May Dictators Rest in Peace? A Short Analysis of the Spanish Supreme Court’s Decision to Exhume General Franco

[Nicolás Zambrana-Tévar teaches international commercial law and dispute resolution at KIMEP University (Almaty, Kazakhstan).]

Introduction: The War that Never Ends

In 897 A.D., Pope Stephen VI had the corpse of his predecessor Pope Formosus exhumed and brought before the papal court, to be tried after death. The Cadaver Synod sheds a macabre light unto the recent decision of the Spanish Supreme Court to exhume the corpse of General Franco, still buried in the pharaonic basilica of El Valle de los Caídos (i.e. Valley of the Fallen), where the impressive tomb receives every once in a while the visit of the nostalgic or the curious. The Court has now given its blessing to a controversial plan of the Spanish Socialist Government and has denied the petition made by the family, who wanted the body of their ancestor to remain where it now is or, alternatively, that it be reburied in Madrid’s Cathedral of La Almudena, in whose crypt the family owns a niche.

In 1936, right after elections held in the middle of hundreds of political assassinations, and an on-going revolutionary process, Franco and four other generals staged a coup against the Republican Government: the Spanish Civil War had commenced. Though the figures are contested, three years later half a million people were dead, fifty thousand of them being civilians killed in the territories loyal to the Republic, as well as one hundred thousand civilians in the territories where the military uprising had triumphed. Fifty thousand more were executed by Franco’s Government after the war ended.

Franco died in 1975. The transition saw plenty of terrorist attacks from left wing and right wing extremists but the vast majority of Spaniards voted in favour of a new, democratic constitution. Although many now accuse that transition of having been a pact of silence to bury the crimes of Franco’s regime, the Civil War and the dictatorship have always been omnipresent in Spanish politics and society, with thousands and thousands of academic works, novels, movies and TV programs exploring every aspect of the repression.

Successive governments decreed different kinds of reparations for victims of Francoism and in 2007 President Zapatero passed what was called the Historical Memory Law, initiating a program to identify graves and to remove all symbols which may remind of the past regime, like street names and sculptures. Last year, another Socialist president amended the 2007 law in order to have Franco himself exhumed. In 2014, a report of the UN Working Group on Enforced or Involuntary Disappearances had acknowledged that future “action on the Valle de los Caídos requires a broad consensus of all political forces”. The Working Group also regretted the thousands of bodies of those fallen during the Civil War which were still buried there “without families’ permission or knowledge”.

Historical Memory and Governmental Improvisation

The formula chosen by the Government to take Franco to a more humble abode was a Royal Decree-Law, which the constitution reserves for urgent situations requiring a rapid reaction (art. 86 CE). Some believed that the urgency rather lied in the proximity of the elections, because the exhumation could earn sympathy among left wing voters. Furthermore, few doubted that the purpose of the law was only to remove Franco from where he was, making it a law for a single case and betraying the need for generality. To avoid this, the reform indicated that only those who had died during the Civil War could stay buried in El Valle de los Caídos, whereas Franco had died in 1975, long after the war had ended. However, the cemetery of El Valle de los Caídos also hosts bodies of monks of the religious community who lives there, who have died in the course of the decades and who would also have to be removed.

Furthermore, the reform indicated that exhumed corpses would be handed over to their relatives. Franco’s family decided to rebury him in a niche they have in Madrid’s Cathedral of La Almudena, Madrid’s most touristic area, where the dictator would doubtlessly receive many more visits than it now receives. When the family made this announcement, the Government tried to introduce a new amendment to the law but, given the lack of time, they denied the petition of the family on the basis that the desired location posed threats of a public order nature and because the new location risked becoming a new symbol of the dictatorship.

So many flaws and unknowns were there in the Government’s plan that the Supreme Court decided to suspend the exhumation until their final decision on the family’s appeal was issued.

The Supreme Court Decision

The recent decision of the Court explains that the Government’s plan had indeed a “marked political significance” but was not illegal nor unconstitutional. First, the Government has a lot of discretion to determine the existence or not of an urgent situation, so as to make legitimate use of a Decree-Law. Furthermore, there was practically no opposition in Parliament when the Decree-Law was subsequently approved as an ordinary statute. The Court believed that the Law targeted indeed a single case: that of General Franco. However, the relevance of Franco as a political figure made this necessarily a unique case.

The Court does not understand, either, that the exhumation infringed the family’s right to privacy. Besides, the Court insists that this is not a strictly private matter, given the significance of the individual. In the eyes of the Court, families do not possess an unlimited right over the remains of their relatives. Such a right must be balanced with any existing public interests and the case law of the ECtHR (e.g. Solska and Rybicka v. Poland) was not found in contradiction with this principle.

The Court further believes that the Government’s plan does not violate the freedom of religion of the family because the “political goal” and “ideological dimension” of the Law does not affect anybody’s beliefs. The Court understands, too, that the “inviolability” granted to places of worship by the 1979 concordat between Spain and the Holy See is basically subject to Spanish laws and that the Law has no antireligious purpose. In this regard, the abbot of the basilica had refused to give his authorization because of the family’s opposition but the Court understands that such authorization cannot be denied now that it is clear that the family’s rights are not being infringed. The Court also dismisses certain minor objections submitted by the family concerning zoning regulations and health permits necessary for the exhumation.

The Court also addresses the Government’s refusal to authorize the family to rebury Franco in La Almudena. In this regard, the Court understands that there are risks of acts of violence against the tomb in the Cathedral, as well as in other alternative burial sites. Nevertheless, the consequences of those acts would be more serious in the case of the Cathedral, given the amount of visitors and tourists that go there. Besides, the Government’s plan to prevent that Franco’s tomb continues to be a monument to Francoism would be thwarted if the tomb is relocated in downtown Madrid, where Franco’s scarce supporters could much more easily turn the tomb into a place of political pilgrimage.

Finally, the Court supports the Government’s decision to relocate the tomb in the cemetery of the small town of Mingorrubio – which is anyway open to anyone who would like to pay homage to General Franco and much closer to Madrid than El Valle de los Caídos – because it is a dignified place where Franco’s wife is also buried and because once the Government refused to grant permission for the reburial at La Almudena, the family had not indicated any other place. Franco’s family have announced new applications before the Spanish Constitutional Court and the ECtHR but it is very unlikely that they will succeed.

Conclusion: Hardly a Victory for Historical Memory

Is Franco another corpse which, like that of Pope Formoso, is now being judged after death? He certainly is and the verdict is doubtlessly guilty. Maybe the Spanish Government believes that the sentence was passed decades ago and that they are now just executing it. However, that is the message they are sending everybody, not one of preventing acts of glorification of Francoism. Those acts, however infrequent, are not going to stop and are protected by the constitution. Nowadays, there are probably a million times more acts of glorification of Spanish yihadists and ETA terrorists, in the streets and in the internet, than attempts to glorify Franco and the past. Nobody would say, either, that young Spaniards wearing t-shirts with the hammer and sickle are glorifying Stalin’s purges. Negationism and acts of glorification of violence are beginning to be banned, as in the case of the EU Directive on Terrorism. However, even this norm is so conscious of the restrictions it imposes on freedom of thought and expression that glorification is meant to be punished only when it “advocates the commission of terrorist offences, thereby causing a danger that one or more such offences may be committed” (art. 5).

There is therefore a risk of alienating that part of the Spanish population which, though conscious of Franco’s heinous crimes, may see that the also heinous crimes of the left, prior and during the Civil War, are seldom the Government’s concern, to say the least. On the other hand, conservative leaders are constantly accused of being the legitimately heirs of fascism. Teaching history is mostly the role of historians, not the Government. Reconciliation is hardly forgetfulness but justice – including transitional justice – should not be one sided, nor a political weapon against the opposition.