The jurisprudence, both Spanish and European, has saved academic researchers from the situation of once again being under previous censorship in the matter of studies on Franco’s repression. The legal battle between the Universitat d’Alacant (UA) and the son of Antonio Luis Baena Tocón, implicated in the court martial that sentenced the poet Miguel Hernández to death, has resulted in a clear endorsement of scientific research and freedom expression. The head of the Administrative Contentious Court number 3 of Alicante considers that the attempt to de-index an academic article by the renowned professor Juan Antonio Ríos Carratalá, author of an extensive bibliography on the dictatorship, would be little less than going back to the times of General Francisco Franco .
“It is evident that we cannot ask a public university to exercise a kind of prior censorship on the scientific production of its teaching staff, because this would entail the revival of the forms of censorship prior to the approval of the Constitution itself,” says the magistrate in sentence. Thus, the article titled The Diego San José case and the humorous judge, published six years ago in the specialized magazine ‘Annals of Contemporary Spanish Literature’ is still hanging in the UA repository.
Of course, the text indicates after the name of the legal lieutenant Antonio Luis Baena Tocón the following formula: “name cited by resolution of the rector of the UA of 30-VII-2019”. The author of the article pointed out about the character and his role in the trial of the communist poet: “The repressive effectiveness of the investigating judge required several collaborators. As in other cases, on this occasion he had the help of Ensign Antonio Luis Baena Stump [nombre citado por resolución del rector de la UA del 30-VII-2019], who would be promoted to lieutenant shortly afterwards until his demobilization on January 27, 1944, when his administrative work was no longer required. ”
In addition, he also alluded to the specific work of the jurist: “Ensign Antonio Luis Baena Tocón [nombre citado por resolución del rector de la UA del 30-VII-2019], who could have told so much to the specialists in the biography of Miguel Hernández, carried out during the postwar period an essential task at the orders of the investigating judge: the purging, emptying and / or disappearance of the republican press funds deposited in the Municipal Newspaper Library from Madrid. His objective was the search for ‘crimes’, which he aggravated with comments whose consequences could be a death sentence. ”
The character, a perfect stranger to the general public, rose to fame (posthumous) as a result of his son’s lawsuit. The magistrate himself explains it in the sentence: “The truth is that the initial petition caused the so-called ‘Streisand effect’, which the appellant himself points out in his claim, and the multiplication of similar articles and comments of all kinds on social networks “. Thus, in the face of the failed strategy, the son of Antonio Luis Baena Tocón tried throughout the process to “extend the object of the same to other localized publications where his deceased father is also cited.”
The judge warns that the alleged injury to the right to honor of a deceased relative does not correspond to the contentious legal field (it concerns the civil order). In addition, a report from the UA vice-rector for Research and Knowledge Transfer concluded that Ríos Carratalá’s publications are “historical research works.” The sentence reviews the right to be forgotten, related to the habeas data and the protection of personal data: “This concept can, on occasions, collide with other rights such as freedom of expression and information,” he explains. Not so in the case of Baena Tocón and his descendants.
The right to be forgotten “does not apply”, according to the European data protection regulation, when the treatment is necessary for “archiving purposes in the public interest, scientific or historical research purposes or statistical purposes”. The author of the article “used the sources obtained in archives of public access to researchers, also using the data necessary for the investigation and omitting irrelevant family or personal data,” says the magistrate.
Judge Manuel Martínez Gargallo and Ensign Antonio Luis Baena Tocón “also acted in the exercise of a public activity, whose data, as is the case at the present time, appear in court decisions.” A repressive activity “in exercise of legality [franquista] then applicable “.
The head of the Contentious Administrative Court number 3 of Alicante reviews other similar cases and applies to the case the criteria of the Spanish Agency for Data Protection on the book Franco’s criminal law and repression of homosexuality as a dangerous state, by the professor at the University of Jaén Guillermo Portilla Contreras.
It also refers to another notorious legal battle, in this case against a veteran journalist. The Constitutional Court resolved the civil lawsuit on the protection of the right to honor, privacy and self-image that the descendants of the lawyer and Falangist Carlos Trías Bertrán filed against the journalist Dolors Genovès and the Catalan public channel TV3 as a result of the broadcast of the documentary Sumaríssim 477, on the Francoist war council that sentenced to death the Catalan politician Manuel Carrasco i Formiguera.
That resolution framed – in 1999 – the substance of the matter: “The uncertainty inherent to the historical debate represents what it has the most valuable, respectable and worthy of protection due to the essential role it plays in the formation of a historical consciousness appropriate to dignity. of the citizens of a free and democratic society “.
The ruling, in short, endorses the investigation of Franco’s repression and clears the concern that aroused the attempt at censorship in university circles. The magistrate concludes: “Scientific freedom should prevail in a historical research work over the protection of personal data, when the information it contains has relevance or public interest.”