The recent publication of Organic Act 5/2024 of 11 November on the Right to Defence (LODD) in the Official State Gazette has aroused great interest in the Spanish legal community. This long-awaited law introduces significant changes in the regulation of the legal profession and the protection of the right of defence.
The main objective of the LODD is to regulate the right of defence as an unavailable fundamental right, developing some of its essential aspects and reflecting a social and political consensus on a matter of special importance. The law does not seek to be a mere compilation of procedural rules, but focuses on the need for natural and legal persons to be aware of the special recognition and guarantees that correspond to them as holders of their right of defence.
The LODD highlights the indissoluble relationship between the right to defence and the rule of law, underlining the special relevance of the defence in the criminal sphere, particularly for persons under investigation or deprived of liberty. In this regard, the jurisprudence of the European Court of Human Rights (ECtHR) is brought up as a source of interpretation of the right to defence in line with international treaties.
With regard to the practice of law, the LODD recognises the intrinsic link between the right to defence and legal defence, as well as the essential role of legal professionals in guaranteeing this right. For this reason, it highlights the importance of free legal aid as a mechanism of equal protection and the obligation of States to provide it in specific cases.
In this brief article, we will focus on the analysis of Articles 13 to 18 of the LODD, which establish a set of guarantees, both imposed and received, for the practice of law:
Article 13 “Guarantee of the provision of services by legal professionals” defines who are the legal professionals, establishing that they are those persons who, on their own account or on behalf of others, being in possession of a professional title and registered as practising, are professionally engaged in providing legal advice, resolving conflicts and defending the rights and interests of others, both public and private.
This article recognises the importance of legal aid as an essential pillar of the guarantees of the right to defence, ensuring free legal assistance to those who can prove insufficient resources.
Article 14 “Guarantees of the legal professional” enshrines the freedom and independence of the legal professional as a prerequisite for the effective realisation of the right of defence. The law establishes that the public authorities must guarantee this free and independent action and treat professionals with full respect for the relevance of their functions.
This article also recognises the right to conciliation of legal professionals, allowing them to request the suspension of judicial proceedings or the rescheduling of procedural actions for personal or family reasons.
Article 15 “Guarantees of professional engagement” provides for the possibility to formalise the engagement of legal defence services in writing by means of a professional engagement form or equivalent means. This form must contain clear and accessible information on the client’s rights, the formalities of the procedure, the legal consequences and the estimate of fees and costs.
In addition, the obligation to comply with personal data protection regulations, in particular with the General Data Protection Regulation (GDPR), is introduced. The processing of the personal data obtained shall be for the sole purpose of exercising the right of defence entrusted by the client9.
Article 16 “Guarantee of confidentiality of communications and professional secrecy” reaffirms the confidentiality of communications between lawyers and their clients. These communications may only be intercepted in the cases and with the requirements expressly set out in the law.
It establishes the inadmissibility as evidence in court of communications between the advocates of the parties, even in the extrajudicial phase. The production of documents that contravene this prohibition is prohibited, unless their production is expressly accepted by the legal practitioners involved or the communications have been made with the warning that they could be used in court.
In addition, professional secrecy is recognised, which includes the inviolability of the lawyer’s communications and documents, the exemption from testifying about facts known in the exercise of his profession and the protection of secrecy in the entry and search of professional offices.
Article 17 “Guarantees of the freedom of expression of the legal professional” guarantees the freedom of expression of the legal professional in the development of the procedure before the public authorities and the parties. Professionals may express themselves freely, orally and in writing, provided that their statements are not contrary to professional ethics or other applicable rules. The law establishes that the Bar Associations shall ensure that this freedom of expression is respected as a guarantee of the right of defence.
Article 18 “Guarantees for legal professionals with disabilities” recognises the right of legal professionals with disabilities to use the assistance, support and resources they require to effectively perform their role. This provision seeks to ensure the inclusion of professionals with disabilities in the practice of law and to guarantee that they are able to defend the rights of their clients without barriers.
In its overall assessment, Articles 13 to 18 of the LODD represent a significant advance in the protection of the right of defence in Spain. The enshrinement of these guarantees for the practice of law is fundamental to ensure the effective defence of the rights and interests of individuals.
Although the LODD introduces substantial improvements, it has also received some criticism from the legal community, such as the lack of more specific criteria for the application of the right to conciliation or the omission of an express reference to in-house counsel in the protection of professional secrecy.
In short, the LODD is an important step in the consolidation of the right to defence in Spain and in the recognition of the legal profession as an essential profession for the rule of law. However, more work remains to be done to perfect its application and ensure that all persons, regardless of their circumstances, can access effective and quality legal defence.