The question raised concerns the right to legal assistance of public employees.

First of all, the legal framework for implementation must be analysed. Specifically, it is the consolidated text of the Law on the Basic Status 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 standards.

In view of the above, the question raised focuses on determining how the right to legal assistance of staff members is articulated. In this connection, the following points are made:

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

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

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

The general rule is that the “authorities, official personnel and public employees of the General Administration of the State, the constitutional bodies and the entities belonging to the public sector of the State whose legal assistance corresponds to the General Law of the State by virtue of a legal or regulatory norm, or convention, may be represented and defended by the State Lawyer before any jurisdictional order in the 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 carried out an order of competent authority” (Art. 82.1 RAGE).

In order to assume the representation and defence of these personnel, the State Lawyers must be authorized by express resolution of the Directorate-General for Litigation (art. 82.2 RAGE).

The procedure to be followed in order to obtain such authorization consists of the preparation of a proposal reasoned by the body to which the employee or public employee in question depends, which must contain the essential information so that the General Law Office 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 they have complied with an order of competent authority (Article 82.1 RAGE)

- the authorization 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 connected with the charge, such personnel may apply directly from the State Attorney ' s Office to be assisted by the State Attorney (art. 82.5 RAGE).

On the other hand, in the event that the personnel referred to appear or approach the court through another representation, it will be understood that he renounces 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 a defender, 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 director-general of the public body or entity to which the person on whose behalf the action is intended to be carried out depends, and after a report by the Directorate-General for Contentious Matters (art. 85 RAGE).

In conclusion, the legal system recognizes that public employees may be represented and defended by the State Attorney before any court 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 carried out an order of competent authority, provided that it is compatible with the defence of the general rights and interests of the State, agency or entity concerned.

All of the above is without prejudice to remember 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, do not have the character of a binding criterion, nor do they give rise to rights or expectations of law, nor do they imply any link with the type of procedures to which they refer. In addition, since they are not mandatory or binding, the bodies to which such replies are addressed may, where appropriate, finally take a decision that does not correspond to the opinion contained therein.

The answers to queries contained in this bulletin deal with the issues raised in the light of the regulations in force at the time of their issuance, so that these answers may be affected by subsequent legislative changes or judicial resolutions.