The exhumation of victims of the Franco regime in the Valley of the Fallen reaches the Supreme Court
The exhumation of the mortal remains of victims of the Franco regime in the Valley of the Fallen is already on the table of the Supreme Court. This is confirmed by sources of the judicial process to elDiario.es after the lawyer who initiated the lawsuit and managed to paralyze the work license necessary to undertake the exhumations has taken the case to the third room of the high court. All after a few days ago the Madrid courts precautionary measures will be lifted that weighed on this building license, thus giving the green light to the necessary work to extract the bodies from the Cuelgamuros crypts.
A resource that, in any case, does not paralyze the process in any way, according to sources from National Heritage to this newspaper. The public administration waits, after the judicial endorsement received at the end of June, for the City Council of San Lorenzo del Escorial to resume the implementation of the building permit.
As elDiario.es advanced, the Superior Court of Justice of Madrid issued a sentence at the end of last June that raised the last obstacle. The magistrates decided to annul the precautionary measures that a Gran Vía court had imposed on the building license that the City Council of San Lorenzo de El Escorial had granted to National Heritage to undertake the necessary work to attempt the exhumation of dozens of bodies of victims of the Franco dictatorship buried there.
The court had understood that it was essential to stop the works until there was a ruling on the merits of the matter because, if not, the consequences of the intervention in the crypts and columbariums of the Valley would be irreversible, but the Superior Court of Justice understood otherwise. His sentence estimated an appeal from the State Attorney on behalf of National Heritage and eliminated the injunctions that weighed on the building license.
That decision has not been revoked or nuanced but the lawyer who put the exhumations in the hands of Justice has put in place his last option and has appealed this sentence to the Supreme Court. For the moment, sources in the case explain, the lawyer Francisco Javier Zaragoza has announced the filing of an appeal that, first of all, will have to be admitted for processing. An entry filter of the third room of the high court that is not guaranteed to be solved but that brings a decision closer to the end of this month of July.
It is a resource and a movement of the lawyer that, in any case, does not delay the National Heritage plans. The works, after the support of the TSJM, have not started but not because of the existence of the resource but because Heritage is still waiting for the San Lorenzo del Escorial City Council to start up the machinery again so that the works can start.
As reported by elDiario.es, the Superior Court of Justice of Madrid lifted the precautionary measures that a court imposed on the building permit in November last year. "It does not follow that the scope of the intervention subject to the license entails an irreversible urban transformation of the crypts, nor that it involves actions that exceed those of maintenance, consolidation and recovery, which are those allowed in the Catalog file" said the Madrid Superior Court.
There where the court guessed some "irreparable" damage to the columbariums, the TSJ understood that opening these holes would be something "returnable to the previous state without excessive difficulty" so they did not appreciate that the granting of that license by the consistory of the sierra Madrid can be translated into "irreversible situations in the protected element that jeopardizes the useful effect of the sentence that could be handed down". A license that, moreover, comes from the municipal authority and therefore has a "presumption of legality," the judges said at the time.
While the judicial processes continue, the descendants of the victims of the dictatorship who await the exhumation see how time passes without the work starting. In the case of brothers Manuel and Antonio Ramiro, shot by Francoist troops in Catalayud in 1936, a court in San Lorenzo de El Escorial authorized their exhumation several years ago, something that has not happened to this day. The son of one of the two Lapeña brothers passed away end of 2021 without getting to see, therefore, the exhumation whose work will start in the coming months.
This is not the first exhumation that the Government wants to launch and that depends on an endorsement from the Supreme Court. Already in 2019, the contentious-administrative judges of the high court kept the exhumation of the body of dictator Francisco Franco paralyzed for months. The process was suspended in June of that year and the exhumation, prior judicial approval, could not be carried out until October.
In that case, the judicial debate was very different. Currently, the contentious-administrative chamber will have to study precautionary measures already withdrawn on a municipal building license and the impact that the exhumation work will have on the crypts.
In the case of Franco's exhumation, however, the analysis was much broader, on the merits of the matter and covered different legal ramifications of the operation: urban planning but also the right of the family to bury the dictator where they wanted, ownership of the Valley of the Fallen and the Almudena Cathedral and even the legality of the agreements of the Council of Ministers that preceded the exhumation.