The Right to Forget and not Forget in Spain

The Right to Forget and not Forget in Spain

On May 13, 2014, the Court of Justice of the European Union (CJEU) issued a landmark decision that allows EU citizens the “right to be forgotten” – basically, the right to withdraw consent over the processing of an individual’s personal information. Under that ruling, individuals have the right to ask Google and other search engines that operate in Europe to remove links relating to “old, inadequate or no longer relevant, or excessive” information about them that appear in search results for their names. The “right to be forgotten” case originated in Spanish jurisdiction after a Spanish lawyer failed in his attempts to get Google to delist search results relating to his former bankruptcy record.

However, also in Spain, scores of people are fighting against the erasure of their country’s hideous past. They are seeking the right to “remember” the truths about the Franco-era crimes. Stories about some of the victims of those crimes are featured in the award-winning documentary The Silence of Others, which was screened in Toronto at the 2018 Hot Docs International Documentary Film Festival.

The Silence of Others chronicles the story of the victims of Spain’s 40-year dictatorship under General Francisco Franco and their ongoing quest for justice. Filmed over seven years, their story is brought to life through magnificent cinematography and masterful storytelling. In the process, directors Almudena Carracedo and Robert Bahar amassed 450 hours of footage filled with voices of despair and hope.

“How unjust life is… Not life. We humans… we are unjust,” reflects an 80-something-year old woman by the name of María Martín as she sits by the roadside where her murdered mother’s nude body was ditched by Franco’s local militia eight decades ago. Ascención Mendieta, on the day of her 90th birthday, flies from Madrid to Buenos Aires in her tireless mission to have her father’s remains unearthed from a mass grave. Also in Madrid, José María “Chato” Galante lives a stone’s throw away from his former torturer. What’s more, tens of thousands of women today are still searching for children stolen at birth, decades after Franco’s death.

The Silence of Others is not only a history lesson on the Franco era, it is also a lesson on the principle of universal jurisdiction in international law. Spanish courts have made use of universal jurisdiction to prosecute cases of crimes against humanity committed in Argentina, Chile, Guatemala and El Salvador.  Eighty years on, however, Spain is reluctant to reckon with its fascist past. Franco died in 1975. Two years after his death, Spain passed an amnesty law, known as the “pact of forgetting,” that pardoned the crimes of the Franco regime. Today, victims and relatives of Franco’s crimes are seeking to annul the controversial amnesty law and to prosecute Franco’s surviving lackeys in Argentinian courts.

The Silence of Others won the Audience Award for Best Documentary at the Berlin International Film Festival. At the Hot Docs festival in Toronto, Carracedo and Bahar received standing ovations at their film’s screenings, where Osgoode Hall Law School's journalist in residence, caught up with them to ask a few questions.

How was The Silence of Others born?

Almudena Carracedo (AC): Firstly, on a personal level, this is a story that my generation in Spain had somehow left buried in the past. That bothered me a great deal and eventually I felt the time had come to confront it. Secondly, when the story of Spain’s “stolen children” began to come out in 2010, and it became clear that the story of those crimes had been occurring throughout the Franco era, we began to follow stories of mass arrests, torture, forced disappearances and extra-judicial killings.

Robert Bahar (RB): I’ll just add an international perspective. In the United States, we study a little about the Spanish Civil War. We learn about Guernica and Hemingway, but we really don’t know much about the dictatorship that took place forty years afterwards. And we certainly did not learn anything about the amnesty law and the decision to forget.

So, this kind of situation immediately made us think of the Truth and Reconciliation Commission in South Africa and truth and reconciliation processes in other countries emerging from repressive regimes. So, we wondered: how could it be that Spain had had no Nuremberg Trials, no Truth and Reconciliation Commission; that there had been no consideration for justice and reparation for the victims; that no one had considered what should happen to perpetrators; and, above all, how do we guarantee that these things will not be repeated? And so, if you have that frame and the fact that there had been no attempt to deal with the situation in Spain and that there were victims whose stories were unfolding in the film, there was a very powerful desire to tell that story. So, we began filming the process of the “Argentine lawsuit.”

Spain was instrumental in enabling the prosecution of cases of crimes against humanity in Chile, Argentina and elsewhere. Demands for justice for the victims of Franco’s crimes are being denied on the basis that there is a statute of limitations on those crimes. This appears to be a contradiction. How has the Spanish public reacted to this contradiction, which is very clearly illustrated in your film?

AC: Unfortunately, there is a tendency to judge other countries for their crimes – particularly countries of the global south – and to overlook crimes committed within your own territory… In Spain, people were absolutely scandalized about the case involving Argentina’s 500 stolen children, but in Spain we are talking about, at a very minimum, 30,000 cases which were registered up until 1952. Now, just imagine the number of cases registered from 1952 up to the 1980s!

Therefore, one of our goals in making this film is to let Spanish society find out what happened in their own country… What do we do about all this now, in 2018? What do we do about the tens of thousands of people who don’t know who their parents are or that they had even been stolen? What do we do about the more than 100,000 people that were secretly buried in mass graves? What do we do about the people who were victims of torture? And what do we do about their torturers who freely walk the streets?  We sincerely believe that people in Spain are democratically mature enough to face all this.

Many people argue it is time to turn the page and leave the past behind. So, why tell that story now?

AC: People who argue that it is time to turn the page and that one ought not reopen old wounds don’t suffer from those wounds to begin with. Let’s be clear, the surviving victims of Franco’s crimes are still suffering from those wounds as they were never afforded the chance to heal from them in the first place.

RB: In addition, the social movement that was growing and led to this movement -- which we were fortunate enough to document -- also reflects that this is the moment in which these questions can be addressed. Today, I think that young people in Spain are ready to reckon with its bloody, divided past… Many of them feel that they had been robbed of their own history.

There is also a sense of urgency. If you look at the ages of the victims and of perpetrators you realize that you probably have between five and twenty years to deal with this situation.

This is a story that will resonate in Spain and around the world… We have received requests to screen our film in Colombia, Algeria, Lebanon, the Balkans and Sri Lanka where there are transitional post-conflict kind of processes taking place. In many ways, the film tackles important questions about the search for truth, justice, reparation, non-repetition, and it offers a model of how a small group of victims can sit at a kitchen table – in this case, at the home of counsel Carlos Slepoy – to organize and use universal jurisdiction when their own government won’t pursue crimes committed in their own countries.

While the film’s protagonists appear to be fighting for the “right to remember,” there are many people in Spain who are currently fighting for the “right to be forgotten.” Indeed, the landmark “right to be forgotten” case originated in Spain. How does this story fit in with the so-called “right to be forgotten”?        

José María “Chato” Galante: There is absolutely no connection. As far as the “right to be forgotten” is concerned, the Spanish lawyer with unpaid debts appeared before the courts and went through the legal channels where he eventually received his sentence, etc. In our case, we are seeking access to justice. We are asking that our cases for crimes against humanity be heard in a democratic court; that our perpetrators be brought to justice to be tried and legally prosecuted; and, if found guilty, that they be convicted for those crimes.

After forty years of being denied access to justice, we are essentially being asked, or rather forced, to forget and even to forgive those who tortured us and those who committed heinous crimes against us. We are asked to do so even though the perpetrators of those crimes have not been tried in court. What’s more, we are being forced to forgive even though they have never asked for forgiveness.

Without considering the merits of the case involving the Spanish lawyer, his is one of common criminality. Our case involves crimes against humanity, not common crimes, and therefore they must be tried in court under the laws of universal jurisdiction for crimes against humanity. These crimes cannot be forgotten. Crimes against humanity must be prosecuted, and they must be recorded in history.


Roxana Olivera is currently a Journalist in Residence at Osgoode Hall Law School.