In a rare show of support, Spain's opposition Socialist Party is backing the government's refusal to carry out an international arrest order issued by an Argentinean court against two former members of the police accused of torture during the military dictatorship of General Francisco Franco.
The government of Prime Minister Mariano Rajoy has already lied to the court in Buenos Aires, which is applying an international law allowing human rights abuses to be investigated and tried elsewhere if the country in which they occurred does not do so. In a letter replying to the arrest order, the government said that there were "numerous judicial procedures open" in Spain to investigate the crimes committed under Franco. Now, government officials, judges and prosecutors are refusing to cooperate, saying that the accused (the warrant is against four men, two of whom are dead) are protected by a 1977 amnesty pardoning possible crimes committed by members of the security forces.
Normally, Interpol arrest orders are carried out within hours - as was the case recently when Daniel Galván, a Spanish child rapist serving a 30-year sentence, was mistakenly pardoned by the king of Morocco. But in this case, almost three weeks after Argentinean Judge María Servini de Cubría requested the cooperation of the Spanish authorities so that she could question the two men, they remain at large.
UN representatives have requested that Spanish authorities lift the amnesty
High Court Judge Pablo Ruz says that he hopes to interview the two men, former civil guard Jesús Muñecas and retired police inspector José Antonio González Pacheco, so that he can arrange their extradition to Argentina. Ruz says that there is no need for them to be held until then.
Spanish amnesty laws, introduced in 1977 as the country made the transition from dictatorship to democracy, prevent its courts from investigating crimes committed by the authorities before 1976. General Franco died in 1975. After victims of the dictatorship failed to get redress in the Spanish courts, some took their cases to Argentina in 2010. Servini de Cubría petitioned Spain to look into the cases of alleged torture, but has now taken matters into her own hands, declaring her court competent to try the cases.
Spanish public prosecutors, who did not even bother to establish whether the four men were alive, says that they are protected by the 1977 amnesty. Two representatives in Spain of the UN's Working Group on Enforced or Involuntary Disappearances (OHCHR) have formally requested that the Spanish government lift the amnesty so that investigations can be carried out into the disappearance of more than 114,000 Spaniards, along with establishing the fate of the estimated 30,000 children who were stolen from their parents during the war and subsequent four decades of military rule. The group is also asking Spain to ratify the Convention on the Non-Applicability of Statutory Limitations to War Crimes. The response? Spain's Justice Ministry has said that it will "look closely" at the requests.
We look like hypocrites who tried to teach others about human rights"
But so far, the Socialists and the Popular Party (PP) have closed ranks on the Franco files. The 204-page report presented by Judge Servini de Cubría to support her arrest order for the two Spaniards accused of crimes against humanity now puts Spain in the same position in which the Spanish judge, Baltasar Garzón, put the Argentinean authorities in 1996 by forcing the state to take a position on a matter that it too had attempted to avoid by issuing its own amnesties protecting members of the security forces. Eventually, after much legal wrangling, in 2005 Argentina decided to lift immunity from prosecution for those suspected of human rights abuses during the country's period of military rule, between 1976 and 1983.
"When Spain asked for Argentinean citizens to be extradited on the basis of universal justice for crimes committed here, judges faced a difficult decision between sending them to be judged abroad, or judging them ourselves," recalls Raúl Zaffaroni, one of the Argentinean judges who annulled the country's amnesty. "Had we taken the first option, we would have been leaving the country in the situation of a tribe, with all its citizens liable to be tried by any country. The only solution was to accept the jurisdiction and to try these people under our laws, in our courts."
In the case of Spain, the authorities are doing everything possible to dissuade the Argentinean authorities from pursuing those accused of human rights abuses under Franco.
Chile and Guatemala have adapted the amnesties they issued to protect their militaries to allow for investigation into forced disappearances, as has Peru. But Brazil's amnesty remains in place. Judge Garzón reopened the debate on Spain's amnesty when he began pursuing the crimes of the Franco regime in 2008. There had always been those who opposed the amnesty, even at the time: Antonio Carro, a deputy for Alianza Popular, the forerunner of the PP, said in 1977: "This amnesty is not good medicine. The only medicine that real democracies prescribe is the strict application of the law."
Justice Minister Alberto Ruiz-Gallardón, however, defended the law last month by quoting the Communist Party's Marcelino Camacho, who described the amnesty as "national and democratic policy, the only way that we can close the door on our past of civil wars and crusades."
But Cayo Lara, the leader of today's Communist-led grouping United Left, countered Ruiz-Gallardón saying: "An amnesty law cannot be used as a way to end all investigation into what happened during a period of military rule." Clearly, amnesties are open to interpretation.
- Garzón: "It doesn't apply to crimes against humanity." The judge, who was barred from the legal profession in Spain for 11 years in 2012 for illegal wiretapping in the Gürtel corruption case, argued in 2008 that the crimes reported by Franco regime victims were not included in the amnesty, which only pardoned "politically intentioned acts," while the crimes he was investigating were against humanity, which cannot expire. Garzón based his argument on the jurisprudence of the International Court of Justice at The Hague, the European Court of Human Rights and the Inter-American Court of Human Rights.
- Supreme Court: "The amnesty law still applies." Supreme Court Justice Luciano Varela dismissed Garzón's arguments as the product of a "creative imagination," bringing charges against him in 2010 for overstepping his authority. He was eventually absolved by the court, but the ruling also attempted to put a stop to any further investigation into the crimes of the Franco era, pointing out that the Attorney General's Office had established that any crimes committed could not be pursued as they were covered by the statute of limitations. The ruling also said that while other countries may have decided to set up trials to find out the truth, in Spain this was the job of "historians," and that there was no law in place to cover an investigation. It added that the amnesty of 1977 "contained an evident spirit of reconciliation" within the Spanish Transition that was "praised internationally," and that "no judge can question the legitimacy of the process. This is a law that can only be repealed by parliament."
- Congress: the law stands as it is. Congress has rejected on several occasions initiatives to modify the law to allow the crimes of the Franco era to be investigated in Spain. In September, Ruiz-Gallardón quoted veteran Communist leader Marcelino Camacho to defend the amnesty. A few months earlier, in April, the government replied to another question asked by the United Left by reiterating the supposed conciliatory nature of the amnesty, describing it as: "A fundamental instrument of reconciliation between Spaniards. The Constitutional Court has shown itself in favor of this."
- The Socialist Party backs amnesty. "It was a necessary law and we don't think it is a good idea to annul it," says the Socialists' Ramón Jáuregui, a former minister under José Luis Rodríguez Zapatero. We understand how people feel. We are closer to those who were tortured than the torturers, but we remain convinced that the law was thought through. Some of us have more to forgive than others, but the pardon was collective. And that decision is the basis for reconciliation." Asked about the Franco-era crimes being judged in Argentina, Jáuregui answers: "I accept the idea of universal justice, but I also think that it needs to be submitted to the criteria of popular sovereignty. The Argentinean initiative is full of good intentions, but in Spain we decided long ago that we weren't going to look into what we did before 1976." But the United Left's former leader, Gaspar Llamazares, says that there is no need to annul the amnesty law: "It would be enough to modify it to make sure that it cannot be interpreted as offering impunity to those who committed crimes under Franco. Otherwise, we will be doing the same as Chile did with Pinochet. It would be a disgrace if Argentina were to end up investigating the crimes of the Franco era. It would show us up as hypocrites who, years ago, tried to teach others lessons about human rights but who aren't prepared to apply the law to themselves."
- The United Nations: Spain is obliged to investigate. The UN General Assembly's 1992 declaration and convention on the protection of people against forced disappearance, which Spain ratified in 2009, "expressly forbids the use of amnesty laws for these crimes," says Ariel Dulitzky, one of the two UN representatives who were in Spain late last month. "Spain is internationally obliged not to apply these laws when they would impede a judicial investigation. The judicial authorities cannot simply assume that they have died without an investigation, and the statute of limitations doesn't kick in until the families of the deceased know their whereabouts." Dulitzky believes that sooner or later, Spain will have to face up to the issue. "The demands of the victims for justice will not stop. It has been 70 years now, and the families are still there, asking for justice, truth, and reparations."
Historical Memory all but forgotten
"I would eliminate all articles from the Law of Historical Memory that talk about using public money to recover the past. I would not give a single euro from the public purse," said Mariano Rajoy while still leader of the opposition in a February 2008 interview. It has turned out to be one of the few promises the now prime minister has kept.
To all intents and purposes the Law of Historical Memory has been annulled: the Popular Party (PP) government has simply cut its funding. In response, representatives of the UN have formally asked the Spanish government to make it "state policy" to find the bodies of those disappeared during the Franco era, as well as to "provide the necessary funds" for the Law of Historical Memory to be applied effectively."
Rajoy's 2012 budget slashed spending on opening mass graves from 6.2 million euros to 2.5 million euros. Since then, the government has not allotted any further money. When the veteran leftwing deputy Gaspar Llamazares asked in Congress which organization would be tasked with rolling out the law, Fernando Román, the PP's secretary of state for justice, replied: "It has been pretty much rolled out already."
Justice Minister Alberto Ruiz-Gallardón said in September: "The government is complying with the law. It is putting together a map of mass graves. This year 27 new sites have been added, making the total so far 2,382, providing us with a tool that will enable us to recognize our duty to remember. It is true that spending cuts have meant we cannot give any funding to victims' associations, but since 2006, these associations have received 25 million euros. It is also true that searches and exhumations were being carried out up to 2011."
A Justice Ministry spokesman told EL PAÍS: "There is no denying that the crisis has meant reducing subsidies, but in this case, the majority of requests for help with exhumations were made as soon as the law was passed." But victims' associations say that of the 2,382 mass graves that have been located, less than 400 have been opened. The Association for the Recovery of Historical Memory (ARMH), the main body representing the families of men and women murdered by Franco's forces during and after the 1936-39 Civil War, says it has 41 sites it wants to examine, and is looking for funding. It says that a laboratory in León province faces closure due to lack of money. One family has used internet crowdfunding to raise funds to exhume relatives from a mass grave in the small community of Borriol, Castellón.
"It's not true to say that all the exhumations have been carried out. We receive requests every day," says Emilio Silva, the founder of ARMH. "They are making fools of us by saying that there is no demand for this. No public money was available, so we applied to the office that deals with compensation for victims of terrorism, as well as the Foreign Ministry. Both turned us down." Of the 25 million euros spent as a result of the Historical Memory Law, 20 million euros corresponds to the period between 2006 and 2011, before the Rajoy administration took over. But the government has demanded 4,000 euros from one association that didn't finish its exhumation work in the time frame stipulated by the subsidy.
Meanwhile, another unfulfilled promise is that of turning the Valley of the Fallen, the site of Franco's tomb and the world's highest memorial cross, both built by Republican prisoners of war, into a memorial site for the dictator's victims. In November 2011, just days before the general election that would usher in a majority PP government, Jáuregui presented the proposals made by a special commission on what to do with the monument. As feared, Rajoy's government shelved them. So far, the government only intends to spend 214,000 euros on repairing the basilica that houses Franco's tomb. "Not only has this government overturned the law, it has broken it," says Jáuregui, "because it has not done what it said it would regarding the Valley of the Fallen: it is disgraceful."