The Dismissal of Franco Regime Enforced Disappearances Cases 

By Lydia Vicente Márquez and Mercedes Melón*

When you mention enforced disappearances it is likely that Argentina, Chile or Chechnya -just to mention a few- come to mind. However, in the heart of Europe, thousands of Spanish families are still digging up side roads and fields seeking their missing relatives in mass graves spread all over the country. With at least 114.266 identified missing persons disappeared during the Spanish Civil War and subsequent Franco regime, Spain is probably the country with the highest number of enforced disappearances in the world. Yet, the only trial held in Spain regarding the crimes committed during the Civil War and Franco’s dictatorship was that of malfeasance (prevaricación) against judge Garzón precisely because he tried to challenge the lack of accountability for such crimes.

Twelve cases concerning crimes committed during the Civil War and Franco regime have been brought before the European Court of Human Rights (ECtHR) against Spain. Victims have sought, amongst other claims, Spain’s international responsibility arising from the continuing violation of its obligation to carry out an effective investigation into the circumstances surrounding their relatives’ disappearances and extrajudicial executions as well as the failure to provide an effective remedy.  So far, the ECtHR has declared inadmissible all cases concerning the Civil War and Franco regime but two, whose admissibility decisions are still pending. It all might be that, as a matter of fact, most of the cases have been “examined” by the same judge (Sicilianos).

Rights International Spain (RIS) submitted the latest of these cases, on 9 October 2012, on behalf of Fausto Canales Bermejo concerning the enforced disappearance of his father, Valerico Canales, on 20 August 1936. The complaint, supported by expert reports, explained the specific circumstances of the individual case as well as of the Spanish socio-political context arising from the Civil War and subsequent dictatorship. These circumstances are crucial to understand the constraints suffered by Fausto Canales to publicly or privately claim his status as a victim, let alone to exercise his rights before a court of justice. His is a case in point of the plight suffered by thousands of Spanish victims of the Civil War and Franco regime, forced to live in silence and fear during decades. Now, they witness how their last resort, the ECtHR, leaves them without answer to their claims of justice.

Approximately a month after submitting the complaint - an unusually short period for a truly serious and in-depth examination of the application and annexes, including the expert opinions-, the ECtHR has concluded that

“In the light of all the elements in its possession and insofar as it has the authority to decide on the complaints formulated, the Court has considered that your application does not comply with the requirements of admissibility established in articles 34 and 25 of the Convention (see mutatis mutandis Gutiérrez Dorado and Dorado Gutiérrez v Spain). This decision is definitive and cannot be appealed before the court, the Grand Chamber or any other body”.

It is worth recalling that Article 45 of the European Convention on Human Rights establishes that “Reasons shall be given for judgments as well as for decisions declaring applications admissible or inadmissible.” Yet, the ECtHR has not provided any legal reasoning or explanation whatsoever for dismissal. Hence, paraphrasing the UK’s Supreme Court President, Lord Neuberger, because decisions without reasons are certainly not justice, the Court’s resolution is scarcely a decision at all. Indeed, it is a regrettable response coming from a human rights court.

The ECtHR has used an almost identical standard formula to reject, on admissibility grounds, most of the cases submitted in relation to the Franco regime crimes. The mutatis mutandis reference, without any other indication, contained in the Canales Bermejo resolution to the Gutierrez Dorado and Dorado Gutierrez v. Spain case hardly amounts to legal reasoning.

The ECtHR declared the Gutierrez Dorado complaint inadmissible, among other reasons, because it considered that the applicants did not display “due diligence” in bringing their case before the Court “without undue delay” and therefore the complaint was “out of time”. Let us assume that this is the argument that the Court has used to dismiss the Canales Bermejo case. However, the latter differs from previous complaints presented by other Spanish victims before the Court. In consequence, the ECtHR has not taken into consideration the specific context and circumstances of the individual case.

One of the most relevant differences between both cases is that Canales Bermejo was the first complaint submitted to the ECtHR after, and as a result of, the Spanish Supreme Court decision issued on 27 February 2012. This decision acquitted Judge Garzón of malfeasance in the so-called “Historic Memory” trial. Furthermore, although it was not the matter of adjudication, the Supreme Court judgment definitively closed any possibility of carrying out judicial investigations into the gross human rights violations committed during the Civil War and Franco regime; thereby denying the victims any effective remedies. This denial constitutes a clear violation of Spain’s obligations under the Convention. Yet, instead of approaching the case from the perspective of the State’s duty to investigate and remove all obstacles that hinder the victims access to justice, the ECtHR places exclusively on the victim the burden to act “without delay” and “with due diligence”.

Fausto Canales Bermejo has struggled for many years trying to find out the truth about what happened to his father, disappeared when he was only two years old. His unrelenting activity, bringing all kinds of actions and resorting to all available procedures and mechanisms, contrasts with the Spanish State’s inactivity with regards to its obligation to investigate the enforced disappearance of Fausto’s father. Furthermore, a number of renowned experts (anthropologists, psychologists and jurists) justified, in the reports submitted to the ECtHR in support of Fausto Canales’ application, the “delay” of the Spanish victims to bring “timely” claims to the Court. In a nutshell, victims claim when they can and not when they want to. Accordingly, victims should not be required to act in a context of institutional crisis or widespread fear or where the legal conditions cannot ensure a minimum degree of success of their complaints. The action or inaction of the victim has to be considered within the larger socio-political context as well as within the context of the action or inaction of the State and the international community at large.

Given that the ECtHR’s decision in Canales Bermejo does not provide any reasoning, it is not only an unjust decision for the victim but is also a decision devoid of justice. It places the victim in a situation of inequality of arms vis-á-vis the State. While dismissing the efforts of the victim, the Court does not demand from the State even a minimum degree of due diligence in terms of compliance with its obligations. The inflexibility on the part of a human rights court with regard to the victims while sheltering the State’s flouting attitudes is difficult to understand.

Enforced disappearances amount to a continuing violation of several fundamental rights that lasts until such a time as the victim’s fate or whereabouts are established. To date, that is the case in Canales Bermejo and thousands of missing persons buried in mass graves all over Spain. The existing systematic impunity, which is tolerated and promoted by the Spanish State, contributes to prolonging the suffering of the victims’ families. Regrettably, the ECtHR has condoned impunity with procedural arguments in a decision devoid of justice.

*Lydia Vicente Márquez, human rights lawyer and Executive Director of Rights International Spain. Mercedes Melón, human rights lawyer, Legal Advisor of Rights International Spain