December 5, 2020

Who does the prosecution depend on?

The head of the Acting Executive, Pedro Sánchez, stressed that the State Attorney General's Office depends on the Executive to reaffirm his promise that he will deliver to Spain the former identifier of the Generalitat Carles Puigdemont, escaped in Belgium since October 2017.

In an interview at RNE, Sánchez explained that the Government is doing everything necessary for Puigdemont, wanted for a crime of sedition and embezzlement in relation to the 'process', to be brought back to Spain.

In fact, it has influenced the fact that it was the Prosecutor's Office that "asked the investigating judge for the activation of the Euro-order" and, to prove that the Executive is acting with this objective, has launched a rhetorical question: Who does the Prosecutor depend on? .


Sánchez: "We have … Not only Judge Llarena, in this case as an investigating judge, but also the State Attorney General's office asked the investigating judge to activate the Euro-order after hearing the Supreme Court ruling. We are waiting to see what exactly is the final decision of the Belgian justice but, in any case, that is the approach we are making ".

RNE: "But that is what the State is doing, Justice is doing it. You raised it as an electoral commitment and the independence movement wonders how Sánchez is going to do it."

Sánchez: "Well, as we are doing, as we are doing. Is that … the Prosecutor's Office, who does it depend on? Who does it depend on?"

RNE: "It depends on the Government."

Sánchez: "Well, that's it."

The president implied that the Public Ministry could follow the orders of the Government in relation to Puigdemont with these words, which have been criticized by both prosecutors and other political formations.

Following the controversy generated by these statements, the acting Vice President of the Government, Carmen Calvo, has agreed with Sánchez in highlighting that the State Attorney General is appointed by the Government, but has denied that there is political interference in judicial decisions.

"Nothing has to do with the separation of powers with the Fiscal Ministry, which is an organ that is framed within the scope of the judiciary but is not a judiciary," he said.

"The prosecutor or the attorney general of the State, who appoints him, according to article 124 of the Constitution? Who appoints him? The Government," he has said.

Calvo has stressed that as an organ appointed by the Executive has an "important link" with the Government's criminal policy decisions, as is the case – he stressed – "in all the democracies of the world."

Subsequently, Sanchez himself said on Twitter that "no one is above the law", referring to Puigdemont, and has assured that the Executive will give "its support" to the Prosecutor's Office in defense of the Law of and of the general interest .

But who does the State Attorney General depend on?


The Government proposes the appointment of the State Attorney General and may ask him to take actions before the courts in defense of the public interest, but prosecutors are guided by "the principle of impartiality" and act "with full objectivity and independence", according to the Organic Statute of the Fiscal Ministry.

"The State Attorney General shall be appointed by the King, at the proposal of the Government, previously heard by the General Council of the Judiciary," according to article 124 of the Constitution.

The candidate, adds the Organic Statute of the Fiscal Ministry, will be chosen from "among Spanish jurists of recognized prestige with more than fifteen years of practice."

Already in office, he will assume the functions of "promoting the action of justice in defense of the law, of the rights of citizens and of the public interest protected by law, ex officio or at the request of the interested parties" and of "ensuring the independence of the Courts and seek before them the satisfaction of the social interest ", according to the Constitution.

It will also be guided by the "principles of unity of action and hierarchical dependence and subject, in any case, to those of legality and impartiality."

The candidate proposed by the Executive will appear before the Congress of Deputies so that parliamentarians can assess their "merits and suitability" and, once appointed, the State Attorney General will take the oath or promise before the King, explains the statute of the Prosecutor's Office

From that moment, the Government can "interest" the State Attorney General proceedings before the courts to defend the public interest. These communications are channeled through the Minister of Justice, although the President of the Government can also go directly to the prosecutor if he deems it necessary, explains the same document.

After receiving a request from the Government, and consulting the Board of Prosecutors of the Supreme Court, the Prosecutor General will decide on "the feasibility or origin of the actions involved" and will present its resolution to the Government "in a reasoned manner."

That is, the independence of the Prosecutor's Office prevails at all times, which is not subject to "any kind of interference" by the political power, according to tax sources consulted by EFE.


The associations of prosecutors, very critical of Sánchez's statements, clarify that the Fiscal Ministry "does not receive orders" from La Moncloa.

The Association of Prosecutors (AF) hopes that the president's insinuation that the Prosecutor's Office could follow the Executive's instructions is "an unfortunate confusion", which shows, however, the "tremendous ignorance of the president", something shared by the Professional Association and Independent of Prosecutors (APIF).

Also the Progressive Prosecutor's Union (UPF) has claimed the autonomy and independence of the Prosecutor's Office through its Twitter profile: "The Prosecutor's Office is autonomous from the Government, from any Government, and the latter cannot give orders to the Attorney General, to be clear".

Equally blunt has been the AF, which also "remembers" Sánchez in a tweet "that the Prosecutor's Office is independent and does not comply with the Executive's orders", but "only depends on the law."

As a sign of this autonomy, sources of the associations remember precisely the trial of the 'procés', in which the Prosecutor's Office "always defended its independence" by maintaining the accusation by rebellion, against the State Advocacy, dependent on the Government, which finally He chose to charge for sedition, a crime for which nine defendants were convicted.


Political leaders of different parliamentary forces have lamented on Wednesday that the socialist candidate denied the independence of prosecutors and questioned the separation of powers, although in the past almost everyone agreed to denounce the politicization of this position.

The president of the PP, Pablo Casado, has claimed the independence of the Prosecutor and defended the "logical outrage" of the prosecutors at his words.

On behalf of Citizens, the leader of this formation, Albert Rivera, has accused the president of the Government in charge of "throwing down" the independent work of prosecutors.

From Catalonia, the head of JxCat's list for the elections, Laura Borrás, believes that Sanchez has "certified the death of the separation of powers" and the number two candidate of ERC, Carolina Telechea, has also stressed that her words are "a absolute disrespect for the separation of powers from the State. "

The criticisms towards the politicization of this position have been constant in recent years: The PP questioned the independence of Cándido Conde-Pumpido in the years of the Government of José Luis Rodríguez Zapatero, the PSOE that of José Manuel Maza at the stage of Mariano Rajoy … Although, in the last legislature, only Citizens and Podemos took to Parliament a new regulation of the State Attorney General's Office.

Specifically, as Rivera recalled on Wednesday, Citizens presented in Congress a proposed law to depoliticize the State Attorney General's Office, whose need the PSOE denied.

PP and PSOE rejected in February 2018 the consideration of this proposed law, in which Cs defended that the Lower House had the last word in the appointment of the State Attorney General (with a two-thirds majority for ratification) , as well as his term of office being extended from four to six years, his previous professional career would be increased from 15 to 25 years and he was required not to have held any public or elective office in the last decade.


– Spanish constitution.

– Organic Statute of the Fiscal Ministry.

– Proposal of the law of Citizens ….

– Official website of the Congress of Deputies.

– Associations of prosecutors AF, APIF and UPF.

. (tagsToTranslate) depends (t) Fiscalia

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