The Supreme Court reproaches Delgado for his "disrespectful" expressions and maintains the annulment of his promotion to Chamber prosecutor

Angela Martialay Madrid

Madrid

Updated Thursday, January 25, 2024-12:06

• Justice García Ortiz rejects the Senate's request to report on the amnesty without having the Fiscal Council

The

Supreme Court

has dismissed this Thursday the annulment incident presented by

Dolores Delgado

against the sentence handed down last November that annulled the promotion to the category of Chamber Prosecutor and appointed her Chamber Prosecutor of the Supreme Court Prosecutor's Office.

The prosecutor thus has free rein to go to the Constitutional Court for protection

.

In an order, the Contentious-Administrative Chamber points out that, "leaving aside the frankly disrespectful nature of some of the expressions used in the document promoting this incident of nullity of actions, the truth is that none of the alleged violations of fundamental rights can be sustained".

The TS indicates that there is no violation of equal treatment, of article 14 of the Constitution, since the appellant does not explain what similarity her case has with that of Civil Guard colonel

Diego Pérez de los Cobos,

which she cites in her writing. , where the Supreme Court, unlike what happened with the appointment of Delgado, did not appreciate a deviation of power.

"It is important not to forget - says the order - that, when it comes to misuse of power, the evidentiary information is absolutely crucial; that is, it must be clearly established that the purpose sought by the Administration was different from that which the law attributes. to the administrative power exercised. And this, which was absolutely clear and incontestable in the present case in view of the existing evidentiary material, was not so in that of Mr. Pérez de los Cobos Orihuel."

Nor does it see a violation of article 23.2 of the Constitution (right to access public functions and positions under conditions of equality, with the requirements established by law) "because - even admitting for argumentative purposes that the administrative act met all the legally required requirements and that Mrs. Delgado had ample merits - it must not be forgotten that the diversion of power is an autonomous vice and differentiated from administrative acts. So much so that it consists of the fact that, although the external appearance of the act is in accordance with the Law, it is sought "a purpose different from that legally provided. In other words, contrary to what the party promoting this incident of nullity of actions maintains, the fact that an administrative act meets all the legally required requirements does not immunize it from possible misuse of power."

Finally, it also rejects a violation of article 24 of the Constitution "because the ruling clearly explains that the appointment to the position called for and the promotion to the category of Chamber Prosecutor are inextricably linked, to the point that promotion is not legally possible." "as an independent administrative act. Hence, it was not possible to appreciate either a lack of standing on the part of the appellant or an excess in the sentence."

The ruling upheld the appeal of another candidate for prosecutor of the Military Chamber,

Luis Rueda,

and annulled the Royal Decree, ordering the retroaction of the actions to the moment prior to the proposal of the State Attorney General to the Council of Ministers for the coverage of Square.

The Supreme Court, unanimously, appreciated a misuse of power in the proposal for the appointment of the State Attorney General to the Council of Ministers by the current State Attorney General Álvaro García Ortiz, since its purpose was to assure Delgado's predecessor and close friend of her promotion. to the highest category of the Tax Career.