A bad round trip
The Criminal Division competition Garzón denies facts of war
PRAIRIE JAVIER 03/12/2008
Pending the legal reasoning of the order issued last week by the Criminal Division of the High Court (which was agreed by 14 votes to three, the lack of competence of the trial court No. 5 to hear complaints than 114,000 missing people in Franco's Spain between 1936 and 1951), it would be appropriate to consider several factors that have contributed extra- to heat the passion of the debates and smear the field of political discussion.
1. Criminal legal language tends to baptize the criminal types to terms are taken from ordinary speech, some newly introduced behaviors in the numerus clausus of the Penal Code are called behaviors immemorial. Such is the case of crimes of genocide, embodied in the Penal Code of 1995 (Article 607), and crimes against humanity, added in 2003 (Article 607 bis), which fall into a bloody history with roots deep in the night of time.
2. To the layman in legal matters seems an unbearable paradox that non-retroactivity, prescription and the legality of crimes specific to the rule of law prevent the courts prosecutability practices perpetrated against humanity before that offense had been incorporated into domestic in 2003. The same applies to the Amnesty Act of 1977, whose validity is beyond any reasonable doubt. These contradictions between the law and history are at the center of the controversy created around the eventual prosecution of the crimes of the Franco regime.
3. Another source of confusion is the interest equalization between the 1936 Civil War and World War II to apply to the English international criminal law or customary character statutes. The differences are obvious. The Nuremberg Tribunal was composed of judges of the four victorious powers to prosecute those responsible for the defeated Germany. Although voices rise up in 1945 to sit on the bench Franco as an ally of Hitler, the English regime would enter 10 years after the United Nations and General Eisenhower, head of the invasion of Normandy official visit Madrid in December 1959 as president United States.
4. The bad trip back and forth between the two sides of the Atlantic tour of the English transition feed-in good faith or maliciously, other notable mistakes. The success of the company contributed to English experience, unique and random, were presented as a universal and timeless archetype. Political engineering that thing, however, was exported to Latin America without many of its original parts, from the continuity as head of state and head of the Armed Forces of the heir of Franco become King of a parliamentary monarchy, until the pressure for of democracy in the European Union, through the Vatican, the depletion of the dictatorship and the economic, demographic and cultural aspects of English society for 40 years. The Amnesty Act of 1977 had an almost unanimous support: only the right parliamentary abstention popular Fraga, the terrorism of radical Basque nationalism and violence of the 23-F coup was sidelined for the historic reconciliation between the victors and the vanquished in the war of 1936.
5. Or Chile or Argentina had suffered a long civil war. The duration of the two schemes was much less than the four decades of Franco, his crimes were alive in the memory when they lost power. In Chile, amnesty was a disguise for the dictatorship to bestow immunity, in Argentina, the law endpoint was ripped to the civil power by a military uprising.
Echoes of Latin America have also transitions reobrado on the English experience with false parallels. The missing of the Southern Cone and babies born in the Chupaderos who were kidnapped by the torturers of mothers have given new names paraded in the English Civil War and the children of Republicans killed, imprisoned or exiled offered for adoption. Y Garzón has probably learned the tricks of the truth trials used by the criminal courts in Argentina as a shortcut from the exhumations.
6. Finally, after the Second World War, the human rights cause has won decisive battles in the field of international law, a recommended book by Alicia Gil-Transitional justice in Spain. Of amnesty to the historical (Atelier, 2008) - provides an excellent summary of these major changes and partially reflected in the English, who built the genocide and crimes against humanity to the Penal Code and have been given the status of crimes barred.
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