2019, 1

Osservatorio sulle fonti / Observatory on Sources of Law

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Section: Sources of Law in the EU member States

SPAIN– 2018

By Ana Carmona Contreras, University of Seville

Name of the Act/s

Real Decreto-ley 10/2018, de 24 de agosto, por el que se modifica la Ley 52/2007, de 26 de diciembre, por la que se reconocen y amplían derechos y se establecen medidas en favor de quienes padecieron persecución o violencia durante la Guerra Civil y la Dictadura.

Date of entry into force of original text

August, 26, 2018

Date of Text (Adopted)

August, 24, 2018

Type of text

Royal Decree-Law /Real Decreto-Ley

If federal State

Federal level

□ State level (specify the State)

If Regional State

x State level

□ Regional level (specify the Region/Comunidad Autonoma)

Enacted by

Government/Congress of Deputies

Reference to the Constitution (art)

Article 149.1: The State shall have exclusive competence

over the following matters:

--- 8. Civil legislation.

--- 16. Basic conditions and general coordination of health matters.

--- 18. Basic rules of the legal system of Public Administrations (…); the common administrative procedure (…); legislation on compulsory

expropriation.

--- 24. Public works of general benefit or whose execution affects more than one Selfgoverning Community.

Subject area

Administrative procedure; Historical memory; Civil war; reparation victim’s rights.

If the act implements a source of EU Law: cite the relevant EU legal source

Comment

The Royal Decree-Law enables a procedure that allows the Council of Ministers to proceed to exhume and transfer the remains of the dictator Francisco Franco buried in the Valley of the Fallen (Valle de los Caídos). It should be recalled that the Valle is a monument built at the end of the spanish civil war (1936-1939). It is important, too, to remember that to do this, the dictator used the forced labor was carried out (under inhumane conditions) by prisoners on the Republican side.

In the Government's view, the operation of exhumation issued by Royal Decree-law is indispensable and "urgent" to comply with the Historical Memory Act (No. 52/2007 of 26 December, that acknowledges and broadens rights, and establishes measures, for those who suffered persecution or violence during the civil war and the period of dictatorship). This Act establishes the duty to remove Francoist symbols and avoid antidemocratic exaltations in public places, including the Valley of the Fallen. The Executive chaired by Mr. Sanchez also believes that it is necessary realize what is stipulated by the sixth additional provision of the Historical Memory Act: the Valle should become "a place and rehabilitate intended to honor the memory of all those killed in the war as a result of the subsequent political repression".

The decision to exhume and transfer the remains of the dictator shall be adopted by the Council of Ministers, according to the specific procedure regulated by the same Royal Decree. This procedure is initiated ex officio by the Board of Ministers. Then within fifteen days family members may provide on the fate of the remains of F. Franco indicating, where appropriate, place of reburial. For if family members do not manifest their will in a timely manner, it is attributed to the Cabinet decision on the place of reburial, in any case ensuring a dignified burial.

This decision shall be given to the parties concerned to, within no more than ten days, claiming what they deem appropriate. After that time, the Council of Ministers, by reasoned Agreement, decide on whether any exhumation and transfer, indicating, where appropriate, the destination to be given to the mortal remains affected.

Secondary sources/ doctrinal works (if any)

Available Text

https://www.boe.es/diario_boe/txt.php?id=BOE-A-2018-11836