1977 post-dictatorship amnesty law still blocking legal cases of Franco-era torture

Allegations of torture of political dissidents at the Via Laietana police station in Barcelona by the Francoist police at the end of the dictatorship and during the transition to democracy are seeing no progress in the judicial system, even 50 years after the death of the dictator.

For frustrated victims, the 1977 amnesty law seems to be an insurmountable obstacle, despite the 2022 democratic memory law.

Two of the three cases reported have been filed in Spain and have ended up at the UN and the European Court of Human Rights.

The third complaint is still being investigated by the newly created Public Prosecutor's Office for Democratic Memory, which must decide whether to take it to court to continue investigating it.

Human Rights group Irídia has brought forward three legal cases, but none of the victims have ever made it to the point of giving their testimony to a judge.

The first such case came in November 2022, just after the democratic memory law came into force. This complaint came from Carles Vallejo, a trade unionist tortured between 1970-1971, who is now the president of the Catalan Association of Political Prisoners of the Franco regime.

His was the first such case to be sent, taking into account the new law, but it was filed by a court in Barcelona, and the Constitutional Court closed the door to it. 

Last September, they went to the European Court of Human Rights (ECHR), claiming that the new memory law provides a "legitimate perspective" that crimes against humanity, such as police torture for political reasons, can be investigated.

Catalan News interviews Carlos Vallejo in 2020 for an episode of our podcast, Filling the Sink. Listen below.

A year after the first complaint, in November 2023, the second was filed by twins Pepus and Maribel Ferrándiz, communist activists tortured in 1971. It was also filed by the ordinary justice system and rejected by the Constitutional Court. In their case, they decided to try another international route, through the UN.

Finally, a year later, in November 2024, a different way was sought to denounce the torture of the pro-independence sisters Eva and Blanca Serra on four occasions at the Via Laietana police station and at the General Directorate of Security in Madrid between 1977 and 1982.

Since the Public Prosecutor's Office for Democratic Memory had recently begun operating in Barcelona, ​​the lawyers opted to use this recourse.

Instead of going directly to court, they filed a complaint with the public prosecutor's office to conduct a pre-trial investigation. Last May, the prosecutor took a statement from Blanca Serra, as her sister is now deceased, and she became the first person tortured by Franco to testify before the public prosecutor's office.

The public prosecutor's office still has this case open, is investigating it, and should soon decide whether to shelve it or take it to an investigative court.

In the first two cases, the prosecution initially opposed the investigation, but later changed its position and supported it. In Serra's case, the circumstances are that some of the torture occurred after the 1977 amnesty law, but there is a risk that the courts will not consider them crimes against humanity and, therefore, declare them time-barred.

Amnesty, statute of limitations, and non-retroactivity of laws

Lawyer Laura Medina, who is leading two of the torture cases on Via Laietana, admits that Spanish courts tend to use the same three arguments to dismiss investigations: the 1977 amnesty law; the fact that police torture is not considered a crime against humanity, therefore putting the events beyond the statute of limitations; and the principle of legality that would prevent more restrictive criminal laws from being made retroactive.

To this last point, Medina responds that during the Franco regime, there was no express law that prevented, prohibited, and punished these acts. On the other hand, international law did criminalize these behaviours and, therefore, it would be possible to investigate them, Medina assures. 

She also argues that the 2022 law of democratic memory requires all Spanish laws, including the 1977 amnesty, to be interpreted in accordance with international human rights legislation.

Thus, she also believes that even if the direct perpetrators are dead, the justice system could investigate the facts, that victims and witnesses could testify in court, and that police and judicial files could be inspected.

Medina also does not rule out seeking other avenues for justice, such as specific courts for these cases, or the administrative route with financial compensation from the state.

She also leaves the door open to reforming the current law of democratic memory to make it explicit in the penal code that retroactivity can be applied in the case of crimes against humanity.