntary compliance for the defendant, after which the interested execution will be dispatched and he will be obliged to pay not only the main sentence and the interest due on that, but also of the costs and interests that are accrued during the execution procedure.
To date, the discussion regarding the costs of the provisional execution seems to have been settled with the latest jurisdictional pronouncements that find it logical and fair to grant the provisional execution the indicated 20 days of voluntary compliance counted from the day in which the same is notified with the Auto that dispatches execution against him.
In this sense, the Order of the Provincial Court of Madrid no. 338/2008, of April 30, states that “the provisionally executed person who makes payment within 20 days from the date of notification of the order dispatching provisional execution, must not pay the costs that the provisional execution may have caused ”; such position being consistent with agreement 4-B) adopted by the Magistrates’ Board of the Provincial Court of Madrid in order to unify criteria, held on September 28, 2006, which states that: “in the provisional execution, if the executed, voluntarily pays or consigns the amount of the sentence, -within 20 days following the notification of the order dispatching execution- without formulating opposition, it is not appropriate to impose and the payment of the costs of the execution.”To reach such a conclusion, it is based on the non-executive nature of the resolution subject to provisional execution (articles 456.3 and 527.1 of the Law of Civil Procedure) as it has been challenged, being the case that its enforceability arises from the order dispatching execution provisional (article 527.3 of the Civil Procedure Law), adding that “if the debtor who is a debtor by virtue of an executive and firm resolution is granted a period of 20 days in accordance with article 548 of the Civil Procedure Law, equally or greater reason, it must be understood that the debtor who is due to the provisional execution of a judicial resolution that makes payment within said period of 20 days from the time he becomes aware of the existence of his obligation, that is, from the time he is notified of the order dispatching execution.”

Along the same lines, the Judgment of the Provincial Court of Barcelona no. 225/2008, of April 29, considering the provisions of article 548 of the Law of Civil Procedure establishes that “article 524.3 of the aforementioned LEC provides that” in the provisional execution of convictions, the parties will have the same procedural rights and powers than in the ordinary one”, precept that leads to consider that the waiting period is applicable to the provisional execution, a period whose purpose is to allow the party to voluntarily comply with the resolution, thus avoiding a forced execution and the delay and expenses that it entails, which benefits both the executor and the executed and is predicable of both ordinary and provisional executions».
Understanding that the provisional execution does not have a term to voluntarily comply with the sentence to be executed entails ignoring the rules established for different cases regarding costs by article 395 and following of the Civil Procedure Law, since it would be forcing him to pay of the costs accrued for a claim that is not only fully acquiesced before answering or contradicting it, but has also not been required to comply with it, for which reason it could not be imputed recklessness or bad faith in the acquiescence.
In conclusion, we must not lose sight of the fact that the Civil Procedure Law is not a simple compilation of rules issued separately and without any relation to each other. Said legal text intends to be an organic and harmonious system of public order norms that regulate the functioning of the judicial process and the actions of each one of those who intervene in it. Therefore, its provisions must be interpreted as a whole, providing logical and efficient content to each of the procedural institutions that it regulates. As is logical, legal costs cannot and should not be the exception.
Article published on 5/1/2010 in Economist & Jurist https://www.economistjurist.es/ featured-legal-articles/conclusions-and-final-proceedings-in-the-verbal-trial/