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Response to the President of the Inter-Ministerial Commission to Study the Victims of the Civil War and Francoism.
Madrid, 2nd November 2004
For the Attention of Her Excellency the
President of the Inter-Ministerial Commission
to Study the Victims of the Civil War and Francoism
Doña María Teresa Fernández de la Vega Sanz
By means of this letter we would like to express our appreciation for your letter addressed to our Vice-President, Antonia Macías, advising that the Commission of which you are President is to commence work.
In accepting your request that we forward to the Commission those matters which we consider relevant, we attach herewith a copy of the report "The Question of Impunity in Spain and Crimes under Franco", in order that the Inter-Ministerial Commission will have it to consider in its analysis of the issues concerning the victims of the Civil War and of Francoism.
In addition, the associations who introduced the report and who are signatories to the same, have requested that we send it to you on their behalf.
Subsequent to its publication, we are able to state that almost all the associations who are involved in this subject subscribed to the document.
The full and updated details of these associations can be found on the webpage where the said document is located.
The need for production of such a document arose from a meeting which took place at "el Ateneo" in Madrid on 27th December 2003 and which was attended by organizations from all over the country. The meeting was attended by all social and governmental organizations who are involved in issues relating to Civil War and Francoist victims. At the meeting, it became crystal clear that there existed no analysis of the subject from the human rights perspective, and more specifically, from the point of view of International Human Rights Law.
There were some associations, particularly, the Association of Relatives and Friends of the 2nd. Republic Victims of Reprisals by the Franco Regime, who requested a document that would serve as the basis to assert the nullity of the legal acts of the Francoist regime, given that this association is deeply involved in the campaign to show that the so-called summary trials are null and void.
The document was introduced as a paper by Equipo Nizkor at the Winter Course organized by the University of Valladolid and by the Associations of Valladolid and Palencia for the Recovery of Historical Memory (ARMH of Valladolid and ARMH of Palencia), and presented at the university on 29th, 30th and 31st March 2004. It was well received by participants.
All the arguments contained therein can be amplified and in particular the matters referred to in paragraph VI, entitled "Plan of Action" as many of these are the result of years of development by the associations who have worked on specific aspects of this complex subject.
We can assure you, Madame President, that all the arguments laid out can be supported before a court and have been made following the advice of lawyers of international repute who work with us on a daily basis in areas of human rights and civil liberties.
The document also demonstrates the casuistry already accepted in jurisprudence, both in domestic and international courts, particularly in the context of European law and, more recently, in internal Spanish law, as a result of those cases originating in the disappearance of Spaniards in the Southern Cone dictatorships.
Madame President, with this brief introduction we wish to convey to you that this document is a legitimate representation of those issues which, to this day have not been resolved by the Spanish State and which constitute, whether by act or omission, a violation of the right to justice, the right to truth and the right to reparation.
We believe that the current Government has a historic opportunity to comply with international human rights standards and to offer satisfaction to the victims, their families and even those political and social organizations to which those victims lawfully belonged, as part of a civil and political society existing pursuant to the rule of law.
With reference to the Commission and its work, we request the following on our behalf and on behalf of the organizations who signed the attached document:
a) That the Inter-Ministerial Commission to study the victims of the Civil War and Francoism acts with legal and formal transparency, so as to ensure that all the associations involved may be informed of the minutes and resolutions of any meetings and may have at their disposition all the materials necessary to obtain a proper understanding of the issues addressed.
b) That all the associations who deal with the subject of the Civil War and Francoist victims be asked to appear before the Commission, whatever their legal status may be and whether or not they have submitted anything in writing to the Commission.
c) That the good faith by the State and the due consideration of the nature of the problem at issue be assured at all times.
This point is of particular importance because the experience hitherto of the victims' organizations clearly evidences a lack of good faith in many of the State's actions relating to the victims of the Civil War and Francoist repression, notwithstanding that good faith should be inherent in the acts of any government under the rule of law.
d) We believe that the Office of the Attorney General and the Ministry of Justice should be participants in this Commission given that most of the responsibility for the denial of justice by judges and prosecutors lies within their area of competence.
Most of the points which appear in the "Plan of Action" fall within the competence of the justice system and could be dealt with simply by compliance with existing legislation.
The following two examples demonstrate this point:
a) Since the commencement of the democratic regime which followed the Francoist period, hundreds of exhumations have taken place, in almost every instance without compliance with the legal process which is required under the rule of law.
These exhumations are unlawful, whether as a result of acts or omissions of judges, district attorneys or the Guardia Civil (the Civil Guard). They constitute a clear denial of justice and may be violations of due process and of legal and moral norms applicable by any society to matters of this nature.
This denial of justice is exacerbated by the fact that it concerns victims of crimes against humanity and therefore crimes which are not subject to any statute of limitations. Thus the failure to act by legal or police officers can itself constitute a criminal act to the extent that they have allowed evidence of crime to disappear.
We consider that due compliance with legal process required to carry out exhumations of victims is a matter that is entirely within the powers of the Attorney General, who could instruct his subordinates in this sense, thus guaranteeing the right to justice for the relatives or organizations who are entitled to be included in a Public Prosecution (una "Acusación Popular") in accordance with Spanish domestic legal process.
It is evident that all relevant officials, but in particular the representatives of the the justice system, must guarantee the right to justice and due process. Only at the end of judicial proceedings can an opinion be properly provided as to what took place, what kind of crimes were committed and whether or not they are subject to any statute of limitations; and it is worth remembering that by their nature these cases could be triable before the European Court of Human Rights.
b) By means of the specialist bodies of the justice system or of the Interior Ministry, the State can implement regulatory measures to obtain reliable and legally valid information as to the documentation which exists in archives concerning the Civil War and Francoist repression.
To deny this kind of information would be a violation of the right to information recognised as a right of all citizens, especially within the European Union. In this instance, it would also affect the right to justice to the extent that it impedes or hinders the right to due process and a claim for justice before the courts and at the same time makes ineffective the principle of free justice guaranteed by the Spanish Constitution.
The two strongest arguments which have been made contrary to our view are that of "legal certainty" and that of the "financial costs" of the obligations which could result from the criminal acts of the Franco regime.
With respect to the first of these arguments we would like to highlight its legal and formal inconsistency.
After thirty years, there are still high-ranking public officials who believe that the present State is a continuation of the Francoist state, a fact which flagrantly demonstrates that no such legal certainty exists.
It is a clear demonstration of legal uncertainty to deny the victims legal reparation and to uphold the acts of a regime which was held to be criminal by unanimous decision of the United Nations General Assembly and in breach of the most fundamental norms of any member state.
To allow the unlawful exhumation of victims of war crimes and acts of extermination, and further to allow the duty prosecutors and judges and the Guardia Civil intelligence system in rural areas (where almost nothing escapes the "the State's ears") to violate legal norms, is no more than a flagrant demonstration of legal uncertainty.
The fact that senior State officials, and even members of parliament think in terms of the financial cost to the State as a result of the Francoist crimes is no more than another clear demonstration of legal uncertainty, and even of the existence of the systematic violation of property rights and the right to due process carried out.
If the State were to have vicarious liability for the crimes committed by Francoism, this would have to be resolved in law by means of a process with all necessary legal guarantees. The fact that no such process currently exists does not evidence legal certainty. Quite the contrary is true.
The fact that victims' and relatives' organizations cannot find lawyers to represent them - even well-established regional associations have not been able to find a lawyer to represent them in years - is one reason why claims of this nature have not been made. This not only evidences that there is a serious problem with respect to the legal guarantees for the victims but is a further demonstration of legal uncertainty.
Madame President of the Inter-Ministerial Commission to study the victims of the Civil War and Francoism, it is in your hands to bring about the reconciliation of Spanish nationals and to ensure that the rights of the victims and their descendants are addressed as the rule of law requires.
Madame President, as you well know, freedom is constructed every day, and to achieve it, all citizens must be the same before the law; it is the responsibility of Government to ensure that this is so and to that end it is essential to carry out work dedicated to the victims, effectively and consistent with the re-establishment of their rights and their memory.
That is the only way that we civilized men and women have discovered to build a just society where we can live in peace.
Peace is constructed from and is a product of rational acts of justice and memory. There is no society which can survive the loss of memory and forgetting its past or denying the right to justice.
Madame President, the crimes we are discussing here began over 68 years ago and while there continues to be no legal recognition of the victims as provided by international human rights law, these crimes continue to be perpetrated.
It was 58 years ago that the General Assembly recalled that " at the Potsdam Conference the Governments of the United Kingdom, the United States of America and the Soviet Union stated" that the Francoist Government : " having been founded with the support of the Axis powers, in view of its origins, its nature, its record and its close association with the aggressor States, does not possess the necessary qualifications to justify its admission".
And it will be 26 years since we, in Spain, gave ourselves a new Constitution which guarantees the human rights of all its citizens.
The creation of the Inter-Ministerial Commission to study the victims of the Civil War and Francoism is an irrefutable demonstration that this has not been accomplished and therefore the State has not been able to guarantee legal certainty for all its citizens.
We seriously hope that the scepticism which reigns in almost all the victims' organizations is not well-founded and that the current Government, of which you are a member, honours the obligations of the Spanish state to comply with international human rights standards with all their consequences, in the conviction that this can only strengthen civil liberties, human rights and legal certainty.
May justice prevail.
President of Equipo Nizkor
DDHH en España
|This document has been published on 08Nov04 by the Equipo Nizkor and Derechos Human Rights. In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.|