26Nov05

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Statement Concerning the Proposed Laws Against Impunity in Spain and Francoist Crimes.

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Since 14th April 2004, when the report "The question of impunity in Spain and Crimes under Franco" was produced, we believe that progress has been made in the legal rationalization of the issues involved in what we call the "Spanish model of impunity".

However it failed to sensitize the political parties with parliamentary representation, who continue in shameful silence faced with the magnitude of the still unresolved problems, which problems can only be resolved by means of legislation complying with international human rights law, internal European law and the Spanish Constitution itself. We use the words "shameful silence" because the only genuine voice of the parliamentary groups is that of specific legislative initiatives and not just formal statements devoid of substance to which we are all accustomed.

Not one of the parliamentary bodies with whom there has been direct contact - primarily the Constitutional Commission and the Justice Commission - have made formal legislative proposals which offer a solution to the problems set out in the "Plan of Action" contained in the said report. The matters mentioned in the Plan of Action should be understood to be a starting point with respect to the unresolved legal issues and to these there should also be added the problems which, by virtue of their complexity, should be dealt with using specific regulations.

Notwithstanding that the State Attorney General made the requisite reply to the Nizkor Report in a note dated 14th February 2005, ending with the comment "... the Office of the Attorney General will consider with great interest the remarks contained in the report of Equipo Nizkor in the performance of its legal duties relating to this matter", as of the date of this Statement we have no knowledge that the said Office has taken any initiative concerning the questions which are within its competence to resolve. This lack of formal initiative within its competence is particularly serious given that it constitutes, at the least, a form of denial of justice.

With respect to the"Inter-Ministerial Commission on the Examination of the Situation of Victims of the Civil War and Franco Regime", we refer to the public statement made on 11th September 2004, and the letter of 3rd November 2004 sent to Her Excellency the President of the said Inter-Ministerial Commission, Doña María Teresa Fernández de la Vega Sanz, to evidence that there has been no progress of substance; not even concerning dialogues with the human rights and victims' associations involved in this matter. They have been listened to informally but there are no formal records of anything said during their meetings.

However, we should make it clear that the campaign, which was commenced in the interests of finding a solution to the question of impunity for Francoist crimes, has had extensive international repercussions via the diffusion of the reports by the associations. This campaign has not gone unnoticed by the Foreign Ministry which has taken what we consider to be defensive steps to deal with the problem rather than assume the historical responsibilities still pending.

On this point, we believe that the proposal submitted to the Political Affairs Committee of the Parliamentary Assembly of the Council of Europe by M. Brincat of the European Socialist Group, is a positive one, in that it analyses the need for an international condemnation of the Franco regime ratifying the absolute illegality of that regime and its juridical responsibilities; as regards the rest of the proposals contained in the draft recommendation submitted to PACE, we abide by this present statement.

We are also aware that on 21st November 2005, two draft laws were presented by the Parliamentary Group Esquerra Republicana and by the Parliamentary Group Izquierda Verde - Izquierda Unida - Iniciativa per Catalunya Verds. Both these drafts have been the subject of analysis and without going in to detail, with respect to the fundamental issues in both drafts we believe the following:

I) Draft Law concerning Republican and Anti-Fascist Historical Memory presented by the Parliamentary Group Esquerra Republicana.

[Full text in Spanish available at: http://www.derechos.org/nizkor/espana/doc/esqley.html ]

1) We believe that it is the first draft law that has been introduced in Spanish Parliament during the period of democracy established by the current Constitution which is consistent with international humanitarian law, international human rights law and European law; it also takes into account, although without specific reference, the laws of Europe and of the system of the United Nations concerning the treatment of victims of serious human rights violations.

2) The legal provisions envisaged are consistent with the articles of the Constitution which foresee the application within internal Spanish law of international conventions on human rights and on international law in general.

3) The law takes into account crimes classified as "Crimes against humanity" which we understand to include all those types of crimes committed by the Franco regime within and beyond the frontiers of the Spanish State.

4) It is consistent with the tradition of international law promoted by the Spanish jurists prior to the coup d'état of 1936, to the extent that it acknowledges the classification of this type of crime within international law, and it is also consistent with the recent developments in internal Spanish law brought about by judgements of the Audiencia Nacional, the Supreme Court and the Constitutional Court with respect to this type of crime.

5) The law addresses almost all the questions set out in the "Plan of Action" of the report "The question of impunity in Spain and Crimes under Franco", although, given the nature of the multiple issues involved, particular care should be taken in the development of the regulations necessary to ensure inclusion of those matters which have been omitted from the proposal; and to this end, the views of the associations concerning the victims of Francoism and the Second World War must be taken into account.

6) We therefore believe that the "Draft Law concerning Republican and Anti-Fascist Historical Memory" is a minimum reference point with respect to the matters at issue which should be considered by other democratic parliamentary groups and by the Government in order that it can be debated and approved by Parliament.

II) Draft Law for the promotion of recuperation and development of Democratic Memory and Culture presented by the Parliamentary Group Izquierda Verde - Izquierda Unida - Iniciativa Per Catalunya Verds.

[Full text in Spanish available at: http://www.derechos.org/nizkor/espana/doc/iuley.html ]

7) We are grateful to the Parliamentary Group Izquierda Verde - Izquierda Unida - Iniciativa Per Catalunya Verds for its attempt to apply legislative pressure to the Government with its presentation of this draft Law.

8) We should however point out that it is not consistent with international humanitarian law nor with European law.

9) The draft of this particular law in its current form is below the legal threshold envisaged by the current Constitution with respect to the application within internal Spanish law of international human rights conventions and international law; nor does it take into account recent developments in internal law by the Audiencia Nacional, the Supreme Court and the Constitutional Court.

10) It does not deal with the criminal classification of "Crimes against humanity" and thus, in our view, it does not allow for the application of this classification to the crimes committed by the Franco regime within and beyond the frontiers of the Spanish State.

11) The draft provisions do not address the majority of the issues referred to in the "Plan of Action" in the document "The question of impunity in Spain and Crimes under Franco" save for the proposal to treat the summary trials as null and void , which, we believe in any event lacked sufficient foundation consistent with the standards of internal and international tribunals.

12) Given the foregoing, we believe it is our moral obligation to request that the Parliamentary Group Izquierda Verde - Izquierda Unida - Iniciativa Per Catalunya Verds withdraws its draft legislation and that, it reaches an accord with the Parliamentary Group of Esquerra Republicana - within the democratic parliamentary framework - in order to present one agreed legislative proposal.

III) To all members of parliament and to parties having parliamentary representation:

13) We call upon all democratic parliamentary groups to act in conscience and to consider the need for a legislative solution to the serious question of impunity to Francoist crimes, in order to give effect to the right to knowledge, the right to justice and the right to reparation.

14) Our demands are based on the endurance of a common history of human rights violations; on the belief that effective access to justice is the only route to reparation for the damage that has been caused, to reconstruction of the societies devastated by infamy and crime and to restitution of dignity which has been subjugated; and, further, on the belief that truth and justice concerning violations of human rights are the most effective manner to ensure their non-recurrence.

15) We wholeheartedly endorse the following comments we made on 1st January 2005 in para. 12) of our statement on "Archives and Impunity" :..."Finally, we would like to state once again that our aim as organizations of human rights, civil liberties and Francoist victims, is not one of revenge, nor do we wish to return to the "friend/enemy" or war dialectic. Our aim is to ensure that the reconciliation of all Spaniards is achieved with justice and respect for human rights and civil liberties and this is only possible within a framework of truth, justice and restitution which puts an end to the existing model of impunity".

Madrid, 26 November 2005

Endorsed by:

• AFARIIREP - (Association of Relatives and Friends of the 2nd. Republic Victims of Reprisals by the Franco Regime), Ana Viéitez Gómez, President, and Juan Gallego, Vice-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, Secretary-General
• Association of Asturias for Historial Memory, Marisa Marinez Caldevilla, President, and Víctor Luis Alvarez, Speaker of the Borad of Directors
• Association of Salamanca for Memory and Justice, Fermín Sanchez Martín, Secretary
• Disappeared of the Civil War and Republican Exile (DESPAGE), Antonio Cruz González, Coordinator
• Equipo Nizkor, Gregorio D. Dionis, president
• Forum for Memory, José María Pedreño, President
• Gragero Group, León, Mario Osorio, Secretary
• Luis Bello Foundation, José Esteban, President
• Manuel Azaña Association, Isabelo Herrero, President
• Republican Institute of Human Rights, Félix Rodríguez Sanz, President

DDHH en España

This document has been published on 29Nov05 by the Equipo Nizkor and Derechos Human Rights.