The problem of impunity in Spain is one of causes not consequences
Since 14th April 2004, when Equipo Nizkor published its report "The question of impunity in Spain and crimes under Franco", the first, since enactment of the Constitution in 1978, to address the issue of the victims of Francoism in the light of international criminal and international human rights law, we have regularly disseminated statements and documents concerning the so-called "Spanish model of impunity".
With reference to the events which have occurred as a result of the lawsuits filed in the National Court (Audiencia Nacional), we have also issued various analyses on the subject. Numerous organizations throughout the country who have decided not to take part in the filing of such lawsuits before the National Court have participated in these documents. In our earlier statements we predicted much of what has since occurred and in particular the risk that the cases would be closed in accordance with current procedural law.
From those statements, we highlight the following:
The "Statement concerning the status of the criminal lawsuits pertaining to the victims of Francoism that were filed with the Audiencia Nacional", published on 30 September 2008 followed by the statement of 20th November 2008 headed "Statement on the issue of competence in the Audiencia Nacional : the crime cannot be the source of the law". Both of these documents discuss in detail the situation created as a result of the procedural consequences of the acts of the investigation judge of Central Investigating Court No. 5 of the National Court. On 21st February, we also published a document on the subject entitled "The case against Judge Baltazar Garzón exposes the structural contradictions in the system of impunity in Spain".
With these statements we have made clear the position of the organizations who have not participated in the lawsuits for legally strategic reasons.
The situation that is now developing in the Supreme Court leads us to ratify all of these statements. However, given the circumstances we find ourselves compelled to repeat some of the issues we have already addressed.
As Thomas Paine said in his book "Rights of Man", an indispensible reference on the ethics of civil liberties born of the North American and French Revolutions, and in our view particularly relevant to this situation: "It suits his purpose (Mr Burke's purpose- the purpose of those who oppose civil liberties and republican values) to exhibit their consequences without their causes. It is one of the arts of the drama to do so. If the crimes of men were exhibited with their sufferings, stage effect would sometimes be lost, and the audience would be inclined to approve where it was intended that they should commiserate".
We therefore consider that as part of the exercise of our liberties it is necessary to reflect on the structural causes which have led us to this state of affairs in which those mainly affected are the victims of Franco who deserve and claim justice, not commiseration.
In the last few days some events have occurred of particular importance in the proceedings in the Supreme Court based on the lawsuit filed by "Manos Limpias" (an extreme right-wing organization which grew out of the remains of the Francoist party Fuerza Nueva), the group of similar political origin "Libertad e Identidad"; and the political party "Falange Española Tradicionalista y de las JONS" (literally: Spanish Falange of the Assemblies of National-Syndicalist Offensive), about which we need say no more than that it is the only organization which gave birth to and participated in the fascist and/or National Socialist regimes in Europe that, nevertheless, has been recognised by the high courts of the Europe which rose out of the Second World War, the same Europe whose history is in the origin of the system of the United Nations and international criminal law recognised by every country which is a member of that organisation.
We ratify here those points from our statements of 2004 and thereafter inasmuch as they concern the current situation:
1) The Supreme Court should proceed to decide the issue raised by the case brought against Judge Baltazar Garzón in a way which is in accordance with international criminal law and consistent with the history of all those countries which have endured fascist and national socialist regimes.
2)The recognition of the legitimacy of the Spanish Falange of the JONS positions Spain outside the bounds of European law and in practice is itself an act characteristic of a "state of exception", in the sense that the well known National Socialist doctrinarian Carl Schmitt gave to the term; not even the Greek colonels enjoyed such recognition in the courts.
3) We expressly reject that it is possible in law to claim the representation of a regime which, according to United Nations resolutions "(a) In origin, nature, structure and general conduct, [the Franco regime] is a fascist regime patterned on, and established largely as a result of aid received from, Hitler's Nazi Germany and Mussolini's Fascist Italy", and the legality of which therefore cannot be accepted in a law court, and certainly not in the Supreme Court of a country which purports to comply with the formal conditions of a rule of law.
For this reason, we consider it to be mere legal subterfuge and manifestly inadequate that the participation of the Spanish Falange of the JONS in the proceedings going on against Judge Baltasar Garzón be rejected for purely procedural reasons, avoiding the resolution of the fundamental point at issue.
4) Nor do we accept in law the arguments of the Prosecutor in his submission of 22 April 2010 in which he stated that he considered the Spanish Falange of the JONS lack "procedural legitimacy", a position which is publicly supported even by the Minister of Justice of the Kingdom of Spain for reasons we have already explained.
The position of the Prosecutor's Office has been used by the media such as "El País" to manipulate, yet again, criminal terminology and to suggest that the Prosecutor's Office is saying the Spanish Falange of the JONS is not legal. At no time in these proceedings so far has the question of the legality of the Spanish Falange of the JONS been raised on the basis that it is an organization which participated in the systematic persecution of persons for political grounds which was carried out by the Francoist regime.
In fact, the position of the Prosecutor's office directly attacks the institution of the "popular accusation" ("acusación popular") recognised in the Spanish Constitution; and this attack is nothing less than a serious attempt to question the legitimacy of that instituion, to eliminate the possibility of its application to bring someone to justice and, of course, to avoid the fundamental matter at issue.
There are evidently large sectors of the judiciary who for the last 12 years have been developing all sorts of plans which would eliminate the institution of the "popular accusation". It is still surprising however that they would take advantage of such an exceptional situation as this to conceal these attempts to modify "de facto" the Constitution and yet deny the victims of Francoism their rights under the same Constitution.
It is the judges who should put objective limits on the perverse use of the institution of the "popular accusation" with decisions based on applicable law and jurisprudence There are in this case more than enough elements of jurisprudence and international criminal law to decide the issue without eliminating the right of representation in the courts of justice.
5) The causes of the situation which so surprises the European countries who thought that Spain had "done its homework" during the democratic transition are not the actions of Judge Baltasar Garzón, but the obvious ignorance of international criminal law, the continued legality of the dictatorial regime of Franco and the complete abandonment of its victims by the State. These have all been concealed by the various democratic governments, who instead claim exemplary management of the issues surrounding Francoist victims and have culminated in the favourable vote for the so called "Law of Memory" by practically all the parliamentary groups in Congress. The only exceptions were the parliamentary group of the Esquerra Republicana de Catalunya honourably represented by the Deputy Joan Tardá and, for political reasons totally contrary to that of the victims of Francoism, the Partido Popular.
6) The so called "Law of Memory" is a law of objective impunity, that is to say, a law that confirms the model of Spanish impunity, for two very evident reasons. First, it denies the legal recognition of the victims by converting this into a mere "administrative act". It is being applied in this way by the courts of first instance and even supported by associations who defend the Law of Memory. And second, it recognises the legality of the Francoist laws and this is the legal basis which has enabled Fuerza Nueva and Spanish Falange of the JONS to officially become parties to the proceedings initiated in the Supreme Court by Manos Limpias, and thereby obtain recognition of their legitimacy to defend members of the Francoist regime. [See communiqué of 11 October 2007 entitled "Statement concerning the Parliamentary agreement to present a new draft Law of Historic Memory", endorsed by more than 70 associations and also the communiqué of 30 October 2007 "An aberrant law"]
7) The fundamental question is and will continue to be the same one we raised in point 2) of our document of 1st September 2006 entitled "Between moral cowardice and illegality". In that document we said, along with 60 organizations, that "The Draft Law does not provide any legal recognition of the victims of Francoism and, as a result, it does not address any of the demands of the victims' associations, given that it only speaks of moral recognition and economic compensation and not of indemnification and further is not consistent with international human rights law, or with international norms concerning reparation to victims. On this point, it is appropriate to remember that the international treaties which have been entered into by Spain form part of the internal legal system, that is to say, these human rights covenants and treaties are recognised by the Constitution currently in effect, and furthermore they constitute norms which rank in priority to the Constitution itself ".
That statement was ratified by various organizations on 11th January2010 in another communiqué entitled "Concerning the 2nd anniversary of the 'Law of Memory'" in which we said that the law was "irredeemably illegal" given that in Article 3 it proclaims the 'illegitimacy' of the Francoist courts and thereby accepts their legality. As we said in our communique of 14th August 2007 this doctrinal position returns the discussion back to 1930 when the well known lawyers Felipe Sánchez Román and Luis Jiménez de Asúa argued in a meeting of the Madrid College of Lawyers that the Criminal Code of 1928 -known as the Code of Primo Rivera- should be annulled. Their proposal was approved by the majority of the College of Lawyers and expressly declared that "the Government's Criminal Code, imposed by Royal Decree dated 8th September 1928 following agreement of the first Council of Ministers of the Dictatorship, being the product of an illegitimate source, suffers from the profound flaw of illegality".
8) Notwithstanding the ideologically motivated, byzantine and political discussions that are held with respect to the "Law of Amnesty" and despite the vacuous, thoughtless, perverse and legally null reform of that law which Deputy Gaspar Llamazares (of the parliamentary group Izquierda Unida) has submitted, in a bill entered in the register of the Congress of Deputies on 20th April 2010, there is no doubt whatever in international law, that according to the jurisprudence derived from the Nuremberg trials and the resolutions of the United Nations, General Franco's regime was illegal under criminal law in effect in the Europe that arose from the Second World War. The crimes committed, therefore, cannot be the subject of amnesty as they are classifiable as "war crimes" and "crimes against humanity".
9) Since we published in 2004 "The question of impunity in Spain and crimes under Franco", the first such document to analyse what we describe as the Spanish model of impunity, we have sought a criminal investigation of the crimes of Francoism as well as other actions set out in the "Plan of Action" contained in that document. At the same time, Equipo Nizkor and the organizations who have supported us, have published several statements arguing for this need. In all of these we have based our arguments on the need for procedural transparency and adherence to the right to justice as the only method of making reparations to the victims of Francoism. For this reason, we demand that the norms of due process be strictly complied with as there is no other way to give recognition and respect to the victims and their families.
10) Finally, we take this opportunity to ratify our statement "Between moral cowardice and illegality" published with the support of almost every association of victims of Franco on 1st September 2006.
The current state of affairs is no more than the consequence of the lack of ethical, moral and legal responsibility of the political parliamentary groups who supported the so called "Law of Memory", which offers no legal solution to the principal aspects of the issue of the victims of Franco. It leaves the victims and their families in a position of complete defencelessness and even seeks to distance them from Europe's shared history, and from the solutions adopted on these issues in the countries which endured fascist or national socialist regimes.
11) In view of the foregoing, we repeat our demands that the Supreme Court closes the current proceedings brought against Judge Baltasar Garzón and that what the victims of Francoism need is justice, not commiseration.
The failure to give legal recognition to the victims of Franco, is not only a manifestly unjust act, it is also one which ignores the principle of equality before the law and permits the de facto lawfulness of a fascist regime which all Europe considered over and done with.
Madrid and Charleroi, 23 April 2010
Gregorio Dionis, President Equipo Nizkor Ana Viéitez, President of AfarIIREP - (Association of Relatives and Friends of the 2nd Republic Victims of Reprisals by the Franco Regime) Dolores Cabra, Secretary-General of AGE (Association for the creation of an Archive of the Civil War, the International Brigades, the Children of the War, the Resistance and the Spanish Exile - Archive of War and Exile) Marga Lacabe, Executive Director, Derechos Human Rights
Impunity in Spain
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