The Supreme Court has asked the Constitutional Court to decide how to apply a rule in the Statute of the Public Prosecutor's Office which states that “the decisions of the Prosecutor General may be challenged before the Ministry of Justice”. The Disputes Chamber of the Supreme Court has decided to appeal to the Guarantee Court with a question of unconstitutionality, given the possibility that this statement of Article 67.3 of the Statute, which regulates the activities of public prosecutors, contradicts two articles of the Constitution , 24 – relating to the right to effective judicial protection – and 124, which develops the organizational model of the public prosecutor's office and stipulates that “it carries out its tasks through its own organs”.
In an order, the Supreme Court explains that it is referring this matter because of its impact on the resolution of an appeal lodged by a public prosecutor against a decision of the Minister of Justice (on behalf of the then Minister Pilar Llop), which in turn was an appeal by the same plaintiff against rejected a decision by the Attorney General imposing a fine of 1,500 euros.
Among other things, the Supreme Court points out that it is a well-known fact that, in the Spanish administrative system, the appeal is brought to the highest hierarchical authority that issued the contested act. And he adds that there is no provision in the Spanish legal system that gives the Minister of Justice the status of hierarchical superior to the Attorney General of the State, with the exception of the provision in the Statute of the Public Prosecutor's Office, which is currently being questioned.
The decision – whose speaker was Judge Celsa Pico – also states that Article 124.2 of the Constitution places the Public Prosecutor's Office in Title VI of the judicial power and assigns to it “separate bodies”, so that these separate bodies must have jurisdiction There is the possibility of the To resolve conflicts in this case at the disciplinary level without interference from the Minister of Justice. In essence, the Court therefore points out that the Supreme Court is competent to hear the acts adopted by the Attorney General, while the Organ Statute of the Public Prosecutor's Office recognizes an appeal to the Minister of Justice in the disciplinary field of the Public Prosecutor's Office, “without specifying the nature of the hierarchical superior of the Minister of Justice to the.” Attorney General.”
For the Supreme Court, “such a contradiction must be resolved by the Constitutional Court, since the decision to occasionally grant an appeal to the Minister of Justice or a re-examination before the Minister of Justice cannot be submitted to the Attorney General”, contrary to what is stated in the Organ Statute of the Ministry of Finance is regulated.”
The decision also recalls the problem of jurisdiction arising from the attribution of the acts of ministers, including the judiciary, to the national court under Article 11.1. b) the Contentious Jurisdiction Law (LJCA), which the prosecutor defended in this appeal. The order also states that in the matter on which he has to decide, the appellant, in parallel, relies on and “ignores” the assignment of the actions of the Attorney General to the Supreme Court under Article 12. b) of this Law. the existence of a decision on an appeal by the Foreign Minister through delegation of the Minister of Justice.”
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