The legal mess has been on the table for six years now. The Andalusian José González González has been trying since 2016 to get the justice to declare that he has no children and that he is not the biological father of the woman that a sentence issued in 1968, in the midst of the Franco dictatorship, forced him to recognize. The ruling convicted him of statutory rape, a crime that has now disappeared. He accuses him of having deceived a young woman by promising to marry in order to have sexual relations for which she became pregnant and sentences him to three months’ imprisonment, the payment of 50,000 pesetas and to recognize her daughter. More than half a century later, José continues to maintain that it is not true and has taken the case to Europe.
The grave that was a trench and a pigsty, but it is now memory
A divided Supreme Court has shelved the matter, so the man has just filed a lawsuit before the European Court of Human Rights (ECHR), based in Strasbourg, after the failed judicial journey in Spain. He assures that in 1968 he unsuccessfully complained to the court that condemned him for the practice of the only evidence existing at that time, of little reliability. But he has not been able, for the time being, to get justice in a democracy to grant him what he is demanding: DNA tests that, according to him, would rule out his biological paternity and to which the other party has refused to submit. .
“It is a historical injustice that has caused my family and my uncle a lot of suffering,” explains Sebastián Magro, José’s nephew, who, according to him, has not acted as a father “nor has any responsibility been claimed” for the daughter. that he had to admit. The family suspects that it is “imposed paternity” at the time by “third party interests”, something that the other party denies. What happened to José does not go beyond a symbolic question, but it is important for him: that in the Civil Registry it cease to appear that he has descendants and that he be given the opportunity to prove it against the “anachronistic” procedure that condemned him in pre-constitutional Spain. , he maintains.
The 1968 ruling goes so far as to ensure that the woman was a “young woman of honest customs” and punishes José for the crime of rape contemplated by the Franco Penal Code and that condemned men who, through deceit or abuse of superiority, had sexual relations with girls of “accredited honesty” under 23 years of age. Specifically, the sentence ensures that José “flattered her girlfriend’s spirits with the promise of marriage”, in which “she fully trusted” to have sexual relations with the young woman, who was 17 years old.
The versions of both, however, differ. The man, who was then 23 years old and lived in a town in Huelva, assures that they never had any relationship and that he knew her “only” because she “worked as a maid in the house of some wealthy neighbors” in the same town. Like many other humble families at the time, at the end of 1963 José was preparing to emigrate to Germany to work, from where he learned that he had been denounced and forced to recognize the newborn, according to his account.
For its part, the defendant asserts that the attempt to challenge paternity is “unfounded” and that the sentence that condemned José was “the result of the will of a father to defend the honor of his daughter”, since then the pregnancies outside of marriage they were socially reprehensible. According to her account, the daughter has no contact with José “by his will” because he “denied his paternity and fled.” “It was not a sporadic, hidden or invented relationship,” she affirms in the response to the lawsuit, in which she assures that the relationship ended when José “learned about her pregnancy, leaving her alone” to “avoid responsibilities”.
What is made clear in the brief, something that was also corroborated at the court hearing, is that he refuses to submit to the paternity test requested by José “for a simple reason”: “because he has not the slightest doubt that Mr. González he is his father”, for which he considers that agreeing to it is “doubting his mother’s word” and links it to a moral issue. According to the lawsuit filed by José before the ECHR, he has refused “up to seven times” to take the test since in 1989 he tried it for the first time without success through a lawyer.
A divided Supreme Court and the support of the Prosecutor’s Office
José has exhausted all possible instances in Spain, but both the Court of First Instance No. 7 and the Provincial Court of Huelva dismissed the claim and the Civil Chamber of the Supreme Court rejected the appeal. The last step has been taken in the Constitutional Court, which has inadmissible the amparo appeal that he presented for what he considers “the violation of his effective judicial protection” for depriving him “of the most important and decisive evidence for the resolution of the procedure”.
The Supreme Court has followed in the footsteps of the previous instances. The man requested that paternity be denied based on article 140 of the Civil Code, which allows filiation to be challenged, and on the sixth transitory provision of Law 11/1981 of May 7, which was approved shortly after the end of the dictatorship with the aim of “alleviating the excessive difficulties that the previous system posed to the investigation of biological truth”, acknowledges the Supreme Court. The precept establishes that the final judgments on filiation “will not prevent the action based on evidence or facts only provided for in the new legislation from being exercised again”, such as DNA tests.
For the Supreme Court, the case does not fit into this provision, but it accepts its “analogous application” because it considers that the reasons that led the legislator to promote the reform in 1981 concur. However, it ensures that the action is not imprescriptible and applies the term, also by analogy, that establishes article 140 of the Civil Code for the challenge of filiation in certain circumstances. That is to say, the court assures that José had a period of four years already expired since 1981 to challenge paternity.
The Supreme Court’s pronouncement has not been unanimous and two judges have signed a separate vote in which they disagree with the resolution and claim to agree on the practice of the biological test. The magistrates criticize the establishment of a maximum period of four years because “it is not up to the courts to establish prescription periods when the legislator has not done so” and maintain that if the law had wanted to set a maximum time, it would have been done. They also believe that affiliation with possession of state should not be equated with that in which it does occur.
The Prosecutor’s Office also adhered to José’s appeal and ensures that “defenselessness has occurred” by depriving him of biological evidence, which is “clearly pertinent and relevant to the resolution of the lawsuit,” he estimates in his letter.
“An anachronism” in democracy
The case has been reviewed by Amnesty International, specifically by the local group of the NGO in Huelva, which considers that the courts have made José “defenseless” by applying an expiration term by analogy “that breaks the principle of legal certainty” and “it robs him of the possibility of proving whether or not he is biologically related”, that is, “of being able to prove, in his case, his innocence”, considers José María Molina Heredia, spokesperson for Amnesty International Huelva.
José’s family has always suspected that if there has been a concealment of the biological truth, as they affirm, “it must be due to the interests of third parties” with greater influence and power at that time and they consider that mother and daughter are also victims. of the society of the time. “I understand that there could be a more than probable obligation on the part of third parties to endorse this paternity,” says Sebastián, his nephew. “It was not an uncommon practice at the time of caciquism, during the Republic and Francoism, for caciques to have lower-class lovers and then impose their paternity on others. We must remember that they dominated the social life of the towns”, says Molina, also a historian.
The family trusts that the case will continue its course in Strasbourg because despite the fact that his uncle’s paternity only appears on paper, the entire process “caused excessive and gratuitous suffering” to his grandparents, according to his account. Sebastián is also especially critical of the position of the Supreme Court, which “hinders access to their basic human rights,” he says. “They have not allowed him to prove non-paternity before or after the entry of democracy in Spain”, which “is an anachronism with the means of proof based on scientific advances”, he believes.