The Supreme Court has once again questioned the appointment policy of the State Attorney General, Álvaro García Ortiz. This Tuesday, the Contentious-Administrative Chamber annulled the appointment of Dolores Delgado as prosecutor of the Human Rights and Democratic Memory Chamber, a position reserved for prosecutors of the highest category and whose appointment corresponds to the Government at the proposal of the head of the public ministry. The decision has been adopted by a majority (four votes to one) of the court, which has agreed to go back on the proceedings so that the Fiscal Council can rule on whether Delgado meets the requirements for the position or if, as the conservative prosecutors’ associations maintain, he should declare his incompatibility because his partner, former judge Baltasar Garzón, presides over a foundation that is dedicated to human rights and historical memory, the same issues that Delgado must address in that position.
It is the second time that the Supreme Court annuls a discretionary appointment of Delgado by his successor as head of the Attorney General’s Office: last November, the same court revoked his promotion to court prosecutor (the highest category of the career) on the grounds that It was an exercise in “diversion of power.” That decision did not then have practical consequences because Delgado was no longer a Military court prosecutor, but rather a Memory court prosecutor, a newly created position for which she was appointed in June 2023. This is the appointment that has now been annulled by the high court.
The judges, who made the decision at a meeting held this Tuesday, have only announced for now the result of their deliberation, but the sentence with the specific arguments on which it is based will not be known for a few days. The speakers will be judges Pablo Lucas and Antonio Fonseca-Herrero. Both have voted in favor of annulling the appointment, a position also supported by Luis Díez-Picazo and José Luis Requero. Judge Pilar Teso is the only one who has been against revoking the designation.
In this Tuesday’s deliberation, the Supreme Court upheld the three appeals presented against Delgado’s appointment, which already sparked a tough confrontation between the attorney general and the two conservative prosecutors’ associations. Both went so far as to ask for García Ortiz’s resignation and ended up presenting two of the three challenges that the court has now resolved. The third was recorded by prosecutor Luis Ibañez, one of those who aspired to the position that was awarded to Delgado.
The Prosecutor’s Office of the Memory Room is a position appointed by the Government at the proposal of the Attorney General, who has the power to propose whomever he considers. You must first listen to the Fiscal Council, but the opinion of this body is not binding. However, the conservative associations and prosecutor Ibáñez challenged the election of García Ortiz because he refused to examine whether there was a conflict of interest in Delgado for being the partner of former judge Garzón.
The court does not rule on whether Delgado was suitable for the position, but annuls the royal decree of the Government by which she was appointed and forces García Ortiz to consult the Fiscal Council on whether her successor meets the requirements for the position. Specifically, the judges urge that this body rule on whether or not the prohibition provided for in article 58.1 of the Organic Statute of the Public Prosecutor’s Office applies, which establishes that prosecutors will not be able to exercise their positions “in the Prosecutor’s Offices that they include within their territorial constituency a population in which their spouse or person to whom they are stably linked by a similar emotional relationship carries out an industrial or commercial activity that hinders the impartial performance of their function, in the opinion of the Fiscal Council.
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This article is the one invoked by seven of the 12 members of the Fiscal Council – the six from the majority Association of Prosecutors (AF), with a conservative tendency, and the member of the Independent Professional Association of Prosecutors (APIF) – to oppose the appointment. They demanded that the attorney general examine whether she was suitable to occupy that position before appointing Delgado, but García Ortiz rejected it because, in his opinion, that article of the Statute was not applicable to Delgado’s case and the Tax Inspection had made , as occurs in all appointments, a prior examination of all candidates to analyze whether they meet the legal requirements and had established that they do. That debate that the attorney general stopped is the one that the Supreme Court now imposes. Judicial sources explain that this decision has been made because there are “indications” that there may be an incompatibility and the Fiscal Council must rule.
The appointment decision thus remains in the hands of the Fiscal Council, since the decisions of this body regarding the incompatibilities regime are binding. Sources from the Prosecutor’s Office indicate that they will wait to receive the Supreme Court ruling to decide the next steps. In any case, execution corresponds to the Council of Ministers, which is the one that officially appointed Delgado.
In an interview on the channel 24 hoursGarcía Ortiz has admitted that the high court’s ruling did not surprise him. “The line of demands of the Third Chamber regarding the appointments of the attorney general is very different from the jurisprudence that it maintained until now,” said the attorney general, who assures that he continues to consider that the incompatibility denounced by conservative prosecutors “does not exist.” . “I understand that the appointments are in accordance with the law, but we have been corrected by the Third Chamber and we have to follow its criteria. The rulings are executed, they are assumed and we will have to see what the sentence says,” García Ortiz added. “Dolores Delgado is the best possible prosecutor to embody the Democratic Memory Chamber Prosecutor’s Office,” García Ortiz assured.
Political evaluations
The first vice president, María Jesús Montero, has shown herself to be cautious and has not considered the decision of the Supreme Court to annul the appointment of Dolores Delgado as prosecutor of Democratic Memory. “With respect to judicial procedures, the Attorney General’s Office is autonomous and, therefore, it is up to that institution to have to analyze the sentence and see what consequences it has,” Montero stated in the corridors of the Senate. The number two of the Government has also been respectful of the admission for processing by the Superior Court of Justice of Madrid of the complaint filed by Alberto González Amador, boyfriend of the president of the Community of Madrid, Isabel Díaz Ayuso, against the Prosecutor’s Office for the dissemination of a press release that denied the distorted information that the PP political team was providing about the public ministry after the opening of the procedure against his partner, currently accused of tax fraud and document falsification. “I imagine that it must have been as a result of some appeal that was filed against the resolution of the Prosecutor’s Office and, therefore, now we must let the courts study the issue and say what is appropriate. I have nothing to value, [mi] respect for justice,” he stated. Inform Jose Marcos.
For the PP, the decision of the Supreme Court to annul the appointment of Dolores Delgado as prosecutor of the Human Rights and Democratic Memory Chamber reveals “a clientelistic system of appointments practiced by García Ortiz and that Sánchez has endorsed,” according to PP sources. . The same sources consider that the State Attorney General has received “another blow due to his sectarianism” and that he has acted “as if he were just another minister of the Executive.” “García Ortiz must resign or be dismissed now after this new ruling by Justice against his arbitrary decisions,” they stated. Furthermore, they have added that “if the State Attorney General’s Office depends on Pedro Sánchez, as he himself said, the unprecedented politicization that we are seeing in Justice is his responsibility.”
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