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Costs orders in Spanish criminal proceedings
Quick answerCosts are imposed by law on those criminally liable for any offence (article 123 of the Criminal Code) and are never imposed on an acquitted defendant (article 240.2 of the Criminal Procedure Act). They cover court dues, indemnities and professional fees, are quantified by an assessment carried out by the court clerk, and may be challenged as improper or excessive.
Also cited as: criminal costs order · assessment of costs · condena en costas · article 123 Criminal Code · article 240 Criminal Procedure Act
A costs order in Spanish criminal proceedings is not a penalty but an accessory financial consequence attached to the declaration of criminal liability. Its regime is divided between the Criminal Code, which sets the criterion for imposition and the order of priority of payments, and the Criminal Procedure Act, which governs the content of the decision, the items making up the costs and the assessment procedure.
Legal framework
Article 123 of the Criminal Code: procedural costs are understood to be imposed by law on those criminally liable for any offence.
Article 124 of the Criminal Code: costs comprise the dues and indemnities incurred in the judicial proceedings and shall always include the fees of the private prosecutor in offences prosecutable only at the instance of a party.
Article 126 of the Criminal Code: payments made by the convicted person or by the party vicariously liable in civil terms are applied in the following order: reparation of the harm and compensation for loss; compensation to the State for expenses borne on its account; the costs of the private or particular prosecutor where payment is ordered; the remaining procedural costs, including those of the defence, with no preference between the interested parties; and the fine.
Article 239 of the Criminal Procedure Act: any order or judgment terminating the case or any incidental proceedings must rule on the payment of the procedural costs.
Article 240 of the Criminal Procedure Act: the decision may declare the costs to lie where they fall, order the defendants to pay them specifying the proportional share of each, or order the private prosecutor or civil claimant to pay them where it appears that they have acted recklessly or in bad faith. Costs shall never be imposed on defendants who are acquitted.
Article 241 of the Criminal Procedure Act: costs consist of the reimbursement of the stamped paper used, the payment of tariff dues, the fees accrued by lawyers and experts and the indemnities of witnesses who have claimed them, together with the other expenses incurred in the investigation.
Article 242 of the Criminal Procedure Act: the assessment is made by the court clerk and, where the fee notes are objected to as improper or excessive, the matter proceeds in accordance with the Civil Procedure Act.
Article 243 of the Criminal Procedure Act: once the assessment and the regulation have been made, the public prosecutor and the party ordered to pay are given three days to make submissions.
Article 246 of the Criminal Procedure Act: if the convicted person’s assets are insufficient to meet all the pecuniary liabilities, the order and priority of payment is governed by the corresponding articles of the Criminal Code.
Statutory texts cited from the consolidated versions published by the Spanish Official State Gazette. Unofficial English rendering; the Spanish text is the authentic one.
Key rule. A costs order follows the finding of criminal liability and not procedural success. Where the defendant is acquitted, the costs lie where they fall, unless the private prosecutor or civil claimant has acted recklessly or in bad faith.
Key facts
| Nature | Accessory financial consequence, not a penalty |
|---|---|
| Criterion for imposition | Declared criminal liability, article 123 of the Criminal Code |
| Acquittal | Costs lie where they fall; never imposed on an acquitted defendant, article 240.2 |
| Private prosecutor | Fees always included in privately prosecutable offences, article 124 of the Criminal Code |
| Reckless prosecutor | Costs order for recklessness or bad faith, article 240.3 |
| Items covered | Tariff dues, lawyer and expert fees, witness indemnities and other expenses, article 241 |
| Quantification | Assessment by the court clerk, article 242 |
| Right to be heard | Three days for the public prosecutor and the paying party, article 243 |
| Challenge | As improper or excessive, with reference to the Civil Procedure Act |
| Priority of payments | Article 126 of the Criminal Code, with the fine ranking last |
Elements and scope
- A decision terminating the case or an incidental matter. Article 239 imposes a duty to rule on costs, so that its omission may be remedied by way of clarification or supplementation of the judgment.
- A declaration of criminal liability. Article 123 ties the imposition to the status of being criminally liable rather than to the overall outcome of the litigation, which distinguishes the criminal system from the objective loser-pays rule of civil procedure.
- Apportionment where there are several convicted persons. Article 240.2 requires the proportional share of each to be specified, so that an undifferentiated joint and several order is not available.
- A ruling on the private prosecutor. Inclusion of those fees is mandatory in privately prosecutable offences and, in the remainder, is governed by the case law on the relevance of that party’s intervention.
- Subsequent quantification in separate proceedings. The judgment declares the obligation; the assessment determines the amount, and may be challenged independently.
Points of application
Costs of the private prosecutor. The Second Chamber of the Supreme Court includes them unless that party’s intervention was manifestly superfluous, useless or seriously disruptive, or its submissions were heterogeneous as against those of the public prosecutor and were dismissed.
Partial acquittal and several offences. Where charges are brought for several offences and conviction follows on only some, the settled practice is to apportion the costs in proportion to the number of offences charged, the share corresponding to the acquittals lying where it falls.
Recklessness of the private prosecutor. An order for costs against the private prosecutor requires an express and reasoned assessment of recklessness or bad faith, which is not presumed from the acquittal alone.
Challenge as excessive. The fee note is measured against the guideline criteria of the relevant Bar Association, which are not binding tariffs but guidelines issued solely for the purposes of the assessment of costs and the summary fee recovery procedure.
Insolvency and priority. Article 126 of the Criminal Code places reparation to the victim ahead of every other head and the fine last, so that insufficiency of assets prejudices the State before it prejudices the injured party.
Defence strategy
Seek an order that costs lie where they fall from the defence statement onwards. The request must appear expressly in the provisional and in the final submissions, because its absence later hampers any challenge to the ruling.
Resist the inclusion of the private prosecutor. Where the private prosecutor has advanced positions coinciding with the public prosecutor without any distinct contribution, or has maintained submissions that were dismissed, exclusion of those fees should be sought.
Ask for apportionment where the charges cover several offences. If conviction follows on only part of the facts, proportional distribution should be sought, with the remainder lying where it falls.
Invoke the recklessness of the private prosecutor. An acquittal accompanied by findings showing the inconsistency of the complaint from the outset supports an application for costs against that party.
Challenge the assessment as improper or excessive. Article 243 allows three days for submissions; the fee note should be compared with the Bar guidelines and with the actual duration and complexity of the case.
Monitor the order in which payments are applied. At the enforcement stage every payment must first be applied to reparation of the harm under article 126, which matters where the convicted person has limited funds.
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This page is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the case and requires review of the file by a lawyer. The English rendering of the legal text is unofficial.
Last reviewed: 23 September 2026.
Frequently asked questions
Are costs imposed on a defendant who is acquitted?
No. Article 240.2 of the Criminal Procedure Act expressly provides that costs shall never be imposed on defendants who are acquitted.
Do the costs include the fees of the private prosecutor?
In offences prosecutable only at the instance of a party, always, by mandate of article 124 of the Criminal Code. In the remainder, as a general rule, unless that intervention was superfluous or disruptive.
Who carries out the assessment of costs?
The court clerk, under article 242 of the Criminal Procedure Act, which refers to the Civil Procedure Act for the challenge.
What is the time limit for challenging the assessment?
Article 243 gives three days to the public prosecutor and to the party ordered to pay, running from the assessment and regulation.
Can the person who lodged the complaint be ordered to pay costs?
Yes, under article 240.3, where it appears from the proceedings that the private prosecutor or civil claimant has acted recklessly or in bad faith.
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