In order to unravel the Democratic Memory Law, the Government partners have agreed to a joint amendment with which they seek to circumvent the Amnesty Law. PSOE and United We can thus try to satisfy their pro-independence partners, especially ERC and Bildu, who refuse to give them their support if they do not include the repeal of the 1977 rule. What the agreed amendment seeks is to open the door to the investigation of Franco's crimes, a possibility that to this day remains closed in Spain despite the multiple international pronouncements that remind our country of the obligation to do so.
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What is the Amnesty Law?
Approved in October 1977, the formally called Law 46/1977, of October 15, on Amnesty, was intended to be one of the elements that would lead Spain towards democracy and was part of the reforms that were carried out during the Transition after Franco's death. Presented by the Government of Adolfo Suárez (UCD) in conversations with opposition groups, it intended to turn the page on "acts of political intent, whatever their result, classified as crimes and misdemeanors carried out prior to the 15th. December 1976 ".
It was part of what was then called the process to achieve "reconciliation between Spaniards" and was supported by almost all parliamentary groups, including the PSOE and the Communist Party. Only the Popular Alliance, the germ of the current Popular Party, abstained.
What was its effect?
The rule was designed to get the political prisoners of the dictatorship out of prisons and to give amnesty to those who still occupied Spanish prisons or were in exile for political reasons. "We did not speak of it again for 30 years. Until it became the umbrella and judicial protection of impunity for Francoist crimes," explains the lawyer specialized in historical memory Eduardo Ranz.
"It has two parts: one that referred to those who were retaliated and that meant the cancellation of unjust penalties; and another, that article that was barely discussed in parliament and is the one that brings us here", adds Javier Chinchón, professor of Public International Law and International Relations at the Complutense University of Madrid. They are the precepts 'e' and 'f' of its article 2, which included within the amnesty "crimes and misdemeanors that may have been committed by authorities, officials and public order agents" and "crimes committed by officials and agents of the public order against the exercise of the rights of the people ".
Why has it been an obstacle to judge the Franco regime?
In practice, the Amnesty Law has been one of the usual arguments that the courts have used to prevent the investigation of Francoist crimes and that make Argentina the only country in the world to have an open case. "What the law says is that common crimes are amnestied, but not crimes against humanity, which are not amnestiable. What happens is that the interpretation that our courts have made is that these crimes were ordinary crimes, so they are The Amnesty Law or prescription applies to them, "says Chinchón, also a member of Rights International Spain (RIS).
Have attempts been made to prosecute these crimes?
Yes. In 2008, the judge of the National High Court Baltasar Garzón declared himself competent to investigate the complaint filed two years earlier for homicides and forced disappearances between 1936 and 1951. Afterwards, he restrained himself in favor of the territorial courts, but the cases were archived. Amnesty International recorded a total of 38 dismissals until 2013 from different Spanish courts.
The trend was consolidated in 2012 with the ruling of the Supreme Court that acquitted Garzón of a crime of prevarication but in practice it was an almost insurmountable wall for subsequent attempts. The High Court came to defend with its interpretation the validity of the Amnesty Law that now the amendment of the PSOE and United We can try to overcome and to argue that it was not possible to understand this type of crimes as against humanity at the time of committing them, therefore that would be prescribed.
What do international organizations say?
There are many United Nations mechanisms that repeatedly remind Spain that the serious human rights violations committed within the framework of the dictatorship are not amnestiable nor are they subject to statutes of limitations. The last was the UN Committee against Enforced Disappearances on September 30. But the main knock came hand in hand of the United Nations Special Rapporteur of the Human Rights Council, Pablo de Greiff, who in 2014 he questioned these obstacles in the search for justice of the victims.
For the rapporteur, however, the Amnesty Law in itself does not prevent the opening of cases, but its "restrictive interpretations", also of the principles of non-retroactivity or of legal certainty, of the application of the most favorable norm or of the prescription of crimes. He was blunt in that the effects of the norm are incompatible with the commitments and obligations signed by Spain, among them the International Covenant for Civil and Political Rights, ratified by Spain a few months before the approval of the norm.
What does the amendment seek?
The text of the amendment is committed to the fact that all the laws of the Spanish State, including the Amnesty Law, "shall be interpreted and applied in accordance with conventional international law" and international humanitarian law, by which "war crimes, of Against humanity, genocide and torture are considered imprescriptible and not amnestiable. "
Will it succeed?
It remains to be seen, because there is no consensus among the experts. There are voices that suggest that the amendment will change the interpretation that the courts have been making in this regard, and this has been explained by Enrique Santiago, Secretary of State for Agenda 2030 and Secretary General of the PCE: "The Amnesty Law may no longer be used. as an excuse, "he said, admitting that it will not have" a very important effect "on justice because most of the perpetrators of these crimes have already died.
For Chinchón, the amendment "is an advance in the position of the legislative power", but in terms of its scope he prefers to be cautious and points out that "the underlying problem" is that the court's interpretations go along the lines of not considering these crimes against humanity, "but as ordinary crimes to which an ordinary standard is applied", so he doubts that in practice it represents a change.
Jacinto Lara, a lawyer participating in the 'Argentine complaint'and member of the Spanish Association for Human Rights (APDHE). He understands that this initiative addresses "one of the elements, but not the rest of the elements" that, in his experience, underpin the "monolithic" response of the Spanish courts when it comes to not investigating these crimes: the principle of legality and the prescription. The first, he says, "is the keystone from a legal perspective, which is what is preventing the investigation and prosecution of Franco's crimes."
It explains that the crime against humanity entered the Penal Code in 2004 and that, therefore, it cannot be applied to previous events. There they are left with crimes such as torture or illegal detention and "the statute of limitations applies to that," valid for filing dozens of complaints without having to resort to the Amnesty Law. He puts on the table the example of the unsuccessful lawsuits against 'Billy the Kid': "If I make the general type of crime against humanity disappear, I'll take that of torture, and at the time the lawsuits were filed against 'Billy the Kid 'is prescribed ".
Eduardo Ranz is more optimistic, that although he admits that beyond the Amnesty Law there are other arguments to which judicial interpretations cling, he does consider the amendment "useful" because "although it does not repeal anything, it does reinforce and justify the judge that decide to go down the path of the duty of investigation of Franco's crimes ". This is provided that the Office of the Prosecutor for Democratic Memory and Human Rights, which also creates the new law, "investigates the facts and proposes an accusation." A "balance", he assures, "that can give very good results."