THE LEGAL DESCRIPTION OF CRIMES AND THE PROBLEM OF RETROACTIVITY

CRIMES AGAINST HUMANITY UNDER SPANISH CRIMINAL LAW

The Spanish legal system is a pure example of a civil law model, where the principle of legality is an absolute limit to the State's power to impose criminal sanctions. Legality is conceived in strict terms of a Statutory Law passed by Parliament which must fulfil all requirements of a lex praevia et certa. Retroactivity is strictly prohibited and only feasible when the Law that must be applied is a “favourable law”, as it is stated in Article 9 of the Spanish Constitution and in Article 1 of the Penal Code. According to the prevailing criminal law doctrine, this prohibition constitutes a final obstacle to prosecute the crimes of Francoism. There is no doubt that during the repression acts were committed that were described as murder or unlawful detention according to the criminal law in force at the time of commission, but the attempts to prosecute in recent years have been based on the classification of the facts as crimes against humanity, in order to highlight the massive scale and the deep social impact of the crimes and more easily avoid the effects of amnesty law and prescription. What occurred in Spain during the Civil War and the first years of the dictatorship was obviously a systematic and generalised attack against the civil population or against a part of it, since the aim of the perpetrators was to eliminate and terrorise their opponents. Therefore, pursuant to the current law in force, it would not be a problem to classify the facts as crimes against humanity in the form of murder, torture or enforced disappearances. However, a first limitation the prohibition of retroactivity then appears, since crimes against humanity were enacted in the Spanish Penal Code (CPE) in the Act of 25 November 2003, which came into force in 2004.

The definition of crimes against humanity included in the CPE was inspired by the Statute of Rome, although there are some differences.