The judge of the Supreme Court (TS) Eduardo Calvo has rejected as “extemporaneous” the challenge raised by the State Attorney General, Álvaro García Ortiz. The prosecutor wanted to challenge four of the five magistrates who have to resolve the appeal that the Professional and Independent Association of Prosecutors (APIF) presented against his appointment.
This has been decided by the investigating magistrate of the incident, who also indicates that “without the need to examine the weakness and lack of consistency of the proposed cause of recusal, Suffice it to point out that, in accordance with the provisions of article 223.1 of the Organic Law of the Judiciary, (…) the formulation of the challenge is untimely.
In a car, Calvo agrees with the position that the four challenged magistrates They defended themselves in a joint report in which they assured that the request was “manifestly untimely.”
The instructor recalls that said article establishes that the request to remove a magistrate must be raised as soon as the case is known, since, otherwise, it will not be admitted for processing, which is what has happened in this case.
Prosecutors’ sources have indicated to this news agency that the Public Prosecutor’s Office reiterates its “absolute respect” for the judicial resolution and emphasizes that it has not gone into “the substance of the matter.”
Accuses him of “procedural artifice”
By rejecting the challenge, the instructor also agrees to impose the costs of the incident on García Ortiz “as there is no exceptional circumstance that justifies its non-imposition.”
Furthermore, it disgraces the Attorney General for presenting a document on April 19 in which he requested that he be informed whether a rapporteur had been appointed in this procedure, as well as the composition of the Chamber, something that – in his opinion – “was not in reality but a procedural artifice to try to reopen a period to challenge that had already expired.
Legal sources consulted indicate that the judge’s decision is final, since there is no appeal against the resolution issued this Wednesday.
Thus, García Ortiz’s claim cannot prosper. The attorney general questioned the impartiality of the four challenged judges – Pablo Lucas, Luis María Díez-Picazo, Antonio Jesús Fonseca-Herrero and José Luis Requero – for having signed the sentence that annulled the appointment of Dolores Delgado as prosecutor of the Prosecutor’s Office Togada of the Supreme Court when appreciating “diversion of power.”
The head of the Public Ministry alleged that the decisions of these magistrates would be conditioned by their position in that process. In the case of José Luis Requero, he also made reference to the publication of an article in a newspaper, on the same day that said sentence was known, in which he spoke of the Constitutional Court and the State Attorney General’s Office as “disastrous.”
The investigating judge now explains that the ruling on which he bases his request—the one that annuls Delgado’s promotion to the highest tax category—was already known to García Ortiz long before his appearance in this process as a co-defendant, which was agreed on March 14, 2024.
“Inconsistent” argument
“It is completely unimaginable that the Attorney General of the State was not aware of the judicial resolution that had annulled the appointment that he himself had proposed,” he maintains, and then emphasizes that García Ortiz “at no time” has alleged that before the demand of the APIF was unaware of the ruling in question.
However, the magistrate recalls that the composition of the different sections that make up the Third Chamber of the Supreme Court is published every year in the Official State Gazette (BOE). On this point, he emphasizes that the composition of the section that he challenged was published in December 2023 and was only modified in February of this year due to a retirement.
Therefore, for Calvo, the allegation that it was after his appearance in the process was “entirely inconsistent” when he had the opportunity to learn the identity of the magistrates who are currently part of the Fourth Section and that four of them had signed that sentence by which the appointment of Delgado was annulled.
In relation to the article published by Judge José Luis Requero, he specifies that García Ortiz does not explain or argue anything about the relevance or virtuality of that journalistic article as support for the challenge. And he assures that it certainly cannot be included in the cause of recusal alleged by the attorney general.
The judge points out that “since it is clear that Álvaro García Ortiz was aware of the aforementioned press article before his appearance in the process – at no time does he state otherwise – its brief mention for the purposes of recusal is clearly out of time.”