Baltasar Garzón declared himself competent in 2008 to investigate crimes committed by the Franco regime in Spain between the years 1936-1951, including crimes of enforced disappearances of persons (illegal detentions without accounting for the whereabouts of the victim) permanent crimes in the context of crimes against humanity. This became known as the case of Historical Memory.
By investigating these crimes, which now have an open criminal case in Argentina promoted by victims and in accordance with the principle of Universal Jurisdiction, criminal proceedings for prevarication were opened in 2010. Finally, the Supreme Court acquitted them, while closing the possibility of criminal investigation into these crimes, leaving victims defenceless.
Currently, admission is pending for processing the case presented by Garzón before the European Court of Human Rights in Strasbourg, on the grounds that the suspension of the functions in this case demands legal independence and free interpretation of the Law, as well as assuming a threat to all judges in their work of interpretation of standards and fairness in their legal proceedings.
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.
The order of inhibition
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.
«Case 4591/10 on charges of genocide and/or crimes against humanity committed in Spain by the Franco dictatorship between July 17, 1936 and June 15, 1977” instructed by Judge Maria Servini de Cubría in the Federal Criminal and Correctional Court No.1 Argentina (Buenos Aires), better known as the Argentina Complaint, is the only case open in the world against Franco.
The State Support Coordinator for the Argentina Complaint (CEAQUA) brings together more than 100 associations throughout the Spanish state and aims to promote and publicize the case.
On November 29, 2013 the Council of Ministers in Spain agreed to continue with the extradition procedure agreed by the Argentine justice against the former policeman Juan Antonio González Pacheco, «Billy the Kid» and the old policeman Jesus Muñecar Aguilar accused of a crime of alleged torture by many.
In December 2013 a second trip to Buenos Aires by complainants who testified before the judge conducting proceedings of the difficulties raised by the Spanish Government for the evidence to be heard in the Argentine consulate by videoconference.
The establishment of a Truth Commission truth commission on crimes committed during the Franco dictatorship is essential, according to Baltasar Garzón, for the investigation and resolution of disappearances that occurred in Spain between 1936 and 1975. He stated this on numerous occasions and it is are reflected the report made by the International Foundation Baltasar Garzón in connection with the findings made by Spain in its report submitted on December 26, 2012 pursuant to Article 29.1 of the International Convention for the Protection of All persons from enforced disappearances to the Committee on Enforced Disappearances.
This report was part of the documents analysed at the meeting of the Committee on Enforced Disappearances of the United Nations which took place from November 4 to 15 in Geneva and which was attended by the Fibgar legal team headed by Baltasar Garzón.
In this report a number of recommendations are proposed, including: the establishment of a Truth Commission on crimes committed during the Franco dictatorship and a census of victims of the Franco repression as well as the creation of a national register of the same.
In addition is the need to pass legislation to implement the Convention guaranteeing maximum protection of persons from enforced disappearance and undertaking all obligations incurred. This would imply at least the amendment of the Constitution, the Criminal Code, the Criminal Procedure Act, the Statute of the Victim, the Organic Law of the Judiciary Act, the Amnesty, extradition law, the Immigration Act and the General Penitentiary Organic Law.
Due to the visit by the United Nations Committee on Enforced Disappearances to Spain a campaign was conducted to sensitize and make public opinion visible on the need to know the truth about enforced disappearances that occurred between 1936 and 1975 in Spain.