Emblem of the Spanish Prosecutors
Attorney General Office's Headquarters
|Prosecution body overview|
|Formed||September 15, 1870|
|Headquarters||Paseo de la Castellana 17, Madrid|
|Prosecution body executives|
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.
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).
To accomplish with the mission entrusted to this body by the Constitution, the Prosecution Office Organic Regulation establish as functions:
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
This principle refers to the fact that, like the judiciary, the prosecution is unique to the entire country, 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).
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). 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).
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.
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)
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.
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).
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.
It was by the Organic Act of the Judiciary of 1870 that the Prosecution Ministry was officially created. 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:
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.
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.
The information in this article has three main sources: