The Prosecutor’s Office has presented an appeal for protection before the Constitutional Court against the “flat file” of a complaint for torture suffered by two brothers during the Franco regime, after their arrest by the political-social brigade of the Police in the 70s. The appealed decision was adopted by the Barcelona Court last September, taking into account precisely the Constitutional doctrine to date, since the body of guarantees various cases of this nature – when they reached this instance in the form of appeals for protection – because considers that the Amnesty Law of 1977 prevents subjecting these episodes to judicial investigation. The Prosecutor’s Office, however, considers that the lack of investigation of this type of events represents a violation of the right to effective judicial protection “in its aspect of access to jurisdiction.” And he asks that the Memory Law be applied to guarantee “the right to justice” of the victims, although ultimately this does not translate into “criminal prosecution” of the guilty.
The challenge to said file —prepared by the Prosecutor’s Office dedicated to Constitutional matters in coordination with the Human Rights and Democratic Memory Unit of the State Attorney General’s Office— is based on “the new regulatory scenario that the entry into force of the Democratic Memory Law”, approved in 2022. Prosecutors emphasize that this law expressly establishes “the right to justice of the victims of the coup d’état, the war and the dictatorship, as well as the obligation to investigate violations of the human rights perpetrated in that period.”
The presentation of this resource has been welcomed as a very positive event by the Secretariat of State for Democratic Memory. Its owner, Fernando Martínez, has told EL PAÍS that the decision of the Prosecutor’s Office represents “a very important step towards the application of the right to investigate human rights violations during the war and the dictatorship.”
The Prosecutor’s Office, in turn, emphasizes that the Constitutional “on the scope and meaning of the right to investigation” established in article 29.1 of the Democratic Memory Law. The appeal for protection maintains that, in this situation, the recognition and application of said right “transcends the specific case because it raises a legal issue of relevant and general social repercussion.”
The request for protection also states that in previous actions the Prosecutor’s Office had already maintained the criterion that, in application of the new law, it is necessary to carry out “an effective judicial investigation whose ultimate purpose does not have to be criminal prosecution.” The essential function of the appeal, the challenge presented adds, is “to guarantee victims their rights to truth, justice and reparation, regardless of the final result of the process.”
The prosecutors defend, in short, that their appeal offers an interpretation of the norm “with a human rights approach and that integrates the core principles of international human rights law and treaties and conventions on the matter,” according to with the requirements of article 10.2 of the Constitution. Said precept establishes that the norms relating to fundamental rights and freedoms “shall be interpreted in accordance with the Universal Declaration of Human Rights and the international treaties and agreements on the same matters ratified by Spain.”
In a 2021 ruling, the Constitutional Court – then with a conservative majority, unlike now -, through an order in which it did not admit for processing an appeal for protection presented by the former general secretary of the PCE Gerardo Iglesias for the arrests and torture that suffered between 1964 and 1974. Three magistrates formulated a dissenting vote against this rejection of the investigation of crimes of the Franco regime. Gerardo Iglesias then filed an appeal to the European Court of Human Rights (ECtHR) based on these dissenting opinions, a matter that is still pending ruling.
Two of those magistrates – María Luisa Balaguer and Juan Antonio Xiol – considered that the Constitutional Court should go into the substance of the matter to discuss, among other aspects, to what extent the Amnesty Law of 1977 and the prescription of crimes represent a barrier insurmountable to investigate these cases. The then vice president of the court, Encarnación Roca, maintained, in turn, in her dissenting opinion that the appeal should have been admitted “regardless of the result,” after verifying the relevance of the debate.
The Constitutional Court’s resolution highlighted, however, the circumstance that Iglesias proposed investigating “events that occurred more than 40 years ago,” when “the maximum statute of limitations expressly determined at the time of their commission” has already been exhausted. He also considered that basic constitutional principles should be respected, such as legality and non-retroactivity of sanctioning provisions unfavorable to those allegedly responsible.
