'Right of defence' organic law enters into force in Spain

Organic Law 5/2024, of 11 November, on the Right to Defence, came into force on 4 December,  with the text compiling – in a clear spirit of homogenisation – various manifestations of the right to effective judicial protection that are enshrined in article 24 of the Spanish Constitution and have been shaped over the years both by the courts, including the European Court of Human Rights, and international standards.

The law regulates the right of defence with a view to all the subjects and operators involved: the holder of the right, the legal profession, the courts and the institutions, such as the Professional Bar Associations or the General Council of Spanish Lawyers.

Duty of professional secrecy

Communications between lawyers in the context of litigation, even out of court, are confidential and may not be invoked in court and have no evidentiary value. In this way, the legislator takes a position on an issue which, until now, has been relegated to the rules of professional conduct.

However, the rule provides that some exceptions and communications may be used in court if:

•  they have been obtained in accordance with the applicable laws;
•  the contribution has been accepted by the legal professionals concerned; or
•  an express and explicit warning that they may be used in court has been indicated.

Transparency of economic consequences

The holders of the right of defence have the right to be informed in a simple and comprehensible manner by the legal professional about the general costs of the proceedings, the proceedings for fixing the professional fees and the consequences of an eventual order to pay the costs, among others.

For this reason, the law authorises professional associations to draw up and publish guidelines with the aim of assessing about the costs of the proceedings or how to claim the attorney's fees. This is a new development, since the case law of the Supreme Court did not allow until now the inclusion of fee scales, as it was considered a practice contrary to competition law.

Right to information

The person awaiting trial has the right to have access to the file, to know its content and status, and to have the acts and communications drafted in a clear language, in a simple and universally accessible manner. Furthermore, the language must be specifically adapted when the addressees of such acts and communications are minors or persons with disabilities.

Free legal aid

In the area of insolvency, free legal aid is provided for micro-companies under the terms set forth in the law and, in the criminal area, for companies declared in insolvency proceedings or in a situation of current or imminent insolvency – or, in the event of being dissolved or in the process of dissolution, it has not had any economic activity in the last financial year.

Principle of favourable interpretation

Any doubt as to the interpretation and scope of the right of defence shall be resolved in the manner most favourable to the exercise of the right. In addition, judges and courts – and administrative bodies – are recognised as having the power to extend the time limits indicated, safeguarding equality of arms between the parties.

Osborne Clarke comment

This law aims to systematise the different legal texts and jurisprudential doctrine. It also wishes to accomplish a pedagogical task and make the holders of rights aware of their guarantees in all kinds of disputes, whether before the courts of justice, public administrations or in the appropriate means of dispute resolution.