After opposition from the High Court Prosecutor and the announcement of a meeting of the Criminal chamber of this court Garzón decided to defer to the territorial courts to enable them to continue the investigation of more than 130,000 reported missing. He made this decision legally in an order of 152 pages, in which he also remembered to extinguish the criminal liability of Franco and the remaining 44 senior officials accused of dictatorship, after checking their deaths. Garzón overwhelmingly ratified both the reasons that led him to open his investigation and their necessity, “since these are permanent crimes whose commission or legal effects are current.”
The order raised the repeal of the Amnesty Law of 1977, following the recommendation of the United Nations Human Rights Committee, which proposed the creation of a commission of experts to “restore the historical truth about the violations of human rights during the Civil war and dictatorship, and allow families to exhume and identify their victims.”
The stolen children
The magistrate pointed out in reference to the thousands of children taken from their parents “The case of victims who may be living” and recalled that upon declaring jurisdiction he had warned that if the criminal liability of the accused was extinct, but the crime was given permanence, the jurisdiction would apply to investigate the facts, which he believed was the role of the regional courts. Garzón noted that the documents in the case show that “a system of missing children under Republican Mothers (dead, imprisoned, executed, exiled or simply missing) over several years could have developed between 1937 and 1950, made under the cover of an apparent legality.”
These children would have changed their surnames to allow adoption by families of the regime. “This situation – said the order – despite how terrible it may seem today, and that for the vast majority of citizens it must be almost unbelievable, the truth is that it allegedly occurred and had a clear systematic preconceived nature, developed with real criminal intent so that the families of those children that are not considered suitable because they did not fit the new regime, could not return to have contact with them.
The legalized disappearance of minors was encouraged, with loss of identity, leaving the number unknown to date.” Thus, he referred the case to the courts of: A Coruña, Asturias, Badajoz, Burgos, Castellon, Cordoba, Granada, Huelva, Huesca, Leon, Lugo, Madrid, Navarra, Palencia, Pontevedra, Salamanca, Soria, Toledo, Zamora and Zaragoza. Data on the stolen children were sent to the courts of instruction in Barcelona, Burgos, Valencia, Vizcaya, Madrid, Malaga and Zaragoza.
The Plenary denies jurisdiction
Ten days later, on November 28, the Plenary of the Criminal Chamber of the High Court decided by 14 votes to three to declare that the judge Baltasar Garzón did not have jurisdiction to investigate crimes of the Civil War and the Franco regime. By that resolution, the courts of the areas where the graves were located, should have been empowered to take the decision to open a case to investigate crimes committed in their jurisdiction or otherwise not to do so if they thought they would not find them attributable to live persons.
The victims would be forced to file a new complaint. The president of the Criminal Chamber, Javier Gómez Bermúdez was the spokesman for the order that had dissenting votes from the judges Clara Bayarri, José Ricardo de Prada and Ramon Saez Valcárcel, and with two concurrent votes, i.e. two judges who shared the decision of the majority, but not for the same reasons. The discussion focused on why Garzón had declared himself competent to investigate the crimes of Francoism. For the magistrate these were crimes against humanity and were therefore exempt and without amnesty. But critics of this approach argued that for the Organic Law of the Judiciary (LOPJ) the High Court can only deal with this type of investigation related to universal justice when they occur abroad.
Repeal the Amnesty Law
The idea was that as it had happened in Spain, jurisdiction belonged to the regional courts. Garzón had justified his jurisdiction by arguing that the so-called national uprising was a coup against the legitimate government of the republic equal to the crime against high state institutions, which is the jurisdiction of the High Court in accordance with the Organic Law of the Judiciary. The Chamber, however, took sides with the Prosecutor, whose judgment stated that the existing offenses in the Criminal Code of 1932 to punish a coup are not comparable to that used by Garzón. In this argument, the coup of Franco’s troops would be equivalent to the crime of rebellion that would not enter the jurisdiction of the Court under the Criminal Code in force at the time.
For the prosecutor “This crime has never been part of the crimes against the form of government, or the Code of the Republic, or subsequent codes, so that rating has no effect.” Garzón had been declared incompetent, as the Chamber later decided, but with another unexpected argument, the death of those responsible for the uprising, which prevented the investigation, but leaving the legal opinion on the facts clear and forcing the investigation to continue. Therefore, it proposed a repeal of the Amnesty Law of 1977, following the recommendation of the United Nations Human Rights Committee, which also proposed the creation of an expert committee to “restore the historical truth about the violations of human rights” during the Civil War and the dictatorship, and “allow families to exhume and identify” their victims.