Article 24 of the Spanish Constitution states that all persons have the right to an effective protection of the judges and courts in the exercise of their rights and interests, and, in no case, may they go undefended. All persons have the right of access to the ordinary judge predetermined by law; to the defence and assistance of a lawyer: to be informed of the charges brought against them; to a public trial; to the use of the evidence pertinent to their defence; to avoid giving self-incriminating statements; to not declare themselves guilty and to the presumption of innocence.

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Article 24 of the Spanish Constitution states that all persons have the right to an effective protection of the judges and courts in the exercise of their rights and interests, and, in no case, may they go undefended. All persons have the right of access to the ordinary judge predetermined by law; to the defence and assistance of a lawyer: to be informed of the charges brought against them; to a public trial; to the use of the evidence pertinent to their defence; to avoid giving self-incriminating statements; to not declare themselves guilty and to the presumption of innocence.

The guarantee of the fundamental rights and freedoms of individuals is entrusted first and foremost to the ordinary judges and courts, through the routes and remedies offered by the procedural laws, but provision is made in the Constitution for a specific and ultimate system for the protection of rights -the "recurso de amparo constitucional".

The Constitutional Court is also set up as the ultimate guarantor of the fundamental rights and freedoms recognised in the Constitution. The recurso de amparo" is open to all natural and legal person who invoke a legitimate interest. This procedure is free is charge.

Very important for this matter is also the Law on the Legal Protection of Fundamental Rights (Law 62/78, 26 December), which makes provision for a shortened form of procedure for both criminal and civil jurisdiction and administrative proceeding, in the case of a violation of the rights contained in this law.

Article 20 of the Law 8/2000 on migration covers the right to effective judicial protection: it stipulates that aliens shall have the right to free legal assistance under the same conditions as Spaniards, regardless of the jurisdiction. It allows legally established organisations in Spain, whose purpose is to safeguard the rights of immigrants, to intervene as interested parties in administrative proceedings.

Article 22 (1) of the Law 8/2000 covers the right to legal aid: “Aliens who reside in Spain and lack sufficient financial resources according to the criteria established by the law on free legal assistance have the right to free legal assistance in administrative or judicial proceedings that they can access against the refusal of entry, against a decision of expulsion from Spanish territory and in any other proceedings relating to asylum. Furthermore, they have the right to the assistance of an interpreter if they do not understand or speak the official language which is spoken.” Article 22  of the same Law also guarantees the same right to free legal assistance in all other proceedings for foreigners resident in Spain as for Spanish citizens.

Several articles of of the Law 5/1984 of 26 March 1984, regulating the right of asylum and refugee Status, as amended by Act No. 9/1994, are about legal assistance for asylum seekers. Article 5 (4) establishes that “the asylum applicant has the right to assistance by a lawyer” and allows UNHCR and refugee-assisting NGOs to be involved in the asylum procedure: “Asylum applications shall be communicated to UNHCR permitting UNHCR to be informed about the state of the file and to be present at the applicant’s hearing and present its written or verbal opinions (…) before the Ministry of Interior; in the same way, organisations legally recognised who aim to advise and assist refugees shall be permitted to present written opinions before the Ministry of Interior.”

The Organic Law 1/1979, 26 September, on penitentiary system, in Article 3 stipulates that the penitentiary authorities must respect the human person and that prisoners must not be subjected to discrimination on the grounds of race or religion.

Analysis provided by: Antonella C. Attardo PhD (History of Law), Italy.

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