Comparative study of the Spanish Governments failure in addressing the aftermath of the Francoist dictatorship and Turkey’s trajectory following suit. *

This article will explore and compare the impunity policies in both Spain and Turkey and the problematic notion this may represent when predicting the uncertain future of Turkey. This article will then further explore the poorly justified mass arrests of lawyers, judges and prosecutors in Turkey. In addition to this, the problems that arose with the government triggering of the state of emergency will be discussed.

Introduction 

Within recent years many lawyers and human rights activists have been subjected to targeted mass arrests within certain regions of the world. For example, in countries such as Iran, China, Turkey, Egypt, and Spain. While many individuals may describe these countries as ‘corrupt’ due to the concerning political problems in each country, others tend to be quite flabbergasted at the idea of the now-European union countries being highlighted as one of the countries that once upon a time, not too long ago violated human rights.

What is impunity? And when does it arise?

Impunity is defined as “the impossibility, de jure or de facto, of bringing the perpetrators of violations to account, whether in criminal, civil, administrative or disciplinary proceedings ‐ since they are not subject to any inquiry that might lead to their being accused, arrested, tried and, if found guilty, sentenced to appropriate penalties, and to making reparations to their victims”. This definition refers to impunity as avoiding the action of bringing the individual itself, who brought about the perceived “harmful, illegal, or immoral act” which requires specific investigative proceedings.

Principle 1 of the Updated Impunity Principles provides that impunity arises when the government in question fails to uphold their obligations of investigating the violations in question and thus failing to carry out the “appropriate measures in respect of the perpetrators”. States’ positive obligations arise out of international human rights treaties such as ICCPR and ECHR also require states to combat against impunity. States must ensure that “those suspected of criminal responsibility are prosecuted, tried and duly punished”. The state must further ensure that all victims are provided with a satisfactory remedy. The state must also provide the victims with reparation for the injuries they sustained from the events, which encapsulates both mental, and physical injuries. Lastly, the state must “ensure the inalienable right to know the truth about violations; and to take other necessary steps to prevent a recurrence of violations”. Therefore, it is evident that in the event of impunity arising, all individuals involved in the number of injustices must be punished, and the victims should be provided with support and reparations for the damage they sought.

Spain and the Francoist dictatorship

However, looking into the history of Spain, it seems as if these conditions set out by the Principle 1 of the Updated Impunity Principles were not upheld during the Francoist dictatorship. There was a lack of attention to the issues surrounding the Spanish government’s neglect in impunity policies. This has clearly been reflected in an unspoken ‘gap’ within Spain’s history and judicature.

The significant event that was followed by a whirlwind of issues began with the successful coup in 1936 led by General Franco. Franco was the General and the leader of the Nationalist forces. In this coup the General overthrew the Spanish democratic republic in the Spanish Civil War which lasted between 1936-39 which essentially ‘crowned’ him as the head of the state up until his death in 1975. Throughout the Francoist Dictatorship, there were a great number of crimes against humanity, where impunity should have been considered retrospectively. Over 130,000 people had disappeared and died in the extrajudicial execution, where individuals were executed in the absence of sanctions provided by judicial proceedings or court rulings. The extrajudicial execution would often target their attention to well-known political, religious and social figures. “700,000 people were held in concentration camps from 1936 to 1942”. Furthermore, 400,000 people were imprisoned for political reasons where a majority of these individuals were subject to torture and other cruel methods of treatment. Moreover, “500,000 people were exiled for their political beliefs”.

During this turmoil in Spain, the Spanish government issued a decree which stated that incarcerated mothers would be granted guardianship of their children in order to raise them up until the child reaches the age of three. After this age was reached, the authorities reserved the power to take custody of the child and were therefore able to remove the child from the guardianship of their mother. The authorities “would then change the children’s names” and then gave these children to families who were loyal to the new regime or to families that were willing to pay for a child. The rights of the non-conformists to the regime put forward by General Franco were stripped down, and this also affected their children as they were given new identities in the hope that it would ‘misplace’ their actual identities as the children of the incarcerated population and thus, use them to their own advantage to further their regime.

The ‘forgive and forget approach’

1975 was the year General Franco passed away. This was an opportunity for Spanish nationals to ratify a democratic constitution by holding a referendum in 1978, this presented a sign of hope for the victims who had first-hand experience of the damage which stemmed from the Francoist dictatorship. However, the Spanish governments approach to the process of democratization consisted of “silencing and forgetting” and in return they promised to “construct a new democracy”. The authorities urged the victims to just simply move on and pretend that such events did not happen, and to uphold a sort of ‘forgive and forget approach’.

This approach had created a number of issues for many reasons. Firstly, there was lack of consideration for Impunity Principles. Thus, no remedies were given to the victims. Those involved in the Francoist regime were not tried and punished. However, this should have been upheld under Principle 1 of the Updated Impunity Principles. The Spanish government also failed to provide the victims and “ensure the inalienable right to know the truth about violations; and to take other necessary steps to prevent a recurrence of violations”. This was evident in their suggestion to just ‘simply forgive and forget’ the past. Not only did this come as a shock to most citizens but also triggered many questions. This also made it apparent that these events would be of less importance, and thus left a gap in its history and judicature as the Spanish government failed to provide remedies for thousands of civilians.

The gap in Spain’s history and its policies

In 1977 the Amnesty Act was adopted, which granted amnesty for political crimes. The political prisoners were released, and those in exile were granted permission to return. Furthermore, in 2007, the Historical Memory Act was passed by the Spanish parliament to recognize and enhance victims’ rights. However, there was a lack of a transitional justice mechanism.

In February 2012, The Spanish Supreme Court issued decision 101, which prevented the possibility of investigating crimes committed against humanity between the years of 1936 to 1952 under the Francoist regime. However, Judge Garzon disregarded the amnesty act, he attempted to investigate the crimes committed during Francoist regime. The Spanish Supreme Court declared him not guilty, however the investigations procedure was prevented as “the right to know the historical truth is not part of a criminal process”. “A multitude of international judicial bodies has found that the crimes of the Franco period should be investigated”. Furthering this, in 2009, the United Nations human rights committee and the United Nations committee against torture recommended that Spain unearthed and identified the “corpses that remained hidden in mass graves and established an independent truth Commission to create a report on the human rights violations committed in the past”. The Spanish government failed to establish a transitional justice mechanism which would recognize and enhance victims’ rights and uphold impunity principles that would have presented the Spanish government as fair, just and reasonable country and thus uphold an apologetic and positive facade. However, they chose to cover up their wrongdoings by simply pretending it never happened.

Is President Erdogan the new General Franco?

The current situation in Turkey regarding the number of political prisoners and the mass arrests of individuals as part of the Gulen movement, Kurdish individuals in Turkey, political figures, religious figures, lawyers, judges and prosecutors and the list goes on seems to have many similarities as of Spain’s approach during the Francoist dictatorship. For example, considering the measures adopted by the Turkish government as an attempt to silence the individuals who they have identified as having ‘disobeyed’ or ‘criticized’ President Erdogan’s regime. This presents an uncertain future in terms of the solution for the ongoing issues in Turkey and sparks the fear that the acceptance of Erdogan’s regime could potentially create another gap which could leave thousands of individuals without a remedy and damage the judicature.

One way that it is evident that President Erdogan has clearly replicated Franco’s approach is through the mass arrests of lawyers. A few days after the attempted coup on the 15^th July 2016, around 2500 judges and prosecutors were suspended and detained.

State of emergency? Or the ‘make it worse than it already is approach’? 

On the 21^st July 2016, the state of emergency was declared, the rule of law was no longer considered. Thus, it was no longer part of the ‘solution’ of bringing Turkey back into a collected state. The act of triggering the state of emergency regime in 2016, seemed to have worsened the problems that arose within Turkey as the issues remained unsolved. During the State of Emergency, 125,000 civil servants including 4,000 judges and prosecutors were dismissed from their posts. Furthering this, 540,000 individuals were taken into custody with the assumption of being a member or affiliated with an armed terrorist organization. Since then, over 220,000 individuals have been sentenced for being linked to the Gulen movement which was identified as being a terrorist organisation and since then has obtained many derogative terms, such as “Feto”. Also, 1344 judges and prosecutors and 441 lawyers have been convicted for membership of an armed terrorist organization, while 1600 judges and prosecutors and some 500 lawyers are still on trial. In addition to this, 27 deputies and more than 90 mayors have been detained or suspended. Furthering this, 4,000 entities have been closed and confiscated without providing any form of compensation. Roughly 150 of media outlets were shut down in an attempt to silence the country from exposing the negative effects of Erdogan’s regime. For those that were identified as being a member of the ‘terrorist organization’ were a victim of their private properties worth of 32 billion USD being seized, this included schools, hospitals, houses and so on. In their press statement, The Human Rights Watch emphasized that “the abusive mass arrest of Turkish lawyers damages the rule of law and blatantly seeks to identify lawyers with the alleged crimes of their clients in violation of international law”.

One case that clearly depicts the issues surrounding the problems of the government triggering the state of emergency is the case of Elçi and others v. Turkey. This case was regarding allegations of torture. The applicants were practising lawyers in a critical political case. Due to the nature of their work they were arrested and both the offices they worked in and their homes were searched by the police and files of applications to Strasbourg ECtHR were seized. However, the government justified their harsh approach by emphasising that they were obliged to this as they provided consultancy services to defendants who were identified as possible PKK members.

On the other hand, “the applicants claimed that the reason for this interference was that they were human rights activists and practising lawyers in important political lawsuits”. The ECHR identified this case as violating the rights of the lawyers in an unjust manner during their practices during a state of emergency. The ECHR highlighted that even during the state of emergency the lawyer’s activities should be non-derogable. Therefore, suggesting that lawyers should be untouchable, no matter who they are defending or giving legal advice to.

Furthering this, another case which dealt with the issue surrounding the act of searching lawyers’ offices and seizing their documents in their offices was brought before the TCC in the case of Günay Dağ and others application. Osman Paksüt, who is the member of the Court summarised that although searching offices may be necessity in a democratic society, this act may not be justified as it was done by breaking the door during the night. “Therefore, interference with the confidentiality of the private life and inviolability of the domicile of the applicants cannot be defined as proportionate”. Overall, Paksüt implies that although it is wrong to break doors and search offices in the middle of the night, it may not be wrong to do this during the day. However, this judgement did not uphold the criteria the ECHR as there was a lack of explanations in terms of proportionality within Paksüt’s judgement. Therefore, it may suggest that lawyers who deal with similar clients that could potentially be a political prisoner or an individual who was unjustly linked to an organization with no evidence, may have to consider whether they will be encountering similar injunctions as the government seems to be taking many forms of action in order to threaten and silence anyone wo tries to defend the unjustly convicted individuals.

Turkish government’s response and justifications to the mass sacking and arrests of lawyers and identical examples from Egypt

As a response to the mass sacking and arrests of lawyers, the Turkish government responded by hiring 10,000 AKP authorized judges and prosecutors to misplace the ones detained, thus allowing Erdogan to implement his regime even further and have the ultimate power over the judiciary. Also, by hiring 100,000 law enforcement officers since 2016, this was used as another method for Erdogan to gain the ultimate political control over the law enforcement apparatus. Hence, Turkey has become the largest prisoners of lawyers, judges and journalists.

This is the chilling reality of the situation in Turkey and clearly portrays the impact of Erdogan’s regime on the country. Moreover, almost identical events are taking place in Egypt, as mass arrests of lawyers are also being conducted there. “Equation police and National Security Agency (NSA) forces have conducted a mass arrest campaign, rounding up at least 40 human rights workers, lawyers, and political activists since late October 2018”. It is believed that within the process of detaining the individuals, not one person was shown an arrest warrant and the relevant authorities failed to mention the reason of arrest and dismissed family members with minimal information. The failure to provide such information to the individual within this case and the family members who are attempting to obtain information may amount to an enforced disappearance.

Conclusions

Regarding Turkey triggering the state of emergency, it is clear that this has created an unsafe environment for all citizens in Turkey. This limits the citizens of Turkey in many ways, from freedom of expression to why they are being detained or randomly being searched. This creates a grey area for the direction Turkey is heading in. President Erdogan has clearly adopted many approaches identical to that of General Franco. He uses the technique of implementing fear into the system as a mechanism to silence civilians, human rights activists, lawyers, judges and prosecutors.

The main question that arises is: how long will this all last?

This question seems almost impossible to answer or to even consider. Looking at the history of Spain and General Franco, it only started to go back to ‘normal’ on the passing of General Franco which further triggers a number of questions.

Will this be the same situation for Turkey? How will the authoritative individuals deal with the damage President Erdogan has created? Will they offer reparations to the individuals? Will they create new laws that will provide citizens with comfort ensuring they will not experience such measures again? Or will they be told to forgive and forget, because all that happened was now in the past?

Overall, the answer remains unclear and will only be answered as time passes. However, considering Spain and the problems that stemmed from Franco’s regime are yet to be addressed which suggests that this could potentially be the same case for Turkey, long after President Erdogan’s ‘reign’.

(*)ESRA K.

Image credits: Francoist demonstration in Salamanca (1937) (Image: By Unknown author – Biblioteca Virtual de Defensa/Public Domain)

References

1. Dr. Christophe Paulussen, Impunity For International Terrorists? Key Legal Questions And Practical Considerations(2012) <https://www.icct.nl/download/file/ICCT-Paulussen-Impunity-April-2012.pdf> accessed 24 October 2020. Page 2
2. Dr. Christophe Paulussen, Impunity For International Terrorists? Key Legal Questions And Practical Considerations(2012) <https://www.icct.nl/download/file/ICCT-Paulussen-Impunity-April-2012.pdf> accessed 24 October 2020. Page 2
3. ‘Equipo Nizkor – Updated Set of Principles For The Protection And Promotion Of Human Rights Through Action To Combat Impunity.’ (Derechos.org, 2020) <http://www.derechos.org/nizkor/impu/principles.html> accessed 24 October 2020.
4. Dr. Christophe Paulussen, Impunity For International Terrorists? Key Legal Questions And Practical Considerations(2012) <https://www.icct.nl/download/file/ICCT-Paulussen-Impunity-April-2012.pdf> accessed 24 October 2020. Page 3
5. ‘Equipo Nizkor – Updated Set Of Principles For The Protection And Promotion Of Human Rights Through Action To Combat Impunity.’ (Derechos.org, 2020).
6. Rafael Escudero, Road To Impunity: The Absence Of Transitional Justice Programs In Spain(2014).

7.Rafael Escudero, Road To Impunity: The Absence Of Transitional Justice Programs In Spain (2014) page 127

8. Rafael Escudero, Road To Impunity: The Absence Of Transitional Justice Programs In Spain(2014) page 127
9. Rafael Escudero, Road To Impunity: The Absence Of Transitional Justice Programs In Spain(2014) page 127
10. Rafael Escudero, Road To Impunity: The Absence Of Transitional Justice Programs In Spain(2014) page 127

11.Rafael Escudero, Road To Impunity: The Absence Of Transitional Justice Programs In Spain (2014) page 127

12. Rafael Escudero, Road To Impunity: The Absence Of Transitional Justice Programs In Spain(2014) page 128
13. Rafael Escudero, Road To Impunity: The Absence Of Transitional Justice Programs In Spain(2014) page 132
14. Rafael Escudero, Road To Impunity: The Absence Of Transitional Justice Programs In Spain(2014) page 132
15. Rafael Escudero, Road To Impunity: The Absence Of Transitional Justice Programs In Spain(2014) page 124
16. Rafael Escudero, Road To Impunity: The Absence Of Transitional Justice Programs In Spain(2014) page 124
17. Rafael Escudero, Road To Impunity: The Absence Of Transitional Justice Programs In Spain(2014) page 130
18. Rafael Escudero, Road To Impunity: The Absence Of Transitional Justice Programs In Spain(2014) page 130
19. Osman Doğru Doğru and Tolga Şirin, Human Rights Paradox Of Turkey: Punishment For Victims And Impunity For Suppressors(2017).
20. The Initiative, ‘Factsheet: Turkey- The State Of Emergency Dismissals And Inquiry (Appeal) Commission’ (The Arrested Lawyers Initiative, 2020) <https://arrestedlawyers.org/2020/07/03/factsheet-turkeys-state-of-emergency-dismissals/> accessed 24 October 2020.
21. The Initiative, ‘Chief Of Turkish National Police Admits That 540,000 Detentions Have Been Made Without Legal Ground’ (The Arrested Lawyers Initiative, 2019) <https://arrestedlawyers.org/2019/07/15/chief-of-turkish-national-police-admits-that-540000-detentions-have-been-made-without-legal-ground/> accessed 24 October 2020.
22. The Initiative, ‘Abuse Of The Anti-Terrorism Provision By Turkey Is Steadily Increasing (2013-2019)’ (The Arrested Lawyers Initiative, 2020) <https://arrestedlawyers.org/2020/07/06/abuse-of-the-anti-terrorism-laws-by-turkey-is-steadily-increasing/> accessed 24 October 2020.
23. (Arrestedlawyers.files.wordpress.com, 2020) <https://arrestedlawyers.files.wordpress.com/2020/07/mass-prosecution-of-lawyers-in-turkey-aug-2020.pdf> accessed 24 October 2020.
24. The Initiative, ‘Turkey Stuck In Permanent State Of Emergency Regime’ (The Arrested Lawyers Initiative, 2019) <https://arrestedlawyers.org/2019/12/10/turkey-stuck-in-permanent-state-of-emergency-regime/> accessed 24 October 2020.
25. Ali Yildiz and Leighann Spencer, The Erosion of Property Rights In Turkey(2020) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3586084> accessed 24 October 2020.
26. Ali Yildiz and Leighann Spencer, The Erosion Of Property Rights In Turkey(2020) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3586084> accessed 24 October 2020.
27. Osman Doğru Doğru and Tolga Şirin, Human Rights Paradox Of Turkey: Punishment For Victims And Impunity For Suppressors(2017).
28. ‘Egypt: Mass Arrests Of Lawyers, Activists’ (Human Rights Watch, 2020) <https://www.hrw.org/news/2018/11/18/egypt-mass-arrests-lawyers-activists> accessed 24 October 2020.
29. ‘Egypt: Mass Arrests Of Lawyers, Activists’ (Human Rights Watch, 2020) <https://www.hrw.org/news/2018/11/18/egypt-mass-arrests-lawyers-activists> accessed 24 October 2020.

Bibliography

Primary sources 

Cases:

Elçi and others v. Turkey

Günay Dağ and others application

Secondary sources

Articles

Doğru O, and Şirin T, Human Rights Paradox Of Turkey: Punishment For Victims And Impunity For Suppressors (2017)

‘Egypt: Mass Arrests Of Lawyers, Activists’ (Human Rights Watch, 2020) <https://www.hrw.org/news/2018/11/18/egypt-mass-arrests-lawyers-activists> accessed 24 October 2020

‘Equipo Nizkor – Updated Set Of Principles For The Protection And Promotion Of Human Rights Through Action To Combat Impunity.’ (Derechos.org, 2020) <http://www.derechos.org/nizkor/impu/principles.html> accessed 24 October 2020

Escudero R, Road To Impunity: The Absence Of Transitional Justice Programs In Spain (2014)

Initiative T, ‘Factsheet: Turkey- The State Of Emergency Dismissals And Inquiry (Appeal) Commission’ (The Arrested Lawyers Initiative, 2020) <https://arrestedlawyers.org/2020/07/03/factsheet-turkeys-state-of-emergency-dismissals/> accessed 24 October 2020

Initiative T, ‘Chief Of Turkish National Police Admits That 540,000 Detentions Have Been Made Without Legal Ground’ (The Arrested Lawyers Initiative, 2019) <https://arrestedlawyers.org/2019/07/15/chief-of-turkish-national-police-admits-that-540000-detentions-have-been-made-without-legal-ground/> accessed 24 October 2020

Initiative T, ‘Abuse Of The Anti-Terrorism Provision By Turkey Is Steadily Increasing (2013-2019)’ (The Arrested Lawyers Initiative, 2020) <https://arrestedlawyers.org/2020/07/06/abuse-of-the-anti-terrorism-laws-by-turkey-is-steadily-increasing/> accessed 24 October 2020

Initiative T, ‘Turkey Stuck In Permanent State Of Emergency Regime’ (The Arrested Lawyers Initiative, 2019) <https://arrestedlawyers.org/2019/12/10/turkey-stuck-in-permanent-state-of-emergency-regime/> accessed 24 October 2020

Paulussen D, Impunity For International Terrorists? Key Legal Questions And Practical Considerations (2012) <https://www.icct.nl/download/file/ICCT-Paulussen-Impunity-April-2012.pdf> accessed 24 October 2020

Yildiz A, and Spencer L, The Erosion Of Property Rights In Turkey(2020) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3586084> accessed 24 October 2020

(Arrestedlawyers.files.wordpress.com, 2020) <https://arrestedlawyers.files.wordpress.com/2020/07/mass-prosecution-of-lawyers-in-turkey-aug-2020.pdf> accessed 24 October 2020

A webinar on policies of impunity in Turkey and the international mechanisms of remedies underlined that impunity is no longer an exception in Turkey and that international mechanisms are yet to be developed to fill the vacuum of lacking domestic remedies.