Procedural costs constitute the pecuniary consideration required by the State to fund jurisdictional activity, possessing the legal nature of a fee (tax). Inserted within the scope of Procedural Law, they aim to reimburse public coffers for the administrative and operational expenses necessary for the operation of the judicial machinery.
Concept and Foundation
Procedural costs, in the Brazilian legal system, hold the legal nature of a tribute, specifically in the form of a fee, as established by the Supreme Federal Court (STF). The constitutional foundation lies in the exercise of police power and the provision of a specific and divisible public service, as prescribed by article 145, item II, of the 1988 Federal Constitution.
They are distinct from attorney's fees, which are of a private and alimentary nature, whereas court costs are a form of public revenue linked to the Special Fund of the Judiciary (FEPJ) of each federative entity. The institute comprises both judicial costs proper and procedural expenses, which include costs for expert remuneration, public notices, bailiff diligences, and other acts necessary for the regular processing of the case.
Historical Origin and Evolution
Historically, the collection of court costs dates back to the need to finance the State structure in exchange for the exercise of jurisdiction. In Roman Law, access to justice was, in several periods, burdensome. In Luso-Brazilian law, the Philippine Ordinances already provided for taxation on judicial acts. The evolution of the institute in Brazil was marked by the transition from the model of "costs as magistrate remuneration" (a past practice) to the contemporary model of "costs as reimbursement to the treasury," consolidating itself as an instrument for financing the administration of justice.
Legal Provision and Framework
Civil procedural legislation (Civil Procedure Code - Law 13.105/2015) addresses the matter in articles 82 to 97. Article 82 establishes that "except for provisions concerning free justice, it is the duty of the parties to provide for the expenses of the acts they perform or request in the process." The procedural rule imposes the advance payment of expenses, under penalty of cancellation of the distribution (art. 290, CPC).
Within the scope of Labor Justice, the CLT, amended by Law 13.467/2017, regulates the topic in articles 789 and following, establishing that costs will be calculated based on the value of the conviction or the claim, reinforcing the character of a recursive prerequisite for the employer.
Jurisprudence and Current Understanding
The STF has consolidated the understanding that procedural costs, being fees, are subject to the principle of strict legality and anteriority. Current jurisprudence, notably in the STJ, has addressed the debate on the constitutionality of cost tables that adopt values disproportionate to the cost of the service, under penalty of constituting an obstacle to access to justice (art. 5, XXXV, CF).
In the TST, the recent controversy focuses on the application of the benefit of free justice to legal entities, it being settled that the proof of insufficiency of resources is an indispensable requirement (Súmula 463, II, of the TST). The STJ, in turn, reaffirms through various rulings that the payment of costs is a requirement for recursive admissibility, unless free justice is granted.
Related Principles and Doctrinal Divergences
The doctrinal debate revolves around the tension between the principle of access to justice and the need for self-sustainability of the Judiciary. The majority view argues that, although costs are legitimate, they cannot make the exercise of the right of action unfeasible. Divergences arise regarding the calculation of costs in cases of inestimable value or when the state table imposes values that exceed the taxpayer's capacity, which has generated diffuse constitutional control in ordinary instances.
Contemporary Relevance
Currently, the discussion on procedural costs has gained prominence with the digitalization of the Judiciary. The questioning regarding the maintenance of high fees in the face of reduced operational costs with the Electronic Judicial Process (PJe) is an emerging topic. The efficiency of public spending and transparency in the application of the Judiciary Re-equipment Funds are requirements imposed by the principle of administrative efficiency, making costs not only a topic of Procedural Law, but of Financial Law and Public Administration.
Legal and Jurisprudential References
- Federal Constitution of the Federative Republic of Brazil of 1988, art. 145, II.
- Civil Procedure Code (Law No. 13.105/2015), arts. 82 to 97 and 290.
- Consolidation of Labor Laws (CLT), arts. 789 to 790-B.
- STF, ADI 1.926/PB, Rel. Min. Joaquim Barbosa: Jurisprudence on the legal nature of court cost fees.
- TST, Súmula No. 463: Free legal assistance - proof.
- Law No. 9.289/1996 (Provides for costs due to the Union, in the Federal Justice of first and second degrees).
