Right to legal assistance for public employees

The issue raised concerns the right to legal aid for public employees.

In the first place, the legal framework for implementation must be analysed. Specifically, it is the consolidated text of the Law on the Basic Statute of the Public Employee, approved by Royal Legislative Decree 5/2015, of 30 October (TRLEBEP, hereinafter) and Law 52/1997, of 27 November, on Legal Assistance to the State and Public Institutions and the Regulation of the General Legal Profession of the State, approved by Royal Decree 1057/2024, of 15 October (RAGE, hereinafter), in the scope established in both norms.

In the light of the above, the issue raised focuses on determining how the right to legal assistance of staff members is articulated. In this regard, the following is noted:

Article 14(f) of the TRLEBEP recognizes the right of public employees to “the legal defense and protection of the Public Administration in the proceedings that are followed before any jurisdictional order as a result of the legitimate exercise of its functions or public offices”.

For its part, article 2 of Law 52/1997 of 27 November, on Legal Assistance to the State and Public Institutions, states that “under the terms established by law, the State Attorneys may assume the representation and defense in judgment of the authorities, officials and employees of the State, its Public Bodies (…) and Constitutional Organs, whatever their procedural position, when the proceedings are followed by acts or omissions related to the position”.

This forecast is specified in the arts.82 and following of the RAGE.

The general rule is that the “authorities, civil servants and public employees of the General Administration of the State, constitutional bodies and entities belonging to the State public sector whose legal assistance falls to the General Legal Profession of the State by virtue of a legal or regulatory norm, or agreement, may be represented and defended by the State Legal Profession before any jurisdictional order in cases in which any action is directed against them as a result of the legitimate performance of their functions or positions, or when they have complied with an order of competent authority” (art. 82.1 RAGE).

To assume the representation and defense of these personnel, the State Attorneys must be authorized by express resolution of the General Directorate of Litigation (art. 82.2 RAGE).

The procedure to be followed in order to obtain such authorization consists in the preparation of a proposal reasoned by the body on which the employee or public employee in question depends, which must contain the necessary background so that the General Legal Profession of the State-Management of the Legal Service can verify the concurrence of the required requirements (art. 82.4 RAGE).

These requirements are as follows:

- it must be a judicial procedure that is the result of the legitimate performance of the functions or positions of these personnel, or when it has complied with an order of competent authority (Article 82.1 RAGE)

- empowerment must be compatible with the defence of the rights and general interests of the State, agency or entity concerned and, in particular, of those under discussion in the same process (Article 82.3 RAGE).

In cases of detention, imprisonment or any other precautionary measure for acts or omissions related to the charge, these personnel may request directly from the State Attorney to be assisted by the State Attorney (art. 82.5 RAGE).

On the other hand, in the event that the personnel indicated appear or address the court through another representation, it will be understood that they waive legal assistance from the State Attorney (art. 82.6 RAGE). And this is because this regulation does not affect the right of the authority, official or public employee to appoint counsel, or to be appointed ex officio.

Finally, with regard to the possibility of the State Attorney carrying out actions on behalf of these personnel, express authorization is required from the Ministry in which the State Attorney ' s Office is integrated, on the reasoned proposal of the head of the department, president or general director of the public agency or entity on whose behalf the person on whose behalf the actions are intended to be carried out is dependent and after a report from the General Directorate of Litigation (art. 85 RAGE).

In conclusion, the legal system recognizes that the public employed personnel may be represented and defended by the State Attorney before any jurisdictional order in cases in which any action is directed against them as a result of the legitimate performance of their functions or positions, or when they have complied with an order of competent authority, provided that it is compatible with the defense of the rights and general interests of the State, agency or entity concerned.

All of the foregoing is without prejudice to recalling that, according to the regime of competences of this management center, the answers to queries issued by this general directorate are merely informative and, consequently, are not of a binding criterion, nor do they give rise to rights or expectations of law, nor imply any link with the type of procedures to which they refer. Furthermore, in the absence of a mandatory or binding nature, the bodies receiving such replies may, where appropriate, finally take a decision that does not correspond to the opinion contained therein.

The responses to queries contained in this bulletin address the issues raised in the light of the regulations in force at the time of their issuance, so that such responses may be affected by subsequent legislative changes or judicial decisions.