Spanish Historical Memory in the European Union: “De Las Palabras a Los Hechos?”, from Words to Action?

Spanish historical memory in the European Union: “de las palabras a los hechos?”, from words to action?

MA Thesis in European Studies, Graduate School for Humanities Universiteit van Amsterdam

S.J.A Oostenbrink, 8 March 2018.

Supervisor Drs. Chiara de Cesari

Quotation in the title is taken from the letter to Vice President of the European Commission, Frans Timmermans, written in april 2016 by Spanish members of the European Parliament who form an (informal) working group of historical memory: Marina Albiol, Izaskun Bilbao, Josu Juaristi, Ernest Maragall, Josep María Terricabras, Ramón I Ballcels, Miguel Urban. Ernest Urtasun.

2 List of Contents

Preface

Introduction: “un hueso de mi padre”. 8

Chapter one. Spain within Europe’s 20th century. 1.1 Victims of Francoism turn to Europe: “Thank you for listening, because in Spain we are not heard.” 11 1.2 A shared European past of crimes against humanity. 13 1.3 From postwar Nuremberg to negotiated transitions, shifting priorities on human rights. 16

Chapter two. Spain within a European and global memory &human rights frame. 2.1 Social movement of historical memory in Spain within a global culture of memory and human rights. 24 2.2 Spain’s state of exception? 34

Chapter three. Spain’s impunity brought before the EU 3.1 European Commission’s politics of memory. 44 3.2 Jornadas de la memoria in the European Parliament: testimonies of repression. 50 3.3 Violation of Europe’s fundamental rights: “Es justicia que pido.” 53 3.4 EC’s procedural approach: “Declare inadmissible.” 57

Chapter four. 4.1 Spain’s impunity: (not) europe’s business? 65 4.2 Conclusion. “El clamor international”, Europe’s silence. 70

Appendices and bibliography. 73

3 Preface.

Patio of the old cemetery of San Lorenzo de El Escorial, march 2, 2018. Photo: posted on https://twitter.com/hashtag/EuropaPorLaMemoriaHist%C3%B3rica?src=hash

This photograph was taken on 2 march during a visit of a delegation of members of the European Parliament to San Lorenzo de El Escorial, a town situated at some 50 kms from Madrid in the mountains of the Sierra de Guadarrama. It’s aim: to show and raise attention to Spain’s enduring impunity and glorification of Francoism. This visit condensates everything with which the following chapters are concerned. A lucky twist of faith allows me to include it in the last minutes by means of this preface.

The trip included a visit to the monastery /monument/ mausoleum of Cuelgamuros, the largest fascist symbol in Europe. Better known as the Valle de los Caídos, the Valley of the Fallen, designed to outlast time as a “magnum monument destined to perpetuate the memory of the Fallen in the Glorious Crusade of Liberation”, to celebrate Franco’s victory and the peace that he had brought to Spain. The location for this monument was not chosen in vain. A few miles down the road stands the Monastery and Real Sitio de San Lorenzo de El Escorial, the enormous palace/monastery of Felipe II whose catholic fervor inspired Franco to create his catholic-nationalist dictatorial regime. In the enormous catacombs underneath lie buried Spain’s lineage of royal rulers. As an echo of these royal vaults, Franco was buried in the Valle de los Caídos as what seems to be his personal mausoleum. Since 1975, he has remained there, unaltered, on the altar, each day with fresh flowers on his tomb. The founder of the fascist party, Primo de Rivera, close to him, equally honoured.

This monument has remained unchanged since it was finished in 1958 after 18 years. No information is given on the human cost of this construction, built by thousands of forced labourers, as a means to reduce their sentences and to cleanse their souls of their sins; no

4 explanation of the civil war or the dictatorship; the fact that it is the largest massgrave in Spain that houses over 33.000 victims. Many of the anonymous victims were transported to the Valle, the last person in 1983, without the consent and knowledge of their familymembers. The monument is part of a ‘Imperial Route’ and receives hundreds of foreign visitors each day.

It is no relict of the past, it is maintained by the abby, a daily mass is held, there is a guesthouse on the terrain, the whole complex is maintained and financed as part of the national heritage of the state. It receives adherents of Franco who come to pay their respect to the dictator. Especially on 20 november. The members of the delegation got threatened during their visit, one of them with gestures of a hand, like a knife, along a throat .

Later on, the group visited the cementery of San Lorenzo where they were awaited by the victims who have remianed invisible for 80 years: portraits of the victims were held by familymembers. Underneath the small patio of the cementery lie the remains of at least 85 victims. Their names engraved in small silver plates on the walls, undermeath of which stands a small monument. The dates of their death : february, june 1939, 1940. These dates reveal the improbability of death in combat, but rather of Franco’s systematic use of terror, inversión de terror. Earlier that day, in the town hall of San Lorenzo de El Escorial, the group of MEP’s listened to the testimony of Carmen, daughter of Dionosio Fernández- Salinero, mayor of San Lorenzo Abajo, arrested, tortured and executed by the Franco regime. She held his portrait during her intervention. Sitting next to her was Miguel Ángel Capapé, who has been trying for years to exhume from the massgrave of the Valle the remains of Manuel and Antonio Ramiro Lapeña Altabas, grandfather and uncle of his wife, Purificación Lapeña. Purificacion’s mother had, for years, been bringing flowers to where she thought was buried the remains of her husband in the cementery of Calatayud. She did not know that he had been transported to the Valle, togehther with other victims of Calatayud. They had presented their cases to national court, the United Nations, to the European Court of Human Rights, and finally, through civil law they succeeded in obtaining, ad perpetuam memoriam, a positive court decision. However, they have been waiting more than a year now, their court order obstructed by the abbot who refuses to cooperate. They are denied what is the most fundamental of rights that a victim has: the right to truth, justice and reparation. Like the Lapeña family there are so many other familymembers attempting to remove their next of kin from that sinister place and give them a proper buriel. Among them is Silvia Navarro Pablo, familymember of José Antonio Marco, and Fausto Canales, son of Valerico Canales.

The visit left a deep impact on the visitors, among them the German MEP Martin Schirdewan, family of victims of the Hitler regime. They were taken aback by the fact that they, like so many others, had not known this reality in Spain. The Portuguese Ana Gomes expressed her incredibility at the fact that a visit by a EU delegation is planned to Cyprus that investigates the cases of the victims of (en)forced disappearance, paid with EU funding, while this is not possible in the case of Spain where there are over 2.000 massgraves, and over 114.000 victims?

In 2013, the victim’s organization Federación Estatal de Foros por la Memoria and the Foro por la Memoria de la Comunidad de Madrid turned to the European Parliament to request their help in their endeavour to remove the fascist symbols in Spain, amongst them the

5 Valle, upon the argument that these symbols are contrary to international justice and incompatible with the principles of democracy and the rule of law. They expressed their concern that the Valle de los Caídos is becoming a place of pelgrimage for fascists from abroad. They have not received an answer.

The Spanish state assumes the full responsibility for the exhumation, identification and repatriation of the victims of the Division Azul , the Spanish division that fought along Hitler in Russia. To ask the same state responsibility and dignity for the victims in the massgrave of the Valle, and in the rest of Spain would be too costly…

However much of a community of values of human rights and democracy the EU considers itself, it seems blind and deaf to Spain’s reality while the EC commissioner of human rights speaks his words of moral superiority that hollowly echoe within the EU’s walls.

Sarah, March 7, 2018.

6 “Porque nosotros estamos aquí, y nosotros somos la memoria de su futuro “

Extract from the inscription on the monument in the cemetery of San Lorenzo de El Escorial.

A selection of the names of victims buried in the massgrave on the cemetery of San Lorenzo de El Escorial copied from the inscription plates on the patio of the graveyard.

7 Introduction: “Un hueso de mi padre”. 8

In the year 2015, on the occasion of the International Day of the Disappeared, Spanish reporter and sociologist Emilio Silva Barrera wrote the following:

The fact that the daughter of a missing person, the result of the repression of a dictatorship, celebrates her 89th birthday on a plane that takes her thousands of kilometers in search of justice, says much about our society, our lack of a human rights culture, on how much we have grown used to the monstrous fact that 114.000 men and women, who all wanted to keep on living in a democratic country, still lay scattered in mass graves without any effort by our institutions to search for them, to investigate who they are, what happened to them, and to persecute those who were responsible of the largest criminal and terrorist crimes of our recent history.9

Ascención Mendieta and other victims had travelled to Argentina in the year 2013 to testify about her missing father, Timoteo Mendieta, and her lifelong struggle for his remains in order to give him a proper burial. After four years, in 2017, Ascención has finally succeeded to exhume his remains when a mass grave was opened in the cementery of Guadelajara, a small city near Madrid.10 This also allowed for the exhumation and identification of the other 50 victims that had been dumped in the mass grave. The case of Ascención is part of a large and enduring legacy of gross violations of human rights that have never been accounted for nor investigated since dictator Franco died in 1975 and Spain initiated its transition to democracy with the first general elections held in 1977. Since the year 2000, this legacy has become widely visible to the public. According to the victims of Francosim they have been punished twice: first during the 40 years of dictatorship which was followed by another 40 years of impunity and silence during democracy. The observations by Emilio Silva on society and a lack of human rights culture would also apply regarding the ‘community of values’, the European Union, to which Spain belongs as a long-time memberstate. The victims of the Spanish civil war (1936- 1939) and Franco’s dictatorship (1939-1977) repeatedly refer to the exceptionality of Spain within Europe as regards to the way that other memberstates come to terms with their past. According to these victims, and confirmed by various reports on Spain by human rights organizations, NGO’s, the UN and the Council of Europe, the Spanish state not only ignores these victims and their rights, but obstructs the investigation into these crimes, thereby violating the obligations that Spain has according to international justice and human rights. Given this

8 “One bone of my father” Ascención Mendieta expressed her wish to find the remains of her father, even if this would be only one bone: ‘ “Sigo con ilusión. Quiero dar un entierro digno a mi padre y que me entierren con él”’ , Público.es, may 5, 2017, http://www.publico.es/politica/ascension-mendieta-sigo-ilusion-quiero.html 9 “La impunidad es una materia dura y abundante en el subsuelo de nuestra democracia”, El Diario, august 29, 2015, http://www.eldiario.es/zonacritica/impunidad-materia-abundante-subsuelo- democracia_6_425267477.html. 10 http://www.eldiario.es/clm/Segundo-localizar-Timoteo-Mendieta-franquismo_0_641486584.html, http://www.eldiario.es/sociedad/victimas-franquismo-Argentina-fosas-Espana_0_648835693.html

8 situation, associations of victims have turned to Argentina and the European Union in their search for truth, justice and reparation and garanties of non- recurrence according to the principles of international justice. This thesis looks at the unresolved legacy of the past of Spain from within the context of the European Union by looking at some of the cases that have been presented to the EU institutions by the victims since the year 2012, when the case of Spain was debated during a meeting of the Committee on Petitions. It will assess the expectations, motives and arguments that accompany the cases in order to determine how the EU is perceived from the perspective of these victims, how Spain is considered as belonging to a shared European memory and history, and how these cases follow recent developments in Spain and international processes of transitional justice and memory, especially in Latin American. In turn, the responses to the Spanish requests and petitions will reveal EU’s position regarding the legacy of his shared European past and these violations of the most fundamental rights by a memberstate. Most importantly, it will examine how the EU contributes to resolve the obstacles that the victims experience in Spain. The framework for this study will be provided by a corpus of literature from various disciplines, ranging from historiography, sociology, law, memory studies and studies on European integration. Primary sources consist of the various reports, declarations, official documentation and press releases from NGO’s and international human rights organizations, the Council of Europe, the EU and civic asociations of victims as well as the petitions, formal questions and letters directed at the various European institutions by the victims’ organizations and familymembers. In addition, recent developments is drawn from media sources. Finally, conversations with familymembers, members of the European Parliament and representatives of civic assocaiations of victims have served as a primary and valuable source of information. A comparative perspective will be taken on in which Spain is placed within a European and global process that has seen the rise of a memory and human rights imperative since the end of the Cold War. One of the observations regarding the EU that can be drawn from analysing the Spanish cases is that, while it can be argued that Spain and the EU follow this memory and human rights course, a differential posture is taken on regarding cases of genocide and violations of human rights committed at home, that is, within the EU and Spain’s borders. Also, compared to the atrocities committed by Stalin, Hitler and Mussolini, Franco’s crimes has largely remained at the margins of a European collective memory on the 20th century. Historian Helen Graham has written how “it is remarkable, even today, how few Western European or North American commentators understand the brutality beneath the burlesque of dictatorship today”. 11 This study aims to contribute to shed some light on Spain’s particularities ánd similarities with the rest of the continent regarding its dictatorial past which has left a haunting legacy that pervades all of today’s society.

11 Helen Graham and Alejandro Quiroga, “After the fear was over? What came after Dictatorships in Spain, Greece, and Portugal”, in The Oxford Handbook of Postwar European History, ed. Dan Stoone, (Oxford University Press: 2012), 5, 10.1093/oxfordhb/9780199560981.013.0025.

Chapter 1. Spain within Europe’s 20th century.

10 1.1 Victims of Francoism turn to Europe: “Thank you for listening, because in Spain we are not heard.” 12

I want them to look for my father, to tell me what they did to him and how they murdered him. It’s all declarations, papers and corridor -meetings and in the end you are left with nothing.13

These statements were expressed by victims of the Franco dictatorship, their family members and representatives in the European Parliament. On different occasions they visited Brussels to give their personal accounts of their experiences under the brutality of Franco’s regime and how it affected various generations: victims who had been detained and tortured during the final years of the dictatorship, grandchildren and children of victims who had disappeared in 1936 and that endured life-long stigmatisation, exlusion and repression after the civil war had ended, mothers of missing children, taken away at birth. Over the past decade, the institutional bodies of the European Union have been confronted with a pending legacy of a civil war (1936- 1939) and brutal dictatorial regime on the Spanish peninsula which had lasted for almost 40 years (1939- 1975). Victims and their familymembers, civic movements, lawyers who represent these victims as well as Spanish members of the European Parliament have presented various initiatives, demands, questions and petitions which, although they vary according to its specific claims and circumstances, share the same motives, arguments and objectives.14 Argentinean lawyer Carlos Slepoy summarized their requests as follows:

We want to request the European Commission and the European Parliament to demand the Spanish government to remove any obstacles in order to identify the crimes, to recover and identify the deaths, to end the glorification of the dictatorship, of the monuments that commemorate Francoism, of the churches that mention José Antonio Primo de Rivera and Franco. A disgrace that would be unthinkable in any other European country.15

These initiatives respond to developments in Spain concerning the various ways that social actors and family members of victims of the Franco regime have been addressing this

12 “Gracias por escuchar porque en España no nos escuchan.” Words expressed by Noelia Camacho during the meeting held on 6 November 2012 in the European Parliament of the Committee on Petitions on the case of Petition 1347/2011, of Anselma Guillermina Gómez on the right to access information regarding the remains and the execution of her father, Anselmo Guillermina Gómez, during the Spanish civil war, https://www.youtube.com/watch?v=Yx2OidTgwNc. 13 Words by Remedios Gómez, daughter of a missing father, in the European Parliament on March 5, 2014. Plataforma Comisión por la Verdad, https://comisionverdadfranquismo.com/tag/bruselas/. 14 For a list of the petitions, see appendix. 15 “La víctimas del franquismo reclaman a la UE que exija de ‘forma contundente’ a España que ‘se haga justicia’, si no quiere ser ‘cómplice de la impunidad’”, Izquierda Unida en el Parlamento Europeo, March 3, 2015, http://iueuropa.org/2015/03/03/las-victimas-del-franquismo-reclaman-a-la-ue-que-exija-de-forma- contundente-a-espana-que-se-haga-justicia-si-no-quiere-ser-complice-de-la-impunidad/.

11 unresolved legacy on local, regional, national and international level and which has become a persistent reality in Spain since the year 2000:

Streets, monuments, symbols, rituals, victims, all this and more remains in Spain today as a direct legacy of Franco, four decades after the dictator’s death- just as the legacy is present too in numerous political figures of the dictatorship still active in politics or public life today and who have never relinquished their authoritarian convictions.16

Family members and members of the European Parliament have asserted how they would rather have seen their cases resolved on Spanish soil.17 However, the impediments with which judicial, executive and legislative authorities in Spain have responded to the manifold initiatives from civic society followed by political groups, served as their main motive to seek other means. These cases concern cases of violations of human rights that cover a large period of time: from the start of the military rebellion that led to the civil war in 1936 up to the period of the last years of the dictatorship in the 1970’s. Spain offers no exception with regards to the massive amount of violence that took place on the European continent during the first half of the 20th century. In 2014, the Special Rapporteur on the promotion of truth, justice, reparation and guaranties of non- recurrence of the United Nations, Pablo de Greiff, issued a report upon his visit to Spain to assess the measures that Spain has taken to cope with the legacy of the civil war and dictatorship:

The Spanish Civil War and the 40 years that followed left a collossal aftermath in terms of victims of serious human rights and humanitarian law violations, including executions, torture, arbitrary detentions, disappearances, forced labour for prisoners and exile.18

Indeed, this shared experience of human rights violations serves as a legitimating factor for the petitioners in seeking EU’s compromise. The following sections will show how the course of events in Spain can’t be isolated from the social, and geopolitical events on the European continent during the 20th century. These processes firmly shaped the victory of Franco, the consolidation of the dictatorship after 1939, the longevity of this regime and the lack of any mechanisms of accountability during the transition to democracy.

16 Julián Casanova, “Disremembering Francoism: What is at Stake in Spain’s Memory Wars?”, in Interrogating Francosim. History and Dictatorship in Twentieth- Century Spain. Ed. Helen Graham. (London, Bloomsbury: 2016), 205. 17 The lawyer Carlos Slepoy expressed how “it is a disgrace that we have had to come here”. Press conference, European Paliament, March 4, 2015, http://www.ceaqua.org/video-de-la-rueda-de-prensa-de-ceaqua-en-el- parlamento- europeo/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+Ceaqua+%28CeAQUA%29 18 United Nations General Assembly, Human Rights Council, Report of the Special Rapporteur on the promotion of truth, justice, reparation and guaranties of non- recurrence of the United Nations, Pablo de Greiff. Mission to Spain, July 22, 2014, http://ap.ohchr.org/documents/dpage_s.aspx?si=A/HRC/27/56/Add.1.

12 1.2 A shared European past of crimes against humanity.

The petitioners who have turned to the EU point out how Spain is intimately linked to a shared European experience of 20th century totalitarianism. At the same time, they distinguish Spain from other European states and the EU regarding the way that it reckons with this past of massive human rights violations and genocide.

Like the nazis, Francoism committed crimes against humanity; persecuted and assessinated in indiscriminate way hundreds of thousands of persons […] like them, it turned thousands of prisoners of the concentration camps from the postwar in workers of enforced labor; like them, expropriated and seized the belongings of its enemies; tortured and submitted to all sort of humiliations those that were considered to be their political enemies and their families.19

The case of the victims of Francoism constitutes a major disgrace for Spanish democracy. Europe condemned Nazism and fascism, condemned its crimes and persecuted its authors. But above all, rehabilitated its victims, who today receive the recognition they deserve. We can’t imagine how the world would look like if Germany, Italy and France had forgotten the victims of Nazism and fascism and would not have recognized their rights. Countries like Argentina, Chili, Brazil and many others have been able to offer truth, justice and reparation to its own victims. However, the Spanish victims continue to be invisible and without rights. Many of them have passed away.20

Historical research confirms that the “colossal aftermath” which the civil war and the dictatorship has left is the result of the existence of a premeditated plan of repression and politics of revenge set out from the start by a part of the army that had planned a conspiracy against the democratically elected government of the Second Republic. This was carried out on 17 July, 1936 with the active support of part of the army, the catholic church, landowners and local authorities and other sectors of society that had seen their properties and interests compromised by the reforms of the government.21 The violent solution to the social, political and cultural changes and the democratic reforms that took place after the First World War were no different than those in the rest of Europe. Franco did not differ from Hitler and Mussolini in its purpose: to stop and control these social, political and

19 Plataforma Comisión de la Verdad, Petition nr. 0672/2014 by Jorge Gordon Nuevo on behalf of Platforma por la Comisión de la Verdad (Platform for a Truth Committee) on the victims of the Franco regime, https://petiport.secure.europarl.europa.eu/petitions/es/petition/content/0672%252F2014/html/Petition-No- 0672%252F2014-by-Jorge-Gordon-Nuevo-%2528Spanish%2529-on-behalf-of-Plataforma-por-una- Comisi%25C3%25B3n-de-la-Verdad-%2528Platform-for-a-Truth-Committee%2529-on-the-victims-of-the- Franco-regime. 20 Jordi Gordon, presentation given on april 7, 2016 in Guernica, Spain. Document provided by Jordi Gordon. 21 Julián Casanova, “La paz de Franco”, in Morir, Matar, Sobrevivir. La violencia en la dictadura de Franco, ed.Julián Casanova, (Barcelona:Crítica, 2002), 3-17.

13 cultural changes. The difference is that Franco installed a repressive regime after his victory of the civil war.22 While aimed at restoring the social, economic and religious hierarchy, to define francoism as a traditional dictatorship would be an inadequate definition.23 Influenced by facsist ideology, racial theories and Jewish-Masonic-Bolshevik conspiracies that circulated through Europe, it incorporated fascism with the defence of Catholism, rejected the parliamentary democracy and believed that part of the nation was contaminated and needed to be “purged”. This did not only refer to political ideas but extended to the minds and bodies of the “anti-españoles”.24 Republicans were considered an inferior race that had “contaminated” Spain and this served to legitimise their extermination. The violence was immediate and disproportionate and directed at all objectives and everyone in society who represented the ideas of the Republic. 25. Among the victims were professors and teachers of universities and primary schools, peasants and laborers, socialists, republicans or members of communist parties, city counsellors, mayors, as well as the families of those persons: women and children, and people who were persecuted for their sexual orientation. It was a genocide as was originally drafted by Raphael Lemkin, as Francisco Moreno Gómez argues in Los desaparecidos de Franco.26 Head of psychiatric services, commander Antonio Vallejo- Nágera experimented on republican women to find a ‘marxist, red gene’ that would make them prove them unfit to bring up their children. Thousands of children were taken from their mothers and put into catholic orphanages. This became a practise after the war that would continue well into democracy.27 Women were object of all types of repression and humilliations: publicly stigmatisation, rape, or forced to drink castor oil as a purgative, and to march through the streets with their heads shaved as the laxative did its work.28 The fascist intervention of the Nazis and the Italians, overtly defying the international Pact of Non-Intervention without any sanctions, proved decisive for Franco’s victory in 1939. The collabaration consisted in the provision of military equipment and troops. Italian and

22 Julián Casanova, Europa contra Europa, 1914- 1945, (Barcelona: Crítica, 2011). Also explained in Helen Graham, Breve historia de la guerra civil, trans.Carmen Martínez-Gimeno, (Barcelona: Espasa Libros, 2013), 12- 13. 23 Casanova, “La paz de Franco”, 10-11. Graham, Breve historia de la guerra civil, 118-119. 24 Paul Preston, El Holocausto español.Odio y exterminio en la Guerra Civil y después, (Barcelona: Debolsillo, 2013), 29-93. 25 The distinction in the violence during the civil war in the different zones must be mentioned. These differed both in number and in nature. Whereas the violence and repression by members of diferent fractions took place without the consent of the republican government and was carried out in an uncontrolled way, Franco’s troops carried out a systematic, institutional repression instigated through public discourses and speeches by generals that had led the conspiracy: Mola, Sanjurjo, Franco and Queipo de Llano called upon to act mercilessy towards the enemy: ‘matar, matar, matar’. In these zones, the violence tripled with respect to the republican zones. The high number of victims and mass graves in regions like Castilla, León, Navarra and Galicia and Andalucía where there had been no war, is indicative of this institutional violence. This has been analysed in Paul Preston’s El Holocausto español.Odio y exterminio en la Guerra Civil y después. The repression in Andalucía, and other regions, has been extensively investigated by local research. 26 Francisco Moreno Gómez, Los desaparecidos de Franco. Un estudio factual y teórico en el contexto de los crímenes internacionales y las comisiones de la verdad. (Madrid: Editorial Alpuerto, 2016), 263- 289. 27 Preston, El holocausto español, 663- 666. It is estimated that up to the year 1954, over 30.396 children were taken from their mothers and put into orphanages or adopted by families adherent to the Franco regime. Paloma Aguilar, “Amnesty and Reparations Without Truth or Justice in Spain”, in Transitional Justice and Memory in Europe (1945- 2013), ed. Nico Wouters, (Cambridge: Intersentia, 2014),236-237. 28 The life of Maria Martin testifies of this respression. She testified in the so-called Garzón trial: https://elpais.com/diario/2008/11/23/espana/1227394813_850215.html.

14 German air forces attacked and gunned down from the air and the sea thousands of civilians along the coast of Malaga towards Almería who had fled the invasion of Franco’s troops in 1937 as well as bombarded hundreds of towns and cities, with Guernica as the most internationally known example. The Gestapo was stationed in Spain and actively exchanged services and information with Franco’s secret service and and arrested thousands of republicans in France who had fled Spain. With Franco’s consent, 10.000 prisoners were deported to the extermination camps of the Nazis, others were extradited back to Spain and arrested.29 Also, some 47.000 Spaniards fought alongside the Nazi Wehrmacht at the Russian front.30 On the Republican side, volunteers from over the world participated as part of the International Brigade, convinced that this was the first manifestation of fascism that threated the whole of Europe. Although the Republican government managed to buy military equipment from the Soviet- Union and Mexico, the pact of Non-Intervention seriously restrained the possibilities with which the Republican government could withstand the dominant force of the Axis powers. The magnitude of the number of victims that the civil war left and the repression that continued by the victorious Franco dictatorship extended to “executions, concentration camps, torture, slave labour, exile, disappearances, humiliations, castor oil, hunger that was deployed as an instrument, exclusion from labour, black lists, theft and disappearance of children, ideological repression, luting and confiscation of goods and property”.31 During the civil war around 300.000 men were killed in the war front, 200.000 persons, men and women, outside this front. At the end of the year 1940, Franco’s troops had killed 150.000 persons and around 363.000 persons were in prison, concentration camps or conducting forced labour.32 Half a million refugees had fled to France of which 200.000 returned and continued in the prisons of the francoist dictatorship.33 Between 1939 and 1945 around 200.000 people starved to death as a result of Franco’s autarkic policy.34 After Franco’s victory in 1939, the repression and massive extrajudicial killings became an institutionalized violence. A state of war was upheld until 1948, as part of a culture of vengeance and political violence that continued at least until 1959. The elimination of the ‘anti –españoles’ continued in order to extend a state of fear among the population that was directed at all who opposed, or who had not openly supported the ‘Crusade’.35 Furthermore, the civil war had left Spain with a massive cultural and intellectual brain-drain, with the republican and intellectual elite in exile or killed. They would be replaced by adherents of the Franco regime, like all the purges that were carried out in all sectors of society.

29 Julián Casanova, Europa contra Europa, (Barcelona: Crítica, 2011). On the prisoners who were deported, about 4.816 perished in Mauthausen- Gusen. http://deportados.es/hechos-espanoles-deportados. 30 Julián Casanova, “La dictadura que salió de la guerra”, in 40 años con Franco, ed.Julián Casanova (Barcelona: Crítica, 2015), 70-71. 31 Francisco Moreno Gomez, Los desaparecidos de Franco. Un estudio factual y teórico en el contexto de los crímenes internacionales y las comisiones de la verdad. (Madrid:Al Puerto,2016), 53. 32 Casanova, La dictadura que salió de la guerra, 63. 33 Casanova, “La paz de Franco”,8. 34Helen Graham and Alejandro Quiroga, “After the fear was over? What came after Dictatorships in Spain, Greece, and Portugal”, in The Oxford Handbook of Postwar European History, ed. Dan Stoone, (Oxford University Press: 2012), 5, 10.1093/oxfordhb/9780199560981.013.0025. 35 Casanova, “La paz de Franco”, 8.

15 1.3 From postwar Nuremberg to negotiated transitions. Shifting priorities on human rights.

With Mussolini and Hitler dead, it was of little importance for the winning democratic powers of the Second World War, that, overthere in the south of Europe, in a second- rate country that did not mean a thing in foreign politics in those years, a dictator perpetuated his power spreading terror and violating the most basic norms of “international law”. 36

The fascist answer of Francisco Franco had not been an exception within the European context of the turbulent social changes and crises during the interwar years. Europe’s civil war, the Second World War that followed the Spanish Civil War, resulted in the creation of new international legal categories to classify and judge the massive atrocities of Nazi crimes that had taken place.37 The repression by Franco’s regime constitute a multifold of categories of crimes against humanity within this legal frame.38 However, after Nazi Germany and fascist Italy had been defeated, the republicans, thousands of whom had actively engaged in the French resistence and were the among the first troops to enter Paris, saw how the liberation stopped at the Pyrenean border. The consolidation of Franco’s dictatorship after 1945, who “went on forging his own Volksgemeinschaft”, seemed to constitute an anachronism within the liberated, democratic postwar European order. Franco’s longevity can’t be explained without taking into consideration the regime’s capability to adapt to a changed international context and the geopolitical context of the Cold War. 39 The posture of the European Community towards Spain reflected the shifting ideas on Europe’s integration process since the end of the war.40 These factors not only facilitated Franco’s consolidation but also shaped the way that the past was reckoned with during the Spanish transition to democracy at the end of the 1970’s and the integration of Spain into the EEC in 1986. It was a “transition stopped short”, that left the past hanging as an unresolved issue.41 The Second World War had meant a fundamental turning point for Europe. The first steps towards the integration of the western European states after the war were motivated by the determination to never let this tragedy happen again and to financially reconstruct Europe. The growth in importance of human rights was one of the clearest reactions to the war and the condemnation of the Franco regime by the international community in 1946 can

36 “Muertos Hitler y Mussolini, a las potencias democráticas vencedores en la segunda guerra mundial, les importó muy poco que allá por el sur de Europa, en un país de segunda fila que nada contaba en la política exterior de aquellos años, se perpetuara un dictador sembrando el terror e incumpliendo las normas más elementales del llamado “derecho internacional”.” Casanova, “La paz de Franco”, 8. 37 Casanova, Europa contra Europa, 172. 38 Pedro López López, “Crímenes del franquismo, derecho y justicia transicional”, Crónica Popular. Los crímenes del franquismo, Suplemento especial nr. 5, 2014, 20-29. 39 Graham, Breve historia de la guerra civil, 170-182. 40 Helen Graham, “Writing Spain’s Twentieth Century in(to) Europe”, in Interrogating Francoism. History and Dictatorship in Twentieth- Century Spain, ed. Helen Graham, (London: Bloomsbury, 2016), 5. 41 Graham, “Writing Spain’s Twentieth Century in(to) Europe”,17. Also: Javier Chinchón Álvarez in Punto de miro- franquismo, caso abierto, HispanTV, December 10, 2013, https://www.youtube.com/watch?v=0Gr- lqrYkAM.

16 be seen within this international post-war context. 42 After the General Assembly of the United Nations had condemned the Franco regime and excluded it from joining the UN, western ambassadors were withdrawn from Spain resulting in its international isolation.43 In turn, the Congress of Europe that was held in 1948 clearly moved towards a federal model of a future integration of Europe based upon the rule of law and human rights. The Congress agreed upon the first pan- European political organization after WWII, the Council of Europe. To provide effective means to implement and upheld the International Convention of Human Rights that had been adopted by the United Nations in 1948, the Council agreed upon the European Convention of Human Rights and a European Court of Human Rights. These steps coincided with the Nuremberg trials to prosecute the perpetrators of the Nazi regime. The new legal norms that were set up for this purpose, now considered as a milestone for the global human rights norms. 44 Nonetheless, this pan-European compromise towards human rights and Europe’s political integration, which coincided with national processes of accountability, was short- lasted. With the start of the Cold War, binding economic agreements and a gradual integration of the European states would replace the progressive political and federal plans. The European Community moved towards a more functionalist and technocratic integration which was consolidated with the Treaty of Rome in 1957 and the creation of the European Economic Community. The international geopolitical climate and the anti-communist drhetoric also influenced how the functioning of democracies was perceived in Western Europe. Although propagated as the model to follow given counter models of the recent totalitarian experience ánd the communist regimes in Eastern Europe, these parliamentary democracies were highly risk-averting, conservative processes steered by a democratic elite towards consensus, moderation and containment without any real civic participation. 45 Within this context, Spain soon became rehabilitated as an anti- communist ally of geostrategical importance for the United States and Western Europe. The international veto on Spain was lifted and in 1953 Franco’s regime received the Vatican’s recognition, integrated into the United Nations in 1955. Meanwhile, Spain’s ability to adapt when it faced

42 Michael Wintle, “Introduction. Ideal, Identity and War: the Idea of Europe, 1939- 1970”, in European Identity and the Second World War, eds. Michael Wintle and Menno Spiering, (Basingstoke: Palgrave Macmillan, 2011), 7.

43 Extract form the statement on Spain: “2. The General Assembly recalls that at the Potsdam Conference the Governments of the United Kingdom, the United States of America and the Soviet Union stated that they would not support a request for admission to the United Nations of the present Spanish Government "which, having been founded with the support of the Axis powers, in view of its origins, its nature, its record and its close association with the aggressor States, does not possess the necessary qualifications to justify its admission.[…]3. The General Assembly, in endorsing these two statements, recommends that the Members of the United Nations should act in accordance with the letter and the spirit of these statements on the conduct of their future relations with Spain.” UN General Assembly Resolution 32 (I) on the Spanish question. February 9, 1946, http://www.derechos.org/nizkor/espana/doc/spa9feb46.html.

44 During these trials, Francisco Boix, a catalan prisoner of Mauthausen, testified as a witness. He had managed to smuggle 20.000 negatives from the camp. Francisco Boix- un fotógrafo en el infierno, Canal+, YouTube, uploaded October 10, 2015, https://www.youtube.com/watch?v=LicWX2QZIG4. 45 Martin Conway & Volker Depkat, “Towards a European History of the Discourse of Democracy: Discussing Democracy in Western Europe, 1945- 1960”, in Europeanization in the Twentieth Century. Historical Approaches, eds. Martin Conway and Kiran Klaus Patel, (New York: Basingstoke, 2010), 140-141. Also Graham, “After the fear was over?”, 16-18.

17 the urging consequences of its international isolation and Europe’s growing economic power, resulted in a technocratic move in 1957 towards economic liberalization. It was allowed to become a member of the Organisation for European Economic Cooperation (OEEC) in 1955, the IMF and the World Bank in 1958 followed by the NATO in 1960. Historian Damian González argues how “European countries maintained fluid economic relations with Spain, benefiting from the bilateral military agreements between Spain and the U.S without any apparent difficulties.”46 The economic liberalization did not mean any political reform. Furthermore, Europe’s integration process was met with hostility and contempt by Franco’s regime, like Minister of Information and Tourism Manuel Fraga and Carrero Blanco who considered the Common Market as “a stronghold of Masons, liberals and Christian democrats […] through which Communism enters”. 47 With a purely instrumental goal and motivated by the support of France and Germany Spain as well as the absence in the Treaty of Rome of any clear criteria for accession, Spain applied in 1962 to negotiate an association agreement with the EEC. 48De Gaulle had praised “the attitude of Franco and the Spanish regime as a factor for stability and social peace in the world and especially Europe” while German Chancellor Adenauer alluded to Spain’s “exemplarity […] which would again integrate in the Christian unity of Europe”. 49 In analysing German’s relation with Spain, Walther L. Bernecker argues how within the conservative context of the 1950’s and 1960’s Spain’s anti- communist national- catholicism appealed to a considerable number of conservative nationalists across Europe.50 Indeed, the idea of a Christian European civilization as opposed to atheist communism, was a constituted Franco’s national foundational myth. 51 Franco established international contacts with this ultra- conservative, catholic and anti-communist European network. Without Franco’s catholicism, Julián Casanova asserts, it would have been much more improbable to

46 Damian A. González, “Actores y factores internacionales en el cambio político español”, in Claves internacionales en la transición española. Eds. Óscar José Martín García and Manuel Ortiz Heras (Madrid: Catarata, 2010): 39- 64. 47 Enrique Moradiellos, "Franco's Spain and the European Integration Process (1945-1975)," Bulletin for Spanish and Portuguese Historical Studies, 41, nr 1, Article 4 (2016): 70, 72, https://doi.org/10.26431/0739-182X.1225, Available at: https://digitalcommons.asphs.net/bsphs/vol41/iss1/4. Charles T. Powell, "España En Europa: De 1945 a Nuestros Días." Ayer, no. 49 (2003): 92- 93. http://www.jstor.org.proxy.uba.uva.nl:2048/stable/41325189. 48 Charles T. Powell, The Long Road to Europe: Spain and the European Community, 1957- 1986, Elcano Royal Institute, (June 11, 2015): 6. Daniel C.Thomas, “Constitutionalization through enlargement: the contested origins of the EU’s democratic identity”, Journal of European Public policy 13, no.8 (December, 2006): 1201. http://dx.doi.org.proxy.uba.uva.nl:2048/10.1080/13501760600999524. Victor Fernandez Soriano, “Las Comunidades Europeas frente al franquismo: problemas politicos suscitados por la solicitud española de negociaciones de 1962”, Cuadernos de Historia Contemporanea 32 (2010): 168. 49 Walther L. Bernecker, “Alemania ante el cambio de régimen en España”, in Claves internacionales en la transición española. Eds. Óscar José Martín García y Manuel Ortiz Heras (Madrid: Catarata, 2010), 176-177. Powell, The Long Road to Europe: Spain and the European Community, 1957- 1986, 7. 50 Walther L. Bernecker, “Alemania ante el cambio de régimen en España”, 174- 198. 51 Rosario Forlenza, “The politics of the Abendland: Christian Democracy and the idea of Europe after the Second World War”, Contemporary European History, 26 (2017): 261-286, doi:10.1017/S0960777317000091. After 1945, Franco strongly propagated Spain’s National Catholicism to legitimize his regime and distance him from his fascist affiliations. Franco’s national myths echoed in 2006 in the European Parliament during the July 4 on the need to condemn the Franco regime: MEP Maciej Marian Giertych (Poland) fiercely defended Franco’s catholicism and his defence against communism: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+CRE+20060704+ITEM- 004+DOC+XML+V0//EN

18 uphold his reign.52 The anti communist rhetoric of the the Cold War rhetoric served both ways: for western Europe it elided the awkward reality that Franco, as well as Greece and Portugal, had consolidated a dictatorship amidst a liberated western Europe and it confirmed Franco’s myths a communist plot with which he had legitimised the military uprising against the government of the 2nd Republic. Nevertheless, Franco’s dictatorship remained an awkward reality in western Europe:

[…] not only did they fail to fit the mythic grand narrative of a national resistance to fascism as generator of parliamentary democracy that proved so useful for nation- building in post-1945 Western Europe, but these three states replicated the structural violence and coercion of the Cold War enemy, which meant that they actively undermined the idea of western political superiority and civility.53

Spain’s request to the EEC provoked fundamental questions on the EC’s identity and values shortly after the start of the European Economic Community. Precisely when the Council of Ministers and the Commission of the EEC firmly steered into a technocratic Europe, it was obliged to reconsider exactly those first post-war foundations of human rights and democracy of the Council of Europe.54 The request stirred Europe’s own recent experiences of the second world war during which Franco, despite its official neutrality, had proved to a reliable fascist ally. The Parliamentary Assembly and the Council of Europe strongly rejected Spain’s accession on the basis of the absence of fundamental human rights and democracy.55 Rejecting purely, formalistic and economic criteria for integration, they agreed upon the criteria for states who wished to apply for accession: a democratic form of governance as well as the functioning of human rights would be required.56 Strongly voiced opposition within the EC was heard from the smaller Benelux countries and Italy. Within their national parliaments opposition came from both social-democrats, communists as well as cristiandemocrats and liberals. Many of these polititians, some of who were members of the Parliamentary Assembly, were strongly opposed. Amongst them figured politicians who had themselves been a victim of the German occupation and Nazi repression. Franco’s alignment with these nazi -and fascist regimes, as part of a shared european experience, were voiced as sounding arguments to reject Spain’s request. Also, Spain’s request was marked by the rise of a social movement in Spain that voiced their protest against Franco’s regime which started as a labor movement to demand better working conditions and which was covered by international media.Furthermore, the Spanish opposition in exile and the Spanish community in urban centres of western Europe who had fled Spain to escape poverty and repression at the end of the 1950’s, as well as other non-state actors like trade unions, combined with the critical assessments and reports by the Council of Europe up until the end

52 “Without this perfect mask provided by the Church, religion as a refuge for his tyranny and cruelty, Franco would have had much more difficulties in upholding his absolute power and few people today would dispute that behind that face there was no saint but a war criminal.” Casanova, “La paz de Franco, 10. 53 Graham, “Writing Spain’s Twentieth Century in(to) Europe), 4. 54 Thomas, “Constitutionalization through enlargement: the contested origins of the EU’s democratic identity”, 1206- 1207. 55 Soriano, “Las Comunidades Europeas frente al franquismo”, 173. 56 It was not untill the 1990’s that these criteria would be adopted.

19 of the dictatorship, seriously affected Spain’s request. Furthermore, an international negative public opinion grew as a result of the media attention on developments in Spain.57These combined pressures could not be ignored and influenced the decision by the Commission of the EEC to suspend the Spanish request until the year 1970 when it agreed on a preferential agreement on commercial trade. While Spain’s approach towards the EC allowed for a start of the monitoring of the political situation of Spain by the European Assembly and the Council of Europe, González argues how national interests were at least as relevant as , if not exceeding, political questions on the democratization of Spain.58 While the Council of Europe repeatedly condemned the repression and violence with which Franco responded to the labor- and student protests in the streets that demanded democracy in the 1970’s, the EEC refrained from taking any sanctions that would compromise the preferential agreement of 1970.59 Although part of the Franco- elite showed more willingness towards a process of liberalization, the repression and executions right up to the end of the regime did not reflect any inclination towards a political liberalization nor did the Franco regime depart from an instrumentalist approach to the EC.60 The international outrage on Franco’s repression and the oil crisis of 1973 contributed to further delegitimize the regime.61 Historian Borja de Riquer asserts that the question was not whether a democratic change would take place but rather whether this democracy would be founded upon a political rupture with the past.62 Within Spain, the fierce climate of the institutional violence by the state and dirty war practises in the Basque Country and left- wing terrorism by the ETA and GRAPO, as well as the presence of an army strongly in favour of Franco, accompanied and controlled this transition after Franco’s death and served to demobilize the social demands from the opposition.63 In Spain and outside, the politics of fear and containment as well as Western Europe’s conservative model of parliamentary democracy did in no minor way shape this process.64 Spain’s transition to

57 For example on the ‘Münich conspiracy’ and the strike of the Miners in Asturias. Powell, The Long Road to Europe: Spain and the European Community, 1957- 1986, 8. 58 Damián A. González, “Actores y factores internacionales en el cambio político español”, in Claves internacionales en la transicion española, ed. Óscar José Martín García and Manuel Ortiz Heras (Madrid: Catarata, 2010), 58-59. 59 Damián A. González, “Actores y factores internacionales en el cambio político español”, 58. Manuel Ortiz Heras, “La transición, ¿un asunto doméstico por excelencia?...pero exportable”, in Claves de la transition, 33. 60 Powell, “España en Europa: de 1945 a nuestros días”, 97. 61 In various European cities, protests arose on the execution of Julian Grimau in 1964 and student Salvador Puig Antich in 1974 by means of garrote, the five members of opposition in 1975 in Burgos and the police charges in Vitoria in 1976. Solidarity meetings and protest marches were organized during which members from the spanish opposition were invited, as was the case with Marcos Ana, released in 1961 after 23 years in prison. 62 Borja de Riquer, “La crisis de la dictadura”, in 40 años con Franco, 148. Unlike in Greece, Portugal and the occupied countries in Western Europe during WWII, Spain was the only country where its regime was not removed by force. 63 Between 1975 and 1983, there were over 2.663 victims of political violence. This violence was used as a political tool during the negotiations between left and right during the transition.Mariano Sánchez Soler, La Transicion sangrienta: una historia violenta del proceso democrático en España (1975- 1983) (Barcelona: Península, 2010), 353- 365. 64 Juan Carlos Monedero argues how unlikely a different outcome could be expected given the international circumstances in which the transition occurred. However, he argues, “It is not the question whether another generation would have done better”, but the lack of honesty of the actors: “It is not about blaming anybody of

20 democracy was a transition dominated by the francoist elite who hoped to curtail more radical reforms by opting for democratization without any economic or political price.65 Negotiations were held with the legalized socialdemocrats, the PSOE, and the communist PCE but from which the Republican party was excluded. Diplomatic negotiations strongly favoured the Spanish socialdemocrats, motivated by the fear of a repetition of events in Portugal in which the communist party had played a leading role in ending the Salazar dictatorship.66 In 1977, after Spain had held its first general elections, it applied for accession to the EC . It entered the Council of Europe in november 1977, before a constitution was adopted. During the large process of negotiations that followed that would take until 1985, questions of national economic and strategic concern by member states that feared that their position on the international market would be threatened by Spain, dominated over questions of accountability over the past. 67 However arduous the process of Spain’s application to the EC since 1962 had been, during which strong demands for democratization were heard, it is surprising how this process of democratization was believed to be established with procedural changes, which seemed more a matter of procedures than of substance, limited to a consensual mode of negotiation. Helen Graham argues how the integration into the EEC was regarded as the consolidation of democracy and at the same time as a way to avoid engaging in a difficult past.68 The EC did not demand a rupture with the past, nor for any form of ‘denazification’ or accountability that these same european states had known in the postwar order, however limited these might have been. Franco’s fascist origens and his close alliance with the Axis powers were left outside the EC’s agenda. During and after the transition, “the other dead, the many thousands of compatriots categorized as ‘red traitors’ who had been extrajudicially killed during the war and its institutionalized aftermath did not officilly exist […]”, continued to be ignored and forgotten, both by the right and left socialists and communists.69 These forgotten included the victims of political violence during the transition. Judges who had operated within a judicial order who had played a fundamental role in the repression, were neither removed nor investigated.70 Former ministers and judges who had signed death penalties up to Franco’s death became democrats and continued in power. Although neither in Portugal and Greece accountability processes took place, in Portugal many sectors of society were purged and in Greece former colonels were put on trial, albeit symbolically.71

being a coward. It is about blaming those who say they were heroes.” Juan Carlos Monedero, La Transición contada a nuestros padres. Nocturno de la democracia española, (Madrid: Catarata, 2013), 25. 65 In general, although there is no unanimity, the period of the transition is set between 20 november 1977 and – 30 december 1982 when the PSOE gained a majority after the general elections. 66 Manuel Ortiz Heras, “La Transición. ¿Un asunto doméstico?”, Claves internacionales en la transicion española, 26, 30-36. 67 What these priorities were can be reda in the following document: http://eur-lex.europa.eu/collection/eu- law/treaties/treaties-overview.html#new-2-16. 68 Graham, “After the fear was over?”, 17. 69Casanova, “Disremembering Francoism”, 205. 70 Paloma Aguilar, “Jueces, represión y justicia transicional en España, Chile y Argentina”, Revista Internacional de Sociología (RIS) 71, no 2 (may- august 2013): 286-292, DOI: 103989/ris.2011.11.14. 71 Alexandra Barahonda de Brito and Mario Sznajder, “The Politics of the Past: The Southern Cone and Southern Europe in Comparative Perspective” 15, no 3, (2010): 488- 489, https://doi- org.proxy.uba.uva.nl:2443/10.1080/13608746.2010.513607.

21 Within this international context of containment, diplomatic consensus, and fear, the international initiative in 1978 that did demand for justice and a rupture with the past had little chances to succeed. After the meeting that was held in Geneva in 1978, the Spanish members were detained and interrogated.72

72 “ El Tribunal Internacional contra el franquismo trató de frenar una transición basad en el olvido”, Diario El Público, December 2, 2013, http://www.publico.es/politica/tribunal-internacional-franquismo-trato- frenar.html.

22 Chapter 2. Spain in a global memory & human rights culture.

23 2.1 A Social movement of historical memory in Spain within a global culture of memory and human rights.

While democracy followed its heroic, negotiated, pacific course, people had been waiting 40 years for their father, their brother, their son, uncle, grandfather, assassinated in the war, the postwar, buried in ditches and abandoned for a democracy that called itself exemplary […] 73

The dead and wounded are here, documented with names and surnames: they constitute the real price of the democratic transition in Spain.74

The cases that have been brought to the EU reflect a process in Spain whereby familymembers, victims and other civil society agents have started to question the way that the transition and the amnesty law have silenced the victims of Franco’s repression and left them devoid of any truth, justice and reparation. On the one hand, this process can be placed within a shifted european and global frame in which human rights and accountability have replaced negotiated transitions and amnesty laws. Like other European cases, these “memory irruptions” relate to cases of unsresolved issues of transitional justice. 75 At the same time, Spain distinguishes itself from this global human rights culture by upholding the amnesty law to impede gross violations of human rights to be investigated. In analysing the Southern European transitions, Helen Graham argues how the construction of a democratic memory, understood as a “publicly circulating understanding of the past that encompasses in full the human stories of the cost of historical change” constitutes a fundamental part of a full participatory democracy.76 In Spain, this construction was absent during the elite- led transition in which civil society was excluded, while in Western Europe a conservative model of democracy kept this democratic memory at bay during decades of “frozen memories” as explained in the former chapter. In his analysis on Europe since 1945, historian Donald Judt argues how only recently Europe has started to shake off its postwar shadows on which Europe constructed its myths on the past. Decades of “frozen memories” are being unraveled that have questioned national narratives and dominant politics of memory.77 The questions on the past that started to be asked from the 1960’s in Germany and the rest of Western Europe can be set within a broader context of

73 “Mientras la democracia transitaba heroica, consensuada, pacífica, había gente que llevaba cuarenta años esperando a su padre, a su hermano, a su hijo, a su tio, a su abuelo, asesinados en la guerra, en la posguerra, enterrados en las cunetas de España y abdandonados por una democracia que se permitía llamarase ejemplar mientras caminaba por encima de más de cien mil dormidas estelas sin identificación, sin responso, sin reconocimiento.” Carlos Monedero, La transición contada a nuestros padres, 22. 74 “Los muertos y los heridos están aquí, documentados con nombres y apellidos: y constituyen el autético precio de la transición democrática en España.” Mariano Sánchez Soler, La transición sangriente, 365. 75 Nico Wouters, “Transitional Justice and memory developments in Europe”, in Transitional Justice and Memory in Europe (1945- 2013) ed.Nico Wouters (Cambridge: Intersentia, 2014), 410. 76 Graham, “After the fear was over?”, 17-18. 77 Tony Judt, Postwar. A history of Europe since 1945 (London:Pimlico, 2007), 10. And, Tony Judt, “The Past is Another Country: Myth and Memory in Postwar Europe”, in A Journal of Social and Political Theory, no.87, Reason, Theory and History (June 1996): 36-69, http://www.jstor.org/stable/41802044.

24 demands for more participatory forms of democracy.78 Generational shifts and civil society activism are crucial factors that explain these processes. 79 In France and Germany, generations who grew up after the war began to ask questions on the national narratives of anti-fascism on which postwar European states had kept away awkward realities of complicity and collaboration.80 Trials against former Nazi- perpetrators and collaborators, often brought about by victims and civil society organizations, served as catalysists in this process. The trial of Adolf Eichmann in Jerusalem and in Germany in the 1960’s, the Papon- and the Claus Barbie case in the 1990’s in France, which received an extensive media attention. Another catalyst for a critical self-reflection was the opening of the Stasi- archives in Germany.81 In Spain, the grandchildren and children of the victims of Francoism have started to question the ‘exemplarity’ of the transition that was propagated as a model to follow for the newly installed democracies in Latin America in the 1980’s:

Example, yes, but an example of impunity for major criminals, example of betrayal, silence, abandonment and contempt for the victims of the repression. A negotiated impunity that has laid the foundations of a political system of a controlled democracy, successor of the dictatorship, which respected the impunity of state agents.82

A social movement of historical memory that set off from the year 2000 that questioned the invisibilty of those who had upheld the legality and democratic principles of the Second Republic and who had paid for their lives or suffered repression, exclusion and stigmatization as a consequence. Also, this social memory questioned the invisibility of those students and labor movements that demanded democracy and had faced brutal police force, harsh repression and torture during the 1960’ and 1970’s, a period that, contrary to the national narrative of a peaceful process of transition, was marked by brutal violence.83 These questions arose when the remains of the victims reappeared with the opening of the massgraves, thousands of which lay scattered all over Spain and date back to 1936:84

78 Lecture Dr. Robin de Bruin, “ Europe and the call for democratisation in the Sixties: democratic deficit”, course Democracy in the European Union, April 18, 2017. 79 Wouters, “Transitional Justice and memory developments in Europe”, 396- 400. In fact, Naomi Roht- Arriaza asserts how “It is only the combines pressure of NGO’s transnational advocacy networks, and the long memories of survivors that have goaded states into creating existing mechanisms and have rendered them effective”. “The role of International Actors in National Accountbility Processes”, in The politics of memory:transitional justice in democratizing societies, eds by Alexandra Barahona de Brito, Carmen González-Enríquez and Paloma Aguilar (Oxford: Oxford University Press, 2001), 64. 80 Wouters, “Transitional Justice and memory developments in Europe”, 374. 81 Wouters, “Transitional Justice and memory developments in Europe”, 401- 412. Judt, Postwar, 814-818. 82 Ramón Sáez Valcárcel, “Justicia transicional y España ¿Se puede juzgar la historia?”, in Memoría histórica:¿Se puede juzgar la historia? (Madrid: Fundación Antonio Carretero, 2009), 86. 83 Juan Carlos Monedero: “Were it really the elites that brought democracy, or, rather, did it have anything to do with those people who decided to take to the streets?” La transición contada a nuestros padres, 18. 84 There is no oficial record of the number of massgraves and victims. It is estimated that there are at least 2.000 massgraves and 150.000 missing persons, according the site of the state: http://www.memoriahistorica.gob.es/es-es/mapafosas/Paginas/index.aspx.

25 I am the grandson of a desaparecido. My grandfather’s name was Emilio Silva Faba. He was shot death together with thirteen other persons and left in a mass grave, at the entrance of Priaranza del Bierzo. His last respects were a hole in the ground and a few spades of earth underneath which his remains rest up to today.85

This passage was written by Emilio Silva Barrera in a local newspaper in the year 2000. In it, he reflects on the process that led to the finding of the remains of his grandfather, who had been lying in a mass grave alongside a road at the entrance of the town of Priaranza del Bierzo together with twelve other victims after being assesinated in the middle of the night in october 1936 by Franco’s troops. 86 His experience in a community of a small rural town exemplifies the way that the past has remained present as a palpable reality, present both in the landscape, as a public secret of a crime, and in the (collective) memory of the inhabitants.87 Another salient aspect is how decisive these memories are as a source of valuable information for historians and anthropologists to retrace the local history and to help locate the mass graves and identify the missing persons.88 Also, the persistence of fear which Silva encountered among the older generations, especially in these rural towns, has shown how successful Franco’s repression had been engrained over decades, and why it had been the generation of grandchildren, grown up under democracy and not burdened by this fear, who started to ask questions.89 Facilitated by a wide national and international media coverage, the exhumations had a powerful impact in Spain and abroad and led to a social movement of historical memory with a strong local base of associations of victims and familymembers of victims of the civil war and the repression under the dictatorship. With this movement, the presence in public space of other vestiges that had remained unaltered since the end of the dictatorship have become questioned: names of streets, squares and towns named after Franco, the founder of the fascist party Primo de Rivera and other generals, army officials and ministers

85. “Soy nieto de un desaparecido. Mi abuelo se llamaba Emilio Silva Faba. Lo mataron a tiros junto a otras trece personas y lo abandonaron en una cuneta, a la entrada de Priaranza del Bierzo. Todos sus honras fúnebres consistieron en un agujero y unas palas de tierra bajo las que todavía hoy están sus restos.” Emilio Silva, “Los trece de Priaranza. Mi abuelo también fue un desaparecido.”, La Crónica de León’, october 8, 2010, http://www.derechos.net/esp/algomas/silva.html. 86 The exhumation and identification of Emilio Silva’s grandfather in the year 2000 was the first in Spain conducted according to cientific methods. However, other exhumations had preceded these recent exhumations. For a short period after the (municipal) elections in 1977, familymembers and inhabitants of small communities in various regions of Spain had taken initiatives to exhume the remains of their loved ones. These semi-clandestine, but tolerated initiatives never received a wide media coverage and abruptly ended with the failed coup in february 1981 by general Tejero. The following unique footage provides two powerfull examples in small rural towns, La Barranca and Lodosa, in northern Spain: http://www.youtube.com/watch?v=gW7wx3vTm4E&feature=related. And https://www.youtube.com/watch?v=Iisnbqj5SEQ&enablejsapi=1&playerapiid=ytplayer&version=3&rel=0&sho winfo=0&modestbranding=1&autohide=1. 87 Francisco Ferrándiz: El pasado bajo tierra, Exhumaciones contemporáneas de la Guerra Civil (Barcelona: Anthropos Editotial, 2014). http://www.publico.es/politica/apertura-fosas-del-franquismo- desestabilizado.html 88 Recordings of testimonies are a principal element of (some of the ) regional politics of memory. This is the case in Andalucía, Catalonia, Navarra, Aragón, the Basque Country and Madrid. 89 You had to be silent and hold your tongue (“callar y tragar”), as the familymembers and victims account in the documentary Dejadme llorar!El genocidio olvidado, directed by Jordi Gordon. http://www.dejadmellorar.com/en/. Also: Ferrándiz, El pasado bajo tierra, 107- 143.

26 of the Franco regime, as well as the Francoist symbols and monuments that honor the Caídos por Dios y la Patria. One of these includes the Valley of the Fallen: the religious funerary complex and mausoleum of Franco and Primo de Rivera, just outside Madrid, which hides the remains of 33. 847 victims of the Civil War.90 Other related questions concerned the property that had been confiscated and never returned; the title of honory citizens of cities and towns assigned to Franco, his generals and ministers; the thousands of Spanish victims of the Holocaust who were deported to the Nazi camps; the robo de niños; the conditions and cases of abuse in the orphanages; enforced labour; the legitimacy of the monarchy who had been assigned by Franco; the implication of the church with Francoism and the amnesty law approved in October 1977. This law had been acclaimed as the result of a long-time demand by the opposition in Spain and abroad to release the political prisoners but it included an article that extended the amnesty to all criminal offences by state authorities.91 Social anthropologist Francisco Ferrándiz asserts how the massgraves and personal testimonies of victims for the first time publicly exposed “the cartography of terror” of a wide-spread repression and violence against civilians throughout the whole country.92 The shocking images of the remains of the victims revealed signs of torture and summary executions: bullet shells were found alongside the graves, skulls showed bullet holes, hands and feet were tied with metal strings, autopsy on the remains revealed signs of torture. Some mass graves contained thousands of victims.93 They exposed what (local) historical research had been investigating since the 1980’s: a systematic use of violence and a repression which resulted deeply traumatic. The outcomes of this research however had never become known to a wide public.94 This exposure seriously compromised the foundational narrative on which today’s democracy had been constructed. 95 If this transition had been so perfect, how could the unresolved legacy of the violent past be explained?96

90 “why is Blas Infante still buried in a mass grave while his murderer remains in one of the most venerated temples of Seville?”: http://www.publico.es/sociedad/blas-infante-queipo-llano-desenterrar-victima- verdugo.html. 91 Although there is debate about whether the law’s objective served to obstruct any legal investigation, since 2012 it has become considered as a modelo de olvido de pasado absoluto. Chinchon 2012, 32. Francisco Moreno Gómez, Los desaparecidos de Franco, 236- 237. 92 Francisco Ferrándiz, http://www.publico.es/politica/apertura-fosas-del-franquismo-desestabilizado.html. 93 Like the cemeteries in Cordoba, Málaga, Ronda, Seville, Granada. The Valle de los Caídos is the largest mass grave of Spain, containing the remains of over 33.000 victims. 94 During the dictatorship research was mostly conducted by foreign historians like Herbert Southworth and Edward Carr. It was not until after the death of Franco that it became possible to conduct a more thorough investigation, although, as Helen Graham and historians like Francisco Espinosa Maestre assert, the transition also affected historical research. Also, millions of documents had been destroyed from 1965 onwards. Preston, El Holocausto español, 21. 95 Ariel Jerez and Emilio Silva, “Construcción de derechos humanos y construcción de ciudadanía”, in Políticas de memoria y construcción de ciudadanía (Contribuciones al congreso de La Granja de San Ildefonso, 2008), eds. Ariel Jerez and Emilio Silva (Madrid: Postmetropolis Editorial, 2015), 5-6. 96 Monedero, La transición contada a nuestros padres, 92 .

27 What’s more, the fact that thirty years after this ‘exemplary and successful’ formal end of our transition, these ‘problems’ still persist, in my judgment should not be something to take pride in.97

I discovered that Spain’s history as I have been taught is a lie. When you start to talk, to listen, you realize that the history of Spain has been constructed without people, what lacks is the story of persons, the story of grandmothers, of aunts, of sisters, of people like you… 98

It was a transition without any mechanisms of transitional justice, a concept defined by the United Nations as “the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation”, and which encompasses judicial and non-judicial processes and mechanisms, in conformity with international legal standards and obligations.99 Sociologist Alexandra Barahonda de Brito argues how memory and transitional justice are two interrelated concepts in which memory, as a social concept, is an ongoing, dynamic process in which a society interprets and appropriates its past. Within this process, Barahonda argues, transitional justice efforts can be understood as “disjunctures”, qualitative shifts, in a continuing process of meaning- making by each generation to understand and appropriate the past in order to build a new political community.100 Within this line of reasoning, mechanisms of transitional justice and human rights are intimately linked to the Spanish movement of historical memory and the questions related to the construction of a democratic memory. Also, this process is marked as a bottom-up process that challenges national politics of memory and “elite-complicity”. 101 Indeed, the Spanish movement alligns to the way that the demands to amend human right violations have in many cases been a long and arduous process initiated by the “long memories” of victims in defiance of a state’s unwillingness to be held accountable.102

First, conflicts do not end through an agreement between the political parties, if the victims themselves are ignored. The negotiated agreement in

97 D. Javier Chinchón Álvarez, “Justicia Transicional: “Memoria Histórica”, y responsabilidad internacional del Estado: Un analisis general a propósito del cumplimiento de ciertas obligaciones internacionales en juego después de más de tres décadas del inicio forma de la transición política española”, Revista de derecho de Extremadura, (2009) : 52. http://eprints.ucm.es/9169/1/Articulo_Revista_Derecho_Extremadura.pdf. 98 Alejandro Torrús about his work as a journalist writing on the historical memory: https://www.youtube.com/watch?v=hSA68F8BKEQ. 99 Secretary General of the United Nations, cited in Javier Chinchón Álvarez, “Justicia Transicional: “Memoria Histórica”, y responsabilidad internacional del Estado”, 51. 100 Alexandra Barahonda de Brito, and Mario Sznajder, “The Politics of the Past: The Southern Cone and Southern Europe in Comparative Perspective” 15, no 3 (2010): 488- 489, https://doi- org.proxy.uba.uva.nl:2443/10.1080/13608746.2010.513607501. Sociologist Daniel Levy and Natan also analyse the interrelations between human rights and memory in Human rights and Memory (Pennsylvania State University, 2010). 101 Wouters, “Transitional Justice and Memory Development in Europe”, 410 102 In fact, Naomi Roht- Arriaza asserts how “It is only the combines pressure of NGO’s transnational advocacy networks, and the long memories of survivors that have goaded states into creating existing mechanisms and have rendered them effective”. “The role of International Actors in National Accountbility Processes”, in The politics of memory:transitional justice in democratizing societies, eds by Alexandra Barahona de Brito, Carmen González-Enríquez and Paloma Aguilar (Oxford: Oxford University Press, 2001), 64.

28 1977 not to have any transitional justice mechanism in place was always likely to be undermined in time by pressure of victims’ associations. You can only cure conflicts by curing the wounds of the Civil War, not by imposing an obligation to forget.103

Contrary to the top down Nuremberg trials, these trials in Europe from the 1960’s onwards to judge the Nazi collaborateurs would have been unthinkable without these “long memories”. The same holds for Latin America where a social movement set a global precedent, a “justice paradigm”, for today’s mechanisms of transitional justice in the way that countries like Argentina and Chile account for past injustices committed during the dictatorial regimes in the 1980’s.104 Family members of victims, like the ‘Madres de Plaza de Mayo’, and international network of lawyers and NGO’s successfully undermined the amnesty laws, the Leyes de Punto Final y Obediencia Debida. In turn, these processes were founded upon the principles of universal justice that were adopted after the war to judge Nazi atrocities. 105 The transitional justice paradigm set in Latin America has since the 1990’s propitiated a growing human rights culture with which mechanisms of transitional justice have replaced Realpolitik, amnesty laws and negotiated transitions.106 Since the waning of the Cold War, political negotiation and legitimation of states have been shaped by this human rights imperative. 107 According to sociologists like Levy, the willingness by states to be held accountable for past injustices has been accompanied by an ethical approach to history, a memory turn, in which a state no longer owns the past but in which other, marginal narratives and memories reframe national history, from a victim’s perspective.108 This process has been institutionalized and accompanied by a growing international legal framework of human right treaties and international organizations like the United Nations Human Rights Council, tribunals like the European Courts of Human Rights , the Inter- American Court of Human Rights (1978), and the International Criminal Court in The Hague (2000). Within this transnational process, Spain had played a pioneering role in the Latin American cases. In 1998, Spanish judge Baltasar Garzón indicted both dictator Augustino Pinochet for human right violations as well as ninety- eight members of the Argentine military for genocide and terrorism. These were founded upon the principles of universal jurisdiction despite the existence of national amnesty laws. Pinochet was arrested by an order of the Spanish National Court. Also, despite the fact that Garzon’s warrant was based upon the cases of torture and murder of Spanish citizens, there had been international support and pressure by other member states in Europe, like Italy and France because of

103 Burbidge, “Waking the dead of the Spanish Civil War”, 2011 104 In 1985, the world’s first Truth Commission was established in Argentina. Daniel Levy, “Recursive cosmopolitization: Argentina and the global Human Rights Regime”, The British Journal of Sociology 61 (2010): 579–596. doi:10.1111/j.1468-4446.2010.01327.x 105 Levy, “Recursive cosmopolitization”, 579-583. 106 Elazar Barkan, “Restitution and amending historical injustices in international morality”, Politics and the past. On repairing historical injustices, ed. John Torpey (United States of America: Rowman &Littlefield Publishers,2003), 90-95. 107 Casanova, “Disremembering Francoism”, 207 108 Levy, Memory and Human Rights.

29 related cases of citizens who had disappeared in Chile.109Regarding the Argentinean case, Adolfo Scilingo, a former naval officer under the Videla regime, was arrested in Spain and condemned by a Spanish court under universal jurisdiction for crimes against humanity for having partaken in the ‘death flights’. These developments have been crucial and a strong incentive for the victims of Franco in Spain:

It is a mobilization that has been brought about by the grandchildren of the disappeared, who in 1998 witnessed how the Spanish judiciary arrested Pinochet in London but has never done anything to repair the damages that were caused by Francisco Franco, who was so much admired by the Chilean dictator.110

From the start, the demands put forward by the movement of historical memory in Spain has been anchored within the principles of international justice and human rights. In 2002, the national Association for the Recovery of Historical Memory (ARMH) denounced 64 cases of missing persons to the UN Commissioner for Human Rights in Geneva and the Spanish Ombudsman.111 International human rights and criminal legislation constitute the pillars that support the demands of the victim’s associations and civil society in Spain at local, regional and national level to implement an effective politics of memory that guarantuee the rights of victims to truth, justice, reparation and guaranties of non- recurrence. Each one of the cases that have been presented to the European Union that will be looked at in detail in the following chapters, reflect these international legal standards, amongst those relating to the right of victims of gross human right violations as adopted in 2005 by the United Nations’ Commission on Human Rights.112 The main objective of a petition directed at the Committee on Petitions of the European Parliament in 2012 by Noelia Camacho and Anselma Guillermina Gómez Angulo was to to determine the truth on the faith and whereabouts of a victim of Francoist repression, Guillermo Gómez Bermúdez, who had been a local judge and member of the socialist party

109 According to Amnesty International, the Pinochet case showed how the concept of universal justice became a reality and Spain became a beacon of justice against impunity for the world: https://www.es.amnesty.org/en- que-estamos/noticias/noticia/articulo/espana-de-pais-referencia-a-la-cola-en-la-lucha-contra-la-impunidad-de- los-peores-crimenes/. 110 Ariel Jerez and Emilio Silva, “Construcción de derechos humanos y construcción de ciudadanía”, 5. The influence of the Madres de Plaza de Mayo is also reflected in the ‘Ronda por la memoria’: each Thursday, a group of familymembers and victims gather at 20.00 pm on the Puerta del Sol in Madrid, to start walking, counterclockwise, to commemorate the victims and demand justice. At the end of their rounds they stop in front of the former center of detention, interrogation and torture to call for justice. In this building the Second Republic was proclaimed on 14 april, 1931. Nowadays, it houses the presidency of the Comunidad de Madrid. Apart from a plaque that commemorates the defence against Napoleon’s troops, nothing reminds of the events that took place in the 20th century. 111 This was the first time that the UN as well as the Ombudsman registered the cases of victims of the francoist dictatorship: http://memoriahistorica.org.es/que-es-la-asociacion-para-la-recuperacion-de-la-memoriahistorica-armh-2000-2012/ 112 United Nations, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. A/RES/60/147, December 16, 2005; and Report of the independent expert to update the Set of principles to combat impunity, Addendum Updated Set of principles for the protection and promotion of human rights through action to combat impunity, United Nations Commission on Human Rights, E/CN.4/2005/102/Add.1, February 8, 2005.

30 and disappeared in Córdoba, Andalucía, in august 1936. Mother and granddaughter of the victim turned to the European Parliament appealing to the European Charter of fundamental rights that concerned the right of access to information after it had proved impossible to gain access to the requested documents.113 Access to information also constitutes a central claim in the dozens of petitions that have been presented to the Committee on Petitions since the year 2012 concerning the cases of the so-called ‘niños robados’, a practise that had started in 1936 and continued well into the 1990’s during which tens of thousands of new- borns were ‘removed’ from their mothers, deprived of their names and identity and adopted by families akin to the Franco regime or placed into catholic orphanages.114 The parents of these children denounce the lack of a (pro-active) state responsibility in investigating their cases, the many irregularities, contradictory and false information they receive from institutional bodies, the difficulties in gaining access to relevant documents and the lack of an effective access to justice and effective remedy.115 Obstructions by Spanish institutions to the right to justice and an effective remedy are a reiterative complaint by victims. Chato Galante, arrested and tortured in the 1970’s, stated: “We are in Brussels to demand that the European Parliament codemns Spain. They deny us the right to justice.”116 Similar complaints have been voiced by various collectives of victims, like the Asociación de Víctimas 3 de Marzo de Vitoria- Gasteiz, the State Coordinator for Support for the Argentinian Complaint on the impunity of Francoist crimes (CEAQUA), the Asociación Pro Derechos Humanos de España (APDHE) and by various MEP’s.117 While several of the petitions and questions concern individual cases, others represent a collective demand by victim’s associations like the Ascociación Víctimas 3 de Marzo and CeAqua, the associations of niños robados and the Plataforma Comisión de la Verdad which is a coalition of a hundred victims’ associations. This platform presented a petition in March 2014, accompanied by an extensive documentation of 500 victims, pleading for the creation of a truth commission in Spain and which was supported by a number of Spanish MEP’s. The initiative was motivated by “[…] the situation of defencelessness and the institutional, juridical and political neglect that up to this day tens of thousands of victims of Francoism and their relatives have to endure, and in order to recognize victims’ rights to truth, justice and reparation”.118 These are some examples of the cases that indicate the limitations of the universal standards within their own state border with which these Spanish citizens are faced. At the

113 A related question on the accessibilty of archives was asked by Spanish MEP Izaskun Bilbao Barandico directed at the European Commission in 2014, denouncing the restriction by the Spanish state to disclose 10.000 documents from the period between 1936 and 1939. http://www.izaskunbilbao.eus/download/16.10.2014.DOCUMENTOSFRANCO.pdf 114 Members of the Committee on Petitions conducted a fact-finding visit to Spain in 2016, to investigate twelve cases that had been denounced in 2012 and 2013. See appendix. 115 As Ana Cueto, mother of two niños robados, accounts in 2015 during a meeting in the EP by the Committee on Petitions. Also Gloria Ferrer, Flor Díaz Carrasco, María Carrasco, mothers of niños robados, and Francisco Tena on their visit to the European Parliament in 2014: https://www.youtube.com/watch?v=_TK474MhIXI&feature=youtu.be. 116 Chato Galante, spokesperson of La Comuna, Asociation of exprisoners of Francoism. European Parliament, 2015. http://www.ceaqua.org/victimas-del-franquismo-en-la-eurocamara-es-una-verguenza-que-estemos- aqui/ 117These cases denounce the obstructions by the Spanish state to cooperate with the Argentinian investigation, amongst other to comply with the arrest warrant and the extradition of 20 high- ranking officers and former ministers during the dictatorship. For an overview of the cases presented to the EU, see appendix. 118 Petition by the Plataforma Comisión de la verdad,2014. See appendix.

31 same time, international standards and state obligations offer the possibility to seek international ways. Therefore, these obstructions are adressed to the EU because the European Union policies has incorporated the international human rights and memory culture. In fact, Judt asserts, the way that states amend past injustices within this frame of “cosmopolitan morality” legitimizes states and constitutes their “entry ticket to the EU”.119 Human rights criteria for EU- candidates were for the first time imposed in 1993 with the Copenhagen Criteria. With the Lisbon Treaty in 2000, the EU adopted the Charter of Fundamental Rights which has become legally binding since 2009. This Charter incorporates the Convention of Human Rights that was adopted by the Council of Europe in 1950.120 Furthermore, a number of resolutions, programmes and EU -frameworks have been adopted by different EU institutions in which the Holocaust and the legacy of the Stalinist dictatorship are the main points of reference as part of a European memory that indicates a shift towards a “cultural historical base of the EU, away from a presentist economic project”.121 In the EU Treaty, article 167 formalises a commitment toward “the improvement of the knowledge and dissemination of the culture and history of the European peoples”.122 Menawhile, although not an EU institution, the Council of Europe needs to be mentioned here. With the Lisbon Treaty, the Council of Europe and the EU have agreed on an increased mutual cooperation.123 Also, while the Council of Europe had been set aside as an instrument for european integration in the 1950’s, it nevertheless maintained its role as a guardian of human rights and democracy as the process of the Spanish accession to the EEC has shown.124 In 2006, in response to the public debate in Spain, the Parliamentary Assembly of the Council of Europe (PACE) unanimously condemned the Franco.It issued a report in which an extensive account was presented on the historic events of the civil war, the dictatorship and human rights abuses and which enlisted a series of recommendations to the Spanish state and the Committee of Ministers of the COE.125 In 2016, The Council of Europe Commissioner for Human Rights, Nils Muižnieks, adressed the situation of the missing persons in Spain in a report on the situation of missing persons in Europe.126 These reports and

119 Judt, Postwar Europe, 803- 804. 120 “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights; it is deemed to contribute to peace, security, mutual respect among peoples and the protection of human rights, as well as to the strict observance and the development of international law”, Articles 2 and 3 of the Treaty on European Union, https://eeas.europa.eu/headquarters/headquarters- homepage/414/human-rights-democracy_en). 121 The Citizens for Europe programme was launched soon after the failure in 2005 for a EU Constitution. 122 Article 167, EU Treaty, Official Journal 115, Part three: Union Policies Kopenhagen 2000 on Holocaust: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A12008E167. 123 Also, the EU has opened the way to become a member of the COE, and to sign up to the European Convention of Human Rights: https://www.coe.int/en/web/portal/european-union. 124 As Uta Staiger asserts, the COE also functioned as the main cultural initiator at European level untill the 1980’s: “The European Capitals of Culture in Context. Cultural policy and the European Integration process”, in The Cultural Politics of Europe, European Capitals of Culture and the European Union since 1980, Kiran Kluas Patel (ed.) (New York: Routledge, 2013), 5-6. 125 Council of Europe, Need for international condemnation of the Franco regime, March 17, 2006. Carlos E.Cué, “El Consejo de Europa condena el franquismo e insta a España a honrar a sus víctimas”, El País, March 18, 2006, http://elpais.com/diario/2006/03/18/espana/1142636420_850215.html. 126 Nils Muižnieks, “Missing persons in Europe: the truth is yet to be told”, Commissioner for Human Rights, Council of Europe, august 08, 2014, https://www.coe.int/hu/web/commissioner/-/missing-persons-in-europe- the-truth-is-yet-to-be-told.

32 recommendations have remained without any follow- up but serve as an important international recognition and moral referent for the movement of historical memory.

33 2.2 Spain’s state of exception?

The worst thing is to have to come to Europe to ask to help search for your relative, for my grandfather who was assassinated. 127

Of course, the great irony is that Spain, by adopting universal jurisdiction over international crimes seemed happy to allow its own examining magistrates such as Garzón to override amnesties when investigating crimes committed in other countries.[ ] Logic and coherence would suggest that the Spanish law applicable to crimes against humanity committed in Spain should be the same as that for crimes committed abroad .128

While the case of Scilingo and Pinochet has shown how Spain played a pioneering role within the field of universal justice, Spain also illustrates how the willingness of states to account for gross violations of human rights that were committed within its own state boundaries, seems far from self- evident. This retinence constitutes the main motive for victims to seek other ways outside Spain to adress their cases. Victims of Francoism witnessed how Spain prosecuted war criminals and perpetrators of genocide and gross violations of human rights while this had seemed impossible in the 1970’s in Spain. However, while in Argentina the amnesty law was declared unconstitutional and in violation of international law in 2001 and 2003, in Spain the amnesty law of 1977 has been upheld and turned into a Ley de Punto Final after 2008 by national and local courts.129 In 2008, Baltasar Garzón, Judge of the National High Court opened the first judicial investigation in Spanish history into the alleged disappearance, torture and execution of 114. 266 persons between 17 July and December 1936 and 1951 and into the cases of the ‘niños robados’, founded upon the same principles of international justice as the Pinochet case.130 The Supreme Court disputed his competence for investigation upon the argument that these cases did not amount to crimes against humanity and appealed to the vigence of the Amnesty law, the prescription of these cases and the argument that the perpetrators of these crimes most likely had passed away. Garzón was charged for prevaricación (misuse of power), resulting in the prosecution of Garzón himself, a process that was covered widely by the international press and that caused an outcry by international human rights organizations who strongly condemned his prosecution and shared the view that it was a

127 Noelia Camacho and Anselma Guillermina Gómez, granddaughter and daughter of Anselmo Guillermo Gómez who was assessinated in 1936 and has disappeared since then. Committee of Petitions, European Parliament, 6 november 2012. https://www.youtube.com/watch?v=Yx2OidTgwNc 128 Burbidge, “Waking the dead of the Spanish Civil War”, 774- 775. 129 The Amnesty Law served as an argument to discard the competence of Judge Baltasár Garzón for investigating the crimes of Francoism. He was sentenced and expelled from his function in 2012. Moreno Gómez, Los desaparecidos de Franco, 81. 130 “ Alleged crimes of illegal detention under the framework of a systematic and preconceived plan to eliminate political opponents through multiple deaths, torture, exile and forced disappearances […]”, Audiencia Nacional, Juzgado Central de Instrucción No 5, Auto Diligencias Previas- Procedimiento abreviado 399/2006 V, 16 october 2008, http://baltasargarzon.org/wp-content/uploads/2013/11/auto_memoria_historica.pdf

34 set- back for international justice that would seriously compromise the prosecution similar crimes of human rights violations in Spain and elsewhere.131 This was confirmed by Amnesty International when it found that since Garzón had transferred the cases to territorial courts, the majority of the cases were rejected. 132 The trial held against Garzón proved to be the only time that victims have been able to testify to a Spanish state court, which is regarded as the only positive outcome of the process, leaving the victims with at least a sense of recognition.133 Garzón’s case was initiated as a response to a bill on historical memory that proved to be far removed from the expectations and demands of the victims. A year later, in 2007, Law 52/2007, commonly known as the Law of Historical Memory, was adopted by the PSOE - government of Zapatero despite the disapproval of the conservative Partido Popular.134 This law, “which recognizes and expands the rights, and establishes measures of those who suffered persecution or violence during the Civil War and the dictatorship” covers various issues: the removal of Francoist monuments and street names, exhumations of mass graves, reparation measures for victims and access to archives. Although the law was recognized for being an important first step and the first time a public debate was held since the transition to democracy, after ten years it has had a very limited reach. It’s main achievement has been the restitution of the Spanish nationality to 340.000 persons, descendants of republican exiles and of the International Brigade. During the first years 3.000 monuments and symbols were removed from public space, it facilitated research and publications on the subject, the exhumation of mass-graves as well as the elaboration of a national map of mass graves.135 However, from the start the law was rejected by the Partido Popular, the conservative- rights party, and its implementation obstructed in communities and

131 The complaint for malfeasance against Garzón was launched by the ultra- right trade -union Manos Limpias, affiliated to the- legal- Falange party. Burbidge, “Waking the Dead of the Spanish Civil War”, 775; and Aguilar, “Amnesties and Reparations Without Truth or Justice in Spain”, 235. Amongst the human rights organizations that raised their voice was Human Rights Watch who called upon the EU to react: “European Union: Protest Sanctions against Judge Garzón. Prosecution and Potential Suspension undermines Accountability”, Human Rights Watch, april 22, 2010, https://www.hrw.org/news/2010/04/22/european-union-protest-sanctions-against-judge-garzon; and “Garzón Trial threatens Human Rights. Spanish Judge challenged Amnesties in Spain, Worldwide”, january 13, 2012, https://www.hrw.org/news/2012/01/13/spain-garzon-trial-threatens-human-rights. 132 Casos cerradosheridas abiertas. El desamparo de las víctimas de la Guerra Civil y el Franquismo en España, Report by Amnesty International, may 9, 2012, https://doc.es.amnesty.org/ms- opac/search?fq=mssearch_fld13&fv=EUR4110112. 133 This value was expressed by Baltasár Garzón during a commemoration for the victims of Francoism in Madrid, Puerta del Sol, on september 29, 2012, video published by Fundación Internacional Baltasar Garzón , https://www.youtube.com/watch?v=WfK7SFE70AI&index=2&list=FLJgxrMsWCLXOP7tlUXVzP5A. María Martin, one of the victims who testified in court, must have experienced a sense of recognition. She had searched for her whole life for her missing mother and had faced in person the repression under the dictatorship. However, she died without having been able to exhume the remains of her mother that lay in a ditch along a highway. “María Martín, una anciana ante las togas”, El País, july 25, 2014, https://politica.elpais.com/politica/2014/07/25/actualidad/1406317666_151900.html. 134 The legal act is to be consulted on the website of the Government of Spain: http://www.memoriahistorica.gob.es/es-es/LaLey/Paginas/index.aspx. 135 This map is also to be found at http://www.memoriahistorica.gob.es/es-es/mapafosas/Paginas/index.aspx. For a list on the number of exhumations since the year 2000 : ARANZADI, http://www.politicasdelamemoria.org/2015/09/154-listado-de-exhumaciones-llevadas-a-cabo-en-espana- desde-el-ano-2000/.

35 municipalities governed by the PP.136 For this reason, the map of massgraves, which data are provided by means of private initiatives, is far from complete while autonomous communities governed by the PP have not provided any data.137 Since the PP came to power in 2011, the law has become devoid of any state funding since 2013.138 The Office for the Victims of the Civil War and the Dictatorship has been closed in 2013, access to important archives still restricted.139 It results in a situation whereby victims are left to their own devices and financial means while depending on local and regional politics of memory whether they are heard. 140 Furthermore, the recommendations enlisted in an extensive report by a commission of experts on the destiny of the Valle de los Caídos, to reconvert into a site of historical memory and reconciliation, was presented in 2011, 5 years after the Law was approved. With the electoral victory of the PP in 2011, this report was left in a drawer.141 For other reasons, this law has by far met the expectations and demands that had been presented by the victims and political parties who had initiated the proposal. Their main argument is that this law does not meet the requirements of the right to justice, truth and reparation and the international legal obligations of the state. Instead of guaranteeing

136 With a few rare exceptions as some examples have shown: the municipality of Málaga, the town of Bullas, the Balearic Islands and the Parliament of Galicia. The conservative- right Partido Popular was founded in 1989 and stems from the Alianza Popular which in turn was founded in 1976 by members of the Franco elite. The opposition by the PP is pointed out in the report issued in 2005 by the Parliamentary Assembly of the Council of Europeon in its report: Need for international condemnation of the Franco regime, november 4, 2005, 11, point 88. Alfonso Alba, “Eduardo Ranz: ‘Incumplir la Ley de Memoria Histórica sale gratis’ ”, Cordopolis, may 7, 2017, http://cordopolis.es/2017/05/07/eduardo-ranz-incumplir-la-ley-de-la-memoria-historica-sale-gratis/. The Francisco Franco Foundation has awarded mayors who do not comply with the law: “La alcaldesa del PP de Alberche del Caudillo, premiada por incumplir la Ley de Memoria y honrar a Franco”, Periodicoclm, december 14, 2016, http://www.periodicoclm.es/articulo/toledo/alcaldesa-pp-alberche-caudillo-premiada-fundacion- franco-incumplir-ley-memoria-historica-honrar-dictador/20161214152831006114.html. 137 Aguilar, “Amnesty and Reparation without Truth or Justice in Spain”, 224-224. 138 Lawyer Eduardo Ranz: “lleva diez años de vigor, y no se cumple”: http://www.nuevatribuna.es/articulo/espana/350-pueblos-espanoles-siguen-incumpliendo-ley-memoriahistorica/20171023085557144616.html?platform=hootsuite Raquel Ejerique, “Gobierno vuelve a ningunear la memoria histórica”, El Diario.com, April 4, 2017, https://www.eldiario.es/sociedad/muestra-Espana-abandona-victimas-franquismo_0_417858516.html Juan Miquel Baquero “En doce años, sólo se ha abierto 332 de las más de 2000 fosas comunes que hay en España”, El Diario.com, August 10, 2015,https://www.eldiario.es/sociedad/Gobierno-vuelve-ningunear- Memoria-Historica_0_629237898.html.

139 In 2003, more than 300 historians called upon the government to declassify the archives from the Ministry of Foreign Affairs and the Ministry of Defence: David Jorge and Carlos Sanz Díaz, “El conocimiento histórico y el futuro del pasado”, CTXT, july 16, 2016, http://ctxt.es/es/20160713/Politica/7217/guerra-civil-archivos- franquismo-investigacion-seuestro.htm. The Francisco Franco Foundation still conserves a major collection of original documents: Antonio Maestre, “El gobierno no exige a la Fundación Francisco Franco devolver documentación original secreta”, Lamarea.com, october 20, 2017, https://www.lamarea.com/2017/10/20/gobierno-no-exige-la-fundacion-francisco-franco- devolver-documentacion-original-secreta/. 140 The exhumation of the father of Ascención Mendieta was financed by Norwegian Trade Union. “Sindicalismo y memoria, ese viejo nuevo internacionalismo”, Lamarea.com, may 24, 2017, https://www.lamarea.com/2017/05/24/sindicalismo-memoria-ese-viejo-nuevo-internacionalismo/. 141 Report can be found at http://www.memoriahistorica.gob.es/es- es/vallecaidos/Paginas/ComisionExpertosVCaidos.aspx.

36 these rights, the state facilitates the exhumation and leaves it to victims and their familymembers to initiate investigations turning it into a matter of an individualized, private memory.142 Another main reason of disillusion was the fact that the law did not declare null and void the sentences of the Francoist tribunals.143 As a result, alternative ways were sought which led to the petition presented to Baltasar Garzón by collectives of victims to investigate their cases. When this failed, victims have turned to Argentina based on the principles of international justice. In 2010, the Argentinean federal criminal court started Case 4591/2010, “N.N. por genocidio y/o crímenes de lesa humanidad cometidos en España por la dictadura franquista entre el 17 de julio de 1936, comienzo del golpe cívico militar, y el 15 de junio de 1977, fecha de celebración de las primeras elecciones democráticas”.144 This case has grown to over 300 cases of victims who denounce amongst others cases of torture, enforced disappearance, niños robados and forced labour. Another international path has been taken since 2002, when victims turned to the High Commissioner for Human Rights of the United Nations to denounce their cases.145 Since then, the United Nations have on repeated occassions issued a number of recommendations and reports regarding the obligations to investigate the crimes, to cooperate with the Argentinean investigation, derogate the amnesty law, and implement the ley de Memoria Histórica. Three reports have been issued in 2014 which have affirmed the victim’s rightful demands and which have pointed out the state’s breaches in fulfilling its obligations.146 On a regional level, various autonomous communities like Andalucía, Catalonia and the Basque Country have been developing regional politics of memory since 2002, which have taken on a more prominent presence in other regions since the municipal and national elections in 2015 has seen an unprecedented political reconfiguration of Spain.147 In

142 “Principales obstáculos para la investigación de crímenes de la Guerra Civil y el franquismo”, Amnesty Internacional, november 23, 2016, https://www.es.amnesty.org/uploads/media/Obstaculos_231116.pdf. In 2009, 50 victims’ and human rights organizations presented a statement to the government and the ambassies in Spain in order to call upon “ a normal compliance with the European Convention of Human Rights in Spain regrading the cases of the disappeared”: of : “Nuestra ley de memoria histórica es la ley de una ‘verguënza histórica’ “, Forum per la Memoria del País Valencía, july 9, 2009, http://www.forumperlamemoria.org/?Nuestra-ley-de-la-memoria. Emilio Silva, “La desmemoriada ley de memoria”, Eldiario.es, december 27, 2017, http://www.eldiario.es/tribunaabierta/desmemoriada-ley-memoria_6_722737734.html. 143Like other thousands of victims, these convictions still rest upon Lluis Companys, president of the Catalonian Generalitat who was arrested in France by the Gestapo and handed over to Spain, poet Federico García Lorca, and Blas Infante . 144 For all information regarding the Argentinean case, see the website of the Coordinadora Estatal de Apoyo a la Querella Argentina contra los Crímenes del Franquismo (CeAqua), http://www.ceaqua.org/. 145 “Hace quince años que el caso de los desaparecidos de la dictadura franquista llegó al alto Comisionado de Naciones Unidas para los DDHH” , Asociación para la Recuperación de la Memoria Histórica, august 6, 2017, http://memoriahistorica.org.es/s1-news/c3-destacado/hace-quince-anos-que-el-caso-de-los-desaparecidos-de- la-dictadura-franquista-llego-al-alto-comisionado-de-naciones-unidas-para-los- ddhh/?t=1&cn=ZmxleGlibGVfcmVjc18y&refsrc=email&iid=3ed69d04de444bf9a79cfc558be6f160&uid=7061218 73323638788&nid=244+277352456. 146 See appendix. 147 A configuration which started with the municipal elections in 2015.Mayors of cities like Pamplona, ACoruña, Madrid, Rivas- Vaciamadrid, Cádiz, Vitoria, Zaragoza and Barcelona have created a network of collaboration and solidarity on various fields, so-called ‘Ciudades sin miedo’, cities without fear, and ‘Ciudades de la memoria y justicia’, cities of memory and justice. They have brought cases of victims to local courts and/or to the Argentinean investigation.

37 response to appeals made by civic society and the failure of state politics in its response, local and autonomous communities and city councils have elaborated politics of memory to amend and investigate both individual cases as to take on a collective policy of memory. Since this political reconfiguration, a number of law proposals and initiatives have also been initiated at state level. Apart from the unanimously adopted declaration in 2002 by the Congress of Deputies to condemn “all totalitarian regimes”, stating that “no one could feel legitimated to use violence with the aim of imposing political convictions and establishing totalitarin regimes”, all these initiatives are categorically rejected by the PP. 148 Apart from the Law of Historical Memory, the PP rejected proposals to establish a Truth Commission, to condemn and declare illegal the Franco regime, to remove Franco from the Valle de los Caídos, to repeal the Amnesty Law and to adapt the Law of Historical Memory.149 The multiple obstacles imposed by political and judicial authorities since 2007 and the opposition from part of the political establishment of the conservative Partido Popular to take on any state responsibility to investigate these crimes and to consider these as a collective concern that affect the whole of society have resulted in what many human rights organizations call a “culture of impunity”.150 Although the financial crisis provided the motive for cutbacks on the Law of Historical Memory, budgetting for the Law have remained zero and a lack of political and judicial is perceived from the statements made by state representatives, ministers of the PP and president Rajoy who on various occasions publicly express their lack of priority and even disdain towards the concerns of civil society.151 Contrary to other western European countries, in Spain victims complaints are assimilated with party affiliations, as observed by the UN: “the definition of what constitutes a victim is generally detached from the notion of human rights and from the basic notions of

148 This declaration did not explicitely mention Francoism. See Francisco Espinosa Maestre, Lucha de historias, lucha de memorias, (Sevilla: Aconcagua Libros, 2015), 17. Also, Footnote 61 in Aguilar, “Amnesty and Reparations Without Truth or Justice in Spain”, 217. Declaration by the Congress cited in same chapter by Aguilar, 217. 149 The most recent rejection is PP’s veto on the proposal by the PSOE to adapt the Law of Historical Memory, including the removal of Franco and the exhumation of the victims from the Valle de los Caídos: “El PP y Ciudadanos apoyan el veto del Gobierno contra una moción para no reactivar la Ley de Memoria Histórica”, El Público.com, March 6, 2018https://www.eldiario.es/sociedad/Mesa_del_Congreso-veto-Gobierno- ley_Memoria_Historica-PSOE_0_747175707.html. 150 This is stated by the UN Working Group on Enforced and Involuntary disappearances in its follow-up report of september 2017 in which it expresses its “deep concern” about the lack of implementation of the recommendations that were made after the visit to Spain in 2013, especially given the advanced age of many of the victims, denouncing the fact that the victims and relatives are left to their own faith in the absence of the state’s responsability. 151 In 2007, Rajoy asked why anyone would be interested in the past: “Mariano Rajoy: ‘A quién se interesa eso de la memoria histórica’”, Diario Córdoba, march 28, 2007, http://www.diariocordoba.com/noticias/cordobaandalucia/mariano-rajoy-a-quien-le-importa-eso-de- memoria-historica-_310852.html. This was repeated in 2016: “Rajoy: ‘Me gustaría que se supiera dónde están enterrados sus abuelos pero no tengo claro que puede hacer nada el gobierno’”, LaSexta.com, last modified november 12, 2017, http://www.lasexta.com/programas/salvados/mejores-momentos/rajoy-gustaria-que- supiera-donde-estan-enterrados-sus-abuelos-pero-tengo-claro-que-pueda-hacer-nada- gobierno_20160403572383866584a81fd881e73f.html. Rafael Hernando, spokesperson of the PP, accused the victims of having a financial interest when searching for their disappeared familymembers: “La Fiscalía no ve delito en la burla de Rafael Hernando”, Público, march 21, 2017, http://www.publico.es/politica/fiscalia-ve-delito-burla-rafael.html.

38 beneficiaries and State responsibility”.152 This sharply contrasts with other European memberstates that have adopted reparation policies which are beyond political debate and more alligned with transnational human rights discourses, as Francisco Ferrándiz argues.153 What’s more, the UN observed in its reports on Spain how international obligations and the formation on international human rights are insufficiently incorporated within the Judiciary, and an analysis on the reasoning by the Tribunal Supremo on the case of Baltasár Garzón observed a total lack of considerations of international legal norms on human rights.154 Furthermore, international justice has faced a serious set- back as a result of the adaptations in the criminal code approved in 2014. As a result, ongoing investigations in Spain on the basis of universal justice have been closed due to these restraints, amongst others the investigation into five former guards of the German SS -Totenkopf Command held responsible for the death of Spanish prisoners in the concentration camp of Mauthausen.155 Historian Julian Casanova argues how in Spain the rejection of the dictatorship and human rights violations have never formed part of the construction of a political and democratic culture and how this radical difference is to be explained by the victory of fascism in Spain: while in western Europe Nazism and fascism was defeated and trialed, in Spain, “the tables were turned, fascism was triumphant in the form of Francoism and Spain’s antifascist resistance groups bore the brunt of the violence.” 156 Franco was never defeated, and the longevity of the dictatorship was able to shape cultural memory and public perception for forty years while retaining its legitimacy by influential sectors within society who had benefitted from it, well into present times, according to Casanova and Helen

152 United Nations, Report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantuees of non-recurrence, July 22, 2014, 5. Journalist Carlos Hernández illustrates this in a seemingly simplified and self-evident portrayal of Spain: “Los Repúblicanos eran ‘los buenos’ y los franquistas ‘los malos’”, ElDiario.com, January 1, 2017, http://www.eldiario.es/zonacritica/republicanos-buenos-franquistas-malos_6_600599965.html. 153 Francisco Ferrándiz, “Exhuming the defeated: Civil War mass graves in 21st century Spain”, American ethnologist 40, no.1 (2013): 41, doi:10.1111/amet.12004. In other European states, prosecutions of perpetrators of crimes against humanity that were committed during the Second World War continue without a statute of limitation, see for example the convictions of Reinhold Hanning and John Demjanjuk. Fernando Hernández Sánchez asserts that the main problem of “the complicated relation of the Spanish right with the past” resides in the fact that, “contrary to their european counterparts, conservatives, cristiandemocrats or liberals, the Spanish conservatives, does not share this foundational legitimacy , founded upon a victory against fascism”: “ Las complicadas relaciones de la derecha española con el pasado”, CTXT, july 21, 2017, http://ctxt.es/es/20170621/Firmas/13437/Francisco-Boix-derecha-Paris-pasado-CTXT.htm 154 UN reports: Report of the Special Rapporteur on the promotion of truth, 10 and Report of the Working Group on enforced disappearance, 13- 14, 17. Javier Chinchón Álvarez, Lydia Vicente Márquez and Alicia Moreno Pérez, “Supreme Court Position Regarding the Implementation of International Law Crimes of the Past in Spain: a Legal Analysis after Reports of the UNWorking Group on Enforced Disappearance, the Committee on Enforced Disappearances and the un Special Rapporteur on Transitional Justice”, Anuario Iberoamericano de Derecho Internacional Penal, ANIDIP 2 (2014), 99-100, doi: dx.doi.org/10.12804/anidip02.01.2014.03. 155 This case had been initiated in 2009 by Spanish NGO Equipo NIZKOR and Foro de la memoria de Guadalajara:Eduardo Bayona, ”España renuncia a defender y reparar a las víctimas de Mauthausen”, CTXT, May 11, 2016, http://ctxt.es/es/20160511/Politica/5979/Tribunal-Supremo-justicia-universal-Mauthausen-nazis- Espa%C3%B1a.htm. http://www.publico.es/opinion/cambio-renunciamos-jurisdiccion-universal.html 156 Casanova, “disremembering Francoism”, 206. Also: Julián Casanova, “Los desaparecidos y las fosas del incómodo pasado”, Infolibre, July 17, 2017, https://www.infolibre.es/noticias/opinion/2017/07/17/los_desaparecidos_las_fosas_del_incomodo_pasado_6 7647_2002.html.

39 Graham. 157 The recurring argument to reject any self-critical reflection is the belief that the transition had definitely settled Spain’s reconciliation.158 At the same time, the narrative on the past on which the transition was constructed and which has been revived since with the rise of the movement of historical memory, was dominated by Franco’s politics of memory that had legitimated his rule.159 Within this discourse, the Second Republic was denied legal recognition and represented as a negative example that would not serve as a democratic model for the future democratic regime because, along the line of Franco’s rhetoric, this Republic had been the cause of the civil war. According to this line of reasoning, Franco had prevented a communist plot of a revolution and had restored order after the Republic had plunged Spain into chaos. Also, Franco had been responsible for Spain’s economic boom. The transition repeated the teleological representation on the past which was constructed later on during the dictatorship in which the civil war was presented as a fatalistic event of two opposing sides, thereby presenting a false symmetry between the violence in the Republican zones and Francoist state violence.160 The transition had finally resulted in a true reconciliation and the lesson never to let this happen was given under the implicit warning of a threat of another war. This narrative also left out any international contextualisation and understanding of what happened.161 What is remarkable is that after 40 years this same narrative is upheld while victims are accused of being resentful, to dwell on the past, create division, and to “open old wounds”.162 The foundational myths have not become marginalized views in Spanish society. Although these “facile narratives” have reapeared in Spain in tandem with European political currencies today, it is part of a rhetoric which is publicly maintained by ministers of state, public authorities and institutions like national television and by professional historians.163 In

157 Graham, “Writing Spain’s Twentieth Century in(to) Europe”, 9 and: Casanova, “Disremembering Francoism”, 208-209. 158 Ferrándiz, “Exhuming the defeated”, 41. 159 Aguilar, Memory and amnesia.The role of the civil war in the transition to democracy, 1996. 160 About the revisionist ideas on violence in the Republican zone: see Graham’s comment in footnote 22 on page 21 of “ Writing Spain’s Twentieth Century in(to) Europe”. Also observed in the UN report of the Special Rapporteur on the promotion of truth: “[…] the prevailing attitudes have tended to mask these complexities and to treat all violations as an amalgan of violent events that occurred as part of a situation of struggle and tension between opposing sides, and they start from a position deliberately publicized by the Franco regime, which for decades prevented any open or direct confrontation with the past”, 5. 161 The Fundación Francisco Franco stated that Franco constiuted “ the antithesis of Hitler.” Juan Miguel Baquero, “La Fundación Franco replica a Izquierda Unida y En Marea: ‘Franco fue la antítesis de Hitler’”, ElDiario.com, January 18, 2017, http://www.eldiario.es/sociedad/Fundacion-Franco-IU-Marea- Hitler_0_601940049.html 162 These accusations were heard during the political debates on the proposal for the law on historical memory in 2002 and again, in 2006. Also, King Felipe VI used these charged phrases in his christmas speech in december of 2016. In december 2017, the King gave this fatalistic, tragic reading on the past during his speech in the Congress on the occasion of the 40th anniversary of the Constitution, although he did use the word dicatorship to refer to the Franco regime. Speech available at: http://www.eldiario.es/politica/dicho-discurso-dictadura- Espana-Transicion_0_659335083.html#discurso. 163 On revionism, see Graham, “Writing Spain Twentieth Century in(to) Europe”, 10-19. In 2011, The Royal Spanish Academy (RAE), an official national institute, was highly critized for its definition given on Franco and the dictatorship in its new volume of the Diccionario Biográfico Español. The section on Franco was written by Luis Suárez Fernandez, a historian affiliated to the Francsisco Franco Foundation (FFF). Julián Casanova, “¿Quién escribe la historia?”, El País, may 30, 2011, https://elpais.com/diario/2011/05/30/cultura/1306706401_850215.html.

40 2006 , when the European parliament held a debate on the need to condemn the Spanish dictatorship it was Spanish MEP Jaime Mayor Oreja, member of the PP in Spain, who distinguished himself from the other MEP’s who explicitely condemned the regime and referred to the European context of the civil war and Franco’s allignment with fascism and the nazi regime. 164 Instead, he vehemently warned not to risk the pacts achieved during transition by starting a “second transition”.165 When asked why he refused to condemn the Franco Regime, he responded that it had been a period in which people had “lived under extraordinary peace and tranquility.”166 While accusing victims to dwell on the past, a rather selective forgetting is maintained which, added to the obstructions to implement reparation policies, shows a permisseveness, which could be interpreted as and indirect legitimation, towards francoism.167 During a session held in the Congress in july 2017 to commemorate the 40th anniversary of the Constitution and the first democratic elections, the president of the Congress mentioned the victims of ETA during the transition but abstained from mentioning the other victims, those of the Franco regime. Also, during this act, Rodolfo Martín Villa, a former minister under Franco, was awarded by the King despite the fact that the Argentinean judiciary has issued his arrest warrant in 2014 as a suspect in the Vitoria massacre.168 Human Rights’ organizations and victims’ associations like the Foro por la Memoria, the ARMH, Amnesty International and the UN denounce what they call categories of victims whereby some victims, of the ETA or the jewish victims of the Holocaust, are deemed worthy of attention while others remain invisible and devoid of

Another example is given by Fernándo Suárez, former minister under Franco: Emilia Landaluce, “Fernándo Suárez: ‘deslegitimar el franquismo pone en riesgo la Corona’”, El Mundo, february 24, 2018, “http://www.elmundo.es/opinion/2018/02/24/5a8dbf29268e3ec2518b45c2.html. The national public television channel, TVE, failed to inform on Ascension Mendieta’s case, which was remarkable given the fact that it constituted an unprecented case because it was the first exhumation as a result of the Argentinena investigation: nuevatribuna.es/articulo/espana/consejo-informativos-tve-reconoce- censuro-caso-timoteo-mendieta/20170915171810143396.html Also, on the international day of the disappeared, TVE avoids to mention Spain: http://www.publico.es/politica/memoria-publica/tve-alega-no-haber-informado-entierro-timoteo-mendieta- considerarlo-exhumado.html 164 European parliament, debate, 2006. 165 “As we can notice, Spain is making a fool of itself in the international democratic institutions […]“, Moreno Gómez stated in Los desaparecidos de Franco, 341 166 “Por qué voy a tener que condenar el franquismo?”, La Voz de Galicia, november 25, 2007, https://www.lavozdegalicia.es/noticia/espana/2007/10/14/tener-condenar-franquismo/0003_6226393.htm. 167 In 1994 and 2004 the Minister of Defence commemorated the 47.000 men, as part of the German Wehrmacht, that had been sent to Russia to fight alongside Hitler at the Russian front in 1941. From 1994 onwards the government has repatriated the remains of fallen soldiers at the Russian front. The Francisco Franco Foundation is a legal foundation, which at least untill the 1990’s received public fundings: http://www.eldiario.es/politica/PP-enaltecimiento-franquismo-considerado-delito_0_184432123.html. 168 “Argentina ordena detener al exministro Martín Villa y a otros 19 imputados por crímenes del franquismo”, ElDiario.com, October 31, 2014, http://www.eldiario.es/sociedad/exministro-Martin-Villa-imputados- franquismo_0_319519072.html. On the day of the commemoration in Congress, an alternative act was organized by Unidos Podemos: https://www.youtube.com/watch?v=uvZ9kl6vWyM.

41 any reparation.169 As mentioned earlier, this is extended to a territorial level in which victims depend on the politics of autonomous communities whether they are heard.

169 Ramón Saéz Valcárcel, “Justicia transicional y España, ¿Se puede juzgar la historia?”, 100. Also Emilio Silva, “España: es hora de acabar con el apartheid de las víctimas de la violencia”, ElDiario.es, July 13, 2017, http://www.eldiario.es/zonacritica/Espana-acabar-apartheid-victimas-violencia_6_664643554.html.

42 Chapter 3. Spain’s impunity brought before the EU.

This section will further analyse the various cases which have been brought to the European Union by Spanish citizens, representatives of victim’s associations and Members of the European Parliament since the year 2012. These have been presented mainly by means of the Petitions initiative, the Europe for Citizens program and by parliamentary questions and public meetings, Jornadas de la memoria, facilitated and/or organized by Spanish members of the European Parliament. As has been shown, the motives behind these initiatives correspond to those which inspired the Querella Argentina in as such they are a response to the difficulties with which the victims and family members have been faced to be heard and see their cases resolved by means of the Spanish judicial, legislative and executive state institutions.170 They directly respond to the developments in Spain and, in turn, to the state’s negative response to collaborate with the Argentinean investigation which has been another motive to present various questions and petitions. The debate that was held in the European Parliament as a response to the report that was issued in 2006 by the Council of Europe and the need to condemn the Franco regime, coincided with debates held in the Spanish parliament in 2006 on the proposition of a law of historical memory. The limited scope of this law, the Garzón- trial, the visits to Spain by the United Nation’s Commissioners of Human Rights and Enforced Disappearance in 2013 and 2014, as well as a major political reconfiguration in Spain that had started in the European Parliament in 2015 and that would end the two- party system that had dominated Spain since 1978, these are all factors that determined the course of the cases that have been presented to the EU and the formation of an informal working group of historical memory by Spanish MEP’s of various political groups. At the same time, they coincide with a process in the EU towards a politics of memory and the strenghtening of fundamental rights which correspond with the objectives and arguments of the Spanish petitioners.

170 The obstructions by the judicial, executive and legislative powers are repeatedly observed by Amnesty International: “Ni se investiga ni se coopera en los procesos sobre crímenes de la Guerra Civil y el franquismo”, Amnesty Internacional, June 17, 2013, https://www.es.amnesty.org/en-que- estamos/noticias/noticia/articulo/ni-investiga-ni-coopera-en-los-procesos-sobre-crimenes-de-la-guerra-civil-y- el-franquismo/.

43 3.1 European Commission’s politics of memory

Since the year 2007, the European Union programme, Europe for Citizens, directed by the Education, Audiovisual and Culture Executive Agency (EACEA) of the European Commission, figures as an essential tool for the construction of a European politics of memory. The objectives of the programme have served as a recognition for many of the Spanish cases that have been presented to the EU and is a recurring reference in the petitions.171 The programme was set out to improve civic and democratic participation at EU level, and strengthen citizens’ commitment and understanding of the EU by means of an “active dialogue with civil society and representative associations.”172 In as such, one of the strands of this programme, European Remembrance, functions as a way to build this commitment and a shared identity. Although with a limited budget, it has a high ambition: to “develop a sense of a European identity that is based on shared values, history and culture.”173

The European Union is built on fundamental values such as freedom, democracy and respect for human rights. In order to fully appreciate their meaning, it is necessary to remember the breaches of those principles caused by Nazism and Stalinism in Europe. By commemorating the victims, by preserving the sites and archives associated with deportations, Europeans will preserve the memory of the past, including its dark sides. It is particularly important to do so now, as witnesses are progressively disappearing.174

The movement of historical memory that has presented its cases to the EU identify strongly with these principles on the function of historical memory. The question is how this programme has contributed in a better understanding of the particular Spanish past as part of a shared European memory while at the same time enhancing citizens’ democratic participation by means of the funding of Spanish projects “of a local dimension that reach citizens in their everyday life, on issues that are of relevance for them.”175 In other words, what have been the results of the blending of these seemingly shared objectives of the European programme and the “social nerve”, the concerns of civil society, in Spain regarding the unresolved legacy of the past that has come to the surface since the year 2000?176

171 The majority of the Spanish cases explicitly refer to the shared values and objectives of the Europe for Citizens program, like the petition by the Asociación de victimas 3 de Marzo, the petition to create a Truth Commission, the various petitions which denounce the (breach) of framework 2008/913/JHA and the letter addressed to Frans Timmermans. 172 EACEA, Europe for Citizens Programme 2014- 2020. Programme Guide, Version valid as of january 2017, dhttps://eacea.ec.europa.eu/sites/eacea-site/files/2017_programme_guide_en.pdf, 4-6, 17-18. 173 EACEA, Europe for Citizens Programme 2007- 2013. Programme Guide, Version valid as of january 2013, http://eacea.ec.europa.eu/citizenship/programme/action4_en.php, 4-6. 174 EACEA, Europe for Citizens programme, Action 4- Active European Remembrance, last updated january 1, 2014, http://eacea.ec.europa.eu/citizenship/programme/action4_en.php. 175 EACEA, Programme Guide 2014- 2020, 6. 176 The term “social nerve” is taken from the introduction in the Programme of priorities on historical memory for the years 2015- 2016 established by the Basque Government in which it states that the motivation to develop a politics of memory, derives from the “social nerve” of civic society that has become a palpable reality. Dirección de Víctimas y Derechos Humanos, Secretaría General para la Convivencia, available at

44 To start with, this programme, like various other European initiatives on historical memory, reflect how National Socialism, especially the Holocaust, and Stalinism paradigmatic moments in recent European history.177 During the first period, from 2007 to 2013, funds were conceded to “projects related to Stalinism and Nazism and to preserve sites of memory and archives”, while the period 2014- 2020 extended its criteria to include activities that “reflect on the causes of totalitarian regimes in Europe’s modern history (especially but not exclusively Nazism) which led to the Holocaust, Fascism, Stalinism and totalitarian communist regimes) and to commemorate the victims of these crimes”, and activities concerning other moments and reference points in recent European history.178 The restricted criteria during the first period limited the probability of the inclusion of Spanish projects concerned with the civil war and the francoist dictatorship, the causes for the limited amount of applications have not been analysed for this thesis. Between the years 2007 and 2013 a total of 28 Spanish applications were sent in from which 7 were selected.179 The majority of these selected projects, a total of 6, came from public institutions based in Catalonia and Madrid. Five of which were directed by the Provincial Government of Barcelona, the Government of the autonomous community of Catalonia or the University of Barcelona. The project from Madrid was directed by the Centro Sefarad, a cultural institute in Madrid administered by the state Ministry of Foreign Affairs. The other project was created by a private foundation, Fundación Juan de los Toyos, situated in the Basque Country.180 These projects share the German Nazi- regime and the Jewish victims of the Holocaust as their main focal point.181 However, while elucidating on National- Socialism, these projects at the same time leave out the broader contextualisation and the collaboration of fascist- Spain with the Nazi- regime. The shortcoming of this approach, by reducing totalitarianism to nazism and the Holocaust, results in a restrictive perspective which easily excludes Spain’s past. This restricted approach has been observed by the European Parliament in 2013. These limitations, it stated, however understandable the EU’s concern with the Holocaust, run the risk of reducing the World War and the extermination of Jews to a “German problem” instead of a shared accountability which engages in a more critical ‘culture of remembrance’ by nation states to comes to terms with their own past and national myths.182 Especially in Spain’s case, where there has never been a public reckoning https://www.euskadi.eus/contenidos/informacion/documentos_paz_convivencia/es_def/adjuntos/Programa_ base-prioridades.pdfProgram. 177 European Parliament, European Historical Memory: Policies, Challenges and perspectives. Author: Markus J. Prutsch. Directorate General for Internal Policies, Policy Department B: Structural and Cohesion Politics,Culture and Education, September 2013, 18-21, http://www.europarl.europa.eu/RegData/etudes/STUD/2015/540364/IPOL_STU%282015%29540364_EN.pdf. 178 EACEA, European for Citizens- European Remembrance, programme of 2007- 2013 and 2014- 2010 to be found on https://eacea.ec.europa.eu/europe-for-citizens/strands/european-remembrance_en. 179 EACEA, Europe for Citizens Programme 2007- 2013, Citizenship results, http://eacea.ec.europa.eu/citizenship/results_compendia/results_en.php. 180 EACEA, European for Citizens 2007-2013, Action 4- Active European Remembrance, http://eacea.ec.europa.eu/citizenship/programme/action4_en.php. 181 One of the projects however, elaborated a census of the Spanish victims in the German camps. This was done by Memorial Democratic, the department within the Generalitat de Catalunya. It was announced that the results will be made available on their website: http://memoria.gencat.cat/ca/organismes/memorial- democratic/. 182 European Parliament, European Historical Memory: Policies, Challenges and Perspectives, author: Markus J. Prutsch, Directorate- General for Internal Policies, Policy Department B: Structural and Cohesion Policies,

45 with its past, this allows national myths on Franco’s implication with the Axis Powers to continue to persist and even to be spread.183 As a result of these restricted criteria, Spain’s fascism and national-catholic regime not only remained outside the scope of attention within this programme of a shared european history of totalitarianism, but has also proven to prioritize a specific category of victims, namely the Jewish population, while the Republican and other Spanish prisoners remain invisible. Almost 10.000 of them were imprisoned in Nazi- camps, a result of agreements between Franco and Hitler.184 While the UN, Amnesty International and victims’ associations have denounced the selective approach towards victims in Spain, the EU programme did far from solving these difficulties. The Centro Sefarad illustrates this ambiguity with its EU funded project Commemoramos 27/1, Holocausto y Memoria. It chose The International Day to Commemorate the Holocaust and to Prevent Crimes Against Humanity on 24 january to figure as a central theme and included a visit to what has become the universal symbol of the Holocaust, Auschwitz. This seems incongruent in the light of Spain’s particular historical facts: the majority of the Spanish prisoners ended up in Mauthausen.185 Furthermore, the Ministry for Foreign Affairs, as part of the PP presidency, has shown to categorically reject initiatives that commemorate these Spanish victims of the Holocaust and implement a politics of historical memory.186

Culture and Education, september 2013, http://www.europarl.europa.eu/RegData/etudes/STUD/2015/540364/IPOL_STU%282015%29540364_EN.pdf, 26- 28. 183 In 2015, A Spanish citizen, Cristina Calandra Hoenigsfeld, (grand)daughter of Jewish refugees from Poland that fled to Spain and familymember of 18 victims of the Holocaust, filed a complaint “ For neglect of its duty and the historical truth” in 2015 by means of a petition to the European Parliament about three of the selected projects for not including to mention the anti-Semitic laws of 1939 proclaimed by Franco. These laws had obliged her grandparents to convert to Christianity before being allowed to enter Spain. She has never received an answer by the EACEA to which her petition had been redirected. Documents provided by petitioner Cristina Calandra Hoenigsfeld. https://petiport.secure.europarl.europa.eu/petitions/en/petition/content/0089%252F2015/html/Verzoekschri ft-nr.-0089%252F2015%252C-ingediend-door-Cristina-Calandre-Hoenisfeld-%2528Spaanse- nationaliteit%2529%252C-over-EU-financiering-voor-3-projecten-van-het-programma-%2522Europa-voor-de- burger%2522. 184 Carlos Hernández, La responsbilidad franquista, Deportados.es: http://deportados.es/culpables- responsabilidad-franquista. 185 A number of 7.532 prisoners, http://deportados.es/hechos-espanoles-deportados. 186 In january 2018, the President of the parliament of the autonomous community of Madrid rejected the proposal to name the victims from Madrid that had been deported to the Nazi camps on the occasion of the International day of the Commemoration of the Holocaust. Carlos Hernández, “La presidenta de la Asamblea de Madrid se niega a nombrar a los madrileños presos en campos nazis en un homenaje”, ElDiario.com, january 13, 2018, http://www.eldiario.es/sociedad/presidenta-Asamblea-Madrid-madrilenos- holocausto_0_728627830.html e for a national day of commemoration. The municipality of the city of Madrid did name these victims, for the first time, in February 2018 http://www.publico.es/politica/madrid-homenajea- 449-republicanos-madrilenos-deportados-campos-concentracion-nazis.html Another incongruency by the PP was to be observed regarding its stance on a television series on the life of Ramón Serrano Suñer, a revisionist, dramatized and romantized story on the person that collaborated with Hitler and was responsible for the deportation of the Spanish prisoners. On the questions from Aitor Esteban, spokesperson in Congres of the PNV, the Minister of Justice Rafael Catalá responded on this series about a “certain period”:“Who were they to decide what was to be seen and what not”, it was a matter of “freedom of speech”:https://www.eaj-pnv.eus/noticias/aitor-esteban-insta-ministro-justicia_44283.html. http://www.europapress.es/nacional/noticia-catala-defiende-ley-memoria-historica-aplicando-todos-dias- 20161221104117.html.

46 Several questions about these restricted criteria were raised from within the European Parliament as well as from HISTAGRA, a research group led by Lourenzo Fernández Prieto of the University of Santiago de Compostela that has been investigating the history of Francoism in Galicia since 2006. 187 HISTAGRA expressed it’s disapproval on the restricted criteria for the “incomprehensible limits” it imposed, by leaving out, amongst others, the “persecutions as a result from the military coup in 1936 in Spain which belongs to European processes that historically are to be taken as a whole.”188 The criteria for the period 2014- 2020 widened its criteria to include other periods and totalitarian regimes. The start of the Spanish Civil War was included as one of the historical events eligible for funding in 2016. 189 This period has seen a considerable rise in the number of Spanish applications compared to the first period. While it received a total of 102 Spanish applications for the years 2014, 2015 and 2016, the number of selected projects went down to 6 compared to the 7 selected apllicants in the period before.190 Compared to the applications over the years 2014 and 2015, 27 and 28 respectively, the number of applications that were sent in for the year 2016 almost doubled to 47. Regarding the projects for the year 2016, in at least 38 out of the total of 47 applicants, the Spanish civil war figured as its main object of activity.191 From the three projects that were selected in 2016, the one that is directed by the University of Barcelona directly relates to the Civil War. The other two, directed by the BEIT Project and Fedaración Maranatha, are rather aimed at encouraging an intercultural dialogue and mutual tolerance between various etnic sectors in an urban setting and, in the case of the BEIT project, the Spanish memory of the civil war figures in an indirect way. With regards to the year 2017, one of the three selected Spanish projects, directed by the Fundación Solidaritat directly relates to the Spanish past of the Civil War and the dictatorship.192 Regarding the total of selected projects over both periods (2007- 2017) the following observations can be made. First, 12 out of the 13 selected projects are situated in the urban regions of Catalonia and Valencia. Furthermore, 8 out of these 13 projects are directed by public institutions from Catalonia: the Provincial Council of Barcelona, Memorial Democratic

Another example of PP’s selective forgetting is demostrated by the President of the Comunidad de Madrid, Cristina Cifuentes. During a visit of an international exhibition in Madrid on the Holocaust (Holocausto. No hace mucho. No muy lejos.) She stressed the importance of the need not to forget.http: http://www.publico.es/politica/analisis-dictadores-son-peores-franco.html //www.publico.es/politica/cifuentes-queda-sola-defensa-impunidad-franquista.html 187 Questions were raised by MEP’s to the European Commission in 2014 and 2015 as well as during the Jornada de la memoria: Con Impunidad No Hay Democracia in september 2015. See appendix. During this meeting, Marc Richir, DG Home Affairs, Deputy Head of Europe for Citizens, had been invited. He was called upon to expand the priorities set out for this programme. 188 “( ) Central nos procesos da época europeos que se aborda historiograficamente como un todo”. Extract from letter to MEP Ana Miranda and ( ) Francisco Camaño, 21 June 2013. In 2012 and 2013, the University sent in for application a project entitled Hidden Memories from the European Past: Victims, Perpetrators and Saviours beyond the Holocaust and the Gulag. Information facilitated by the University of Santiago de Compostela. HISTAGRA created an online database of testimonies, names of victims and information, Nomes e Voces: http://www.nomesevoces.net/. 189 EACE, Europe for Citizens- european remembrance 2014-2020, https://eacea.ec.europa.eu/europe-for- citizens/strands/european-remembrance_en. 190 EACEA, Europe for Citizens, selections results, https://eacea.ec.europa.eu/europe-for-citizens/selection- results_en 191 These dates have been facilitated by the EACEA upon my request. 192 EACEA, European Remembrance projects, selections 2017, list of succesfull aplicants, https://eacea.ec.europa.eu/sites/eacea-site/files/selected_applicants_remem_2017.pdf.

47 a department within the Government of Catalonia, while the European Observatory on Memories (EUROM) is founded by the Fundación Solidaritat which in turn is associated to the University of Barcelona.193 Also, the selections show how the same applicants have received funding repeatedly: this is the case with EUROM, the Fundación Solidaritat and the University of Barcelona, the BEIT Project and the Maranatha federation.194 Furthermore, over the period 2014 untill 2017, eachh one of the projects, except for the Marantha project and the Fundación Juan de Toyos, were all funded with the maximum amount of available budget: 100.000 euro. These findings seem to be at odds with some of the objectives of the programme: “different types of organisations will be represented: local authorities, NGO’s research institutes, survivors organisations” and to support small projects. In its assessment on the Europe for Citizens program, the European Parliament underlined the need to obtain a more balanced participation, attempting to level existing geographical differences and stimulating the participation of groups that are difficult to reach” and to “give opportunities to small- scale initiatives and non-institutional apllicants”. 195 This objective is not reflected in the Spanish selections. Neither do these selected projects seem to represent the social movements of historical memory on a local and regional level. Although the Catalonian applicants, and especialy the EUROM, dispose of a wide network of European partners and could very well contribute in placing Spain’s past into a European comparative frame, it reaches out to the urban regions of Barcelona and Europe rather than to the interior and rural regions of Spain. Catalonia, like the Basque Country, Aragon, Andalucía and Navarra have developed, albeit only recently, their own politics of memory whereby victims generally enjoy the support of public institutions. This contrasts with the specific local realities and obstructions that social movements, victims’ associations and relatives encounter in smaller, rural and more conservative regions of Spain. While the EUROM engages in an academic and theoretical debate on the processes of memory, the daily realities and obstructions with which the victims and their families are faced take place far removed from these conference halls. The funding of different types of organisations and non- institutional projects of small scale, which recommended in the mentioned evaluation report could well contribute in facilitating these local needs. So far, this has not ben realised by the EU programme. Despite the fact that the number of applications has seen an exponent growth over the last years, the same public institutions are selected repeatedly over different periods, and granted with a maximum amount of funding.196 Further analysis on the selection process by the EACEA and the team of experts need to elucidate on the causes of rejection of Spanish projects. The fact that a project by the ARMH was rejected in 2014 raises questions on this process of selection given the objectives, experience, professionality and international recognition and network of the ARMH which seem to meet all the criteria of the EU programme.197

193 EUROM, European Observatory on Memories, http://ns3002612.ovh.net/sig/eurom_wp/about-eurom/. 194 Marantha project received 59. 750 euro for each period for the years 2016- 2018 and 2017- 2019. Fundación Juan de Toyos received 92.000 euro for the year 2013. 195 European Parliament, Europe for Citizens (2014-2020), Directorate General for Internal Policies, Policy Department B: Structural and Cohesion Politics, Culture and Education, September 2012, 5, http://www.europarl.europa.eu/RegData/etudes/note/join/2012/495822/IPOL- CULT_NT(2012)495822(SUM01)_ES.pdf. 196 This is the case with the project Maranatha, EUROM, Fundacion Solidaritat, BEIT project. 197 This project was entitled: Transnational perspectives in the search for those disappeared during the Spanish Dictatorship: European Encounters with the quest for Truth, Justice, and Reparation, presented to compete for the year 2014, which aimed to develop a European Network of Historical memory, to “increase the visibility of

48 It can be concluded that the promising answers by the European Commission on the questions by the MEP’s regarding the funding of Spanish projects and the inclusion of the Spanish Civil War in 2016 have not been reflected in the selection results. 198 What’s more, the Holocaust paradigm, especially in the first period, does not invite for a self critical debate on one’s own national history. This is even more questionable given the obstacles by the Spanish state to engage in a selfcritical reflection on the extermination of political, social and religious opponents perpetrated on Spanish soil and the massive violations of human rights.199 Furthermore, a self-critical reflection can not exist without taking into consideration how developments in Spain: the civil war,the dictatorship and the transition, were deeply shaped and connected to a european course of events. Spain’s legacy of the unresolved past exposes the flaws and shifts of priorities of the European integration process. As the history of Spain within the post- WWII European order has shown, the international context of the Cold War led to Franco’s consolidation in which he became an ally of the west. Spain became a memberstate of the EEC without any mechanisms of transitional justice. However, the EU programme tends to present the European project as a negative foundation myth in which the EU is represented as the result of a teleological process, in which totalitarianism takes place outside of its borders. the European memory programme would do well to adopt a more self-critical understanding regarding its own collective memory of the European integration process.200 As it is, rather than reflecting the “social nerve” of Spanish society and facilitate the process of coming to terms with its past, the programme “invites to political passiveness in the present” and national myths to endure that shield away from the state responsabilities in the present towards the victims of the manifold violations of human rights. The project of the Casa Sefarad provides the best example of this comfortable narrative of foreign crimes. 201 In the case of Spain, the EU programme has by far met the objective cited at the start that by means of “commemorating the victims, by preserving the sites and archives associated with deportations, Europeans will preserve the memory of the past, including its dark sides. It is particularly important to do so now, as witnesses are progressively disappearing”. Instead, victims’ associations in Spain that actively seek to find the remains of the missing persons are not included in this programme.202

Spanish enforced disappearances and increase transnational considerations […]”. It consisted in field work on three exhumations of mass graves in different parts of Spain and a series of annual meetings/conferences in various European cities regarding its different historical, technical, social and legal dimensions. Furthermore“it aims to raise awareness about democracy and liberty, fundaments of the EU, in which the thousands of women and men believed, who still remain missing. Their democratic values were the seed of democracy that we enjoy today in Europe”. Document provided by the ARMH. The EACEA has rejected my request to view other Spanish projects that were rejected for the year 2016. 198 On the questions, see appendix. 199 Paul Preston, Spanish Holocaust and Francisco Moreno Gómez, Los desaparecidos de Franco. 200 EP, European Historical Memory, Policies, Challenges and Perspectives, 25-28 and 39. 201Álvaro Sánchez Catrillo, “La memoria del Senado: Holocausto sí, víctimas de Franco, no”, january 1, 2016, https://www.infolibre.es/noticias/politica/2016/01/27/memoria_historica_43959_1012.html. 202 See footnote 183.

49 3.2 Jornadas de la memoria in the European Parliament. Testimonies of repression.

The European Commission strongly steers Europe memory by means of its selection of historical moments and projects. In turn, the initiatives that have been taken place within the European Parliament regarding Spain’s historical memory have allowed the personal testimonies of social memory to be heard.203 Since the Council of Europe in 2006 held its first debate on the Franco regime after the end of the dictatorship, members of the European Parliament have facilitated and organized several public meetings, “[…] to show that the problem of the victims who have not received truth neither justice nor reparation is continuing despite of the time that has passed since Franco died.”204 These public acts have taken place on dates of symbolic significance in the recent history of Spain. In 2014 and 2015 these meetings were held on March 3 and 4 , dates that allude to the so-called ‘matanza de Vitoria’, the massacre of Vitoria, the protest march in 1976 that ended with the violent death of five citizens by the police forces. In 2015, the meeting entitled ‘Con impunidad no hay democracia. Juzgar los crímenes de la dictadura franquista. Jornadas sobre Justicia Universal y Memoria historica’, were held between September 21 and 23, and co-organized by a number of Spanish MEP’s of different political groups that have formed an informal working group on historical memory. On this occasion, the last persons sentenced to death in september 1975 by Franco were commemorated. The most recent acts and debates were held on 26 April entitled ‘Truth, Justice, reparation. Cities and nations for remembrance’, exactly 80 years after the city of Guernica was destroyed by the Nazi Condor- Legion and Italian air-raids in 1937 and on 20 november, 2017: ‘Francosim Post Franco. Politics of European remembrance’, on the occasion of the Amnesty Law that was adopted in november 1977. 205 These meetings serve various functions. They raise attention to the victim’s cases as they accompany the petitions by victims’ associations or questions by the MEP’s to the European Commission. Also, they have allowed victims and relatives to give an account of their personal experiences. The vivid personal accounts and testimonies show the reality of an unresolved legacy that is intimately linked to the EU as a community of values and fundamental rights based on a shared European history: “[…] in order for the EU to perceive the crimes of Francoism the way that it does those of former Yugoslavia or Nazi Germany.”206 A similar function serve the meetings by the Committee on Petitions of the European Parliament. The meetings to debate the various citizens’ initiatives, inthis case by Spanish citizens are public and live- streamed and partly function as public forums by which Spain’s past and the serious legacy of human right violations becomes more widely known. 207 As

203 There has been held several meetings since 2014. For a list of the meetings, see appendix. 204 Izaskun Barandica Bilbao, January 2017. http://www.izaskunbilbao.eus/2017/04/recordamos-el- bombardeo-de-gernika-pidiendo-que-la-politica-espanola-sobre-memoria-deje-de-ser-la-excepcion-en-europa/ 205 See appendix.https://efa.greens-efa.eu/en/article/event/francoism-post-franco/ 206 Luis Naranjo, representative of the autonomous community of Andalucia during the meeting in the EP in september 2014. 207 In 2012 the Committee discussed the case of access to documents regarding the fate of Anselmo Gómez, and in 2015 on the cases of niños robados during which Ruth Anne Appleby, a British citizen and Fernandez González de Tena, Ana Cueto and their lawyer David Serra Lazaro related their experiences and the

50 such, these meetings function as public acts of memory which serve in part as acts of recognition, and redress for these victims. This is expressed by Noelia Camacho, granddaughter of Anselmo Gómez Bermudo:

[ ] But on a personal level it was a positive experience. My mother felt that she was being heard, that her story was given relevance by an institution. Something that in Spain NEVER happens. [ ] For the first time, in the European Parliament she felt good, understood and respected. And she heard the name of her father in public, expressed by politicians. This is a recognition that Spain won’t give us. The Law on Historical Memory has become a useless piece of wasted paper. […] Although it did not serve our case, it did serve her morally. 208

These public acts and meetings in the European Parliament seem to represent the objectives and values of the EU memory programme and the idea of the EU as a community of shared values. Nonetheless, in 2012 the initiative by MEP Raúl Romeva i Rueda to hold an exhibition in the European Parliament on the exhumation proces in Spain was rejected. This exhibition, entitled Exhumando fosas, recuperando dignidades, consists of a series of 40 photographs that records the various aspects of an exhumation of mass graves. It has been elaborated and directed by the Department of Anthropology of the Society for Science ARANZADI and the ARMH and have been shown on various occassions, in unversities and other public spaces in and outside of Spain.209 Upon the argument that these poweful images could cuase political controverse, the MEP responsible for the exhibitions, the irish Jim Higgins, member of the European’s People Party, rejected to allow the exhibition to be held. The ARMH filed a compliant to the European Ombudsman, arguing that the work tells a story of a shared European reality, that “unfortuntaley the history of Europe is written with such powerfull images, many of them written in Spain during the Civil War”, and it stated that this “controversy to which you refer is precisley the basis on which democracy and political diversity is founded. But when it concerns the fate of disappeared persons who are reflected in this exposition, there should not have been any controversy, because the cause of death, dispossession, imprisonment, exile and disappearance of 113.000 men and women were never in dispute.”210 The ARMH pointed to the incongruity by allowing temporary exhibitions with powerfull images on the Holocaust and the victims of ETA by asking “whether these would have been banned if someone had objected to it?”211 Raúl Romeva expressed his disbelief and

impediments they experienced in Spain. This resulted in a fact- finding visit to Spain in 2016 by the working group of the Committee of Petitions. 208 Noelia Camacho, email message to author, march 22, 2017. 209 ARANZADI, http://www.aranzadi.eus/antropologia-fisica/memoria-historica. The exhibition was shown in Berlin, by the Deutsche Gesellschaft, a think-thank and center of debate, http://www.deutsche-gesellschaft- ev.de/. 210 Letter of the ARMH to the European Ombudsman, february 8, 2013 and march 14, 2013. Facilitated by Marco González, ARMH. Answer by the Ombudsman: https://www.elconfidencialdigital.com/politica/Parlamento-Asociacion-Recuperacion-Historica- Bruselas_0_2057794217.html 211 Furthermore, in 2013 the EP showed the exhibition Totalitarianism in Europe by the Platform Memory and Conscience. It exhibited a series of panels with images and text on multiple war criminals and perpetrators of

51 retorically asked whether, instead of claiming that the images are shocking, the fact that these mass graves still exists in Europe is not a more legitimate reason to be shocked. 212

nazi and fascist war crimes during WWII. https://www.memoryandconscience.eu/2013/11/17/presentations- of-the-international-travelling-exhibition-totalitarianism-in-europe/. 212 Blog Raúl Romeva, february 6, 2013, https://blocs.mesvilaweb.cat/raulromeva/?p=239545 and may 7,2013, https://blocs.mesvilaweb.cat/raulromeva/?p=245099.

52 3.3 Violation of Europe’s Fundamental rights: “Es justicia que pido.”213

“Our family members are no archaeological remains. It was not the UNESCO that came to visit us, it was the UN.”214

The public acts of memory that are held in the European Parliament accompany petitions and parliamentary questions presented by Spanish MEP’s, citizens and by victims’ associations who appeal to the EU as a community of values of fundamental rights, democracy and the rule of law, and to the competences the EU has as a legislative and executive power to uphold these values. These petitions are a call for justice, in which memory is not just a cultural phenomenon but first and foremost a question of human rights and democracy. They appeal to the European Commission as the Guardian of the Treaties, the gatekeeper of these values which are laid down in the EU Treaty and the European Convention of Human Rights to denounce the breaches of these same fundamental values and rights by the Spanish public authorities. The petitions recall the international obligations to which the Spanish state is bound to comply with. Many of the petitions correspond with the recommendations that were made in 2005 by the Parliamentary Assembly of the Council of Europe that has been left unattended since, both within the EU as within Spain. The Parliamentary Assembly concluded in 2005 that the Council of Europe and the Spanish government should establish an independent commission of experts to investigate the violations of human rights under the Franco dictatorship. 215 The petition presented by the Plataforma Comision De La Verdad in 2014 to create a truth commission correspondents with this recommendation.216 The petition of the Plataforma also called upon the EU to adopt the conclusions and recommendations stated in the reports of 2014 on Spain by the UN. The public availability of archives, stated in the case of the disappearance of Anselmo Guillermo Gómez also figured as one of the recommendations by the Council of Europe. This petition was not solely an individual claim but enlisted the petitioner’s appeal to the EU to urge the Spanish state to take on its obligation in the finding and exhumation of the mass graves.

213 Petition made to the European Parliament by Eduardo Raya in 2012, father of a niño robado. Document provided by Ingelise de Boer, the European Parliament. “Niños robados: ‘Quién era el bébé que enterramos’”, Interviu, July 2, 2012, http://www.interviu.es/reportajes/articulos/ninos-robados-quien-era-el-bebe-que- enterramos. 214 In 2017, during debates on the elaboration of a Law of Historical Memory in Andalucia, family members and victims argued that this law should not be directed by the Departmant of Culture but by the Justice Department: “it’s a matter of human rights” as they stated. http://www.eldiario.es/andalucia/Victimas- franquismo-Junta-recuperar-restos_0_620488274.html. 215 Parliamentary Assembly COE, Leo Brincat, doc. 10737, Need for International Condemnation of the Franco Regime, November 11, 2005, http://assembly.coe.int/nw/xml/XRef/Xref-DocDetails- EN.asp?FileID=10438&lang=EN 216 The petition followed the initiative in 2013 to create a Truth Commission through a non- law proposition presented by various political groups in the Spanish Parliament at the instigation of victim’s organizations. The UN had recommended to create a truth commission in its report on Spain in 2013. This proposition was rejected by the PP. After the Petition to the EU, other initiatives has followed at national level. A truth commission has never been established in Europe. See Plataforma Comisión de la Verdad, https://comisionverdadfranquismo.com/.

53 Other petitions denounce Spain’s violation of various European and international treaties. In 2015, Jacinto Lara Bonillo, director of NGO Asociación Pro Derechos Humanos de España (APDHE), representing the national Coordinator for the Argentinean investigation (CEAQUA), and the Asociación de Víctimas de 3 de Marzo appealed to the European Parliament and the European Commission to investigate Spain’s breach of international and comunitary law.217 Similar arguments on the violation by Spain of the Charter of Fundamental Rights of the European Union are found in the twelve petitions that concern the niños robados, theft and illegal adoptations of new-born babies from public hospitals.218 Each one of the petitioners denounce Spain’s impediments to an effective remedy because of the lack of initiatives by the Spanish state authorities, public prosecutors and judges to investigate their cases that cover the period between the 1960’s and 1990’s. The case presented in 2012 by Eduardo Raya Retamero, whose daughter presumably had died at birth in 1990 in a public hospital in Granada, asks for justice, “es justicia que pido”, denouncing the “massive theft of children from public hospitals in Spain”.219 In 2015, during the meeting held by the Committee on Petitions to examine these cases, lawyer David Serra Lazaro, who represents the national association of victims ANADIR, stated that 90 percent of the 1.800 cases that had been denounced in Spain by ANADIR have been archived. Also, he argued, the affected family members and victims are the ones who amount for the costs and have to take practically all the initiatives for the investigation themselves.220 A number of questions by Spanish MEP’s have also addressed Spain’s breach of the EU Treaty for its obstructions to cooperate with the Argentinean investigation.221 It asked the EC if “membership of the European Union is compatible with this obstructionist approach to such a serious case?” and whether “ there is any dialogue with the Spanish authorities to guarantee the compliance with the European Charter of Fundamental Rights?”222

217 These petitions denounced the breach of the European Convention of Human Rights and the European Charter of fundamental rights, amongst others the right to an effective judicial remedy and investigation. Also, it denounced Spain’s violation of the International Convenant on Political and Civil Rights (ICCPR) adopted in 1977, before the Amnesty Law was adopted. This convenant serves as a major and recurring argument to question the legality of the Amnesty Law. Furthermore, the petition asked the EU to urge the Spanish state to take on an adequate state policy regarding questions of the exhumations of the mass graves, to facilitate the access to archives, annul the sentences of victims by the Franco regime, implement (study) programs on human rights and democratic memory and to collaborate with the investigations carried out by the Argentinean court. 218 The robo de niños continued after the end of the dictatorship. What started out as an ideologically motivated measure in 1936, to erradicate the red gene, continued as “ideology combined with profit”, and under the strict, repressive religious stigmas, single pregnant women held a vulnerable social and economic position. Pilar Navarro Rico, “Soledad Luque: ‘Los niños robados, un crimen de la dictadura y de su herencia posterior’”, Crónica Popular, Los crímenes del franquismo, 2013, 142- 153. With the documentary of 2006, Els nens perduts del franquisme, by Montse Armengou I Ricard Belis, for the first time made this problematic legacy public for a wide audience. https://vimeo.com/2599250. 219 See note 225. 220 See apendix. In 2015, ANADIR presented a case to the ECHR representing 192 persons affected. https://www.diagonalperiodico.net/global/28514-caso-ninos-robados-ante-tribunal-europeo-derechos- humanos.html 221 See appendix for a list with the questions. 222 Parliamentary question by Izaskun Bilbao Barandica “Interpol intervention in proceedings for crimes against humanity”, 14 november 2014. See Appendix.

54 Among these parliamentary questions directed at the Commission, a category can be distinguished that relates to acts that amount to an infringement of the Council Framework 2008/913/JHA, “on combating certain forms and expressions of racism and xenophobia by means of criminal law”, which covers the “publicly condoning, denying, or grossly trivialising crimes of genocide, crimes against humanity and war crimes.”223 This framework can be considered a constituent element of Europe’s memory policies in which the past, and the experiences of totalitarianism, are considered to serve as a lesson on which the European Union has been built. As such, alongside the function of remembrance and education on Europe’s history to safeguard “ lasting peace” in Europe, it functions as a mechanism of non- recurrence.224 The manifestations in Spain that were demounced by the MEP’s as violating the Framework are manifold and regard, among others, a tribute held in Catalonia in 2013 to honour the Spanish Nazi unit, the División Azul, during which the delegate of the Spanish state, María de los Llanos de Luna, awarded the Brotherhood of the División Azul, whose members were dressed in the uniform of the fascist party, the Falange; a tribute to the Nazi Condor Legion responsible for the bombing of cities like Guernica, Durango, Jaén, Barcelona and Teruel; an exhibition about General Yaguë which was sponsored by the city council of Burgos; the refusal by the city council of Vigo to comply with the law of historical memory by appealing against a ruling that ordered the demolition of a fascist monument in the city, and a video show during a public festivity held in a small town, Guadamur, in central Spain. 225 Recently, questions have been asked about the fact that the Francisco Franco Foundation is responsible to run guided tours in one of Franco’s real estate’s, the Pazo de Meirás,. The Foundation stated that it provides “an honour and an excellent opportunity to show the general public the greatness of the figure of Francisco Franco.”226 These acts display a continuation of the distortion of historical facts and glorification of Franco’s regime which repeat Franco’s foundational myths that had been spread for decades by the educational system and media. Furthermore, they also display how these views are not only incorporated by marginalized groups of extremeright ideology but also by public representatives of the state and local administrations, as has been analysed in the previous chapter. Ultranationalist currencies have reappeared in Europe, and within this context of “recycling of Cold War myths”, Graham and Casanova argue, Spain has “lost its shame [as] the rest of Europe comes to be more within its own image.”227 The questions by the MEP’s reveal a reality in Spain which is inherently part of current European processes but which is not so visible in the rest of Europe. It is to be taken as the manifestation of the

223 European Council, Council Framework Decision 2008/913/JHA of 28 november 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law. http://eur-lex.europa.eu/legal- content/EN/TXT/?uri=CELEX%3A32008F0913. 224 European Parliament resolution on remembrance of the Holocaust, anti-semitism and racism, 2005. http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P6-TA-2005- 0018+0+DOC+XML+V0//EN. 225 See Appendix for the list of questions. Angels Piñol, “La delegada del Gobierno en Cataluña entrega un diploma a la División Azul”, El País, May 16, 2013, https://elpais.com/ccaa/2013/05/16/catalunya/1368708685_692728.html. General Yaguë, also called “el carnicero de Badajoz” (the butcher of Badajoz) was responsable for the massacre of some 4.000 citizens of the city of Badajoz in 1936, after it had been taken by Yaguë’s troops. This was documented by foreign correspondents. 226 See appendix. 227 Graham, “Writing Spain in(to) Europe”, 11.

55 wider problems in Spain regarding the way that it accounts for its past, a past which has never been publicly reckoned with nor ‘denazified’. in Spain “myths have not passed to history”.228

228 Interrogating francoism.208. 216: Codigo Penal: franquismo geen delito zie aant noticias: 2013 https://politica.elpais.com/politica/2013/10/10/actualidad/1381422121_686379.html#ampshare=https://politi ca.elpais.com/politica/2013/10/10/actualidad/1381422121_686379.html. http://www.eldiario.es/politica/PP-enaltecimiento-franquismo-considerado-delito_0_184432123.html

56 3.4 EC’s procedural approach: “Declare inadmissible.”229

“We should act now – we owe it to the memory of the victims and we owe it to the families, who need to know the truth.”230

“The international community is as much concerned as Spain itself. The protection of human rights is one of the universal values. The violation of human rights is not an internal matter of a single country.” 231

This section will look at the replies from the European Commission and the European Parliament to the Spanish questions. First, the Commission is consistent in its arguments and decisions to dismiss the requests and demands. While the Committee on Petitions of the EP declared admissible each one of the citizen’s petitions, the European Commission has, without exception, redirected the competence back to the Spanish national authorities upon the arguments that the cases relate to civil and criminal law which “is not governed by provisions of the EU law” and, therefore it is “for member states to ensure that their obligations regarding fundamental rights- as resulting from international agreements and from their internal legislation- are respected”.232The EC constitently considers the petitions and questions as individual cases. It’s power is “limited to overseeing the implementation of Union law”, according to art 51 of the Charter of Fundamental Rights.233 A similar stance has been taken on the parliamentary questions by the MEP’s. Regarding the cases related to Framework 2008/915/JHA, the EC responded that, while condemning “all forms of racism and xenophobia, as they run against the values the European Union is built upon”, and monitoring the transposition of the framework Decision into national criminal law, it is the competence of national authorities to investigate specific cases relating fundamental rights. Additional questions by the MEP’s regarding the role of the Spanish authorities, the various UN reports and the impact that these type of offences have for the victims remained unanswered. Another list of questions for oral answer submitted by a large number of MEP’s from Spain and other nationalities, was rejected all together because it did not met with the sufficient support to be treated in the EC.234 According to the EC, “investigation into the war crimes and enforced disappearance during the civil war and dictatorship are under national competence since these happened prior to accession to the EU”, and “each member state has found its own way to deal with

229 “The matter does not come within the European Union’s fields of activity”: European Commission’s recommendation to petition 1013/2012 presented by Eduardo Raya, reply to the Committee on Petitions, august, 26, 2015. 230 Nils Muižnieks, Commissioner for Human Rights, “Missing persons in Europe: the truth is yet to be told”, Council of Europe, august 8,2014, https://www.coe.int/hu/web/commissioner/-/missing-persons-in-europe- the-truth-is-yet-to-be-told. 231 Parliamentary Asembly COE, Report on the Need for International condemnation of the Franco regime, 2. 232 European Commission’s observations on petition 1013/2012, 1201/2012, 1209/2012, 1323/2012, 1368/2012, 1369/2012, 1631/2012, 1772/2012 on niños robados, august 28, 2013, and repeated on august 26, 2015. See appendix. 233 Reply to the petitions 1013/2012, 1201/2012, 1209/2012, 1323/2012, 1368/2012, 1369/2012, 1631/2012, 1772/2012, 1790/2012 on niños robados. 234 Parliamentary question on Impunity of Francoist crimes in the Spanish state, december 7, 2015.

57 these issues, and are continuing to deal with, the sensitive and complex issue of addressing the horrors and crimes that have happened in the past.”235Meanwhile, the Commission recalls its commitment to facilitate this process by “encouraging discussion and sharing of experiences and promoting best practices” by means of the Europe for Citizens programme.236 Furthermore, in some of the answers, the Commission suggests to turn to the European Court of Human Rights when all national remedies have been exhausted. Except for this last suggestion, the same arguments are given by the Vice- President of the European Commission, Frans Timmermans, to dismiss the concerns presented to him in 2016 by eight Spanish MEP’s regarding the “serious problem of the impunity of the Francoist crimes and the resistance of the Spanish State to close the wound that remains open in the current Spanish democratic state.”237 Meanwhile, the Commission’s recomendations have not proved to be an impediment for the Committee on Petitions to proceed to further investigations on the cases.238 In 2012, despite the negative findings of the European Commission, the Commission decided to remain open the question regarding the access to documents about the disappearance of Anselmo Guillermo Lopez.239 It has also resulted in a fact- finding visit to Spain in May 2017 by members of the Committee to investigate the claims regarding the niños robados.240 Despite the Committee’s limited power, and the fact that “thefts and illegal adoptions are covered by areas of civil and criminal law that are not governed by EU law”, it has the power to urge the European Commission to investigate the alleged violations of human rights.241 Its report presented a series of 31 recommendation to the Spanish authorities as well as to the Commission, the European Ombudsman and the EU Agency for Fundamental Rights.242

235 Petition No 0572/2014 by P.O.S. (Spanish), on compensation for victims of the Spanish Civil War (1936- 1939),https://petiport.secure.europarl.europa.eu/petitions/en/petition/content/0572%252F2014/html/Petitio n-No-0572%252F2014-by-P.O.S.-%2528Spanish%2529%252C-on-compensation-for-victims-of-the-Spanish- Civil-War-%25281936-1939%2529 236 Answer given by Ms Jourová on behalf of the Commission to the Parliamentary question by Marina Albiol Guzmán (GUE/NGL) on “condoning the Franco and Nazi regimes in Guadamur”, august 5, 2016. http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-2016-004027&language=NL. See appendix. 237 Letter by Marina Albiol, Izaskun Bilbao, Josu Juaristi, Ernest Maragall, Josep María Terricabras, Miguel Urban, Ernest Urtasun to Frans Timmermans, april and august 2016. Letter of reply by Timmermans on august 24, 2016. Documents provided by Izaskun Bilbao Barandica. Also: https://www.izaskunbilbao.eus/download/27.06.2016.TIMMEMANS.pdf. 238 Eleonora Evi, MEP and member of the Committee on Petitions, observed how the declaration of admissibilty of petitions is influenced by political elements: the PETI’s Coordinators’ decision can change a first delarartion of admissibility. Email to the author, october 16, 2017. 239 In a letter to the Ministry of Justice and the Junta de Andalucía, the Committee requested to fulfill the petitioner’s demand. Documents provided by Noelia Camacho. 240 See appendix. The cases of the ‘theft of babies’ has been included by the PETI Committee working group on children welfare issues. 241 Eleonora Evi, reply to the author, october 16, 2017. 242 European Parliament, Mision Report and Recommendations, following the fact-finding visit to Spain from 22 to 23 May 2017, november 11, 2017, http://www.ceaqua.org/wp-content/uploads/2017/11/COMUNICADO_- BEB%C3%89S-ROBADOS_-INFORME-DE-LA-MISI%C3%93N-Y-RECOMENDACIONES-de-la-Comisi%C3%B3n-de- Peticiones-del-Parlamento-Europeo.pdf. The report has been received with great approval by the following victim’s associations: http://www.ceaqua.org/wp-content/uploads/2017/11/COMUNICADO_-BEB%C3%89S-ROBADOS_-INFORME- DE-LA-MISI%C3%93N-Y-RECOMENDACIONES-de-la-Comisi%C3%B3n-de-Peticiones-del-Parlamento- Europeo.pdf.

58 The procedural interpretation of the Commission’s functions and competence seem to contradict the same principles and values that the Commission and, in extension, the EU uphold. To consider these cases as internal matters that relate to civil law in which Union law remains excluded, and therefore, “the matter does not come within the European Union’s fields of activity”243, reflects a restrictive and formalistic conception of its function as the “Guardian of the Treaties” regarding cases that compromise these treaties and the fundamental rights. 244 In its report on the activities of the Committee on Petitions, the European Parliament observed this restrictive interpretation of the EC.245 While underlining the objectives of the function of these petitions as a “cornerstone of european citizenship” and “expectations of citizens often go beyond what the Charter’s legal provisions strictly allow for”, the report urged for “the broader interpretation of the scope of interpretation.” 246 During the meeting in 2012 of the Committee on Petitions to discuss the case of the right to acces to documents, MEP Miguel Angel Martínez Martínez of the European’s socialist group argued that the petitition is of EC’s competence for touching upon the most fundamental European values and foundational principles of the EU.247 In 2015, during a meeting in the European Parliament by the PETI Committee on Children Welfare issues, María Garzón, president of FIBGAR, a Spanish foundation for human rights and international justice, expressed her incredulity at the fact that the petitions regarding the cases of the niños robados had been repeatedly rejected by the EC for being considered internal

243 Commission’s recommendation to petition Eduardo Raya, see note 241.

244 Charter of Fundamental Rights of the European Union: “The peoples of Europe, in creating an ever closer union among them, are resolved to share a peaceful future based on common values. Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice. This Charter reaffirms, with due regard for the powers and tasks of the Union and for the principle of subsidiarity, the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Union and by the Council of Europe and the case-law of the Court of Justice of the European Union and of the European Court of Human Rights.” http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12007P/TXT&from=NL.

245 European Parliament, Annual report on activities of the Committee of Petitions in 2015 (2016/2146(INI)), Rapporteur: Ángela Vallina, 18, 20, december 2, 2016, http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A8-2016- 0366+0+DOC+PDF+V0//EN. 246 “ […] regrets the occasions when the Commission focuses essentially on procedural aspects and does not enter in to the substance of the issue ; reminds the Commission that petitions that raise a potential breach of EU law can only be closed after their proper analysis has been concluded” . European Parliament, Annual report on activities of the Committee of Petitions , 18, 20. Similar observations can be found in the in the Report of fundamental rights from 2015: European Parliament, Report on the Situation of Fundamental Rights in the European Union in 2015 (2016/2009(INI)), Committee on Civil Liberties, Justice and Home Affairs, Rapporteur: Jószef Nagy, november 24, 2016, http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A8-2016- 0345+0+DOC+PDF+V0//EN. 247 “Debate Parlamentario Europeo sobre accessibilidad a los archivos de la represión”, YouTube, uploaded by ARMH, november 12, 2012, https://www.youtube.com/watch?v=Yx2OidTgwNc

59 issues.248 Since these cases concern crimes against humanity and the most fundamental rights of victims, she argued, they can not be reduced to internal matters. Furthermore, the European Commission’s response to regard these cases as internal matters of the memberstate is in clear contrast with the position taken on by the European Parliament as well as with numerous international organizations on human rights and universal justice, the Council of Europe and the United Nations. The Commission seems to take the position that the state’s (absolute) duties and obligations that derives from the European Convention on Human Rights and other international conventions is solely to be discussed in the European Court of Human Rights. Nor does it take into account the numerous reports that have been issued on Spain by international human rights organizations, the United Nations and the Council of Europe. In march 2016, the Council of Europe issued a report on the situation of missing persons and victims of enforced disappearance in Europe. On Spain, the Commissioner observed that the “processes of search, exhumation and identification of disappeared are left solely to the initiative of families and face several obstacles”, concluding that “justice remains key. There cannot be any reconciliation and social cohesion so long as impunity for enforced disappearance is not eradicated.”249 This report largely corresponds with the findings of the UN, in stressing the urgence and priority these cases must assume. Since this report was issued, Frans Timmermans nor the EC have taken these observations into consideration in their reply to the Spanish cases, while in 2015 Frans Timmermans expressed the importance of monitoring mechanisms and information sources, like the Council of Europe, to support the Commission’s in this function in upholding Europe’s values. In fact, the European Parliament and European Commission have showed a consensus on the need to strengthen the mechanisms to safeguard and strengthen the rule of law and human rights since the adoption of the Lisbon Treaty.250 The formalistic interpretation by the Commission and the conception of these cases as isolated, individual cases allows it to refrain from applying mechanisms that would allow for an intervention of the EC directed at the functioning of the state for violation of the rule of law.251 Another misinterpreation is on the petitioner’s demands. The petitioners urge the

248 “María Garzón pide al Parlamento europea que inste a Rajoy a investigar los casos de los bébés robados”, El Plural, december 9, 2016, https://www.elplural.com/sociedad/2016/12/09/maria-garzon-pide-al-parlamento- europeo-que-inste-rajoy-investigar-los-casos-de. 249 Council of Europe, Commissioner for Human Rights, Nils Muižnieks, Missing persons and victims of enforced disappearance in Europe, 21-22, 55. 250 During a debate on democracy, the rule of law and fundamental rights held in the European Parliament in february 2015, Frans Timmermans underlined the importance of respect for the Union’s common values, fundamental rights, the rule of law, the need to uphold these values and the importance of monitoring mechanisms and information sources, like the Council of Europe, to support the Commission’s in this function. European Parliament, EU Framework for democracy, rule of law and fundamental rights, Debate, february 11, 2015, Strasbourg, http://www.europarl.europa.eu/sides/getDoc.do?type=CRE&reference=20150211&secondRef=ITEM- 017&language=EN. European Commission, “European Commission presents a framework to safeguard the rule of law in the European Union”, Press release, march 2014, http://europa.eu/rapid/press-release_SPEECH-15-4402_en.htm. https://eeas.europa.eu/headquarters/headquarters-homepage/414/human-rights-democracy_en 251 A mechanism as applied in the case of Poland, with the use of the Article 7- procedure. This measure is suggested in the objection to the closure of their petition raised by Asociacion de Victimas 3 de marzo. “Objeción razonada para mantener abierta la queja 0199-15 presentada por la asociación ‘Martxoak Hiru’”, document provided by Izaskun Bilbao.

60 EU to investigate the breaches by the Spanish state of the EU Treaty on Fundamental Rights, they do nót request the EU to intervene in judicial decisions. Furthermore, the argument that it is the competence of the national authorities to investigate these cases, is founded upon the presumption of the willingness of the state to cooperate. This argument ignores the fact that this is exactly the reason why the petitioners have resorted to the EU, the ECHR as well as to Argentina. The state authorities, the judicial, legislative and executive powers impede the victims the rights to justice, truth and reparation.252 This is stated in each petition and question and a central topic during the Jornadas in the European Parliament. The Asociación de víctimas 3 de Marzo, Martxoak Hiru, very clearly points to the Commission’s misconception when it objected to the decision to reject its petition. The petition does not relate to a judicial error nor to an individual infringement but is the result of the decisions of a government of a member state that refuses to collaborate with the execution of international justice.253 The question is whether the suggestion to resort to the European Court of Human Rights provides an effective solution to a wide-spread problem which can not be reduced to an isolated case. The Spanish cases that have been brought to the ECHR are outside the scope of this study. However, it needs to be mentioned that some critical observations have been drawn by Amnesty International as well as by human right lawyers from Rights International Spain on the arguments by the ECHR not to admit some of the cases.254 The argument of a lack of “due diligence” by the applicants does not take into consideration the specific Spanish socio- political context and numerous obstacles that the applicants have experienced in Spain. In turn, the ECHR does not demand the same diligence from the state authorities. While it was expected that after the Garzón- trial, which proved that all ways in Spain were blocked, new cases presented to the ECHR would have a fair chance, this turned out otherwise when the case of Canales Bermejo, whose father was buried in the Valle de los Caídos without his family’s knowledge and consent, was rejected. “A decision devoid of justice”, according to Rights International Spain. Furthermore, given the quantity of similar cases, the advanced age of many of the direct familymembers, the urgency that is recommended by the UN and Council of Europe, and the long timely process that would take a case that is handled by the ECHR, the question remains whether the ECHR provides an effective solution. Finally, what can be observed is an inconsistent approach by the EC towards violations of human rights, enforced disappearance and genocide. While Spain’s unaccounted violations of human rights is regarded as an internal matter of national authorities, a more firm stance is taken on regarding aspiring member states and in EU’s foreign policy. A case in point is the Commission’s synthesis and course of action based upon a study issued in 2010 on the different mechanisms of transitional justice in each member

252 In the petition of 2012, after the Committee had stated that the petitioner should resort to the National Tribunal, MEP Raúl Romeva reminded the Committee on Petitions of this reality by explaining what happened when Baltasár Garzón had opened the first and only investigation in Spain. 253 “Objeción razonada para mantener abierta la queja 0199/2015 presentada por la Asociación de Víctimas 3 de Marzo”. 254 Alicia Moreno Pérez and Javier Chinchón Álvarez, “La decision del TEDH en el Asunto Canales Bermejo c. España: una sombra definitiva”, Series análisis jurídicos- GcyF, Rights International Spain, december 2012, http://rightsinternationalspain.org/uploads/publicacion/f2d650588e849dbe4480d981d8fee6ecf8b791c0.pdf. Amnesty International, El tiempo pasa, la impunidad permanece, June, 2013.

61 state of the EU since the year 1945.255 The study was part of a series of initiatives by the EC to assess the ways to deal with the legacy of crimes of genocide, crimes against humanity and war crimes committed by totalitarian regimes and on how the EC could contribute to this process.256 The CSIC study provided an overview on the various mechanisms of transitional justice that has been implemented by memberstates upon which the EC draws a very general synthesis which ignores the radical disparity in mechanisms that exists between the countries. Neither does the EC include international legal standards on human rights and justice on its analysis of the data in the report.257 It concludes that there is “no one- size- fits- all” model, and methods in each member state are country- specific. While acknowledging that “justice for victims is important for the successful transition from totalitarianism to democracy”, it ignores the specific realities in memberstates in which justice is completey absent.258 The conclusions by the Commission far from represents the reality in Spain and narrows down the concept of transitional justice to a politics of memory that is devoid of mechanisms of transitional justice.259 The Commission’s future course of action that is ennumerated in its report is directed at the Europe for Citizens programme, the creation of a Platform of European Memory and Conscience Program, and the promotion of the adherence to the proclamation of 23 August as a Europe- wide day of Remembrance, which expresses its clear focus on the Eastern European states.260 Meanwhile, it actively participates as the organising partner of Eurojust and a Genocide Network for investigation and prosecution of genocide, crimes against humanity and war crimes, holding an annual EU Day against impunity in order to raise awareness and promote national investigations and prosecutions.261 While dismissing the Spanish petitions

255 Investigation that was assigned to the Spanish national Centre of Human and Social Sciences (CSIC). Carlos Closa Montero, Study on how the memory of crimes committed by totalitarian regimes in Europe is dealt with in the Member States, Institute for Public Goods and Policy, Centre of Human and Social Sciences, CSIC., 2010, Madrid, Spain.http://ec.europa.eu/justice/doc_centre/rights/studies/docs/memory_of_crimes_en.pdf. 256 In 2010, the European Commission issued a report with its conclusions. European Commission, COM(2010) 783 final, Report from the Commission to the European Parliament and to the council. The memory of crimes committed by totalitarian regimes in Europe, december 22, 2010,http://eur-lex.europa.eu/legal- content/EN/TXT/?uri=CELEX%3A52010DC0783. 257 The motion for a resolution of the European Parliament on European conscience and totalitarianism that had been presented in 2009, has a more inclusive approach: “ having regard to the Truth and Justice Commissions […] whereas the memories of Europe’s tragic part must be kept alive in order to honour the victims, condemn the perpetrators and lay the foundations for reconciliation based on truth and remembrance […] reiterates its consistent support for strengthened international justice”. Document B6-0171/2009, march 26, 2009, http://www.europarl.europa.eu/sides/getDoc.do?type=MOTION&reference=B6-2009- 0171&format=XML&language=EN. 258 European Commission, Report on the memory of crimes committed by totalitarian regimes, 3-4. 259 How must victims of Francosim interpret the observations in the report (page 5) on memorials and monuments in the light of the Valle de los Caídos which has been standing in place as a fascist a site of martyrdom and exaltation of Franco for over 60 years? https://www.politico.eu/article/spain-franco-history- valle-de-los-caidos-fascism/ 260 The date of 23 August refers to the signing of the Molotov- Ribbentrop Pact between Nazi Germany and the Soviet Union in 1939, “which marked the beginning of one of the darkest periods of recent history” according to a public statement by the EU. In Spain, this period started a few years earlier. “La UE pide preservar la memoria histórica para recordar a las víctimas de los totalitarismos”, Europapress, august 22, 2016. http://www.europapress.es/internacional/noticia-ue-pide-preservar-memoria-historica-recordar-victimas- totalitarismos-20160822190120.html 261 Eurojust, The genocide netwerk, http://www.eurojust.europa.eu/Practitioners/Genocide- Network/Pages/strategy.aspx.

62 and questions, it adopts a Strategy for Combating Genocide, Crime against humanity and War Crimes within the European Union and its member states. This seeminly pro-active compromise towards accountability is in stark contrast with the negative results of the Spanish petitions. What’s more, whether a victims’ rights are guarantueed, seems to depend on criteria of date of accession to the EU. The Spanish petitions are rejected because “events took place prior to accession of Spain to the European Union it is a case of national competence.” 262 While states from Eastern Europe aspiring to become a EU member have had to adopt to binding criteria, these had been non- existent during the earlier accession of Portugal, Greece and Spain to the EC in the 1980’s. 263 This differential approach echoes the categorisation of victims in Spain that was mentioned in the previous chapter. The reductionist interpretation of Transitional Justice also seems to copy the way that the Law of Historical Memory in Spain has served as a tool to dismiss the state’s obligations: “masking every question of the crimes against humanity committed by francoism with ‘memoria histórica’, in Spain politics are being carried out pro- impunity, in breach of Nuremberg, human rights and everything you can imagine.264

European External Action, Statement by HR/VP Federica Mogherini on the International Day of Commemoration and Dignity of the Victims of the Crime of Genocide and the Prevention of this Crime, december 9,2017, https://eeas.europa.eu/headquarters/headquarters-homepage/37088/statement-high- representativevice-president-federica-mogherini-international-day-commemoration_en 262 European Parliament, Petition No 0572/2014 by P.O.S on compensation for victims of the Spanish Civil War, 2014, https://petiport.secure.europarl.europa.eu/petitions/en/petition/content/0572%252F2014/html/Petition-No- 0572%252F2014-by-P.O.S.-%2528Spanish%2529%252C-on-compensation-for-victims-of-the-Spanish-Civil-War- %25281936-1939%2529. 263 This differential approach has been critized repeatedly by Spanish MEP’s: “ we are faced with the paradox by which states that have been a member of the EU for years, do not need to obey the conditions regarding human rights that is required from states to become a EU member state.” Izaskun Bilbao, “Por otro tratamiento en Europa para el franquismo”, september 2, 2013, https://www.izaskunbilbao.eus/2013/09/cuando-las-barbas-de-tu-vecino-veas-pelar/ . 264 Statement by Miguel Angel Rodríguez Arias, international criminal law investigator, in “Seguimos siendo el segundo país del mundo en cifras de desaparecidos, tan sólo por detrás de Camboya de Pol Pot”, Rebelión, august 30, 2009, http://www.rebelion.org/noticia.php?id=90703#sdfootnote2sym.

63 Chapter 4 .

64 4.1 Spain’s impunity: (not) Europe’s business?

When you mention enforced disappearances it is likely that Argentine, Chile or Chechnya- just to mention a few- come to mind. However, in the heart of Europe, thousands of Spanish families are still digging up side roads and fields seeking their missing relatives in mass graves spread all over the country. With at least 114. 266 identified missing persons disappeared during the Spanish Civil War and subsequent Franco regime, Spain is probably the country with the highest number of enforced disappearances in the world. [ ] Yet, the only trial held in Spain regarding the crimes committed during the Civil War and Franco’s dictatorship was that of malfeasance against judge Garzón precisely because he tried to challenge the lack of accountability for such crimes.265

In the report that was issued in 2016 by the Commissioner for Human Rights of the Council of Europe regarding the situation on missing persons and victims of enforced disappearance in Europe, Spain figures among countries like Armenia, Azerbaijan, Georgia, Turkey, Ukraine and the Western Balkans.266 As Estebán Beltrán, director of Amnesty International in Spain has observed, even upon comparison with Argentina and Guatemala, countries that count 30.000 and 45.000 cases of disappearances respectively, Spain stands out. 267 Another category of disappearances are those of the niños robados, acccording to the European Magistrates for Democracy and Freedoms, MEDEL, a collective of international human rights organizations, it amounts to “[…] the largest case of enforced disappearance of children perpetrated in today’s Europe” while it constitutes probably the most less known aspect of Franco’s repression.268 There has never been an official consensus on the victims, and as a result of the recent exhumations, facts and numbers are still being updated. The list of mass graves in Spain that is available on the website of the Ministry of Justice numbers a total of 2.382 mass graves which contain 45.000 remains of victims. However, these data have not been updated and depend on information provided by private and local initiatives. 269The only exhaustive investigation into the number of disappearances amounted to a number of 133,708 victims.270

265 Lydia Vicente Márquez and Mercedes Melón, “ A European Court of Human Rights’ Decision Devoid of Justice. The Dismissal of Franco Regime Enforced Disappearances Cases”, European Global, February 12, 2013. 266 Council of Europe, Missing Persons and victims of enforced disappearancein Europe, Commissioner for Human Rights, Issue Paper, March 17, 2016. https://wcd.coe.int/ViewDoc.jsp?p=&Ref=CommDH/IssuePaper(2016)1&Language=lanEnglish&direct=true 267 Conference Imperfect transitions and challenges of the present. Victims, terrorism and the state, King Juan Carlos I of Spain Center, New York. April 24, 2017, https://www.kjcc.org/event/panel-3-imperfect-transition- and-challenges-of-the-present-victims-terrorism-and-the-state/ 268 MEDEL, “Conclusiones sobre la memoria histórica en España”, March 28, 2009, in Memoria histórica: ¿Se puede juzgar la historia? (Madrid: Fundación Antonio Carretero, 2009).235-236. 269 http://www.memoriahistorica.gob.es/es-es/mapafosas/Paginas/index.aspx 270 This number derives from the reported cases in Baltasar Garzon’s investigation: http://baltasargarzon.org/memoria-historica/historical-memory/. Francisco Moreno Gómez adjusts the number to 129. 472: Moreno Gómez, Los desaparecidos de Franco, 82.

65 Since Spain’s transition to demoracy, no mechanisms of transitional justice have been adopted to account for these crimes nor has the state ever investigated them. Since the year 2000, a social movement of what has come to be known as a movement of historical memory of victims of Francoism, seek to change this situation on the basis of international justice and the non-prescription of these type of crimes. Over the past years, reports by International human rights organizations and NGO’s like Amnesty International, Human Rights Watch , Pro Derechos Humanos, the United Nations and the Council of Europe have issued a number of reports drawing firm conclusions that not only confirm the concerns and demands of the victims but also remind Spain of its obligations under international law.271 However, little progress has been made and these numerous recommendations have not been implemented by Spain. The law of historical memory has not been effective and non- existent since 2013. After 40 years of democracy, obstructions to take on the responsibility to account for this past, investigate these human right violations and to undertake justice and truth – seeking measures and implement an effective politics of memory leaves the victims devoid of justice. Arguments are upheld that have become anachronisms within a global legal framework of human rights. The prescription of these crimes, the Law of Amnesty, the aggressive rhetoric that accuse victims to open up wounds have turned Spain into a model of impunity and oblivion, “el modelo español de impunidad y olvido.” 272 Spain offers no exception in Europe with regards to the atrocities that took place on the European continent during the first half of the 20th century, indeed this shared experience is what binds Spain to Europe and serves as a legitimating factor in seeking EU’s compromise. It is part of a shared democratic memory that accompanies the social movement in Spain. Within this context, the speech delivered by Pablo Iglesias in 2014 in the European Parliament on the occasion of his election as an MEP, deserves attention. He represents the generation of the ‘nietos’, the grandchildren who started to question the legacy of the past. The movement of historical memory has become part of a larger call for democracy and the end of the ‘régimen del ‘78’, the political establishment of elites in power since the transition.The newly formed political formation of Podemos made its first appearance in the EP and would mean a historical reconfiguration of the political landscape in Spain:

Europe’s dream has often been trampled upon but has always succeeded to be regained. This happened 70 years ago: Europe revived again in the resistance of its people against fascism, in the survivors of the extermination camps, in those who gave their lives for justice and freedom. Thousands of fellow countrymen who had fought to defend democracy in Spain, participated in this struggle and dream of justice. You can’t imagine how proud I feel to know that the first tanks that entered to liberate Paris, were driven by Spanish soldiers. Today, when intolerance and xenophobia once

271 The UN included Spain in 2003 for the first as one of the countries with cases of forced disappearances, in 2008 it issued a report that recommended to revoke the Amnesty law. 272 This “model of impunity” has been denounced by various human rights organizations, like the UN in its latest follow-up on Spain in november 2017. Rights International Spain, http://rightsinternationalspain.org/es/areas/1/crimenes-internacionales/1/justicia-transicional-en- espana/publicaciones.

66 again threaten us, I want to revive Europe’s memory of antifascism and of all the people that embrace liberty and democracy.273

Spain’s exception, according to victims, their family members and human right organizations, is the way that the state continues to ignore its obligations within a changed international landscape whereby human rights, universal justice and democracy have become leading principles in international relations which replaced negotiated transitions and amnesties for crimes against humanity since the end of the Cold War.274 While the social movement of historical memory have acted in accordance to these principles and local and regional politics of memory have caught up on this social nerve in society, the state’s obstructions contradict the assertion that “the willingness to admit responsibility for past actions and to assume the burden of guilt inherited from an earlier generation has itself become a marker of a distinctively European set of values.” 275

It is an utmost disgrace for the EU that we have had to come here, a continent which was the birthplace of Human Rights, however not one single Spanish government during democracy has complied with the right of victims of access to justice and Europe has allowed this to happen.276

The Spanish cases call upon a shift of attention of human rights towards Spain and raises some awkward questions on Europe’s differential approach towards memberstates as a result of shifted priorities on human rights during the European integration process. Just like the questions on the limitations of the transition to democracy, not on its validity but rather its exemplarity, questions are raised on European’s implication with Franco’s Spain: Europe looked the other way and abandoned the Spanish democrats and the victims of Franco for strategic reasons, and why, as is asked in the petition to create a truth commission, why did Francoism does not deserve the same condemnation as its totalitarian allies? 277 The Amnesty Law was passed ánd accepted by the EEC while this was in clear violation with the International Convenant on Civil and political Rights that was signed and ratified by Spain months befóre the Amnesty Law was adopted.278 What is remarkable according to historians like Helen Graham is that Spain for “so long has been passed over in historical accounts of the postwar continent”and still today, international

273 Pablo Iglesias, Inauguration speech in the European Parliament, June 1, 2014, http://www.teinteresa.es/politica/discuro_integro_pablo_iglesias_parlamento_europeo_0_1166884159.html.

274 INTERIGHTS, Expert opinion on international standards relating to the duty to investigate, and the impermissibility of amnesty of prescription, in relation to crimes against humanity, http://www.interights.org/garzon/index.html. 275 Ann Rigney, “Changing Memory and the European Project”, 346. 276 Carlos Slepoy, lawyer in the Querella Argentina during a press conference in the European Parliament, 2015. http://www.ceaqua.org/video-de-la-rueda-de-prensa-de-ceaqua-en-el-parlamento- europeo/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+Ceaqua+%28CeAQUA%29 277 “Una Transición perfecta que no deja entender una democracia tan imperfecta”, Juan Carlos Monedero, La Transición contada a nuestros padres. Nocturno de la democracia española, (Madrid: Catarata, 2013), 25. Petition for a truth commission, 2014, document provided by Jordi Gordon. 278 Sáez Valcarcel, “Justicia Transicional y España”, 99.

67 comparative academic research fails to fully grasp the massive repression and violence displayed by Franco.279 During the coup and the civil war, Franco’s regime murdered on a scale that outnumbered the Nazis and fascists in Italy before the start of the Second World War.280 However, still today, the perspective on Spain’s transition, which limitations has become internationally spread with the recent exhumations of the mass graves, is praised without any reserves as was recently illustrated by Vice- President of the EC, Frans Timmermans, during a debate on the Catalonian case.281 Alesch Mühlbauer from the Deutscher Gesellschaft, the German center of debate that exhibited the work on the Spanish exhumations, observed that it would be well possible that a better informed public on the scale of the problem in Spain would have prevented a ban on the exhibition in the EP in 2013.282 The Spanish cases and petitions present the limitations of a highly controlled process of transition to democracy without a rupture with the past, which has lead to democratic limitations which continue into the present. Related to these limitations are the numerous parliamentary questions that have been presented since 2012 to the European Commission regarding acts and expressions of intolerance and glorification of nazism and Francoism displayed in public space and by public authorities. These questions indicate that they are not isolated cases from the the extremeright margins of society.

In Spain, fascism and Francoism is treated with the utmost normality. We have had to come to the European Parliament, an institution that precisely was founded upon the defeat of fascism.

Other serious consequences of a limited transition regard the continuity of judicial personnel and, as stated by Helen Graham, the continuity of “certain beliefs and attitudes inside the judiciary.” 283 The UN has observed deficiencies regarding the training of civil servants, Judiciary and security forces on subjects related to the civil war and the Franco era and on universal and human rights law. Furthermore, the Council of Europe has recently critically reported on Spains’ judiciary, on corruption, torture and impunity.284 In 2010, Human Rights Watch called upon the EU to express their concern over the prosecution of the judge who sought to investigate the crimes of the Franco dictatorship and the civil war and stated how his prosecution seriously compromises the EU as a normative power:

The decision leaves Spain and Europe open to the charge of double standards and undermines the EU’s credibility and effectiveness in the fight against impunity for serious crimes […] The sanctions also risk undermining the EU’s

279 Graham, “After the fear was over?”, 2-3. 280 Casanova, “La paz de Franco”, 14. Moreno Gómez, 248. 281 Frans Timmermans, Closing statement by Frans Timmermans, First Vice-President of the EC, on Constitution, rule of law and fundamental rights in Spain in the lights of the events in Catalonia, October 4, 2017, http://ec.europa.eu/avservices/video/player.cfm?ref=I144694. 282 Conversation with Mühlbauer. 283 Graham, “Writing Spain’s Twentieth Century in(to) Europe”, 8. Also Burbidge, “Waking the dead of the Civil War”, 777. 284 Álvaro Sánchez, “El Consejo de Europa sitúa a España a la lucha por la independencia judicial”, El País, June, 7, 2017, colahttps://politica.elpais.com/politica/2017/06/07/actualidad/1496827709_980747.html.

68 collective credibility and effectiveness in seeking justice for current human rights crimes, be they in Darfur, the Democratic Republic of Congo, or Sri Lanka.285

A similar observation regarding the position of the EU in the world was made by Peter Burbidge:

Inevitably the prosecution of Judge Garzón was watched with considerable alarm by defenders of international human rights in these [Latin American] countries: there is still a feeling that the old democracies in Europe need to be able to show the newer more fragile democracies how they should behave.[…] Finally, in the light of the reaction from Latin America there is a lesson here for the established democracies in Europe that they need to be conscious of the example they set to the rest of the world.286

285 Human Rights Watch, European Union: Protest sanctions against Judge Baltasar Garzón, April 22, 2010, https://www.hrw.org/news/2010/04/22/european-union-protest-sanctions-against-judge-garzon 286 Burbidge, “Waking the Dead of the Spanish Civil War”, 781.

69 4.2 Conclusion. “El clamor international”, Europe’s silence.287

The first and foremost question that this study has tried to answer is whether the European Union has been able to adequatly respond to the Spanish victims of the crimes that were committed during the civil war and the dictatorship in their search for justice, truth, reparation and non- recurrence and, by doing so, to contribute in resolving the large legacy of the past, in which time has proven to be an ally in the continuation of impunity in Spain. At the same time, it tried to assess how the EU relates itself to these serious cases of human rights violations that are intimately linked to a shared experience on the European continent on which ashes the European Community was founded. The victim’s arguments are founded upon the leading conception in international justice that serious human right violations affect the whole of humanity, continue over time and are not limited to prescription, a nation state’s border or national law. The state has an absolute duty to investigate these cases of torture, forced labour, enforced disappearance, the abduction of new-borns and the deprival of their identity. As numerous investigations by historians and human rights specialists have shown, the crimes committed during Francoism are among the most serious human right offences, perpetrated on a massive scale, amounting to war crimes and human right offences, categories that were conceived in order to judge the crimes that had taken place during the Second World War on the European continent. Europe has been considered the birthplace of human rights and an example to the world. The Spanish cases that are presented to the EU are motivated by these same fundamental values on human rights , democracy and the rule of law that the international community laid down in the European Convention on Human Rights . However, Spain applies the exact opposite interpretation with regard to its own crimes. After 40 years of democracy the state refuses to condemn Francoism and take on a state responsibility in response to the social nerve on the crimes of Francoism that have arisen since the year 2000 and to meet its obligations within a global context of human rights and memory. In this respect, Spain’s resistance is remarkable given it’s long-time membership of the ‘community of values’, the EU. Within this context, Spain constitutes a radical exception of impunity upheld by an influential part of the political spectrum, refusing to critically assess its foundational myths. The European Commission’ formalistic procedural approach to the Spanish concerns raised by victims ignores the awkward realities in Spain. This posture contradicts sharply with its function as a community of fundamental values and rights. Neither do these answers reflect a full understanding of the long term consequences of the lack of any accountability by Spain nor a self-critical reflection on Europe’s own integration process since the post war. Ultimately, Spain represents the shadow of Europe’s successful integration narrative: it abandoned Spain while western Europe celebrated its freedom, and facilitated the installation of a dictatorship with Franco as its ally who proved to be highly adaptive to the international changed context of the Cold War. The international call for democracy in Spain and the criteria that were set for Spain’s integration into the EEC, were the result of a unified call from the international community of civic society, the Council of Europe as well as national parliaments whose members were represented in the European Assembly.

287 Olga Rodríguez, “Hay un clamor internacional contra la impunidad del fanquismo”, El Diario.com, https://www.eldiario.es/sociedad/clamor-internacional-impunidad-franquismo_0_319868018.html.

70 However, during the negociations on Spain’s accession, economic concerns prevailed over accountability, seemingly forgetting the transcendental importance of the international trials to persecute the Nazi- crimes and which continued, after decades of silence, on a national level with the trials that had started in the 1960’s. Since then, the European Union has undergone a process of democratisation and strengthening of the rule of law and fundamental rights. Also it has implemented policies of memory to strengthen its legitimacy . By means of the European for Citizen’s program, Citizen’s petitions and with the support of members of the European Parliament, Spanish citizens have found their way to voice their concerns and demand the EU’s commitment, inspired by the example that Europe and Latin America has set regarding transitional justice. Instead of a move away from Europe, these victims confirm Europe’s legitimacy by revoking the fundamental values that the EU claims to represent as its main identity. The European Parliament has been responsive to these concerns, and one of the most important outcomes so far has been the fact-finding visit to Spain by the Committee on Petitions in order to gain a better understanding of the cases of the niños robados. Furthermore, the European Parliament has included the need to investigate the Francoist crimes in its report of 2016 on the situation of fundamental rights. However, the European Commission treats these Spanish cases that concern the most serious violations of human rights in a technocratic way as procedural matters. This clashes not only with Europe’s own ethical principles and fundamental values, the EU Charter of fundamental rights, the European Convention on Human Rights but also with the international legal framework and principles on human rights as well as the multiple reports on Spain by human rights organisations, the Council of Europe and the United Nations. The “clamor internacional” seems to stop at the EU borders. By doing so, the EC upholds a double standards towards crimes against humanity and genocide, showing permissiveness towards its ‘domestic’ crimes within EU’s borders while upholding a firm stance towards foreign crimes outside of its borders. At the same time, Spain’s social memory largely remains invisible within EU’s memory policies. What’s more, by means of the Europe for Citizen’s programme, categories of victims are upheld: while honouring the (jewish) victims of the Holocaust, the victims of Franco remain invisible. In the UN report on the question of impunity of perpetrators of human right violations, Mr. Joinet commented in his final remarks that “the campaign against impunity is not just a legal and political issue, it’s ethical dimension is all too aften forgotten.”288 This ethical dimension is exactly what should be of concern for the EU in which Spain seriously compromises these ethical fundaments as a member state of the European Union. The type of issues that are raised by the Spanish cases and the reason behind their appeal to Europe, namely that in Spain they are deprived of the rights to justice, truth and reparation, should raise questions about the state of democracy and human rights in Spain. Europe’s normative function and its legitimation remains highly questionable when in one of its member states impunity is rule, and citizens are forced to turn to Argentina or Mexico in search for justice. The victims of Franco have turned to Europe unwillingly, they ask their help in being heard in Spain, and they urge the EC to exercise its functions and start dialogues with Spain. To lay aside these requests seriously affects these victims. Despite the initiatives and mechanisms that the EU have undertaken to be more transparent, legitimate, and

288 Equipo Nizkor, La cuestion de la impunidad en España y los crímenes franquistas, April 4, 2004, http://www.derechos.org/nizkor/impu/joinet2.html#IA

71 democratic, the European Commission has upheld an inflexible, questionable for being unethical, formalistic stance that does not reflect an understanding of the realities of its citizens. Spanish MEP’s have invited EC Commissioner for fundamental rights and the rule of law, Frans Timmermans to listen, in order to understand the reality and the urgence, to the testimonies given in the European Parliament by the victims and familymembers: Julián Rebollo, Paqui Maqueda, Remedios Gómez, Ernesto Caballero, Antonio Deza, Rosa Moreno, Flor Díaz Carrasco, María Carrasco, Francisco tena, Eduardo Raya, Noelia Camacho and Anselma Guillermina Gómez, Ana Cueto, Soledad Luque, Manuel Blanco Chivite, Merçona Puig Antich, Carlos Vallejo, Francisco Pimentel, Miguel Rebolledo Barreno, Rosalia Gutiérrez Valdivia, Maria Angustias Rodriguez, Encarnación, Murillo López, Encarnación Moya Gómez, Ma del Mar Guerrero Arjona, Maria del Carmen Gómez Heredia.

72 Appendices.

Parliamentary Questions to the European Commission

Framework 2008/ 913/JHA: October 29, 2012. Apologists for Franco acting with impunity in Navarre. http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+WQ+E-2012- 009847+0+DOC+XML+V0//EN.

22 May 2013. Eulogising of authoritarian regimes in Spain. http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+WQ+E-2013- 005756+0+DOC+XML+V0//EN

October 4, 2013. Follow-up to the answer given by Mrs Reding to Question E-005756/2013, and new considerations on the same topic — Serious and intentional public incitement to fascist violence and hatred in Spain. http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+WQ+E-2013- 011409+0+DOC+XML+V0//EN.

February 12, 2014. Report of the Commission on Framework Decision 2008/913/JAI. http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+WQ+E-2014- 001465+0+DOC+XML+V0//EN.

August 29, 2014. A tribute to the Condor Legion. http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+WQ+E-2014- 006435+0+DOC+XML+V0//EN.

November 4, 2014. Francoist symbols in Vigo. http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-2014- 008692&language=EN.

May 17, 2016. Condoning the Franco and Nazi regimes in Guadamur. http://www.europarl.europa.eu/sides/getDoc.do?type=WQ&reference=E-2016- 004027&language=EN.

August 16, 2017. Glorifying Francoism, and the Pazo de Meirás. http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+WQ+E-2017- 005202+0+DOC+XML+V0//EN.

Foro por la memoria. 2013. “ La Federación Estatal de Foros por la meoria recurre al Paralmento Europeo.” http://www.foroporlamemoria.info/2013/11/la-federacion-estatal- de-foros-por-la-memoria-recurre-al-parlamento-europeo/.

73 Impunity, the Argentinean investigation: November 12, 2014. Intervention of Europol regarding crimes against humanity.http://www.izaskunbilbao.eus/download/12%2011%202014%20TRESDEMARZO.p df.

November 14, 2014. Interpol intervention in proceedings for crimes against humanity. http://www.europarl.europa.eu/sides/getDoc.do?type=WQ&reference=E-2014- 009272&language=NL.

December 7, 2015. Impunity of Francoist crimes in the Spanish state. http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+OQ+O-2015- 000157+0+DOC+XML+V0//EN.

August 5, 2016. Investigation and coordination with regard to missing persons. http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+WQ+E-2016- 006223+0+DOC+XML+V0//EN.

October 10, 2016. Obstruction of justice to maintain impunity for the crimes of the Franco dictatorship.http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+WQ+E- 2016-007648+0+DOC+XML+V0//EN.

European for Citizens programme: February 3, 2015. Petition no 0089/2015 by Cristina Calandra Hoenigsfeld (Spanish) on EU funding to 3 projects of the Europe for Citizens program. https://petiport.secure.europarl.europa.eu/petitions/en/petition/content/0089%252F2015/ html/Verzoekschrift-nr.-0089%252F2015%252C-ingediend-door-Cristina-Calandre- Hoenisfeld-%2528Spaanse-nationaliteit%2529%252C-over-EU-financiering-voor-3-projecten- van-het-programma-%2522Europa-voor-de-burger%2522

September 8, 2015. European support for exhumation of those killed during the Franco dictatorship. http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+WQ+E-2015- 012575+0+DOC+XML+V0//EN.

June 11, 2014.European historical memory programmes. Question for written answer to the Commission, Izaskun Bilbao Barandica (ALDE) http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+WQ+E-2014- 005731+0+DOC+XML+V0//EN .

74 Petitions: Not all of the petitions are available on the webiste of the European Parliament. For this thesis, documents have been provided by MEP’s or petioners, by consulting the webites of victim’s organizations or other digital (media) sources.

2012. Petition 1347/2011, of Anselma Guillermina Gómez on the right to access information regarding the remains and the execution of her father, Anselmo Guillermina Gómez, during the Spanish civil war. https://www.youtube.com/watch?v=Yx2OidTgwNchttps://www.youtube.com/watch?v=Yx2 OidTgwNc.

March 8, 2014. Petition No 0572/2014 by P.O.S. (Spanish), on compensation for victims of the Spanish Civil War (1936-1939). https://petiport.secure.europarl.europa.eu/petitions/en/petition/content/0572%252F2014/ html/Petition-No-0572%252F2014-by-P.O.S.-%2528Spanish%2529%252C-on-compensation- for-victims-of-the-Spanish-Civil-War-%25281936-1939%2529.

2014. Petition nº 0672/2014 , by Jorge Gordón Nuevo (Spanish) on behalf of Plataforma por una Comisión de la Verdad, on the victims of the Franco regime. https://petiport.secure.europarl.europa.eu/petitions/en/petition/content/0672%252F2014/ html/Petition-No-0672%252F2014-by-Jorge-Gordon-Nuevo-%2528Spanish%2529-on-behalf- of-Plataforma-por-una-Comisi%25C3%25B3n-de-la-Verdad-%2528Platform-for-a-Truth- Committee%2529-on-the-victims-of-the-Franco-regime.

February 26, 2015. Petition No 0177/2015 by Jacinto Lara Bonilla (Spanish) on behalf of the Spanish Pro-Human Rights Association and the State Coordinator for Support for the Argentinian Complaint on the impunity of Francoist crimes. CeAqua an d Asociación Pro derechos Humanos de España (APDHE) http://www.ceaqua.org/wp-content/uploads/2015/03/Documento-1_Petici%C3%B3n- Comision-Parlamento-europeo.pdf.

June 27, 2014. Petition 0758/2013 by Ruth Anne Appleby (British) on the actions of the Spanish police in a case involving the suspected kidnapping of the petitioner's child.http://www.europarl.europa.eu/sides/getDoc.do?pubRef=- //EP//NONSGML+COMPARL+PE-536.072+01+DOC+PDF+V0//EN.

December 18, 2015. Petición 0927/2013, presentada por E.C.U, de nacionalidad española, sobre el robo de un recién nacido en un hospital de España y la negligencia de las autoridades a la hora de investigar debidamente el caso. http://www.europarl.europa.eu/sides/getDoc.do?pubRef=- %2f%2fEP%2f%2fNONSGML%2bCOMPARL%2bPE- 574.985%2b01%2bDOC%2bPDF%2bV0%2f%2fES.

July 15, 2015. Petition No 0199/2015 by A.T.D. (Spanish) on behalf of the Victoria 3 March Victims Association on the incident that took place on 3 March 1976 in Vitoria. Asociación de Víctimas 3 de Marzo - Martxoak 3 Elkartea.

75 http://www.izaskunbilbao.eus/download/TRESDEMARZO.pdfhttp://www.martxoak3.org/ma rtxoak-3-denuncia-en-bruselas-la-impunidad-de-la-masacre-cometida-en-gasteiz-en-1976/.

Jornadas de la Memoria, European Parliament: March 2014. En Europa buscando verdad, justicia y reparación para las víctimas del franquismo. https://comisionverdadfranquismo.com/2014/03/20/victimas-del-franquismo-en-el- parlamento-europeo-video-i/.

March 3, 2015. La Impunidad de los crímenes contra la humanidad en el estado español. http://www.ceaqua.org/wp-content/uploads/2015/03/Documento-3_Listado-de- integrantes.pdf http://www.ceaqua.org/informe-de-la-jornada-de-ceaqua-en-el-parlamento-europeo/.

September 21- 23, 2015. Con impunidad no hay democracia. Juzgar los crímenes de la dictadura franquista. Jornadas sobre Justicia Universal y Memoria Histórica. http://www.ceaqua.org/wp-content/uploads/2015/10/INFORME-CEAQUA-21-23- SEPTIEMBRE-2015-JORNADAS-PARLAMENTO.pdf.

November, 23 2015. https://www.izaskunbilbao.eus/2015/11/amnesia-historica-cuarenta-anos-despues-de-la- muerte-de-franco/.

April 26, 2017.Verdad, Justicia y Reparación: Ciudades y naciones para la memoria. http://www.ceaqua.org/ceaqua-denuncia-el-desamparo-de-la-victimas-del-franquismo-en- el-parlamento-europeo/.

May 22- 23, 2017. Fact finding visit to Spain on the alleged cases of abduction of new-borns. Committee on Petitions. http://www.europarl.europa.eu/committees/nl/gsahighlight.html?query=spain&url=http%3 a%2f%2fwww.europarl.europa.eu%2fcommittees%2fnl%2fevents- missions.html%253Fid%253D20170519MIS00141.

November 20, 2017. Politics on European Remembrance. Francoism post Franco. https://efa.greens-efa.eu/en/article/event/francoism-post-franco/.

76 Bibliography.

Aguilar, Paloma. Memory and amnesia.The role of the civil war in the transition to democracy. New York:Berghnahn Books, 2002.

–—— “Amnesty and Reparations Without Truth or Justice in Spain”. In Transitional Justice and Memory in Europe (1945- 2013), ed. Nico Wouters, 199-259. Cambridge, Intersentia: 2014.

——— “Jueces, represión y justicia transicional en España, Chile y Argentina.” Revista Internacional de Sociología 71, no 2 (may- august 2013): 281- 308,.doi: 10.3989/ris.2011.11.14.

Amnesty International. El tiempo pasa, la impunidad permanece La juridicción universal como una herramienta contra la impunidad para las víctimas de la Guerra Civil y el franquismo en España. June 17, 2013. https://doc.es.amnesty.org/ms- opac/search?fq=mssearch_fld13&fv=EUR4140013.

———Casos cerrados, heridas abiertas. El desamparo de la víctimas de la Guerra Civil y el franquismo en España, May 9, 2012. https://doc.es.amnesty.org/ms-opac/search?fq=mssearch_fld13&fv=EUR4110112.

——— Recomendaciones de Amnistía Internacional a las Cortes generales para una realización efective del derecho a la verdad, la justicia y la reparación de las víctimas de la Guerra Civil y el franquismo. November 7, 2017. https://doc.es.amnesty.org/ms- opac/search?fq=mssearch_fld13&fv=EUR41600017.

Auto Competencia Investigación crímenes franquismo. http://baltasargarzon.org/wp- content/uploads/2014/06/Auto-competencia-investigaci%C3%B3n-crimenes-franquismo.pdf

Barahona de Brito, Alexandra and Sznajder, Mario. “The Politics of the Past: The Southern Cone and Southern Europe in Comparative Perspective” 15, no 3 (2010): 488- 489, https://doi-org.proxy.uba.uva.nl:2443/10.1080/13608746.2010.513607.

——— “ Transitional justice and memory: exploring perpectives”. South European Society and Politics,15. No. 3 (September 2010): 359-376 2010 . DOI: 10.1080/13608746.2010.513599.

Barkan, Elazar. “Restitution and amending historical injustices in international morality.”In Politics and the past. On repairing historical injustices, edited by John Torpey, 91-102. United States of America: Rowman &Littlefield Publishers,2003.

Torpey, John. “Introduction. Politics and the past.” In Politics and the past. On repairing historical injustices, edited by John Torpey, 1-30. United States of America: Rowman &Littlefield Publishers, 2003.

77 Bernecker, Walther L. “Alemania ante el cambio de régimen en España”, in Claves internacioneles en la transición española, edited by Óscar José Martín García and Manuel Ortiz Heras,174- 198. Madrid, Catarata: 2010.

Burbidge, Peter.“Waking the dead of the Spanish Civil War. Judge Baltasar Garzón and the Spanish Law of Historical Memory.” Journal of International Criminal Justice 9 (2011):753- 781. DOI: 10.1093/jicj/mqr027.

Casanova, Julián. Europa contra Europa. 1914- 1945. Barcelona, Crítica: 2011.

——— “Disremembering Francoism: What is at Stake in Spain’s Memory Wars?” In Interrogating Francoism. History and Dictatorship in Twentieth- Century Spain. Edited by Helen Graham. 203-222. London: Bloomsbury, 2016.

———“La paz de Franco.” In Morir, matar, sobrevivir. La violencia en la dictadura de Franco.Edited by Julián Casanova. 3-17. Barcelona: Crítica, 2002.

——— “La dictadura que salió de la guerra”. In 40 años con Franco. Edited by Julián Casanova. 53- 79. Barcelona, Crítica: 2015. Council of Europe, Parliamentary Assembly. Need for international condemnation of the Franco regime. Rapporteur: Mr. Brincat, Political Affairs Committee. November 4, 2005. http://assembly.coe.int/nw/xml/XRef/Xref-DocDetails-EN.asp?FileID=10438&lang=EN.

Council of Europe. Missing persons and victims of enforced disappearance in Europe. Issue Paper. Commissioner for Human Rights, Nils Muižnieks. March 17, 2016. https://wcd.coe.int/ViewDoc.jsp?p=&Ref=CommDH/IssuePaper(2016)1&Language=lanEnglis h&direct=true.

López López, Pedro. “Crímenes del franquismo, derecho y justicia transicional”, Crónica Popular. Los crímenes del franquismo.Suplemento especial nr. 5, 2014, 20-29.

Chinchón Álvarez, J. El tratamiento judicial de los crímenes de la guerre acivil y el franquismo en España. Una visión de conjunto desde el derecho universal.Bilbao. Universidad de Deusto (2012). http://eprints.ucm.es/19832/.

——— “Justicia Transicional: ‘Memoria Histórica’, y reponsabilidad internacional del Estado: Un analisis general a propósito del cumplimiento de ciertas obligaciones internacionales en juego después de más de tres décadas del inicio forma de la transición política española”. Revista de derecho de extremadura (2009): 49- 74. http://eprints.ucm.es/9169/1/Articulo_Revista_Derecho_Extremadura.pdf

Chinchón, Javier, Vicente, L. and Moreno, A., “La posición del Tribunal Supremo respecto a la aplicación del derecho internacional a los crímenes del pasado en España: Un análisis jurídico tras los informes del Grupo de Trabajo sobre Desapariciones Forzadas, el Comité contra la Desaparición Forzada y el Relator Especial sobre Justicia Transicional de las Naciones Unidas”, Anuario Iberoamericano de Derecho Internacional Penal, ANIDIP 2 (2014), 66-101. doi: dx.doi.org/10.12804/anidip02.01.2014.03

78 European Commission. COM(2010) 783, Report from the Commission to the European Parliament and to the council, The memory of crimes committed by totalitarian regimes in Europe, December 22, 2010, http://eur-lex.europa.eu/legal- content/EN/TXT/?uri=CELEX%3A52010DC0783.

Closa Montero, Carlos. Study on how the memory of crimes committed by totalitarian regimes in Europe is dealt with in the Member States.Institute for Public Goods and Policy, Centre of Human and Social Sciences. CSIC. Note 4 in document: http://eur- lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52010DC0783.

Conway, Martin & Depkat,Volker. “Towards a European History of the Discourse of Democracy: Discussing Democrcay in Western Europe, 1945- 1960”. In Europeanization in the Twentieth Century. Historical Approaches, edited by Martin Conway and Kiran Klaus Patel, 132-151. New York, Basingstoke: 2010.

De Riquer,Borja, “La crisis de la dictadura.” In 40 años con Franco. Edited by Julián Casanova. 115- 151. Barcelona, Crítica: 2015.

European Parliament. 70 years after General Franco's coup d'état in Spain (Statements by the President and the political groups). July 4, 2008. http://www.europarl.europa.eu/sides/getDoc.do?pubRef=- //EP//TEXT+CRE+20060704+ITEM-004+DOC+XML+V0//EN

European Parliament. Europe for Citizens (2014-2020). Directorate General for Internal Policies, Policy Department B: Structural and Cohesion Politics,Culture and Education. September 2012. http://www.europarl.europa.eu/RegData/etudes/note/join/2012/495822/IPOL- CULT_NT(2012)495822(SUM01)_ES.pdf

European Parliament. European Historical Memory: Policies, Challenges and perspectives. Author: Markus J. Prutsch. Directorate General for Internal Policies, Policy Department B: Structural and Cohesion Politics,Culture and Education. September 2013. http://www.europarl.europa.eu/RegData/etudes/STUD/2015/540364/IPOL_STU%282015%2 9540364_EN.pdf

European Parliament, Annual report on activities of the Committee of Petitions in 2015 (2016/2146(INI), Rapporteur: Ángela Vallina. December 2, 2016. http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A8- 2016-0366+0+DOC+PDF+V0//EN

European Parliament. Report on the Situation of Fundamental Rights in the European Union in 2015 (2016/2009(INI). Committee on Civil Liberties, Justice and Home Affairs, Rapporteur: Jószef Nagy. November 24, 2016. http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A8- 2016-0345+0+DOC+PDF+V0//EN.

79 Espinosa Maestre, Francisco. Lucha de historias, lucha de memorias. España 2002- 2015.Seville: Aconcagua, 2015.

Fernandez Soriano, Victor .“Las Comunidades Europeas frente al franquismo: problemas politicos suscitados por la solicitud española de negociaciones de 1962.” Cuadernos de Historia Contemporanea 32 (2010): 153-174. http://revistas.ucm.es/index.php/CHCO/article/view/CHCO1010110153A/6694

Ferrándiz, Francisco. “Exhuming the defeated: Civil War mass graves in 21st century Spain.” American ethnologist vol. 40, 1 (2013): 38–54. doi:10.1111/amet.12004.

——— El pasado bajo tierra, Exhumaciones contemporáneas de la Guerra Civil. Barcelona: Anthropos Editotial, 2014.

Forlenza, Rosario. “The politics of the Abendland: Christian Democracy and the idea of Europe after the Second World War”. Contemporary European History, 26(2017): 261-286. doi:10.1017/S0960777317000091

Damián A. González, “Actores y factores internacionales en el cambio político español”.In Claves internacionales en la transicion española, edited by Óscar José Martín García and Manuel Ortiz Heras, 39-65. Madrid, Catarata:2010.

Graham, Helen. “Writing Spain’s Twentieth Century in(to) Europe”. In Interrogating Francoism. History and Dictatorship in Twentieth- Century Spain, edited by Helen Graham, 1- 24. London, Bloomsbury: 2016.

———Breve historia de la guerra civil, translated by Carmen Martínez-Gimeno. Barcelona, Espasa Libros: 2013.

Graham, Helen, and Quiroga, Alejandro. “After the fear was over? What came after Dictatorships in Spain, Greece, and Portugal”.In The Oxford Handbook of Postwar European History, ed. Dan Stoone. Oxford University Press: 2012, 1-29, 10.1093/oxfordhb/9780199560981.013.0025

Judt, Tony. “The Past is Another Country: Myth and Memory in Postwar Europe.” In A Journal of Social and Political Theory, no.87, (June 1996): 36-69. http://www.jstor.org/stable/41802044.

——— Postwar. A history of Europe since 1945.London, Pimlico, 2007.

Levy, Daniel and Sznaider, Nathan. Human rights and memory. University Park PA: Pennsylvania State University Press, 2010.

Levy, Daniel. “Recursive cosmopolitization: Argentina and the global Human Rights Regime.” The British Journal of Sociology, 61 (2010): 579–596. doi:10.1111/j.1468-4446.2010.01327.x

80 Monedero, Juan Carlos. La Transición contada a nuestros padres. Nocturno de la democracia española. Madrid, Catarata: 2013.

Moradiellos, Enrique. "Franco's Spain and the European Integration Process (1945-1975)." Bulletin for Spanish and Portuguese Historical Studies 41, no. 1, Article 4 (2016):67-87. https://doi.org/10.26431/0739-182X.1225.

Moreno Gomez, Francisco. Los desaparecidos de Franco. Un estudio factual y teórico en el contexto de los crímenes internacionales y las comisiones de la verdad. Madrid, Al Puerto:2016.

Ortiz Heras, Manuel. “La Transición. ¿Un asunto doméstico?”In Claves internacionales en la transicion española, edited by Óscar José Martín García and Manuel Ortiz Heras, 13-39. Madrid, Catarata:2010..

Powell, Charles T. "España En Europa: De 1945 a Nuestros Días." Ayer, no. 49 (2003): 81-119. http://www.jstor.org.proxy.uba.uva.nl:2048/stable/41325189.

——— The Long Road to Europe: Spain and the European Community, 1957- 1986, Elcano Royal Institute, June 11, 2015. http://www.realinstitutoelcano.org/wps/portal/web/rielcano_en/contenido?WCM_GLOBAL _CONTEXT=/elcano/elcano_in/zonas_in/dt9-2015-powell-long-road-europe-spain-european- community-1957-1986.

Preston, Paul. El Holocausto español. Odio y exterminio en la Guerra Civil y después. Translated by Catalina Martínez Muñoz y Eugenia Vázquez Nacarino. Barcelona: DeBolsillo, 2013.

Rigney, Ann.“Ongoing: Changing Memory and the European Project”. In Transnational Memory. Circulation, articulation, scales, edited by Chiara de cesari and Ann Rigney, 339- 359. Berlin, De Gruyter: 2014.

Sáez Valcarcal, Ramon. “Justicia transicional y España. ¿Se puede juzgar la historia?” in Memoria histórica: ¿Se peude juzgar la historia? Jueces por la democracia. Madrid, Fundacion Antonio Carretero, 2009, 85-112.

Roht- Arriaza,Naomi. “The role of International Actors in National Accountbility Processes.” In The politics of memory:transitional justice in democratizing societies, edited by Alexandra Barahona de Brito, Carmen González-Enríquez and Paloma Aguilar. Oxford, Oxford University Press: 2001.

Sánchez Soler, Mariano. La Transición sangriente. Una historia violenta del proceso democrático en España (1975-1983).Barcelona: Península, 2010.

Torpey, John. “Introduction. Politics and the past.” In Politics and the past. On repairing historical injustices, 2000.

81 Jerez, Ariel and Silva, Emilio. “Cultura de derechos humanos y construcción de ciudadanía.”In Políticas de memoria y construcción de ciudadanía, edited by Ariel Jerez and Emilio Silva, 1- 17. Madrid: PostMetroplois Editorial, ARMH, 2008. Thomas, Daniel C. “Constitutionalization through enlargement: the contested origins of the EU’s democratic identity.” Journal of European Public policy 13, no.8 (2006), 1190-1210. http://dx.doi.org.proxy.uba.uva.nl:2048/10.1080/13501760600999524

United Nations. Office of the High Commissioner of Human Rights, Report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantuees of non- recurrence, Pablo de Greiff. Mission to Spain. July 22, 2014. http://ap.ohchr.org/documents/dpage_s.aspx?si=A/HRC/27/56/Add.1

United Nations. Report of the Working Group of Involuntary or Enforced Disappearances- Mission to Spain. General Assembly, Human Rights Council.Twenty- seventh session. July 2, 2014. http://ap.ohchr.org/documents/dpage_s.aspx?si=A/HRC/27/49/Add

United Nations. Report of the Working Group of Involuntary or Enforced Disappearances. Follow-up to the recommendations made by the Working Group. General Assembly, Human Rights Council. Thirty- sixth session September 7, 2017. https://www.documentcloud.org/documents/3990174- InformeEspa%C3%B1aONUsept2017.html#document/p2.

Wintle, Michael. “Introduction. Ideal, Identity and War: the Idea of Europe, 1939- 1970.” In European Identity and the Second World War, edited by Michael Wintle and Menno Spiering, 1-18. Basingstoke, Palgrave Macmillan: 2011.

Wouters, Nico.“Transitional Justice and memory developments in Europe” In Transitional Justice and Memory in Europe (1945- 2013), ed. Nico Wouters, 369- 413 . Cambridge, Intersentia: 2014.