Statement concerning the status of the criminal lawsuits pertaining to the victims of Francoism that were filed with the Audiencia Nacional

Equipo Nizkor has received inquiries from organisations representing the victims of Franco and other human rights organisations concerning the status of the criminal lawsuits filed with the Audiencia Nacional and assigned to the Central Court of Investigation No. 5 headed by Judge Baltasar Garzón. As a result we consider it necessary to make certain comments on this subject as follows:

  • 1) The initial lawsuit was filed at the Audiencia Nacional with a complaint dated the 14th December 2006, as a result of which the court commenced “ Preliminary Investigation - Summary Proceedings 399/2006". The complaint was filed by Maria Antònia Oliver París and Margalida Capellà i Roig, as legal representatives of the Mallorcan Association for the Recuperation of Historical Memory.

  • 2) On 29th of January 2008 the Prosecutor’s Office of the Audiencia Nacional, pursuant to the oral instructions of the State Attorney General issued its decision concerning the admissibility of the lawsuit, in which it concluded that “it was not appropriate to admit for trial the lawsuits filed, ex art. 313 Lecrim, as the Central Court of Investigation is not competent and as a consequence the case should be closed”. This decision referred to “various criminal complaints concerning disappearances, illegal executions, possible killings, illegal arrests, torture and forced exile...”.

  • 3) The Central Court of Investigation No. 5 did not decide the question of competence because it neither closed the case nor declared itself competent - notwithstanding that almost 2 years had passed since the complaint was initially filed.

  • 4) Nevertheless, the Central Court of Investigation No.5 made public two rulings on the 2nd and 25th September 2008, where, resorting to a procedural practice of the Audiencia Nacional itself, it ordered a series of investigations which could be described as “documentary investigations”, presumably in order to ascertain information which would enable it to decide whether or not it had competence to hear these proceedings.

  • 5)In neither of these two rulings does the Criminal Court of Investigation No.5 offer any arguments, even provisionally, concerning the underlying issue of competence. In other words, it sets out no legal basis either to close the case or to establish its competence.

    Bearing in mind that judges only speak by means of their decisions, the head of the Central Court of Investigation No. 5 has so far maintained absolute silence as to the fundamental issues.

    As a result, and given that we are not a party in the proceedings, we believe that there are not sufficient materials to enable us to properly evaluate the conduct of the head of the Central Court of Investigation No. 5 on the basis of internal law, international humanitarian law, international human rights law or the applicable jurisprudence on this subject.

  • 6) Given the consequences and expectations of the victims’ associations and the victims of Francoism which naturally proceed from the conduct of the head of the Central Court of Investigation No. 5, we think it is necessary to call on those concerned to respect strict due process and to proceed pursuant to the appropriate standards for all criminal investigations in such a way as to leave no doubt concerning the preliminary investigation proceedings; and further, if it comes to it, to leave no doubt as to the evidence required for these types of crimes.

  • 7) We should remember that the document base is of fundamental evidentiary importance in the characterization of “crimes against humanity” and procedural rules exist concerning the authentication and certification of documentary evidence. These rules can in no case be obviated if one seeks to ensure that the documents are irrefutably admissible as valid evidence and are able to withstand any cross examination.

    Therefore we suggest that this is borne in mind in the course of these exceptional procedural investigations now being conducted.

  • 8) Similarly we believe it necessary to counsel prudence in the application of criminal classification, from both the perspective of international and domestic law. In addition we would point out that the investigation of acts such as those which took place under the Franco regime are of such procedural and substantive complexity that they cannot be trivialised and certainly not used in a way that is inconsistent with the facts and existing evidence.

    We are in no doubt that the repressive acts committed under the Franco regime constitute criminal offences which, pursuant to the law in effect and the applicable jurisprudence, fall within the criminal definition of “crimes against humanity” as we have substantiated in all of the documents we have published since 2004.

    We are aware that there are important issues relating to the criminal classification of these acts based largely on the historical period which has to be investigated, but we are convinced that the criminal definition of genocide is not applicable, given that the objective of the crimes committed under the Franco regime are inconsistent with the objective required for the crime of genocide, whatever other matters are still pending resolution and whether or not the case is closed or the Court decides it is competent to admit the proceedings (which would trigger a “competence incident” given the Prosecutor’s Office previous decision on the complaints).

  • 9) We therefore trust that the head of the Central Court of Investigation No. 5 definitively decides the issue of competence in this case and substantiates his decision in a manner consistent with international law and with European and international jurisprudence applicable to the so-called “fundamental question”. This decision must be based on the premise that the norms of due process are applicable and that under no circumstances can an Investigating Judge apply principles of so-called “transitional justice” that deny the rights to justice which must be guaranteed for all victims.

  • 10) It is clearly impossible to understand the position taken in the public statements of senior government officials such as the Minister of the Interior, Alfredo Pérez Rubalcaba, and the President of the Government himself, José Luis Rodríguez Zapatero, according to which there would be Governmental support for the pending proceedings. The position set out in these statements is incompatible with the instructions given by the State Attorney General to reject the competence of the Court of Investigation No. 5 and to seek that these lawsuits be closed and filed.

    If governmental support existed for a criminal investigation of the events which took place during the Franco dictatorship, such support should be channelled through the State Attorney General, giving precise instructions to ensure that his Ministry supports the competence of the Investigating Judge in this case, as no other course is either ethically and morally acceptable in a democratic state under the rule of law.

  • 11) Having witnessed along with the victims’ associations and any other citizen, how the media have positioned themselves against the investigation of the crimes of the Franco regime, as for example in the case of the daily newspaper of El Mundo, and the apparent attempt by newspapers such as El País to manipulate the classification of crimes and to carry out a supposedly “legal” analysis which lacks either objectivity or any intention to further the merits of justice and truth, we now call upon those responsible in the media to respect the hundreds of thousands of victims of Francoism and to comply with the professional codes of journalism in connection with all information concerning Francoist crimes and its victims.

  • 12) The document “The question of impunity in Spain and crimes under Franco”/ which we published in 2004 was the first analysis of what we call “ the Spanish model of impunity”. Since that publication we have consistently asked for a criminal investigation into the crimes of Francoism and further have requested a so-called “Plan of Action”. Similarly both Equipo Nizkor and the associations who have supported us have published various statements establishing the need for such an investigation, in all cases based on the requirement for procedural transparency and subject to the right to justice as the only way to offer reparation to the victims of the Franco regime. For this reason in we insist that the laws of due process be applied scrupulously as only this will ensure that the victims and their relatives receive recognition and respect.

  • 13) Finally, we take this opportunity to ratify the statement “Between moral cowardice and illegality” which we published on 1 September 2006 and which had the support of almost all the associations representing victims of Francoism.

    The current state of affairs is simply the result of the lack of ethical, moral and legal responsibility of the political parliamentary groups who have supported the so-called “Law of Historical Memory” which offers no legal solution to the principal issues underlying the matter of the victims of Francoism and leaves the victims and their relatives without recourse. Furthermore, it seeks to distance them from the common history of Europe and particularly from the solutions adopted on this topic by those countries who endured fascist or National Socialist regimes.

Gregorio Dionis, President, Nizkor Team

Madrid, 30 September 2008

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