Sunday, September 26

The CGPJ maintains that the apology of the Franco regime falls within the freedom of expression

Tourists at the tomb of Franco in the basilica of the Valley of the Fallen.

Tourists at the tomb of Franco in the basilica of the Valley of the Fallen.
Jose Luis Roca

The plenary session of the General Council of the Judiciary (CGPJ) will be able to approve its report on the law of democratic memory next Monday, the 7th, after having to change speakers as the ones designated in the first place cannot be agreed. The ruling questions the intention of the Government of Pedro Sánchez de dissolve the Franco Foundation for advocating Francoism, since, it maintains that, “without the additional requirement of belittling or humiliating the victims,” ​​defending the Franco dictatorship “is protected by freedom of expression“.

The preliminary draft establishes as a new general cause of extinction of a foundation that these “do not pursue aims of general interest or carry out activities contrary to it.” The presentation of the vowels Roser Bach and Wenceslao Olea considers that this cause of dissolution leaves the applicator of the norm (both the protectorate, which is responsible for urging the dissolution, and the judge, the only one who can agree on it) a very wide margin of appreciation.

The fifth additional provision of the preliminary draft establishes as a specific cause of termination “the apology of the Franco regime or the direct or indirect incitement to hatred or violence against the victims of the coup, the war or the Franco regime, due to their condition as such ”. The proposed report warns that incitement to hatred against victims is manifested through expressions that the legislator can limit to the extent that they affect their dignity; but the apology for Francoism, without the additional requirement of contempt or humiliation to the victims, constitutes the expression of ideas that, although contrary to the values ​​proclaimed by the Constitution, are protected by freedom of expression.

The right to the truth, outside the process

The proposed report explains that the concept of the victim of the civil war and the dictatorship included in the law “moves on a strictly administrative plane of recognition, protection and compensation of the victims, since it is well-established jurisprudential doctrine that the right to know the historical truth is not part of the criminal process. ”

And with respect to the fact that the draft declares the radically null character of the sentences and sanctions imposed for political, ideological, conscientious or religious belief reasons during the civil war and the dictatorship, the proposed report indicates that this declaration of nullity is in line with the interpretation that the Supreme Court made of the declaration of illegitimacy provided for in the Historical Memory Law 2007. Therefore, the text recommends a wording that limit the invalidity of decisions to the existence of a specific content of conviction or sanction.

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