Spanish memory law enacted: what it includes and what it leaves out

BarcelonaIt has been a long and tortuous road, a tug of war between the political parties in which the problems Spain has when facing its most recent past have surfaced. In the end, however, the new Spanish law on democratic memory will be enacted today. It is a great step forward with regards to the 2007 law, but some entities, which have been fighting for years for the victims to receive dignified treatment or for Franco's crimes to be brought to trial, consider that there is still a lot of work to be done.

This has been one of the most controversial points. ERC and many campaigners and victims of Francoism have requested the repeal of the 1977 amnesty law so that Franco's crimes can be taken to court. The Association for the Recovery of Historical Memory considers the amnesty law protects those responsible for the human rights violations of Franco's dictatorship: "There can be no legislation in force that does not consider the murders and disappearance of the bodies of 114,226 civilians as crimes," the organisation says.

In the end, however, it has not been possible and only one nuance has been introduced: war crimes, crimes against humanity, genocide and torture are not subject to any statute of limitations and, therefore, cannot be amnestied. Everything will depend on the judges and how they interpret it. The new law declares the illegality and illegitimacy of any judicial, criminal or administrative body of the dictatorship created to condemn and punish political, ideological, conscientious or religious beliefs. It also declares the resolutions of the Francoist courts illegitimate and null and void, but in no case will this result in the possibility of requesting compensation from the State nor any public or private administration. Nor will it imply any economic or professional reparation or compensation. A prosecutor for human rights and democratic memory will be created to promote the investigation of Franco's crimes, but no express reference is made to the fact that the investigation of the crimes will entail the prosecution of those responsible and their criminal punishment

In recent years, different historians and researchers have been bringing to light the deaths that occurred during the Transition to democracy, which was not peaceful, but violent. According to historian David Ballester, from November 20, 1975 to December 2, 1982, 134 people died as a result of police action. They were innocent men and women and their deaths, the historian points out, are the State's responsibility. The new law, however, only recognises as victims those who were killed before the Spanish Constitution of 1978 came into force. All those who were murdered and suffered imprisonment, forced labour, internment in concentration camps, exile, economic repression, professional cleansing, whose babies were stolen or were punished in other ways during the Civil War and the dictatorship are considered victims. Also considered victims are political parties, trade unions, Catalan and Basque self-government institutions, local corporations, ethnic minorities, feminist and cultural associations, and Basque, Catalan and Galician communities, languages and cultures. A technical commission, within a year, will have to propose measures to economically compensate these victims. Those who died or suffered police repression after 1978, for the moment, are not recognised as victims, but another commission will carry out a study to decide whether the human rights of people who fought for democracy were violated.

"If you only recognise those who fought for democracy, as the text says, you leave aside the majority of victims of police violence during the Transition", says Ballester. "There are too many uncertainties and unknowns in this section," the historian adds.

The initial project already included an audit of the goods requisitioned during the Civil War and the dictatorship, but now a timetable has been set: it has to be done within a year and the right to compensation for plunder produced out of "political, ideological, conscientious or religious reasons" is recognised.

However, it does not specify how this is to be done, nor does it explicitly recognise the right to compensation. The Association for the Recovery of Historical Memory requested that the State act ex officio so that the families could recover confiscated property, the updated amount of the sanctions be returned to them and the persons unjustly condemned be publicly rehabilitated by all institutions.

There will be a state census of victims, which will include both the dead and survivors. It will be the State's responsibility to search for missing victims, a public internet portal will be created with the results of exhumations and a map of mass graves will be made. On the other hand, a Spanish DNA bank of victims of the war and the dictatorship will be created, attached to the Ministry of Justice. The Generalitat already created a DNA bank in 2020, which currently has genetic samples from approximately 2,500 living relatives.

The Association for the Recovery of Historical Memory also called for a census of executioners and people who benefited from fascist violence, but this will not be done.

The Valley of the Fallen will be renamed the Valley of Cuelgamuros. Its re-signification is foreseen, but it is not specified how or when it will be done. Finally, the Foundation of the Valley of the Fallen, created by Franco in 1957, will be extinguished. Therefore, the Benedictine monks will cease to guard and watch over Franco's monument. The exhumation of the victims buried there, after their families' long legal battle, will begin soon. At the moment, 104 families have asked to exhumed.

The law will eliminate 33 noble titles granted by Franco. They are hereditary and the dictator granted them to keep alive the memory of "the great glories of the nation" and to thank allies for services rendered during the war. These noble titles, which have stayed in place for forty years of democracy, were granted to coup plotters and war criminals. Names such as the duchy of Franco, Primo de Rivera, Carrero Blanco or the marquisates of Queipo de Llano –one of the most sadistic war criminals– or San Leonardo de Yagüe stand out. Nowhere does it appear, however, that the dictator's heirs assets will be investigated.

The Historical Memory Documentary Centre in Salamanca will continue as custodian of all the documents related to the war and the dictatorship. A Virtual Documentation Centre will be created to facilitate access to all documents. Salamanca will also receive, once legal obstacles have been overcome, the dictatorship's archives and documents, in particular those of its head of state, which are in the hands of private entities or individuals. Foundations or associations that defend Franco's regime or glorify its leaders, as is the case of the Francisco Franco Foundation, will be terminated. On the other hand, the new law guarantees free and universal access to public and private archives on the coup d'état, the Civil War, the Franco dictatorship, the maquis' resistance, exile, concentration camps and the Transition until 1978, regardless of the archive where they are located. Until now, there had been some difficulties to access them, because the law on official secrets was passed in Franco's time: April 5, 1968. It dictates that only the cabinet and the board of chiefs of staff can decide whether to open a file. The process is slow and arbitrary, because a government can decide whether to make a document public depending on whether it can harm it or not.

More than four decades have passed since Franco's death, but finally new generations, by law, will have to study what happened during the Civil War and the dictatorship and know that there was systematic repression. It will also promote research on exile and the struggle for democracy of many women who have been punished with oblivion.

The text, unlike the 2007 law of memory, incorporates a sanctioning regime with fines that can reach €150,000. The biggest punishments will be for destroying graves, memorials or public and private documents related to democratic memory.