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Wednesday, March 22, 2023
BUENOS AIRES, Apr 10 2012 (IPS) - Based on the principle of universal justice, human rights crimes committed during Spain’s 1936-1939 civil war and the 1939-1975 dictatorship of General Francisco Franco are being tried in Argentina, and more and more plaintiffs are joining the lawsuit.
The human rights lawyers who initially brought the lawsuit in Argentina in April 2010 argued that after 36 years of dictatorship and 36 years of democracy in Spain, there were no efforts to investigate the abuses committed in Spain.
Internationally renowned Spanish Judge Baltasar Garzón was disbarred on charges that he overstepped his jurisdiction when he began to investigate the human rights crimes, which were presumably covered by an amnesty issued by the Spanish parliament in 1977.
“In our view, the doors are closed in Spain, where it is argued that they were common crimes, covered by an amnesty, on which the statute of limitations has run out,” Inés García Holgado, one of the plaintiffs in the case that got under way in an Argentine federal court in December 2011, told IPS.
Two of García Holgado’s great uncles, Luis and Elías García Holgado, were executed in 1936 and 1937, respectively, and her uncle Vicente García Holgado was a victim of forced disappearance.
“In Spain, they see this as a question for the history books; they aren’t going to investigate or bring it to trial,” she said.
Inés García Holgado, an Argentinian, is confident that the case will move ahead because of the principle of universal jurisdiction for crimes against humanity. “I am very hopeful. If we are successful, Argentina will be the first Latin American country to apply this principle,” she added.
Under the principle of universal jurisdiction, crimes against humanity, genocide and terrorism, which are not subject to statutes of limitation or amnesties, can be tried at any time in any place.
Thus, national courts can try foreigners for crimes of this nature committed abroad. However, the legislation of many countries requires an explicit link between the victims and plaintiffs and the country where the prosecution is taking place.
The other original plaintiff in the case is 91-year-old Darío Rivas, who was born in Spain but has lived in Argentina since he was nine years old.
His father, Severino Rivas, mayor of the village of Castro de Rei in the northwestern Spanish province of Galicia, was purportedly killed in 1936 by members of Spain’s fascist Falange movement. His remains were found in an unmarked common grave in 2005.
Soon after the lawsuit was filed, four other people whose relatives were victims of the Franco regime joined García Holgado and Rivas as plaintiffs. Some of them were themselves survivors of the abuses of the dictatorship which ended when Franco died in 1975, giving rise to a transition to democracy, the first free elections in Spain, in 1977, and a new democratic constitution, which went into effect a year later.
But it was after Argentine Judge María Servini, who is handling the case, asked the Spanish courts for information in December that the number of plaintiffs began to climb.
Argentine lawyer Carlos Slepoy, who represents several of the plaintiffs, told IPS that “20 cases have already been denounced in Argentina and we are expecting 55 more. But in time, they could number in the hundreds.”
Slepoy explained that some of the direct victims of the final stage of the regime, who were arrested for their political or trade union activities and affiliations, began to come to Buenos Aires this month to testify in court, bringing powers of attorney enabling them to represent other victims in the same or other cases.
García Holgado said that from Argentina, they are advising survivors of the Spanish dictatorship and family members of victims on how and where to obtain documents that serve as evidence of the crimes that were committed, in order to bring legal action in this country.
In December, Judge Servini asked authorities in Spain to provide the names of military officers involved in the repression; lists of victims of forced disappearance and summary execution; lists of children who were stolen from their parents during the dictatorship; and the names of companies that allegedly benefited from the forced labour of political prisoners.
Human rights groups in Spain had provided the now disbarred judge Garzón with evidence that at least 114,000 people were forcibly disappeared and 30,000 children were stolen under Franco.
Servini also asked the authorities in Spain whether they were effectively investigating “the existence of a systematic, generalised and deliberate plan to terrorise Spaniards who supported representative government, by physically eliminating them” between 1936 and 1977.
Spain has not yet responded, said Slepoy. “They will probably use delaying tactics, which is what governments do when they don’t want to respond,” the lawyer said.
The principle of universal justice was applied in Spain by Garzón when he investigated human rights crimes committed by the dictatorships of Argentina (1976-1983) and Chile (1973-1990), in lawsuits in which Slepoy was also involved.
Now, after a movement that attempted to get human rights crimes committed by Argentina’s seven-year dictatorship tried in Spain, the attempt is to apply the principle the other way around: in Argentina, for crimes against humanity amnestied in Spain.
In Argentina, the two amnesty laws that had shielded military personnel from human rights prosecutions were struck down in 2005, clearing the way for hundreds of former military commanders, officers and lower-ranking soldiers, as well as civilian collaborators, to be tried for forced disappearance, torture and killings committed during the dictatorship, which “disappeared” an estimated 30,000 opponents of the regime.
Something similar happened in Chile. In 1998, Garzón issued an international arrest warrant for former dictator Augusto Pinochet (1915-2006), who as a result was arrested in London, where he spent 503 days under house arrest.
But although he was not extradited to Spain for trial on human rights charges, as sought by Garzón, and was instead permitted by British authorities to return home on humanitarian grounds, the process helped get the ball rolling in Chile, where he was indicted in connection with forced disappearances – though he died without ever going to trial.
But when Garzón began to investigate the Franco regime’s crimes, far-right Spanish groups, including Manos Limpias (Clean Hands) and Libertad e Identidad (Liberty and Identity), accused him of abuse of power for investigating crimes that were covered by the 1977 amnesty, in the first of three cases brought against him almost simultaneously in the Supreme Court.
On Feb. 27, the Supreme Court found him not guilty of overstepping the bounds of his jurisdiction, although it did criticise his interpretation of international human rights law, and said he was wrong to start investigating human rights crimes in Spain as the amnesty was still in force.
But 18 days earlier, the Supreme Court had already disbarred the investigating magistrate for 11 years in a separate case, involving wiretapping in one of the highest-profile prosecutions for corruption in times of democracy in Spain, against leaders of the right-wing Popular Party, in power since December.
Slepoy said the argument put forth in Spain – that the people investigated in connection with Franco-era human rights crimes are now dead – is false. “These are hurdles thrown up by the government to show that it is supposedly impossible to try those accused of the crimes,” he said.
“The culture of impunity is so strong that it makes it look like the amnesty law is untouchable, the way things used to look in Argentina,” the lawyer said. “But I am confident that Spain is moving in the direction of a process similar to what we have experienced in this country.”
He also confirmed that lists of names of plaintiffs in Spain are being drawn up, so Judge Servini can take their depositions at the Argentine Embassy in that country when she travels there in June, to add new plaintiffs to the lawsuit.
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