Organic Law 5/2024, of 11 November, on the Right to Defence

The right to defence and to the assistance of a lawyer is a set of powers and guarantees recognised to natural and legal persons to assert, in accordance with a previously established procedure, their rights, freedoms and legitimate interests in any type of dispute. It is expressly recognised in the second paragraph of Article 24 of the Spanish Constitution: ‘…everyone has the right to an ordinary judge predetermined by law, to a defence and the assistance of lawyer, to be informed of the charges against them, to a public trial without undue delay and with all the guarantees, to use the means of evidence relevant to their defence, not to testify against themselves, not to confess guilt and to the presumption of innocence’.

Thus, while case law and judicial practice have been consolidating standards of protection and aspects that have been consolidated as an inherent part of this fundamental right, it was necessary for this basic principle of our rule of law to be enshrined in an organic law. The Organic Law 5/2024, of 11 November, on the Right to Defence, which will come into force on 4 December 2024, is therefore born. Although most of the provisions in this law have already been addressed by other legislation, what is reflected, in reality, is the intention to develop them and to give them legal coating that ensures the effective exercise of the defence.

That said, we must stress that there is an inherent link between the Right of Defence and the Legal Defence. Although individuals can defend themselves in some cases, legal defence, carried out by a professional, is considered the most appropriate and secure means of protecting this right. Therefore, the independence and freedom of expression of lawyers and, in general, the exercise of their functions must be protected with all guarantees so that the quality and effective defence of the client is not compromised.

In the new O.L., the regulation of the right of defence is accompanied by the establishment of certain rules, both regulating the legal profession and the guarantees that allow its professional practice to provide an effective guarantee of the defence of individuals. In this context, the Bar Associations operate as an institutional guarantee of the right to defence, ensuring the independence and freedom of legal professionals in their daily work, as well as maintaining relations with the different administrations. In other words, the right of defence and the profession that best guarantees it are jointly regulated, as more than half of the articles focus on the ethical obligations of lawyers.

In this article we would like to highlight the most relevant issues of the Organic Law 5/2024, of 11 November, on the Right of Defence, which are summarised as follows:

-Transparency and accessibility of information provided to customers. It places greater responsibility on lawyers to communicate with their clients, who are entitled to receive clear and accessible information about their rights, legal procedures, the order form and the status of their files. It stresses the importance of legal aid being inclusive and tailored to the individual needs of each person, including an ethical and professional commitment to establish the necessary means for the effective defence of people in vulnerable situations.

Similarly, the need for transparency on the use of Artificial Intelligence (AI) is included: the right to know the artificial intelligence criteria used by digital platforms for the choice of legal professional, procedure management, etc. and, in general, any legal service that is carried out electronically. Lawyers must be prepared to work in electronic environments to ensure accessibility and advocacy for their clients and will have grounds to challenge automated decisions that are not transparent.

-It ensures that lawyers can act freely, without fear of communications being used against them or to the detriment of the client, which is fundamental to the integrity of the right of defence. Professional secrecy and the protection of confidentiality are matters already regulated by professional codes of ethics, but this organic law introduces a very relevant issue: ‘Communications made exclusively between the advocates of the parties in the course of litigation or proceedings, whatever the time at which they take place or their purpose, even out of court, are confidential and may not be relied on in court nor have evidentiary value.’

This is one of the great advances of the law, as some lawyers dare to provide professional communications (despite being deontologically sanctioned), given the usual practice of courts and tribunals to offer evidentiary value to such communications.

Thus, in general, deontological obligations are reinforced, since many deontological duties, which lack legal rank, contemplated in rules such as the Code of Ethics of the Spanish Legal Profession or the General Statute of the Spanish Legal Profession, are elevated to the rank of law with the implementation of this regulation.

-Particularly important is the legal framework for establishing guidelines for professional fees within the Bar Associations. This issue created financial uncertainty for citizens as, in the absence of guidelines, it was very difficult to anticipate the costs of legal proceedings and to make informed decisions when hiring a lawyer.

With regard to this point, the use of the ‘order form’, a document in which the essential conditions of the order are determined, such as the object of the contracted services, their duration, the fees and method of payment, the treatment of allowances and substitutes, the intervention of other professionals, etc., is strengthened.

-The competence of the Bar Associations is strengthened; as an example, Article 23 of the present law states: ‘that the Consejo General de la Abogacía Española (CGAE) will be responsible for issuing interpretative circulars of the Code of Ethics, ensuring a uniform application of the ethical rules. These circulars provide clarity on the expectations of professional and ethical conduct, helping lawyers to align themselves with the official interpretations of the Code of Ethics.’This guarantee favours the constant improvement and professionalisation of the sector, ensuring that lawyers are prepared for the challenges of legal practice.

In addition to this, the second Additional Provision strengthens the position of the Bar Associations in the management of free legal aid services, allowing them to organise and supervise the legal aid office and to reinforce the Legal Advice Services (the Bar Associations will inform them about free legal aid ensuring that this guidance is especially accessible to the most vulnerable groups).

In conclusion, the Defence Law lays the foundations for a significant reform in the field of legal aid and the practice of law in Spain. Its effective implementation will depend, to a large extent, on the provision of adequate resources and on the collaboration between the Administration of Justice, the collegiate institutions and the professionals themselves. This legal framework aims to reinforce confidence in the justice system and to dignify the practice of law, consolidating its role in the defence of citizens’ rights.