Clarification of the information published in the newspaper "El Punt" concerning the law of "Historical Memory"

Clarification of the information published in the newspaper "El Punt" concerning the law of "Historical Memory".

With reference to the information which appeared in the newspaper "El Punt" on 8th August 2007 entitled "Equipo Nizkor equates ICV-IU with Primo de Rivera for having agreed with the PSOE Law of Historical Memory" and with reference to the article published on the website "Kaos en la Red" on 9th August 2007 entitled "Equipo Nizkor equates ICV-IU with Primo de Rivera [Law of Historical Memory]", and given the need to clarify what is stated there, we feel compelled to state as follows:

1) These statements were made to a journalist from the Catalan Information Agency (Agencia Catalana de Información) at our European headquarters in Belgium, as a result of the official visit made by the MP Joan Tardá of the Parliamentary Group of the ERC, and there is a clear mistake in the edition or transcription thereof.

2) These statements concerned the question of doctrine adopted by the Izquierda Unida and behind their proposal to declare "illegitimate" the Francoist laws but not their "illegalilty", in other words, to say that the Francoist laws were legal but illegitimate.

This issue was fully argued at a Round Table held on May 2007 at the Hotel Trip Atocha in Madrid, at which both the prosecutor, Félix Rodriguez, a member of the General Council of the Judiciary and the former anti-corruption prosecutor, Jiménez Villarejo, supported this doctrine.

To avoid errors in interpretation, Radio Nizkor will publish on its audio website the entire presentations made by both prosecutors, as well as their responses to the questions asked by the associations present at the meeting, and the presentation of the IU MP Joan Herrera, who, as is well-known, has defended the theory of "illegitimacy" in Parliament.

3) In 1930 the reputable jurists and lawyers D. Felipe Sánchez Román and D. Luis Jímenez de Asúa argued at a meeting of the Madrid College of Lawyers that the Criminal Code of 1928, known as the "Primo de Rivera Code", was null and void. This Code was approved by Royal Decree on 8th. September 1928 following agreement of the Council of Ministers of the Dictatorship of Primo de Rivera, father of José Antonio Primo de Rivera, the founder of the Falange.

4) The proposal that this Code should be null and void was approved by the College of Lawyers and in one paragraph it was expressly stated that "The governing Criminal Code imposed by Royal Decree dated 8th. September 1928 following agreement of the Council of Ministers of the Dictatorship, being the product of an illegitimate source, suffers from the most emphatic vice of illegality".

5) The founder of the Falange, José Antonio Primo de Rivera, in a long article entitled "The College of Lawyers: an abuse of the majority" published in the Madrid newspaper "La Nación" on 15th. April 1930, explained at length why the Code might be illegitimate but was legal.

As an example one paragraph stated "Therefore a Law is not what Parliament approves but what the legislative organ of the regime approves. This legislative organ can be formed by Parliament, with the head of State, or by the Government with the head of State. Dictatorships follow the second model. Thereafter, within the regime of the Dictatorship, a Code of the legislative government is a legal Code".

To avoid errors of interpretation on this subject we have decided to publish on our documentary website the entire article of José Antonio Primo de Rivera for anyone who is interested to have access to the original text in its entirety.

6) These arguments are identical to those now under discussion with respect to the nullity of the Francoist laws which has been sought by Equipo Nizkor in its report entitled "The question of impunity in Spain and crimes under Franco" and which has been supported by practically all the associations of Francoist victims involved in this matter.

The executive of the Izquierda Unida has responded to the theory of nullity by arguing in Parliament for the theory of "illegitimacy" and this has been publicly promoted as the theory which makes it possible to reach a pact to break the deadlock, the so-called "unblocking pact", between the PSOE and Izquierda Unida to allow for the "Law of Historical Memory" to be passed.

The theory was addressed by the associations of victims of Francoism and human rights associations in a communiqué made public on 19th. April 2007 called "Statement opposing the 'unblocking pact' on the Law of Historical Memory".

7) It is worth mentioning that the Criminal Code of 1928 was declared "null and void and of no effect" by a decree of 15th. April 1931 and the provision which annulled it was published in the "Gaceta" on 16th. April 1931 according to what the lawyer Estanislao de Aranzadi has established in his "Chronological Repertoire of 1931 Legislation" ("Repertorio Cronológico de Legislación 1931").

The decree in question provides in article one "1) The said Criminal Code of 1928 is annulled and of no effect. The same declaration of nullity is extended to all those decree-laws of the Dictatorship which established or modified the definition of crimes or the setting of sentences"

8) This is the documentary context with which one should analyse the statements made to the Catalan News Agency and which have been referred to by the two publications we mentioned in point number 1 above of this communiqué.

9) Therefore, we ratify what we stated in that the doctrinal discussion relating to the origin of the laws within a democratic regime is a discussion which is not closed in Spanish history simply because a reactionary view has been imposed which deems legal the acts of the Francoist dictatorship - and thus the acts of any dictatorship, as José Antonio Primo de Rivera makes very clear in his article of 1930.

10) Applying the same arguments made by Luis Jiménez de Asúa in 1930 when he stated that the Criminal Code of 1928 and the decree laws were "the product of an illegitimate source, (and therefore suffered from) the most emphatic vice of illegality", Equipo Nizkor, considers that the Francoist laws should be the subject of analysis and therefore, we expressly reject the criterion that they are "illegitimate" but "legal" as this, as we have stated, is a clearly reactionary criterion which is repugnant to any democratic doctrine under the rule of law.

Madrid and Brussels, August 14, 2007

Gregorio Dionis
Equipo Nizkor President

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