1. On 4 December last, Law 5/2024, of 11 November, on the Right of Defence (hereinafter, the "LO 5/2024") came into force, with no major novelty other than the development of this right with the guarantees inherent to the organic law, beyond the deontological provisions.
2. Indeed, LO 5/2024 regulates various aspects of the right to defence and the practice of law , highlighting the following main points:
a) Right to defence: Includes legal aid, access to courts, proceedings without undue delay, reasoned decisions, public access to proceedings and use of electronic means (art. 3).
b) Cognitive accessibility: Guarantee for persons with disabilities in the exercise of their defence (art. 4).
c) Free choice and resignation: The right to choose, resign and replace the legal professional (Art. 5).
d) Right to information: This includes the right of the citizen to be informed about the possible consequences of an award of costs (Art. 6.2.e), especially bearing in mind the risk of limiting such awards in some bodies of the contentious-administrative jurisdiction. The Bar Associations can publish objective and transparent guidelines for calculating reasonable fees, useful only for the assessment of costs or the settlement of accounts.
e) Quality and plain language: Guarantees of quality legal aid and use of accessible language in proceedings (arts. 8 and 9).
f) Relationship with courts: Rights related to judicial authorities (to identify judicial authorities, the Public Prosecutor's Office or officials in the service of the Administration of Justice, and to demand accountability for judicial error or abnormal functioning of the Administration of Justice), data protection, official languages, use of electronic media and procedural punctuality, and to have their personal appearance before a body of the Administration of Justice be the least burdensome possible, and to be adequately protected when testifying as a witness or collaborating in any other way with the Administration of Justice (art. 10).
g) Interpreters and translators: Ensuring access to language services (Art. 11).
h) Protection in AI processes: Right to know the artificial intelligence criteria used in legal services (art. 12).
i) Professional guarantees: Freedom and independence of lawyers, conciliation, confidentiality and freedom of expression (arts. 13-18).
j) Professional duties: Compliance with the Constitution, procedural good faith and codes of ethics (arts. 19 and 20).
k) Institutional guarantees: Protection of the bar associations, interpretation of the code of ethics and regional sanctions in cases of serious impact (arts. 21-24).
3. Beyond the above, LO 5/2024 deserves special consideration in terms of the possibilities it may open up for individuals and legal entities involved in legal disputes with public administrations. Thus:
a) The LO 5/2024 includes, within the content of the right to defence, advice prior to the possible initiation of these proceedings (art. 3). It is worth asking about the effects of enshrining the right for individuals to have legal assistance or legal advice for pre-litigation proceedings in administrative proceedings through a kind of extended court-appointed legal aid, or interpreting the inclusion of the right to compensation for costs incurred in the defence of their rights in administrative proceedings.
b) Extension of the time limits for administrative hearings. Article 3.6 of the LO 5/2024 recognises that judges, courts and administrative bodies may extend the time limits for any hearing procedure.
No reference is included as to what should be the maximum time for which these time limits may be extended. It only refers to the fact that such extensions must be adopted "with reasons" and "safeguarding equality of arms between the parties".
The question arises as to whether the door is being left open for administrative bodies to grant an extension for a period longer than that provided for in Article 32 of Law 39/2015, of 1 October, on the Common Administrative Procedure of Public Administrations. That is to say, more than half of them, and even in the (not infrequent) cases of failure to resolve the request before the end of the deadline. Obviously, the extension of time limits could also be considered even in administrative appeals, when the specific circumstances of a particular case, together with the doctrine of favouritism, make this advisable, although always within the limit of the prohibition of privileges.
Such an extension would be desirable in certain proceedings where, again, technical complexity makes it advisable to allow the defendant more time in order to effectively allow him or her the right to be heard and thus the right of defence.