Misremembering Franco
Spain's new 'memory law' attempts to grapple with Franco-era crimes – but without acknowledging the continuity between the dictatorship and the current system, there can be no real justice.
Spanish military dictator General Francisco Franco, photographed in August 1937. Credit: Hulton Archive / Getty Images
‘I was born in February 1934 when Spain was still a Republic,’ Fausto Canales Bermejo tells Tribune. At the outbreak of the country’s Civil War, two years later, his hometown in rural Ávila fell to rebel fascist forces, who unleashed a wave of terror across the surrounding region. ‘The ten victims from our town all belonged to the UGT trade union and the local Socialist Party [PSOE] branch. They were taken from their homes, disappeared, and then shot. My father was one of them.’
After his retirement in 1999, Fausto began to search for the remains of his father, just one of the estimated 114,000 victims of Francoism still buried in unmarked graves across Spain. ‘There was no written documentation, no paper trail,’ he explains. But slowly piecing together the evidence over the subsequent years, Fausto confirmed that his father’s body had been moved in 1959 to one of the crypts of the Valley of the Fallen monument outside Madrid, which for decades served as dictator Francisco Franco’s mausoleum. Built high in the Sierra de Guadarrama mountain range with the slave-labour of Republican prisoners of war, the vast shrine glorifying Franco’s victory still houses the remains of nearly 34,000 people who died in the Civil War, including thousands of unidentified bodies taken from Republican mass graves without their families’ consent.
‘For us the Valley of the Fallen is an insult — that our families, who died for their beliefs, are buried there,’ Fausto continues. ‘I said it was a great day [when Pedro Sánchez’s PSOE caretaker government removed Franco’s body from the complex in 2019] but we are still waiting for the recovery of our own families’ remains… We want to bury them in the cemetery so as to honour them as they deserve.’
Now 85 years after the repression and 43 years after the end of the Francoist dictatorship, a new Democratic Memory Law seeks to recognise the Victims of Francoism and to accelerate the recovery of bodies such as that of Fausto’s father. The new law—which was passed by cabinet at the end of July but still needs parliamentary approval—will see the state take greater responsibility for the exhumation of the country’s disappeared. It will also prohibit public exaltation of the dictator, outlaw the Francisco Franco Foundation, and ‘re-signify’ the Valley of the Fallen, which will include converting its crypts into a civil cemetery.
‘Today, Spain repays a debt to its past,’ insisted Sánchez as his government approved the bill. ‘This is a necessary law that makes us a better country.’ The minister with responsibility for democratic memory, Félix Bolaños, stressed how ‘this is the first law that expressly condemns and repudiates Franco’s 1936 coup and the ensuing dictatorship which ushered in the darkest period of our contemporary history.’
Yet while the legislation has been welcomed by memory associations as ‘a clear advance‘ on a previous 2007 law, these groups also insist that it still falls short in a number of fundamental respects. Above all, it leaves untouched the legal structures which have ensured the impunity of Francoist elites for the past forty years. This is not an accident, as the new law’s attempts to bring Spain into line with international norms on historical justice ultimately hits a certain limit: Sánchez and PSOE’s unwillingness to touch core aspects of the 1970s transitional settlement to democracy.
An Unresolved Legacy
After Franco’s death in 1975, the democratic opposition, led by the Communist Party and the trade unions, was strong enough to block the initial attempts at preserving the dictatorship, as it launched a wave of mobilisations and strikes. Yet unable to actually bring down the regime and fearing a military intervention from hard-line generals, the Left was forced to accept that democratisation would come about via a negotiated reform of the existing system, rather than as a rupture from it. In this respect, the PSOE and the Communist Party [PCE] engaged in a series of national agreements with the transitional government of Adolfo Suárez, a former Francoist minister, which secured legal recognition for political and social freedoms but that also ensured a continuity of the existing economic and state elites.
At the same time, the 1977 Amnesty Law not only freed political prisoners from jails but also gave immunity to those who had participated in Francoist repression. ‘My brother was killed at a pro-amnesty protest on 23 January 1977 [by extreme-right vigilantes linked to the security forces],’ Manuel Ruiz García tells Tribune. ‘He was campaigning for the liberation of political prisoners but… the Amnesty Law was ultimately used to legally protect torturers and those involved in the dictatorship. Today this law is one of the obstacles for those of us who demand justice.’
The Amnesty Law also underpinned the country’s so-called ‘pact of forgetting’, which, in the name of national reconciliation and looking to the future, saw the Civil War and its aftermath remain largely absent from political debate in the subsequent decades. It is only since 2000 that there has been a renewed traction around demands for transitional justice with the emergence of grassroots historical memory and victims associations, such as The Association for the Recovery of Historical Memory [ARMH] and Foro por la Memoria.
A 2007 historical memory law passed under PSOE Prime Minister José Luis Rodríguez Zapatero sought to respond to the demands of this movement but was widely criticised as inadequate by memory activists. ‘Weak’ is how Manuel described the law, pointing to its lack of enforcement mechanisms around measures like the removal of Francoist street names. A 2014 United Nations report authored by the then Special Rapporteur for the promotion of truth, justice and reparations Pablo de Greiff concurred – laying out a series of recommendations to bring the country into line with international norms. These ranged from the annulling of Franco era political convictions to the need for a comprehensive state exhumation programme.
Advances
The draft text for the new Democratic Memory Law makes significant headway towards implementing a number of de Greiff’s recommendations. First, the state will assume greater responsibility for the recovery and identification of the disappeared, with the government committing to the first state-led exhumation programme, as well as to the creation of a national DNA database. De Greiff’s report had criticised the ‘privatised’ character of the exhumations, which depended on the initiative of memory groups and local activists. Even the public subsidies offered under the 2007 law were withdrawn by the conservative government of Mariano Rajoy in 2012, leaving only regional funds.
The new programme will be organised around a government developed four-year plan, though at least during the initial stages will still depend heavily on the expertise and capacities of the memory associations. While associations such as the ARMH and Foro argue this is ‘outsourcing’ responsibility, Paco Etxeberria, a forensic anthropologist advising the government, insists it is a question of efficiently marshalling existing arrangements (which also includes public university forensic teams) so as to accelerate the recovery process. Over the last two decades, some 9,500 corpses of rearguard repression have been recovered from 700 mass graves, scattered throughout Spain’s countryside; the government now aims to recover between 20-25,000 more by 2027. This is the total figure which Etxeberria, believes is still feasibly recoverable after 85 years.
Another area in which the government has sought to implement de Greiff’s recommendations is with respect to the Valley of the Fallen. Under the new law, the Benedictine monks will be evicted from the premises and the crypts designated a civil cemetery, with victims’ relatives having the legal right to demand the removal of their family members’ remains.
Vilches / Getty
While the government looks set to resist calls to demolish the largest Catholic cross in Europe, which overlooks the site, the legislation takes up de Greiff’s recommendation that the site be ‘re-signified’. Following the lead of other such memorial sites, the guiding principle is that the Valley should come to serve as a reminder of the barbarity that went into its construction, as well as a memorial to victims of the Civil War and dictatorship. ‘With the cross, the site can never be a symbol of reconciliation,’ Fausto insists. ‘But it could be re-signified as the new draft bill suggests, explaining the monument from a democratic perspective while also dignifying the remains interred there as in any other civil cemetery.’ He is now waiting for initial works to reinforce the crypt’s foundations to be undertaken before the ossuary containing his father’s remains can be opened.
The legislation also crucially annuls Franco-era political convictions. This has long been a demand of the memory movement, as those sentenced have remained hitherto criminals in the eyes of the law, including prominent cultural and political figures such as the executed Catalan president Lluis Companys, poet Miguel Hernandez, and Andalusian national leader Blas Infante. ‘Chato Galante died as a criminal in March 2020,’ laments Manuel, citing the example of his close confidante and legendary activist, who was detained and subsequently tortured for distributing anti-Francoist literature in the 1970s.
Finally, the Democratic memory law contains a whole raft of measures that seek to combat growing historical revisionism and the continued exaltation of Francoism on the far-right. Fines of up to €150,000 will be introduced for failure to remove Francoist symbols from public spaces, and organising events that glorify the dictatorship, the military coup, or Franco’s victory in the Civil War will be made illegal, while the Francisco Franco Foundation will be eliminated. At the same time, Democratic Memory will become a mandatory subject in schools for those aged sixteen to eighteen, although questions remain about the feasibility of implementing this policy throughout Spain’s decentralised education system.
For Manuel, who now gives talks in schools with La Comuna memory association, the latter is an essential part of the new legislation: ‘The right-wing has done a good job in making people forget. We need to counteract this… At school, they do not study the Civil War or the transition. Only curious young people who search online can inform themselves. They are denied the truth.’
Continuing Impunity
But as much as the draft legislation has been praised as a necessary improvement to 2007’s law, memory activists have also criticised it as ultimately a missed opportunity to contest the pattern of impunity established since the Transition. In particular, by leaving the Amnesty Law untouched, the bill ends up fundamentally imbalanced — attempting to force the spotlight onto the victims but while also ensuring the crimes of Francoism remain hidden from view.
This can be seen, for example, in how the new law seeks to interpret the Spanish state’s responsibilities towards the disappeared and their families primarily in terms of ensuring official recognition. In this respect, the legislation establishes mechanisms like a public register of Franco’s victims and guarantees the participation of government officials at reburial ceremonies.
In contrast, memory groups are adamant that victims also have the right to a criminal investigation, with the state having to ensure judicial oversight at exhumations. ‘A judge and police officers should be present so as to witness that a body appeared with evidence of violence, such as a bullet in the head. These things should be officially documented,’ insists Fausto. Similarly, for Catalan Left Republican MP Gabriel Rufián, the major limit to the new exhumation programme is that ‘it still treats the excavations in strictly archaeological terms, lacking any requirement to open a judicial process so as to establish not just the identity of the remains but also the cause of death and the perpetrator.’
In the case of the Civil War, obviously all those responsible for the genocidal slaughter are dead and cannot stand trial, but de Greiff is also clear that the failure of the Spanish judiciary to investigate the facts surrounding these deaths ‘threatens the right to the truth’ of victims. His report urged the creation of a truth commission so as to officially recognise and set out for the first time the crimes against humanity committed by Francoism. As ARMH founder Emilio Silva explained to Sebastiaan Faber in his recent book Exhuming Franco, ‘the government seems to want to declare extolling Francoism a crime without first branding the crimes of the dictatorship as crimes.’
For many victims of late Francoist repression, however, this is not only a case of the right to truth as those responsible for their torture or the killing of a family member are still alive. Blocked from seeking justice at home, 330 plaintiffs initiated legal proceedings in Argentina in 2010 under the principle of universal jurisdiction for serious human rights crimes. One of those taking the case is Manuel, with former Interior Minister Martín Villa accused of the aggravated homicide of his brother Arturo and eleven others who were either killed by security forces or extreme-right vigilantes collaborating with the police. For Manuel, Villa facing trial would be a watershed moment, not only because it would record the reality of the violence of the transition, but also because ‘it would break the impunity that these people enjoy in Spain.’
De Greiff’s report was clear: to meet its obligations under international law, Spain could only avoid extraditing Villa and other Franco-era officials if it investigates and prosecutes them in Spanish courts. Neither is likely to happen. The new law does create the role of State Attorney for Democratic Memory, which in theory could initiate investigations. Yet, in Silva’s words, ‘she will have her hands tied by the Amnesty Law,’ which has come to function as ‘the final word’ within the Spanish legal system. Nor does such a role come close to a truth commission or special tribunal that would fully investigate the Civil War-era genocide or later state repression.
The Last Chance
With the draft law now set to begin its parliamentary passage in September, survivors and families of Franco’s victims are warning that it represents their final chance at seeing justice in their lifetime. PSOE’s coalition partner Unidas Podemos have set their sights on a last minute change to the bill that would annul the Amnesty Law (or at least render it ineffective, as de Greiff recommended). Needing the votes of Catalan and Basque parties, along with Unidas Podemos, PSOE will be under pressure to concede on this.
The Catalan Left Republican party is also adamant its MPs will vote against the law unless, alongside striking out Franco-era political convictions, the legislation also declares the dictatorship’s political courts illegal. The current draft only defines them as ‘illegitimate’, but critics argue this meekly accepts that courts (as absurd as the Special Court for the Repression of Masonry and Communism) were unjust but essentially legal. By extension, this risks reinforcing the tacit line-of-succession between Spain’s present judicial democracy and the Francoist dictatorship, rather than the constitutional Spanish Second Republic that it overthrew with a coup d’etat.
Yet there is no appetite within PSOE to touch core elements of the existing constitutional settlement, such as the Amnesty Law – even if that puts Spain at odds with international human rights law. Indeed only last year two former PSOE prime ministers signed letters supporting Villa against attempts to prosecute him in Argentina – once again proving the degree to which the party has been incorporated into the dominant circuits of power and patronage since the 1980’s. As Manuel puts it: ‘PSOE will not do anything. It has had absolute majorities in the past and not acted… Ultimately, they are part of the regime of ’78 and will not touch the transition.’
‘Impunity,’ he continues, ‘is terrible because it leads to the forgetting of the true fathers of democracy; the people that fought and died in the streets to bring democracy to Spain. And so in the short term, I am quite pessimistic. But memory is like water: if you block it in one place, it will come out in another. One day, young people will ask why these things were not explained to them.’