UN Tells Spanish Government it Must Atone for Franco's Crimes

Rosa Moreno Carranza, the daughter of a victim of Franco's military regime, shows an image of her father at Spain's High Court in Madrid, May 29, 2014. Susana Vera/Reuters

"I want to take at least one of my father's bones with me to my own grave," says 88-year-old Ascensión Mendieta.

Mendieta's fight to disinter the remains of her father, which lie in a mass grave on the edge of a cemetery in Guadalajara, has taken her as far as Argentina, where her plea convinced a judge to request that the patch of ground, containing the bodies of Timoteo Mendieta and 21 other men executed in 1939, be excavated. Like many relatives of fascism's victims, Ascensión and her family have been frustrated by Spanish authorities' inability or unwillingness to satisfy their demands for dignified closure. Ascensión's time is running out.

Thirty-nine years after the death of Franco, over 100,000 victims of summary executions remain buried in up to 2,400 unmarked graves dotted all over Spain. A report to be presented next month by a United Nations investigative team is demanding that the Spanish government take action by the end of the year to ensure that relatives of the disappeared receive official help in locating the remains of the people executed by fascist forces during the Civil War (1936-39) or during the period of dictatorial repression after Franco had defeated the Republican army.

According to the historian Paul Preston's 2012 book, The Spanish Holocaust, 200,000 people were summarily killed during the war, approximately three quarters being Republicans or perceived leftist sympathisers, with another 20,000 eliminated by the Franco regime in the years after the war. No one knows how many bodies still lie unaccounted for – a criticism made by the Working Group from the Office of the High Commissioner for Human Rights (OHCHR), which visited Spain last autumn and whose final report and a list of 42 recommendations will be presented at September's meeting of the UN Human Rights Council.

The report describes Spain's steps towards uncovering the truth as: "important but timid" and call for a "state body... with sufficient human, technical and financial resources to oversee all matters relating to enforced disappearances, including the establishment and organisation of a central database." They also note that just three regions – Andalusia, the Basque Country and Catalonia – have so far provided organised assistance to families trying to locate missing relatives.

Ariel Dulitzky, the chair-rapporteur of the UN group, says the report is not a hatchet job on the Spanish government. "There has been uneven progress, and this reflects the particular historical context and political situation experienced by Spain since its transition to democracy," he says. "There are positive aspects, which we point out in the report, such as the Historical Memory Law, but the main concern we have is that the attention to the people affected is not a state matter but rather is dealt with in different ways by different institutions. There is no state policy towards the disappeared."

The 2007 Historical Memory Law, introduced by the Socialist government of then-prime minister José Luis Rodríguez Zapatero, represents the only significant legislative effort to help the victims' families. The law enables them to apply for a certificate that restores the honour of those people condemned for political crimes by Franco's courts. It also demands the removal of symbols that honour Franco and his regime, with the government recently reporting that 86% of plaques, statues, street names and other such commemorative tokens have been withdrawn.

Most importantly, the law was accompanied by subsidies to help excavate the mass graves, although Spain's current conservative Popular Party (PP) government closed the tap on financial assistance for these projects in 2012. "The Historical Memory Law had been deprived of funding; this is a fact that the government acknowledges and has explained as an effect of the economic crisis," explains Dulitzky. In the first five years after the law was passed, some €25m had been handed out to assist with the location and opening of graves. Now the funds have dried up.

For Emilio Silva, president of the Association for the Recovery of Historical Memory (ARMH), the 2007 legislation was little more than a sop to victims; a "low-cost law," in part because it merely urged local authorities to help and didn't hold them accountable. "All the problems remain unsolved," says Silva, adding that the UN report "reflects the fact that four decades' worth of governments have not done their duty."

In 2000, Silva was behind the first exhumation in two decades, after some hundreds of Franco-era casualties had been disinterred in the immediate aftermath of the dictator's death. Silva dug up the remains of 13 men in Priaranza del Bierzo in León province, all of whom had been members of leftist and Republican organisations. The corpses included that of his own grandfather, Emilio Silva Faba. That experience led to the founding of the ARMH and, since then, several thousand more families have recovered their ancestors, mostly without any state assistance. "We get by as best we can," Silva says, of the volunteers' efforts. "When we are at a site, people in the nearest village put us up and offer us food. The biggest problem we face is with DNA testing, which clearly has to be done in a laboratory." He is fortunate to have a relationship with one lab that is lenient about paying the bills, but, he adds, the need to scrape around for help "is shameful in a country where the state has 30 such laboratories". One of the ARMH's digs this year was funded by a €6,000 donation by a Norwegian electricians' union.

In any case, Silva feels that subsidies have been of little use, resulting in the belief that "thanks to funding, our demands will become weaker. We never asked for subsidies but rather an acceptance of responsibility," he says.

Dulitzky is sympathetic to the frustration felt by relatives: "Since the transition to democracy, there have been governments of various political stripes, but the lack of a policy [on Franco-era crimes] has been a constant," he says. The UN report reminds the government that, according to international conventions to which Spain is a signatory, "forced disappearances" are crimes which cannot expire under a statute of limitations or be annulled by an amnesty such as the one that was passed during the country's transition to democracy after Franco's death.

International law on crimes against humanity and the notion that a disappearance is a crime without an expiration date were the foundations upon which the now-disbarred judge, Baltasar Garzón, in 2008 responded to a criminal complaint lodged by historical memory associations with Spain's High Court. Garzón ordered the excavation of 19 grave sites, including the possible resting place of the poet and playwright Federico García Lorca near Granada. But, under pressure from state prosecutors, who accused him of abusing his authority, the judge eventually referred his investigation to provincial courts before being suspended and put on trial.

In 2012 a Supreme Court panel controversially found Garzón guilty of violating the rights of defendants in the Gürtel case – a kickbacks scandal that affected the ruling Popular Party – after ordering wiretaps on jailed suspects' phone conversations with their lawyers. He was barred from serving on the bench for 11 years for that offence, although later acquitted of deliberately abusing his authority in the Franco-era crimes investigation.

Now, the UN rapporteurs, who have adopted Garzón's own estimate of 114,000 missing bodies as their reference figure, say they are concerned about Garzón's punishment, noting that the closure of the investigation due to the expiry of the crimes, and the pre-eminence of Spain's amnesty law, has led to a "paralysation" of inquiries into past human rights abuses: "Since the Supreme Court's decisions were taken, virtually not one judge or prosecutor has undertaken... any investigation into enforced disappearances."

With the Spanish courts now running scared of opening up old wounds, it is ironic that some victims are seeking justice abroad, notably in Argentina, where the principle of universal jurisdiction – the legal field in which Garzón became famous for ordering the arrest of Chile's General Pinochet – has now been taken up by Judge María Servini de Cubría.

Mendieta was accompanied on her trip to Servini's Buenos Aires courthouse by three of her children, including her daughter Chon Vargas, a lawyer. Vargas says her mother's journey to be reunited with the remains of her grandfather, who was shot after a summary trial as a result of his labour union activities, has been long and difficult. The site of his grave was revealed when an inner perimeter wall of the Guadalajara graveyard was demolished after the first Socialist government came to power in 1982, allowing relatives to place a gravestone. But the family, was not initially united in their support for the attempts to disinter the remains. It was not until after the Supreme Court's paralysation of Garzón's probe that Mendieta was able to start the process, only to find that "here in Spain all of our options had been closed off."

Vargas says that her mother, who was 13 when her grandfather was executed, has become "downhearted" by the difficulties, but the family is now optimistic that Judge Servini's request will be granted, when a court in Guadalajara gives the all-clear. The city council has all the information required to allow for the dig, she says, but has warned that there may be no funding for the work. "It doesn't matter who pays for it," Vargas says. "I just want the state to own up to its responsibilities."

Dulitzky, who claims that his team has enjoyed "excellent dialogue" with the government in Madrid, says he has noticed an improvement in the cooperation offered to Judge Servini by Spain's judiciary since the working group's visit last September: "Our recommendations are not just aimed at central government. There are other institutions with the capacity to help in these matters, such as parliament, the judiciary, archive holders and regional authorities." He says he is "optimistic" that progress will be made after the report is presented, but adds that dialogue will likely continue long after the end of the 90-day period of leeway granted to the Spanish administration to put together a detailed action plan.

Besides its concern for the dead, the UN team has highlighted another scandal – that of the nation's stolen children. After the Civil War, thousands of babies were taken from "undesirable" families and given to favoured couples as a repressive measure by Franco's state apparatus. But such practices were continued by well-placed individuals as a criminal sideline throughout the regime's lifetime and even after the dictator's death. Prosecutors in Spain have been presented with 1,500 complaints as, thanks to a series of articles in the Spanish press, more people have become aware of the possibility that their child was snatched from them or that their adopted parents may have acquired them on this darkest of black markets. The government has set up a DNA bank to assist people who suspect they may have been victims of baby snatching.

Spain's Justice Ministry was asked to comment on the UN report and its own record in terms of historical memory for this article, but a spokesperson said that no one with the necessary expertise in the matter was available for comment. The ministry's press department supplied an email containing generic information, the first point explaining how the Amnesty Law had been passed by a comfortable congressional majority in 1977. Luis Tudanca, a Socialist Party member of Congress, criticises the government's "de facto repeal" of the Historical Memory law through the withdrawal of subsidies and closure of the victims' support office. "The majority of the UN's recommendations would be met merely by applying the law," he says.

For Emilio Silva, the attitude of the current and former governments follows a sad and cynical pattern in which human rights are only prioritised when it suits. "In the administration, it is only the Foreign Ministry which has a department related to human rights," he says. "Our parliament does not have a rights committee, although, after the first Socialist election victory in 1982, a Senate commission was set up to investigate the fate of Spanish disappeared in Chile and Argentina. There was even a specific office within the Defence Ministry to assist relatives of members of the Blue Division [who fought with Nazi Germany against the Soviet Union]," Silva says. "In Spain there are first-class and second-class disappeared."