La designación de siete procuradores adjuntos efectuada en la Procuraduría General de la República se acoge al mandato de la Constitución y la Ley Orgánica del Ministerio Público, que establecen estas funciones como cargos de confianza de la máxima autoridad de la institución, explicó este viernes el procurador adjunto Wilson Camacho.
La Constitución de la República no configura, en su artículo 171, la función de adjunto del Procurador General de la República como un cargo de carrera, sino que se limita a establecer que una parte de los abogados que desempeñarán ese cargo son de libre designación por el Presidente de la República y la otra se sujeta a la concretización de la ley, “no de un reglamento ni de ninguna otra fuente de derecho de menor jerarquía”, amplía el magistrado Camacho en un comunicado.
Citó, además, varios artículos de la Ley Orgánica del Ministerio Público (número 133-11, del 9 de junio de 2011).
“El hecho de que este cargo dentro del Ministerio Público, al igual que su función análoga en el Poder Judicial, no estén sometidos a las exigencias de la carrera, aunque sea necesario que una parte de ellos provengan de la misma, trae como consecuencia que los órganos de gobiernos de estas instituciones carezcan de competencias normativas y de control sobre el ejercicio de esa función”, puntualizó.
Insistió en que la configuración constitucional y legal de la función de adjunto del Procurador no deja dudas de que el titular de la Procuraduría cuenta con la competencia exclusiva de escoger la mitad de sus adjuntos de entre el rango de Procurador General de Corte de Apelación, sin ninguna otra limitación.
En ese contexto, recordó que se trata de una función de confianza institucional con el titular del cargo. Sin embargo, saludó el hecho de que algunos integrantes del Ministerio Público y de la comunidad jurídica de República Dominicana muestren interés en vigilar y debatir todas las decisiones que emanen de un órgano superior, debido a que de esa forma se fortalece la gestión de transparencia y el Estado de derecho.
A continuación, los planteamientos del magistrado Wilson Camacho:
Procuradora General de la República designó procuradores generales conforme a la Constitución y a la ley
La Procuradora General de la República actuó conforme el mandato de la Constitución y de la Ley Orgánica del Ministerio Público cuando designó a los procuradores adjuntos tras asumir sus funciones.
El artículo 171 de la Constitución de la República no configura la función de adjunto del Procurador General de la República como un cargo de carrera, sino que, por analogía al estatuto de los jueces de la Suprema Corte de Justicia (que tampoco son de carrera), se limita a establecer que una parte de los abogados que desempeñarán ese cargo son de libre designación por el Presidente de la República y la otra se sujeta a la concretización de la ley, no de un reglamento ni de ninguna otra fuente de derecho de menor jerarquía. Esta legislación es la Ley Orgánica del Ministerio Público (LOMP), núm. 133-11, adoptada el 9 de junio de 2011.
El artículo 31 de la Ley 133-11 establece: “El Procurador General de la República contará con un máximo de catorce procuradores adjuntos, de los cuales la mitad será designada por el Presidente de la República entre juristas que cumplan los requisitos para ser Procurador General de la República. La otra mitad será seleccionada por el Procurador General de la República entre los procuradores generales de Corte de Apelación que cumplan con los requisitos para ser sus adjuntos”.
El hecho de que este cargo dentro del Ministerio Público, al igual que su función análoga en el Poder Judicial, no estén sometidos a las exigencias de la carrera, aunque sea necesario que una parte de ellos provengan de la misma, trae como consecuencia que los órganos de gobiernos de estas instituciones carezcan de competencias normativas y de control sobre el ejercicio de esas funciones. Así como, el Consejo del Poder Judicial carece de competencia para normar y fiscalizar la función de los jueces de la Suprema Corte de Justicia, tampoco el Consejo Superior del Ministerio Público tiene facultad para fiscalizar y controlar la función de los Adjuntos del Procurador General de la República. De ahí que el artículo 32 de la Ley 133-11 otorga al Procurador la potestad de control sobre estos funcionarios y la determinación de las funciones que habrán de ejercer.
En la LOMP se reafirma que la función de adjunto del Procurador General no es un cargo de carrera, por lo que atribuye al Procurador la libre escogencia de la mitad de los adjuntos de entre los Procuradores de Corte de Apelación que cumplan con los requisitos legales para ser Procurador General de la República.
Esto es, conforme al artículo 29:
1) Ser dominicana o dominicano de nacimiento u origen y tener más de treinta y cinco años de edad;
2) Hallarse en el pleno ejercicio de los derechos civiles y políticos;
3) Ser licenciado o doctor en derecho, y
4) Haber ejercido durante por lo menos doce años la profesión de abogado, la docencia universitaria del derecho o haber desempeñado, por igual tiempo, las funciones de juez dentro del Poder Judicial o de representante del Ministerio Público. Estos períodos podrán acumularse.
Al no ser los Adjuntos puestos de carrera, en consecuencia, se puede afirmar que ésta termina en el puesto de Procurador General de Corte, situación que, como hemos dicho, se asemeja a lo que ocurre en el Poder Judicial. El que se exija que una parte de los adjuntos provengan de la carrera, no se puede interpretar como una obligación del órgano elector de escoger a sus adjuntos conforme el escalafón de la carrera, y, por analogía, la práctica institucional seguida en la escogencia de los jueces de la Suprema Corte de Justicia así lo confirma.
La configuración constitucional y legal de la función de adjunto del Procurador no deja en duda que el titular de la Procuraduría cuenta con la competencia exclusiva de escoger la mitad de sus adjuntos de entre el rango de Procurador General de Corte de Apelación, sin ninguna otra limitación, pues al tratarse esta de una función de confianza institucional con el titular del cargo, no es jurídicamente válido que un reglamento adoptado por un órgano que carece de competencia normativas sobre estas funciones, pretenda introducir limitaciones que la ley no ha previsto, con lo cual esa disposiciones reglamentaria es ilegal e inaplicable en términos materiales por no haberse instituido el escalafón, como hemos reiterado.
Por todo lo expuesto, repetimos que la Procuradora General de la República actuó apegada al mandato de la Constitución y de la Ley Orgánica del Ministerio Público cuando designó sus adjuntos.
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