Of Justice and Justice: Prosecution of Francoism Crimes in Spain

[Álvaro Rueda Rodríguez-Vila is a graduate in law (Bachelor, UNED) and in human rights (LL.M., Maastricht University).]

On 15 September, the Spanish Constitutional Court (Tribunal Constitucional, or TC) barred a case from investigating and prosecuting crimes committed during the Franco dictatorship (a period of time known as franquismo, or Francoism). This decision, Auto 80/2021, refers to a complaint alleging tortures committed by a member of the secret police in 1964, 1967 and 1974 against the accuser.

The TC provided several reasons for rejecting the case:

1. The principle of legality. The criminal law cannot apply retroactively.
2. ‘Prescription’. Even if the acts were criminalised at the time, they are time-barred.
3. Even if the crimes were not time-barred, they would be covered by the Law 47/1977, of Amnesty.

I submit that the TC is wrong in the first and second arguments because international law is misapplied. I submit that the third argument is wrong as a result of this misapplication.

First Motive: The Principle of Legality

The TC argued that, in application of Articles 9.3 and 25.1 of the Spanish Constitution 1978 (Constitución Española, or CE), the principle of legality precludes the application of crimes against humanity because:

1. International custom is insufficient to create criminal offenses, and even if so,
2. there was no international custom as to which crimes against humanity were criminal offenses at the time and, and even if so,
3. the strict requirements under Article 25.1 CE would prevent its incorporation to the Spanish legal system.

Customary Status of Crimes Against Humanity

Unlike other international crimes, crimes against humanity are not established in treaty outside of the Statutes of the different international courts. However, after the Nuremberg Judgement, the UN General Assembly endorsed the principles set up in the Nuremberg Judgement (the Nuremberg Principles) in Resolution 95(I), and treated them as international custom.

These principles were subsequently formulated by the ILC in 1950 and that formulation set that:

1. crimes against humanity are punishable as crimes under international law, and
2. the fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.

Since this formulation, several national and international courts have applied these principles as customary law. For example, the European Court of Human Rights (ECtHR), in Kolk and Kislyiy v. Estonia, referring to acts that happened in 1949, stated that:

“[T]he Court notes that the universal validity of the principles concerning crimes against humanity was subsequently confirmed by, inter alia, resolution 95 of the United Nations General Assembly (11 December 1946) and later by the International Law Commission. Accordingly, responsibility for crimes against humanity cannot be limited only to the nationals of certain countries and solely to acts committed within the specific time frame of the Second World War”.

Further, the International Criminal Tribunal for the former Yugoslavia, in the Tadic Judgement, considered their status as international custom obvious, stating:

“[S]ince the Nürnberg Charter, the customary status of the prohibition against crimes against humanity and the attribution of individual criminal responsibility for their commission have not been seriously questioned”.

So, when the TC states that “neither the first judicial manifestations of the crime against humanity nor the international practice present a uniformity that allows to consider the existence of a customary criminal offense”, the TC is just carrying out a wrong analysis of the question.

Reception of International Custom in Spain

Spain is a monist State. Its national legal order does not require transposition of international law in order to be applied. Article 96.1 CE only requires publication of a treaty in order for it to be directly applied. And while the Constitution is silent on international custom, both legal academics and tribunals accept that it is directly applicable. For example, the TC, in Judgement 107/1992, examined and applied directly the customary principles of State immunities.

This direct incorporation of international law did not change with the enactment of the current Constitution. Prior to it, the practice of the Spanish Supreme Court (at the time there was no Constitutional Court in Spain) followed the same line and applied directly international custom.

So, as the Nuremberg Principles have been international custom since at least 1946 and Spain has a legal system that incorporates directly international rules, it is not difficult to reach the conclusion that, by 1946, the Spanish legal system incorporated the Nuremberg Principles which include, as stated earlier, crimes against humanity as criminal offenses and the individual responsibility for such crimes.

Applying Article 25.1 CE

The TC has long been interpreting Article 25.1 CE as establishing a series of requirements which can be summarised under the Latinism nullum crimen nulla poena sine praevia lege scripta, certa et stricta.

In this case, the Court reached the conclusion that custom does not meet the requirements to create a criminal offence, stating “the possibility to resort to international law as a source to criminal offences, especially customary, is incompatible with the principle of criminal legality”.

However, it is necessary to make a clarification. Article 10 of the Spanish Constitution imposes a qualified requirement when it comes to interpreting fundamental rights, which includes Article 25.1:

“Article 10 […] 2. The principles relating to the fundamental rights and liberties recognised by the Constitution shall be interpreted in conformity with the Universal Declaration of Human Rights and the international treaties and agreements thereon ratified by Spain”.

As interpretation of Article 25 CE must be in line with both the ICCPR and ECHR, Article 25 cannot be used to contradict Articles 15.2 ICCPR and 7.2 ECHR. Relevantly, the ECtHR in Kolk and Kislyiy v. Estonia stated:

“The Court reiterates that Article 7 § 2 of the Convention expressly provides that this Article shall not prejudice the trial and punishment of a person for any act or omission which, at the time it was committed, was criminal according to the general principles of law recognised by civilised nations. This is true of crimes against humanity”.

Furthermore, in Kononov v. Latvia, the ECtHR reaffirmed that:

“When speaking of “law”, Article 7 alludes to the same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises written and unwritten law”.

So, in order to be applied in line with the ECHR, Article 25 CE cannot be interpreted as to prevent the application of international customary crimes. To do so would without contradict Article 10 CE.

In addition, while it could be argued that Article 25 of the Spanish Constitution prevents the incorporation of international customary crimes into the Spanish legal system, the current Constitution did not exist at the time when the Nuremberg Principles became custom. Therefore, Article 25 could not have prevented their incorporation into the Spanish legal system.

Second Motive: Prescription

The TC continued arguing that, as the acts cannot be considered crimes against humanity, they ought to be considered as common crimes. And even if we take the time of the last denunciated acts (1974), more than 40 years have passed since, and the Criminal Code applicable at the time sets the statute of limitations at 20 years (in Spain, the term used is prescripción, or prescription, and refers to a period of time after which the criminal responsibility for a crime disappears).

The TC continued, saying that even if the acts were to be considered as crimes against humanity, the existence of an international rule establishing the non-prescription of international crimes is not clear. It finally stated that “the denunciated acts cannot be qualified as crimes against humanity, so it is not possible to resort to the questioned rule of non-prescription of international crimes”.

However, the existence of the principle establishing the non-applicability of statutory limitations has been affirmed several times through the years. In 1966, in the Study on the Question of the non-applicability of statutory limitation to war crimes and crimes against humanity, the Secretary-General stated that:

“It follows that the silence on this point [statutory limitations] of all international instruments drawn up since the Second World War on punishment of war crimes, crimes against peace and crimes against humanity, which form the new international criminal law, can be interpreted only as recognition of the principle that there is no period of limitation for such crimes”.

This approach was endorsed by the General Assembly in 1967 in its Resolution 2338(XXII):

“Recognizing that it is necessary and timely to affirm in international law, through a convention, the principle that there is no period of limitation for war crimes and crimes against humanity, and to secure its universal application”.

The drafters of the UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity made clear that the Convention was intended to codify an existing rule in international law, and not to create a new one, through the inclusion of the previously cited paragraph in the preamble.

In addition, some national and international courts have followed this approach. For example, the ECtHR in Kolk and Kislyiy v. Estonia stated that:

“[I]n respect of [crimes against humanity] the rule that they cannot be time-barred was laid down by the Charter of the Nuremberg International Tribunal”.

It is thus not difficult to conclude that the TC has, again, not performed an exhaustive analysis on the existence of an international customary rule. In this case, forbidding the prescription of international crimes.

Third Motive: Law 47/1977, of Amnesty

The Law 47/1977, of Amnesty is only briefly mentioned in this decision. The Court instead relied on the analysis of the existence of a customary obligation to investigate, prosecute and punish international crimes. As it concluded that such an obligation does not exist under international customary law, it determined it could not investigate acts whose criminal responsibility had been excluded by the Law of Amnesty.

I am not going to debate the argument on the non-existence of a customary obligation to investigate and prosecute international crimes. However, I find necessary to review several things about the application of the Law of Amnesty.

First, this law was not conceived as a general amnesty. It was not aimed at every crime committed until that moment. This is easy to find by a simple reading. Article 1 refers to any act of political intention and Article 2 provides a non-exhaustive list of what ought to be included as such. Similarly, in its parliamentarian debate, it was quite clear that this was not a general amnesty. In fact, several members of the parliament criticised the law for being restrictive.

As the amnesty was neither a general amnesty nor explicitly included international crimes, it is necessary to interpret whether it included such crimes implicitly. In this sense, the words of the MP Mr. Gómez de las Roces in the parliamentarian debate are important:

“[W]e are before a legal text full of juridical inaccuracies. It is sufficient to refer to Article 1 […]. Simply, I understand that it lacks of the most elemental requirements of criminal categorisation, and this is something that we as legislators cannot ever ignore. In this sense, allow me members of the Parliament to say that we are transferring to the tribunals of justice a competence that is of the Parliament, or of the Government, but in any case of the tribunals of justice, which is to create law”.

This declaration shows that even at the time it was clear that the wording of the law was not precise and it required the interpretation of the courts in order to apply the amnesty. In this sense, the TC interpreted, in its Judgement 76/1986, the Law of Amnesty in the same line as the previous Royal Decree-Law 10/1976, about Amnesty, stating that:

“One clear example of the objective extension of the amnesty is deduced from the norms which granted it in the pre constitutional period: from Article 1 of the Royal Decree-Law 10/1976, of 30 July, which includes «all crimes and misdemeanours of political intention and of opinion included in the Criminal Code, or in the special criminal laws», «crimes of rebellion and sedition categorized in the current Code of Military Justice», «fugitives and deserters», or «those who, because of conscientious objection, have rejected to perform military service», and the same objective extension, in respect to this matter, can be seen reproduced in the Law 46/1977, of 15 October”.

In a similar way, the intention of the drafters was clear in the parliamentarian debate of the Law. For example, MP Mr. Triginer Fernández stated: “this amnesty puts an end to what has been considered as political crime by the previous regime”. And more extensively, MP Mr. Benegas Haddad stated:

“Today we are simply fulfilling a profound democratic obligation, with an unavoidable compromise towards liberty, which is nothing more to try to repair -if reparation is possible- the damages, the harms, the injustices from an authoritarian regime which I do not doubt to qualify as one of the most implacable against its political adversaries of the XX century”.

Both from the jurisprudence of the TC and the intention of the drafters, it is clear that the Law of Amnesty was intended to focus on annulling crimes whose intention was to repress political rivals. This intention neither included international crimes nor intended to create a clean blanket over the crimes committed by the previous regime.

Conclusion

The prosecution of Francoism crimes has been repeatedly sealed by Spanish Courts. However, in this case the Court reached a wrong conclusion because of its misapplication of international law.

First, because crimes against humanity did exist at the time in international custom. Second, because this custom binds Spain and is applicable in the Spanish legal system. Third, because Article 25.1 CE does not prevent the Court from applying these international customary crimes. And fourth, because of its incorrect conclusion in the previous points, the Court erroneously applied the Law of Amnesty to the alleged acts.