Prosecution Ministry

The Prosecution Ministry (Spanish: Ministerio Fiscal) is a constitutional body (Part VI § 124) integrated in the Judiciary of Spain but with full autonomy entrusted with the promotion of justice to defence the rule of law, the rights of the citizents and the public interest as well as watch over the independence of the courts of justice.

Prosecution Ministry
Ministerio Fiscal
Emblem of the Spanish Prosecutors

Attorney General Office's Headquarters
Prosecution body overview
FormedSeptember 26, 1835 (1835-09-26)
Jurisdiction Spain
HeadquartersPaseo de la Castellana 17, Madrid
40.4285294°N 3.6900234°W / 40.4285294; -3.6900234
Prosecution body executives
Websitewww.fiscal.es
Spain
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Admission to the prosecution career is made by a public exam between persons who have a degree in Law and who meet the required capacity requirements (EOMF § 42). The exam for admission to the judicial and prosecution careers are joint, so that all those who satisfactorily pass the theoretical tests have to proceed to the election of entry into one or another career. Those who choose the prosecution career must complete a training course at the Center for Legal Studies, after which they enter the prosecution career with the corresponding oath and take possession of the place of destination (EOMF § 45).

Functions

To accomplish with the mission entrusted to this body by the Constitution, the Prosecution Office Organic Regulation establish as functions:[1]

  • Ensure that the jurisdictional function is exercised effectively in accordance with the laws and in the terms indicated therein, exercising, where appropriate, the actions, appeals and relevant actions.
  • Exercise all functions attributed by the law in defense of the independence of judges and courts.
  • Ensure respect for constitutional institutions and fundamental rights and public freedoms with as many actions as their defense requires.
  • Exercise criminal and civil actions arising from crimes and faults or oppose those exercised by others, when appropriate.
  • Intervene in the criminal process, urging the judicial authority to adopt the appropriate precautionary measures and the practice of diligences aimed at clarifying the facts or directly instructing the procedure within the scope of the provisions of the Organic Law regulating the Criminal Responsibility of the Minors, being able to order the Judicial police those diligences that it considers opportune.
  • Take part, in defense of legality and public or social interest, in the processes related to civil status and in the others established by law.
  • Intervene in civil proceedings that the law determines when the social interest is compromised or when they may affect minor, incapable or defenseless persons as long as the ordinary mechanisms of representation are provided.
  • Maintain the integrity of the jurisdiction and competence of judges and courts, promoting conflicts of jurisdiction and, where appropriate, competition issues that arise, and intervene in those promoted by others.
  • Ensure compliance with judicial decisions that affect the public and social interest.
  • Ensure the procedural protection of victims and the protection of witnesses and experts, promoting the mechanisms provided for them to receive effective assistance and assistance.
  • Intervene in the judicial proceedings of amparo as well as in the unconstitutionality issues in the cases and manner provided for in the Organic Law of the Constitutional Court.
  • File the appeal for constitutional protection, as well as intervene in the processes known to the Constitutional Court in defense of legality, in the manner established by law.
  • Exercise in matters of criminal responsibility of minors the functions entrusted to it by specific legislation, and must direct their actions to the satisfaction of the best interests of the minor.
  • Intervene in the cases and in the manner provided in the laws in the proceedings before the Court of Auditors. To defend, also, the legality in the contentious-administrative and labor processes that foresee their intervention.
  • Promote or, where appropriate, provide international judicial assistance provided for in international laws, treaties and agreements.
  • Exercise the other functions that the state legal system attributes to it.

Organization chart

The Public Prosecution Ministry is composed of numerous bodies, most of them in every judicial body but also in other special jurisdictions and matters (EOMF § 12):[1]

  • The Office of the Attorney General.
  • The Prosecution Council.
    It's a body composed with the highest prosecutors entrusted with the advisement of the Attorney General; to establish the organization of the Prosecution Ministry; to resolve disciplinary files and incompatibility matters and to resolve appeals against certain prosecutors decisions, among others (EOMF § 14).
  • The Board of Chamber Prosecutors.
    The Board assists the Attorney General of the State in doctrinal and technical matters, in order to form the unitary criteria of interpretation and legal action, the resolution of consultations, preparation of reports and circulars, preparation of projects and reports that must be elevated to the Government and any others, of an analogous nature, that the Attorney General deems appropriate to submit to its knowledge and study (EOMF § 15).
  • The Board of High Prosecutors of the Autonomous Communities.
    Its function is to ensure the unity and coordination of the performance and functioning of the Prosecutor's Offices throughout the country, without prejudice to the powers attributed to the Prosecution Council (EOMF § 16).
  • The Prosecution Office of the Supreme Court.
    The Supreme Court Prosecutor's Office is headed by the Attorney General and it's also composed by the Lieutenant Attorney, the position that historically assumed the competences that today has the Attorney General. The Lieutenant Attorney acts as a second-in-command prosecutor replacing the Attorney General when this can't exercise its powers and directs the Supreme Court Prosecutor's Office by delegation of the Attorney General (EOMF § 17).
  • The Prosecution Office before the Constitutional Court.
  • The Prosecution Office of the National Court.
  • The Special Prosecution Offices.
    There are two Special Prosecution Offices: the Anti-drug Prosecution Office and the Prosecution Office against Corruption and Organized Crime. This prosecution offices are characterized by having its own police units (provided by the State Police law enforcements) (EOMF § 19).
  • The Prosecution Office of the Court of Auditors.
  • The Military Prosecution Office.
  • The Prosecutor's Offices of the Autonomous Communities.
  • The Provincial Prosecutors.
  • The Area Prosecutor's Offices.

Principles

The article 124 of the Constitution which regulates the Prosecution Ministry, in its second paragraph establish the main four principles that should govern the action of the Public Prosecution:

The Prosecution Ministry shall discharge its duties through its own bodies in accordance with the principles of unity of operation and hierarchical subordination, subject in all cases to the principles of the rule of law and of impartiality.

— Article 124.2 of the Spanish Constitution

Principle of unity of operation

This principle refers to the fact that, like the judiciary, the prosecution is unique to the entire country,[2] a fact that emphasizes the Organic Regulation of the Prosecution Ministry making it clear that the name Ministerio Fiscal can only be used by this body (EOMF § 2). It is the Attorney General who holds the superior office of the Public Prosecution and who represents it throughout the Spanish territory, corresponding to this position the issuance of convenient orders and instructions and the direction and inspection of the Prosecution Ministry. With all this, the Attorney General is empowered to delegate functions in other Prosecutors related to the subject matter of its competence, although the delegation may be revoked at any time and will be automatically extinguished with the dismissal of the Attorney General (EOMF § 22).

In order to preserve the principle of unity in the performance of the Public Prosecution Office, the periodic celebration of all its components has been established by law, which will be useful to study matters of special importance or to establish positions with respect to certain questions. The agreements reached will have the character of a report, although if the opinion of the Chief Prosecutor is contrary to the agreement, the criteria of the Chief Prosecutor will prevail. Within the Prosecution Ministry, the action criterion is imposed by the higher bodies with respect to the lower ones. (EOMF § 24).

Principle of hierarchical subordination

The hierarchical dependence on the organization of the Prosecution Ministry is considered one of the essential notes that characterize it at the same time that distinguishes it from other bodies with which it shares a field of action, such as jurisdictional ones, since the latter must be prevented from all kinds of internal influence. Thus, judges and courts, their governing bodies or the General Council of the Judiciary are not empowered to issue instructions, whether general or specific, addressed to their inferiors, on the application or interpretation of the legal system they make (LOPJ § 12).[3] In the exercise of its jurisdictional function, moreover, if an action of this kind is carried out, a very serious disciplinary offense is being committed (LOPJ § 417).[3]

This happens because the framework of jurisdictional bodies is not valid within the scope of the Prosecution (which si not part of the Judiciary although is integrated on it), structured hierarchically, with the Attorney General at the top, and subordinate to him, the other organs.

Principle of the rule of law

By the principle of the rule of law, also called principle of legality, the Public Prosecutor will act subject to the Constitution, laws and other regulations that make up the current legal system, ruling, informing and exercising, where appropriate, the actions from or opposing those improperly acted to the extent and how the laws establish it (EOMF § 6)

Principle of impartiality

Due to the principle of impartiality, the Public Prosecutor will act with full objectivity and independence in defense of the interests entrusted to it (EOMF § 7).

Although it may seem that to say that the Public Prosecutor must be impartial, it is a contradiction in terms, since being impartial presupposes not being a party and what this body does is to intervene in the process in a position of part, the validity of the principle of impartiality supposes the absence of direct or indirect implication of the dependent employee of the Prosecution Office in the specific case in which he must act, thus preventing possible defects in his actions.[4]

In no legal provision of the Spanish legal system is the recusal of the representative of the Public Prosecution for the mere fact that this is a procedural part, but contrary to this, the Organic Act of the Judiciary establish that any official that is part of the process and has any conflict of interest must be self-abstain to be a part of the process. This clause is interpreted extensibly to the prosecutors (LOPJ § 219). If the prosecutor does not comply with this clause, the parts of the conflict can go to its hierarchical superior to order him not to intervene in the process (EOMF § 28).

History

Centuries before the creation of the Prosecution Ministry already existed officials who represented interests of the monarch in the judicial procedures. This official received names like «King's Man» or «Fiscal Prosecutors» and over time they became truly civil servants who tried to be an imparcial part in the judicial procedures even when the judge and the prosecutors had their legitimacy in the absolute monarch.

However, the direct antecessors didn't arrive until the 19th century. In 1835, under the regency of Queen María Cristina, it was approved the Provisional Regulation for the Administration of Justice which didn't especiffically mention the Prosecution Ministry but established an state-level prosecution organization topped by the Attorney of the Supreme Court.[5]

It was by the Organic Act of the Judiciary of 1870 that the Prosecution Ministry was officially mentioned. It was regulated in the Title 20 of the Act and consisted in 91 articles which established its nature, organization, competences, uniform and the process ot access in the prosecution career. The original mission of the Ministry wasn't too much different from now:[6]

The Prosecution Ministry will watch over the observance of this law and of the others that refer to the organization of the Courts: it will promote the action of justice as far as the public interest is concerned, and will have the representation of the Government in its relations with the Judiciary.

— Article 763 of the Organic Act of the Judiciary of 1870

In the 1880s, two new laws are approved that affected the Prosecution Ministry: the Civil Procedural Act and the Criminal Procedural Act. These laws included the prosecutor into both procedures but its competences are very confusing in the Civil Procedural Act, differending it from the rest of the parts of the conflict but, at the same time, equipping it with the Solicitor General (which was no a real part in the process). In the Criminal Procedural Act, however, established clearly that the prosecutor is a part of the process.

Soon after, in 1886, the Prosecution Ministry lost the competences over the defence of the interests of the Public Treasury in favour of the Solicitor General's Office.[7]

Under the francoism, the Ministry lost most of its competences and was just a body to execute orders and to act as a channel of communication between the executive and the judicial power.

With the arrival of democracy and the approval of the Constitution of 1978, the Ministry recovered its competences and were granted with new ones, defending not only the interest of the State but also the interest of the citizents, their rights and freedoms and to watch over the independence of justice. The Constitution integrate it in the Judiciary but at the same time give it full autonomy without being under the authority of the General Council of the Judiciary. It also stops being a communication channel between the executive and judicial power and breaks with the historical dependence from the Government, being able the executive to communicate with the Prosecution only with related matters of public interest and it's the Attorney General, with the advice of the Board of Chamber Prosecutors, who decided if accepts this communications or not.[8]

References

The information in this article has three main sources:

  1. "Law 50/1981, of December 30, which regulates the Organic Regulation of the Public Prosecution Ministry". www.boe.es (in Spanish). Retrieved 2018-10-26.
  2. Moreno Catena, Víctor. Introducción al Derecho procesal (3{487 ed.). Libreria Tirant lo Blanch. p. 172. ISBN 978-84-9876-288-4.
  3. "Organic Act 6/1985, of July 1, of the Judiciary". www.boe.es (in Spanish). Retrieved 2018-10-26.
  4. Moreno Catena, Víctor. Introducción al Derecho procesal (3{487 ed.). Libreria Tirant lo Blanch. p. 174. ISBN 978-84-9876-288-4.
  5. "Provisional Regulation of the Administration of Justice of 1835" (PDF) (in Spanish). 1835.
  6. C.G.P.J. "C.G.P.J- Normativa histórica". www.poderjudicial.es (in Spanish). Retrieved 2018-10-26.
  7. Sarmiento Larrauri, José Ignacio (2005). Los Abogados del Estado, antecedentes históricos (in Spanish). Madrid. p. 10. ISSN 1698-5583.
  8. "History of the Prosecution Ministry".
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