It is a pleasure to be with you today in this incomparable setting in the city of Lisbon, which the Law Faculty of the Catholic School of Law offers us.

I would first like to thank MEDEL and its President, Filipe Marques, for their kind invitation to take part in this series of conferences and in this round table, which offers us the opportunity to reflect together on the rule of law in Europe and on the guarantees of independence and autonomy of the judiciary and the Public Prosecutor’s Office.

The principle of separation of powers is a fundamental pillar of any rule of law and of any democracy. The Executive, the Legislature and the Judiciary are the powers that make up the State, but it is from the people that they emanate and who are their true owners. We are their mere administrators, each in our own sphere and competence, as public servants. In this task, each of these powers must act separately and independently, but in harmony with the others, in order to fulfil their respective obligations and the very purpose of their democratic existence.

In this respect, the independence of the judiciary and the autonomy of the Public Prosecutor’s Office are of particular relevance, in order to fulfil the important mission entrusted to them by our constitutions, to guarantee the Rule of Law, legality and the rights of citizens.

To this end, it is essential for states to have a body of law that guarantees the essential conditions for those who make up the state to be able to act free from any kind of unjustified internal or external interference, especially from the political powers.

Democracies are never fully and definitively built, they are not an achievement to be taken for granted. The duty of citizens, but above all of institutions, is to work every day for the effective realisation of their principles and values. We must be alert and react to political and ideological drifts that could jeopardise the democratic standards that we have set for ourselves through national and international consensus, among all of us.

These are not just abstract threats, for in Europe itself we are witnessing legal reforms affecting the independence of the judiciary, such as those in Poland and Hungary, which are of great shared concern and which have prompted a reaction from European bodies and courts.

All of the above should lead us to a profound reflection on the position of the judiciary and - as we are now addressing in this round table - of the Public Prosecutor’s Office in democratic systems of justice. And also to take the path towards a definitive strengthening of the autonomy of the Public Prosecutor’s Office in all possible spheres.

This is why it is so important to equip ourselves, at European and international level, with common standards of independence and autonomy, as well as supranational evaluation and control mechanisms.

Among them, I would highlight, within the scope of the Council of Europe, the rounds of evaluation and recommendations of GRECO (Group of States against Corruption) in the field of judicial independence. I must say that the latest assessment of Spain has improved significantly, and has evolved from “globally unsatisfactory” in 2016 and 2018 to conclude in 2019, in view of the positive advances, that we are no longer entitled to such a rating. The 2021 report considers 6 of the 11 recommendations to have been fulfilled, 4 to have been partially fulfilled and only one - which does not refer to the Public Prosecutor’s Office - remains unfulfilled.

The only recommendation that depends exclusively on the Public Prosecutor-General’s Office, which refers to the establishment of a Code of Conduct for prosecutors, has been satisfactorily fulfilled last year with the approval by the Public Prosecutor’s Council of a Code of Ethics, which all prosecutors have adopted through an inclusive and participatory process in which the entire career has been involved.

I would also like to make a very brief reference to the importance of the opinions of the Consultative Council of European Prosecutors, on which I will not dwell, as my dear Antonio Vercher, whom I would like to take this opportunity to congratulate on his recent re-election as President of this body, will be able to give a better account of it below.

I would like to cite here, by way of example, Opinion No. 13 (2018) on the independence, responsibility and ethics of prosecutors or Opinion No. 9 (2014) on European standards and principles concerning prosecutors. Also Recommendation (2000) 19 of the Committee of Ministers of the Council of Europe on the role of the Public Prosecutor’s Office in the criminal justice system.

Finally, I cannot fail to mention the second part of the Venice Commission’s Report on European standards on the independence of the judiciary, which refers specifically to the Public Prosecutor’s Office.

I would like to take advantage of my speech to explain the general lines of the regulation of the Spanish Public Prosecutor’s Office and its legal guarantees of autonomy, as well as to offer some reflections on the future, a future that for the Spanish Public Prosecutor’s Office - which I have the honour of representing - is full of new challenges that we take on with enthusiasm and, above all, with responsibility.

The 1978 Constitution provides for the Public Prosecutor’s Office in Article 124, within Title VI dedicated to the Judiciary. This is a complex arrangement whereby the Public Prosecutor’s Office is integrated into the Judiciary, but is endowed with functional autonomy, exercising its function through its own bodies.

Our Constitution definitively renounces the old concept of the Public Prosecutor’s Office as a “liaison body” between the Government and the Judiciary, making its independence from the Executive a reality. Consequently, the prosecutor will only act “ex officio or at the request of the interested parties”, thus excluding any type of request or order from the Government.

The Constitution also entrusts it with missions of transcendental importance: to defend legality and the rights of citizens, on the one hand, and to promote the satisfaction of the public and social interest, on the other. It is therefore the guarantor not only of the Rule of Law, but also of the Social and Democratic State in which Article 1 of our Constitution establishes Spain.

The defence of legality, as a manifestation of the will of the people, becomes the main and most characteristic mission of the Public Prosecutor’s Office, as a promoter of the action of justice, establishing itself as a “custos legis”.

The constitutional configuration, as I was saying, also assigns it the defence of citizens’ rights, in an organic and full sense, which means an expansion of our functions, as the public prosecutor will be actively present in all those areas and procedures in which fundamental rights and public liberties may be compromised, in order to guarantee their effective protection. Our protective functions are thus strengthened, as we want to move towards a principle of universal protection of people, of the most vulnerable and of their rights.

Our constitutional mission goes beyond defending the public interest protected by law, i.e. the interests of the community organised as a State and the maintenance of social peace through the exercise of jus puniendi.

To this it adds that of promoting the satisfaction of the social interest: that which represents the benefit and progress of society, and which takes on special relevance when placed in connection with the guiding principles set out in our constitutional text, such as the protection of the family, labour rights, health, access to culture, environmental rights, housing, the protection of youth, the disabled and the defence of consumers and users.

Article 124 of the Constitution also provided for the principles governing the actions of the Spanish Public Prosecutor’s Office. On the one hand, we are guided by the principles of legality and impartiality, which mean that prosecutors are subject to the rule of law and guided by no other interest than the public interest.

On the other hand, we are governed by the principles of unity of action and hierarchical dependence, in such a way that the latter is an instrument for the former. This guarantees legal certainty and the equality of all before the law, so that there is a uniform response, homogeneous criteria for action in the face of similar requirements and conditions, anywhere in the national territory.

It should be recalled that, as European and international bodies have reiterated, the principle of hierarchical dependence should not be an obstacle to the autonomy of the Public Prosecutor’s Office and its consideration as an impartial authority. This has been referred to, for example, in the Judgment of the CJEU of 12 December 2019, according to which the requirement of independence excludes the possibility of being subject to instructions from outside the judiciary, in particular from the Executive, but “does not prohibit internal instructions, which may be given to prosecutors by their hierarchical superiors, also prosecutors, on the basis of the subordination that governs the functioning of the Public Prosecutor’s Office”.

Our structure is territorially structured into different Prosecutor’s Offices: Autonomous Community, Provincial and Area Prosecutor’s Offices, each of which is headed by a Chief Prosecutor. The units of the Prosecutor-General’s Office, as well as the Special Prosecutor’s Offices and the central bodies also have their own heads.

The networks of specialist prosecutors are also led by the corresponding Chamber Prosecutor, who is responsible for their coordination. And at the top of this system is the Public Prosecutor-General, the highest representative of the Public Prosecutor’s Office, who has the powers granted to him or her by our Regulations, which do not include jurisdictional functions but rather executive ones.

As an instrumental principle, hierarchical dependence does not imply strict control over the actions of prosecutors, who maintain their personal autonomy through a whole system of checks and balances - the so-called check and balance - which are established in our Regulations, and which comply with European standards on the autonomy of the Public Prosecutor’s Office.

Among them, in order to guarantee internal autonomy, control mechanisms are legally provided for, such as the Boards of Public Prosecutors or the intervention of the Public Prosecutor’s Council, a democratic representative body of the career: nine of its twelve members are elected by direct suffrage of all prosecutors. The Council has important functions, such as informing on appointment proposals, resolving disciplinary and merit proceedings, hearing any referrals made by the chief prosecutors in a specific case, as well as appointments and replacements made by the Prosecutor-General, among others.

Furthermore, our Regulations govern an important mechanism to safeguard the personal autonomy of prosecutors, which is the right to disagree with the orders or instructions of a hierarchical superior when they consider them illegal or inappropriate, by raising the discrepancy before the Board of Public Prosecutors, which the Chief Prosecutor will have to hear before issuing the corresponding decision.

As for autonomy ad extra, i.e. that which guarantees the absence of external interference, it is articulated at various levels.

With regard to the appointment of the Public Prosecutor-General, our constitutional text grants its proposal to the Government, a system that Spain shares with other models in our European environment, and which is based on the function of the Public Prosecutor-General to develop criminal policy, focusing on those issues and criminal phenomena for which society as a whole has shown special interest or concern, through the democratically expressed will of the people. Examples of the development of criminal policy include the fight against gender violence, environmental protection, the prosecution of political corruption, and the defence of vulnerable groups or those who suffer discrimination.

To ensure this autonomy, our Regulations once again provide us with tools for control and checks and balances. The relations and communications between the Prosecutor-General’s Office and the Government and Parliaments, both central and regional, are expressly provided for the Regulations. Any type of order or instruction from the Executive or other public powers is legally vetoed; this is unthinkable in the Spanish legal system.

The Government may only request, but not order, the Prosecutor-General to take action to defend the public interest. The feasibility or appropriateness of this request is decided after hearing the Board of Chamber Public Prosecutors, which will also be heard whenever orders or instructions are issued on matters directly affecting any member of the Government.

We agree with GRECO’s recommendation that this legal regulation could be implemented in a more transparent and protective manner, so as to expressly foresee that the Government’s communications with the Prosecutor’s Office are articulated in writing and duly recorded.

The 2007 reform gave an important boost to the autonomy of the Public Prosecutor-General, modifying his or her dismissal, which, until then, could be proposed at any time by the Government. Since 2007, as I have said, the Prosecutor-General can only be dismissed for the reasons set out in detail and not in a discretionary manner, nor can he or she be renewed during his or her term of office. This avoids any suspicion in the actions of the Prosecutor-General that might be aimed at not being dismissed or later renewed in office. The legal impossibility removes this shadow of doubt.

In Spain, therefore, we have a model of an independent and protective Public Prosecutor’s Office, enshrined in our constitutional text and in our Regulations. This year we are commemorating the 40th anniversary of the Regulations and its significance for our democratic history.

But this is also a time for reflection and proposals for the future. We believe that, after these four decades in force and with the challenge of the projected change in the criminal procedure model looming, with the prosecutor as the director of the investigation, it is time to tackle a comprehensive regulatory reform, which would grant the Public Prosecutor’s Office a status of reinforced autonomy.

The Prosecutor-General’s Office is committed to promoting this new regulatory framework and this strengthening of our autonomy at different levels:

Firstly, through the attribution of budgetary autonomy. The true organisational autonomy of the Public Prosecutor’s Office, the exercise of the functions constitutionally entrusted to it “through its own bodies”, requires it to have its own budget, capacity and means for its management.

The budgetary autonomy of the Public Prosecutor’s Office, its financial independence from the Ministry of Justice, which is already necessary at present, is essential in a model of purely accusatory criminal proceedings. The provision of expertise, the hiring of experts or other necessary expenses for the development of an investigation cannot depend - for obvious reasons - on the will of the Executive.

For this reason, the budget of the Public Prosecutor’s Office must be set aside annually in the General Public Budget, as well as the prior provision of resources -personnel and material- for the management of its own resources.

An own budget is crucial for the autonomy of the Prosecutor’s Office, as highlighted by GRECO, the Venice Commission, Recommendation 19 of the Council of Ministers, or the opinions of the CCPE, e.g. No. 7 (2012) on the administration of means of the Prosecutor’s Offices, among others.

In the same vein, Regulation 2017/1939, which establishes enhanced cooperation for the establishment of the European Public Prosecutor’s Office, warns in paragraph 111 of the need to provide it with its own budget to guarantee its full autonomy and independence.

This is therefore an unavoidable demand for a truly independent Prosecutor’s Office.

Secondly, organisational autonomy is required, through the attribution to the Prosecutor’s Office of powers in the administrative and regulatory regime of the members of the prosecutor’s career, in areas as important as administrative situations, leaves of absence, permits, secondments, discretionary appointments or disciplinary regime.

For example, the Ministry of Justice currently has the power to refuse a secondment for a prosecutor to travel to participate in a particular judicial proceeding or inter-institutional meeting; or the Council of Ministers can depart from a discretionary appointment proposal of the Public Prosecutor General.

In terms of regulatory autonomy, the legal reservation that the Magna Carta itself provides for the regulations of the institution is at odds with the attribution to the Ministry of Justice of the capacity for regulatory development of these regulations, instead of limiting this regulatory capacity for the self-regulation of the institution to the Prosecutor-General’s Office.

This inability to govern the structure and composition of its «own bodies» prevents the Public Prosecutor-General’s Office from remedying any shortcomings it may have noticed in its organisation, which is fundamentally based on the principles of specialisation and territoriality. It should be the Public Prosecutor-General’s Office itself which, by assessing the statistical data collected from all the prosecutor’s offices and centralised in the Public Prosecutor’s Inspection, should be able to allocate personnel resources within the framework of existing or newly created posts.

The regulatory autonomy of the Public Prosecutor’s Office cannot be limited exclusively to the approval of circulars, instructions and consultations in development of the principle of unity of action. The nature of a body of constitutional relevance and the regulatory recognition of its own legal personality demand that the Public Prosecutor-General’s Office has its own regulatory capacity over the internal regime of the Public Prosecutor’s Office, over its own organisation, similar to that of the General Council of the Judiciary.

And finally, training autonomy. Despite the fact that the latest legal reforms have strengthened the leading role of the Public Prosecutor-General’s Office in this area, by assigning us the task of drawing up training plans and strategies for initial and continuing training, the independent training of members of the Public Prosecutor’s Office requires detachment from the organisation and management of the Ministry of Justice and the assumption of exclusive or shared competencies with the CGPJ, based on its own objectives, needs and budget.

In short, the future of the Spanish Public Prosecutor’s Office depends on this comprehensive strengthening of its autonomy, in order to face the new challenges of the future with guarantees of success.

Thank you very much.