The enduring myths around Spain’s Historical Memory Law

“It makes me feel like walking out of the chamber. I’ve been on the point of going out for a drink and coming back because it all seemed so absurd,” was one comment. Another: “This bill is irrelevant and deceptive. It seriously divides people, revives hatreds, fuels the desire for revenge…”

These remarks and others like them could be heard in 2006 inside Spain’s lower house of parliament during the debate on the Historical Memory Law – which, according to a Popular Party (PP) senator who vetoed it, caused more controversy and sparked more passionate feelings than any other piece of legislation in recent years.

At least I succeeded in enabling some of the victims that I summoned as witnesses to tell their stories in court

Former judge Baltasar Garzón

Only the conservative PP and the Catalan Republican Party (ERC) voted against the bill – the former because they did not consider it necessary, and the latter because they felt it did not go far enough. During a political term in which parliament greenlighted anti-tobacco laws, immigrant naturalization, same-sex marriage, assisted reproduction and equality legislation, the bill that trumped the rest for controversy, as far as the PP is concerned, is one about the past. And the controversy rages on.

Not a day goes by when some member of the PP or Vox does not use the Historical Memory Law to attack the Socialist Party (PSOE), which brought the bill to Congress. “They are a bunch of mossbacks who are stuck in their grandfather’s war and constantly going on about this grave or that,” said Pablo Casado shortly after becoming the PP party leader. “There are no more tombs left for them to visit, or more divisions to open among the Spanish,” he said of Pedro Sánchez after he had visited the grave of Manuel Azaña, the last president of the Spanish Republic between 1936 and 1939.

The PP leader believes the law is “harmful” and a “partisan rewriting of history.” He has entrusted a counter bill, called the Concord Law, to Adolfo Suárez Illana, the eldest son of Adolfo Suárez, who served as prime minister during the transition to democracy following Franco’s death in November 1975. Suárez Illana has said that the Spanish owe some of their democracy to Franco because “if he had not wanted the Transition to be done as it was, it would not have been done that way.”

Politicians on the right are basing their issues with historical memory legislation on three premises: that it means the “annihilation of the Transition;” that it divides the Spanish people, and that it is trying “to rewrite history.”

However, the first paragraph of the Historical Memory Law is a tribute to the transitional period between the death of Franco and the adoption of a constitutional democracy; reinstating the rights of the losing side and their descendants began with the Transition. In response to their other arguments, hundreds of war graves have been opened since the year 2000 without a single incident – in some cases with members of the PP present and even on occasion with that party’s financial backing. For now, the closest thing to the rewriting of history has been the controversial paragraph in which the Supreme Court referred to Franco in a legal decision as “the head of state in 1936,” the year the Civil War began, when Franco was still the leader of the military coup.

When Franco died, widows who had not received a pension after their husbands’ deaths started to get paychecks. And these same widows began to open the unmarked graves where their husbands lay without the help of scientists, which is how it is done today; instead, they were occasionally aided by priests.

The balance sheet of historical memory in the last 40 years shows, as the United Nations has indicated on a number of occasions, that the basics of historical memory are yet to be tackled, namely recovering the remains of those who were executed by firing squads, and whose bodies still lie in mass graves and roadside ditches. After Cambodia, Spain ranks second as the country with the highest number of ‘disappeared’ people: 114,000 according to historians and relatives’ estimates.

Myth 1. Annihilating the Transition

“It is an attempt at a controlled annihilation of what the Transition stood for,” said the PP during the debate on the historical memory bill, which was passed in 2007.

The fifth word of the bill is in fact “concord” – concordia – the same name the PP has given to its own draft bill, which the conservatives hope will replace the current law. In its first introductory paragraphs, the law says: “The spirit of the Transition gives meaning to the most productive constitutional model of coexistence that we have ever enjoyed, and it explains the various measures and rights that have been recognized from the start of the democratic era in favor of people who suffered the consequences of the Civil War and of the dictatorial regime that followed during the decades prior to the Constitution.”

From the Transition until 2006, when the proposed Historical Memory Law was debated in parliament, the state earmarked €16 billion in compensation for those who were defeated in the war and their descendants. For example, €391 million was spent on compensating prisoners; €3.34 million on deaths or disappearances and €3 million more for soldiers who lost limbs in combat. When the law was passed, the reinstatement of these rights continued: the 1979 pensions for the families of those who lost their lives in the Civil War were increased, while €135,000 was released for families of individuals who had died fighting for democracy between 1968 and 1977.

New restorative measures were also introduced for the victims of Francoism, such as the concession of Spanish nationality to the children of exiles, funding for associations to open mass graves and also for research and educational projects related to the Civil War and Francoism. The total investment since the Transition comes to €21 billion.

Acting Justice Minister Dolores Delgado, who has created a historical memory department, explains that the compensation policies with regard to the victims of Franco’s dictatorship “in no way imply the annihilation of the Transition, but rather return a sense of dignity to those who gave their lives, were imprisoned or went into exile for defending values recognized by the 1978 Constitution.” As far as Delgado is concerned they are “constitutionalist heroes,” “patriots,” and “those who defend and are proud of the Constitution should also defend and be proud of these people.”

Julián Casanova, a professor of contemporary history who, along with Santos Juliá, spearheaded the initial investigations into the victims of Francoism in Spain, says: “The Transition is not a fixed photograph that decrees that the past cannot be spoken about. Taking this political pact as a departure point, investigations such as ours were able to go ahead, financed with public money. There has been a lot worked on since the Transition, but there has not been a basic agreement on how to publicly manage the past and the exhumation of the victims who lie in mass graves and ditches.”

Myth 2. It divides the Spanish people

In 2008, a year after the Historical Memory Law was passed, the Spanish Center for Sociology Research (CIS) carried out a study specific to this issue. The result was that 83.8% said the State should be in charge of recovering and identifying the remains of all the people who continue to lie in mass graves; 11.2% believed that the State should confine itself to offering financial help to families and associations to carry out the task, and only 0.9% said they thought the State should not be financing it at all.

In the same survey, 72.2% agreed that during Francoism, the victims of the Civil War received a different kind of treatment depending on which side they fought, and 40.8% of those who were familiar with the Historical Memory Law considered it a necessary measure because democracy is still indebted to the victims of the Civil War and Francoism.

Emilio Silva, president of the Association for the Recovery of Historical Memory (ARMH) has witnessed many exhumations, starting with that of his own grandfather in 2000 in Priaranza del Bierzo. That event triggered a wave of petitions from families that wanted to do the same thing, which is how the association was formed. “Many of these families have always known who the assassins were,” he says. “But in all these years, I have never seen conflicts or arguments over the graves.”

On a local and regional level, the PP has supported some of these exhumations. In the Canary Islands, for example, two different administrations – by the PP and the regional party Nueva Canaria (New Canaries) – were behind the opening of wells where the bodies of those executed had been dumped. Previously, these sites had been declared assets of cultural interest in order to protect them.

Myth 3. Rewriting history

“They are trying to change history in order to look after their own interests,” wrote Suárez Illana referring to the PSOE. “The Historical Memory debate is foul,” said Santiago Abascal, leader of the far-right party Vox, before going on to give his own version of events. “The Civil War was triggered by a party that still exists today with the same initials: the PSOE.”

The contemporary history professor Julián Casanova explains from Princeton University, where he is currently working, why introducing compensatory policies for the victims of Francoism in no way implies setting back the clock to let the other side win. “It is true that not all the victims of the ‘Reds’ were found, but those missing were registered as murdered; there was a general cause, tributes and rewards, astounding measures that favored the winners over the losers. What has happened since the Transition is the establishment of compensatory policies for those who were not taken into account during the dictatorship, and this has been established without any accompanying punishment, and this is a unique feature because compared to other countries with dictatorships, Spain did not have a policy of punishment for the persecutors.”

Baltasar Garzón, a former crusading judge at Spain’s High Court (Audiencia Nacional), drew up a list of crimes committed by the Franco regime in a case in 2008. The lawsuit was thrown out and he himself ended up in the dock accused of perverting the course of justice, though he was later absolved. “The argument that there is an attempt to win the war 80 years after the fact is absurd,” he said in a judicial decision. “The only type of person who could make that argument has to be either small-minded, bitter, or fearful of losing a privileged and illegitimate position. You don’t gain anything from a war. There is no possible triumph after pain and death.”

What remains to be done

Since the year 2000, more than 740 mass graves have been opened in Spain, and the remains of 9,000 bodies recovered. It is still not known how many are left to be opened. The government met a number of times with representatives of the various regional governments – Andalusia, Catalonia, the Basque Country, Extremadura, Navarre and the Canary Islands have their own historical memory laws – in a bid to bring the map of mass unmarked graves up to date and establish a national plan for exhumations. The report, drawn up by a group of experts with the government’s backing, estimated that between 20,000 and 25,000 bodies could be recovered by setting up a national council with seven teams of forensics (40 to 50 experts) to resolve the issue in the space of four or five years.

The government’s failed budget had designated €15 million to historical memory measures. Some funding had been released even before the law’s approval, but it was cut abruptly by the PP when it came to power in 2011. The graves of Franco’s victims were then opened with dollars, including the prize money awarded by a US association – and with fundraisers such as the one made by a Norwegian electricians’ union after its members were struck by the neglect of the victims of Franco’s regime following a visit to Spain.

Silva and Casanova insist that the state needs to assume this responsibility, and that it should also recover the archives that are currently in the hands of the Franco Foundation. Silva says that a real law of ‘concordia’ such as the one the PP is proposing would unite all the victims. “My grandfather was killed exactly the same way as Miguel Ángel Blanco [a PP councilor shot by the Basque terrorist group ETA in July 1997). They abducted him and left him in a ditch after being shot twice,” he says.

Silva believes that the lack of funding is no excuse and asks that, besides visiting the grave of Manuel Azaña and commemorating the exiled Spaniards, a tribute should be organized within Spain to the people who fought against the dictatorship.

Both Silva and Casanova agree that education is fundamental, and that the repression of the Franco regime must be included in textbooks. “If the victims of Francoism go to a high school to give a talk, they call it indoctrination, but nobody argues when a victim of the Holocaust does it in Germany,” they agree.

When Garzón – who was still sitting in the High Court at the time – received the complaints by victims’ associations and he asked for a census of victims to begin judicial proceedings, he was told it did not exist. “It was a real shock,” he says. “It was deeply painful and even now I feel a deep sense of unease about the fact this census does not exist. The administration’s indifference during so many years is outrageous.”

Justice Minister Delgado believes the first step is to recognize the dimensions of what happened. “We have had a very biased version of events and we have to bring a global focus to memory, in a very educational way,” she says. “The end of this process will be normality, when all politicians accept the need to explore that part of our history and when they understand the families who want to recover the remains of their loved ones. The end of this will come when there is a museum of memory that can be visited by people of different political persuasions.”

For now, Franco’s descendants have challenged the State in order to prevent the exhumation of the dictator’s body, which lies in the Valley of the Fallen – a move that would be a first step toward changing the significance of the monument.

Given that the Supreme Court blocked the route to investigate these crimes in Spain, former judge Garzón adds justice to the list of pending issues. And as far as he is concerned, justice comes in many guises, from jail sentences to a truth commission that also figures in the current government’s plans.

“On a small scale, at least I succeeded in enabling some of the victims that I summoned as witnesses to tell their stories in court,” he says. “That has been the only time [they have been able to do that]. But if there is one thing I have learned over the course of my lengthy professional life is that the hearts of the victims never forget. This need to let the truth be known does not dim with time.”

English version by Heather Galloway.