The Constitutional Court has refused to grant protection to Francisco Ventura, a member of the Communist Party (PCE) and complainant of a case of torture during the Franco regime, considering that it is a crime that no longer exists, because it has expired and they invoke the amnesty law of the 1977. Two magistrates of the guarantee body, Ramón Sáez and María Luisa Balaguer, have presented a dissenting vote against this resolution on the grounds that it offered the possibility for the court to review its doctrine on this type of cases and update it in favor of the Right to effective judicial protection. The opinion of the majority, on the other hand, has been inclined to maintain the thesis established in a 2021 order by which it was refused to investigate another case of torture carried out after arrests reported by the former general secretary of the PCE Gerardo Iglesias in relation to events that occurred between 1964 and 1974.
Francisco Ventura’s appeal for protection has not passed the first filter of the Constitutional Court and has been inadmissible in application of the doctrine of the sentence promulgated on the case of Gerardo Iglesias. In this way, the court has refused to consider that a court in Valencia violated Ventura’s fundamental rights by denying the complaint he filed for torture. The Valencia Court confirmed that resolution. The complaint referred to events that occurred between 1967 and 1974. The appellant alleged in his request for protection that the free dismissal and filing of the complaint without carrying out any investigation to clarify such serious facts and prosecute those responsible contravened the applicable international criminal law and violated his right to effective judicial protection.
The court has considered, however, that the lack of infringement of the fundamental right invoked is “manifest”. The order—of which the president of the Constitutional Court, Cándido Conde-Pumpido, was the speaker—underlines the validity of the aforementioned doctrine, approved in order 80/2021, of September 15, which resolved the case of Gerardo Iglesias. The court also now specifies that said doctrine is not altered by the validity of the new Law 20/2022, of October 19, on Democratic Memory.
This law, the court argues, “does not replace” the Constitutional Law “in the interpretation of fundamental rights and does not comply with the reservation of organic law necessary for the definition of crimes and their penalties.” The order issued reasons that the articles of the Democratic Memory Law “do not enable the norms of international criminal law to become a direct or indirect source of criminal law to investigate and judge facts that were not typified in the national criminal law then in force. , now applying to them the characteristics of imprescriptibility and of not being susceptible to amnesty.”
The court argues that “the principle of legality guaranteed by art. 25.1″ of the “Constitution and the non-retroactivity of unfavorable sanctioning provisions (article 9.3), necessarily prevent once criminal liability for events that occurred more than forty years ago has been extinguished, as the maximum prescription periods expressly determined in the at the time of the acts being committed, a criminal liability that no longer exists may subsequently be revived and, consequently, the actions attributed to those allegedly responsible may be criminally investigated.”
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The order adds that all of this “does not determine, in any way, the impossibility of activating the search for the truth,” and therefore it is possible to carry out other types of investigations or proceed to the pertinent reparations, through judicial or extrajudicial procedures, outside the in any case to the essential purpose of the criminal process, “which in no case can be directed at the demand for criminal responsibility that no longer exists.” And he highlights that these reparations and procedures other than the criminal process “are contemplated in the Democratic Memory Law.”
Judges Ramón Sáez and María Luisa Balaguer have voted against the sentence and have announced dissenting votes to express their disagreement. Sáez believes that the appeal should have been admitted so that the court could review the doctrine that supports the order, regarding the crimes of the dictatorship “as a paradigm of violation of human rights.” He also considers that another reason for processing the case was to update “the fundamental right to effective judicial protection in its aspect of access to jurisdiction, integrating the material content of the human right to truth and justice, as a standard of greater protection of victims established by International Human Rights Law.” The purpose of this evolution of the doctrine, adds the dissenting opinion, would be to “recognize the right of the people who were victimized by the dictatorship to have criminal judges investigate the facts,” which in the case of the plaintiff consisted of the complaint of “ torture suffered in political police offices during the late Franco period.” The objective of investigating these assumptions, he explains, is that “the rule of law provides the effective remedy to which it is obliged and that the Democratic Memory Law grants it.”
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