The problematic prohibition of Francoist glorification

MadridThe 50th anniversary of Francisco Franco's death is coming up to encourage demonstrations with Francoist symbols and chantsIt is a phenomenon that has become recurrent and, each time it occurs, highlights the authorities' inability to prevent such scenes. This is precisely what happened with the demonstration called by the Spanish Falange the day after November 20th in Madrid. The protest ended in front of the PSOE headquarters on Ferraz Street, producing images that "absolutely clash with the defense of democracy," as the Minister of Territorial Policy and Democratic Memory, Ángel Víctor Torres, stated a few days later. The Spanish government delegation in Madrid tried to prohibit this protest, arguing that it posed a "real and objectively verifiable risk of public disorder" as well as the dissemination of hate speech and the humiliation of victims of Francoism, which are prohibited by the Democratic Memory Law. However, the High Court of Justice of Madrid (TSJM) overturned this claim and authorized the demonstration, arguing that the right to assembly cannot be limited preventively and that, if necessary, action should be taken after the fact.

"It falls within the scope of freedom of expression, which is widely established in our constitutional framework," the minister admitted at a press conference in Moncloa Palace. He suggested that to circumvent decisions like that of the Madrid High Court, "perhaps we should open a calm debate on updating this Constitution because in other European countries these demonstrations are not considered extermination, nor were they considered Holocaust denial." Torres was referring to Germany, whose constitutional and legal framework is much more restrictive, explicitly prohibiting Nazi glorification and the display of its symbols. This "consideration," which the Spanish government has not yet seriously considered, would create difficulties, according to several constitutional law experts consulted by ARA.

The constitutional debate

Why is Torres talking about reforming the Constitution? The PSOE had previously proposed reforming the Penal Code to punish the glorification of Francoism, but that proposal was shelved. "[The minister] anticipates that when he reaches the Constitutional Court (TC), he will say that this violates fundamental rights such as freedom of expression and freedom of assembly," reflects Josep Lluís Martí, Professor of Philosophy of Law at Pompeu Fabra University (UPF). María Garrote, Professor of Constitutional Law at Complutense University of Madrid (UCM), agrees that "it would be unconstitutional" to limit this type of demonstration by law, "as the Constitution is currently formulated and with the interpretation made by the Constitutional Court." However, both agree that carrying out such a drastic reform of the Constitution is "impossible" and "unrealistic," as it would require a very broad consensus that is currently nonexistent in Congress.

Furthermore, they also warn of the danger of regression that limiting the rights to demonstrate, assemble, or express oneself would represent. "I think it would be a step backward," argues Garrote, who maintains that "within the respect for fundamental rights lies respect for those who don't think like you, even if you find what they defend abominable." The UCM professor adds that a reform of this type "would clash with a very well-established doctrine of the European Court of Human Rights (ECHR), which considers freedom of expression and freedom of thought as the foundation of democracy." "It is very rare for it to consider it proportionate and appropriate to restrict that freedom," she points out. This issue has already generated debate at the European level after the Supreme Court of Italy, another country with a fascist past and more restrictive laws than Spain's, rejected a couple of years ago the punishment of the fascist salute when it does not pose a "concrete danger" of a reorganization of the party of former dictator Benito Mussolini. At that time, the previous European Commission—questioned by left-wing groups—ruled out getting involved to restrict these demonstrations. Along the same lines, Martí does not see this "cutback" as justified and warns that it "opens a Pandora's box" for governments of other political persuasions to limit other forms of expression with which they disagree. "It's paradoxical because to defend democracy from these threats, one ends up doing things that are actually characteristic of more authoritarian regimes," he emphasizes. Sources from Sumar, the junior partner in the Spanish government, distance themselves from Torres and counter that this is not a battle that requires constitutional reform but rather "political courage" to apply existing tools, such as the Democratic Memory Law, through which the Spanish government has imposed virtually no fines. The Ministry of the Interior, they argue, can be much more decisive when it perceives possible violations during protests. For their part, memorial associations have been pressuring the government since the law came into effect three years ago to enforce the sanctions regime.