The case of the possible harassment of a Toledo prosecutor who was fined 1,500 euros for delays in her workeven though he was sick leave due to a risky pregnancycan serve to review the constitutionality of the rules that regulate who is competent to impose disciplinary punishments on prosecutors and which body has the power to review these decisions.
This is what the Contentious-Administrative Chamber of the Supreme Court understands, which in an order dated this Thursday, January 11, gives ten days to the Prosecutor’s Office and the defense of this official to rule on the relevance of raising a unconstitutionality issue regarding a specific article of the Organic Statute of the Public Prosecutor’s Office that regulates these issues.
In this way, the litigation brought before the high court by the prosecutor on leave and lawyer Juan Antonio Frago could serve to clarify the system of imposition of measures, those of disciplinary sanctions against prosecutors, which have been adopted in a very exceptional way since the beginning of democracy. Barely more than four investigations of this type are opened a year, and on very rare occasions they end in a sanction.
In this specific case, it is about clarifying whether the chief prosecutor of Toledo, Antonio Huélamo, engaged in harassing behavior towards a subordinate by promoting a file for delays in his work that ended in a financial penalty. The prosecutor refutes the fine, ensuring that it was nothing more than the consequence of his complaints after his boss asked him to continue clearing matters from home despite being on sick leave for a risky pregnancy.
Doubt of unconstitutionality
The doubt is centered by the Supreme Court in a section of article 67 of the Fiscal Statute that says that the resolutions of the State Attorney General, as is the case with sanctions, “will be appealable before the Minister of Justice.” The point is that a recent reform of the contentious-administrative jurisdiction law, implemented in 2022, attributes to the Supreme Court the jurisdiction to hear the acts of the attorney general, while another paragraph of this law says that The National Court is competent to review decisions of the ministers that involve rectification.
“Although the resolution appealed here did not modify the resolution of the State Attorney General, it did give rise to an appeal for its challenge before the National Court,” says the Supreme Court, which is why it finds that the rule of the Tax Statute may imply a violation of the right to effective judicial protection.
During the hearing on this matter, held on October 11 at the high court, The questioned chief prosecutor denied having asked the prosecutor to work from home during his medical leave. According to her version, the prosecutor warned him the day before that she would go on leave due to a high-risk pregnancy and he limited himself to telling her that “as far as possible,” she should clear any pending matters beforehand. .
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“I wasn’t on sick leave that day. It came into effect the next day. If she had a few things left, she could have attended to them that afternoon without a problem,” he stated before the Court. He also stressed that that meeting with the prosecutor “was not a meeting.” “She showed up without knowing if I was going to be in the office or “No,” he said, while emphasizing that it was “a surprise visit” that led to “an informal conversation.”
As part of the hearing, the court agreed to play a recording provided by the defense that records the meeting between the two in June 2021; with the intention that the provincial chief prosecutor would recognize himself or not in said audio. Hélamo neither claimed nor denied being the man in the recording. “I’m not in a position to know if it’s my voice or not.. I don’t know how, or when, or where, or who, or where the recording came from. For me it is impossible to know if it is my voice or not,” he said. At the end of the hearing and in statements to the press, State Attorney Francisco Espinosa described the recording provided by the defense as “pirated.”