El derecho de defensa y su curiosa ecuación axiomática con el derecho de acción en la proyectada LO del Derecho de Defensa

Abstract

This work offers a panoramic view of the Organic Defense Law Project and its curious axiomatic equation with the right of action, since —despite proclaiming the intrinsic connection, reciprocal interdependence and the inseparable joint exercise of both types of fundamental rights (configured as «two sides of the same coin»)— the legislator ignores these three evidences and persists in maintaining at least five structural deficiencies, which in descending order, in terms of harmfulness in the actual exercise of the right of current defense, can be summarized as follows: (i) the individualized regulation —and therefore, parceled, disconnected or isolated— of the right of defense, without an essential joint legal treatment with the right of action; (ii) the absence of a thorough legal development of each and every one of the projections —widely consolidated by doctrine and jurisprudence— of both types of fundamental rights of a procedural nature (action and defense); (iii) the tepid —and already defective (due to its constant allusion to legislation, at this point, non-existent)— reference to the MASC, as well as the lack of definition of its (future) impact in the near future; (iv) the hymn to digitalization, in the presentation of the standard, without the slightest subsequent allusion to any of the axes regulated in the VII Titles of the Royal Omnibus Decree Law 6/2023, dedicated —precisely— to the complete and integral transformation digital Justice; and (v) the poor specification of the content of the right of defense in the different jurisdictional orders.