After an arduous journey, everything indicates that at the return of summer the Democratic Memory Law will go for final approval. Important advances, but also large gaps is Amnesty International's assessment of the still draft law, which it regrets "has given up removing the obstacles" that prevent sit on the bench in Spain those responsible for the crimes committed during the Civil War and the dictatorship, in the words of investigator Daniel Canales.
Specialized in international justice and human rights of the organization, Canales welcomes the fact that the rule obliges the State to assume the exhumations or declare the Francoist sentences null, but points out that there are issues that do not respond to what international organizations have been demanding for years.
Does the law represent an advance with respect to what we already have?
Yes, when it is definitively approved and, especially when it is implemented, it will improve the framework that the 2007 Historical Memory Law entailed. There are clear steps forward, such as what has to do with the State assuming responsibility for exhumations or the declaration of nullity of judgments in the framework of unfair procedures, among other things. Recognizing positive elements, which undoubtedly represent progress, we also detect elements of concern for issues that it does not address or leaves halfway. One of the fundamental ones is that it does not guarantee access to justice for victims.
In this sense, and if the rule remains as it is currently drafted, will it serve to judge Franco's crimes or will the victims continue to be forced to resort to justice in other countries?
It is the question that we all ask ourselves. The project makes a mention that the Amnesty Law of 1977 must be interpreted in accordance with international treaties, which means that these crimes are imprescriptible and not subject to amnesty. It is no longer obvious. The best scenario could assume that there are judges who determine the non-application of the rule to the complaints that reach them. If this were the case, it would be a positive step, but I think it will hardly mean that crimes will be able to be judged. Bolaños himself admitted that the amendment presented by PSOE and United We Can I wasn't going to make this change.
What is the problem?
On the one hand, it would have been necessary to modify the Amnesty Law itself to be more explicit, but we also have case law from the Supreme Court and the Constitutional Court that points to other added elements. From prescription, to criminal non-retroactivity or the principle of legality, which is the most outstanding. last march Congress refused to reform the Penal Code to incorporate the principle of international legality so that crimes that were not defined here at the time, but were defined by the international community as crimes under international law, as is the case, can be criminally prosecuted. The desirable thing would have been for the legislator to try to reverse these obstacles, but he has given up. When the project speaks of an investigation linked to the Human Rights and Democratic Memory Chamber Prosecutor, whose establishment is a positive measure, it must be taken into account that these limitations exist, which generates many doubts about what its scope really will be.
Amnesty International considers it good news that the exhumations are assumed to be State responsibility, but there are associations of victims who are concerned that it ends up depending on municipalities or communities with policies contrary to memory. Could it be a risk?
Among the contributions we made to the bill, from the beginning was the creation of a state office that would be accessible to victims and would centralize and facilitate the processes. There are communities that carry out really positive work in this area, but there are others that do not and, in fact, we have found exhumations that have faced many obstacles and difficulties on the part of municipal authorities. In this sense, perhaps the project should try to find a balance and a sort of subsidiarity regime through which a state body could act in places where there are no such possibilities for the victims.
The framework of the law extends until 1978, but possible violations of human rights will be studied until 1983. Does it make sense?
The objective that we interpret that it should have is to study possible ways of recognizing people who suffered human rights violations that have not been repaired, if they have been identified. It is a positive element and consistent with international law and the International Covenant on Civil and Political Rights.
How does the law enshrine the right to the truth?
It seems that it tends to limit it to scientific knowledge, rather than judicial investigations. The law establishes the creation of a commission with the aim of "clarifying human rights violations", but we do not believe that it has that mandate and it falls short of what a truth commission would entail, which aims, among other issues, at identify perpetrators and give an individual and collective account of how these violations were committed. The project does not give him effective investigative powers. In the end, although it is criticizable, it is what the law has opted for: a right to the truth more linked to the academic field.
How does Amnesty International assess financial reparation in law?
We regret and find it worrying that the project explicitly excludes the patrimonial responsibility of the State or the right to financial compensation. According to international law, it is one of the legs of the integral reparation of the victims. One of the arguments that the Government has put forward is that an effort has already been made in this direction.
Yes, the figures point to the fact that up to now 21,750 million euros have been granted to 608,000 victims of the Civil War and the dictatorship.
If we have a law that is recognizing new categories of victims, it is difficult to understand how those victims who were not victims before have already been compensated. On the other hand, we must not forget that this effort from the economic point of view, when it has occurred, has been made in isolation from the human rights violations that motivated it. They are regulations that come from decades ago, which were granted without express recognition by the State. An attempt at reparation and compensation that is granted at the same time that the victims are denied access to judicial investigations and the clarification of the facts, as has occurred, is little in line with what international standards require.
The norm foresees to cover the gaps in terms of historical memory in the educational field. An example of the deficits that we carry is that for the first time the high school history curriculum is going to call the 1936 uprising a coup d'état.
It is something key. As a guarantee of non-repetition and prevention that these human rights violations do not take place again, education is a very important pillar. One of the most effective measures.
Is it a law that responds to what international organizations have been asking us for decades?
On some issues yes and on others no. In the field of justice, in which the recommendations of the United Nations are very clear, the bill does not go that way. The mention of the interpretation of the Amnesty Law is a step, but it is timid. This is the area in which the guidelines are probably to a lesser extent. With the truth, we see that there is a step forward with the exhumations, but at the same time they are not expected to be carried out within the framework of judicial procedures. It is something important because we are not talking about archaeological remains, but about the mortal remains of people assassinated in a dictatorship, which normally can constitute judicial evidence for investigations. In reparation, the same thing happens a bit: the declaration of nullity of the sentences is very important, but economic reparations are excluded. Finally, in non-repetition, historical memory is included in education, but there is no mention of training for the judiciary, the State Security Forces and Bodies or the Armed Forces.