On December 14, 2006, a group of attorneys representing associations for the Recovery of Historical Memory and a socialist MP presented a total of eight complaints requesting an investigation into the disappearances, killings, torture and forced exiles committed since 1936 , when the Civil War began. On July 18, 2007, various associations for relatives of those who disappeared during the dictatorship of General Francisco Franco filed criminal complaints for crimes against humanity in the High Court.
A year later, Baltasar Garzón, head of the Court No 5 of the High Court declared himself competent to investigate these forced disappearances and opened proceedings to require state institution listings and data missing during the Civil War and the Franco regime with the intent to conduct a census of those missing and determine whether his court had jurisdiction or not to investigate such crimes. He also requested the collaboration of the Catholic Church. In November 2008, the magistrate began the proceedings for crimes against humanity. He called for the death certificates of the possible perpetrators including General Franco.
In addition, he ordered the opening of 19 mass graves. One of these tombs, located in the town of Alfacar, in the province of Granada, was believed to contain the remains of the poet Federico García Lorca, shot at the start of the war by Franco’s troops. Allegations before the magistrate listed 133,708 victims, of which, by regions, highlighted Andalusia with 29,091 and Valencia, with 28,892.
There were also complaints of children stolen from republican prisoners. These cases would expand at a later date to eventually include complaints from the 80’s, which claimed to know the whereabouts of children separated from their mothers (who had been told that their children had died), to be placed for adoption with other families who in many cases paid for them.
In October 2008, the Chief of the High Court, Javier Zaragoza, filed an appeal against Garzón’s judicial proceedings. The prosecution argued that these crimes could not be grouped into the category of crimes against humanity and therefore Garzón lacked jurisdiction to investigate them. Zaragoza added that crimes committed during the war and in the early years of the dictatorship, had been prescribed after the Amnesty Act of 1977 had been enacted.
To resolve this conflict, the 18 judges of the Criminal chamber of the High Court should meet to decide the matter.
Before this meeting took place, Baltasar Garzón took the lead and on 18 November he decided to refer the case to the territorial courts where the reported graves were located.