The law on democratic memory approved by the Council of Ministers will not classify the apology of Francoism as a crime, even if it will be more severe with all the acts which involve a “humiliation of the victims” or the exaltation of the civil war , dictatorship or repression.
This fact is due to the fact that if the government turned into a crime any apology for Francoism, it could contribute, from a legal point of view, to an attack on the freedom of ideological expression. In other words, the Strasbourg Court could rule on this point and annul the measure.
However, as the Minister of the Presidency Félix Bolaños explained yesterday, any act which supposes the glorification of the coup or the dictatorship, as well as “the humiliation of the victims”, will have more consequences than with the previous one. regulations, 2007.
The conduct that exalts the Franco regime will be referred to the prosecution
In this sense, as La Vanguardia announced on Tuesday, the law broadens the recognition of victims and combats the persistence of Francoist exaltations in the form of public activities or the proliferation of symbols in the public space. Concretely, article 39.1 reads as follows: “Are considered as acts contrary to the democratic memory of the acts carried out in public which involve the discredit (…) of the victims or their families, and imply the personal or collective exaltation insurgent soldiers ”.
Thus, in accordance with the regulations, “if, on the occasion of the celebration of a public act of this nature, facts which may constitute an offense are noted, they will be brought to the attention of the public prosecutor”.
This means that if there is, for example, a Francoist concentration which can be interpreted as an exaltation of the dictatorship, these acts will be brought before the Public Prosecutor’s Office, so that they are prosecuted under the current Penal Code.
Why have apologies not been criminalized?
Carrying out a reform of the Penal Code is obviously more complex than passing an ordinary law. This led the Executive to follow the second path: the rule approved yesterday in the Council of Ministers only needs a simple majority of the Congress of Deputies to be ratified.
On the other hand, if the Penal Code were to be amended to introduce the new offense, the Government would require an absolute majority (176 positive votes). A fact that would complicate the process and further delay approval.
Yet this is not the only stumbling block the law would face. In this sense, as we have mentioned, there is a risk that the modification of the Penal Code, even if it did occur, would involve exceeding the limits of freedom of expression. Today, according to the legislation in force, it would be essential that those who participated in these acts were in one way or another incited to commit a crime, which would limit the penalties.
However, the key to this new text is that the focus is now on “the humiliation of the victims”, as well as the veneration of repression and dictatorship. That is to say, according to the Executive, this type of behavior will be understood as “against the law”, so that in the end, they can be sanctioned.
Fines for exaltation of the Franco regime: the proposal of Catalonia
It is precisely on this last point that Minister Bolaños spoke yesterday. After the approval of the text, if Justice understands that a crime enshrined in the law has been involved, the people who promote acts that result in “discredit, contempt or humiliation” for the victims of the Franco regime, or honors for those who supported the dictatorship, they can incur fines of between 200 and 150,000 euros.
The fines collected are of three types: light, ranging from 200 to 2,000 euros; the serious ones, from 2,001 to 10,000 euros, and the very serious ones, from 10,001 to 150,000 euros, as put forward by the Efe Agency in reference to the bill of the Socialist Party of Catalonia.
The celebration of acts in which the Franco dictatorship is exalted, the carrying out of excavations in tombs or other places of memory without prior authorization, construction on land where there is certainty that it will be considered a “very serious” offense. There are people buried, the destruction of graves, the non-conservation of goods that are part of the itinerary of the democratic memory of Catalonia and the non-withdrawal of Francoist elements.
On the other hand, according to the Catalan group – the national application of the law in this regard is still pending – the unauthorized transfer of human remains from graves or the public display of elements contrary to democratic memory, among others, will be considered serious offenses, facts.
At the same time, the alteration with graffiti of elements of memory to the victims of the Franco regime will ultimately be punished as “light” when it intends to injure the victims and the destruction of documents of democratic memory, among others. Thus, the Executive hopes to dissuade from this type of act those who sympathize with the dictatorship, the coup, or the humiliation of the victims.