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11Oct07

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Statement concerning the Parliamentary agreement to present a new draft Law of Historic Memory.

Given the announcement made by Diego López Garrido member of parliament and spokesman for the Socialist Parliamentary Group in Congress, that his party had arrived at an agreement with the Gaspar Llamazares Trigo MP and Joan Herrera Torres MP, of the Parliamentary Group of Izquierda Unida-Iniciativa per Catalunya Verds, Josu Iñaki Erkoreka Gervasio MP of the Basque Parliamentary Group (EAJ-PNV) and Josep Antoni Duran i Lleida MP, of the Catalan Parliamentary Group (CiU), and that this allows for the Congressional Constitutional Commission to begin its review and analysis of the "Draft law to recognise and broaden rights and to establish measures in favour of those who suffered persecution or violence during the civil war and the dictatorship", we consider it necessary to publish herewith our position:

1) The Draft Bill of the so-called "Law of Memory" in the form agreed by the above groups on 5th October 2007 and published in the newspaper "El Confidencial" on Monday 8th October 2007 contains law of no legal value whatsoever, that is to say, the draft addresses not one of the legal issues relating to the particular situation of the victims of the Franco regime.

2) If the text submitted is enacted into law in its current form, it will be law of no practical application before the courts and we would even call it an immoral attack, lacking the most elementary democratic ethic, against the memory of the victims of Francoism, including those within Spain, those who were the victims of the National-Socialist extermination camps, the war children, the exiled who lost their nationality, those who fought in the allied forces against the Axis countries, the slaves of the labour camps, the members of the resistance who fought within the borders of Spain, those who were mutilated in the war, the political prisoners, those executed in the summary trials, those extra-judicially executed, the disappeared and those killed in massacres which were part of the extermination and the large scale, systematic attacks against the civilian population.

3) We ratify what was said in the Statement of 19th April 2007 concerning the so-called "Unblocking Pact" in that, from the point of view of applicable internal and international law, to declare some of the Francoist legislation illegitimate is essentially to declare that legislation and the Franco regime which enacted it legal.

4) The repealing article of this draft law poses legal problems technically from the point of view of internal law, applicable international law and even from the perspective of the jurisprudence of the current Spanish Constitutional Court as it deprives the law now under discussion of any legal effect before the courts. They can do no more than declare that those repealed laws were illegitimate as the repealing law implies that all the laws and provisions were legal, legitimate and effective up to the date of publication of the new law in the Official Gazette (BOE).

5) We also ratify the statement we published on 1st September 2006 "Between Moral Cowardice and Illegality" where we said:

    "The argument made that the "victims of the Spanish Transition" are those who, in the period of time between 1st January 1968 and October 1977 "fought for rights which the Constitution subsequently recognised", is manifestly fallacious and artificial and has the perverse consequence of splitting both the concept and categories of victims of the crimes of Francoism, as well as denying the right to justice, truth and reparation for the victims of acts, such as those in the case of Vitoria, which can still be investigated by justice".

    Their treatment as isolated acts of Francoist crimes also gives rise to a formal prescription of these crimes given the amount of time that has passed. The consequence of this is to favour those politicians responsible for some of those acts (eg those of Vitoria) who still occupy positions of senior responsibility in representative constitutional entities whereas if these crimes were considered part of the crimes against humanity committed by Francoism there would be no such time bar nor would they be subject to amnesty"

6) "The proposal contains an element of unlawfulness which we consider extremely dangerous for the legitimacy of the democratic Constitution now in force, given that it implies by omission the recognition of the Francoist legality beyond the limits established by the Constitution itself, by internal law, by numerous international treaties and conventions entered into by Spain, and by applicable customary international law".

This situation is made worse by the fact that in repealing the laws referred to in the draft, the lawmakers will voluntarily produce certain effects: a) the repealed laws will have been in force until the date of publication of the "Law of Memory" in the Official Gazette; b) those which are not repealed continue to have legal effect; c) this partial repeal is done without consideration for the repealing provision of the 1978 Constitution and d) these issues could be interpreted to mean not only a ratification of the lawfulness of the Francoist regime, but also that the Francoist laws that would be repealed by this draft law as well as those that have not been expressly repealed by the current Spanish Constitution, prevail over this Constitution.

7) The draft law demonstrates a manifest desire to defend the legality of the Francoist regime and places on equal footing victims and criminals (those responsible for the crimes under international law) in a perverse and immoral way, which entails a blatant negationism of the historical truth, and also assumes that the current democracy finds its formal limit in the legality of that regime.

The draft law achieves this by concealing elements of international law which are binding upon the Spanish State. One such example are the resolutions of the United Nations General Assembly concerning the legal issues relating to National Socialism and to Fascism, and which, given the nature of ius cogens and the universal extent of the principles it asserts, are of mandatory application by the States. One of these Resolutions is No. 95 (1) of the General Assembly of 11th December 1946 (Affirmation of the Principles of International Law Recognized by the Charter of the Nurnberg Tribunal). The obligation to apply these in internal law was recognised by the European Court of Human Rights in its decision of 17th January 2006 in the case of Kolk and Kislyiy.

Even more apparent is the concealment, with reference to the nature of the Franco regime, of the United Nations General Assembly resolutions 32(I) and 39 (I), which specifically address the so-called Spanish question.

8) We hold that definitive reconciliation amongst Spaniards can only be achieved with justice and that the Government is confusing forgetting with reconciliation, justice with revenge and memory with lack of lawfulness..Within the rule of law, the victims of serious human rights violations only exist before the law and, if this is not recognised, there is a legal exclusion of all the victims of the Francoist regime, denying them the right to justice and legal equality in comparison to the rights of other kinds of victims, such as the victims of terrorism.

9) We therefore ratify the plan of action and the principles contained in the report "The question of impunity in Spain and crimes under Franco" dated 14th April 2004, known as the "Nizkor Report", and the corresponding statements which complemented it.

10) We ask that the democratic political parties represented in parliament reflect deeply on the perverse consequences of these acts that increase the democratic deficit which has existed since the so-called Transition and which leads citizens to reach the conclusion that their civil liberties, democratic principles and human rights derive, in fact, from a "democracy granted" by the illegal regime of Franco.

11) We wish to express again that we will continue to demand truth, justice and reparation by any means within our power in order to achieve all the aims which we have constantly sought from the parliamentary groups, the Government and from justice, which demands have never been responded to and in most cases have never been listened to.

Madrid, 11 October 2007
Gregorio Dionis, president Equipo Nizkor

Endorsed by:

  • AfarIIREP - (Association of Relatives and Friends of the 2nd Republic Victims of Reprisals by the Franco Regime), Ana Viéitez Gómez, President
  • Ahaztuak 1936-1977 (Victims of the coup d'etat, of the repression and of the Franco regime, Vizcaya)
  • Association "Antifrancoist Memory of Baix Llobregat" (Associació memòria antifranquista del Baix Llobregat)
  • Association for the creation of an Archive of the Civil War, the International Brigades, the Children of the War, the Resistance and the Spanish Exile. AGE (Archive of War and Exile) Dolores Cabra, President
  • Association for the Dignification of Victims of Fascism, Galicia, Manuel Sarille Lenceiro, President
  • Association of Asturias for Historical Memory, Víctor Luis Alvarez, President
  • Association of Salamanca for Memory and Justice, Fermín Sánchez Martín, Secretary
  • Association of Soria for Memory and Dignity, Iván Aparicio, President
  • Association of Victims of the 3 of March 1976 in Vitoria-Gasteiz, Andoni Txasko, spokesperson
  • Association of Vigo for the Memory of 1936, Telmo Comesaña Pamoillon
  • Association "Democratic Memorial of SEAT Workers" (Associació Memorial democràtic del treballadors/res de SEAT), Carlos Vallejo, President
  • Asturian Association of relatives of the disappeared of the Spanish State in Argentina, Bárbara García, President
  • COLICHE Group (Solidarity Group for People's Justice and Dignidty), Logroño, La Rioja
  • Disappeared of the Civil War and Republican Exile (DESPAGE), Antonio Cruz González, Coordinator
  • "Enrique Lister" Association (Associació "Enrique Lister")
  • Forum for Hictoric Memory of Castellar de Santiago, Ciudad Real, Agustina Nieto Pliego, president
  • Forum for Memory Federation (Association for Liberty and Justice of El Almendro (Huelva); Forum for Memory, Eastern Asturias; Forum for Memory, Cantabria; Forum for Memory, La Rioja; Forum for Memory, Segovia; Forum for Memory, Aragon; Forum for Memory, Community of Madrid, Forum for Memory, Toledo, Forum for Memory, Valencian Community; Forum for Memory of the Valle del Tietar and La Vera;, Forum for Memory, Extremadura, Forum for Memory, Andalucia, Forum for Memory, Granada; Forum for Memory, Málaga; Forum for Memory, Jaen, Forum for Memory, Huelva; Forum for Memory, Cádiz ; Forum for Memory of the Field of Gibraltar; Forum for Memory, El Puerto de Santamaria; Forum for Memory, Argentina), José María Pedreño Gómez, President of the Federation
  • Forum for Memory Argentina, Buenos Aires, Andrés J. Señorans e Inés García Holgado
  • Forum for Historic Memory of Castellar de Santiago, Ciudad Real, Agustina Nieto Pliego, President
  • Forum per la Memoria del País Valenciá, Amparo Salvador Villanova, President
  • Friends of the Fallen for Liberty (1939–1945), Historical Memory of the Murcia Region, Floren Dimas Balsalobre, Regional President
  • Group of the relatives of the mass grave nº 1 of Villanueva del Rosario
  • Liga Aragonesa de Mutilados e Inválidos de la Guerra Civil Española 1936/39 (Ligue of Spanish Civil War Mutilated and Disabled Persons of Aragon), Juan Luis Serrano Calleja, President
  • Luis Bello Foundation, José Esteban, President
  • Manuel Azaña Association, Felix Rodriguez, Secretary
  • Mesa de Diálogo para la Recuperación de la Memoria Histórica de Asturias (Dialog Platform for the Recovery of Historic Memory of Asturias):[Asociación de Cantabria Héroes por la República y la libertad, Ateneo Republicano, Foro Ciudadano por la República de Asturias, Foro Pozu Fortuna, Foro por la Memoria del Oriente de Asturias-Federación Estatal de Foros por la Memoria, Foro por la Memoria de León, Foro por la Memoria de Burgos, Memoria Histórica Allerana, Memoria Histórica, PCA, PCPE de Asturias, CMC/CJC, Sociedad Cultural Gijonesa, Logia Rosario de Acuña]
  • Plataform of Citizens for the Republic, Pedro A. García Bilbao, Vice-president.
  • Republican Cultural Association of Galicia - ARGA
  • Republican Group of Euskal Herria, Iñaki Valentín, Secretary
  • Solidarity Group for the Peoples Justice and Dignity (Colectivo de Solidaridad por la Justicia y Dignidad de los Pueblos)

Individuals, political groups and other groups:

  • Antonio Monroy Alvarez, Galicia
  • Asociación Cultura Paz y Solidaridad Haydée Santamaría, Madrid
  • Candida Garcia Dacosta, Galicia
  • Carmen Blanco, Galicia, writer and professor
  • Claudio Rodriguez Fer, writer and professor
  • Col·lectiu Kaos en la Red, Barcelona
  • Corriente Roja, Ángeles Maestro
  • Daniel Alberto Chiarenza, Professor of History and researcher, Argentine
  • Elena Sanchez Lozano (relative of killed teacher)
  • Entesa de Catalunya per a la República.
  • Espacio Alternativo (Alternative Space), Jaime Pastor
  • Maria Elena Beltran
  • Mónica Oporto, Burzaco, Argentina
  • José Parapar, Campana, Argentina
  • Juan Sanchez Lopez (relative of killed teacher)
  • Julio Recuero Casado, Madrid.
  • Teresa Sánchez, war child, exiled, Buenos Aires
  • Revista Viento Sur, Miguel Romero (Editorial Staff), Madrid
  • Tolmo Comesaña Pampillon, Galicia
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