The Supreme Court guidelines that García Ortiz overstepped his bounds by appointing Delgado, stopping the Fiscal Council from ruling on his relationship with Garzán | EUROtoday

New setback Supreme Court to the state lawyer basiclvaro García Ortiz. The Contentious-Administrative Chamber has annulled the appointment of the prosecutor of the Human Rights and Democratic Memory Chamber of Dolores Delgado with a transparent message to the lawyer basic: it was not competent to resolve on behalf of a collegiate physique, such because the Fiscal Council, on the potential battle of curiosity between former Minister Delgado and the skilled exercise of her partner, the previous choose. Baltasar Garzn.

The High Court notified this Tuesday the sentence the place for the second time it annuls a promotion of Delgado to the very best class of the Tax Career. In the decision – the primary of the three estimatory rulings agreed upon by the Third Chamber, the magistrates clarify that “since the Fiscal Council is a collegiate body, it is up to the person who presides over it to establish the agenda and direct its deliberation”, in reference to Álvaro Garcia Ortiz. “However”, -continues the Chamber- “the exercise of these functions does not include outright rejecting requests such as those in the present case, which are not manifestly unfounded, nor taking, equally by itself, decisions that correspond, not to its president, but to the full Fiscal Council”.

In the ruling, the High Court, by a big majority (the ruling has a dissenting vote from the progressive Justice of the Peace Pilar Teso), explains that there are “indications” to assume that Dolores “could be affected” by the prohibition contained within the Organic Statute of the Public Prosecutor's Office on the causes of incompatibility or prohibitions to which prosecutors are topic.

“Indications” of incompatibility

During the Plenary of the Fiscal Council which occurred in June 2023, nearly all of the members – each the six of the Association of Prosecutors because the advisor of the Professional and Independent Association of Prosecutors-They argued that there was a transparent battle of curiosity in Dolores Delgado and, subsequently, causes of incompatibility for the place resulting from being Garzn's romantic companion. They argued that it was “not at all risky to point out that many of the complaints that reach the new Prosecutor's Office that bears that same name under the provisions of the Democratic Memory Law will be signed by the Baltasar Garzn Foundation, FIGBAR”.

However, this request was flatly rejected by the lawyer basic, who thus robbed this physique of the potential of analyzing this level. Fiscal sources clarify that García Ortiz selected to not let the Fiscal Council rule on the potential incompatibility of Delgado for the place as a result of that may have delayed the appointment at a time when the final elections of 23-J had been referred to as. That is to say, if she accepted that the physique dominated on a battle of curiosity between Delgado and former choose Garzn, she ran the clear danger that her buddy and predecessor wouldn’t be appointed to this place so desired all through her skilled profession with a Government. of one other political signal (if the Popular Party had managed to control as most polls indicated at the moment).

The Chamber now remembers that “Delgado is united in a relationship comparable to the marital one with Baltasar Garzán” and that the previous choose “is at the head of a legal office and a foundation” specialised in issues of Human Rights; that “said activity, insofar as it involves the provision of professional services, can be considered commercial in nature”, the territorial district of the Prosecutor's Office involved being all of Spain and the actions of the workplace and the inspiration, though they prolong past, embody all of Spain. . Furthermore, the Supreme Court emphasizes that “the specialization of the office and the foundation significantly coincides with the subject matter of the Prosecutor's Office for which Delgado has been appointed: human rights and the defense of the victims of their violation, an extreme that does not has been disputed by the respondents”.

Furthermore, the High Court explains that article 58 of the Organic Statute of the Public Prosecutor's Office signifies that “an objective situation of the characteristics of the one described may be sufficient to apply it if it were likely to pose an obstacle to the impartiality of the prosecutor against whom the Law prevents.” “That is to say, it is not necessary that a certain conflict of interest exists, but rather that its existence is possible due to the budget offered by the family relationship and the nature of the commercial activity.”

“Consequently, there was a violation of article 58.1 of the EOMF and its article 14.4 e) to the extent that the power attributed to it by the previous one must be considered included in it, as well as article 3 h) of the Constitutional Regulations. and Functioning of the Fiscal Council, approved by Royal Decree 437/1983, of February 9, which establishes the powers of its plenary session. This defect is substantial and invalidates the proposal of the State Attorney General and, therefore, the subsequent royal decree. “, reads the ruling.

The Chamber imposes the retroaction of the actions in order that the Fiscal Council, “without delay”, workouts the competence granted to it by article 58.1 of the Organic Statute of the Public Prosecutor's Office. “This decision must not only be made quickly, but also with all the guarantees and, especially, with the necessary motivation, given that it affects Delgado's fundamental right to be promoted in the Tax Career under conditions of equality and with the requirements established by law,” orders the Supreme Court.

In this ruling, the Chamber has partially upheld the enchantment filed by the APIF, whose protection has been carried out by the regulation agency GC Legal. Likewise, the Supreme Court is pending to inform the sentences the place it would estimate the appeals filed by the AF and the prosecutor. Luis Ibez, candidate for the Democratic Memory Square.