The Constitutional Court has decided to grant two appeals in full that reopen the debate on the possibility of prosecuting crimes committed by members of the State security forces during the Franco regime and the Transition. Until now, the court has routinely rejected claims related to this type of crimes in application of the amnesty law of 1977. The fourth section of the guarantee body, however, has considered that two new appeals presented recently deserve be examined by the full court.
Judges Ramón Sáez and María Luisa Balaguer—both from the progressive sector—have requested it and the decision is to discuss in a plenary session whether the provisions of the Democratic Memory law allow us to refocus the issue in this type of cases, and allow the admission of the appeals for processing to discuss again whether, in light of the new legislation, the amnesty of ’77 should be applied and consider, as has also been done on other occasions, that the facts would have in any case expired.
The immediate precedent, which both magistrates consider susceptible to a new analysis, is the order that the Constitutional Court approved by 8 votes to 3 in 2021 to close the door to an appeal presented by the former general secretary of the PCE Gerardo Iglesias, who had reported having been victim of torture during the 1970s. The court endorsed the file agreed upon by the ordinary jurisdiction of the complaint filed by Iglesias, arguing that the reported events had occurred almost 50 years ago, when the crime referred to in said case—that of against humanity—did not appear in the Penal Code until 2003. The ruling considered that this figure cannot be estimated because the Constitution itself prohibits the retroactive application of criminal offenses. The majority also agreed that the Amnesty Law of ’77 prevents the prosecution of these types of events, which in any case would have already expired.
The two new lawsuits presented refer to a case of torture that occurred in 1967 in Valencia, and the second to the death of a protester during a mobilization that took place in Madrid in 1977. For now, the court has ruled that the decision on the Whether or not to admit both requests for protection to processing is taken in a plenary session, where it will be discussed again, therefore, whether the facts are not prosecutable by the aforementioned amnesty law of ’77 and whether they can be considered to have expired for all purposes.
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