June 15, 2021

The Judicial Power defends that the memory law violates “ideological freedom” by trying to close Francoist foundations


The General Council of the Judiciary (CGPJ) will debate in a plenary session next Monday a proposal for a report on the Democratic Memory Law which questions the legality of one of the main aspects of this rule: the extinction of foundations that defend Francoism, such as the Francisco Franco Foundation, dedicated to exalting the dictatorship. The ruling – mandatory, although not binding on the Government – highlights that “without the additional requirement of disparagement or humiliation of the victims” the mere “apology of Francoism” is protected by freedom of expression no matter how much ideas contrary to the laws are disseminated. constitutional values.


The European Parliament asks the Government to end the Francisco Franco Foundation and "all the symbols that exalt the dictatorship"

The European Parliament asks the Government to end the Francisco Franco Foundation and “all the symbols that exalt the dictatorship”

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Consequently, the draft – to which elDiario.es has had access – maintains that the Government’s preliminary draft “clearly invades the right to ideological freedom enshrined in the Constitution” and recalls that constitutional doctrine has established that the ideas or beliefs that make apology for Francoism if they do not involve “direct or indirect incitement to hatred or violence against the victims of the coup d’état, war or Francoism, due to their condition as such”, they cannot serve for the extinction of a foundation. The members will debate next week this text prepared by members Roser Bach and Wenceslao Olea after the resignation of the first two speakers appointed.

Thus, the report proposal maintains that the legislator can “limit” the existence of foundations that directly or indirectly incite hatred or violence against the victims of the coup, war or Franco, although it maintains that by “imperative of equality ”should also protect“ the dignity of the various victims of human rights violations that occurred in the historical period contemplated, ”which sets the promulgation of the Spanish Constitution in 1978 as the final date.

In this sense, the report argues that the consideration of “acts contrary to democratic memory” should follow the guideline of the European Parliament, when in 2019 it called for “a common culture of historical memory that rejects the crimes of the fascist and Stalinist regimes, and of other totalitarian and authoritarian regimes of the past ”.

The preliminary draft also establishes as a general cause to close foundations that they “do not pursue aims of general interest or carry out activities contrary to it”, a reason that the CGPJ report considers “disproportionate” and that it would suppress due to its “lack of precision of limitation” since it leaves “a very wide margin of appreciation” to whoever requests the extinction of a foundation and to the judge who has to decide.

On the other hand, the report proposal also questions the classification of a very serious infringement made by the preliminary draft of the call for acts that incite to the exaltation of the War or the Dictatorship, when they involve discrediting, disparagement or humiliation of the victims or of their families.

Thus, the text of the speakers cites constitutional jurisprudence, according to which the peaceful nature of a meeting is not altered by the fact that ideas are expressed or objectives are expressed that may offend or annoy other people or groups, since “the content of the ideas or claims that are intended to be expressed and defended through the exercise of the right of public demonstration and concentration cannot be subjected to controls of political opportunity or to trials in which the system of values ​​that they cement and give cohesion to the social order in a determined historical moment ”.

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