ABOUT THE LAW DEFENSE: ISSUES GENERAL

Abstract

Th e constitutional recognition of the right to counsel, within the fundamental rights guarants the universal access to justice. Th ey have all the legal means to support their procedural position. Th us, the contradiction is ensured, and this is an appropriate mean for an eff ective defence. Th is rights is compounded by a “proteic” content, and it recognizes some background action and is manifested through its exercise in multiple ways, giving rise to a bundle of rights which constitute the fundamental right to defence. Th e right of defence in the criminal process has special significance, not least because unlike in other branches of law here it is exercised in the face of charges normally made by a public body, the Public Prosecutor’s Offi ce, which asks for the imposition of a punishment. Th is marks an important diff erence with respect to the defence of rights or interests in the processes of other courts. The application of a criterion of defencelessness that goes beyond the real and eff ective violation of the right to defence is upheld, arguing the grounds that the fundamental right has been infringed when there could have been defencelessness, without going into the eff ects of the infringement. Such an a posteriori analysis, and referred to results, distorts the sense of this fundamental right. Moreover, this authorizes all the infringements of the right of defence, without no chance of achieving its purifi cation, which have not finally damaged immediately the legal status of the subject.