The Revival of Criminal Prosecution of Francoism Crimes in Spain: A New Opportunity for Hope?

[Adrián Agenjo is an LL.M graduate from the London School of Economics. He is currently undertaking an internship at the Office of the Prosecutor of International Residual Mechanism for Criminal Tribunals (IRMT). The views expressed in this article are the author’s alone.]

Franco’s totalitarian regime in Spain (1936-1977) constituted one of the lengthiest and most harrowing dictatorships of the 20^th century. Born after the coup d’état that led to the Spanish Civil War (1936-1939), the Francoist regime systematically enforced repressive policies that encompassed a litany of egregious offenses such as enforced disappearances, torture, extrajudicial executions, unlawful detainment, summary trial by martial courts, abduction of infants (the known as “bebés robados”) and forced labor.

Following Franco’s death in 1975, a phase of political conciliation aimed at reinstating democracy emerged: this was denoted as the Spanish Transition (la Transición española). Despite accomplishing the principal objective of reestablishing a democratic political system, the Spanish transition exhibited noteworthy deficiencies, including the failure to address the extensive human rights violations perpetrated during the Dictatorship or to implement any effective measures to ensure truth, justice, and reparations for the victims. This aspect of the transition was referred to as the pact of oblivion or silence (pacto del olvido or pacto del silencio), which was later institutionalized with the enactment of the Amnesty Law 46/1977 in 1997.

1. In the Quest for Justice: The Initial Intents to Prosecute the Crimes of Francoism Domestically

After more than two decades of unquestioned silence regarding the past atrocities, various victims brought a criminal complaint to the Spanish National Court (Audiencia Nacional). In 2008, Magistrate Baltasar Garzón (also known for his prominent role in thePinochet case),  presiding over the Examining Court (Juzgado de Instrucción) No. 5 of the Spanish National Court, initiated investigations into alleged crimes against humanity perpetrated in Spanish territory between 1936 and 1952. Magistrate Garzón argued that despite crimes against humanity were not explicitly included in Spanish legislation at the time of the conducts, they were recognized under international law, citing the Scilingo judgement (which condemned a former Argentine Navy officer for unlawful detentions and murders during Videla’s dictatorship in Spain, by virtue of the principle of universal jurisdiction). Additionally, Garzón considered that the permanent nature of enforced disappearances exempted them from the statutes of limitations and quoted international and comparative jurisprudence to conclude that the 1977 Amnesty Act could not apply to gross violations of human rights.

Shortly after, the Criminal Chamber of the Spanish National Court quashed the investigation, contending that Spanish courts lacked the authority to investigate the crimes. Subsequently, criminal proceedings were instituted against Magistrate Garzón, who was accused of knowingly issuing an illegal decision (prevaricación) by launching these investigations. He was finally acquitted by the Spanish Supreme Court in 2012.

In that Judgement (No. 101/2012), the Supreme Court confirmed that the crimes of the Franco regime could not be prosecuted in Spain. Following a rigid and domestic-centered interpretation of the principle of legality, the Supreme Court of Spain established that since Spanish legislation did not encompass crimes against humanity at the time of commission, this qualification could not be applied to the alleged conducts, irrespective of its recognition in international law. Furthermore, the Court affirmed that the nature of crimes against humanity could not be utilized to bypass the application of the 1977 Amnesty Act or statutes of limitations. In conclusion, the Supreme Court established that the alleged conducts could only be subsumed into ordinary crimes, with the amnesty and prescription being fully applicable and barring any kind of prosecution. Following a long saga of litigation, in 2021 the Spanish Constitutional Court reached a similar conclusion using virtually the same arguments.

2. Efforts from Abroad and the “Memory Acts” Turn

In 2010, after encountering hindrances in the Spanish National Court’s investigation, two victims of the Franco regime lodged a criminal complaint before the Argentine courts, invoking the principle of universal jurisdiction. Judge María Servini de Cubría, heading the Federal Criminal Court Nº1 of Buenos Aires, initiated a criminal investigation into the crimes against humanity committed in Spain from 1936 to 1977. Subsequently, in 2013 and 2014, Judge Servini ordered the arrest and extradition of 20 high-ranking officials, including former Francoist ministers Rodolfo Martín Villa and José Utrera Molina. However, Spanish authorities and courts refused the Argentine Judge’s requests, offering minimal cooperation. Nevertheless, the proceedings persist, and as of September 2020, former minister Martín Villa provided testimony before Judge Servini at the Argentine embassy in Madrid.

For over 20 years, several international bodies (prominently the Human Rights Committee, the Committee on Enforced Disappearances, the Committee against Torture and the Special Rapporteur on the promotion of Truth, Justice and Reparations) have urged Spain to either annul or refrain from implementing the 1977 Amnesty Law, not deem crimes against humanity committed during the Franco regime as time-barred, create a Truth Commission, and establish full cooperation with the Argentine courts.  Both the societal and global response to the pacto del olvido and the lack of criminal proceedings encouraged the implementation of alternative transitional justice measures and the enactment of state and regional legislation advancing the principles of truth, reparations and accountability – among them, two national Memory Acts.

The first one, the Historical Memory Act 52/2007 of 2007, made relevant progress by explicitly acknowledging the unjust nature of all convictions, sanctions and violence based on political, ideological, or religious grounds during the Civil War or the Dictatorship, invalidating all Francoist courts and their sentences and mandating the removal of public symbols and monuments commemorating the coup d’état and the Francoist repression (see Articles 2, 3, 15). However, the Historical Memory Act primarily focused on symbolic gestures and left unaddressed the materialization of crucial initiatives, such as the exhumation the remains of those killed, to the victims’ initiative. Additionally, it did not incorporate any amendments to the Amnesty Act or propose legal alterations conducive to prosecutions, gathering numerous criticisms.

Years later, in 2022, the Democratic Memory Act 20/2022 was passed by the Spanish Parliament, formally acknowledging the principles of truth, justice, reparation, and non-repetition guarantees (see Article 2). Some of its notable improvements included the assumption of responsibility by the State of searching and exhuming the remains of the victims, the establishment of a victim census and the institutionalization of a regime of administrative sanctions to protect memorialized sites and punish the glorification of the Dictatorship and the coup d’état (see Articles 9, 23, 57, 60-67). Additionally, the Democratic Memory act has created a Human Rights and Democratic Memory Prosecutor’s Office (see Article 28), now headed by the former Ministry of Justice and Prosecutor General, Dolores Delgado. Lastly, the Act has introduced relevant legal precepts which, even if they have not constituted a formal amendment to the Amnesty Act, may have triggered an embryonic “criminal prosecution” turn which might lead to the first convictions for crimes committed during Francoism.

3. The “Criminal Prosecution” Turn: the Justice Momentum

On the 15^th of September of 2023, after declaring admissible the corresponding criminal complaint, the Examining Court No. 50 of Madrid (Juzgado de Instruccion Nº 50 de Madrid) launched the investigations of the first case concerning Francoism crimes. The object of this proceeding involves the torture perpetrated against Julio Pacheco Yepes in a governmental Police Office of Madrid by a secret repressive police unit of the regime known as Brigada Político-Social (BPS).

The following week, the Prosecutor’s Office of Barcelona, guided and coordinated by the Human Rights and Democratic Memory Prosecutor’s Office, argued in favor of the admission of a criminal complaint filed by a former union member, Carlos Vallejo, who was tortured in a cell of a former Police Station in Barcelona. Nonetheless, the Examining Court No. 18 of Barcelona (Juzgado de Instruccion Nº 18 de Barcelona) considered the lawsuit inadmissible, arguing that the Democratic Memory Act does not grant a right to a criminal proceeding per se and that the alleged crimes are still subjected to temporal prescription and amnesty by referencing the aforementioned domestic jurisprudence. The resolution has been appealed both by the victim and the Prosecutor’s Office.

Saliently, the pronouncement tried to dismiss the legal relevance of the 2 precepts of the Democratic Memory Act that could trigger the juridical admissibility of the complaints. On the one hand, Article 2.1 establishes that the Spanish legislation and the Amnesty Act of 1977 shall be “interpreted and applied in conformity with conventional and customary international law, and in particular with International Humanitarian Law, according to which war crimes, crimes against humanity, genocide, and torture are considered non-prescribable and non-amnestiable”. On the other hand, its Article 29 imposes on the State an obligation to guarantee the victims the right to have an investigation concerning the violations of human rights and international humanitarian law during the Civil War, the Dictatorship and the Spanish Transition.

From a human rights standpoint, the dismissal of those provisions is alarming. Although Article 10.2 of the Spanish Constitution of 1975 already established that “the norms regarding fundamental rights and freedoms recognized by the Constitution shall be interpreted in accordance with the Universal Declaration of Human Rights and the treaties and international agreements on the same subjects ratified by Spain”, the Spanish Supreme Court and the Constitutional Court have offered a narrow conception of the principle of legality and were reluctant to interpret the concepts of prescription and amnesty in accordance with customary international law. Now, the Democratic Memory Act explicitly establishes that arguments of prescription or amnesty cannot be used to impede prosecutions of this kind. This approach has been held and confirmed for a long time by the Inter-American Court of Human Rights (see Barrios Altos v. Peru and La Cantuta v. Peru), the European Court of Human Rights (see Yaman v. Turkey §55 and Ely Ould Dah v. France), several UN bodies, mainly the Human Rights Committee (in its General Comment No. 20 of Article 7 and in individual communications), and domestic tribunals (see the cases of Argentina, Sierra Leone, South Africa, or Brazil).

Nevertheless, the mere fact that the Democratic Memory Act did not implement any direct modification of the Amnesty Act of 1977 has been used to continue ignoring international law. Precisely, the Committee on Enforced Disappearances feared that complaints would continue to be dismissed based on the ruling of the Supreme Court of 2012 on the grounds, inter alia, that the alleged acts were covered by the 1977 Amnesty Act or were time-barred. That fear has been confirmed now. In any case, even if Article 2.1 of the Democratic Memory Act is merely declaratory and refers to a previously existing customary law (which was being neglected by the higher judicial instances of Spain), the clear recognition of the inapplicability of amnesty and the statute of limitations is not innocuous nor inoperable as codified legislation in a civil law jurisdiction. The potential application of the obstacles of amnesty and prescription should be disregarded now not only by reference to arguments of international or foreign law, but also because it has been positivized. 

In conclusion, the trajectory of justice in Spain regarding the crimes of Francoism has reached a pivotal juncture. Recent legal developments, epitomized by the Democratic Memory Act and the establishment of a specialized Prosecutor’s Office, signify a transformative shift towards embracing accountability and upholding human rights standards from the executive and the legislative powers. Still, the viewpoint of the judicial authorities remains unknown. On the one side, the proceedings of Barcelona represent the traditional reluctancy of Spanish courts to directly apply international criminal law. On the other, the proceedings of Madrid mark a watershed moment, underscoring a newfound resolve to confront historical injustices. While challenges persist, the momentum for strategic litigation is undeniable, propelling Spain towards a future where the quest for truth, justice, and reconciliation stands as an enduring beacon of hope. The question now, using a popular saying of the Spanish Civil War, is: ¿será Madrid la tumba del fascismo? (will Madrid be the tomb of fascism?)