ii) Concerning the 2nd anniversary of the "Law of Memory".

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On 27th December 2007 the Official Gazette (Boletín Oficial del Estado) Nº 310 published the text of what we called "an aberrant law". Two years later we can only confirm that initial description.

The central issue with respect to the "Law of Memory" is that it fails to legally recognise the victims of the Franco regime, both from the Civil War itself and from the period of the dictatorship. Nor does it recognise the Spanish victims of World War II. These include those who fought in the allied armies and those who were killed in the National Socialist camps such as the Spanish Republicans killed in Mauthausen.

The law enacted in 2007 implies the legality of the Franco regime and evidences an intention to defend this "legality" by placing victims and criminals (those responsible for the crimes under international law) on equal footing .

It does not attempt to address Resolutions 32(1) and 39(1) of the UN General Assembly (approved in 1946), by which the UN proclaimed that the Franco regime was "founded with the support of the Axis powers," and "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." This is the only definition of any legal validity which exists in international law and it is concealed in the Law of Memory by using terms of no legal value such as a declaration of "illegitimacy" -and not of the nullity of - the summary trials that took place during the Dictatorship.

It deliberately ignores Resolution 95(I) of the UN General Assembly and comparative European jurisprudence with reference to victims of the Axis Powers, (in other words, the victims of Fascism and National Socialism) as well as jurisprudence directly related to the legal treatment of victims of serious crimes against human rights.

Article 3 of the Law declares the "illegitimacy" of the Francoist tribunals, and thereby accepts their legality, and, as we said in our communiqué of 14th August 2007, this doctrinal position reverts to a debate which took place in 1930 when the reputable jurists and lawyers D. Felipe Sánchez Román and D. Luis Jiménez de Asúa, in a meeting of the College of Lawyers in Madrid, insisted that the Criminal Code of 1928 (known as "Primo de Rivera's Code") should be declared as null and void. This Code was approved by Royal Decree on 8th September 1928 following agreement of the Council of Ministers of the Dictatorship of Primo de Rivera.

This proposition of Román and Asúa was approved by a majority of the College of Lawyers of Madrid. The meeting expressly resolved that "The governing Criminal Code imposed by Royal Decree dated 8th September 1928 following agreement of the Council of Ministers of the Dictatorship, being the product of an illegitimate source, suffers from the profound flaw of illegality".

On that occasion, José Antonio Primo de Rivera, the founder of the Falange and son of the Dictator Miguel Primo de Rivera y Orbaneja (1923-1930), in a long article published on 15th April 1930 in the Madrid newspaper "La Nación" entitled: "The College of Lawyers: an abuse by the majority", explained in detail why the said Code might be illegitimate but that it was nevertheless, legal, a position which he maintained at the said Meeting of the College of Lawyers in Madrid.

One year later, on 15th April 1931, the Government of the II Republic, as one of its first legislative acts, promulgated a decree which appeared in the Gazette on 16th April of that year "Providing that the 1928 Criminal Code is hereby revoked and its provisions are without any force or effect as are those of the decree-laws of the Dictatorship which established or modified the definition of crimes or imposition of sanctions".

Using the same arguments made by Luis Jiménez de Asúa in 1930, when he stated that the 1928 Criminal Code was "illegitimate in origin (and therefore suffered from) the profound flaw of illegality", we consider that the Francoist laws should be properly analysed and we expressly reject the concept that they are "illegitimate" but "legal" given that this is manifestly reactionary and repugnant to any democratic theory under the rule of law.

It is a law which violates international laws, European jurisprudence and consequently it is one which violates the internal law of Spain itself. It is an "aberrant" law.

Thus, on the second anniversary of its enactment, we find ourselves obliged as a matter of principle, to state that the so-called "Law of Memory" is null and void and irretrievably illegal.

11 January 2010

Gregorio Dionis, President Equipo Nizkor
Ana Viéitez, President of AfarIIREP - (Association of Relatives and Friends of the 2nd Republic Victims of Reprisals by the Franco Regime)
Dolores Cabra, Secretary-General of AGE (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 - Archive of War and Exile)




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