Organic Law 5/2024: The Right of Defence in Spain (2026)

Organic Law 5/2024, of 11 November, on the Right of Defence is the first Spanish statute to give a unified, systematic form to the fundamental right recognised in Article 24 of the Constitution. In force since 4 December 2024, it does not create new offences: it codifies the guarantees that make a criminal defence effective — from the confidentiality of what a client tells their lawyer to the right to be informed in plain language. As criminal defence lawyers, we explain what the law actually says and why it matters when you are under investigation.

What Organic Law 5/2024 Is — and Is Not

Until this law, the right of defence lived scattered across the Constitution, the Criminal Procedure Act and professional regulations. Organic Law 5/2024 gathers it into a single text of four chapters. It is a procedural and institutional statute: it defines rights and guarantees, it does not touch the substantive Criminal Code (CP). There are no new penalties here, and no offences are redrawn. What changes is the framework of protection around the lawyer, the client and the act of defending.

The Structure: Four Chapters

• Chapter I (Arts. 1–3) — General provisions: the purpose of the law, its scope of application and, in Article 3, the content of the right of defence, including access to the courts, proceedings without undue delay, reasoned decisions and the ability to oppose adverse claims with relevant evidence.
• Chapter II (Arts. 4–12) — The right of defence of persons: the rights of anyone who defends a legitimate interest, including the right to information (Art. 6) in clear, comprehensible terms.
• Chapter III (Arts. 13–20) — Guarantees and duties of legal assistance: the heart of the statute for practitioners, covering the professional engagement, professional secrecy and the confidentiality of communications.
• Chapter IV (Arts. 21–24) — Institutional guarantees of legal practice: the role of the Bar in safeguarding independence, ethics and the free exercise of the profession.

Who Holds the Right and What It Covers

The law makes clear that the right of defence belongs to every person — natural or legal — in their dealings with the administration of justice and the public authorities, with special intensity when their liberty or their assets are at stake. Its most important shift is one of perspective: the right of defence stops being merely a reactive right of the already-accused and becomes a right that accompanies the person at every moment and before any jurisdiction, not only in criminal proceedings but also in civil, administrative and social matters. In criminal work, several of its facets connect directly with daily practice:

• Legal assistance: the right to be assisted by a lawyer throughout the procedure, with adequate time and means to prepare the defence.
• Free choice of lawyer: the power to appoint counsel of one's confidence without interference — a principle already anchored in Article 520 LECrim, under which no authority or officer may recommend a specific lawyer to a detainee; where none is appointed, a duty lawyer is assigned.
• The right to interpretation and translation for anyone who does not understand or speak the language of the proceedings, in line with Article 520 LECrim and the European directives on procedural rights.
• An early trigger: under Article 118 LECrim, the right of defence arises from the moment the person is told the proceedings exist, has been detained or is subject to a precautionary measure — long before any formal charge.

Professional Secrecy and Confidentiality (Art. 16)

The provision that most directly shields a criminal defence is Article 16, on the guarantee of confidentiality of communications and professional secrecy. It affirms that all communications between a lawyer and their client are confidential. In practice this protects three things:

1. The inviolability of the lawyer's documents and communications, including files and correspondence relating to the defence.
2. The exemption from testifying about facts learned in the exercise of the profession — a shield the lawyer cannot be compelled to lower.
3. Confidentiality during the entry into and search of a law office, as regards clients who are unconnected to the investigation being carried out.

Communications between the lawyers of the parties to a dispute are likewise confidential and, as a rule, carry no evidentiary value, save in the cases provided for by the Criminal Procedure Act or where disclosure is authorised under professional rules. For anyone facing an investigation, this is the legal backbone of a simple piece of advice: speak freely and completely with your lawyer, because that conversation is protected.

The Professional Engagement Sheet (Art. 15)

Article 15 introduces the guarantees of the professional engagement — the written retainer often called the hoja de encargo. It may set out, in clear terms, the client's rights, the steps and foreseeable course of the proceedings, the likely legal consequences and an estimate of fees and costs. Its aim is transparency: the client knows from the outset what the defence involves and what to expect. Crucially, the engagement sheet organises the relationship; it never limits the substance or the intensity of the defence itself.

The Right to Information (Art. 6)

A defence is only effective if the person can understand it. Article 6 reinforces the right to receive information in clear, comprehensible language about one's situation, the meaning of the proceedings and the available options. For a foreign national or anyone unfamiliar with the Spanish system, this right is decisive: it underpins the duty of the lawyer to explain each step plainly, rather than leaving the client to navigate procedural jargon alone.

Impact on Criminal Defence in Practice

Although the law does not rewrite the Criminal Code, its effect on day-to-day criminal work is real. The right of defence conditions the validity of the proceedings as a whole. A breach of confidentiality, a search of a law office that oversteps its limits, or a denial of effective assistance can open the door to excluding evidence or annulling the tainted procedural act. Some practical consequences worth keeping in mind:

• Effective assistance from arrest: the guarantees dovetail with the detainee's rights during police custody and the first appearance before the judge.
• Protected communications: conversations with your lawyer, whether in the police station, at the court or in the office, fall within Article 16.
• Reasoned, timely decisions: Article 3 reinforces the right to congruent, legally founded rulings and to proceedings without undue delay.
• A minor procedural adjustment: a final provision of the law fine-tunes the treatment of detention in certain minor-offence cases within the Criminal Procedure Act (LECrim), without altering the catalogue of offences or their penalties.

The practical takeaway is straightforward: the sooner the defence is activated, the more of these guarantees can be used. A first statement made without advice, a consented search conducted without control, or an imprudent communication can compromise a procedural position in ways that are hard to reverse. Because the right of defence arises the moment the proceedings are notified — not when a charge is filed — the safest course is to speak to a lawyer before that first statement, not after it. A person caught up in an administrative sanctioning file that could turn criminal is likewise entitled to these guarantees from the outset.

If you want the wider picture of how a case is built and argued, see our guide on the stages of Spanish criminal procedure, the practical explainer on your rights at the police station, and the analysis of Organic Law 1/2025 on justice efficiency, which reshapes the procedural architecture around these guarantees.

Key Points to Remember

1. Organic Law 5/2024 codifies, for the first time, the right of defence of Article 24 of the Constitution.
2. It is procedural and institutional — it does not create offences or change penalties in the CP.
3. Article 16 protects professional secrecy and the confidentiality of lawyer-client communications.
4. Article 15 introduces the transparent professional engagement; Article 6 guarantees clear information.
5. A breach of these guarantees can affect the validity of evidence and of the proceedings.