Spanish courts block opening of Franco's mass graves (Feature)

By Sinikka Tarvainen Jun 12, 2009, 2:08 GMT

Madrid - It was a familiar sight: a digger penetrating into soil containing a mass grave dating from Spain's 1936-39 civil war, while family members of those who were believed to be buried there quietly looked on.

However, the exhumation of the remains of four people in the northern town of Santa Marta de Tera differed from previous ones in Spain in that it had not been organized privately, only with the permission of sanitary police, but rather had been authorized by a judge.

Families of people killed by supporters of General Francisco Franco during the war or his ensuing dictatorship hope that the case will set a precedent, though they do not count on that.

If the Spanish judiciary as a whole decides not to back the opening of Franco's mass graves, 'we will take our case to European courts,' vows Emilio Silva of the Association for the Recovery of Historic Memory (ARMH), which has spearheaded the exhumations since 2000.

Neither the judiciary nor the government have shown willingness to 'do something as simple and human as burying the dead' of the Franco era, Silva complained in a telephone interview with the German Press Agency dpa.

'Some people have been waiting for over 60 years' to give their relatives dignified burials, which is 'a shame for Spain,' said Silva, whose grandfather was one of the first among Franco's victims to be dug up and identified with DNA tests.

Spain's National Court has become internationally known for its judges' eagerness to tackle human rights violations in other countries, ranging from Latin America to the Middle East and the US prison camp in Guantanamo.

Yet 70 years after the end of the civil war, Spain is still finding it difficult to deal with its own human rights record.

Franco is blamed for the disappearances of more than 100,000 people during the war, which was sparked by his uprising against the republican government, and the dictatorship, which ended with his death in 1975.

But when National Court judge Baltasar Garzon tried to launch an investigation into Franco's abuses in 2008, he was forced to drop the case under pressure from prosecutors.

Attempts to open a discussion about Franco's crimes are criticized by the conservative opposition People's Party (PP), which has distant links with Francoism.

The PP says such a discussion would reopen old wounds and divide the nation.

After the civil war, the Franco regime honoured its own dead, but the republican victims were ignored. Tens of thousands of Franco opponents are believed to lie in anonymous mass graves around the country.

Garzon ordered the opening of 19 mass graves, including one believed to contain the bones of poet Federico Garcia Lorca, but the order was suspended.

Garzon transferred his investigation into Franco's crimes to regional judges, but none except for Tania Chico, who is responsible for Santa Marta de Tera, has authorized exhumations amid confusion over who has jurisdiction over them.

Garzon said Franco's 1936 uprising amounted to a crime 'against high organisms of the nation,' which would place his abuses under the jurisdiction of the National Court.

But the court finally decided that Franco's crime was rebellion, which meant that regional courts were responsible.

Garzon's critics also say courts cannot investigate crimes committed by people who are already dead, and point out that Franco's collaborators were granted a collective amnesty in 1977.

A Granada judge who was asked to take a decision on Lorca's grave handed the responsibility back to the National Court, describing Franco's abuses as crimes against humanity.

While judges continue squabbling over such questions, ageing children of Franco's victims are increasingly losing hope of restoring the honour of their loved ones, Silva says.

The ARMH and similar groups have unearthed the bones of more than 4,000 people with the help of volunteers and usually without official subsidies.

In 2007, Prime Minister Jose Luis Rodriguez Zapatero's socialist government passed a law to rehabilitate Franco's victims. The initial version of the law, however, had been watered down, under pressure from conservative sectors.

The law only obliges the authorities to assist associations opening mass graves, without assuming the main responsibility for the exhumations.

Judicial support for the exhumations would step up pressure on the authorities to get involved, but Silva expects only a part of the regional judges to follow Chico's example.

'The Supreme Court or Constitutional Court will have to put an end to the judicial confusion' by clarifying the judges' role, he says.