GUTIERREZ DORADO AND DORADO ORTIZ v. SPAIN
Inadmissible
Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
1. The applicants, Mr Antonio Gutiérrez Dorado and Ms Carmen Dorado Ortiz, are Spanish nationals who were born in 1952 and 1927 respectively and lived in Malaga. They were represented before the Court by Mr F.J. Leon Diaz, a lawyer practising in Sarajevo, and Mr P. Troop, barrister in London. 2. On 27 August 2010, the second applicant died. On 5 October 2010, the first applicant informed the Court that he wished to pursue the application both on his behalf and on behalf of his late mother, the second applicant. 4. In July 1936, Mr Dorado Luque, who was the grandfather of the first applicant and the father of the second applicant and a Member of the Spanish Parliament belonging to the socialist party (“PSOE”), was forcibly taken away by military forces in circumstances that have not yet been fully established. On 18 July 1936, he was travelling on a train from Madrid to Malaga. Armed forces took him away with two other persons (another Member of Parliament and the British consul in Malaga). They were transferred to the garrison of “San Rafael” in Cordoba. The British Consul was immediately released. Mr Dorado Luque and the other man were detained until at least 28 July 1936 because Mr Dorado Luque’s signature appears as a witness on the death certificate of another detainee who apparently died in the garrison (Joaquín Garcia-Hidalgo Villanueva, a journalist and ex-Socialist Member of Parliament). 5. The applicants have no reliable information as to their relative’s fate after 28 July 1936. 6. In early August 1936 a dead body was discovered which had documents with Mr Dorado Luque’s name in the pockets. The autopsy stated that he died “as a result of firearm injuries with serious wounds in the brain and liver”. The dead body was registered in the obituary book as Mr Dorado Luque. On 5 August 1936, the civil registry judge decided that there was insufficient evidence to conclude that the corpse was that of Mr Dorado Luque and made an entry in the civil registry of Cordoba that the body was that of an “unknown man”. 7. On 15 October 1977, after the death of Francisco Franco, an Amnesty Law was passed by the newly established Spanish Parliament which granted immunity from prosecution to everyone who had committed any offence for political reasons prior to 15 December 1976. 8. In 1979, the applicants assisted Mr Dorado Luque’s wife, Josefa Ortiz Lara (their mother and grandmother respectively) in the proceedings to obtain official confirmation of Mr Dorado Luque’s disappearance, a necessary procedural step before Mrs Josefa Ortiz Lara could obtain her widow’s pension in accordance with the applicable law. Spanish authorities dismissed her request for widow’s pension arguing that she could not be entitled to widow’s benefits as there was no evidence of her husband’s death in the civil registry books. 9. In 1981, Mrs Josefa Ortiz initiated a procedure for voluntary declaration of death before the courts of Malaga. The procedure lasted until 1993. On 10 March 1993 the first instance court no. 1 of Malaga, after confirming that Mr Dorado Luque had disappeared and that his fate and whereabouts were unknown, ordered that his death be recorded in the civil registry books. The judge established 30 July 1936 as the date of death. Mrs Josefa Ortiz was finally entitled to perceive her widow’s pension. 10. On 22 May 2006, the second applicant brought a criminal complaint before the Juzgado de Instrucción no. 2 of Cordoba (investigating Judge). She complained about the abduction and possible murder of Mr Dorado Luque in 1936 amounting to war crimes for which there were no statute of limitations. On 11 August 2006, the investigating Judge ruled against the applicant stating that the facts complained of amounted to a “hypothetical simple murder” which was subject to a statute of limitations of 20 years under the Criminal Code. As to the possibility that war crimes or crimes against humanity could not be time-barred, the Judge said that this could only apply after 2003 when the criminal code was amended in that sense and that the new rule could not be retrospectively applied to crimes which had already been time-barred by then. 11. The second applicant appealed to the Audiencia Provincial of Cordoba. On 16 October 2006, the Audiencia Provincial dismissed the appeal and confirmed the decision of the investigating Judge. The appellate court stated that the current constitutional regime prevented the prosecution of crimes committed during the Civil War since such claims would be contrary to the conciliatory nature of the Spanish constitutional framework and would only serve at “reviving old wounds or remove the embers of civil confrontation”. 12. The second applicant filed an amparo appeal against this decision before the Constitutional Court. On 14 April 2008, the Constitutional Court declared the appeal inadmissible for being devoid of constitutional content. 13. The second applicant, on 14 December 2006, together with several victims’ associations, filed a complaint before the Audiencia Nacional in Madrid. They complained that their relatives had suffered systematic enforced disappearances as well as possible systematic killings as part of a deliberate and calculated plan to eliminate a sector of the population. On 28 August 2008, the Audiencia Nacional’s Investigating Judge no. 5, in a preliminary investigation, ordered several public and private institutions to submit information on individuals disappeared after 17 July 1936 as a result of the Civil War and the subsequent Franco regime. 14. On 16 October 2008, the Investigating Judge issued a ruling accepting jurisdiction, in so far as the crimes had been committed against high-level national institutions and the form of Government (military rebellion of 1936 and the subsequent enforced disappearances). The ruling stated that all the facts complained of were not to be considered in isolation but rather within the wider context of the planned, massive repression by the Franco regime which began on 18 July 1936 against political opponents, carried out in a systematic manner which could amount to crimes against humanity as provided by the Spanish Criminal Code (Article 607 bis of the Criminal Code in force). The Investigating Judge further pointed out that the practice of enforced disappearances was used systematically to make it impossible to identify the victims and therefore prevent any judicial action against the perpetrators. He further noted that the whereabouts and fate of thousands of people that had been detained by the authorities were still unknown. These were continuous crimes because no information had been given to the families of the disappeared. The distress and anguish suffered by the relatives of the victims who still did not know the whereabouts and fate of their beloved ones amounted to a violation of Article 3 of the Convention (with reference to Cyprus v. Turkey [GC], no. 25781/94, ECHR 2001IV). 15. The Public Prosecutor appealed against the Investigating Judge’s decision, requesting the closure of the proceedings. 16. On 7 November 2008, the plenary of the Audiencia Nacional (criminal division) ordered all proceedings related to exhumations of mass graves to be suspended until final decision. 17. On 18 November 2008, the Investigating Judge no. 5 issued a decision relinquishing jurisdiction and advising the complainants to pursue their complaints before provincial courts. After receiving evidence that all the officials suspected (including Francisco Franco) had died, he declared their criminal responsibility extinguished. Complaints for the same facts alleged against other possible suspects would fall within the jurisdiction of the territorial courts competent in respect of the different mass graves (among which the territorial courts of Cordoba). In its decision, the Investigative Judge reiterated that these crimes should be prosecuted as the continuing crime of enforced disappearance and that there could be no application of the statute of limitations. He pointed out that the lack of official ex officio investigation for many years coupled with the numerous obstacles introduced by the Public Prosecutor to the opening of an investigation was in conflict with the ECHR and the PACE resolution 1463 of 3 October 2005 on enforced disappearances. 18. On 2 December 2008, the plenary of the Audiencia Nacional (criminal division) declared its lack of jurisdiction to investigate these crimes. The Audiencia Nacional noted that the crime of military rebellion had never fallen within its jurisdiction. 19. The family of Mr Dorado Luque initiated several parallel initiatives to the judicial procedures to clarify his disappearance. On 7 June 2006, the second applicant sent a petition to the competent military tribunal requesting information about the detention and whereabouts of Mr Dorado Luque. On 4 July 2006, the military tribunal responded stating that they had no information about him. 20. On 8 August 2007, the Cordoba Municipal Council dismissed the applicants’ petition to permit the exhumation of the body of Mr Dorado Luque from a mass grave identified in a pit of the cemetery in Cordoba. The local authorities argued that there were 39 tombstones above the mass grave and they had no authorization to remove them from the next of kin of the individuals buried there. 21. On 12 September 2007, pursuant to a petition by the applicants, the prison authorities of Cordoba issued a certificate confirming that Mr Dorado Luque had been detained there from 19 to 26 July 1936. The certificate stated that the reasons for the detention were “unknown” and that he was released upon orders from the military commander of Cordoba and surrendered to the Guardia Civil on 26 July 1936. 22. On 3 October 2008, the first applicant privately hired the services of forensic experts. In accordance with the Historical Memory Law (Law enacted in 2007), the first applicant was granted public funds (EUR 19,686.40) by the Ministry of the Presidency to assist in the process of searching and recovering the remains of his grandfather. The forensic experts located a mass grave in the cemetery of “La Salud” in Cordoba where allegedly the corpse of Mr Dorado Luque might be buried according to the 1936 inscription in the cemetery obituary book. Although the Audiencia Nacional’s Investigative Judge no. 5 had issued a specific order to the courts in Cordoba stating that the forensic works regarding the exhumation of Mr Dorado Luque were authorized, the Municipal Council of Cordoba issued an order to suspend all works. The forensic works have been suspended since then. 23. On 30 November 2009, the Ministry of the Presidency issued a decision denying the granting of further funds for the exhumation of the remains of Mr Dorado Luque. 24. It is submitted by the applicants that provincial courts, including the courts in Cordoba, are dismissing complaints by individuals disregarding the arguments of the Audiencia Nacional’s Investigating Judge no. 5 in its decision on relinquishment.