Art. 118.1 LECrim
Birth of the right of defence
Any person to whom a punishable act is attributed may exercise the right of defence from that moment, without unjustified delay: to be informed of the facts, to examine the proceedings sufficiently in advance, to appoint a lawyer, to remain silent, not to testify against themselves and not to confess guilt. The practice of summoning as a witness someone who is already a suspect, to bypass these safeguards, vitiates the statement. This catalogue is reinforced by LO 5/2024, on the Right of Defence, which enshrined the statute of the right of defence with organic rank and reordered Title V of the LECrim.
In practice
Nullity of statements taken as witness
STC 21/2018 and subsequent case law attach to this provision the nullity of statements given as a witness by someone who was already a material suspect. We always request the complete digitised case file before the first statement and place any refusal on the record in writing: that formal record is worth gold on appeal.
Art. 118.2 LECrim
Lawyer-client confidentiality
Communications between the investigated person and their lawyer are confidential, save for indications of the lawyer’s own participation in the offence. The interception of those communications has led to resounding nullities: it is a red line of the system.
In practice
Intercepted lawyer-client communications
The paradigmatic case is the annulment of interceptions between lawyer and inmate; the Supreme Court only admits the interference upon prior, specific indications against the lawyer personally. If you detect that your communications with your client appear in the case file, the request to exclude that material and all its derivatives must be made immediately, not saved for trial.
Art. 118.3 and 118.5 LECrim
Information of rights and the moment of the statement
The information of rights must be given in comprehensible and adapted language; the statement is always taken with a lawyer present, after a private interview. Waiver of counsel is only possible in minor road-safety offences, and even then it is not advisable. The standard is real comprehension, not the signature on a form: with foreign nationals we require an interpreter also for the private interview, and with vulnerable persons the effective adaptation of language. A rights record signed without understanding is challengeable, and interrogations that start without the prior interview of art. 520.6.d) are as well.
Art. 520 LECrim
Rights of the detainee (cross-reference)
For the detained person the catalogue is broader: immediate written information, notification to a family member, consular assistance, a doctor, an interpreter and a prior private interview with the lawyer also at the police station. We address it in our detention guide.
In practice
The three most profitable breaches for the defence
The unjustified delay of the lawyer beyond 3 hours, the lack of written and comprehensible information of the facts (a generic legal classification is not enough) and the absence of the prior private interview. We document the exact time of every milestone at the police station: the minutes matter.
Art. 775 LECrim
First appearance in the abbreviated procedure
In the abbreviated procedure, the first judicial appearance requires informing the investigated person of the facts in the presence of a lawyer and allowing them to declare as much as they wish. It is the act where the factual perimeter is fixed for the first time: preparing it with the case file read is essential. The statement under art. 775 delimits the object of the proceedings: facts not communicated in it cannot later sustain the accusation without a new formal imputation. That is why we request its extension when the investigation drifts towards new facts, and why we prepare that first statement as if it were the trial: it almost always is.
Art. 302 LECrim
Secrecy of the proceedings
Access to the case file may be limited through investigative secrecy ordered by a reasoned court decision, for one month, extendable, and it must be lifted at least ten days before the conclusion of the investigation. Secrecy cannot turn the entire investigation opaque: it is controlled by appeal. STC 83/2019 and ECtHR doctrine require that, once secrecy is lifted, the defence has real time to study the file before key decisions. We compute every extension: those ordered out of time or without individualised reasoning taint what was carried out under their cover.
