Friday, September 24

Hernando Valencia: “Spanish justice is primitive and conservative, that is why the victims of Francoism are not repaired”


According to the accounts of the Spanish State, the money allocated to economic reparations for the damages derived from the Civil War and the Franco regime amounts to 21,749 million euros, throughout the entire democracy. With the exception of those that were given to 60,683 ex-prisoners and 49 defenders of democracy in the late Franco regime, these are not compensation but benefits in the form of pensions that had not been recognized until that moment because they were victims, officials or Republican military. The malaise in the memorial movement is notorious, because it does not consider that these benefits are a true reparation for the thousands of victims of the brutal and systematic repression exercised by the Francoists. The draft of the Democratic Memory Law makes it literally clear that although convictions and sanctions issued for ideological reasons are considered null and void, they will not give rise to any type of financial reparation or compensation. For the jurist Hernando Valencia Villa, representative of the Spanish Association of International Human Rights Law in Madrid, if Spain had “a more progressive judiciary”, it could “impose on the State its extra-contractual civil liability and therefore its obligation to compensate the families of the victims, “even though 80 years have passed,” because the law is always interpretable. ”

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This doctor of law from Yale University, came as a refugee to Spain after his work as a Human Rights attorney in Colombia, a figure equivalent to the Ombudsman. He advised Amnesty International during the construction of the 2007 Historical Memory law and is a professor of Human Rights and International Politics at the University of Siracusa in Madrid. “The new Democratic Memory Law is very petty in terms of compensation,” he says.

You affirm that with the current laws, the victims of the Franco regime could be compensated. Wouldn’t it be necessary to have a victims’ law?

It is always better to have modern laws but, even with the existing ones, if there were a new generation of judges who were really well trained in international human rights law, international criminal justice and transitional justice, the situation would be different.

Spanish justice is very primitive, conservative and authoritarian. It is one of the spheres of the State that did not experience a true Transition. As José Antonio Martín Pallín, magistrate emeritus of the Supreme Court, says, there is still a very high percentage of judges who come from the Franco regime. People very reluctant to take the point of view of the victims.

After retaliation [represalia] brutal of which Baltasar Garzón was a victim, It is difficult that there are other Spanish judges that are measured to him to that task. It has to be an initiative of the State, broader and more structural. The crimes of the Civil War and the Franco regime continue in impunity and, at least some of them, can be punished. Societies not only have the right but also the obligation to punish international atrocities that have been committed in their territory. As these are international crimes that do not prescribe, it is never too late. But there is a reverential terror, a cerval panic to do it.

How can it be done? Because the Amnesty Law closes that path.

I propose a totally different reading, according to which the Amnesty Law is inapplicable today, because that law was applied and was exhausted at the time of the Transition. It is a law repealed by the new Constitution and inapplicable by current international human rights law. The Constitution itself obliges to abide by this right, which is applied in Spain through the so-called constitutionality block, a jurisprudential figure according to which international norms on rights, freedoms and guarantees form a normative set with the constitutional norms of each State. . I am convinced that a judge can impose compensation in favor of a victim in a specific case and at the expense of the Spanish State, regardless of whether the future Democratic Memory Law prohibits it. The international obligations of the Spanish State are above that law.

Spain is the only European State where the search and identification of the disappeared in an internal armed conflict has not been assumed by the State.

There is also the problem that you cannot judge who has died.

Certainly, but there are cases like that of Martín Villa, or that of Billy the child, which should have been punished by the Spanish justice system, where it could have been done.

And what role does the Executive play?

I am sure that if the State were more determined, a compensation system could be established that probably does not satisfy everyone but that does contribute to the injustice that the victims continue to suffer. It can cost a lot of money and many years, but it’s a matter of getting started.

And in the case of the search for the disappeared, too. Spain is the only European State where the search and identification of the disappeared in an internal armed conflict has not been assumed by the State. That was the great aberration of the 2007 Historical Memory Law. That cannot be transferred to individuals, it is outrageous.

What costs a lot of money and takes a long time? Well, what are we going to do, they are things that have to be done. In Germany they are still debating the issue and here it has not been possible to make progress on the matter.

In Spain there has been a Transition, but has there been transitional justice?

No. There was a very limited Transition here. Basically because the dictatorship was not overthrown but lost its visible head and was partially transformed into a parliamentary monarchy with some specific advances but with a marginal participation of the opposition. No real effort was made to clarify, punish and repair the crimes of the Civil War and especially of the dictatorship, which is what transitional justice consists of: the effort made by a society that tries to return or advance towards democracy or peace after a great political crisis. Historical memory must be clarified and public truth established. Here there is still a very bitter dispute about what happened in the Civil War and it is still scandalizing to see the leaders of the parliamentary opposition saying the bestialities they say about the Civil War, that is absolutely unacceptable and it does not occur in any other country in Europe.

For example, with the truth commissions of Chile, Guatemala and El Salvador, there has been very little judicial justice but there has been a recovery of historical memory and a construction of a public truth about the past.

There has not been a truth commission because there is still a fierce, bitter and very unfair ideological dispute about what happened in the Civil War

I perceive a lot of fear in front of those historical truths that for many are obvious: here there was an illegal military uprising against the Republic on July 18, 1936 and as a result a civil war and as an effect of the victory of the coup plotters, a dictatorship that lasted almost 40 years. This, which is obvious, is not accepted by a part of the population to a large extent because the effort has not been made to construct a story that has the force of public truth and that can be placed at the center of the debate. That’s what truth commissions do.

Why hasn’t there been a truth commission in Spain?

Because there is still a fierce, bitter, very unfair ideological dispute about what happened. Why was there a Civil War, why did it end in a dictatorship and how things happened in the Transition. The Transition cannot be deified and mystified. It cannot be converted into the mythological origin of the Spanish State and cannot be questioned.

There is an argument that I have always found unacceptable and that is that we cannot judge past events today. If we cannot judge with our eyes of today, which are the only ones we have, with what eyes are we going to judge them? With what justification do states make changes and reforms? With which every generation has to question the legacy inherited from their ancestors.

Is Spain an anomaly in the sense that so much time has passed since the conflict until today, without having done a true transitional justice? Can justice be done even after so many years?

The Spanish case is quite rare and special. Yes, there has been an important historical delay in beginning to face transitional justice. This does not mean that in other comparable experiences, such as the South African, Chilean, Guatemalan or Colombian, the problems of transitional justice have been resolved in a shorter period: they have been faced much sooner but they have not been fully resolved. . In Chile there have been two truth commissions. The first was timid and the second went much further and responded better to the demands of civil society. Argentina, to a certain extent, is a model in terms of transitional justice. There was a very early truth commission there that produced a great report and a series of trials. There are still many disappeared and pending cases, but there was a trial with the political leaders of the Military Juntas during the dictatorship, which in itself was an extraordinary feat. In Guatemala, the truth commission’s report was historic. In El Salvador they fell short on names, which is a fundamental aspect of the work of a truth commission. It is one thing that the majority of truth commissions cannot bring anyone to trial, but it is another thing that in the final report those responsible for the most serious crimes are identified so that the historical record remains and so that the victims do the same. that they can.



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