The Democratic Memory Act: Spain tackles its past once again

The new proposed Democratic Memory Act would go further than its 2007 predecessor, fulfilling many of the recommendations from the United Nations. Total, the current draft of the Act includes 65 articles and 14 additional provisions, grouped into five sections:

1. Establishing the general disposition and purpose
2. Defining and recognizing the victims
3. Laying out various central policies of democratic memory
4. Recognizing those who have worked to defend democratic memory and establishing a new Council of Democratic Memory
5. Laying out the sanctions regime for violations The introduction of the proposal notes that it is rooted in the principles of transitional justice: implementing the rights to truth, justice, reparations, and guarantees of non-repetition of violations. Even if the proposed Democratic Memory Act makes it through the parliamentary process and becomes law, bringing these principles to life will be a complex and ongoing process. It has already undergone changes from the original draft during the consultative process with the Consejo Fiscal (a board of public prosecutors headed by the Attorney General) and Consejo General del Poder Judicial (CGPJ, or the General Council of the Judiciary), and will likely incorporate further changes during the legislative process. If approved, it will not only involve measures that recognize wrongs, but also include specific actions to take stock of what needs to be done, as well as how to then go about acting on the research conducted. On the recognition side, for example, dates of tribute will be established, and the teacher training and educational curriculums will be reworked. The act will also establish an investigator of human rights violations—the particulars of this element have already been revised several times, and will likely continue to be one of the most debated measures in the parliamentary process. If maintained, this measure will likely come into conflict with the 1977 Amnesty Law that forbids prosecution for crimes during the Franco regime, which remains in place. How that conflict will be resolved remains to be seen, and will shape how much of a tangible impact the Democratic Memory Act is able to have on the prosecution of the human rights violations that it is intended to address. Information-gathering measures are included, such as an inventory of economic exploitation, audits of forced labor under the regime, and establishing a national DNA database to identify victims in mass graves and create an official register. Notably, in contrast to the previous 2007 Act, the Democratic Memory Act promises that the state will take responsibility for exhumations of mass graves and includes a detailed sanctions regime for violations.

The Act is not without its controversy or obstacles, and its passage and implementation are far from guaranteed. Although the Act enjoys support on the left, the right is largely critical of it. The Partido Popular and Vox have both stated their opposition to the Act, and will be its primary opponents during the coming parliamentary process. A measure in the original proposal that would prohibit exaltation of the Franco regime has proved to be particularly controversial. As demonstrated by the protests, counter-protests, and debate when Francisco Franco was exhumed in 2019, the Franco years and how their legacy should be handled remains deeply contested throughout Spain as the pacto del olvido has faded in recent decades. Given that the Act has not yet begun the parliamentary process, there are many debates yet to come. Human rights organizations are urging the government to advance the Act in the name of justice, while critics on the right declaim it as punitive and a threat to the freedoms of speech and association. Historian Stanley Payne goes as far as insisting that the Act not only violates the Spanish Constitution, but that it is also an attempt to exact vengeance on the losers of an ideological battle. What Payne misses (besides the fact that the government helping someone find out where their loved one is buried is quite distinct from the government killing people without trial, for instance) is that inherently, this Act is restorative rather than punitive. Although it includes sanctions for violations, unlike the 2007 Act, this Act is not about retaliation against any group. It is about ensuring justice for a group: one that has been discriminated against systematically for decades.

The initial draft of the bill was approved by the Council of Ministers in September of 2020, and was finally approved to be sent to parliament on 20 July 2021, following the incorporation of feedback from the Consejo Fiscal and the Consejo General del Poder Judicial. Although it should be noted that this consultative process is not legally binding, it is mandatory to undergo and can have informal influence on how the parliamentary process unfolds. Both bodies were divided, but ended up voting in favor. The Consejo Fiscal was split along ideological lines, with the conservative block being critical of what they termed to be calculated ambiguity and promises that could not be kept in the original proposal of the Act. It is likely that the Act could end up in front of the Constitutional Court due to the controversy over measures linked to freedom of speech and association. Although some constitutions across the world (including other countries in Western Europe, such as Germany and Italy) explicitly prohibit ideologies that threaten democracy or constitutionalism, Spain’s constitution is not among their number. For this reason, the CGPJ noted concerns about the measure in the original proposal that censured Franco apologists. Thus, if these measures remain, it is possible that the measure of the Act prohibiting the glorification of the Franco regime (aimed at organizations like the Franco Foundation) could be struck down, or at least face legal challenges. To anticipate this challenge and respond to the CGPJ feedback, the revised version of the Act expanded on the requirements to ban an organization, adding the following: “that extols the coup and the dictatorship or exalts their leaders, with contempt and humiliation of the dignity of the victims of the coup, the war or the Franco regime.” The revisions also include adding citations of European precedents such as resolutions regarding the construction of a common European identity in support of democratic values and against totalitarianism. With regard to the investigation of human rights violations, the wording was changed to reference general human rights violations under international law rather than violations specifically due to the Civil War and the Franco regime, as the original proposal read. Whether these changes are sufficient to pass a legal challenge or convince Congress remains to be seen.