The Supreme Court has notified this Friday the two sentences where it annuls the appointment of Eduardo Esteban as prosecutor of the Juvenile Chamber. Esteban, a member of the Progressive Union of Prosecutors, was nominated for the position up to two times by the former State Attorney General, Dolores Delgado.. It was one of the most controversial appointments made by the former Minister of Justice since the other candidate for the position, the public prosecutor José Miguel de la Rosa, was one of the greatest specialists in matters of Minors in Spain.
The High Court annulled in April 2022 the appointment of Esteban as prosecutor of the Juvenile Chamber alleging lack of motivation. Even so, Delgado reappointed Eduardo Esteban to the position despite the fact that the Supreme Court stressed that the resumes between the two candidates for the position – Esteban and De la Rosa – were not comparable.
The Contentious-Administrative Chamber, in the new judgments known today, underlines that “the question raised here is not whether the State Attorney General has adequately motivated that Mr. Esteban Rincón can be promoted to the category of Chamber Prosecutor, nor even if he would deserve it more than Mr. De la Rosa Cortina if the latter were not already so.. What is being debated here is something else, namely: if, when awarding a specific position with a specific profile, such as the Juvenile Division Prosecutor's Office, a candidate without any theoretical or practical experience in the matter should be preferred over another who has proven to be a true specialist in it; and if this, in addition, can reasonably be motivated on the basis of arguments that explicitly avoid giving weight and relevance to the specific preparation in Juvenile Law, pointing out that what is truly decisive are other considerations (experience in the leadership, practice of Constitutional Law, harmony with the criminal policy orientation of the State Attorney General, etc.)”.
The judges have a clear answer: no.. “When it comes to deciding who is most suitable to fill a position that has a well-identified profile, the merits specifically related to said profile cannot be underestimated, if not ignored,” read the resolutions presented by magistrate Luis Díez-Picazo.
The High Court responds to Delgado that “putting all the emphasis on other considerations” to justify the appointment of Eduardo Esteban “is not acceptable because it eludes the core of the issue”. “That he used twenty-two pages does not alter this conclusion,” added the magistrates.
“The enormous difference in merits between the two candidates as regards Juvenile Law was already revealed by our previous rulings- And given this, the only thing that the new proposal does, which serves as motivation for the contested administrative act, is essentially to say that knowledge and practice in Juvenile Law are not really relevant for the exercise of the position of Prosecutor of the Juvenile Chamber”.
The Chamber explains that the arguments displayed by Delgado are not “convincing” since it is not “a minimally adequate motivation for what it is trying to justify”. “The best proof of this is that the arguments of the State Attorney General could have been equally used for any other profiles of specialized prosecutors (drug trafficking, computer crimes, trafficking, etc.),” they add.
In addition, the Supreme Court reminds Dolores Delgado that her decisions must be subject to judicial control. “The State Attorney General in her proposal insists that the orientation of the criminal policy that corresponds to her -as well as, more generally, her function of directing the whole of the Public Prosecutor's Office- grants her the power to prefer some candidates over others according to the greater or lesser harmony of these with her guidelines. This idea, with the forcefulness with which it has been expressed in this case, cannot be accepted. Certainly the State Attorney General may legitimately consider some people more valuable and suitable than others, and no one could sensibly criticize that the State Attorney General's convictions – like anyone else's – influence her preferences.. But elevating this unavoidable bias to an explicit, objective and legitimate criterion of preference is not in accordance with the Law outside the cases of selection for positions of trust through free appointment”, underline the magistrates of the Third Chamber.
On the other hand, the Supreme Court establishes clear criteria for promotions to prosecutors of the highest category and to a position of specialist. “When someone is promoted to the category of Chamber Prosecutor it is forever, in the same way that when someone is awarded the position of Juvenile Chamber Prosecutor it is temporarily indefinite.. In other words, both the category promotion and the awarding of the position will continue to be effective after the State Attorney General who made the proposal ceases to hold office, which by legal imperative is limited in time.. Thus, reasoning in terms of harmony with one's own orientation when making proposals for appointments is still trying to perpetuate that orientation, conditioning, where appropriate, future State Attorneys General. And this, whatever the political assessment that each one deserves, lacks a discernible normative foundation, and of course it is not a reason that can be adduced to motivate a decision in the seat of appointments”.
The Chamber refuses to roll back the actions – “because it would not make sense to prolong the proposals and their motivations to infinity” when “the State Attorney General's Office had the opportunity to make a second proposal, motivating it in such a way that the reasons given had some significant relationship with the characteristics of the position to be filled” and it did not – and cancels the appointment of Esteban, who loses the highest category of prosecutor and the destination.
It will be the next State Attorney General who must put out to competition the position of prosecutor of the Juvenile Chamber.
The sentences have the particular vote of Judge Pilar Teso, where she defends that the appointment of Esteban was “widely motivated, because, according to the jurisprudence of this Third Chamber, an isolated merit cannot be chosen and valued separately, nor can that merit of experience in minors be converted into a regulated element that allows us to delve into the core of the discretionary decision”.. “In short, because the body that exercises discretionary power cannot be deprived of the wide margin of appreciation, which our jurisprudence has been recognizing in this type of appointments,” explains Teso.