Yes, it was wrong; no, we can’t fix it: the Spanish judicial system and the poet Miguel Hernández

“It’s paradoxical that we are celebrating the centennial of a poet whose death sentence has never been annulled.”

Luis Pesquera, Miguel Hernández Commemoration, 2010

The Spanish “Law of Historical Memory” was enacted in 2007 to end the amnesia that had shrouded the fates of thousands of hapless Republican loyalists for more than three-quarters of a century. Although it was drafted during the administration of Socialist Prime Minister José Luis Rodríguez Zapatero, whose own grandfather was executed by pro-Franco troops, the legislation has fallen short of legally exonerating the names of the many Spaniards who defended a democratically elected government in the face of a military coup in the 1930s. The present Spanish government has had limited legal resources with which to amend the harm done to Republican loyalists. As Diego López Garrido, the Socialist Party’s spokesman, explained during the drafting of the legislation, the Spanish parliament could not annul the sentences imposed by the military and civil courts during the Falangist regime as such an action would constitute an invasion of “the territory of judges”; the best it could do was to declare the trials undertaken during that period illegitimate.

The main provisions of the Law of Historical Memory are the recognition of victims of political, religious, and ideological violence perpetrated by both factions involved in the Spanish Civil War; the prohibition of political events at the Valley of the Fallen, a massive monument to the followers of Franco who perished in the war built by forced labor; the removal of Francoist symbols from buildings and public spaces throughout Spain (except for those on property belonging to the Roman Catholic Church); the rejection of the legitimacy of laws enacted and trials conducted during the Francoist regime, the granting of Spanish nationality to surviving members of the International Brigades who defended the Second Republic, and State cooperation in the identification of what are estimated to be hundreds of unmarked mass burial grounds where executions took place during and after the civil war. As a result of this legislation, tours of the Pardo Palace in Madrid no longer include a viewing of Franco’s living quarters, Franco’s heirs have been forced to vacate a mansion in Galicia that the dictator and his family had used as a summer residence since 1940, various statues and other monuments linked to the Franco and the Falange Party have been removed from public view, and streets in towns and cities throughout Spain formerly named for individuals connected to the Franco regime have been changed. However, none of these actions can be taken as permanent. Recent electoral victories by the Partido Popular, a right-wing party founded by one of Franco’s ministers, Manuel Fraga, have given rise to a spirited cultural backlash that has entailed yet another renaming of public thoroughfares and public institutions. The new mayor of Elche, Mercedes Alonso, inaugurated her administration by  changing the name of a public garden located on the city’s Avenida de la Libertad from the Jardin de Dolores Ibárurri (La Passionaria) to the Jardín de la República Argentina, declaring that Ibárurri “had no link to the city,” and flatly stating “It’s destroyed, it doesn’t exist, it’s a part of the past.”

Unlike Germany and Italy, whose brutal but short-lived totalitarian regimes were defeated, dismantled, and judged by external powers, Spain has had the onerous burden of reconstructing civil society on its own after almost forty years of rule by a single political party that suppressed all dissent. Although democratic political processes were established and a new constitution was written following the death of Franco, these were forged during an extended period of transition in circumstances that permitted many of the social, political, economic, and religious structures of Francoism to remain largely intact. Unlike Mussolini and Hitler, Franco was never defeated or judged for his actions, nor were any of those responsible for the actions of his regime brought to account. The constitution and institutions of the new “Kingdom” of Spain were negotiated under tensions created by separatist movements and fears of another military coup d’état. Those who had enjoyed almost unlimited power during the dictatorship were expected to relinquish a part of their prior privileges and the dictatorship’s victims were expected to relinquish their individual claims against a government that now aspired to full recognition within the international community. History would be brushed under the rug for the sake of a better future. What has resulted from this “pact of silence” has been an uneasy truce between those who seek to keep a turbid past hidden beneath the rock of time and those who wish to expose it to the light of day.

The drafting of the Law of Historic Memory coincided with plans for nationwide commemorations of the centennial of the birth of Miguel Hernández. His heirs considered the circumstances propitious for requesting the annulment of the charges brought against the poet in the wake of the Civil War. At first, their case showed promise. Armed with a “Declaration de Reparación y Reconocimiento Personal” authorized under the recently enacted Law of Historic Memory that had been presented to them by Vice President María Fernández de la Vega in a public ceremony held at the University of Alicante, Hernández’s daughter-in-law and granddaughter sought the annulment of the death sentence dictated to him by the military “Tribunal de Prensa” in Madrid in 1940 and later commuted to a thirty-year prison sentence.

The charges brought against Hernández in 1940 were “adherence to the rebellion” and “carrying out an intensive literary activity,” both ironic considering that the military tribunal judging him represented an insurrectionary faction that had brought down a democratically elected government by armed force and intensive literary activity is what one would expect a poet to engage in. The peculiar logic that underpinned political persecutions during Franco’s dictatorship was the concept of “inverted rebellion.” In a concise but informative summary of the early Francoist judicial system, Miguel Gutiérrez Carbonell stressed that Spanish military tribunals in the 1940s showed no impartiality, the laws that instructed them were a travesty, and as the Law of Historic Memory has since conceded, the sentences dictated by such a system were “very unjust.” He noted, “reviewing the sentences related to this type of charge handed out during the period one can identify a general set of criteria: a charge of supporting rebellion was sustained on the basis of a person’s ideological sympathy towards ‘red subversion’; merely espousing a leftist or republican ideology or belonging to any political party that was not patently right-wing without engaging in any other incriminating activities was sufficient to establish a person’s adherence to a revolutionary cause.” He goes on to enumerate the violations of judicial process that were institutionalized in Franco’s summary judicial proceedings: “the defense lawyer was always a member of the military and was not required to hold a law degree. There was no provision for the accused to be represented by his or her attorney of choice.” The lawyer assigned to the defendant had no more than three hours to prepare a defense: “Three hours to find and present relevant evidence, study the case, and present court documents, when what was at stake for the accused was the death penalty or a thirty-year prison sentence.” The rulings of these military tribunals could not be appealed.

Spanish courts have refused numerous petitions to annul summary judgments passed during the Franco era on the grounds that they conformed to the laws in vigor at the time they were issued. Nonetheless, the heirs of Miguel Hernández hoped to prove that the poet had been denied a fair trial even from the point of view of the abysmal judicial system that had condemned him. A folio of documents that authorities in Alicante failed to transfer to Madrid for presentation at Hernandez’s trial had recently come to light during the digitization of historical archive material. It contained a letter from Juan Bellod, a military official in the Francoist regime, asserting the poet’s innocence. In an act of generosity that might have had consequences for his own future, Bellod wrote:

I have known Miguel Hernandez since he was a boy . . . He is a person with an impeccable past, generous sentiments and deep religious and humanist training, but whose excessive sensitivity and poetic temperament have led him to act in accordance with the passion of the moment rather than calm, firm will. I fully guarantee his behavior and his patriotic and religious fervor. I do not believe that he is, at heart, an enemy of our Glorious Movement.

The family of Miguel Hernández pinned their hopes on the presentation of this new evidence, but last June, in a closed session, the Spanish Supreme Court refused to consider the case. Other individuals who hoped to clear the name of a family member through new legal channels created by the Law of Historic Memory have likewise been disappointed, and there have been calls to amend the law to allow for the annulment of unjust sentences meted out to victims of the dictatorship. However, given the current political climate, any possibility of changing the law in favor of the victims of the Franco regime now seems remote. As he was dying in his prison cell, Miguel Hernández stubbornly refused to sign a confession that might have led to the commutation of the remainder of his thirty-year prison sentence and perhaps even the right to leave Spain. To the end, he maintained that he had not committed any crime against his country and he steadfastly refused to bow to the new regime. For decades after his death, his family paid the price for Hernández’s decision to defy the will of the dictatorship. For them, a government declaration that they have suffered unjustly is not enough; they maintain that until a judge declares him officially innocent of the crimes attributed to him in Madrid in 1940, the sentence stands as a blot on the reputation of both the poet and Spanish society.

For those interested in knowing more about the experience of Spanish citizens subjected to Francoist reprisals following the fall of the Second Republic, the University of California maintains an English-language website documenting its Spanish Civil War Memory Project, which contains subtitled interviews with survivors of the period.