Historical memory and criminal justice in Spain : a case of late transitional justice
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Bibliographic Information
Historical memory and criminal justice in Spain : a case of late transitional justice
（Series on transitional justice, 14）
Intersentia, c2013
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Note
Bibliography: p. 185-192
Description and Table of Contents
Description
The Spanish transition from the Franco regime to democracy has not been a very popular subject amongst researchers examining transitional justice at the international level. However, Spain presents certain peculiarities that make it an interesting case in which to explore comparative law and sociology. It has sometimes been seen as a model of peaceful transition, but has also been labelled as an example of an "amnesic" transition to a democratic system in which victims' rights, justice and truth were forgotten. In contrast to other transitions, demands of justice were not expressed during what was the purely transitional period, but they have been on the increase since then. That is why, in this case, we can speak of "post-transitional justice" or, more properly, of "late transitional justice". This book analyses, above all, the laws, policies and judicial decisions adopted in Spain that were related to the construction of the past and could therefore be understood as measures of transitional justice.
By comparing this experience with transitional decisions adopted in other countries, the book highlights the main features of the Spanish case and the lessons that can be learned from it. Measures adopted during the transitional period, such as the amnesty and subsequent decisions aimed at giving some kind of partial reparation to the victims of the repression, are here studied. Demands for reviewing the past, the 2007 Act of Historical Memory, and the controversial use of criminal justice are also considered. Criminal Law is hardly applicable to the facts of the past, but the purely amnesic option can no longer be defended. Therefore, the author proposes a plan of action including different measures, such as the creation of a commission of memory, which would be in charge of investigating not only violent crimes or torture, but also other related crimes, including child abduction and politically motivated unlawful adoptions and those perpetrated in a systematic way during the Dictatorship. A victim-centred approach requires ensuring that each victim has the right to be considered on the basis of his or her own suffering, needs and rights and not as a member of a large group.
Table of Contents
Chapter 1. Introduction Chapter 2. Transitional Justice and the Spanish Case 1. Theoretical background: models of transitional justice 2. Transitional justice and historical memory 3. Victims' rights 3.1. The triad of truth, justice and reparation 3.1.1. Truth 3.1.2. Justice 3.1.3. Reparation 3.2. The development of international law: the basic principles 3.3. New victims' rights within a transitional context: identity and personal memory 4. Evaluating the Spanish case 4.1. Time 4.2. The symmetry and asymmetry of victimisation 4.3. The weakness of democratic forces 4.4. A smooth and non-violent transition Chapter 3. The Burden of Spain's 20th Century History 1. Introduction 2. The battle for memory 3. The democratic experience of the Republic 4. The denial of democracy leads to war 5. Dictatorship, repression and memory according to the victors 6. The difficult relationship between Spanish democracy and its uncomfortable history Chapter 4. The Repression and Its Legal Structure 1. Basis of the repression 2. Depuration 3. Criminal law under Francoism 4. Large legislation on criminal matters 5. The Penal Code of 1944 5.1. Moral and religious inspiration 5.2. A socially insensitive criminal justice system 5.3. A "criminal law of author" 5.4. Sexism 6. Victor's justice and retaliation: the Causa General Chapter 5. A Transition without Justice? 1. The "Spanish model": rhetoric about reconciliation and a decision not to look back to the past 2. Amnesty 3. The Constitution of 1978: rule of law, institutionalisation of the democratic state and legal reform 4. Repairing the past: gradual and partial measures of reparation 5. The victim's policy Chapter 6. Questioning the Transition: Late Transitional Justice? 1. A new social and political context 2. Social activism 3. The political response 4. Evaluating the transition Chapter 7. The Historical Memory Act and Its Implementation 1. General remarks 2. Rehabilitation of condemned persons 3. Reparation 4. The exhumation and identification of the victims 5. Social reaction and implementation 6. The Catalan Mass Graves Act 2009 7. New provisions concerning the declaration of death Chapter 8. Prosecuting the Crimes of Francoism 1. Precedents 1.1. An exceptional case for prosecution 1.2. Prosecution of crimes committed in other countries 1.2.1. Universal jurisdiction 1.2.2. Chile 1.2.3. Argentina 1.2.4. Guatemala 1.2.5. Sahara 1.2.6. From absolute universal jurisdiction to its legal restriction 1.2.7. Cases with Spanish victims of on-going prosecution 1.2.8. An internal echo: the Paracuellos case 2. A judicial decision to prosecute the crimes of Francoism and its consequences 2.1. The Garzon case 2.2 An overview from the procedural perspective Chapter 9. Is Criminal Prosecution Viable? The Theoretical Debate 1. The legal description of crimes and the problem of retroactivity 1.1. Crimes against humanity under Spanish criminal law 1.2. An appeal to natural law 1.3. An appeal to international criminal law 1.4. Convictions for other crimes 1.4.1. An innovative solution? 1.4.2. Murder 1.4.3. Forced disappearances 2. Prescription 3. The Amnesty Act 3.1. Amnesty under Spanish law 3.2. Types of amnesty 3.2.1. Self-amnesty 3.2.2. Individualised and conditional amnesties 3.2.3. General amnesty aimed at peacekeeping 3.3. The legitimacy of amnesty laws 3.4. Th e effects of the Spanish Amnesty Act 4. The lost children of Francoism 5. Abduction of minors and unlawful adoptions Chapter 10. Seeking Justice more than Thirty Years after the Transition 1. What kind of justice and for which victims? 2. Recognising the limits of criminal justice 3. Why not a truth commission? Bibliography Internet resources Appendix. Spanish Historical Memory Act
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