Royal Decree-Law 3/2013, of February 22, modifying the regime of fees in the field of the Administration of Justice and the system of free legal aid

OFFICIAL STATE BULLETIN
No. 47 Saturday, February 23, 2013 Sec. I. Page 15205
I. GENERAL PROVISIONS
HEAD OF STATE
2029 Royal Decree-Law 3/2013, of February 22, modifying the regime of fees in the field of the Administration of Justice and the system of free legal aid.

STATEMENT OF MOTIVES
I
Law 10/2012, of November 20, regulating certain fees in the field of the Administration of Justice and the National Institute of Toxicology and Forensic Sciences, has served to update the regime of certain fees in the field of the Administration of Justice. This law is configured as the enabling norm for the budgetary resources essential to guarantee the financing of the new substantive regulation of the right to free justice referred to in Article 119 of the Constitution, an instrumental right with respect to the fundamental right of access to the jurisdiction recognized in its Article 24.

In this task, the doctrine established by the Constitutional Court has been taken into account, both in its judgment 20/2012, of February 16, 2012, and in other subsequent ones, which validates the viability of a mixed financing system for the Administration of Justice funded by taxes and "by the fees paid by those who benefit from judicial action."

The application of the law, however, has shown that although fees, in the abstract and by themselves, are not considered to infringe any right, there could be specific and individualized cases where the amount fixed in the fee proves excessive. Consequently, even starting from the legitimacy of the current configuration of the fee, it is necessary to devise mechanisms to prevent the amount of the fees from generating undesirable effects, even residually.

The above justifies the urgency to align the application of the fee for the exercise of jurisdictional power with some of the measures included today in the draft of the new Law on Free Legal Aid. Without coordination of legal consequences, the functioning of the model could be affected in its internal coherence.

II
Law 10/2012, of November 20, is configured as a basic premise for the proper functioning of free justice by guaranteeing the sufficiency of resources of the system, although its entry into force has occurred in advance relative to its complementary norm, the new Law on Free Legal Aid, whose parliamentary processing presents greater complexity. This circumstance, which has been highlighted by the Ombudsman, obliges us to review certain aspects of the current Law on Free Legal Aid in order to align the effects of both norms. In this way, the extraordinary and urgent need that justifies this royal decree-law is to prevent the different times of approval of the cited laws, derived from differences in parliamentary processing, from distorting their practical application.

Likewise, the specific modifications carried out in Law 10/2012, of November 20, which consist of reductions in the amount of fees in certain cases or their non-requirement depending on the nature of the process, mean that this royal decree-law complies with the material limits prescribed by Article 86.1 of the Constitution for these norms with the rank of law. cve: BOE-A-2013-2029

OFFICIAL STATE BULLETIN
No. 47 Saturday, February 23, 2013 Sec. I. Page 15206 III In this line, first, a series of changes are introduced in Law 10/2012, of November 20, in order to address with the greatest speed the proposals presented by the Ombudsman. For this reason, a new exemption is incorporated for the execution of awards issued by Consumer Arbitration Boards. Within the regulation of the determination of the tax base of the fee, the current circumstances suggest the introduction of a specific scale for natural persons, with a lower rate than the general one, which would be reserved for legal persons. Likewise, the application of the fee in the administrative contentious order is limited, from the point of view of its amount, when the appeal is filed against sanctioning resolutions, preventing the fee from exceeding 50 percent of the economic amount of the same.

The reasons of urgency and necessity also justify a series of modifications aimed at resolving problems and doubts raised in practice and affecting capacity, filiation, marriage, and minor processes, as well as actions that can be filed by bankruptcy administrators or those for the division of estates.

Along with this, a modification is made in the Free Legal Aid Law 1/1996 currently in force, to avoid gaps between the regulatory regime collected in it and the application of fees in the field of the Administration of Justice. To this end, the cases that allow the recognition of the right to free legal aid are defined, establishing a more extensive casuistry than existed until now, and the current thresholds are raised, thus introducing a substantial improvement that will directly benefit citizens. In parallel, the reference to the interprofessional minimum wage is replaced by that of the public indicator of multiple-effect income (IPREM) in order to improve the amounts determining the threshold below which the right is recognized.

IV
Article corresponding to the payment of costs of Law 1/2000, of January 7, on Civil Procedure, is modified to prevent that in a process of execution of a mortgage constituted for the acquisition of a habitual residence, the concept of the fee paid for the exercise of jurisdictional power is included among the procedural costs to be paid by the executed party, extending this exclusion to the guarantor.

With these adjustments, it is intended to guarantee a more adequate application of the fees in the field of the Administration of Justice provided for in Law 10/2012, of November 20, while anticipating some of the provisions of the future new regulation of free legal aid.

V
The high cost and security problems involved in the conservation of toxic drugs, narcotics, and psychotropic substances seized in criminal proceedings suggest introducing in the Criminal Procedure Law a flexible regime that facilitates their rapid destruction, once the relevant analytical reports have been carried out and sufficient samples have been secured to guarantee subsequent verifications, thus overcoming some problems that currently exist and must be resolved urgently.

The current Article 367 ter of the Criminal Procedure Law obliges to conserve, in any case, "sufficient samples to guarantee subsequent verifications or investigations." However, the application of international guidelines for sampling and analysis of substances determines that the sample sent to the National Institute of Toxicology and Forensic Sciences or the Health Service corresponds to a large quantity of drugs whose conservation poses important and serious security problems. At the same time, once the analysis has been performed, it is neither necessary nor convenient to conserve all the samples sent to the corresponding body for a possible subsequent counter-analysis. On the contrary, the conservation of a significant sample, or "the minimum and essential samples that, according to scientific criteria, are necessary to guarantee subsequent verifications or investigations" is sufficient. The drug that must really be conserved is not the total of the samples initially sent for analysis, but only the amount of drug that guarantees, after the initial analysis, a contradictory analysis and a decisive analysis (in this sense, the Recommendation of the Council of Europe of March 30, 2004 on guidelines for taking samples of seized drugs for analysis purposes). Therefore, and to adequately ensure the right to defense, it is necessary that the body responsible for the analysis determines the content of that "minimum sample" according to the scientific criteria established in international guidelines and protocols agreed upon on this matter.

Likewise, experience confirms that the conservation of drug caches lacks sense or justification in the generality of cases, so it is convenient to speed up the procedure, authorizing their destruction – once the necessary analyses have been performed and the minimum sufficient samples collected – if the Investigating Judge, within a period of one month from when he has been notified of the performance of the necessary verifications, does not order their complete conservation.

The effective safeguard of the legal interest protected in crimes against public health, particularly in crimes involving the trafficking of toxic drugs, narcotics, and psychotropic substances typified in Articles 368 to 372 of the Penal Code, an adequate protection of the right to health protection of the members of the Security Forces and Corps, as well as the need to avoid high and unnecessary economic costs to public administrations, especially in the current crisis environment that demands the adoption with urgent care, without diminishing the guarantees that in the criminal process protect the parties, of legislative measures that allow the rapid destruction of toxic drugs, narcotics, and psychotropic substances, making real the will of the legislator to solve the pressing problem described, present in previous legal reforms that, however, have not achieved the purpose that presided over them.

The same reasons suggest the provision of a transitional regime that authorizes the application of this new regulation to toxic drugs, narcotics, or psychotropic substances under the custody of administrative authorities upon the entry into force of this royal decree-law.

VI
In the final part of this royal decree-law, first, an additional provision is included that regularizes the situation created regarding the payment of passive rights quotas and contributions to the respective mutual funds of officials after the suppression of the extra payment and the additional payment or equivalent of the specific complement of public sector personnel and senior officials, of the month of December 2012, carried out by Articles 2 and following of Royal Decree-Law 20/2012, of July 13, on measures to guarantee budgetary stability and promote competitiveness.

As a consequence of what is established in Article 23.2 of the consolidated text of the Law on State Civil Classes, approved by Royal Legislative Decree 670/1987, of April 30, and in the final provision fourth, two, of Law 10/2012, of November 20, regulating certain fees in the field of the Administration of Justice and the National Institute of Toxicology and Forensic Sciences, both the passive rights quota and that of the respective mutual funds of officials were paid doubly in the month of December 2012. cve: BOE-A-2013-2029

OFFICIAL STATE BULLETIN
No. 47 Saturday, February 23, 2013 Sec. I. Page 15208 However, the provision to pay doubly the referred quotas in the months of June and December of each year is due to the fact that, in said months, the personnel in question receives, along with the ordinary monthly salary, the corresponding to the extra payment.

Since the remuneration that public sector personnel received in the month of December 2012 did not include the amount corresponding to the extra payment (and to the additional specific complement or equivalent) of said month, reasons of material justice suggest that the contribution be reduced in the same proportion and that said reduction be made with the greatest possible urgency. This provision thus comes to allow, with the necessary legal authorization, to regularize the quotas for passive rights and mutual funds of the month of December 2012.

The first final provision modifies certain provisions of the General State Budget Law for the year 2013 in order to complete and allow a more adequate and correct application of them. To this end, the temporal scope of the possible application of the compensation of exemptions in the Tax on Mechanically Propelled Vehicles contained in the Cooperation Agreement for Defense with the United States is expanded, for which, in any case, the subscription of an agreement with the affected town councils will be necessary. Likewise, the method of calculating the State's tax revenues as an evolution index applicable in the participation of local entities in State taxes of the year 2013 is clarified, and which was used for the determination of the amounts collected in the expenditure statement of the corresponding budget section. Finally, the validity period of debt reduction or restructuring plans in cases of refinancing of long-term credit operations contracted by local entities is expanded from three to five years, and the objectives that must govern the mentioned debt reduction plans are clarified.

Another of the final provisions refers to the special regime of application of Law 29/1994, of November 24, on Urban Leases, to the lease contracts provided for in the single additional provision of Royal Decree-Law 27/2012, of November 15, on urgent measures to reinforce the protection of mortgage debtors. A norm that urged the Government to promote with the financial sector the constitution of a social housing fund owned by credit entities, intended to provide coverage for those persons who had been evicted from their habitual residence due to non-payment of a mortgage loan, when circumstances of special vulnerability concur in them. The recent opening of the procedure for the assignment of the first housing units from said fund requires that, with the greatest possible speed, certain specialties that must be observed by the lease contracts that will soon begin to be celebrated are given legal coverage.

Royal Decree-Law 10/2008, of December 12, on financial measures to improve the liquidity of small and medium-sized enterprises and other complementary economic measures, is also reformed to prevent companies from incurring a legal cause of capital reduction and, if applicable, dissolution due to losses. At this moment, given that the banking consolidation process will imply a new significant drop in the market value of real estate, it is necessary to approve a new extension of this measure, at least during this year, which is the minimum time to negotiate the restructuring of the sector's liabilities, and expand its scope of application to prevent companies in the real estate sector from entering a state of creditor bankruptcy. It is foreseen that this will be the last extension that will be needed since the adjustments in the assets of the entities in recent years will imply a corresponding adjustment in the liabilities.

On the other hand, the modification of Law 9/2012, of November 14, on the restructuring and resolution of credit entities includes an additional provision that clarifies that the operations carried out by the Asset Management Company for the Acquisition of Assets from the Banking Restructuring (SAREB) in application of its regulatory framework do not constitute a concentration operation under Law 15/2007, despite some of them exceeding the notification thresholds established in said law, as they are the execution of a legal mandate. The urgency of this provision is given because the imminent contribution of the assets of the Group 2 entities would trigger the obligation to notify the operation as a concentration.

Therefore, in use of the authorization contained in Article 86 of the Spanish Constitution, upon proposal of the Ministers of Justice, of Finance and Public Administrations and of Economy and Competitiveness, and after deliberation of the Council of Ministers in its meeting of February 22, 2013,

I HEREBY ORDER:
Article 1. Modification of Law 10/2012, of November 20, regulating certain fees in the field of the Administration of Justice and the National Institute of Toxicology and Forensic Sciences.

One. Letter c) of Article 2 shall have the following wording:
"c) The filing of the administrative contentious appeal."

Two. Paragraph 1 of Article 3 is modified:
"1. The passive subject of the fee is whoever promotes the exercise of jurisdictional power and carries out the taxable event of the same.
For the purposes provided for in the previous paragraph, it shall be understood that a single taxable event is carried out when in the writing exercising the procedural act that constitutes the taxable event, several main actions are accumulated, which do not come from the same title. In this case, for the calculation of the amount of the fee, the amounts of each of the actions subject to accumulation shall be added."

Three. Letter a) of paragraph 1 of Article 4 is modified, to which three new letters are also added:
"a) The filing of the complaint and the presentation of further appeals regarding processes on capacity, filiation, marriage, and minors regulated in Title I of Book IV of the Civil Procedure Law. However, processes regulated in Chapter IV of the said title and book of the Civil Procedure Law that do not begin by mutual agreement or by one of the parties with the consent of the other shall be subject to the payment of the fee, even if there are minors, unless the measures requested refer exclusively to them."
"g) The filing of the complaint for execution of awards issued by Consumer Arbitration Boards. h) Actions that, in the interest of the bankruptcy estate and with prior authorization of the Commercial Court Judge, are filed by bankruptcy administrators. i) Procedures for judicial division of estates, except in cases where opposition is filed or controversy arises regarding the inclusion or exclusion of assets, incurring the fee for the verbal trial and for the amount in dispute or derived from the challenge of the partition inventory by the opponent, and if both oppose, by each for their respective amount."

Four. A new paragraph 4 is added to Article 4:
"4. In the administrative contentious order, public officials when acting in defense of their statutory rights shall have an exemption of 60 percent in the amount of the fee corresponding to them for the filing of appeals and cassation appeals." cve: BOE-A-2013-2029

OFFICIAL STATE BULLETIN
No. 47 Saturday, February 23, 2013 Sec. I. Page 15210

Five. A new paragraph is added to paragraph 2 of Article 6:
"For the purposes of determining the tax base, processes regulated in Chapter IV of Title I of Book IV of the Civil Procedure Law not exempt from the payment of the fee shall be considered as procedures of indeterminate amount."

Six. In paragraph 1 of Article 7, following the table corresponding to the fixed amount of the fee of the administrative contentious jurisdictional order, the following paragraph is added:
"When the administrative contentious appeal has as its object the challenge of sanctioning resolutions, the amount of the fee, including the variable amount provided for in the following paragraph, shall not exceed 50 percent of the amount of the economic sanction imposed."

Seven. The first paragraph of paragraph 2 of Article 7 shall have the following wording:
"2. When the passive subject is a legal person, the amount resulting from applying to the tax base determined according to the provisions of the previous article, the tax rate that corresponds, according to the following scale:"

Eight. A new paragraph 3 is added to Article 7:
"3. When the passive subject is a natural person, the amount resulting from applying to the tax base of the fee a rate of 0.10 percent with a variable amount limit of 2,000 euros shall be paid."

Nine. Paragraphs 2 and 5 of Article 8 are modified:
"2. The proof of payment of the fee according to the official model, duly validated, shall accompany every procedural writing by which the taxable event of this tax is carried out.
In case said proof is not attached, the Judicial Secretary shall require the passive subject to provide it within a period of ten days, not processing the writing until such omission is remedied. The absence of remedying such deficiency, after the requirement of the Judicial Secretary referred to in the provision, shall give rise to the preclusion of the procedural act and the consequent continuation or termination of the procedure, as appropriate."
"5. A refund of 60 percent of the amount of the fee quota shall be made, which in no case shall give rise to the accrual of late interest, when, in any of the processes whose initiation gives rise to the accrual of this tax, total settlement occurs or an agreement is reached that ends the litigation.
This refund shall also be applicable in those cases where the sued Administration fully recognizes the claims of the plaintiff in the administrative route.
One shall have the right to this refund from the finality of the resolution that ends the process and states the form of termination."

Article 2. Modification of Law 1/1996, of January 10, on Free Legal Aid.

One. The following letters are added to Article 2:
"g) Regardless of the existence of resources to litigate, the right to free legal aid, which shall be provided immediately, is recognized for victims of gender violence, terrorism, and human trafficking in those processes that have a link, derive from, or are a consequence of their condition as victims, as well as for minors and persons with mental disabilities when they are victims of situations of abuse or mistreatment.
This right shall also assist the heirs in case of death of the victim, provided that it was not the aggressor.
For the purposes of granting the benefit of free justice, the condition of victim shall be acquired when a complaint or indictment is filed, or a p cve: BOE-A-2013-2029