Archives and Impunity.
We would like to offer our opinion as organizations representing human rights, civil liberties and Francoist victims with respect to the situation that has arisen as a result of the so-called "Salamanca Papers".
1)The issue of the archives is not a secondary issue nor one of lesser importance; the archives, whatever form they may take, form part of history and, in this case, of the history of oppression; as such they are the patrimony of everyone.
2) Any solution to the question of the archives of the Francoist repression must as a pre-requisite deal with three elements:
a) law, b) technology and methodology, c) life-time of paper-based materials.
3) The model for impunity imposed by the so-called transition failed to resolve, amongst many other things relating to the victims of the Francoist repression and the 1936 coup d'état, the legal issue concerning the archives.
Non-resolution of this matter was a necessary condition to: a) ensure that the victims had no access to justice; b) allow for the disappearance of crucial evidence concerning the structure and organisation of the so-called "National Movement" ("Movimiento Nacional") and the Francoist intelligence services; and c) to ensure the political and social control of the historical truth.
4) One issue that was not resolved is that relating to the crime of looting committed against democratic institutions, political and social organizations and against individuals. These crimes included that of the looting of the documentary archives.
5) This kind of crime is not subject to a statute of limitations given that it forms part of those crimes against humanity committed by the Franco regime.
6)The document of the United Nations E/CN.4/Sub.2/1997/20/Rev.1, contains the definitions which we think should be borne in mind by the Spanish government and all those connected with the question of the archives:
a) The right to know: " This is not simply the right of any individual victim or closely related persons to know what happened, a right to the truth. The right to know is also a collective right, drawing upon history to prevent violations from recurring in the future. Its corollary is a "duty to remember", which the State must assume, in order to guard against the perversions of history that go under the names of revisionism or negationism; the knowledge of the oppression it has lived through is part of a people's national heritage and as such must be preserved. These, then, are the main objectives of the right to know as a collective right."
b) The duty to remember: "A people's knowledge of the history of its oppression is part of its heritage and, as such, must be preserved by appropriate measures in fulfilment of the State's duty to remember. Such measures shall be aimed at preserving the collective memory from extinction and, in particular, at guarding against the development of revisionist and negationist arguments".
7) From what is known, the issue of the "Salamanca Papers" only refers to the documentary sources of the Generalitat de Catalunya prior to 1939 and these are physically contained in 507 boxes of the approximately 20,000 boxes which make up the Archive of Salamanca.
8) It is clear that, apart from the legal rights to which the Generalitat de Catalunya is entitled, no comprehensive solution has been given by the Government which complies with international human rights law. This constitutes a clear breach of its responsibilities with respect to the victims of the lootings (the product of which lootings formed the basis of the said archives), the consequence of which is yet further discrimination against the victims of Francoism and confirmation of the systematic denial of the right to restitution and compensation for damages.
9) The Government has a legal and constitutional obligation to represent the victims given that it has an obligation to guarantee the enjoyment of human rights and the compliance with international conventions on human rights, as is expressly provided in the current constitution.
This guarantee is even more important because many of the victims have no possibility whatever of acquiring legal representation given that they were either physically eliminated or legally excluded and given that the State has provided no effective legal remedy which would result in compensation and restitution of those rights. These rights cannot be relinquished or negotiated- not even by the legal heirs of the victims - as they now constitute a non-delegable part of the human and civil rights which have been violated. Only after restitution of these rights will the heirs be able to freely deal with the looted funds.
10)The undersigned organizations are concerned that adequate measures are not being taken to facilitate the recuperation of the physical support for all the archives, particularly as the useful lifetime of paper records which now support them is on the point of expiring.
This will result in the practical destruction of the archived materials or, at best, the declaration that they are not accessible to the public.
There is no technical or economic reason to justify this state and governmental laxity which, from our perspective, can only be interpreted as a further attempt to consolidate the existing model of impunity and as a flagrant violation of the individual and collective right to truth and memory.
10)We repeat here the point made in the document "The question of impunity in Spain and crimes under Franco" , that is, that there should now be legislation to enable the inventory, cataloguing and reorganization -using appropriate current technology- of criminal, judicial, prison, military, intelligence, municipal etc. archives at all levels of administration, in accordance with the laws of the right to truth and justice for the victims.
There must be recognition of free access to the archives and a legal obligation on the part of those responsible for such archives to co-operate with the victims, family members, victims' organizations, human rights organizations and national or foreign judicial systems.
Any other administrative or official measure should not be acceptable under the rule of law, and would, in our view, constitute a further act of obstruction of justice and of consolidation of the model of impunity in Spain.
For that reason, it seems that the conduct of the parliamentary groups and the political parties with respect to these issues does not comply with their obligation to guarantee the rights of all citizens.
It is the responsibility of the political parties and of the parliamentary groups to take the necessary measures to ensure the preservation of the archives of the oppression, and that they are maintained and utilized with material safeguards, based on laws and regulations which protect both the interests of the State and those of its citizens.
11) Current scientific and technical know-how allows all documentary materials from whatever kind of archive, including of course those of the Francoist repression, to be made available to all citizens. There is now technology which permits real-time access to such materials via public information networks and the Internet, such as those already in use in numerous centres of documentation relating to the consequences of the Second World War, the Holocaust, the concentration camps and the National Socialist extermination.
The technologies of digitalization and treatment of high volume information provide a rational solution to the question of availability, expiry and duplication of material documents in ways that would resolve all these issues. These methodologies can also be used to facilitate the scientific and technical rationalisation of all the state archives.
Many of the public statements made and positions taken on this issue reflect a manifest ignorance, a clear and sometimes premeditated confusion of cause and effect and a lack of understanding of International Humanitarian Law with which the current Constitution requires compliance. As a consequence, they form a discourse which not only creates confusion in the minds of the citizens but which is also inappropriate with respect to these issues under the rule of law and therefore result in a clear violation of the principles of civil liberties and human rights.
12) Finally, we would like to state once again that our aim as organizations of human rights, civil liberties and Francoist victims is not one of revenge, nor do we wish to return to the "friend/enemy" or war dialectic. Our aim is to ensure that the reconciliation of all Spaniards is achieved with justice and respect for human rights and civil liberties and this is only possible within a framework of truth, justice and restitution which puts an end to the existing model of impunity.
Madrid, 1 January 2005
DDHH en España
|This document has been published on 01Apr05 by the Equipo Nizkor and Derechos Human Rights.|