[Marxism] Franco's dictatorship on trial.

David Picón Álvarez david at miradoiro.com
Sat Dec 6 14:52:29 MST 2008

For a while there has been a desire in certain segments of Spanish society 
to give some kind of reparation, perhaps symbolic or even economic, to the 
victims of Franco's dictatorship and the rebellion of the fascist forces in 
1936. This process has culminated, for now, in its legislative axis, with 
the so-called ley de memoria histórica (law of historical memory). This law 
attempts to facilitate the task of those people who are trying to determine 
where their executed relatives have been buried for all these decades, to 
eliminate fascist symbols from public buildings or from entities which 
receive aid from the State, and declares illegitimate (but not void!) those 
"juicios sumarísimos", trials without due process, which condemned to death 
so many defenders of the legally constituted Second Republic, or simply 
people who were in some way opposed to the regime, or whose neighbours 
denounced them falsely, etc.

The declaration of illegitimacy but not voiding of the judgements presents 
certain difficulties and legal controversies. In addition, a law of amnesty 
was passed in 1977, to be applied to all the crimes committed with political 
intent until then (law 46/1977). It extinguishes all legal liability for 
those crimes, in particular all criminal liability. It has been suggested 
that law 46/1977 has gone inconstitutional with the approval of the 
Constitution of 1978 (30th anniversary today) in accordance to its 
derogating disposition, paragraph 3, which says all norms contrary to the 
constitution are derogated henceforth. Against this argument, it can be said 
that it is an accepted principle of criminal law that the most favourable 
law to the accused must be followed, and there is no question that the most 
favourable law on this matter is law 46/1977. The reason why this matters, 
is that there have started certain judicial processes with the object of 
compelling anyone who has information about the people disappeared by the 
regime to yield that information to the relatives, and also to establish 
whatever criminal liability might derive from the actions committed by the 
regime. Among these actions would be the trials lacking due process of law, 
the execution of prisoners without trial, sedition, rebellion, etc, etc. 
Whereas many people involved in those crimes are no longer alive, this is 
not the case for all of them, and there is a senator who signed death 
sentences for political prisoners back in the day.

In addition, it is considered by international law that certain crimes are 
not subject to prescription or amnesty. Amongst these, the kidnapping of 
children. In the biggest process so far, the judge has been trying to 
inquire about the 10k+ children who were taken away from their jailed 
mothers (political prisoners). The laws provided that a pregnant political 
prisoner would be allowed to live until giving birth, and, if condemned to 
death, would be executed 48 hours after giving birth. Also, children were 
not allowed to remain in jail with their mothers after the age of 3. These 
children were given to religious institutions, which carried a policy of 
indoctrination of the children, as well as changing their names. Other 
children were given to an institute of the State, which engaged itself in 
similar policies. A law was passed by Franco's government which permitted 
such name changes. In addition, during the civil war about 34000 children 
were sent abroad by the Republican side. Those who were given shelter in 
France, Belgium or the Netherlands, were in many cases kidnapped. There is a 
document of the foreign service of the Spanish falange, where instructions 
are given to kidnap those children and bring them back to Spain.

A big part of the ideological justification for this was based on a 
racialist theory of Spanishness, according to which greater degrees of 
democratization had led to a decadence of the race. In particular, women 
were considered to be beings with a tendency for evil, which was awakened by 
political participation. It was therefore recommended that the children of 
female political prisoners be segregated from their families to protect 

In spite of this all, the Audiencia Nacional (a central penal tribunal 
initially designed to deal with terrorism and politically significant cases, 
and which at least until recently had a strong right-wing bias) has ruled 
that Garzón, the judge so far instructor of the case, lacks competence to do 
so, and that each case must be instructed by the territorial tribunals of 
the provinces where the cases took place.

The right wing keeps complaining, and affirming that far as they are from 
Franco's ideological positions (yeah right!) this whole process represents a 
breach with the agreements reached in the late 70s to forget and forgive, 
and keep silence on these matters.


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