Law 87/2010, from 18 November, qualified for the modification of different texts in the field of criminal law in relation to the legal assistance since the General Council at its session of 18 November 2010 has approved the following: law 87/2010, from 18 November, qualified for the modification of different texts in the field of criminal law in relation to the legal assistance preamble in article 10.1 of the Constitution guarantees the right to a due process and to a just and equitable trial.
Likewise, the article 3.4 of the Constitution provides that the treaties and institutional agreements are included in the legal system on the basis of its publication and may not be modified or denied by law.
It is in this constitutional framework which Andorra signed and ratified the Convention for the safeguarding of human rights and fundamental freedoms of the Council of Europe, which, consequently, is part of the Andorran legal system, even though, as it has declared the Constitutional Court in its judgement of 25 May 2007, the agreement "... not is a constitutional rule".
In the last two years, the European Court of human rights has spoken repeatedly in resolutions of 27 November 2008, October 13, 2009, 19 November 2009 and December 8, 2009, among others-in the sense of considering that the condemnation of a processed on the basis of confessions obtained by the police in the absence of a lawyer involves a violation of paragraph 3 of article 6 of the Convention for the safeguarding of the rights human and fundamental freedoms.
The same European Court has judged (sentence Dayanan c/Turkey of 13 October 2009) that the fact that a detainee may not have legal assistance from the beginning of detention involves a violation of the right to a fair trial and equitable.
The European Court has stated that "the fairness of the procedure requires that the accused can obtain all the wide range of interventions that are specific to tips..." for lawyers from the first minute of the police interrogation.
At the same time, the European Court noted, on December 8, 2009, that the waiver of the right to receive legal assistance must be formulated unequivocally to the extent that the inability to receive the assistance of a lawyer from the beginning of the police questioning a irreparable damage to the rights of the defence.
The Constitutional Court, in its judgment of 7 September 2010 (due 2010-1, 2, 3 and 4-PI), has judged some incidental actions of unconstitutionality actions brought by the Court of Corts on March 31, 2010 that raised the question of whether the articles 24 and 25.1 of the criminal procedure code, which restricted the legal assistance on the basis of the first twenty-four hours of the arrest , were in conformity to the Constitution and the Convention for the safeguarding of human rights and fundamental freedoms.
The decision of the Constitutional Court has been declared contrary to the Constitution-and, therefore, null-the clauses of paragraph d) of article 24 and article 25.1 of the code of criminal procedure established a 24-hour period during which the detainee could be interrogated without legal assistance.
In accordance with article 58.2 of the qualified law of the Constitutional Court judgement of 7 September 2010 has had effects from the date of its publication in the official bulletin of the Principality of Andorra.
As a result, the police, in collaboration with the Association of lawyers and the Prosecutor, has already established the appropriate procedures to make it possible from the first day of application of the judgment, the access of detainees to legal assistance from the beginning of the police interrogation.
This law is geared, as well, to modify the wording of the provisions of the code of criminal procedure declared null by the Constitutional Court and to allow immediate access as a result of the person arrested to a lawyer, if they so request.
It is considered, as well, along the lines drawn by the European Court of Human Rights, which is essential to the rights of the defence that a detainee has access to a lawyer during the initial phase of the interrogation of the police.
To ensure respect for the constitutional right of a team trial, the discussion of the matter, the Organization of the defence, the preparation of interrogation, supporting the accused underdog and the control of the conditions of his detention are fundamental elements of the defence that the lawyer must be able to exercise freely.
The law stipulates, in its article 3, the modification of article 425 of the penal code in order to reinforce the confidentiality of police actions in progress and avoid that may jeopardize or harm research that keep in relation to other alleged involved that still have not been arrested.
This provision is aimed, as well, to reconcile two objectives: the respect of the rights of the defence and the protection of public order, and the search by the police service of those who violate the law, as is the one and the other are an integral part of the constitutional principles.
The public order and respect for the law have to be preserved at the same time respect for the citizen and their right to defend against a charge.
On the other hand, the absence of the lawyer from the first interrogation of a detainee could damage indirectly and unfairly the image of police service in the public opinion.
To give the detainee the possibility immediately to defend their rights through the presence, since the beginning of the questioning, a lawyer, this law is addressed accordingly to ensure the legal security of the criminal proceedings and to enable the police to exercise their constitutional mission in the best conditions.
In this sense, the law modifies the article 15 of the law of jurisdiction of minors currently in force, in order to guarantee the assistance of a lawyer immediately to the minor and his legal represented.
Finally, the first final provision of the Law entrusts the Government the modification of the regulation of legal assistance with turn to Trade in front of the Judicial authority and the Police Service from 1 March 2000 to adapt it to the new legal provisions.
The object of the law
The present Law has for object the modification of articles 24 and 25 of the qualified law on modification of the code of criminal procedure of 10 December 1998; Amendment of section 1 of article 425 of the law 9/2005 of 21 February amending the criminal code; and article 15 of the law of the jurisdiction of lower partial modification of the penal code and the qualified law on Justice of 22 April 1999.
Article 2 amendment to article 25 of the code of criminal procedure modifies the article 24 of the law for the modification of the code of criminal procedure dated 10 December 1998, which is worded as follows: "Article 24 Any suspicious person who pay statement to the Police Service should be informed, so that they understand, and immediately , the facts that you were charged and the reasons that motivate their possible deprivation of liberty, as well as the rights you have, especially the following: a) the right not to testify.
b) the right not to testify against herself and not to confess guilt.
c) right to read her the statement and make the necessary modifications or whatever the explanations.
d) the right to appoint a lawyer and to request their presence from their arrest, to attend the statements and intervene in all recognition of identity of which it is the object from that time. If the detainee or prisoner does not designate a lawyer, unless renounce acts ex officio the Attorney on duty.
e) right to put in knowledge of a family member or a person designated by him, the fact of his arrest and the place where it is located.
f) the right to be assisted free of charge by an interpreter in the case of a foreigner who does not understand or does not speak the national language or one of the languages of the neighbouring States.
g) right to be recognized by the medical examiner and, failing that, by a doctor.
In the statement given to the Police will be the start time and completion of the Declaration. The interrogation cannot last for more than four consecutive hours, and between one and another there has to be a time of rest for at least 1 hour.
The detainee has the right to enjoy an uninterrupted rest of at least 8 hours for every 24 hours of arrest.
In the event that it is necessary to perform a breath test you must notify the person concerned has the right to request a blood test if you do not agree with the results obtained by other procedures. ".
Article 3. Amendment of article 25 of the code of criminal procedure modifies the article 25 of the code of criminal procedure, which is worded as follows: "Article 25 1. To guarantee the right to the assistance of a lawyer referred to in section d) of the previous article, the Police must inform the arrested at the time of his arrest that can designate a lawyer or ask that you designate ex officio to attend right away. Officials under the custody of which is the detainee or prisoner should refrain from make recommendation on the choice of the lawyer. The appointment, made or requested counsel ex officio, the police must be notified afterwards. And must inform you of the nature of the infringement the object of police survey. The lawyer, from the arrest, you can review the proceedings engaged, meet privately with the detainee during a period of thirty minutes and attend all interrogations, asking the police officer who Debriefs the detainee on the aspects that request and acknowledge in the same statement any demonstration you want to broadcast. If you have the call, the lawyer fails within a period of forty-five minutes, the claims may begin without their presence.
However, in case of emergency and judicial authorisation duly motivated, the claims may begin before the said deadline, although the Attorney called no is present.
2. On the subject of terrorism, the competent Judge, at the request of the Police Service, may be considered by grounded decision that the lawyer designated by the detainee may cause prejudice to the ongoing investigations. In this case, you should apply immediately to the Dean of the College of lawyers, the designation of another lawyer who takes attendance.
3. The statements made in violation of the requirements of the preceding paragraphs shall be null and of no effect.
4. The Association of Andorra will organize a stay, in order to cope, at all times, the obligations arising from the above precepts. ".
Amendment of the article of the penal code 425.1 modifies section 1 of article 425 of the penal code which is worded as follows: "Article 425 Revelation of secrecy 1. The lawyer or the solicitor that reveal secret by the judicial authority declared procedural actions should be punished with penalty of arrest and disqualification for the exercise of the trade or by up to four years.
The same penalty will be punished the lawyer who revealed, during the term of police detention of its law enforcement actions, which has defended known by reason of his attendance. ".
Article 5 amendment of article 15 of the law of the jurisdiction of lower partial modification of the penal code and the qualified law on Justice of 22 April 1999 modifies the article 15 of the law of the jurisdiction of lower partial modification of the penal code and the qualified law on Justice of 22 April 1999 , which is worded as follows: "Article 15 in order to guarantee the right to the assistance of a lawyer referred to in the previous article, the Police must inform immediately to the minor and his legal representative may designate a lawyer or ask that you designate ex officio. The lawyer who reported the arrest has to go to the Police Service as soon as possible and, in any case, within forty-five minutes to count the time of the communication. In case of absence of a lawyer, cannot carry out statements or other actions in which the presence of the minor is necessary. Except for this end, the intervention of the Attorney in front of the Police Service is governed by the provisions of articles 24 and 25 of the code of criminal procedure. "
First final provision is entrusted to the Government the modification of the regulation of legal assistance with turn to Trade in front of the Judicial authority and the Police Service from 1 March 2000 to adapt it to the new legal provisions.
Second final provision
This law shall enter into force the day after its publication in the official bulletin of the Principality of Andorra.
Casa de la Vall, Josep Dallerès Codina on November 18, 2010 Syndic General Us the co-princes the sancionem and promulguem and let's get the publication in the official bulletin of the Principality of Andorra.
Joan Enric Vives Sicília Nicolas Sarkozy President of the French Republic and the Bishop of Urgell Co-prince of Andorra Co-prince of Andorra