The Contentious-Administrative Chamber of the Supreme Court annulled the Royal Decree of June 13, 2023, appointing Julio Cano Anton as Attorney General of the Autonomous Community of the Balearic Islands, for not having submitted to the decision of the Fiscal Council the possible incompatibility of said candidate, who had been proposed by the Attorney General of the State.
The Chamber examines the appeal presented by another of the prosecutors candidates for the position and orders the reversal so that the Fiscal Council can decide whether the prohibition of article 58 of the Organic Statute of the Public Prosecutor’s Office applies or not, due to the fact that the proposed person has a stable relationship with a prosecutor assigned to the Superior Public Prosecutor’s Office of the Balearic Islands. This article establishes the prohibition for prosecutors to exercise their functions in the same prosecutor’s office where their spouse works or people with a similar emotional relationship, provided that there is an immediate hierarchical dependence between them.
The judgment indicates that it is obvious that the General Prosecutor’s Office, in particular the Tax Inspectorate, was aware of the emotional relationship between the candidate and a prosecutor assigned to the Superior Prosecutor’s Office to which the former opted, since Julio Cano himself requested a compatibility report from the Inspectorate in this regard.
However, The Tax Inspectorate did not convey these facts to the meeting of the Tax Councilwhich has the exclusive competence to resolve the possible incompatibility according to the Organic Statute of the Public Prosecutor’s Office, where the candidates were voted on, and also did not indicate the aforementioned circumstance in the individualized evaluation report, according to the judgment.
The court also analyzes the fact that a few days before the nomination proposal, a service commission from the Ministry of Justice came into force, granted to the prosecutor assigned to the Superior Prosecutor’s Office of the Balearic Islands, which would determine the possible concordance of the cause of ‘incompatibility. , and which is alleged in the written responses to the complaint to emphasize that he would no longer exercise his functions within the Superior Prosecutor’s Office due to the cessation of his functions in the organic staff.
The plaintiff prosecutor alleged in this regard that, in order to overcome the obstacle of incompatibility and the necessary decision of the Tax Council, The order for services was processed urgently and without respecting legal and regulatory requirementswhich also provided for the Tax Council to be heard, a question on which nothing is said in the written responses to the trial, underlines the Supreme Court.
The higher court indicates that there is no documentary evidence that these procedures were followed “and, as a result, a jurisdiction of the Fiscal Council has once again been ignored. Competence which, in this case, is directly linked to that referred to the power to resolve the possible contest of the cause of incompatibility. So, without considering the effectiveness of the service commission, we consider that all this should have been submitted to the Fiscal Council.”
For all this, The Supreme Court annuls the royal decree of appointment and accepts the feedback of the actions “so that the Tax Council exercises without delay the competence attributed to it by article 58. Two, of the Organic Statute of the Ministry of Finance. This decision must not only be taken quickly, but also with all the guarantees and, above all, with the necessary motivation, given that it affects the fundamental right to promotion in the tax career under conditions of equality and with the requirements established by law”, indicates the judgment.
At the meeting of the Fiscal Council, the applicant obtained five votes in favor of his appointment compared to the proposed candidate who obtained four more than that of the Attorney General. A third candidate received the remaining two votes.
