On Spanish Civil War and Dictatorship: why not claim abroad?
The twentieth century has been the century of human rights vindication. Its last two decades have witnessed a very special phenomenon in this regard: the privatization of lawsuits brought for crimes against the most basic human rights. Individuals, singly or grouped, seek civil redress before domestic courts against the State (its officers, its agents; also multinational corporations), claiming it has incurred in liability through the commission of acts condemned by International Law.
USA has became an unavoidable reference to human rights litigation due to two federal laws: the Alien Torts Claims Act, 1789 (ATCA) and the Torture Victims Protection Act of 1991 (TVPA). The Acts allow foreign claimants to engage in civil actions against individuals associated with foreign States, claiming damages for conduct prejudicial to human rights, which is proscribed by International Law. Similar ideas are germinating in other countries, like Canada and recently also the United Kingdom: and not only in the academic arena.
While Greece or Italy still evokes the Second World atrocities, Spain focuses in the Civil War (1936-1939) and the Franco regime (1939-1975) outrages. On September 22, associations for the recovery of historical memory published their estimate number of missing persons during that periods- no less than 143,000. Within this figure are the names of Republicans who died in Nazi concentration camps in Germany, Austria and France, and others who died in exile. On Oct. 16 Judge Baltasar Garzon, our most well-known judge thanks to the Pinochet case, declared himself competent to investigate these disappearances and related crimes.
Maybe “dirty line will be washed at home” this time. Judge Baltasar Garzon works at the Audiencia Nacional, which has no jurisdiction in civil matters. In Spain, however, the civil claim can be accumulated to the criminal proceedings. But, if there is no luck (or even if any), will the civil action be tried elsewhere? Spaniards have begun to appreciate the advantages offered by U.S. procedural and substantive law (e.g., in cases of maritime pollution; see also G. Cuniberti “Jurisdiction to prevent the End of the Wordl”). And besides, it may not be necessary to go that far: On February 2008 Lord Archer of Sandwell (United Kingdom) presented the Torture (damages) Bill. If the Bill becomes law (although it seems unlikely), it would provide the victim of torture with a civil action in England/Wales; that the facts took place elsewhere would be of no relevance at all.
At any rate, the idea of those Spanish cases being judged elsewhere requires more than universal civil jurisdiction covering acts described as crimes against humanity. The foreing judge would have to decide whether to apply -to take into account?- Spanish Law on amnesty (this morning the Spanish Public Prosecutor appealed against Garzon’s decision on amnesty grounds); or Law 52/2007, the so-called “Ley de momria histórica”, recognizing and extending rights and establishing measures for those who suffered persecution or violence during the Civil War and the Dictatorship. Art. 4 of the Law provides those who suffered retaliation during the Civil War and the Dictatorship with the right to obtain a “Declaración de reparación y reconocimiento personal” (Declaration of apology and personal reconnaissance); but such a statement does not imply recognition of responsibility of the State or of any government, nor does it lead to monetary redress or compensation .
Very interesting post.
But is it your opinion that Spanish justice will not get the job done?
I think Garzón has already shown himself to be very able (though the Public Prosecutor will try to make things difficult). But he represents the criminal side of the affair. As for the civil concerns, I would not be surprised by an opportunist, strategic behaviour from the claimants.
In a judgment rendered today (21 October), Italy’s Supreme Court (Corte di Cassazione) ruled that Germany must pay damages to the families of civilians killed by German soldiers in three Tuscan villages during WWII. According to first press statements by Augusto Dossena, the lawyer representing Germany, German government would not pay any compensation and “could choose to take the matter to international courts”:
On other cases decided by (or pending before) Italian courts, see also this Deutsche Welle’s article:
“Nazi Compensation Claims Threaten German Centers in Italy”
Maybe I am being too enthusiastic (and politically wrong) but I am glad the Corte de Cassazione ruled as she has done.
Any idea about what happened with the Italian decision on the recognition of the Greek decision (the Distomo case)? As far as I know, it was recognized in Florence this year – I do not think Germany will accept the veredict – an appeal before the Corte de Cassazione is still possible?