Universal Justice and the Recovery of Spanish Historical Memory

In this article we look at the news of the arrest warrant for 19 ex officials from the Spanish dictatorship issued by Argentine Interpol on October 31.  This report will review some key aspects on how international law has regulated the recent Spanish historical memory.



Jordi Albacete

Last November the Argentinean Interpol informed their Spanish counterpart section about the arrest and extradition of 20 ex officials of the Spanish dictatorship (1939-75), accused of crimes against humanity.

One of these former officials was the Franco’s ex-Minister, Antonio Barrera de Irimo, who died just before the warrant of arrest (1). His death reduced the list to 19.

According to the police, the security forces limited themselves to transferring this order to the public prosecutor of the Spanish High Court (Audiencia Nacional).

Judge María Servini de Cubría instructed Interpol to preventively arrest, among others, Utrera Molina, an ex-Housing Minister and father-in-law of the recent former Minister of Justice, Alberto Ruiz Gallardón.

The ex-minister is charged with having garroted, in 1974, Catalan anarchist Salvador Puig Antich. This was one of the last  death executions carried out by the Spanish dictatorship. Another defendant (2)  is Rodolfo Martín Villa, former Minister of Home Affairs.

[youtube height=”550″ width=”1000″]https://www.youtube.com/watch?v=-ivQYaQ1ui0?enablejsapi=1[/youtube]

Scene of the execution of Salvador Puig Antich in the film Salvador (2006).

The Amnesty Law

The Spanish Minister of Justice, Rafael Català, said that it was very unlikely that the arrests would be made because these crimes were already time-barred.  Català stated that there is an amnesty law that protects the arrests. This law was passed two years after the end of the dictatorship, in 1977, to write off (3) the sentences of political prisoners.

The same law has hindered (4) the investigation into the crimes against humanity perpetrated during the civil war and the Franco regime.

As a result relatives of victims of the civil war appealed to the Argentinean justice, where the Amnesty Law is not applicable. In addition, the South American country has an extradition treaty with Spain.

The Historical Memory Recovery Law

In 2000 a mass grave of victims of the Spanish civil war was found in El Bierzo (province of León, in the Northwest of Spain).

That finding added more pressure to investigate the crimes against humanity in Franco’s regime.  In previous years different political decrees were adopted to start researching these crimes.

As a result of the discovery of this mass grave an official specialised Documentation Centre for these crimes was inaugurated in 2004. However, despite the creation of the new Centre, the 1977 Amnesty Law continued to hamper (5)  liability.

Organizations such as Human Rights Watch and Amnesty International requested on several occasions the Spanish Government to repeal this law since it was not in accordance with international law.

In 2007, during José Luis Rodríguez Zapatero Socialist Government, the Recovery of Historical Memory law was passed. This new law included the recognition of all the victims of the civil war and the Franco dictatorship, but it didn’t provide for the opening of mass graves in which are the remains of the Republican side lie (those who resisted the rebellion of Franco’s troops) as some associations had requested (namely, the Association for the recovery of historical memory (ARMH)).

[cml_media_alt id='348']Spanish_Civil_War_-_Mass_grave_-_Estépar,_Burgos[/cml_media_alt]
Mass grave in Estépar, the Burgos province (Central North Spain).

There are more than 100,000 people buried  in the mass graves, placing Spain in the world rankings as the country with the highest number of missing people after Cambodia, according to Joaquim Bosch, the spokesman for the progressive association Judges for Democracy.

The Investigation of Judge Garzón

[cml_media_alt id='550']Recorrida por la ESMA[/cml_media_alt]
Judge Baltasar Garzón

Judge Baltasar Garzón supported the different associations of victims of the Franco regime, namely the Association for the Recovery of Historical Memory (AMH acronym from its name in Spanish).

The highest Spanish courts (National High Court, Supreme Court and the General Council of the Judiciary) questioned this judiciary initiative.

In September 2008 Garzón started to seek information from the Government, the Episcopal Conference and several municipalities to develop a census of victims (shot, missing and buried in mass graves) of Franco’s victory in the Spanish civil war. The judge instructed the opening of 19 mass graves scattered around the country, including the one in which the world-known poet Federico García Lorca supposed to be buried.

The National Audience prosecutor appealed this investigation. As a result, judge Garzón was declared non-eligible to judge this case. This led to a complex prosecution process against Garzón. The highest legal institutions of the Spanish State, such as the Supreme Court, Spanish State, the Supreme Court, took part alongside with a popular accusation representing allied groups in the right, Manos Limpias (Clean Hands in Spanish).

In 2010 the Supreme Court, and later the General Council of the Judiciary, suspended judge Garzón. This provoked a very important reaction in a vast sector of the Spanish society seeking for historical recovery.

Most notorious was the proposition of the Foundation José Saramago (Nobel Prize in Literature) to nominate Baltasar Garzón with the Nobel Prize in Peace for his fight on the historical reparation despite an unfavourable legal framework to do so.

The Supreme Court acquitted Baltasar Garzón on 27 February 2012. The judgement ruled that judge erred in interpreting standards excessively, but that such conduct did not constitute a crime of trespass. According to the new sentence, this ‘excess of responsibility’ could be justified by the need of protection for the victims.

Also the Catholic Church is being held accountable for being in collusion (6) with the regime.

In 2012 the Office of the United Nations High Commissioner for Human Rights formally asked Spain to repeal the law, insisting that it violated international human rights legislation.

Spain, a Contradictory Example of the Historical Memory Recovery

While in Spain, the amnesty law hindered the prosecution of victims of the dictatorship, the application of international law helped the Spanish judge to prosecute processes of historical reparation in Argentina and Chile.

Garzón requested an arrest warrant for former Chilean dictator Augusto Pinochet for the death and torture of Spanish citizens during his tenure and for crimes against humanity in Chile, based on the information that had been brought from the Chilean Truth Commission.

[cml_media_alt id='552']General Augusto Pinochet con Margaret Tatcher[/cml_media_alt]
General Augusto Pinochet with Margaret Tatcher

In addition, Garzón insisted his willingness to investigate the American ex-Secretary of State, Henry Kissinger for his complicity in the establishment of Latin American dictatorships during the 1970s and in particular in Operation Condor. In relation to this investigation Garzón also prompted to try Argentine citizens  for the disappearance of Spanish citizens during the dictatorship in Argentina (1976-83).

This leadership to prosecute crimes of Latin American dictatorships contrasted with the leverage to be able to prosecute the crimes of the Franco regime. The same evening that Judge Garzón was declared incompetent to judge the Spanish crimes, the representative of the organization Human Rights Watch (HRW) Reed Brody denounced the “double standards” of the Spanish justice, which investigated dictatorships like those of Chile and Argentina but had prosecuted a judge for having done the same thing with the Franco regime.

The legal adviser at Amnesty International said that “Spain’s and any State’s duty is to pursue any violation of human rights, and they cannot prosecute for doing so”, and calls the accusations against Garzón was dismissed for so close “a process of scandalous nature”.

In February 2014 Spanish MP’s voted for a proposal to limit universal justice. This proposal aimed to avoid prosecution by Spanish judges around international crimes. This law was appealed by different organisations and political parties in Spain.

[cml_media_alt id='554']Uno de los cambios fundamentales con la aplcación de ley MH (2007) fue el cambio del nombre de calles.[/cml_media_alt]
One of the key changes in the implementation of the law MH (2007) was the change for the names of the streets.

In addition, there was controversy over where to handle document to investigate political crimes during Franco’s regime. These documents are known as Papers of Salamanca (a documentary expropio in Catalonia during the Spanish civil war).  Those ‘papers’ have been traditionally claimed by Catalonia, in order to document cases of persecution victims.

In short, the law of historical memory needs a more ambitious legal framework to make effective reparations for the victims, especially to identify the missing ones  during 43 violent years of Spanish history. Silence cannot be the solution for a society that pursues a normalized democracy well differentiated from a dark past.

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Use of English for Spanish Speakers

(1) Warrant of arrest.

Definition: an authorization issued by a magistrate or other official allowing a constable or other officer to search or seize property, arrest a person, or perform some other specified act (Source Collins Dictionary).

Example: “3 Million Arrest Warrant Issued for Carmel Jewelry Robber” (Headline in a newspaper).

Translation into Spanish: Orden de detención  judicial. Warrant equivale a una orden o un mandato judicial. En muchas ocasiones “warrant of arrest” puede ser traducido como una “orden de búsqueda y captura”. Otros autos judiciales donde se utiliza “warrant” son:

  • Search warrant. Orden de registro.
  • Warrant of attachment. Autorización de intervención de cuenta bancaria.
  • Warrant of execution. Orden de ejecución.

 (2) Defendant.

Definition: a person against whom an action or claim is brought in a court of law.

Example: “Third defendant gets prison time in Sutter County stabbing”.

Translation into Spanish: Demandado/a.  “Defendant’s right to remain silent” (Derecho del acusado a permanecer en silencio).

 (3) To write off. 

Definition: to cancel (in this case the sentences of political prisoners). But often it is used to cancel debts.

Example:  “The United States agreed to write off debts worth billions of dollars”.

Translation into Spanish: Cancelar.

 (4) To hinder. 

Definition: to prevent.

Example: “French broadcast monitor studying problems with attack coverage, whether it hindered police” (In the newspaper headlines).

Translation into Spanish: dificultar, entorpecer, poner trabas.  “He wanted to arrive early but was hindered by heavy traffic” (Él quería llegar temprano pero el tráfico se lo impidió”.

 (5) To hamper. 

Definition: to prevent the progress or free movement of.

Example: “It hampers our success. It hampers our ability to succeed”.

Translation into Spanish: Enlentecer/Obstaculizar. “Her heavy suitcase hampered her running”. “Su maleta pesada le impedía correr”.

(6) In collusion. 

Definition:  secret agreement for a purpose; connivance; conspiracy.

Example: “The oil companies were accused of collusion to raise oil prices”.

Translation into Spanish: En complicidad con. “His sisters are in collusion to find him a girlfriend” (Las hermanas están confabulando para buscarle una novia).

Autor: Jordi Albacete

I am an environmental journalist. My passion for the protection of human and environmental rights has been inspired by research led journalism. My ambition is to communicate and inspire people to make positive changes in the environment. Twitter @albacetejordi or Linkedin.

Periodista medioambiental. Mi pasión por la protección de los derechos humanos y medioambientales se ha forjado a través de la investigación periodística. Mi objetivo es comunicar e inspirar a la gente para hacer cambios positivos y proteger el medioambiente. Twitter @albacetejordi o Linkedin.

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