The General Council of the Judiciary (CGPJ) has rejected the continuity of Álvaro García Ortiz as Attorney General of the State (FGE) considering that he has made a “spurious” use of his powers, highlighting his policy of discretionary appointments and the harsh ruling of the Supreme Court (TS) on Dolores Delgado; that he has imposed erroneous criteria, as with the law of ‘only yes means yes’; and his “inactivity” to defend the prosecutors of the ‘procés’ from the ‘lawfare’ accusations.
This is stated in a 12-page report where the CGPJ justifies that, in the case of García Ortiz, in addition to assessing the two legal requirements – being a jurist of recognized prestige with more than 15 years of professional experience -, which confirms that it complies, the “opportunity criteria” must be taken into account. “The fact that the proposed FGE position has already been held authorizes us, in fact obliges us, to take into consideration his performance in the previous phase,” he says.
The report details that one of the reasons for rejecting García Ortiz’s candidacy is his “poor management of the FGE.” Specifically, due to its policy of discretionary appointments, considering that “it has not acted with the necessary suitability that the exercise of such high powers confers”, as “revealed by the recent ruling of the Third Chamber of the TS.”
It alludes to the decision of the Contentious-Administrative Chamber of the TS to annul Delgado’s promotion to the highest category as court prosecutor, specifically of the Military Chamber of the Supreme Court, by concluding that García Ortiz incurred a “deviation of power” for promoting her predecessor for having served as head of the Public Ministry.
The CGPJ reproaches the attorney general for “having no qualms about appointing as court prosecutor a person with whom there was, at least, a tacit agreement of ‘do ut des'”, “as a way of gratitude” and “in correspondence with an alleged institutional duty, despite recognizing that legally said appointment was not legally appropriate”.
Furthermore, he points out that, if the attorney general acted this way in the prominent case of Delgado, “it is worth thinking about the use of this diversion of power in appointments of equal or, even worse, lower categories, but which, due to their number, may be of most relevant significance”.
“It does not seem that anyone who makes such spurious use of the important powers conferred on the FGE can be considered suitable,” concludes the governing body of the judges.
“Laziness” when it comes to complying
The CGPJ also refers to the appointment of Eduardo Esteban Rincón as the coordinating prosecutor of the Juvenile Unit, which was carried out at the proposal of Delgado when he was attorney general, but which was annulled for the second time by the Supreme Court last July, already with García Ortiz at the head of the Public Ministry.
In this sense, he accuses him of having “delayed the execution of the final sentence” for “more than four months.” “And this without taking into account that, in its overall calculation, it has been allowed that for more than three and a half years he has been carrying out the important position of courtroom prosecutor who has twice been considered unsuitable,” adds the CGPJ.
Regarding this, it is worth remembering that Esteban Rincón was dismissed last Wednesday by order of the Government, since he is formally the one who appoints and dismisses the senior officials of the fiscal leadership, although he does so at the proposal of the attorney general.
Along the same lines, the CGPJ attributes García Ortiz to “laziness” when it comes to complying with the Supreme Court’s ruling on Delgado. In the opinion of the Council, since his promotion to chamber prosecutor is annulled, he cannot continue to be chamber prosecutor for Democratic Memory and Human Rights, a position that he currently holds and in which he remains after the ruling. “And yet, nothing is known to have been done by the proposed candidate,” he emphasizes.
The rise of UPF prosecutors
Regarding the policy of discretionary appointments, the CGPJ also maintains that García Ortiz’s actions “suffer, at the very least, from a lack of transparency and coherence”, reproaching him in particular for having been promoted mainly to members of the Progressive Union of Prosecutors (UPF), to which both he and Delgado belonged, and which has obtained 22 of the 33 positions awarded in this year that he has been FGE.
The Council highlights that the UPF “has 200 associates out of the 2,700 total in the fiscal career”, so “of the 7.4% of the career, 66.6% of the discretionary positions have been appointed, with the added that 14 of them have been promoted in a higher category”.
Faced with this, only “5 have been from the Association of Prosecutors, which has 630 members (that is, of 23% of the career, 15% of the discretionary positions have been appointed) and 4 from non-members, who are the highest percentage of the race (970), which means having designated only 12% of those who represent 40%”.
“To conclude from these magnitudes that the members of a specific minority association have that degree of excellence and that those who do not belong to any association deserve ostracism from accessing the judicial leadership requires a very reinforced justification that has never been done,” says the CGPJ.
“Absolute inactivity”
Another of the reasons that the CGPJ gives for opposing García Ortiz is his “absolute inactivity” in the face of the ‘lawfare’ accusations against the ‘procés’ prosecutors and his request for protection.
The Council denounces that “in recent months the Prosecutor’s Office has been subjected to the most outrageous public ridicule that could be imagined and unknown in our entire judicial history, mendacious attacks have been leveled at members of the prosecutor’s career who have intervened in the processes referring to, euphemistically called, ‘Catalan conflict'”.
“And not only by representatives of the supposed public opinion but, above all, by institutions and public officials, removing from the legal sphere what should never have left that sphere: when, by every argument, the actions of the Prosecutor’s Office were not decisive nor did he deserve any reproach from the courts and tribunals that heard the respective processes,” he adds.
For the CGPJ, “the corollary of this hostile action has found its maximum expression in the reproach, as vulgar as it is self-interested, of having acted based on ‘lawfare’.”
“Given this situation and the FGE being the only one that can and should react to such an unworthy smear campaign,” he reproaches him that García Ortiz’s actions have been “not just the most absolute inactivity, but, in his public appearances, for their attitudes, has shown a harmony with those who were the promoters of such campaigns”.
There are concrete examples that show this, because the prosecutors’ associations have urged the FGE to speak out in defense of the race and nothing was done,” they maintain.
The law of ‘only yes is yes’
Finally, the CGPJ states that among the powers of the attorney general is to impose criteria for action and that the one established for the law known as ‘only yes means yes’, “of such turbulent validity as it is of strong social and legal controversy”, suffered an “important correction by the courts and by Parliament itself”.
At this point, remember that “the imposed criterion”, “contrary to that held by the majority of the prosecutor’s offices, has been considered inadmissible by the jurisprudence of the Second Chamber of the TS”, which last June endorsed the reductions in sentences in application of the law most favorable to the offender.
“Even said organic law had to be reformed (…) and not precisely in the sense that was ordered” in the circular issued by García Ortiz, completes the General Council of the Judiciary.