EQUIPO NIZKOR
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DERECHOS


01Sep06

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Between moral cowardice and illegality.

The Government takes another step to consolidate the Spanish model of impunity.

The recent report submitted by the Government representing the product of the efforts of what is known, in brief, as the Inter-Ministerial Commission together with its appendix "Draft Law to recognise and broaden rights and to establish measures in favour of those who suffered persecution or violence during the civil war and the dictatorship " |1|, are, from a parliamentary perspective, consistent with the motion presented by Deputy Ramón Jáuregui in June of 2004 |2|.

Congress, in plenary session, approved the motion - with the support of all parliamentary groups except the PP who abstained - which urged action by the Government on three matters to which the Executive has now responded.

First, the House called upon the Government to carry out a general study of the moral rights recognised by State and autonomous legislation with respect to both the victims of the civil war and the reprisals. This analysis was to give rise to a report - which was to be submitted to Congress in December 2004 - concerning moral, social and economic reparations for the injuries caused to this group, including specific proposals for programmes, measures and concrete actions to improve the current situation.

The motion passed on 1st June 2004 sought a law to render a "tribute of recognition and justice" and to include economic assistance to compensate for the acts which occurred between 1st January 1968 and 6th October 1977, covering events which took place in the pre-Constitutional period of the Transition, such as those of Vitoria, the case of the murder of the student Ruano and that of the workers in Granada.

The motion also urged the Government to designate human resources and materials to facilitate access to the archives, both public and private, and to ensure that the information necessary to request such assistance can be gathered, in order to be able to recover " the truth in the particular cases" and "to recall and to instil into the social culture of our country the events which took place during the Civil War and the dictatorship". |3|

A group of associations |4| held a formal meeting at Parliament on 30th June 2004 with Deputy Ramón Jáuregui Atondo, spokesman for the Congressional Constitutional Commission and with the Deputy for Ávila, Pedro José Muñoz. At the meeting they explained to us various matters which should be made public in order to understand the context in which this new situation was developing. These were the following |5|:

    a) That there was an objective to compensate the "victims of the transition" who were not included in the law for victims of terrorism between the first ETA murder (1968, the case of Melitón Manzanas) and the Amnesty Law of 1978, that is, for the period between 1st January 1968 and October 1977.

    b) That the Government would carry out a study to systematize all legal provisions that had been passed either by central government or the autonomies to compensate economically the victims of the dictatorship and to determine which groups had not been compensated.

    c) That these undertakings excluded any kind of legal recognition of the victims.

    d) That with respect to the annulment of the summary judgements he said that "in the party (PSOE- Spanish Socialist Party) there are many people who believe that the annulment of the legal acts of Francoism is an absurd idea" and further that the motion of Amparo Valcarce was submitted by her just because the party was in the opposition at that time, and her initiative lacked the support of the PSOE management.

    e) That neither the Parliamentary Group nor the management of the party nor Government had accepted the seriousness of the demands and that in the draft law for victims of the transition none of the problems raised by the Nizkor report were addressed. He explained to all the associations present that any dialogue had to be with the Government.

On 10th September 2004 the Council of Ministers announced the Royal Decree which created the Inter-Ministerial Commission for the study of the situation concerning the victims of the civil war and Francoism.

By a letter of 2nd November 2004 we, a group of associations, wrote to the Vice-President of the Government and President of the Inter-Ministerial Commission for the study of the situation concerning the victims of the civil war and Francoism, María Teresa Fernández de la Vega, as follows:

With reference to the Commission and its work, we request the following on our behalf and on behalf of the organizations who signed the attached document:

    a) That the Inter-Ministerial Commission study the victims of the Civil War and Francoism acts with legal and formal transparency, so as to ensure that all the associations involved may be informed of the minutes and resolutions of any meetings and may have at their disposition all the materials necessary to obtain a proper understanding of the issues addressed.

    b) That all the associations who deal with the subject of the Civil War and Francoist victims be asked to appear before the Commission, whatever their legal status may be and whether or not they have submitted anything in writing to the Commission.

    c) That the good faith by the State and the due consideration of the nature of the problem at issue be assured at all times.

    This point is of particular importance because the experience hitherto of the victims' organizations clearly evidences a lack of good faith in many of the State's actions relating to the victims of the Civil War and Francoist repression, notwithstanding that good faith should be inherent in the acts of any government under the rule of law.

    d) We believe that the Office of the Attorney General and the Ministry of Justice should be participants in this Commission given that most of the responsibility for the denial of justice by judges and prosecutors lies within their area of competence.

Most of the points which appear in the "Plan of Action" fall within the competence of the justice system and could be dealt with simply by compliance with existing legislation. |6|

Not one of the associations who signed this received a response to this or any other letter sent to the Vice-President of the Government and President of the Inter-Ministerial Commission for the study of the situation concerning the victims of the civil war and Francoism, María Teresa Fernández de la Vega and to the President of the Government, José Luis Rodríguez Zapatero and, evidently, none of the conditions requested were met.

In view of the foregoing, we the undersigned organizations state as follows:

1) The report of the "Inter-Ministerial Commission" and the "Draft Law to recognise and broaden rights and to establish measures in favour of those who suffered persecution or violence during the Civil War and the dictatorship", the submission of which to the Houses of Parliament was approved by the Council of Ministers on 28th July 2006, are consistent with the contents of the motion of Deputy Ramón Jáuregui Atondo, which was passed by Congress on 1st June 2004, and, specifically, with the report requested in the said motion. This demonstrates that notwithstanding the delays in submitting the report, there existed a pre-existing agreement on the subject. This agreement does not reflect the demands of the victims' and human rights associations |7|.

2) The Draft Law does not provide any legal recognition of the victims of Francoism and, as a result, it does not address any of the demands of the victims' associations, given that it only speaks of moral recognition and economic compensation and not of indemnification and further is not consistent with international human rights law, or with international norms concerning reparation to victims. On this point, it is appropriate to remember that the international treaties which have been entered into by Spain form part of the internal legal system, that is to say, these human rights covenants and treaties are recognised by the Constitution currently in effect, and furthermore they constitute norms which rank in priority to the Constitution itself. |8|

3) The argument made that the "victims of the Spanish Transition" are those who, in the period of time between 1st January 1968 and October 1977 "fought for rights which the Constitution subsequently recognised" |9|, is manifestly fallacious and artificial and has the perverse consequence of splitting both the concept and categories of victims of the crimes of Francoism, as well as denying the right to justice, truth and reparation for the victims of acts, such as those in the case of Vitoria, which can still be investigated by justice.

4) Their treatment as isolated acts of Francoist crimes also gives rise to a formal prescription of these crimes given the amount of time that has passed. The consequence of this is to favour those politicians responsible for some of those acts (eg those of Vitoria) who still occupy positions of senior responsibility in representative constitutional entities whereas if these crimes were considered part of the crimes against humanity committed by Francoism there would be no such time bar nor would they be subject to amnesty |10|.

5) The proposed Draft Law, therefore, is not only humiliating for the victims in that it denies them legal recognition, it is also profoundly immoral and as a consequence, it violates the basic principles established in international human rights law concerning victims of serious crimes such as crimes against humanity. |11|

6) The proposal contains an element of unlawfulness |12| which we consider extremely dangerous for the legitimacy of the democratic Constitution now in force, given that it implies by omission the recognition of the Francoist legality beyond the limits established by the Constitution itself, by internal law, by numerous international treaties and conventions entered into by Spain, and by applicable customary international law.

7) The so-called "legal certainty", understood by the Government to mean the maintaining of laws and regulations imposed by a manifestly illegal regime, raises a fundamental argument with which we do not agree, as we understand that the only valid way of strengthening "legal certainty" is by having a greater degree of juridicity in the regulation of the conduct of citizens, and not by maintenance of norms whose origin are not only outside the Constitution itself but also implicitly deny the basic principles of civil liberties, such as those contemplated, among others, in the Universal Declaration of Human Rights: The right to due process and the right to effective judicial remedies. We cannot agree that there can be an interpretation of "legal certainty" in the rule of law which does not guarantee justice. Nor can we accept an interpretation of "legal certainty" which inexorably leads to manifest and serious injustice. The Government would have us believe that legal certainty is incompatible with justice. This premise is completely false.

8) In fulfilling the terms of the motion presented by Deputy Ramón Jáuregui Atondo, the Government has done no more than satisfy its obligations towards Congress: on the other hand, it has demonstrated a clear bad faith with respect to the demands of the associations, given that during this period of time, statements were made to them which were patently demagogic and which, as the facts have proved, resulted in the deliberate creation of false expectations.

9) We cannot respond to legal or political arguments which are not supported properly and with due formality, but it is evident that the denial of the annulment of the summary judgements, or rather, the total silence with which this matter has been met, demonstrates manifest bad faith, given that the Socialist Party itself argued for this annulment in a motion submitted by the member of parliament for León, Amparo Valcarce, which motion was the subject of a vote on 10th September 2003 and was defeated because of the parliamentary majority at that time of the Partido Popular. |13|

10) Therefore, we must state clearly that there does not exist a "Law for the victims of Francoism" and that the only draft law which addressed the special features of the issues concerning the victims is the so-called "Republican and Anti-Fascist Historical Memory Law" presented as such to Parliament on 21st November 2005 by Deputies Joan Puigcercós i Boixassa and Joan Tardà i Coma. |14|

The said draft law was rejected because of the argument made by the Socialist Party that it would present a substitute draft law which would improve on that presented by Esquerra Republicana, which argument has proved to be patently false.

A parliamentary alternative to this law was also presented by the Group of Izquierda Unida which, using the argument of "Historical Memory" left aside any moral and legal issues in favour of the victims. |15|

11) We ratify our statement dated 29th March 2006 "Communiqué on the State's refusal to investigate serious crimes against human rights under Franco" and state further that the draft law does not resolve the serious problem of illegal exhumations, a matter which we again consider to be an act of bad faith on the part of the Government given that by the Presidential Order "ORDEN PRE/3945/2005" subsidies were established for such exhumations whilst the right to effective judicial remedy was expressly denied in that it provided in article 5.2 c) that:

    "In no case will subsidies be granted for the following costs, even if they form part of the projects referred to above:
    (...)
    c. Costs of legal proceedings. |16|

12) The draft law manifestly seeks to serve as a defence for the legality originated in the Francoist regime and argues for the equal treatment of the victims and criminals alike, in a perverse and immoral act which amounts to a crude negationism of the historical truth by arguing that the current democracy is limited by the formal legality of that regime.

13) We therefore ratify the plan of action and the principles contained in the report "The question of impunity in Spain and crimes under Franco" dated 14th April 2004, known as the "Nizkor Report", and the corresponding statements which complemented it |17|.

14) We hold that definitive reconciliation amongst Spaniards can only be achieved with justice and that the Government is confusing forgetting with reconciliation, justice with revenge and memory with lack of lawfulness |18|. Within the rule of law, the victims of serious human rights violations only exist before the law and, if this is not recognised, there is a legal exclusion of all the victims of the Francoist regime, denying them the right to justice and legal equality in comparison to the rights of other kinds of victims, such as the victims of terrorism.

15) We ask that the democratic political parties represented in parliament reflect deeply on the perverse consequences of these acts that increase the democratic deficit which has existed since the so-called Transition and which leads citizens to reach the conclusion that their civil liberties, democratic principles and human rights derive, in fact, from a "democracy granted" by the illegal regime of Franco.

Equipo Nizkor
Brussels and Madrid
01 September 2006

Notes:

1. See full text of "Draft Law to recognise and broaden rights and to establish measures in favour of those who suffered persecution or violence during the Civil War and the Dictatorship."", available at: http://www.derechos.org/nizkor/espana/doc/draftlaw.html [ENG] [Back]

2. See "Enmienda de sustitución a 162/80, 162/24 y 162/4", available at: http://www.derechos.org/nizkor/espana/doc/enmpsoe.html [ESL/SPA] [Back]

3. See also, with respect to the content of this motion passed on 1st June 2004, the statements of the PSOE spokesman for the Congressional Constitutional Commission, Deputy Ramón Jáuregui Atondo, published 19th July 2006 by the News Agency Europa Press, complete text of which is available at: http://www.derechos.org/nizkor/espana/doc/jauregui.html [ESP/SPA] [Back]

4. The meeting of 30th June 2004 was attended, among others by, Ana Viéitez, President of the Association of Relatives and Friends of the 2nd Republic Victims of Reprisals by the Franco Regime - AfarIIREP; Ludivina García Arias, President of the Association for the Descendants of the Spanish Exile; Juan Gallego, from the Memoria Viva Association and Gregorio Dionis, President of Equipo Nizkor. (Cf. Internal document of Equipo Nizkor with full summary of the meeting on audio) [Back]

5. Cf. Internal document of Equipo Nizkor with full summary of the meeting on audio. [Back]

6. Full text of "Response to the President of the Inter-Ministerial Commission for the study of the situation concerning the victims of the civil war and Francoism", available at: http://www.derechos.org/nizkor/espana/doc/civf1en.html [ENG] [Back]

7. See: "Texto completo del debate sobre la memoria histórica y las víctimas del franquismo celebrado el 01jun04 ante el pleno del Congreso de los Diputados", available at: http://www.derechos.org/nizkor/espana/doc/nulid3.html [ESL/SPA]; "Enmienda de sustitución a 162/80, 162/24 y 162/41", available at: http://www.derechos.org/nizkor/espana/doc/enmpsoe.html [ESL/SPA], and "Proposición no de Ley relativa a la revisión de sentencias y restitución moral de los españoles fusilados durante el franquismo por motivos políticos y de conciencia. (162/000096)", available at:http://www.derechos.org/nizkor/espana/doc/iu.html [ESL/SPA] [Back]

8. Article 10.2 of the Spanish Constitution of 1978 states: "Provisions relating to the fundamental rights and liberties recognized by the Constitution shall be construed in conformity with the Universal Declaration of Human Rights and international treaties and agreements thereon ratified by Spain.."

And article 96.1 of the said Constitution provides: "Validly concluded international treaties, once officially published in Spain, shall be part of the internal legal system. Their provisions may only be repealed, amended or suspended in the manner provided for in the treaties themselves or in accordance with the general rules of international law.."

Similarly, the Vienna Convention on the Law of Treaties, signed at Vienna on May 23, 1969, addresses in its article 26 the principle of international law "Pacta sunt servanda", that is to say, "Every treaty in force is binding upon the parties to it and must be performed by them in good faith." And in its article 27: "Internal law and observance of treaties. A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty." [Back]

9. Per the definition of Deputy Ramón Jáuregu Atondo at the meeting of the associations on 30th June 2004, and as per the internal document of Equipo Nizkor with a full summary of the meeting on audio. [Back]

10. See on this point the judgement of the Spanish Constitutional Court STC 237/2005, 26th September 2005,availabe at:http://www.derechos.org/nizkor/guatemala/doc/tcgtm1.html [ESL/SPA] [Back]

11. Among others, we can cite: "60/147. Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law", available at http://daccessdds.un.org/doc/UNDOC/GEN/N05/496/42/PDF/N0549642.pdf?OpenElement [ENG]; "United Nations Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions", available at http://www.mnadvocates.org/4Jun20046.html [ENG]; "Study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms", available at: http://193.194.138.190/Huridocda/Huridoca.nsf/TestFrame/e1b5e2c6a294f7bec1256a5b00361173?Opendocument [ENG]; "Question of the impunity of perpetrators of human rights violations (civil and political). Revised final report prepared by Mr. Joinet pursuant to Sub-Commission decision 1996/119..", available at: http://www.derechos.org/nizkor/impu/joinet2.html [ENG] [Back]

12. Translation Note: "Alegalidad" in the original Spanish text, i.e. not simply contrary to the law, but outside it. [Back]

13. With reference to this motion, see: "Debate parlamentario donde se rechaza la anulación de los juicios sumarios de la dictadura franquista." [ESL/SPA], available at: http://www.derechos.org/nizkor/espana/doc/juicsumarios2.html and "Comunicado sobre el debate parlamentario del 01jun04 sobre la memoria histórica." [ESL/SPA], available at: http://www.derechos.org/nizkor/espana/doc/afar2.html

During the meeting of 30th June 2004 with Deputies of the Socialist Parliamentary Group Ramón Jáuregui Atondo, Deputy for Álava and Pedro José Muñoz, Deputy for Ávila, the former stated in his defence that "despite being seated on the bench immediately next to Amparo Valcarce he thought that the motion referred to the exhumations... not to the annulment". If one is to believe Deputy Ramón Jáuregui, that was the reason why he did not include the annulment of the summary judgements in the motion of 1st June 2004, although obviously he never rectified the "presumed error". [Cf. Internal document of Equipo Nizkor with full summary of the meeting on audio.] [Back]

14. See complete text of the document "Republican and Anti-Fascist Historical Memory", in Spanish, at: http://www.derechos.org/nizkor/espana/doc/esqley.html [ESL/SPA] [Back]

15. See complete text of the draft law submitted by the Parliamentary Group of Izquierda Verde-izquierda Unida-iniciativa Per Catalunya Verds, under the title "Draft Law for the promotion of recuperation and development of Democratic Memory and Culture" at: http://www.derechos.org/nizkor/espana/doc/iuley.html [ESL/SPA] [Back]

16. See full text of "Communique on the State's refusal to investigate serious crimes against human rights under Franco" at http://www.derechos.org/nizkor/espana/doc/ordenen.html [ENG]

On 16th March 2006 there was a meeting with deputies D. Ramón Jáuregui Atondo and Pedro José Muñoz representing the Socialist Parliamentary Group on this matter, in which the situation and its seriousness was explained to them in detail. At the conclusion of this tense meeting, deputy Ramón Jáuregui agreed to send a letter to the Vice-President of the Government setting out our demands.

The meeting, held at the request of Equipo Nizkor, was also attended by Ana Viéitez, president of theAssociation of Relatives and Friends of the 2nd. Republic Victims of Reprisals by the Franco Regime; Juan Barceló on behalf of the Association for the Creation of an Archive of the Civil War, the International Brigades, the Children of the War, the Resistance and the Spanish Exile - AGE (Archive of War and Exile); Fermín Sánchez, on behalf of the Association of Salamanca for Memory and Justice, and Félix Rodríguez on behalf of the Manuel Azaña Association. [Back]

17. Full text of the report "The question of impunity in Spain and crimes under Franco" available at: http://www.derechos.org/nizkor/espana/doc/impuspa.html [ENG]

Similarly, the following statements are relevant on specific aspects of the set of measures requested by a series of victims and human rights organizations:

[Back]

18. Translation Note: "Alegalidad" as above, in the original Spanish text, not simply contrary to the law but completely outside it. [Back]

Organisations presenting this document
Endorsed by (alphabetical order):
  • AFARIIREP (Association of Relatives and Friends of the 2nd Republic Victims of Reprisals by the Franco Regime), Ana Viéitez Gómez, President
  • Association for the creation of an Archive of the Civil War, the International Brigades, the Children of the War, the Resistance and the Spanish Exile. AGE (Archive of War and Exile) Dolores Cabra, President
  • Association for the Recovery of 1936 Historical Memory of Vigo, Galicia, Concepción Nogueira Miguel, President
  • Association "Heroes of the Republic and of Liberty" from Cantabria, Antonio Hontañón Toca, President
  • Association of Asturias for Historical Memory, Marisa Marinez Caldevilla, President, and Víctor Luis Alvarez, Speaker for the Board of Directors
  • Association of Miranda de Ebro for Historical Memory, Carlos Bajo Díez, President
  • Association of Relatives and Friends of the Killed and Buried at Margallón, Olga Alcega Madurga, President
  • Association of Salamanca for Memory and Justice, Fermín Sánchez Martín, Secretary
  • Asociación para a Dignificación das Vítimas do Fascismo (Association to give dignity to the Victims of Fascism), Galizia (Galicia)
  • Coordinating Committee for Historical and Democratic Memory of Catalonia (Coordinadora per a la Memòria Històrica i Democràtica de Catalunya): Associació per a la Memòria Històrica i Democràtica del Baix Llobregat, Associació del Pont de la Llibertat de l'Hospitalet Antifranquista, Associació per al Memorial Democràtic dels Treballadors de la SEAT, Associació pro Fundación - Enrique Lister, Col·lectiu d'Història de la CJC - Joventut Comunista, FREE, Associació Dones del 36, Foro para la Defensa de la Tercera Edad - Memòria Històrica, Fundació Pere Ardiaca, Historaula, Fundació l'Alternativa, Col·lectiu Gai i Lesbià-H2O ; Álvaro Fernández Alonso, Vice President
  • Commission for the Recovery of Historical Memory of a Coruña, María Beatriz Gómez Amigo, President
  • Corriente de Opinión Izquierda Socialista - PSOE (Current of Socialist Left Opinion), Vicent Garcés
  • Disappeared of the Civil War and Republican Exile (DESPAGE), Antonio Cruz González, Coordinator
  • El Sueño Igualitario (Egalitarian Dream), Javier Díaz Soro
  • "Ferrolterra a nosa memoria" Commission, Galicia, Bernardo Máiz Vázquez
  • Forum for Memory Federation (Forum for Memory, Andalusia; Forum for Memory, Eastern Asturies; Forum for Memory, Badajoz; Forum for Memory, Burgos; Forum for Memory, Cadiz; Forum for Memory, Caceres; Forum for Memory, Cantabria; Forum for Memory, Madrid Autonomous Community; Forumn for Memory, Castile-La Mancha; Forum for Memory, Extremadura; Forum for Memory, Huelva; Forum for Memory, Jaen; Forum for Memory, La Rioja; Forum for Memory, Valencian Community; Forum for Memory, Santander; Forum for Memory, Segovia), José María Pedreño Gómez, President of the Federation.
  • Forum per la Memoria del País Valenciá (Forum for Memory of the Valencian Community), Amparo Salvador Villanova, President
  • Friends of the Fallen for Liberty (1939–1945), Historical Memory of the Murcia Region, Floren Dimas Balsalobre, Regional President.
  • Galician Coordinating Committee of Roteiros, Antón Areas Curto, Coordinator
  • General Association of Antifrancoist Historical Memory Studies, Francisco Martínez López, Vice President
  • Gragero Group, León, Mario Osorio, Secretary.
  • Grup Parlamentari de Esquerra Republicana de Catalunya (Parliamentary Group of the Republican Left of Catalonia, ERC), Joan Tardá Coma, Spokesman
  • Joan Peset Association, Valencia, Pablo Rodríguez Cortés, President
  • Levante and Aragón Resistance Group (AGLA), Esperanza Martínez García, President
  • Liga Aragonesa de Mutilados e Inválidos de la Guerra Civil Española 1936/39 (Ligue of Spanish Civil War Mutilated and Disabled Persons of Aragon) Juan Luís Serrano Calleja, President
  • Luis Bello Foundation, José Esteban, President
  • Manuel Azaña Association, Isabelo Herreros, President
  • Memory and Liberty, Tomás Montero Aparicio
  • Nizkor Team (Equipo Nizkor), Gregorio Dionis, President
  • Relatives and Friends of the "killed" and victims of reprisals at the Central de Valdenoceda prison, José María González Díaz - Medino, President
  • Republican Assembly of Vigo, Cerlso X. López Pazos, president and Pablo Alonso Alcalde, Secretary.
  • Republican Circle of Zamora, Cándido Ruiz González, President
  • Republican Group of Euskal Herria-Euskal Herriko Talde Errepublikanoa (CREH-EHTE)
  • Republican Group of Redondela
  • Republican Institute of Human Rights, Félix Rodríguez Sanz, Secretary
  • War-Exile and Antifrancoist Historical Memory, José Murillo Murillo, President
  • War-Exile and Historical Memory of Andalusia, Manuel Velasco Haro, President
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