Our country has a debt pending with the victims of the Franco regime. After more than 82 years since the end of the Civil War and 46 years since the death of the dictator, its recognition is still pending. Because that is what the Democratic Memory Law is about, to recover the memory of the victims of Francoism.
With the military coup of July 1936 and the Civil War, hundreds of thousands of people were murdered, most without trial, simply for having been loyal to republican legality. Even today, tens of thousands of disappeared people remain in mass graves and gutters (the Council of Europe reported in 2016 more than 114,000 victims of forced disappearance), without their families knowing their whereabouts and their remains cannot be exhumed with dignity. Similarly, there were tens of thousands of people who suffered repression by the dictatorship. Likewise, thousands of children were stolen from their mothers and given up for adoption.
The Transition had a laudable objective, reconciliation among the Spaniards, but it was done with oblivion of the victims of the Franco regime, over whom a tacit pact of silence was extended that made them doubly victims: for having been murdered and for the oblivion to which they were subdued. Its recognition and dignity was and is a moral duty in political life and a sign of the strength of democracy. History cannot be built on the forgetfulness of the victims, but on the principles of truth, justice and reparation, which are the only ones that can heal the wounds that still remain open.
It was in the nineties when they began to promote their recognition by relatives and associations of democratic memory, demanding their location and the lifting of mass graves. And later filing a complaint before the National Court to investigate the crimes of the Franco regime and prosecute those responsible for crimes against humanity. That complaint gave rise to criminal proceedings followed in the Central Court of Instruction No. 5 by Judge Garzón, which the Supreme Court filed, agreeing to close the issue from a criminal perspective, establishing that it is not possible to judicially investigate the crimes of the Franco regime, at least in Spain, when understanding that crimes are amnestied and have prescribed, and that the work now belongs to historians. The Constitutional Court has also upheld this thesis in a recent order, although with interesting individual opinions.
In 2007, the Historical Memory Law was approved, promoted by the Zapatero Government. It was the first step by Parliament to recover the memory of the victims of the Franco regime. Prudent and moderate, in order to try to incorporate the Spanish political right into this task, it involved, among other things, the application of an item from the State Budget for exhumations and support for associations of memory and victims and families, and the opening of an Office for Victims of Francoism and the Dictatorship. But the right, too conditioned by the Franco roots of many of its members, opposed its application and the Rajoy government left the budget at zero euros, closing the Office of Victims.
At the same time, different international human rights organizations have approved various reports, highlighting that of the UN Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-repetition, Pablo de Greiff, of July 2014, with important Recommendations to the Government of Rajoy on the rights of victims. Assessing the Historical Memory Law, he called for public policies in favor of memory and public budgetary resources for that purpose and pointed out that “assistance to victims is not a matter of party politics or political programs, but of principles and rights that concern everyone “.
In this context, with an increase in the demands of historical memory associations and advances in many areas, particularly with the approval of regional laws and the withdrawal of the dictator’s body from the Valley of the Fallen, the Government has presented in Congress a Democratic Memory Bill, the approval of which will overturn the situation of the victims and their recognition and which, in my opinion, adequately satisfies the central core of the demands of the memorial movement.
Condemnation of the Franco regime and nullity of the sentences
The bill begins with the “repudiation and condemnation of the coup d’état of July 18, 1936 and the subsequent Franco dictatorship”, the first time that a democracy law directly addresses this issue, and is based on and revolves around the right to the victims of the Franco regime to their memory, to their recognition as such through a State Census of Victims, to the knowledge of the truth of what happened and the establishment of their justice and reparation.
As a consequence of this approach, it declares the sentences and sanctions carried out by courts and other organs of Franco for political, union, ideological or belief reasons radically null. It should be remembered that the most important reason that ERC alleged for not supporting Zapatero’s Historical Memory Law was precisely that it did not declare the nullity of the sentences (they insisted on the Companys case), but only their illegitimacy, which it does now the new bill.
Right to truth and restorative justice
Very important, in my opinion, is the leap that the new project introduces in the recognition of the right to the truth, understood as “the verification of the facts and the public and complete disclosure of the motives and circumstances in which the violations were committed.” of human rights. In the first place, from now on the State will undertake the search for the disappeared, the exhumation of the graves and the investigation of what happened, directly or in collaboration with autonomous communities and municipalities, as well as creating a State DNA Bank, vindication of relatives of the victims and international organizations, and facilitating the investigation in public and private archives. Already in the current State Budgets there is a significant item for these purposes.
But also, and in view of the position of the Supreme Court regarding that there is no judicial investigation into events that occurred 70 or 80 years ago, because it is not possible to judge those who have died – practically all of them – and whose crimes have also prescribed and / or would be amnestied, the bill creates a specific Chamber Prosecutor’s Office and bravely introduces a path of judicial investigation in order for a judge to carry out a judicial statement on the victims, the events that occurred and, where appropriate, those responsible for the murders or torture, even if they are dead. It is a form of restorative justice, typical of situations of this nature in which so many years have passed and it is no longer possible to judge the perpetrators, which implies the full guarantee of the constitutional right to effective judicial protection.
There is a minority of the memorialist movement that considers that without the repeal of the Amnesty Law of 1977, it is not possible to do justice to the victims of the Franco regime. I disagree with that position for political and legal reasons. Politically, because that law was in no way an end-point law that the dictatorship apparatuses gave themselves. We were the people of my generation and of the previous ones, who fought against the dictatorship, who at the time demanded amnesty and this was the result of an agreement between the late Francoism and democrats of all walks of life, being precisely the Popular Alliance who did not vote for it. .
From a legal point of view, I disagree because the repeal of the Amnesty Law would not imply that the amnesties ceased to be so. A basic principle of Enlightened Criminal Law is that of non-retroactivity of criminal regulations that are unfavorable for inmates. The repeal would only have effects in the future, not in the past. The way to do justice to the victims has to be another, fundamentally the interpretative one, in the sense that that law amnestied the crimes that it includes in its articles, but not the crimes against humanity, in accordance with International Criminal Law and the doctrine of Nuremberg. This implies judicial mediation, now closed in our country, but not necessarily in other international spheres.
But in addition, the amnesty law does not renounce or close the door to judicially know the truth of what happened to the victims. That is why the bill is committed to restorative justice, a judicial way of knowledge and declaration of that truth, although it does not entail, because it does not fit, sentences to the dead or, where appropriate, to amnestied.
In the same perspective of knowledge of the truth, the bill provides for the creation of a Democratic Memory Council, as a consultative and participatory body of memorial entities, together with the Administration and experts, which in turn may constitute ” a working group to prepare a report to systematize the existing information on the violation of human rights during the War and the Dictatorship, “with the participation of the victims and their families. It is, in short, and although the name is avoided, the embryo of a possible Truth Commission, also claimed by the UN rapporteur, who already pointed out that “this mechanism could adopt different modalities and formats.”
The new norm also includes important measures to guarantee the “duty of memory”, to avoid in the future the recurrence of human rights violations such as those that took place with the coup d’état and the dictatorship, such as the withdrawal of Francoist symbols in public places, elimination of decorations for torturers and noble titles of the Franco regime, creation of places of democratic memory, redefinition of the Valley of the Fallen and a wide set of measures in education and teacher training. And along with this, the prohibition in the Penal Code of acts of exaltation of the military uprising or the dictatorship, or of humiliation of its victims, and the extinction of foundations that defend the Franco regime.
The cultural battle
To dignify the victims and heal the wounds that are still open, the approval of this law is a very important step, with the improvements that can be incorporated by Parliament. But it is no less so to face the cultural battle that the right is taking, dragged by the extreme right, a cultural battle that is present in the vindication of stale Spanishism, in the attempt to remove Largo Caballero and Indalecio Prieto from the streets of Madrid, while Millán Astray is reincorporated, and in the continuous stigmatization of the history of the left. We have even just heard in the recent PP Convention, the will of some of its leaders to repeal everything that historical memory means. Spanish democracy has a political and moral duty to recover the memory of the victims of the Franco regime.