“There is no deadline that does not arrive nor debt that is not paid,” the saying goes. The deadline for the first of the two appeals that were pending against the appointment in 2022 of Dolores Delgado as prosecutor in military robewhich meant at the same time his promotion to the highest category of the career –courtroom prosecutor of the Supreme Court— arrive. This Tuesday, the fourth section of the Third Chamber (Litigation-Administrative) of the Supreme declared said designation null and void, which has deprived her of the category of courtroom prosecutor. The second appeal will come in December, when the same court will resolve three appeals against her appointment as Prosecutor of Human Rights and Democratic Memorynews that EL PERIÓDICO anticipated and that took place on June 13, 2023. Three other prosecutors were candidates along with Dolores Delgado for that position.
This November 21, 2023, precisely, the fourth section notified the appellants of the second appeal – against their appointment as prosecutor for Human Rights and Democratic Memory – that the period to present evidence expires on December 5. Judicial sources indicate that in light of the decision of the same section known this Tuesday, the same magistrates will proceed to annul the appointment of Delgado as prosecutor of Democratic Memory. Because? It’s nothing intricate. The requirement to be a Democratic Memory prosecutor is to be a chamber prosecutor of the Supreme Court.
The State Attorney General, Alvaro Garcia Ortiz, appointed in July 2022 by the Government of Pedro Sánchez at the proposal of Dolores Delgado, who resigned for health reasons, appointed her as a military prosecutor in 2022 – there were 30 applicants -. In this way, she killed two birds with one stone: upon assuming the military-robed prosecutor’s office, Delgado was automatically promoted to courtroom prosecutor. From that vantage point, the new prosecutor would wait the necessary months to be able to take control of the Democratic Memory prosecutor’s office with the required category in hand. The thing is that she herself, as Minister of Justice, had proposed the creation of said prosecutor’s office in the Supreme Court in the Historical Memory law whose promotion she gave from the Government.
Why has the fourth section of the Third Chamber – in a communication this Tuesday, November 21 – annulled the appointment of a military court prosecutor by the letter section of the Supreme Court? Because he considers it a “misuse of power” of the attorney general Alvaro Garcia Ortiz. The section is based on his own explanations: the recording of his explanation to the Fiscal Council – his advisory body – about the appointment. García admits that the two legislative attempts by the then Minister of Justice and later Attorney General of the State so that when the Attorney General of the State ceases he automatically acquires the category of courtroom prosecutor, they failed. “We say ‘effectively, the legislator has not provided for it, therefore it is not binding on me’ [pero] It does link me because I can solve it and it seems to me [in] It’s fair that the legislator has not solved it, I, who am the attorney general of the State, am going to solve it. Because I have it in my hand, and as I have it in my hand, without any moral problem; backwards with prosecutor’s pride… I am the attorney general of the State and I am very clear: I have to resolve this issue…
García also explains to the Fiscal Council that at the “moment of taking possession [5 de septiembre de 2022] Someone asked me ‘when are you going to become a prosecutor? [de sala a Dolores Delgado]’. And I will say: at the first opportunity I have, without any doubt. At the first opportunity.” García emphasized that the fact that the law did not contemplate the automatic promotion of the State Attorney General who ceases to be a courtroom prosecutor, “a big strategic error by whoever wanted to make the law, and that’s it,” I did not begin to make the decision. “But not because it does not exist [la ley]”Surely we can’t do it here.”
The magistrates consider whether or not the duty to abstain from Alvaro GarciaAs demanded by the appellant, the prosecutor Luis Rueda. “It is precisely at this last point where the accusations of arbitrariness and misuse of power make sense: the question is whether, taking into account all the circumstances of the case, the fact that the State Attorney General did not abstain when “Making the proposal to the Council of Ministers implies that it is arbitrary or the result of a deviated exercise of the corresponding power.”
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The section states: “Well, this court considers that the misuse of power is visible and undeniable in the present case. The declared purpose of the Attorney General of the State was to repair what he considered a gap in the law: that whoever without having the highest category in the Fiscal Career is appointed Attorney General of the State is not automatically promoted, upon ceasing office, to the category of Chamber Prosecutor. And achieving this goal was, in his own words, a priority. Furthermore, the entire sequence cannot be underestimated: initiative to call for the position by the co-defendant herself [Dolores Delgado] when she was still Attorney General of the State, resignation shortly after said position for health reasons, call for the position and presentation of application by Mrs. Delgado, proposed in her favor by someone who was her close collaborator and at that time already her successor and all this, as if that were not enough, quickly and practically without interruption.”
The fish dies by mouth
To Álvaro García, then, what happens to the fish, which dies through the mouth. Judicial sources have indicated to EL PERIÓDICO that the bells for García, whose continuity as head of the State Attorney General’s Office was already in doubt previously, are now ringing louder. The same section, the fourth, will have the opportunity to resolve the unprecedented situation created: a Democratic Memory prosecutor who now lacks the fundamental requirement to participate in the contest that was resolved in her favor in June 2023: courtroom prosecutor. Because she must resolve three appeals against the appointment of Delgado to that prosecutor’s office. The parties, as this newspaper has learned, will present the ruling dated November 21, 2023 in their evidence, whose deadline, as reported, expires on December 5. With this test the requirement of Dolores Delgado as a courtroom prosecutor has expired. In reality, since it is the same section, the magistrates already know this and, therefore, they will have to admit the appeals and declare the appointment as prosecutor for Human Rights and Democratic Memory null and void. The entire process must go back to before the appointment of the military prosecutor, that is, to September 2022. It remains to be determined whether it will be Álvaro García who will have the opportunity to repeat the move or a new State Attorney General.