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The Supreme Court sees a "diversion of power" in Delgado's promotion to the highest category and orders the actions to be reversed

He understands that the attorney general exercised his powers "for purposes other than those established in the legal system".

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The Supreme Court sees a "diversion of power" in Delgado's promotion to the highest category and orders the actions to be reversed

He understands that the attorney general exercised his powers "for purposes other than those established in the legal system"

The Supreme Court (TS) has partially upheld the appeal presented by another candidate for the position of prosecutor of the Military Chamber, appreciating a "deviation of power" in the proposal of the State Attorney General (FGE), Álvaro García Ortiz, to promote her predecessor, Dolores Delgado, to the highest category of the Public Prosecutor's Office, ordering the actions to be taken back until the moment of submitting such a proposal to the Council of Ministers.

This has been resolved by the Contentious-Administrative Chamber when studying the appeal presented last November by the former deputy prosecutor of the Court of Accounts Luis Rueda, in a presentation by magistrate Luis María Díez-Picazo.

Rueda challenged the Royal Decree published on October 4, 2022 in the Official State Gazette (BOE) by which Delgado was granted the position of chief prosecutor of the Togada Chamber.

Delgado was promoted to the highest category of the Prosecutor's Office days before, on September 22 of that year, by decision of the State Attorney General, Álvaro García Ortiz, since the majority of the Prosecutor's Council supported Rueda, a prosecutor specializing in the military.

Rueda won the six votes of the Association of Prosecutors (AF) while Delgado obtained the support of the two members of the Progressive Union of Prosecutors (UPF) and the natural members - the lieutenant prosecutor of the Supreme Court and the chief inspector , María Ángeles Sánchez Conde and María Antonia Sanz, respectively--.

Now, the ruling considers it proven that the purpose sought by the FGE was to ensure Dolores Delgado's promotion to the highest category of the tax career, trying to fill what, in the opinion of the proponent, is a deficiency in the legislation in force.

This departs from the purpose of the power to resolve calls for positions in the Public Prosecutor's Office, whose vacancies must be filled fundamentally according to the criterion of merit, he points out.

The resolution agrees to take the actions back to the moment prior to submitting the FGE proposal to the Council of Ministers, in order for a new one to be made, taking into account what has been said about the purpose of the power to resolve calls for positions in the Ministry Fiscal.


For the court "the misuse of power is visible and undeniable in the present case" given García Ortiz's declared purpose of "repairing what he considered to be a gap in the law: that whoever without having the highest category in the prosecutor's career is appointed Attorney General of the State is not automatically promoted, upon leaving office, to the category of Chamber Prosecutor."

He points out that with this appointment, the FGE was trying to achieve this objective which, they point out that in García Ortiz's own words, was "a priority." The Chamber adds that the entire sequence cannot be underestimated: initiative to call for the position by the co-defendant herself --Delgado-- when she was still FGE, resignation shortly after said position for health reasons, call for the position and submission of application by Delgado, proposed in her favor by someone who was her close collaborator and at that time her successor.

The court regrets that all this happened, "as if that were not enough, quickly and practically without interruption." And he recalls that the canonical definition of misuse of power contemplates "the exercise of administrative powers for purposes other than those established by the legal system."

Thus, in the case of Delgado, the Chamber reminds García Ortiz that the power of the FGE consisting of making the proposed resolution of calls for positions in the first category "is not intended to rewrite the rules of promotion in the Tax Career, adjusting them to your personal preferences."


Delgado, who resigned as attorney general in July 2022 citing health reasons after the spinal column operation he underwent in April, had his position in the Prosecutor's Office of the National Court, but he did not occupy it when he obtained the position of courtroom prosecutor. in the Supreme Court.

The PSOE tried to guarantee this promotion through an amendment included in the Bankruptcy Law that would have meant that Delgado and his successors at the head of the State Attorney General's Office (FGE) were promoted to prosecutor of the Supreme Court upon leaving office, but the party ended withdrawing it due to the controversy generated.

The Supreme Court reviewed the case after last July it rejected Delgado's own request to archive Rueda's appeal. The prosecutor alleged that, now that she had been appointed prosecutor for Democratic Memory and Human Rights - a position also intended for Chamber prosecutors - he could once again apply for the position of the Togada Prosecutor's Office.

The magistrates agreed not to file the appeal, considering that Rueda was right because annulling Delgado's promotion and returning the process to the precise moment in which the attorney general proposed her for the Fifth Chamber of the Supreme Court was not the same as opening a new call now. .


It should be remembered that the Supreme Court has yet to resolve the appeals presented by the AF, the Professional and Independent Association of Prosecutors (APIF) and the anti-drug prosecutor Luis Ibáñez against the appointment last June of Delgado as prosecutor for Democratic Memory and Human Rights.

In the opinion of the appellants, the appointment was not valid because the attorney general did not give the option to study whether it incurred a cause of incompatibility, because his partner, the former judge of the National Court Baltasar Garzón, directs a foundation dedicated to the defense of Human rights. And, as a consequence of this, the majority of the Fiscal Council abstained from participating in the deliberation and voting of the square, which is why - they claim - the advisory body did not issue a valid report.

In addition, the Contentious-Administrative Chamber has annulled for the second time the appointment of Eduardo Esteban Rincón as prosecutor of the Juvenile Chamber. He already revoked it in April 2022 due to lack of motivation. In response, Delgado reappointed him, developing the reasons why he was entrusted with the position. However, the TS believes that he is still insufficient, which is why it has knocked him down again.