Spanish government makes legal move that could see Franco-era crimes prosecuted

An amendment to the draft Democratic Memory Law seeks to change the interpretation of 1977 amnesty legislation that was used to free the regime’s political prisoners but also helped shield those suspected of abuses during the dictatorship

The Valley of the Fallen, in San Lorenzo de El Escorial (Madrid), in a file photo from 2018.
The Valley of the Fallen, in San Lorenzo de El Escorial (Madrid), in a file photo from 2018.Samuel Sanchez (EL PAÍS)

The two parties that make up the coalition government in Spain, the Socialist Party (PSOE) and junior partner Unidas Podemos, have filed an amendment to the draft Democratic Memory Law that seeks to ensure that crimes committed during the regime of former dictator Francisco Franco no longer go unpunished. The agreement between the two groups – which could also see the Valley of the Fallen monument in Madrid renamed – has been reached three days before November 20, the day that Franco died in 1975.

The amendment seeks to force a reinterpretation of the Amnesty Law, which was passed in 1977, without repealing it altogether. The PSOE has outright rejected going so far as to overturn this legislation, which was approved during Spain’s so-called “Transition” to democracy in the wake of Franco’s death, and was used to secure the release of the regime’s political prisoners from jail. It later served, however, as a means to stop any attempts to prosecute figures from the dictatorship for any potential offenses committed prior to 1977.

The coalition government lacks a working majority in Spain’s lower house of parliament, the Congress of Deputies, and as such must seek support from other parties to pass legislation. The Catalan Republican Left (ERC), which has supported the administration of PSOE Prime Minister Pedro Sánchez on a number of votes and issues, has been calling for key aspects of the Amnesty Law to be overturned as a condition to back the Democratic Memory Law. Getting this bill passed has been a key promise of Spain’s center-left administration, but securing enough parliamentary approval is proving more difficult than expected. The government will now have to negotiate with the ERC as well as the Basque Nationalist Party (PNV) in a bid to get them on board with the amendment filed today.

The amendment, which was filed at the last possible moment by the PSOE and Unidas Podemos, reads: “All the laws of the Spanish state, including the Law 46/1977, of October 15, of Amnesty, will be interpreted and applied in accordance with conventional international and common law, and in particular, with International Humanitarian Law, according to which war crimes, crimes against humanity, genocide and torture are considered to have no statute of limitations nor can be subject to amnesty.”

This change would open the door for crimes committed under the Franco regime to be pursued by the Spanish justice system. So far, any such attempts to do so – most notably those initiatives from former High Court judge Baltasar Garzón – have fallen foul due to the 1977 Amnesty Law. In fact, until now the only legal proceedings related to the Franco era that have made any progress have been filed in Argentina.

So many years after the death of the dictator, we are taking very solid steps toward his crimes no longer having impunity
Enrique Santiago, general secretary of the Spanish Communist Party

Sources from Unidas Podemos stated that it would not be sensible to annul the Amnesty Law, as the ERC has been calling for, among other reasons because the legislation was a major achievement for democrats at the time. But the party does support its interpretation being steered via this amendment to prevent it being used as a shield for those suspected of Franco-era crimes.

That said, it will still have to be seen if such a change eventually has any success in the courts, given that the Supreme Court has established very clear case law against any prosecution of Franco-era crimes.

“So many years after the death of the dictator, we are taking very solid steps toward his crimes no longer having impunity,” said Enrique Santiago, who is the general secretary of the Spanish Communist Party (PCE) and a deputy in Congress for Unidas Podemos. “This is, without a doubt, the last opportunity for our country after so many years. This is the only Western country where impunity has been the trend with this kind of crime. This is a day to be satisfied,” he stated.

“This will correct the interpretation of the courts,” continued Santiago, who was one of the negotiators behind the amendment. “The Amnesty Law will not be able to be used any more as an excuse.” The politician did admit, however, that given the passing of time there will be no major concrete legal consequences, but there will be a reparatory and moral effect for the families of the victims.

“Death extinguishes criminal responsibility,” Santiago continued. “The majority of those responsible are dead. But at least this will end an anomaly in our country. Any Francoist minister or any person who has committed torture could face trial. Regardless of whether or not they can be punished, a judicial truth can be established, and that in itself can have a reparatory effect for the victims.

Asked as to why the PSOE had accepted a change to the interpretation of the Amnesty Law without repealing it altogether, Santiago replied: “All of us have been very aware that this was the last opportunity.”

Valley of Cuelgamuros

The PSOE and Unidas Podemos have filed some 30 amendments to the Democratic Memory Law in total. According to the latter party, these include changing the name of the Valley of the Fallen to its original designation, the Valley of Cuelgamuros. The Valley of the Fallen is a controversial site, built by Franco ostensibly as a place of reconciliation after the Spanish Civil War (1936-39). But it also became the resting place of the dictator, and as such a potent symbol for the far right, until his exhumation was approved by Congress and carried out in October 2019.

Other measures in the amendment, according to Unidas Podemos, include the prohibition of the exhibition of portraits or other artistic representations of figures linked to Franco-era repression in public areas, and the withdrawal of the honorific distinctions granted within state security forces. The nobility titles awarded to 33 figures from the Franco regime, such as the posthumous naming of the founder of the fascist Falange political organization, José Antonio Primo de Rivera, as a duke, would also be withdrawn.

Sources from the ERC party in Congress, however, still say that the proposed changes don’t go far enough, albeit admitting that they are prepared to negotiate their route through parliament. For the ERC, the declaration of the Francoist regime as illegal is not up for negotiation.

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