An Assessment of Transitional Justice in Spain vis-à-vis the Ley De Memoria Democrática: the good, the bad and the solvable

by | Jul 27, 2023

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About Melissa Manley

Melissa Manley completed her LLB at the University College London and has a Masters in Law in International Legal Studies from New York University. She is currently working for UK Commissioner Dapo Akande at the International Law Commission in Geneva. She was editor of UCL’s Access to Justice Blog and worked for  UCL’s grassroots human rights project. Her broad research interests include transitional justice, international human rights law, humanitarian law and international criminal law.

The Spanish transition to democracy post-dictatorship prioritised peace, security, and the consolidation of democracy at the expense of truth, justice and accountability. However, in 2022, Sanchez’s government implemented the Ley de Memoria Democrática, aimed at securing the four pillars of transitional justice, the right to: truth, justice, reparations and guarantees of non-recurrence. This is to be implemented via the creation of a new Prosecutor’s Office to address prior crimes, a Democratic Council body to address issues with truth, and broadening of the definition of “victim”. Ley de Memoria Democrática is a significant step towards fulfilling Spain’s obligations and goes markedly further than any prior mechanism in comprehensive guarantees of non-recurrence and reparations. 

Yet, neither this law nor the current state of transitional justice in Spain can be celebrated. There are substantial structural deficiencies, such as a pattern of reliance on officials in positions of power and a lack of secured funding which can, as occurred last month in Barcelona, frustrate the fulfilment of justice and truth.

Firstly, while the law dictates that four explicit crimes are incapable of being subject to Spain’s Amnesty law, the amnesty law may inhibit the newly established Prosecutor’s office – which is charged with the promotion of justice – in investigating violations of international human rights and humanitarian law. Consider, for example, factors such as the absence of guidance as to whether all crimes can be submerged under the four explicit crimes which are incapable of being subject to amnesty; the jurisprudence of the Constitutional Court, such as Sentencia 101/2012 which has determined that the amnesty law is an obstacle to any investigation; the judiciary’s report (Consejo General de Poder Judicial)  that reiterated the limitations on transitional justice; and, even in Barcelona, the public prosecutor’s office did not even refer to the new law. As such, the law is dependent on its interpretation by the courts and officials occupying these positions.

Secondly, the Democratic Memory Council aims to collate and clarify the truth in order to provide official recognition to the victims, to hold the government to account by providing public annual progress reports, and to formulate the Plan with the participation of victims’ organisations. However, the pursuit of truth is fundamentally weakened due to a lack of independence and concern for civil society’s ability to participate effectively, as well as the absence of secured funding. For example, structurally, the President of the Council is a Minister in charge of the competent Ministry, so there is a lack of institutional independence; furthermore, the plan itself is subject to approval by the government and there is no binding requirement to listen to these representatives. Essentially, the Spanish government has a “second bite” at undermining the participation of civil society and can ignore these groups, albeit at a political cost.

Despite these issues, the obstacles are not insurmountable. The Prosecutor can interpret the legislation as providing a mandate for investigation into all crimes, as one Madrid court has. Firstly, the amnesty law should itself never have been an obstacle to investigation. The law itself presupposes an investigation as it suspends criminal responsibility once the facts have been decided and for specific people, so without a prior investigation there can be no means to suspend or extinguish responsibility, nor to determine who is the suspect. Secondly, the make-up of the Constitutional Court has shifted so it may now be more receptive to the investigation of such crimes. Lastly, there is heavy textual support – such as the link between exhumation and the duty to immediately inform the Prosecutor’s office of the existence of indications of crimes – which implies investigatory powers for human rights abuses. Similarly, the Commission has the potential to secure the right to truth, but there must be serious reform to ensure a sufficient and secured budget to preserve and entrench these policies for the future. The Council can, in the creation of regulations, further secure the participation of memorial entities and arrange for other measures to provide financial security.

Therefore, the Ley de Memoria Democrática has great potential, but it is up to political and judicial players to further the promises in the law. Otherwise, the law serves only as another tool of revictimisation and an “empty name that is given to a temporary stage in a process which allows the claims to live on” as Pablo De Grieff cautions.

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