In its first weeks of life, the Democratic Memory Law has not been able to prevent an apology for Francoism from being made in the tributes held last Sunday, November 20, in Madrid. It is evidence. The question is why the rallies were not prohibited, why the Police did not act when they sang the Face to the Sun with their arms raised. And they are not the only questions: Why are sculptures such as the Cross of the Fallen in the center of Alicante, or the Francoist obelisk in Tortosa, in memory of the battle of the Ebro? Why are souvenirs still sold with the portrait of Franco or the flag with the eagle?
The new Memory Law seeks to pay off the outstanding debt owed to the victims of the dictatorship, and together with comprehensive democratic memory policies, provides for sanctions – of up to 150,000 euros – if there is an exaltation of Francoism (or its protagonists) that entails - it is an indispensable condition – a humiliation to the victims. The punitive path has limits. It is always so. Fundamental rights are not absolute, but must be coordinated with each other. And no matter how repulsive the expression of certain ideas may be for democrats, the Constitution protects freedom of expression and assembly and Spanish democracy is not militant, anyone can declare themselves a Francoist or a Nazi and display their symbols.
“The law does not pursue any exaltation of Francoism, but rather that which includes the humiliation of the victims. And that must be interpreted with common sense. A sanction will not make people think otherwise; Francoism and fascism must be combated effectively”, underlines Mauricio Valiente, a deputy from United We Can who participated in the drafting of the law.
As always, you have to analyze case by case. "The way to constitutionally apply the Law of Memory with respect to the exaltation of Francoism can be equated to the persecution of the exaltation of terrorism," says Joaquín Urías, professor of Constitutional Law at the University of Seville. If an ETA member is released from prison, the family cannot be prohibited from celebrating it. Another thing is what happens during a tribute”.
Urías stresses that jurisprudence, especially from the European Court of Human Rights, supports the prohibition not only of direct incitement – saying 'Franco should come back, that there be a military coup' – but also indirect one. "The Roman salute in a party act is allowed, but in another context and if it is done in a threatening way, noting 'be careful, we are here', it can be sanctioned, and the same with the Face in the sun, which is a an almost war song”, he points out. As for souvenirs, he considers it the expression of an ideology. “But you have to see what use it is given. And if it is a sticker that says 'we are going to shoot reds', that is punishable ”, he affirms.
From the Association for the Recovery of Historical Memory, they are not optimistic regarding the possibilities of tying short the apology of Francoism. For its president, Emilio Silva, "the new law is very lax, but above all it lacks political will." Silva regrets that the exaltation of Francoism has not been incorporated into the Penal Code, with a similar treatment to the apology of terrorism. “In the acts of 20-N the military coup, the dictatorship, the murder of my grandfather are celebrated. And I will say something, some of those terrorists to whom tributes are made have been sentenced, but the Francoists who kidnapped democracy have not paid ”, he notes.
The law also provides that the central government, together with the other public administrations, draw up a catalog with the Francoist symbols in public places that must be removed, and includes sanctions for non-compliance.
Along with the Memory Law, most communities have their own legislation on this matter, and the levels of demand are different. “State law looks at the consequence, if there is humiliation of the victims in the tribute, so the sanction of the acts of 20-N can only be a posteriori. Other legislations, such as the Balearic Islands, focus on the purpose, which is called to praise the military coup or the dictatorship. It would be necessary to standardize”, points out Margalida Capella, professor of International Public Law at the University of the Balearic Islands.
“We will see if there are sanctions for the acts in Madrid –adds Capella–. And at some point there will be an appeal before the Constitutional Court for possible violation of freedom of expression and to see what it says, it could declare part of the Memory Law unconstitutional. The Luxembourg Court has ruled on acts of exaltation with respect to the holocaust, but it is not comparable; here the crimes of Francoism have not been considered genocide”.
The 20-N tributes were allowed because, except for the risk of violence, all demonstrations are authorized. This is argued by the Government, which has opened disciplinary proceedings and has requested videos, certificates and other evidence that can prove conduct contrary to the law.
And what about the police, who did not act? The new legislation provides sanctions for those who do not prevent or put an end to an act of exaltation. "In Madrid, we saw the behavior of the security forces, in some images it can be seen that they were limited to being present," underlines ERC senator Josep M. Reniu, who points out that "administrations have to be proactive so that they do not repeat what happened on 20-N, and we will see the capacity to sanction”.
More restrictive, Jorge Rodríguez, professor of Public International Law at the Complutense University of Madrid, points out that "any act that implies a positive memory of the dictatorship is in itself an exaltation because it is promoted to continue in force and deserve public praise" And he underlines that "it is not the same as remembering the Franco regime as a totalitarian and repressive period, which left a trail of victims."
In any case, a general opinion is that the Memory Law is late, as the 2007 law already did. fascism”, confirms the emeritus magistrate of the Supreme Court José Antonio Martín Pallín. And he emphasizes that the 1979 Amnesty Law does not affect crimes against humanity, torture and genocide "which Franco undoubtedly committed", for which reason he questions that legal proceedings for torture are not initiated, which could lead to criminal proceedings. .
