Dolores Delgado’s insistence on appointing Eduardo Esteban Rincón as coordinating prosecutor for minors —after the Supreme Court annulled his appointment on the grounds that the arguments put forward by the State Attorney General did not meet “the minimum requirements”— has raised a dust storm in the tax career. The two rulings on this case issued by the Contentious-Administrative Chamber —one for each of the two appeals filed against Esteban’s appointment— and the motivation letter written by Delgado to reiterate his appointment disagree on one fundamental aspect: even to what extent experience in a given matter (in this case, minors) should be decisive to occupy a high position in a specialized Prosecutor’s Office.
The court urged Delgado to make a new appointment “after weighing and analyzing, always in terms of minors”, the merits of the two applicants; The attorney general, however, in the letter of motivation written to explain the decision to choose Esteban again, defends that the greatest specialization should be “one of the criteria to be assessed”, but not the most relevant. To what extent should experience in an area count to choose the prosecutor who will lead it? What has happened on other occasions? A review of some of the appointments made in recent years by different attorneys general reveals that the background in a given area was not always decisive and that some came to the position with little or no experience in the matter they were going to coordinate.
The Supreme admits in the judgments on Esteban that the suitability for a position is “of free appreciation”, but warns that this election “must be consistent with the demands of the position”. The rule that regulates discretionary appointments does not impose that specialization should prevail in the election of coordinating court prosecutors, but the magistrates consider that it should be so, at least in the case of minors, because the public interest is at stake. in such a delicate matter. “That superior interest is to demand the greatest suitability to occupy the position by reason of the matter”, affirms the room.
The argument of shielding the interest of the minor is also used by Delgado, but to reach the opposite conclusion: the coordinator of minors must also have knowledge in criminal matters, management and coordination, among others. And the candidate Esteban, according to the attorney general, meets all these requirements, while De la Rosa accredits extensive experience in minors, but more focused “on the academy and reflection” than on actual practice. “In the comparison between applicants, I not only choose one of the candidates, I also choose a model,” concludes Delgado, after detailing the merits of his chosen one (such as his experience in staff management, his time in the Constitutional Prosecutor’s Office or his “dialogue capacity”) and demerits of the rejected candidate (distance from the investigative activity of prosecutors or “lack of sensitivity” with the application of the gender perspective).
De la Rosa himself, recalls Delgado, has recently competed, “with hardly any experience or curricular support”, for the position of prosecutor of the coordinating room of the Immigration Unit and that of chief prosecutor of the Support Unit of the Prosecutor’s Office General, which implies that he considers that the specialty is not an essential requirement. Delgado also collects in his text two precedents in which he was chosen for the same position that was now awarded to prosecutors without specific experience in matters of minors: Consuelo Madrigal and Javier Huete. The first was elected coordinator of this area in 2008, during Cándido Conde-Pumpido’s time as attorney general. Madrigal came to the position from the Supreme Prosecutor’s Office, which he had accessed in 1995 from the technical secretariat of the General Prosecutor’s Office, after passing through the provincial prosecutor’s offices of Tenerife, Palencia and Madrid and the Court of Auditors. In 2015, Madrigal was elected attorney general and chose Javier Huete, prosecutor of the Supreme Court’s criminal area, who had previously worked in the civil area of the high court and in Anti-Drug of the Basque Country, to replace her in the area of minors. “In both cases, the decisions of the Attorney Generals who proposed them were framed in a broad conception of both the functions to be carried out, as well as the institution itself, specialty and professional promotion,” defends Delgado in his writing.
These are not the only cases in which an attorney general has prioritized other merits over experience in a specific area when making a discretionary appointment. One of the most controversial cases occurred in February 2017, when José Manuel Maza chose Manuel Moix, until then Supreme Court prosecutor, as head of Anti-Corruption, despite the fact that he was the only one of the seven candidates who applied for the position who was outside that specialized Prosecutor’s Office, a matter in which Moix – who resigned five months after taking office, after it was revealed that he owned 25% of a company offshore in Panama—had no experience. Months later it was learned that in a conversation recorded by court order in the framework of Operation Lezo, Ignacio González and former minister Eduardo Zaplana congratulated themselves that he was going to be appointed to that position, due to his proximity to the PP.
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Also controversial at the time was the appointment of Juan Cesáreo Ortiz Úrculo as head of Anti-drugs, a position he reached in 1997 after leaving office as attorney general and after having resisted calling the position for Anti-drugs, which had been vacant for months, which fueled speculation that he had reserved it for himself. He had previously served in the Territorial Court of Madrid and the Constitutional Court, but without any specific experience in the fight against drug trafficking, which did not dissuade the then attorney general, Jesús Cardenal, from entrusting him with the coordination of this area.
Prosecutors unrelated to the matter have also arrived at other specialized prosecutor’s offices, such as the Violence against Women office, where the election of Pilar Martín Nájera in 2015 was questioned in some sectors, who accepted the position from the Supreme Court’s criminal chamber and imposed on Teresa Paramato, one of the first prosecutors specializing in sexist violence since the comprehensive law of 2004 came into force. Nor did Anselmo Sánchez-Tembleque, appointed as head of this department, have specific experience in the matter, in this case work-related accidents. by Eduardo Torres Dulce in 2014. Or more recently, Delgado herself promoted her predecessor in the Attorney General’s Office, María José Segarra, to Prosecutor for the Disability Chamber.
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