The Criminal Chamber of the Supreme Court has agreed to reject and archive the complaint filed by the PP against the State Attorney General, Álvaro García Ortiz, as it did not see evidence of a crime in his proposal to appoint Dolores Delgado as Chamber Prosecutor in the Togada Prosecutor's Office of the Supreme Court.
In an order, notified today, the Chamber concludes that in this case the elements of the crimes of administrative prevarication or, subsidiarily, of illegal appointment that are reported in the complaint do not exist.
The complainant states that the State Attorney General made the proposal for the appointment of Dolores Delgado, deviating from the criteria of the Fiscal Council that supported the other candidate, with the purpose of “paying a personal debt of gratitude” and “seeking that the previous Attorney General of the State will rejoin the tax career in the highest category.”
In this way, according to the complaint, the appointment proposal was arbitrary and unfair and caused damage to the public function by violating the principles of equality, merit and capacity, generating discredit for the public function, in addition to harm to another. member of the Fiscal Service who, in the opinion of the complainant, had more merits to be promoted to that position.
It also stated that these facts were examined by the Contentious-Administrative Chamber of the Supreme Court, which issued a ruling in which it confirmed the existence of misuse of power and ordered the retroaction of the actions to the moment prior to the proposal made by the attorney general. of the State to fill this vacancy.
Subsequently, the PP presented a new document, on March 26, to clarify (requiring the interested party herself or the Fiscal Council) whether the lieutenant prosecutor who signed the report in which she requested the filing of the present complaint supported with his vote the appointment of Dolores Delgado as Chamber Prosecutor in the Togada Prosecutor's Office of the Supreme Court.
The Chamber concludes that “the complaint presented does not reveal any indication of criminality that justifies the opening of criminal proceedings.” In relation to the crime of administrative prevarication, it warns that the State Attorney General did not issue any resolution in the terms required in Article 404 of the Penal Code since he made a proposal and, therefore, the objective element of this legal type does not exist. .
The order recalls that in this case the attorney general “made the proposal to appoint Ms. Delgado García to fill the vacancy of Chamber Prosecutor in the Togada Prosecutor's Office of the Supreme Court, but lacked decision-making power over the appointment given that "This attribution corresponded to the Council of Ministers."
It points out that this crime “is not intended to control the legality of the actions of the Public Administration, a function that corresponds to the contentious-administrative jurisdiction, but rather to sanction the grossest cases in which the administrative action, in addition to being illegal, is unjust and arbitrary.”
Therefore, remember that this crime requires that an administrative resolution be issued that is illegal, that causes a materially unjust result and that is issued with the purpose of giving effect to the particular will of the authority or official, and with the knowledge of acting in against the law.
The order highlights, in line with the allegations made in the complaint, that “the deviation of power appreciated in the contentious-administrative court cannot be automatically transferred to the criminal sphere of the crime of prevarication.
And to achieve the typicality of article 404, - the Chamber clarifies - “mere illegality, simple contradiction with the Law, is not enough, since this would mean annulling in practice the control intervention of the contentious-administrative Courts, disproportionately expanding the scope of action of Criminal Law, which would lose its character of ultima ratio.”
Regarding the crime of illegal appointment, the court explains that we will be facing a crime of this type, defined in article 405 of the Penal Code, when the appointment is illegal because a person does not meet the requirements to serve that job, violating with this a regulation of ordinary legality.
It emphasizes that, in the present case, "Ms. Delgado García - as the complainant admits - formally met the requirements established in the current regulations (article 37.1 of the Organic Statute of the Public Prosecutor's Office) for filling the vacancy because she had a seniority of twenty years of service in the Tax Career and belonged to the second category.”
On the other hand, in relation to the nature of the allegations made by the PP in its letter of March 26 relative to the lieutenant prosecutor, the magistrates specify that "it goes beyond the jurisdiction of the Chamber to rule on hypothetical disciplinary consequences that can have no influence in the typicality trial.”
The court was made up of the president of the Chamber, Manuel Marchena (speaker), and the judges Juan Ramón Berdugo, Antonio del Moral, Susana Polo and Carmen Lamela.
