ABSTRACT
In
the realization of any civil process, expenses must necessarily be incurred
with respect to a series of procedures: expert reports, documents, etc. In the
case of the national legal system, emphasis has been placed on this through
various declarations at the level of several laws, making it clear that access
to the judicial system in Ecuador is free of charge. And in the specific case
of the judicial summons of the defendant, this is no exception, such a
declaration is reiterated. The
present work seeks to establish that there is no parallel or contradiction
between the principle of free access to the justice system and the serving of
the writ of summons in civil proceedings, even if this is paid for by the
interested party, until the judge definitively establishes it through the
respective sentence.
RESUMEN
En la realización de todo proceso civil
necesariamente se ha de incurrir en gastos, respecto de una serie de
diligencias: periciales, documentales etc. En el caso del ordenamiento jurídico
nacional se ha hecho énfasis a través de sendas declaraciones a nivel de varias
leyes, dejando en claro que el acceso al sistema judicial en el Ecuador, es
gratuito. Y en el caso puntual de la citación judicial de la demanda en la
persona del demandado, no es una excepción, es reiterada tal declaratoria. El
presente trabajo busca establecer que no existe algún paralelo o contradicción
entre el principio de gratuidad del acceso al sistema de justicia, con que la
realización de la citación judicial de la demanda en el proceso civil, aunque
esta sea pagada por la parte interesada, hasta que el juez a través de
respectiva sentencia establezca, en definitiva.
Keywords / Palabras
clave
principle
of gratuity, summons, justice system.
principio de gratuidad, citación de
demanda, sistema de justicia.
Introduction
Within the framework
of the Ecuadorian civil process (generally following some of the doctrinal
tendencies), it is mentioned that everything related to the civil process must
be carried out free of charge. Without prejudice to the imminent expenses
incurred in its development (lawyers' fees, expert witnesses, etc.), which must
be paid by the respective parties. The aforementioned is one of the systems,
many times, antagonistic that have been adopted by the legislations, and that
has become a matter of controversy due to the way in which the subject is
approached. In this paper we will argue that such controversies do not exist,
but that they are simple points of view of doctrines, but that finally converge
in that in order to keep in force in a very necessary way the so-called
principle of gratuity, also seen as a way that people within a society have
access to a justice system, without any obstacle, it is a guarantee provided by
the State to all members of a society.
It is in this field that the principle of gratuity is immersed in the specific
case of the summons of a civil lawsuit in the person of the defendant.
BRIEF PROCEDURAL BACKGROUND, REFERRING TO THE JUDICIAL CITATION OF THE CIVIL
LAWSUIT
Since the time of the written civil procedure, in our legislation, the figure
of the judicial citation of the lawsuit in the person of the defendant, has
kept a series of formalisms that have not changed even with the enforcement of
the so-called General Organic Code of Processes; notwithstanding the
characteristic of the current procedural law, which in our point of view,
deserved at least an update, given the profound change of said law that it
meant, going from a written system, to one where the characteristic is that the
civil process is carried out by means of hearings: that is to say, oral
proceedings prevail.
Thus, in accordance with the provisions of the General Organic Code of
Proceedings, once the claim has been qualified, the judicial citation of the
same will be carried out:
"Art. 53.- Citation. Reformed by num. 2 of the First Reformatory Provision
of the Code s/n, R.O. 31-2S, 7-VII-2017; and Substituted by Num. 1 of Disp.
Ref. 5ta of the Law s/n, R.O. 345-S, 8-XII-2020; and by Art. 72 of the Law s/n,
R. O. 245-3S, 7-II-2023) - The summons is the act by which the defendant is
made aware of the content of the complaint or of the request for a preparatory
proceeding and of the orders issued therein. It will be done in person, by
means of physical or electronic ballots, or through the means of communication
ordered by the judge”.
If a party states that it is aware of a certain petition or order or refers to
it in writing or in an act of which there is a record in the proceeding, it
shall be considered summoned or notified on the date of filing the writing or
on the date of the act attended.
All summons shall be published in full, that is, with its reasons and minutes
of summons in the automatic consultation system of the electronic page of the
Judiciary Council, through the electronic and technological means available to
the Judiciary, which shall state the form of summons or the reasons for which
it was not possible to carry out such proceedings.
If the plaintiff has provided the e-mail address of the defendant, the judge
will also order that the defendant be notified by e-mail of the extract of the
complaint and the initial order, which will be recorded in the system. This
does not replace the official summons, except in the cases provided for in this
Code.
In turn, this procedural activity will provoke the intervention of the
defendant, who, among other rights -mainly- will answer the lawsuit:
The answer to the lawsuit shall be submitted in writing and shall comply, as
applicable, with the formal requirements provided for the complaint (Art. 151
of the COGEP)”.
In this area, the judicial summons is the procedural figure that allows
guaranteeing the right to effective judicial protection, in principle, of
whoever has been sued; for the same reason that its materialization must be
given taking all the legal safeguards; that is to say, complying with a series
of formalities. Failure to comply with them may result in the respective
procedural nullity.
The series of formal requirements that the Law has imposed to carry out the
judicial summons of the lawsuit has as a prelude, not only the participation of
the defendant in the civil process, but also that the latter exercises his
right to defense and all that it technically implies (Art. 76, N. 7, letters a,
b, c, h, of the Constitution of the Republic). Complementarily, he will be able
to exercise his legitimate right to contradict the plaintiff.
Art. 76.- In all proceedings in which rights and obligations of any order are
determined, theright to due process shall be ensured,
which shall include the following basic guarantees:
7.The right of persons to a defense shall include the following guarantees:
a) No one may be deprived of the right to a defense at any stage or level of
the proceedings.
b) To have adequate time and means for the preparation of their defense.
c) To be heard in a timely manner and under equal conditions.
h) To present orally or in writing the reasons or arguments with which they
believe they are assisted and to reply to the arguments of the other parties;
to present evidence and to contradict that which is presented against them.
In order to ensure the aforementioned procedural rights, following doctrinal
guidelines, our Civil Procedural Law incorporates the different ways of
summoning the claim: the traditional way, in person; by means of ballots;
through the media (Arts. 55, 56 of the COGEP).
THE PRINCIPLE OF GRATUITY IN THE SCOPE OF ECUADORIAN CIVIL JUSTICE
In the judicial field, legislations worldwide, accept theories, points of view
or certain doctrines that may be in accordance with their social realities.
In that sense, one of the recurrent orientations is that it is a right of every
citizen, when he needs to go to the judicial body for a situation of conflict
of rights with a similar one; he must resort to someone not only impartial
(guaranteed by the State), but also with a path free of obstacles in order to
resolve such conflict. And this is precisely where one of the contributory
factors arises, that the citizen does not have to pay for such achievement.
In this sense, one of the tributaries is related to the principle of free
access to justice.
Precisely
(this principle, called gratuity), can be approached in different ways, since a
civil process always entails a series of expenses, which someone of the
intervening parties must pay; it cannot be concluded that access to the courts
of justice in general, is paid, or seen otherwise, is violating the
aforementioned principle.
In
the case of the Ecuadorian judicial system, the Plenary of the Judiciary
Council, through resolution 061-2020, has held that:
Article 3.- Free of charge of summons. - Access to the administration of
justice is free of charge and is a basic and fundamental public service of the
State, therefore, the citations will be free, people should report any type of
charge made for this concept.
On
the other hand, in Comparative Legislation we find expenses or payments that
must necessarily be incurred in the course of a civil proceeding; and it is the
interested procedural party who must pay these consequent expenses; such as,
for example, those incurred in personal notifications (or others), which must
be made for the first time in the person of the defendant. In such cases, we
would not be in the presence of a paid judicial system or that the principle of
judicial gratuitousness is not observed: Chilean Code of Civil Procedure.
Art.
25 (26). "Every litigant is obliged to pay to the officers of the
administration of justice the fees that the judicial tariffs indicate for the
services rendered in the process.
Each
party shall pay the fees corresponding to the proceedings he has requested, and
all parties shall pay in equal installments those of the common proceedings,
without prejudice to the reimbursement that may be due when by law or by
resolution of the courts it corresponds to other persons to make the payment”.
Art.
26 (27). The fees for each diligence shall be paid as soon as the same is
evacuated; but the lack of payment shall in no case hinder the progress of the
trial”.
From
what has been stated above, it can be established that there is no single point
of view on the matter; rather, what is specific is that there are different
orientations that each legislation has accepted by conditioning it to its
social realities, which in no way is equivalent to concluding that for these
reasons justice is altered in any of the cases, the infallible principle of
gratuity.
In
the field of Ecuadorian legislation, when the law has reiterated the gratuity
of certain procedural activities, precisely in the civil field, it has rather
wanted to reinforce the manifestation of government policy, which is that no
procedure that does not carry a kind of payment for its realization, duly
regulated, can have any fee arbitrarily imposed by the respective official.
PAYMENT OF PROCEDURAL COSTS
According
to our civil procedural legislation, only those who do not act correctly in the
course of the trial shall be sentenced to pay procedural costs:
Art. 284 COGEP:
"The
person who litigates in an abusive, malicious, reckless or disloyal manner
shall be sentenced to pay to the State and his counterpart, when applicable,
the expenses incurred. The judge must qualify this form of litigation and
determine its payment in all judgments and interlocutory orders that terminate
the process.
The
State shall not be ordered to pay costs, but may instead be ordered to pay them
by the person exercising his or her defense. ”.
In another procedure, it is not proper of particular legislation that, for the
materialization of certain activities within the civil process, these must have
an economic cost (without prejudice to what happens at the time of the final
judgment); these must be assumed by the party that has requested the referred
diligence.
Thus,
the different procedural laws in the external sphere have chosen to duly
regulate the consequent costs, and those who must comply with them in the due
process of the particular proceeding.
“The
Chilean doctrine has historically understood costs as “trial expenses”,
generated on the occasion of the trial. In this sense, Stoehrel
has defined them as those “expenses that originate during a judicial proceeding
and that are a direct consequence of it”. In a similar sense, Cortez and
Palomo have recently defined the concept of costs as “those economic
disbursements that correspond to the party that is judicially defeated and
include all the expenses caused or occasioned by the substantiation of the proceeding”. Casarino has focused its definition on who must bear the
costs in a proceeding, stating that these “are the immediate and direct
expenses arising from a judicial proceeding and must be borne by the parties in
accordance with the law”. Finally, the Supreme Court has rightly
understood them as direct expenses of the parties, that is, as “the expenses
incurred by the parties in the defense of their rights in court”. “
Art.
25 of the Chilean Code of Civil Procedure:
”Every litigant is obliged to pay to the officers of the administration of
justice the fees that the judicial tariffs indicate for the services rendered
in the process.
Each
party shall pay the fees corresponding to the proceedings he has requested, and
all of them in equal installments those of the common proceedings, without
prejudice to the reimbursement that may be due when by law or by resolution of
the courts it corresponds to other persons to make the payment”.
Art.
138 (145).
When
one of the parties is ordered to pay the costs of the case, or of any
particular incident or proceeding, they shall be assessed in accordance with
the following rules.
Art. 139 (146).
"Costs
are divided into procedural and personal costs.
Procedural costs are those incurred in the formation of the process and which
correspond to services estimated in the judicial tariffs.
Personal costs are those arising from the fees of the attorneys and other
persons who have intervened in the business, and of the public defenders in the
case of Article 367 of the Organic Code of Courts.
Attorneys' fees shall be regulated in accordance with the tariff set by the
respective Provincial Bar Association and, in the absence thereof, by that of
the General Council of the Bar Association.
The fee that is regulated in accordance with the preceding paragraph shall
belong to the party in whose favor the condemnation in costs was decreed; but
if the lawyer receives it for any reason, it shall be imputed to the one that
has been stipulated or to the one that should correspond to him”.
THE PRIVILEGE OF POVERT
This
institution (so recognized for example in comparative legislation), has been
determined as the possibility that a person who finds it necessary to appear
before the judicial body due to a conflict of interests, to file a lawsuit, or
who has been sued, has.
As a general rule, any expenses incurred (attorney's fees, expert witnesses,
documents, etc.) must be paid to the corresponding parties, until such time as
the sentencing judge confirms it or orders otherwise.
However, it may be the case that the appellant lacks the economic means to
cover such costs. This circumstance, under this figure (privilege of poverty),
should not be an obstacle to access the judicial institution, since it must be
solved and absorbed in due form, as the doctrine has accepted and the Law has
provided, based on this principle:
"The privilege of poverty is a species within the genre that could be
called judicial assistance, which is a broader concept.The
professor of Procedural Law, Mario Casarino, defines
judicial assistance as “the set of legal rules aimed at facilitating the
exercise of rights before the courts of justice by poor or low-income persons”
(CASARINO VITERBO, Mario, Manual de Derecho Procesal. Derecho
Procesal Orgánico
(Santiago, Editorial Jurídica de Chile, 2006), volume
II, p. 187.
The privilege of poverty is treated as a special incident in the Code of Civil
Procedure, and in this sense it can be defined as “a
procedure contemplated by the procedural codes by virtue of which persons of
limited resources can avail themselves free of charge of the defenders of the
poor (lawyers, receivers and attorneys on duty) (...)”. (ALESSANDRI
RODRÍGUEZ, Fernando, Ley Orgánica de Tribunales (Editorial Nascimiento, 1936),
p. 428, in GUTIERREZ LOYOLA, Ivan, El privilegio de
pobreza nuevas tendencias. Seminario de titulación para optar al grado de
Licenciado en Ciencias Jurídicas y Sociales, Universidad de Concepción, 1993,
p. 27).
Chilean Code of Civil Procedure:
Art. 132 (140). If the cited party does not oppose the granting of the
privilege within a third day, the information will be rendered and a decision
will be made based on the merits of the information and the other background
information that has been submitted or that the court orders to be added.
If there is opposition, the incident will be processed in accordance with the
general rules.
The
appeal of the sentence that accepts the privilege of poverty will be granted
only in the devolutive effect.
Art.
591 and Sgts. Organic Code of the Courts (chile)
Art. 591. The privilege of poverty, except in cases in which it is granted
by the sole authority of the law, shall be declared by judicial sentence and
must be requested from the court to which it corresponds to hear in sole or
first instance the matter in which it is to have effect.
Those who obtain it will use simple paper in their applications and proceedings
and will have the right to be served free of charge by the officials of the
judicial order, and by the lawyers, attorneys and junior officers appointed to
provide services to poor litigants.
Unless the law expressly orders otherwise, they shall also be exempt from the
payment of the fines established for litigants; but if they proceed with
notorious malice, the court may impose the corresponding fine, commutable to a
day's arrest for one twentieth of a living wage.
The
processing of the privilege of poverty shall be governed by the Code of Civil
Procedure
Art.
431 of the Chilean Labor Code.
In
labor cases, any action, proceeding or diligence of the trial carried out by
officials of the court shall be free of charge for the parties. The person
in charge of the administrative management of the court shall be responsible
for the strict observance both of this gratuity and of the timely performance
of the proceedings.
The parties enjoying the privilege of poverty shall be entitled to free legal
defense by the respective Legal Aid Corporations or, failing that, by an
attorney on duty, or by the system of free defense provided by law. Likewise,
they shall have the right that all proceedings in which auxiliary personnel of
the administration of justice must intervene shall be carried out in a timely
manner and free of charge.
Oral defenses may only be carried out by authorized attorneys.
HOW THE ECUADORIAN LEGISLATION DEVELOPS THE JUDICIAL SUBPOENA OF THE LAWSUIT
According to what has been expressed in the development of this investigation,
the Ecuadorian legislation does nothing more than opt for one of the doctrines
concerning the mechanisms of development of the judicial subpoena of the civil
lawsuit.
In said summons, what is done is nothing more than to align itself with a
determined doctrinal position. This is reflected in the respective law:
Art. 53 of the Code General Organic Code of Procedure:
" Summons. Reformed by num. 2 of the First Reformatory Provision
of the Code s/n, R.O. 31-2S, 7-VII-2017; and Substituted by Num. 1 of Disp.
Ref. 5ta of the Law s/n, R.O. 345-S, 8-XII-2020; and by Art. 72 of the Law s/n,
R. O. 245-3S, 7-II-2023) - The summons is the act by which the defendant
is made aware of the content of the complaint or of the request for a
preparatory proceeding and of the orders issued therein. It will be done
in person, by means of physical or electronic ballots, or through the means of
communication ordered by the judge”.
If a party states that it is aware of a certain petition or order or refers to
it in writing or in an act of which there is a record in the proceedings, it
shall be considered summoned or notified on the date of presentation of the
writing or on the date of the act attended.
All summons shall be published in full, that is, with its reasons and minutes
of summons in the automatic consultation system of the electronic page of the
Judiciary Council, through the electronic and technological means available to
the Judiciary, which shall state the form of summons or the reasons for which
it was not possible to carry out such proceedings.
If
the plaintiff has provided the e-mail address of the defendant, the judge will
also order that the defendant be notified by e-mail of the extract of the
complaint and the initial order, which will be recorded in the system. This
does not replace the official summons, except in the cases provided for in this
Code.
For its part, the National Court of Justice, through Resolution no. 07-2018,
has held:
”......
That the summons is the procedural act by which the defendant is made aware of
the existence and content of the claim or preparatory proceedings and the
orders issued in the process, which has the substantial mission of making the
defendant know that an action has been proposed against him, in order to bind
him to the process and exercise his right to defense, plays a fundamental role
in relation to due process, enshrined in Article 76, paragraph 7, letters a),
b) c) and h) of the Constitution of the Republic. The lack of citation
gives rise to the nullity of the process, since it goes precisely against these
constitutional principles, by depriving the person of his right to defense; not
allowing him to have the time and adequate means to prepare and exercise his
defense;” .
Therefore, such activity is essential for the validity of the process, due to
the consequences that its non-fulfillment would entail. Thus, there are
countless procedural justifications for which the judicial summons of the
lawsuit cannot be absent, which in other legislations and doctrines, is also
called notification of the lawsuit.
THE PRINCIPLE OF GRATUITY IN THE CIVIL PROCEDURAL FIELD
It is considered a fundamental right that every person, regardless of his
economic situation, has the same right to resort without any restriction to the
judicial system for the solution of any controversy regarding his interests or
rights. All this with the exception that there are costs or expenses, in these
matters, that must be considered to be incurred by the parties and that are
unavoidable its materialization.
Constitution of the Republic:
Art. 75 of the Constitution of the Republic of Ecuador.
Every person has the right to free access to justice and to the effective,
impartial and expeditious protection of his rights and interests, subject to
the principles of immediacy and celerity; in no case shall he be left
defenseless. Failure to comply with judicial decisions shall be punishable
by law.
THE JUDICIAL CITATION OF THE CIVIL LAWSUIT AND THE PRINCIPLE OF GRATUITY, IN
THE CONTEXT OF THE ECUADORIAN LEGISLATION.
The summons (Art. 53 of the COGEP), is a fundamental procedural act since it
has the substantial mission of letting the defendant know that an action has
been proposed against him, in order to bind him to the process and exercise his
right to defense, since among its effects is that of “requiring the
summoned to appear before the judge to deduce exceptions”; it also has other
effects such as constituting the defendant in possession in bad faith,
constituting the debtor in default and interrupting the statute of limitations
(Article 64 COGEP). Then we must understand that the summons plays a
fundamental role in relation to due process, specifically the right to defense,
enshrined in article 76, numeral 7, letters a), b) c) and h) of the
Constitution of the Republic, inasmuch as: “(a) No one may be deprived of
the right to defense at any stage or grade of the proceeding; (b) To have
adequate time and means for the preparation of his defense; (c) To be heard in
a timely manner and under equal conditions; and, (h) To present orally or in
writing the reasons or arguments with which he believes he is assisted and to
reply to the arguments of the other parties; to present evidence and to
contradict that which is presented against him.” .
The lack of citation gives rise to the nullity of the process, since it
violates precisely these constitutional principles, by depriving the person of
his right to defense; not allowing him to have the time and adequate means to
prepare and exercise his defense, through the formulation of exceptions that he
could present in opposition to the claim; It prevents him from being heard at
the appropriate time to answer the claim and propose exceptions, which is the
term granted by the judge in the order of qualification of the claim; and does
not allow him to present his reasons and arguments and reply to those
formulated by the plaintiff, to present evidence and contradict those presented
against him, which constitutes the “right of contradiction”, the basis of due
process.
As we have argued in the course of this research work, regarding the
gratuitousness of the various proceedings to be carried out by the State, or by
procedural necessity of the parties, this procedure is nothing more than a
doctrinal orientation that the legislator has accepted and incorporated into
our legal system.
However, and in essence, there will always be many diligences to be carried
out, mainly by the parties, and they make the civil process not to enjoy the
absence of expenses.
In the specific case of the free of charge in the execution of the judicial
summons of the lawsuit (principle accepted by the Ecuadorian legislation), it
does not influence the consideration that by that fact alone it can be
concluded that the judicial process of the proceeding enjoys free justice.
Therefore, it does not affect -in turn- the necessary validity of the rights of
access to justice that the plaintiff or the defendant have.
It seems that, according to the Ecuadorian legal system, the fact that the
summons of the lawsuit is made free of charge, makes -in turn- that the access
to the administration of justice is free“, even when all other expenses to be
made (expert evidence, for example), must be paid by the party requesting such
evidence:
”Article 46.- Obliged to pay the fees. - The fees of the qualified experts
shall be paid in a compulsory manner under the terms established in these
regulations and in the following manner:
1. By the party requesting the expertise and/or attaching the expert report.
2. In criminal matters, by the State Attorney General's Office, by the parties
involved in the proceedings, if the expert report has been requested by them.
3. By the Judiciary Council, through the corresponding provincial directorate,
when the judge designates the qualified expert ex officio; in the case of
judges of the National Court of Justice, through the General Directorate of the
Judiciary Council or the National Directorate delegated for such purpose,
unless otherwise determined by law.
When the Judiciary Council is the institution that pays the expert fees, these
shall be returned to its favor, via legal costs established by the judge of the
case, in accordance with the law, except in the case of the exceptions of
gratuity under Article 76 paragraph f) of the Constitution of the Republic of
Ecuador, and other legal norms that so provide. This same procedure must
be complied with when the judge orders the payment of procedural costs in favor
of one of the parties, including the amount of the expert's fees paid by it.
Public institutions that must pay fees for expert opinions must abide by the
provisions of the Organic Code of Planning and Public Finances.
Once the expert submits his report, the respective authority shall order the
payment of the fees by means of an order, in accordance with the law and these
regulations.
In the event that the parties requesting the expertise do not comply with the
payment ordered by the authority within the established term, default interest
will be generated. This shall be without prejudice to the coercive fines
that the authority may impose to ensure compliance with the obligation." .
Thus, access to the administration of justice is not totally free, but this
does not make it inaccessible for individuals who seek solutions to their
conflicts of rights before the respective judges.
We insist then on something we have stated; that is, the cost to be incurred in
the materialization of the judicial summons is one of the various possibilities
established in the doctrine, therefore, accepted by the Ecuadorian legislation,
without this circumstance influencing the validity of the principle of
gratuitousness.
Materials and Methods
The present research, which comprehensively examines the topic of
procedural due diligence in
the judicial context, is of a mixed nature, combining
qualitative and quantitative methods to provide a comprehensive and detailed
analysis. On the qualitative side, both inductive and deductive approaches are
employed, allowing for an in-depth and grounded exploration of the issues
addressed. Initially, the study focuses on the judicial citation of the civil
lawsuit, examining this process in detail to understand its specific
implications and procedures. This preliminary analysis lays the groundwork for
a more focused examination of the principle of gratuitousness that governs such
procedural diligence, exploring how this principle is implemented and
interpreted in different judicial contexts.
In addition, these methods have facilitated an in-depth analysis of the
different theoretical views adopted by various legislations in relation to the
performance of evidentiary procedural diligence requested by the parties
involved in a litigation. This analysis focuses on the critical question of who
should bear the costs associated with these procedural activities, an issue
that has given rise to considerable academic and practical debate. In this
context, the research compares and contrasts the different legal approaches,
assessing the advantages and disadvantages of each approach and considering the
practical implications for the parties involved in the litigation process.
The study also addresses how these legislative interpretations affect fairness
and access to justice, considering the impact of costs on the parties' ability
to present evidence and defend their interests in the judicial process. Through
a comparative analysis, the research highlights emerging trends and persistent
debates in the legal arena, providing a broad and nuanced view of how
evidentiary due process is handled in different legal systems. Ultimately, the
study seeks to offer informed recommendations that can guide future legal
reforms and improve the efficiency and fairness of the procedural system.
Results
As a result, this research reveals that, according to the criteria of
the Ecuadorian legislator, the principle of free access to the justice system
translates exclusively into the exemption of payment for the procedural
activity related to the summons to the defendant. This approach suggests that,
within the Ecuadorian context, gratuity is directly linked to this specific
phase of the judicial process, reflecting a restrictive interpretation of the
principle in question. However, by expanding the analysis through the study of
foreign legislations, it has become evident that the relationship between the
principle of gratuity and the payment for the execution of procedural
diligences such as the summons is, in fact, nonexistent. This indicates that
the two areas should be considered separate and not interdependent. The
research compares how different legal systems address these aspects,
highlighting that in many jurisdictions, the existence of an economic cost
associated with the summons does not contradict the principle of free access to
justice. In these legislations, it is observed that free access to justice is
understood as a broader concept, which encompasses the elimination of economic
barriers to access to the courts, without necessarily implying the absence of
costs in all stages or specific procedures of the judicial process. This allows
such jurisdictions to maintain a balance between the sustainability of the
judicial system and the equitable access of the parties to it.
Consequently, the study concludes that in those legislations where the
judicial summons of the lawsuit entails a cost, these can still be considered
as respectful and promoters of the principle of free access to the courts of
justice. This is because the principle can be implemented in different ways,
depending on the legal context and social priorities of each country. Thus, the
analysis suggests a re-evaluation of the conventional interpretations of the
principle of gratuity, promoting a more flexible and adaptive understanding
that can better reflect the needs and realities of each judicial system.
Conclusions
Undoubtedly, access to the justice system must be free of charge. This is how it
has been understood by legal systems worldwide; a principle about which there
is no doubt whatsoever.
It has been catalogued as a right of individuals to go before a judge in order
to solve conflicts of interest that otherwise could not be solved in the
context of a developed society where the law prevails.
This does not hinder the expenses (mainly legal costs), which the parties must
incur and that at the end of the process the respective judge will decide which
of the parties will cover them definitively.
In this context, everything related to what it implies to carry out the
judicial citation of the civil lawsuit in the person of the defendant, is a
diligence that in our point of view has no relation or incidence with the
principle of free access to the judicial system; since such access will
continue to be free, whether or not the respective expenses to the minister of
faith who carries out such diligences have to be paid; all this according to
what is ordered by the respective Law.
References
Aguirre, E. K. (18 de Septiembre de 2023). Derechopedia. Obtenido
de https://derechopedia.cl/Privilegio_de_pobreza
Asamblea Nacional Repùblica del
Ecuador. (2024). Codigo Organico General de Procesos. Quito: Ediciones
legales.
Carlos Correa Robles y Alberto Pino
Emhart. (2020). El costo de la justicia: Las costas en el Derecho procesal
civil chileno y los modelos para su regulación. Revista Ius et Praxis,
81-103.
Congreso Nacional de Chile. (2022). Ley
1552 CODIGO DE PROCEDIMIENTO CIVIL CHILENO. Santiago de Chile: Biblioteca
del Congreso Nacional de Chile. Obtenido de
https://www.bcn.cl/leychile/navegar?idNorma=22740
Consejo de la Judicatura. (2024). REGLAMENTO
DEL SISTEMA PERICIAL INTEGRAL DE LA FUNCIÓN. Consejo de la Judicatura.
Obtenido de
https://www.funcionjudicial.gob.ec/resources/pdf/resoluciones/2024/216-2024.pdf
La Corte Nacional de Justicia. (2018). RESOLUCIÓN
No. 07-2018. Quito: Registro Oficial y Gaceta Judicial.
MARTÍNEZ, EUSTAQUIO (1999): “Las costas judiciales”, en: Revista del
Abogado (N° 17). Disponible en:
https://archivo.colegioabogados.cl/cgibin/procesa.pl?plantilla=/v2/cont_revista.html&idcat=32&id_cat=7&id_art=41&nseccion=%25BFPor%2520Qu%25E9%2520Asociarse%253F%2520%253A%2520Revista%2520del%2520Abogado%2520%253A%2520Revista%2520N%25BA%252017%2520%253A%2520TEMAS
[visitado el 6 de marzo de 2020].
MERY, RAFAEL (2010): “Tasas judiciales: Una alternativa para la justicia
chilena”, en:
Latin American and Caribbean Law and
Economics Association (ALACDE) Annual Papers. Disponible en:
https://escholarship.org/uc/item/9bg8002m [visitado el 6 de marzo de 2020].
The judicial citation of the civil lawsuit and the
principle of gratuity, in the context of the Ecuadorian legislation