The CGPJ warns that the draft law on the right to defense does not comply with the "standard" of the Constitutional

The Permanent Commission unanimously approves the report written by the members Enrique Lucas and José María Macías

MADRID, 26 Ene. (EUROPA PRESS) -

The General Council of the Judiciary (CGPJ) has unanimously approved this Thursday the report on the draft law on the right to defense in which it warns the Government that the legal text does not comply with the "standard" of the Constitutional Court to be a organic Law. It also warns that the lack of references to the ordinary judge predetermined by law or the "silence" on the right to the presumption of innocence "constitutes a certainly important deficiency" in the text.

The Permanent Commission of the CGPJ has met this Thursday to address, among other issues, the report - of which the members Enrique Lucas and José María Macías have been speakers - in which both the normative status chosen by the pre-legislator and the pre-legislator are questioned. the lack of development of the rights and guarantees recognized in article 24 of the Spanish Constitution.

The approved report underlines the fact that the pre-legislator --in the pre-legislator statement-- admits that the text includes matters of organic law and others of ordinary law. In addition, it is criticized that the Executive justifies the range of the norm in which the regulation of the right of defense and that of the profession that guarantees it are issues "of an inseparable nature".

In this sense, the text emphasizes that in the preliminary draft "it is not noted that the proposed norm finds an adequate anchorage in the matters reserved to the organic law".

For this reason, the CGPJ recalls that the Constitutional Court has already specified that for a law to be organic, its core must affect matters reserved for the organic law, therefore, a precept of organic content is not enough for said law to be attributed. character.

"If the norm submitted to report to the constitutional doctrine to which reference has just been made is projected, it must necessarily be concluded that, without pretending to ignore the evident relationships between the regulation of the right of defense and that of 'the profession that guarantees it', the apodiptic affirmation of 'the inseparable nature of both issues' cannot be considered sufficient to fulfill the standard established by the Constitutional Court", says the report approved by the Plenary.

Within the framework of the text drafted by Lucas and Macías, it is noted that the essential content of the right to defense derives from article 17.3 of the Constitution --relative to deprivation of liberty-- and article 24 --which includes the right to an ordinary judge predetermined by law, public trial without undue delay and with all the guarantees, right not to testify and not confess guilty, and right to the presumption of innocence--.

"Surprisingly, none of these rights is the object of specific attention in the preliminary draft submitted to the report, which only mentions them," says the opinion approved by the Plenary.

In line, the report stresses that the lack of references to the ordinary judge predetermined by law "constitutes a certainly important deficiency, because whoever is or intends to be a party to a process has the right to demand that they be known by the body that has been assigned jurisdiction organic and functional in accordance with the Organic Law of the Judiciary, the procedural laws and, where appropriate, the rules of distribution".

In this sense, the ruling stresses that the same thing happens with the right to a trial with all the guarantees, with the right to the presumption of innocence -- about which the bill "remains silent" -- or with the right not to be forced to confess guilt or testify against himself.

The members have considered that the drafting of an organic law specifically dedicated to the regulation of the right of defense would "without a doubt" be a "propitious occasion" to "collect in a specific norm and in accordance with the organic rank that is postulated all the precepts arising from of the substantive constitutional content of the right of defense".

Within the framework of the report, the CGPJ values ​​positively that the right of defense is extended to the scope of the appropriate means of dispute resolution regulated in procedural or sectoral laws.

The members have also celebrated the guarantee that article 16 of the preliminary draft supposes for the freedom of expression of legal professionals because it will allow them to enjoy the right to express themselves freely --orally and in writing-- in the development of the procedure before the public powers and with the parties, taking into account the meaning of the specific expressions, the procedural context and the need for the effectiveness of the right of defense.