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26Dec12

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The deceit and immorality of a proposal for a non-binding resolution submitted by the Socialist Parliamentary Group

On March 6th 2012 the Socialist Parliamentary Group submitted to the lower House of Parliament (Congreso de los diputados) a proposal for a non-binding resolution ("Proposal") (Proposición no de Ley No. 162/000239),under the heading "Proposal for a resolution submitted by the Parliamentary Socialist Group concerning the rights and measures in favour of those who suffered persecution or violence during the civil war and the dictatorship". The text was signed by Ramón Jáuregui Atondo, Member of Parliament and Eduardo Madina Muñoz, Spokesman for the Socialist Parliamentary Group.

This parliamentary document, as with nearly all "proposals for non-binding resolutions" has gone almost unnoticed. This type of Proposal is no more than an empty gesture by the Parliamentary groups in Congress given that, unlike law, if passed, it cannot be enforced. Thence its vacuous name.

The former President of the Government, José Luis Rodríguez Zapatero, entrusted Member of Parliament Ramón Jáuregui with the task of implementing the plan put in place from Moncloa to deal with the matter of the victims of Francoism and the Republican legal system, revealed in our report , "The question of impunity in Spain and crimes under Franco", published in 2004.

This is the most unacceptable manoeuvre carried out since the Constitution of 1978 was enacted and therefore, since the impunity agreements which were implicit in the so-called "democratic transition", i.e. the "post-Francoist transition" which permitted the legalization of Francoism, as is evident from the aberrant legislation called the "Law of Memory".

Ramón Jáuregui opposed the associations which countersigned our report "The question of impunity in Spain and crimes under Franco". Our organisation acted as spokesperson in representation of other organizations at various meetings held at the Parliamentary offices, where he made it very clear that he would do nothing to advance the legal recognition of the victims of Francoism, and his arguments more closely resembled a Falange perspective than a position akin to civil liberties or international law |1|.

We have known for many years that this perverse campaign was being directed from Moncloa and that it even involved activities in third countries, as we indicated in our report "The ruling absolving Judge Garzón's actions condemns Republican victims to legal inequality ".

Nevertheless, it was impossible to report it as such, as the activities conducted from Moncloa were carried out within the parameters of a counter-intelligence operation, and therefore, used mechanisms inherent in such an operation. The objective of this operation was nothing less than the consolidation of what we called the "Spanish model of impunity" and the dismantling of the group of associations that arose at the beginning of the 21st century.

This is the sole reason for the complete absence of transparency |2| in each and every action taken by the Vicepresidency of the Government headed by María Teresa Fernández de la Vega and why, after her resignation, these actions were assumed directly by José Luis Rodríguez Zapatero through a clandestine cabinet which used career diplomats in "special operations" and other experts in legal engineering, including the then judge Baltasar Garzón.

This is the significance of the Proposal for a non-binding Resolution of March 6th 2012, which will pass into the history of civil liberties as just one part of the permanent humiliation which the victims of Franco endure in and outside of Spain.

It is a unique text given that the Parliamentary Group who has submitted it acknowledges and assumes a series of manoeuvres in a document which is public and has been introduced in Parliament. It therefore has value as irrefutable evidence, similar to an admission of guilt before history and the victims, as never before has the Parliamentary Group acknowledged the actions referred to in the Proposal.

Thus we now have reliable and legal knowledge that the Government of Rodríguez Zapatero deliberately and systematically implemented a series of illegal measures as well as measures of social engineering which, through this document, the Socialist Parliamentary Group assumed.

The document commences with a famous phrase which "per se" is a demonstration of hypocrisy and illegality, stating "In 1978 perhaps it was unreasonable (or simply impossible) to exhume the dead; in 2012 it is shocking that they remain buried".

I) The first matter that is not disclosed here is what happened in 1978: the so-called "democratic transition" not only ignored the question of Republican victims, but also legalised Francoism. This legalisation was initiated by the acceptance of a monarch designated by Francisco Franco Bahamonde. Juan Carlos de Borbón pledged allegiance to Franco and to the "Principles of the National Movement", on 23rd July 1969, during the ceremony of acceptance of his designation as Franco's successor. During the ceremony of his proclamation as Head of State before the Francoist Parliament of 22nd November 1975, he also reaffirmed,that his title as king stemmed from the Fundamental Laws of the Realm. That alone says all that is needed to be said on the subject. |3|

Maintaining the legality of Francoism was incompatible with the recognition of Republican victims qua victims and with the recognition of the criminal nature of the Francoist regime pursuant to the definition of that regime afforded by the United Nations as far back as 12th December 1946. This is the date when the General Assembly approved its Resolution 39(I), stating that "(a) In origin, nature, structure and general conduct, the Franco regime is a fascist regime patterned on, and established largely as a result of aid received from, Hitler's Nazi Germany and Mussolini's Fascist Italy;"

As if these issues were not terrible enough, the second point made by the Socialist Group clearly expresses the perversity of the text of the Proposal which is illegal, and morally reprehensible and from the perspective of formal logic, manifestly irrational. After stating that " if in 1978 it was impossible to carry out exhumations", it continues, by way of a second proposition, to state that: "in 2012 it is shocking that they remain buried".

In other words, the Socialist Parliamentary Group and its legal advisers sanction and propose in the Proposal - as they did with the so-called "Law of Memory" - that exhumations should be carried out in contravention of the criminal procedural laws of any civilised society. This statement is revealing for its complete illegality and it is unworthy of a legal professional with a duty to state the truth in matters of law and procedure.

It is clear that the right to exhumation does not exist other than in accordance with criminal procedural law and this Proposal therefore allows us to state that since the Second World War the Government of Rodríguez Zapatero has directed the largest operation in Western Europe of destruction of evidence concerning crimes against humanity.

The document states that "6000 exhumations have been carried out, in almost 300 mass graves; in a work that is still ongoing;". What the document does not say is that these exhumations were performed illegally in almost every case and, therefore, the destruction of evidence has been further exacerbated. This fact is widely-known and prior to this document we were aware that certain associations, in good faith, carried out unlawful acts and others did so in clear bad faith. What is qualitatively different is the acknowledgement that it was part of a government action.

For the first time in this Parliamentary document, there is an acknowledgement of government action insofar as it refers to material evidence of crime. Thus, the exhumations followed a deliberate and systematic plan directed by the lawful Government in desertion of its duties to comply with the law and to guarantee rights and in violation not only of domestic law but also international law, in particular that arising from the Nuremberg doctrine.

To understand the perversity of the Proposal, it is necessary to read the following judicial decision: "Auto confirmando que los jueces naturales del lugar de los hechos son competentes para desenterrar e identificar a las víctimas del franquismo", dated March 28th 2012, in which the Supreme Court clearly sets out the procedure for exhumations and affirms that the jurisdiction for these is exclusively that of the natural judges. This decision is not an innovation; it simply ratifies the procedural and forensic laws which are applicable to the remains of the victims of Francoism.

From a review of the legal documents, it appears that the Director of Public Prosecutions, by order of the then President Rodríguez Zapatero, decided not to use the competent courts but rather to induce the associations to carry out illegal exhumations, a decision exacerbated by the fact that both the DPP and the President are civil servants with a duty to comply and ensure compliance with the laws.

The Proposal also wrongfully refers to Judgement No.101/2012, finding D. Baltasar Garzón Real |4| not guilty of the crime of breach of legal duty, a judgement which is anyway unworthy of legal professionals presumably with an obligation to conduct their profession ethically. The Judgement addresses only whether or not Baltasar Garzón breached his legal duty, and therefore, can not be used for any other purpose, as the authors of the Proposal seek to do. (For a more detailed analysis of that judgement, see document "The ruling absolving Judge Garzón's actions condemns Republican victims to legal inequality").

By way of a clear example of our meaning here, consider that the Proposal uses paragraph 5 of the said Judgement in its Preamble which states : The testimonies heard in the oral trial related the feelings of the relatives of the disappeared, the silence that reigned over the relatives who could not speak about the events, and even the shame suffered and how terrible was the comparison between the fate of some who died and others".

This statement is deliberately misleading. The witnesses were not there as victims of Francoism in a proceeding that was determining the crimes of Francoism; they were there as witnesses in the defence of Judge Baltazar Garzón. The procedural use of these elderly people who could not distinguish this difference and who were called by the lawyers defending Baltasar Garzón is utterly reprehensible from an ethical point of view and should not have been accepted by a court.

II) The document states that "Almost 200,000 people have acquired Spanish nationality as descendants of the Spanish exiled". This is false. Nationality has been granted to persons who for the most part are grandchildren of emigrants and in some cases of Spanish in exile.

This "gracious concession" has nothing to do with the associations' request which concerned the legalisation of those born abroad and registered in Consulates under the jurisidiction of the Spanish Republic. In other words, what was requested was the legal recognition of Republican Consulates for the purposes of granting Spanish nationality. |5|

That request specifically appeared as point 10 of the Plan of Action and was formulated as follows: "[T]he State of Spain must also proceed to the legal regularization of problems of Spanish nationality resulting from exile and problems arising from the registration of Spaniards with lawful authorities of the 2nd. Republic, allowing the right to maintain dual nationality in all such cases (both, for exiles and their descendants)."

This request was manifestly rejected and in its place, the then Minister of Work and Social Matters, Jesús Caldera, during the preparation of the election campaign prior to the second mandate of José Luis Rodríguez Zapatero, came up with a "brilliant idea", to obfuscate the demands of the descendants of the exiled who were registered with the Consulates of the 2nd Republic by addressing the demands of the grandchildren of Spanish nationals in Latin America who wanted to be granted Spanish nationality. |6|

Thus by sleight of hand and an effective media campaign, the Socialist Party used the electoral campaign in Argentina and Uruguay to conceal the genuine demands concerning nationality of the Republican victims and their relatives.

This was a distraction for the associations, given that, on the one hand, the right of the grandchildren was completely legitimate but had nothing to do with the underlying problem and, on the other hand, the legal process to grant nationality to the grandchildren could be effected, as in fact happened, using the faculties of the Central Civil Registry in an administrative procedure called "recuperation of nationality".

The request of the victims' associations was thus disregarded and that is what enables us to state that the numbers cited are false. The numbers have nothing to do with the question of nationality referred to above which issue remains unresolved and a matter of humiliation for the specific victims in those cases.

III) The document also states that "more than 2,400 War Children have been granted economic assistance. In some cases these are pensions which have given them back dignity and survival"

This statement is patently immoral and does not in any way address the issues regarding the War children. To make such statement supposes a hypocrisy and lack of legality that is unacceptable for members of parliament and even less acceptable in the case of so-called socialists. To state that economic assistance has been offered to this category of victims when they would be entitled to it as a matter of right as Spanish citizens is verging on the ridiculous.

The issue concerning the War Children is addressed in point 10 of the Plan of Action in our report and expressly states: "Reconstruction of the lists of Spanish victims in other countries as a consequence of the Franco regime, particularly including the so-called "children of the war", and requesting, where necessary, international co-operation, especially in the area of Europe, for which organizations of exiles or foreign organizations which have co-operated with Republican exiles should be relied upon."

What was requested here, basically common sense, is that a census be taken of the war children. These minors ended up in at least 15 different countries and the overwhelming majority were received in an acceptable and humanitarian way. However these children, who could obviously never be classed as belligerents, lost their Spanish nationality and never returned to Spain. Because of this it is necessary to refer to permitting an exception of "dual nationality" (a right which exists as regards Latin American countries) and to allow them and their descendants to obtain Spanish nationality.

The problem of so-called war children |7| was a question which affected various countries in dealing with minors who, in many cases, had no identification documents and no nationality, as they had never been acknowledged by the Franco regime. The problems of statelessness and refugees were precisely those which had to be addressed by the international community at the end of the Second World War.

The case of war children is particularly serious in terms of State policy. It is incomprehensible that a country calls itself democratic and then denies this reality, refusing the rights which belong to a Spanish citizen and yet believing that by granting some special pensions (mainly in connection with the war children in Russia and with a somewhat contemptible anti-communist perspective) the matter could be resolved. And yet there remain war children in Great Britain, Belgium, Germany, France, Chile, Peru, Cuba and other countries.

In conclusion, what the Zapatero Government did is to perpetuate a policy of non-recognition in effect under the Franco regime in an act of contempt for civil rights and for all the victims of Fascism, not just for Spanish nationals.

IV) We could go on to detail similarly the other statements in the Proposal concerning political prisoners, the Brigades and the 1,300 "Declarations of reparation and personal recognition issued by the Ministry of Justice", which are no more than legalised fraud which fail to resolve the problems of the victims of Francoism.

As we stated in the introduction to the document we issued in 2004: "It must be understood in any discussion that the concept of justice should not be compared with that of revenge as this perverse construction allows lack of memory to form one of the bases for the rule of law. No society can survive ignorance of its own history, however terrible it may be."

V) It is clear that the model which arose from the post-Franco transition is in profound crisis which cannot be resolved as there exists a fundamental issue of illegitimacy and unlawfulness which does not permit a constituional modification.

We therefore believe that the only answer is to call a Constituent Assembly (Cortes Constituyentes), the members of which must be elected in free elections in which the electorate vote for individual candidates (i.e. not using the current system of closed lists drawn up by the various political groups). This would allow the resolution of the legal problem of the royal succession and would overcome the problem that would arise if the current Parliament summoned its own members as the constituting assembly, as is currently provided in the post- Francoist constitution |8|.

The failure to adopt laws which would have resolved this situation of impunity and the absence of acknowledgement of the Republican victims and the victims of Francoism in general, leads unavoidably to this conclusion.

To end this document, we refer to a quotation which summarises the problems of the Republican victims, and which, in our view, defines the causes of the social and economic crises which currently affect Spain. It explains how it is that the causes are the problem and not the consequences :

    "From pardon power unrestricted, comes impunity to delinquency in all shapes: from impunity to delinquency in all shapes, impunity to maleficence in all shapes: from impunity to maleficence in all shapes, dissolution of government: from dissolution of government, dissolution of political society"
    Jeremy Bentham (1748--1832)"

Notes:

1. See: "Statement rejecting Spanish MP Jáuregui's public declarations regarding human rights violations under Franco", available at: http://www.derechos.org/nizkor/espana/doc/debts.html; "Jáuregui, en defensa de la impunidad de los crímenes franquistas", available at (Spanish version only): http://www.derechos.org/nizkor/espana/doc/hoenigsfeld1.html; "Between moral cowardice and illegality", available at: http://www.derechos.org/nizkor/espana/doc/illegal.html; "Jáuregui ataca de nuevo: declara que el Gobierno aprobará informes sobre Memoria Histórica el día 28 y defiende 'la seguridad jurídica del pasado'", available at (Spanish version only): http://www.derechos.org/nizkor/espana/doc/jauregui.html [Back]

2. See "Response to the President of the Inter-Ministerial Commission to Study the Victims of the Civil War and Francoism", available at: http://www.derechos.org/nizkor/espana/doc/civf1en.html; "Carta Abierta a la Vicepresidenta del Gobierno y Presidenta de la Comisión Interministerial para el Estudio de la Situación de las Víctimas de la Guerra Civil y el Franquismo, María Teresa Fernández de la Vega", available at (Spanish version only): http://www.derechos.org/nizkor/espana/doc/civfage.html [Back]

3. See:

4. For follow-up of the Baltasar Garzon case:

5. This issue is addressed in point 10 of the Plan of Action, available at http://www.derechos.org/nizkor/espana/doc/impuspa.html#VI.-%20Plan and explained in the document "Informe sobre la Nacionalidad", available at (Spanish version only): http://www.derechos.org/nizkor/espana/doc/exilio.html [Back]

6. See: "España: avanza la ley para que descendientes de emigrantes puedan obtener la nacionalidad", available at (Spanish version only): http://www.derechos.org/nizkor/espana/doc/lmh6.html [Back]

7. See: "The question of the treatment of the Children of the War as victims and their legal status", available at: http://www.derechos.org/nizkor/espana/doc/children.html [Back]

8. Although article 168.2 of the Spanish Constitution of 1978 does not expressly refer to the manner by which the (members of the) Houses of Parliament should be elected, it is perfectly possible that Parliament, on dissolving itself, could call a general election in which the voters could choose the candidates who should make up the constituting parliament pursuant to a system of open party lists.

The current article 168 provides:

    "1. If a total revision of the Constitution is proposed, or a partial revision thereof, affecting the Introductory Part, Chapter II, Division 1 of Part I, or Part II, the principle of the proposed reform shall be approved by a two-thirds majority of the members of each House, and the Cortes Generales shall immediately be dissolved.

    2. The Houses elected thereupon must ratify the decision and proceed to examine the new constitutional text, which must be passed by a two-thirds majority of the members of each House.

    3. Once the amendment has been passed by the Cortes Generales, it shall be submitted to ratification by referendum."

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small logoThis document has been published on 26Dec12 by the Equipo Nizkor and Derechos Human Rights. In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.