Rule of Law
INTERNATIONAL COMMISSION OF JURISTS
The International Commission of Jurists is a non-governmental organization
which has Consultative Status, Category B ", with the United Nations Eco-
nomic and Social Council. The Commission seeks to foster understanding
of and respect for the Rule of Law. The members of the Commission are :
JOSEPH T. THORSON
PER T. FEDERSPIEL
JOSt T. NABUCO
SIR ADETOKUNBO A. ADEMOLA
ARTURO A. ALAFRIZ
DUDLEY B. BONSAL
PHILIPPE N. BOULOS
U CHAN HTOON
A. J. M. VAN DAL
ELI WHITNEY DEBEVOISE
SIR OWEN DIXON
MANUEL G. ESCOBEDO
THUSEW S. FERNANDO
OSVALDO ILLANES BENITEZ
AXEL HENRIK MUNKTELL
SIR LESLIE MUNRO
H. B. TYABJI
President of the Exchequer Court of Canada
Former Judge of the Supreme Court of India
President of the Consultative Assembly of the Council
of Europe; Member of the Danish Parliament; Attorney-
Member of the Bar of Rio de Janeiro, Brazil
Chief Justice of Nigeria
Solicitor-General of the Philippines; former President
ol the Federation of Bar Associations of the Philippines
Member of the Italian Parliament; Professor of Law
at the University of Padua
United States District Judge for the Southern District
of New York; immediate Past President of the Asso-
ciation of the Bar of the City of New York.
Deputy Prime Minister, Government of Lebanon;
former Governor of Beirut; former Minister of Justice
Former Judge of the Supreme Court of the Union of
Attorney-at-Law at the Supreme Court of the Netherlands
Atorney-at-Law, New York; former General Counsel,
Office of the USA High Commissioner for Germany
Chief Justice of Australia
Professor of Law, University of Mexico; Attorney-
at-Law; former President of the Barra Mexicana
Judge of the Supreme Court of Ceylon; former Attorney-
General and former Solicitor-General of Ceylon
First President of the Supreme Court of the Republic
Attorney-General; President of the Bar Association of
Costa Rica; Professor of Law; former Ambassador to
the United States and to the Organization of American
Judge of the Supreme Court of Chile
Advocate at the Court of Appeal, Paris, France
Member of the Swedish Parliament, Professor of Law
at the University of Upsala
Secretary-General of the International Commission of
Jurists; former President of the General Assembly of the
United Nations; former Ambassador of New Zealand
to the United Nations and United States
Professor of Law at the University of Ghent. Belgium;
former Minister; former Senator
Former Minister of Czechoslovakia to Great Britain and
France; former Member ofthe Czechoslovak Government
Former Attorney-Genera! of England
Attorney-at-Law; Professor of Law; former Attorney-
General of Argentina
Senior Advocate of the Supreme Court of India;
Secretary, Indian Bar Association; sometime Secretary
to Mahatma Gandhi
Barrister-at-Law, Karachi. Pakistan; former Judge
of the Chief Court of the Sind
Secretary-General: SIR LESLIE MUNRO, K.C.M.G., K.C.V.O.
Former President of the General Assembly of the United Nations
Administrative Secretary: EDWARD S. KOZERA
Former Lecturer in Government. Columbia University
INTERNATIONAL COMMISSION OP JURITI, 6, RUE DU MONT-DE-SION, GENEVA, SWITZERLAND
Rule of Law
INTERNATIONAL COMMISSION OF JURISTS
TABLE OF CONTENTS
INTRODUCTION ............... .. 3
I. IDEOLOGICAL AND HISTORICAL FOUNDATIONS OF THE
REGIME ....... ..... ...... 5
II. THE SINGLE PARTY SYSTEM .. . . . . 10
III. THE NATIONAL SYNDICALIST COMMUNITY . . 14
IV. LEGISLATIVE POWER ... . . . . . 18
A. Legislative Power of the Chief of State .... . 18
B. The Legislative Power of the People . . .. 18
C. The Participation of the Cortes in the Making of
Laws ...... ........... 20
(1) Composition, Nomination, and Election of
the Cortes ....... ..... 20
(2) The Jurisdiction of the Cortes ...... 20
D. The Legislative Power of the Government . 22
V. THE POWERS OF THE EXECUTIVE . . . . .. 24
A. Organization and Powers . . ..... 24
B. Maintenance of Law and Order . . ... 25
C. Administrative Law . . . . . . 26
VI. THE JUDICIARY AND THE BAR . . ..... .. 30
A. The Ordinary Courts . . .. . . 30
(1) Basic Statutes .. . . . . . 30
(2) Appointment of Judges . . . . .. 30
(3) Disciplinary Measures against Judges . 32
B. Special Courts . . . . . . 33
(1) Labour Tribunals . . . . .... .33
(2) Tribunals for the Protection of the Syndical
Organization . . . . . . 35
(3) Military Courts . . . . .35
C. Independence of the Judiciary . . . ... 36
D. Organization of the Bar . .. ...... . 37
(1) The Colegios . . . . 37
(2) Professional Discipline . . . . .. 37
(3) Independence of the Advocates . . . 38
VII. CIVIL LIBERTIES AND POLITICAL RIGHTS . . .. 40
A. Freedom of Association and Assembly .... . 42
(1) Freedom of Association . . . .. 43
(2) Regulations Governing Religious Associations 44
(3) Freedom of Assembly . . .... . 46
B. The Free Expression of Ideas and Especially Free-
dom of the Press . . ... . -7
C. Religious Freedom . . . . . .5
D. The Right of Petition . ... . 56
E. Suffrage.. ........ . 5
VIII. DEFENCE OF THE REGIME ... .. ..... .... 60
A. The Law on Public Order of July 30, 1959: A Penal
Law enforced by the Administration . . .. 60
B. Law on Political Responsibilities of February 9,
1939 . . ... . . .... .63
C. Penal Legislation for the Protection of the State
and the Defence of the Regime . ... .. 65
(1) The Penal Code . ....... .66
(2) Code of Military Law . . . ... 70
(3) Decree of September 21, 1960 . . .. 71
(4) Law for the Repression of Freemasonry and
Communism of March 1, 1940 .... ... 72
IX. THE PENAL PROSECUTION OF POLITICAL OFFENCES . 75
A. The Predominant Role played by Military Courts 75
B. Arrest and Preventive Custody .. . . . 76
C. Defence ... .. .. .. .. ... . 78
D. Admission of the Public to Trials . . .. 80
E. Appeals . . .... . . .. . 81
X. CONCLUSIONS ... . . . . . . 82
1. Labour Charter of March 9, 1938 .... ... 89
2. Act of July 17, 1942, Creating the Spanish Cortes .. 96
3. Charter of the Spanish People of July 16, 1945 . . 100
4. Referendum Act of October 22, 1945 . . . . 104
5. Law of Succession to the Chief of State of June 7, 1947 . 105
6. Law on the Principles of the National Movement of May 17,
1958 . . .. . . . . . . . 108
7. Excerpts from the Ccr6n Trial . . .. ...... 111
Part A. Public Prosecutor's Indictment . .. 112
Part B. Speech of Defence Counsel for Cer6n . 123
Part C. The Court's Finding and Sentence .... 129
8. Letter from the 339 Basque Priests . . ...... . 144
9. Letter of Protest against the Censorship from 350 Spanish
Intellectuals .. .. . . . . . . 152
The International Commission of Jurists now publishes its report
on Spain and the Rule of Law ".
The interest of the Commission in Spanish developments dates
back many years. Bulletin of the International Commission of Jurists
No. 7 of October 1957 dealt with Political Trials in Spain. Bulletin
No. 8 of December 1958 commented on new arrests and trial pro-
ceedings in that country, while Bulletin No. 9 reported in August
1959 on the activities of the Spanish Bar Associations.
The then Secretary-General of the Commission visited Spain in
April 1960 and established relationships with members of the legal
profession in Madrid, Barcelona and Sevilla. Professor Silverio
Coppa of the Rome Bar acted in March 1961 as the observer of the
Commission at the trial in Madrid of Professor Tierno Galvan of
the University of Salamanca and his eight co-accused.
Throughout this period, members of the Judiciary and Bar as
well as academic circles in Spain have repeatedly manifested great
interest in the activities of the Commission with the result that the
Spanish mailing list of the Commission's publications has continued
to grow. Two Spanish jurists attended the European Conference
held by the Commission in Vienna in April 1957.
The Commission is aware of the sufferings and ordeals of the
Spanish people during and after the Civil War. It is not for the
Commission to pass judgment on the profound divisions which
afflicted Spain in 1936 and thereafter and which culminated in the
present Government of General Franco.
The Commission is concerned with the extent of the observation
of the Rule of Law in Spain from 1936 to the present day. On this
vital matter the reader will judge for himself from the Report.
It is to be profoundly hoped that respect for the dignity and the
rights of the individual are about to be accorded a manifest recogni-
tion by the Spanish government. Declarations which appear to
give some degree of freedom to the Spanish press are mere words if
the Government can, as it still does, appoint and dismiss editors and
control absolutely both the expression of editorial opinion and the
content and format of the news.
In time of peace in Spain the constant use of military courts for
the trial of many offences which would normally be dealt with by
civilian courts is a disturbing breach of the principles of the Rule of
The Commission is animated by the sincere wish that the brave
and spirited people of Spain with their splendid history and culture,
should move towards freedom and prosperity in the European
November 1962 LESLIE MUNRO
I. IDEOLOGICAL AND HISTORICAL FOUNDATIONS OF
The modern Spanish State is the product of a military rebellion
which has not failed to leave its mark upon it. On July 24, 1936,
several days after the military revolt, led by the Generals Sanjurjo,
Mola, Franco, Goded, Queipo de Llaho, Fanjul, Saliquet, Orgaz and
Valera, a Junta for National Defence under the presidency of General
Cabanellas was formed at Burgos and assumed all the powers of
state in the nationalist zone.
This Junta was dissolved, upon its own initiative, by the Decree
of September 29, 1936, which transferred its powers to General Franco.
The essential provisions of the Decree are as follows:
The Junta for National Defence, created by the Decree of July 24, 1936, and
the provisional regime of the combined command, corresponded to a need
created by the most urgent demands of the Spanish liberation. Civilian
life, having been reorganized in a perfectly normal fashion in the recovered
provinces and liaison having been established between the different fronts on
which the Armed Forces are fighting to safeguard the Nation, as well as for
the cause of civilization, the need for an organic and efficient regime has
arisen, in order to respond adequately to the new reality of Spain and to
prepare the country's future with the utmost authority. Reasons of every
kind stress the imperious necessity of concentrating under a single head all
powers which aided by the fervent participation of the Nation, should lead
on to the ultimate victory and to the establishment, consolidation, and deve-
lopment of the new State. In consideration of the motives which have been
set forth here and with the assurance of interpreting the true sentiment of
the Nation, this Junta, in the service of Spain, promulgates the following:
Section 1: In realization of the agreement reached by the Junta for National
Defence, his Excellency Don Francisco Franco Bahamonde, General of
Division, has been appointed Chief of the Government of the Spanish State,
in which capacity he will assume all the powers of the new State.
Section 2: General Franco is hereby appointed supreme commander (Gene-
ralissimo) of the National Armed Forces, on land, sea, and in the air and shall
receive the commission of Chief General of the Field Forces.
Section 3: This proclamation shall be solemnly made public in the presence
of delegations from all national groups which comprise the liberation move-
ment, and shall be appropriately communicated to foreign governments.
Section 5: All provisions incompatible with this Decree are hereby abolished
and declared void.
The concentration of legislative and executive powers in the hands
of General Franco has never been modified, in substance, by sub-
sequent legislation. Even today, the functions of Chiefl o' State.
Head of the Government, Supreme Commander of the Armed Forces,
and Caudillo (Leader) of the National Movement tlle only political
party) are all united in the single person of Gereral Franco.
From the very beginning, the military rebellion against the legal
Government of the Republic was supported by two organiza[lns,.
inspired by totalitarian tendencies, which existed in Spain at ilhi tlmc
the civil war broke out. The first of these was tih Junta of the
National-Syndicalist Offensive" (JONS), founded in 1931 and led
by Ramiro Ledesma Ramos and Onesimo Redondo. The second
organization was the Falange Espanola, formed in 1933 by
Jos6 Antonio Primo de Rivera, son of the former dictator. In Febru-
ary 1934, these two organizations decided to merge, thus creating a
single party henceforth known by the name of the Falange Espanola
y de las JONS. A common party platform was drawn up in Octo-
ber 1934, with the title of The Twenty-Seven Points; the last of these
was subsequently eliminated, since it provided for the seizure of power
under the conditions to be described below. On April 19, 1937,
General Franco merged by Decree the Falange Espafiola y de las JONS
with the Carlist Loyalists (requetis) who also supported the rebellion.
Consequently he united also the paramilitary forces of the two move-
ments into a single national militia and ordered the dissolution of
all other organizations and political parties, appointing himself head
of the single party thus formed. The Decree of August 4, 1937,
ratified the statutes of this party, which assumed the name of Falange
Espanola Tradicionalista y de las JONS (abbreviated FET and JONS:
henceforth referred to as Falange; after World War II it was often
called the National Movement). The Twenty-Six Points became the
official State doctrine and programme.
The 6th point defined the concept of the State and the relations
existing between the State and its citizens in the following terms:
Our State shall be a totalitarian instrument dedicated to the service of the na-
tional integrity. All of the Spanish people will participate in the State through
the families, municipalities, and syndicates. No one shall participate through
the mediation of a political party. We shall radically abolish the political
party system with all its consequences: inorganic suffrage, representation by
warring parties, and a parliament of the kind which is only too well known.
The fundamental principle of economic organization was formu-
lated in the 9th point:
We conceive the economic organization of Spain in terms of a gigantic union
of producers. We shall organize Spanish society on a corporative basis by
means of a system of vertical syndicates, arranged in accordance with the
various branches of production in the service of the national economic integrity.
The 25th point refers to the relationship of State to Church:
Our movement shall incorporate in the national reconstruction the Catholic
faith with its glorious tradition which has been predominant in Spain. Church
and State shall exercise their respective functions without any activity what-
soever being allowed to jeopardize the dignity of the State or the national
A schooll book i Cuiso complete de Primera Enseiianza) gives the
'follov.ing definition of the State which grew out of the rebellion:
The Spamsnh Slatei rn under the sign of the unity and grandeur of our
cCunr'. ,i's. .a totalLari.irn instrument in the service of our Nation: it is funda-
FriciIll., naJonjl-s ..nd-calist and represents, in all its aspects, a reaction
jganl l liberal capiial.;m and Marxist materialism.
Franco himntelf declared in an interview granted to the ABC,
tlle leadinrc lonarchlus newspaper, on July 19, 1937, that his goal
\;is the c rc:tion tof : totalitarian State and that the single party
Fi fdiingi should Ccr \e as a foundation for such a State:
There is in Spain a great mass of people who are neutral and unaligned.., who
have never wished to belong to any party whatsoever. This mass which may
hesitate to join forces with the conquering group will find in the FET and
JONS the appropriate channel through which they may unite themselves with
With the approaching defeat of Fascist Italy and National Socialist
Germany but, more especially, after the victory of the western demo-
cracies, the regime made an effort to rid itself of the most flagrant
features of its Fascist trappings. The proclamation of the Charter of
the Spanish People of July, 16, 1945, constituted an attempt to
give a democratic appearance to the regime. A definition of the
State which differed strikingly from that given in the 6th Point
was inserted in the Law of Succession of June 7, 1947. Its terms were
as follows: Spain, as a political unit, is a Catholic, social and repre-
sentative State, which in accordance with its traditions, declares
itself to be a kingdom. More recently the regime's theoreticians
have seen fit to define it as an organic democracy ". General Franco
himself expressed his views on the characteristics of an organic
democracy in an interview granted to the editor-in-chief of US News
and World Report, which was published in the May 20, 1955, issue
of that magazine:
I judge, in relation to the general political problems of the nations, that there
exists in the world today a crisis of systems. The old nations which have
worn out their political systems have to evolve toward new forms. The
events that have occurred in Europe in the past 40 years show us that the
political systems of Europe do not satisfy the needs of the countries which
are old and over-populated.
And it is no mere whim, for example, that in Russia Communism exists
and that other countries follow; or that there has been Fascism in Italy,
Hitlerism in Germany, a special system in Portugal and one in Spain. No,
this is not whim. We men are not the ones who create the political systems;
it is the historic necessity of the nations which forces them to seek solutions
to the political problem presented to them.
In Europe in general, and particularly in Spain, the political systems were
moving towards Communism and would have ended in Communism, because
inorganic democracy opens the doors and gives opportunities to Communism
and tyranny to establish itself. And it is clear, if we do not wish to fall
into that of total negation, which is Communism, and if we do not want to
see our personality extinguished and our country destroyed, then we have to
seek solutions to the political problems, and not by those routes that have
brought failure to us, but by new routes.
And so we have had to give an organic and balanced form to democratic
representation; that is to say, the participation in government of the national
interests through the Cortes [Spain's national legislative body and not
through political parties, which sacrifice the interests of the nation to those
of the party itself.
It has been necessary, then, to resolve the needs of the nation through its own
natural organizations. And, therefore, we base ourselves on the munici-
palities, the organizations of the provinces, the unions, the corporations,
the institutions of public law, the universities.
These entities send their representatives to the Cortes, so that in balanced
form- one third unions, another third of the cultural institutions and the other
third of the municipal organizations- they are able to exercise the same func-
tions as deputies exercise in all countries, but without the passions or the
party fights, and dedicated only to the service of the nation. As they are
the representatives of responsible organisms, those organisms exercise a
check upon their representatives when they do not serve their legitimate
The making of laws and the dissemination of public information about laws
and the participation of all Spaniards in the legislative tasks are being carried
out efficiently. They are not done with the democratic formalisms that are
used by the inorganic democracies in many countries, but it is evident that
this system here complies with a living reality.
The Twenty Six Points of the Falange seem to have been implicitly
abrogated by the Law of May 17, 1958, on the Principles of the Nation-
al Movement. Articles VII and VIII of this Law which deal with the
form and specific character of the State are as follows:
Article VII: The Spanish people, united under a legally constituted order
and inspired by the postulates of authority, liberty and service, constitute
the national State. Its political form within the framework of the immutable
principles of the National Movement and of the principles defined by the
Law of Succession and the other fundamental laws, is the traditional, Catholic,
social and representative monarchy.
Article VIII: The representative character of the State is the essential
principle of our public institutions. The participation of the people in the
work of legislation and other functions of general concern shall be effected
through the family, the commune, the syndicate and other organizations
endowed with an inherently representative nature and recognized for that
purpose by the law. Any political organization, whatever its character,
which lies outside this representative system, shall be considered illegal.
Public appointments and offices are open to all Spaniards according to their
merits and capabilities.
The most important principles of doctrine are those which refer
to General Franco's position within the framework of the State and
the National Movement. A doctrine very similar to the Fiihrerstaat
of Nazi Germany was developed in Spain, namely the doctrine of the
caudillaje which makes the Leader (Caudillo) the key figure of the
regime. The position occupied by this figure is defined in Chapter XI
of the Falange statutes (which formed the subject of the Decree of
August 4, 1937) in the following terms:
As the author of the historical epoch during which Spain achieved its historic
destiny, while at the same time obtaining the goals of the Movement, the
Chief (or Leader) exercises the most absolute authority to its full extent.
The Leader is responsible before God and history.
Article 42 of these statutes stipulated that, the Caudillo will
secretly designate his successor, who will be proclaimed by the Council
in the event of death or physical incapacity (of the Caudillo) ". This
was the first measure taken to assure the continuity of the Franco
Juan Beneyto Perez, the most eminent theoretician of the regime's
initial period, developed the concept of the Caudillo and prepared the
way for the doctrine of the caudillaje in works which appeared in 1939
and 1940. In ElPartido, which he published in 1939 with the collabo-
ration of Costa Serrano, he wrote: "The concept of the Caudillo
is a synthesis of reason and ideal necessity. It is not only force, but
also spirit, and constitutes a new technique, being the incarnation of
the National Soul and even of the national physiognomy. As a
technique, it is the natural consequence as well as the organic necessity
of a unitary, hierarchic, and totalitarian regime. "
The doctrine of the caudillaje is, above all, an attempt to legitimize
a regime born of an insurrection. As such, it continues to preoccupy
the theoritician of the regime. Thus, in a speech given on May 15, 1957,
at Vich, Gabriel Arias Salgado who at the time was the Minister of
National Education, took the utmost pains to show the difference
which might exist between the caudillaje and a dictatorship. He
describes the caudillaje as having sprung from an historic situation:
the collapse of the political institutions of a people. It was at this
moment that the people chose a man endowed with exceptional
qualities, in whom it placed its confidence, and whom it charged with
the task of compensating for this absence of institutions.
This is not the case in a dictatorship, a regime in which, in order to meet
the exigencies of a crucial situation-whether incidental or accidental-a
person is invested with every possible prerogative and with an urgent, though
provisional, mission. Once these exceptional circumstances have been
passed over, the government reverts to the former political order which has
never ceased to exist...a dictatorship and a caudillaje are two different
political situations because the essentially transitory character of a dictator-
ship is not present in the caudillaje which, it is clear, calls for a maximum
duration...The justification of a dictatorship resides in the existence of a
constitutional order which continues to exist and has only been temporarily
suspended. It is nothing more than a risk-albeit objective, precise, and
limited-due to the unusual circumstances...A caudillaje, on the other hand,
is the result of an historical contingency leading to political chaos and of
the liquidation of the past...either tacitly or explicitly we expect the caudillaje
to found a new historical, legal, and political order.. .dictatorship is tran-
sitory, whereas the caudillaje is fundamental.
The two institutions which are the product of the Falangist doctrine
and which characterize the new State, more particularly from the point
of view of constitutional theory, are the single party and the vertical
syndicates, a syndicate being a single organization uniting employers'
and workers' associations from a sector of the economy in one body.
They will be analyzed in the following two chapters.
II. THE SINGLE PARTY SYSTEM
As early as September 13, 1936, the Junta for National Defence
had already adopted a Decree, according to which ... all parties
and all political and social groups which as of February 16 of the
current year [the date on which the elections were held] have been
adherents of the Popular Front, or any other organization opposed
to the forces cooperating with the National Movement... were
declared illegal. Subsequently, the Law on Political Responsibilities
of February 9, 1939 (see p. 63), furnished in Section 2 a list of the
principal illegal organizations.1 As has already been said in the
proceeding chapter, General Franco adopted a measure on April 19,
1937, which certainly was of a very singular character from the legal
stand point: he nationalized ", as mentioned above, those political
movements characterized by marked Fascist tendencies by merging
the Falange Espafiola y de las JONS with the requests, thus creating
a single State party under his direction. The most important provi-
sions of this Decree of Unification of April 19, 1937, are as follows:
Section 1: The Falange and the requests along with their services and current
components shall be integrated into a single political organization under my
direction which shall henceforth be known as Falange Espaiiola Tradicionalista
y de las JONS. This organization, as intermediary between society and
State, shall have the principal mission of communicating the opinion of the
people to the State and of informing the former of the ideas of the latter by
means of political and moral virtues, hierarchical services and fraternity.
All those who, on the day of the publication of this Decree, were in possession
of the membership booklet of the Spanish Falange or of the requests shall
be fully entitled to membership in the new organization. In addition, all
those Spaniards who so desire may become members following admission
procedure. All other organizations and political parties are hereby dissolved.
Section 2: The directors of this new organization shall consist of the Chief
of State, a Secretariat or political Junta, and the National Council. The
SAccidn Republicana, Izquierda Republicana, Unidn Republicana Partido
Federal, Confederacidn Nacional del Trabajo, Unidn General de Trabajadores,
Partido Socialista Obrero, Partido Conrmrnista, Partido Sindicalista, Sindicalista
de Pestana, Federacidn Anarquista Ibdrica, Partido Nacionalista Vasco, Accidn
Nacionalista Vasca, Solidaridad de Obreros Vascos, Esquerra Catalana, Partido
Galleuista, Partido Obrero de Unificacidn Marxista, Ateneo Liberatorio, Socorro
Rojo Internacional, Parlido Socialista Unificado de Catahaiia, Unidn de Rabassaires,
Acciun Catalana Republicana, Partido Caatalaiista Republicano, Unidn Democratia
de Catalnai, Estat Catala, as well as all the Masonic Lodges. All parties or
groups affiliated with any of the above or having similar tendencies are likewise
forbidden. The assets belonging to these organizations were confiscated and
contributed to the State (Section 2, of the Law of February 9, 1939).
Sccrcr.ie-rt Ior political Junta is charged with the duty of establishing the internal
sric.iture of the organization in order to realize its principal objectives, as
"ell Ja of a:. ; ting its leader in working out the organic and functional struc-
lure o1 tie Sute, and collaborating on every occasion with government action.
Half o its members with whom it will begin its activities shall be designated
by the Chief of State and the other half shall be elected by the National Coun-
cil. The National Council shall take into consideration the weighty national
problems which the Chief of State shall submit to it, according to terms
which shall be established in supplementary provisions. While awaiting
the realization of the work in progress for the definitive organization of the
new totalitarian State, we shall give form to those national aspirations with
which the members of the FET and JONS are charged within the State orga-
nizations and services, in order that these may lend them a new impetus.
A Decree of July 31, 1939, established the statutes of the FET
and JONS in their final form, the first statutes of the combined party
having been formulated in the Decree of August 4, 1937. From
then on-starting at the lowest level and working up to the top-
the Falange comprised the following elements: (1) its members;
(2) the local branch of the Falange; (3) the provincial officers; (4) the
regional inspectorate; (5) the administration for its social services;
(6) the militia and the syndicates; (7) the national inspectorate;
(8) the national representatives; (9) the Secretary-General; (10) the
political Junta; (11) the President of the political Junta; (12) the
National Council; and (13) the Caudillo, or National Leader of the
Falange who exercised" the most absolute authority to its full extent ".
The highest level organ is the National Council. This Council
meets upon convocation by the Caudillo, who establishes the agenda.
The Council is under obligation to meet every year on July 17, and
consider questions which touch upon the following subjects in parti-
cular: (1) the organizational principles of the Movement; (2) the
structure of the State; (3) the organization of the syndicates; (4)
important national or international problems submitted by the
leader of the Movement. The members of the National Council
are appointed by the Caudillo. In pursuance of the Law of February
22, 1941 (which is a Charter of the Falange Hierarchy), these members
enjoy a certain immunity from penal prosecution. None of the
Falange members of the National Council may be arrested, except
by order of the Caudillo himself. A national councillor may not be
indicted except with the agreement of the President of the political
Junta. In case of indictment, he must be tried before the second
Chamber of the Supreme Court.
The most important duty which devolved, and still devolves, upon
the Falange is the maintenance of the syndicates' organization in
order to carry out the functions entrusted to syndicates' officials
by the legislation on labour, production, and distribution of assets.
The officials of the organization must be recruited from the ranks of
the Falange. The national delegate of the syndicates must be an
active member. The internal organization has a vertical hierarchy
in the manner of an army ".
The Falange holds a monopoly on social welfare work through
its administration of social assistance. This activity functions in
close association with the obligatory social service and wcll'far v. ork
of the Falange, in which women-affiliated to the Falange- pa r ic Ipa te
The first statutes established by the Decree of August 4. 1937.
had created at the core of the Falange twelve special services. corrc.s-
ponding to the principal administrative departments of thc Sitae.
The purpose was to familiarize party ranks with the duties Ilcumbent
upon the administration and to associate them with administrative
activities, with the aim of making them capable of supervising the
administrative agencies of the State.
A Decree of November 28, 1941, suppressed these twelve special
services which duplicated the Departments of the State.
By a Decree of May 19, 1941, the Department of Press and
Propaganda was removed from the Ministry of Interior and placed
under the Department of Public Education which had just been
created within the Falange organization. However, four years later
this Department was transferred back to the administration, under
control of the Ministry of National Education (Decree of July 27,
A Law of July 2, 1940, reorganized the militia of the Falange,
which was divided into a permanent force, a pre-military militia, a
front line militia, and a second class militia.
The permanent force was charged with maintaining law and order
inside the Falange, as well as with the pre-military instruction of the
youth and with the officering of the active force of the front line. The
pre-military militia was comprised of young members, from the
age of 18 when they ceased to belong to youth organizations until
they reached the age of admission to the army. The front line militia
was comprised of members from the age when they were released
from army service up to the age when they were absolved from
military obligations. The second class militia included all those
members from the age when they were absolved from military obliga-
tions up to the age of fifty-five.
Members of the militia enjoyed the right of preference in com-
petition for government offices, as well as various other advantages.
The militia was disbanded by the Decree of December 12, 1944.
Legislation relating to the Falange reveals that its influence has
undergone a steady decline. An attempt to reinstate it in 1956 was
crowned with failure. At that time the political situation reached
such straits that General Franco thought it desirable to reinforce
the somewhat weak position of the Falange. Once again, he appointed
Jose Luis de Arrese Secretary-General of the Party. A Commission
was created in order to propose a revision of the statutes and a reform
of the fundamental laws with the object of broadening the basis of
the regime. This commission was partly composed of old guard "
Falangists who were delighted to seize what they considered as
their last chance of restoring vigour to the Party and of re-defining
its functions. For the first time since the civil war its membership
increased. The commission drew up several Bills which were sub-
mitted to the National Council of the Falange, where the most diver-
gent opinions were expressed. The authoritative voices of the army,
the Church and high finance opposed the proposals of the com-
mission concerning which no further action was taken.
Membership of the FET and JONS was made easier by subsequent
legislation with the object of transforming the single party, to an
even greater degree, into that Communion of Spaniards in the
ideals which gave birth to the Crusade of which there is mention
in the Law on the Principles of the National Movement of May 17, 1958.
Albeit that Article 8 of the Law of May 17, 1958, states that
" public appointments and offices are open to all Spaniards according
to their merits and capabilities". Candidates for jobs with the admin-
istration must present a membership card of the glorious National
Movement in order to be admitted to the written examinations.
This card is issued by the Department of Information and Investiga-
tion of the Party. There is no appeal in the case of refusal to deliver
such a card, as was decided by the Supreme Court (decisions of
September 25, 1956, and April 24, 1957).
It may be deduced from the legislation analyzed above that the
position and political importance of the Falange have been subject
to constant variations. Nevertheless this organization has retained
the functions with which it was vested with regard to the organization
of the syndicates. The syndical organization has become the prin-
cipal, and since 1958, the ultimate citadel of the Falange. "
M. THE NATIONAL SYNDICALIST COMMUNITY
If it can be said that the State dominates the single pa.rt. then
it can also be said, that the single party dominates trade union or-
ganizations or, more exactly, that the State doinnatjie *yndical
organization by means of the single party. The Decrec of .-\ueaisi -,
1937, which contains the first statutes of the single party. ga'e ihe
Falange the power to create and maintain syndccal org.nizntions
capable of supplying the agents to supervise the labour force aid
the production and distribution of goods. According to the terms
of the Decree, the organizations' leaders were to be conscripted
into the ranks of the Falange and to be guided by the leaders of
the Falange in order to ensure the subordination of the syndical
organization to the national interest and to the ideals of the State.
Furthermore, the national direction of the syndicates was to be entrusted
to a single active member and its internal organization was to be set
up with the vertical hierarchy of a creative, just, and well-ordered
The principles determining the ideology, structure, and organization
of the syndicates, are set forth in Chapter XIII of the Labour Charter
of March 9, 1938, the essence of which is as follows:
(a) The national trade union organization of the State shall
be based on the principles of unity, totality, and graduated authority
(Chapter XIII, Article 1).
(b) All factors of economic life shall be incorporated in vertical
unions according to branches of production or services (Chapter
XIII, Article 2).
(c) The vertical union shall be a public body incorporating
in a single organization all elements which are engaged in the economic
process in a specified service or branch of production; the union
shall be organized in hierarchic grades under the direction of the
State (Chapter XIII, Article 3).
(d) The direction of the unions shall devolve necessarily upon
the militant members of the Falange (Chapter XIII, Article 4).
(e) A vertical syndicate shall be an instrument in the service
of the State and shall constitute the principle medium through which
the State will put its economic policy into effect (Chapter XIII,
Of the three principles ihich underlie the National Syndicalist
orgJnization-unity. toialit'. and hierarchy- and which are defined
in the Labour ChIrter. the principle of unity has been consecrated
bi the La\\ of Jantar; 2t, 1940, concerning Syndicalist Unity.
According to this La the vertical syndicates are the only ones
vhich ire legal, recognized; free trade unions are forbidden and
the la% governing cooplcri'ies abrogated. The terms of the Law
are. c\plIct :
Sic.c'in I- The :.nridicalli .-iganization of the FET and theJONS shall be
the s..ole s:.ridic.l o:.rgarniziau.:n which the State recognizes as a legal person;
ithe i.ite h.dll not permni ih. existence of any other organization with similar
Section 2: From the date of publication of this Law, all associations which
were created to protect or represent economic or class interests, wholly or in
part, whether they are called trade unions, workers' associations, employers'
associations, guilds, etc., shall be incorporated in the syndicalist organization
of the Movement.
Section 3: From the said date the activities of the said associations shall
be subject to the discipline of the Movement, under the supervision of the
National Trade Union Office (Delegacidn Nacional de Sindicatos).
In order to put into effect the principles formulated in the pre-
ceding regulations and in conformity with which the various local
and national Falangist syndicates were created de facto, the general
organization and structure of the syndicates were laid down in
the Law of December 6, 1940. The following passage is taken from
its introductory explanation:
The regime's system of trade unions does not, therefore, represent a private
group upon which the State has conferred a greater or lesser degree of author-
ity, but in accordance with the principles embodied in the Twenty-Six Points,
under which Spain is economically a huge union of producers, syndicalism
has become the political form adopted by Spain's entire economy. All
those who contribute to our nation's power, through their participation in
a branch of production-as members of our movement-are organized into
The entire sum of Spain's productive force (employers, techni-
cians, and workers) is called the National Syndicalist Community.
It has been defined as an active unit in the discipline of the Move-
ment (Section 1 of the Law of December 6, 1940).
The national delegate of the syndicates occupies the highest
position in the pyramid of the syndical organization. Since 1958, these
functions have been taken over by the Minister Secretary-General
of the Movement.
The national delegate takes over the political direction of the
"National Syndicalist Community" by means of the national
syndicates which are, in turn, divided into local and provincial
syndicates. The statutes of each national syndicate must be approved
by the Caudillo, upon the initiative of the national delegate, who
is, moreover, appointed by the Caudillo. Again, it is the Caudillo
who appoints the chief (jefe) of coach national \ndica~l.-ticnti\-
four chiefs in all.
The chief of each national s\rndicate is aided in his adinis-
trative tasks by deputies provided Ior b.\ the statutes o each sy indicate.
These assistants, who along \ith a director 'form the central Junia
of the syndicate, must be appointed b\ the Secretar.N-General of
the Falange on the proposal or the national delciatc
The national delegate appoints the pro incial delegates \ho
are responsible for the political administration of thL provincial
syndicates (the total number of s;ndic.jic in a i'ren proincei
Each provincial syndicate is admini'tcred b\ a director. appointed
by the chief of the national syndicate. \ho is, in turn. appointed
by the Caudillo, as we have already said
The same system of nomination, rom the top to the bottom "
is applied on the smaller scale to local organization aid the political
administration of the syndicate. within n a gi\en local area is assumed
by a local area delegate of the. ndicatcis.
After the end of World War II. the organization or the sy ndcates
underwent a certain democra:.izin process, as did the other institu-
tions of the Franco regime. This process howeIcr had err Ittle
effect. From then on, the workers elected their on represerntar.i\,
to the committees of the industrial unrdertak'ngys ialace';o. 'who
in turn elected workers' repre-enlattnes to a proTincial assembly\
These provincial representatives designated the vor.ers' reprc.ent-
atives to the national assembly of that particular professional
field. However, the lists of candidates kere drjav.n up h i the Falan-
gist officials of the syndicate's Moreo'er. the pov.crN of ihese
committees and assemblies are sirictl\ Iimited to consuliaiioin.
At the very most they are permttiLd to e'.press certain complaints
among their own members. Thi', tate of' affairs exists also %lherc
the syndicates' congresses are concerned. This %as \,ell e\idenced
in the second Congress of Syndicates 'hicch lool place ii the month
of March 1962. Jos6 Solis Ruiz. minister Secretar\-General of
the Movement and national delegate of the s',idccat..s. stated at
the time that each person should he gi\en the opportunity\ of ex-
pressing his own point of vie\\.
If the presiding members of the Congre.. attempi -,i imnpoe their .oinrie i
or if they do not allow you an mIeajure of dJ~,cjlion ainong \ouric:les.
you may protest. Indeed we irnie '..u to e\prcre Noulr .).%il opinion;.
You have the right to make suggestion. propo.-ition'. and reciommenda.ions.
all of which will be taken up hb Ihe nrlnonal delegare. Then alier .na.i.:i
they will be submitted to the Secreiar:,-General o.f til MNloe.mcnm. and be
subsequently given to the Cau.llo HoAecr. and Thi; I repeat. in.sn'uch
as you are national syndicalisis. hlit, desire a strongg lruIn ni.-te-Tient. %e
shall open a discussion and in rno r a, permni ourfetlc, I.u 'ira., aaJ froITm [he
chosen path. Nothing more than thiis fIllo.'-mem br; Arrnha E-pasia'
2 ABC (Madrid), March 8, 19(2.
It is ., idei that the organized mass of workers in these Spanish
vertical syndicates are today as firmly disciplined and dominated by
the leaders of the National Movement as they were in the past. Since
the National Movement is itself dominated by the Caudillo, who is
Chief of State and of the Government, the syndicates are nothing
more than an additional part of State machinery.
On August 13, 1956, the International Confederation of Free
Trade Unions filed a complaint with the International Labour Office
against the Spanish Government, stating that the Spanish syndicates'
organization did not represent an expression of the free will of the
Spanish workers, but constituted instead, a hierarchical, totalitarian
organization imposed upon them and entirely subordinated to the
It is also interesting to know that in a letter of November 15, 1960,
addressed to the Minister Secretary-General of the Movement and
national delegate of the syndicates, Cardinal Pla y Daniel, Primate
of Spain, recalled that, as early as 1956, the Archbishops of Valladolid
and Saragossa, as well as the Cardinal himself, had in the course of
an interview with General Franco emphasized the fact that in their
eyes the representation of workers within the Falangist unions was
not authentic ".
At the aforementioned second Congress of Syndicates the first
commission submitted a report on the reform of syndicate structure ".
This report, presented by Mr. Pio Cabanillas, Mr. Emilio Romero,
director of the daily paper of the syndicates, Pueblo ", and Mr.
Chozap, proposed that the syndicate organization be transformed
into a federation consisting of two separate associations, one composed
of workers, and the other of employers, and that all the officials be
freely elected. In reality this proposition tended to modify the cor-
porative character of the vertical syndicates and to partly remove them
from the control of the political leaders of the Movement.
The old guard Falangists, among whom the former Minister
Fernandez Cuesta was prominent, opposed this proposal, arguing
that it was "unconstitutional", on the one hand because it did not state
explicitly that the syndicate organization must be submitted to the
political direction of the National Movement, and on the other hand
because it tended to replace the unitary syndicates, which were the
most original feature of Spanish syndicalism, by associations dividing
the workers and employers into two separate groups.
Following a motion by Cuesta, asking for the revision of the report
on the improvement of the syndical structure, the Commission decided,
by a vote of 83 to 73, to appoint a sub-commission entrusted with the
task of preparing a new text. To all appearances, then, the attempt
at reform has been defeated.
IV. LEGISLATIVE POWER
A. Legislative Power of the Chief of State
It has already been pointed out that the Junta for National Defence
had invested General Franco with all the powers of the new State
by the Decree of September 29, 1936.
The allocation of legislative power to the Chief of State was
explicitly corroborated by the Law of January 30, 1938. Section 17 of
this Law specifies as follows:
The power of establishing legal norms of a general character is vested in the
Chief of State who assumes all the powers of government by virtue of the
Decree of the Junta for National Defence of September 29, 1936. The deci-
sions and resolutions of the Chief of State, after deliberation on the part of
the government and following a motion of the Minister concerned, will
take the form of laws, whenever they bear upon the organic structure of the
State or when they constitute the principal rules of the country's legal orga-
Section 7 of the Law of August 8, 1939, on the reorganization of
the central administration of the State, extended the legislative powers
of the Chief of State still further by authorizing him to decree legal
norms of a general character even if they are not the result of
deliberation by the Council of Ministers ". Provision is made that in
such cases the Chief of State will subsequently make known his
provisions and resolutions ".
This legislative power is further confirmed in the preamble to the
Law Creating the Spanish Cortes of July 17, 1942:
Since the supreme legislative power is in the hands of the Chief of State,
following the terms of the Laws of January 30, 1938, and of August 8, 1939,
the agency which is about to be created will be both a means of cooperation
in matters of legislation, as well as a self-limiting principle for a more syste-
matic establishment of power.
Article 1 of the same Law shows that the principal mission of the
Cortes consists in the preparation and elaboration of laws, subject
to the concurrence of the Chief of State "
B. The Legislative Power of the People
The Law on the Referendum of October 22, 1945, in certain cases
connects the people with legislative procedure. The following is taken
from the introductory explanation to this Law:
All Spaniards are enilled to co-operate in the tasks of the State through
the natural in-imlluori; conntiituied by the family, the municipal corporations,
and the ; nd.caic'. .and the baic laws, which are to give new life and greater
%poniarre't to thee Ini-titutmon, '.. within a system of Christian life in common,
ha irg been puhl.-hed i tnh the object of protecting the nation against the
error ohberTed in the political ht-'tory of peoples which cause the will of the
nation to be .iuplantiid b\ the objectivee judgment of its rulers in matters
of nimaor inlpori.anc The Head of the State, invoking the faculties con-
fIrred upon him bI the Acti of the thirtieth of January, 1938, and the eighth
of Auig)st. 13'). ha, thought fit to institute a direct consultation of the nation
b\ public rl'crcndurn \.hen he considers such consultation opportune and
adishable o,. ire ILt the esieptional importance of the laws or the uncertainty
ol public opinion
Also Article 1 of the Law states:
When the exceptional importance of any law makes it advisable or the public
interest so demands, the Head of the State shall be empowered, in order to
serve the nation more faithfully, to submit to referendum a bill drafted by
Obviously, the exercise of this right by the citizens is at the dis-
cretion of the Chief of State. Nevertheless, an obligatory legislative
referendum for a certain category of laws has been introduced by the
Law of Succession of 1947. Article 10 of this Law states as follows:
The fundamental laws of the nation are: the Charter of the Spanish people,
the Labor Charter, the constituent Law of the Cortes, the present Law of
Succession, the Law of National Referendum, and whatever other law shall
be latterly promulgated as fundamental.
To repeal or modify these laws, a national referendum shall be required, as
well as the approval of the Cortes.
It may be noted that the obligatory referendum is only destined for
the abrogation, or the total or partial revision of these laws, and not
for the passage of new fundamental laws. Thus, the most recent of the
laws, the Law on the Principles of the National Movement of May 17,
1958, was not submitted to a referendum. It was decreed by the Chief
of State without even consulting the Cortes. He confined himself to
reading it before the Solemn Assembly of the Cortes on May 17, 1958,
introducing it with the formula: I, Francisco Franco Behamonde,
Caudillo of Spain, conscious of my responsibility before God and
History, do promulgate the following in the presence of the Cortes of
the Kingdom ..."
The Law on the Referendum was only applied on one single occa-
sion, on July 6, 1947, when the Law on the Succession to the Chief of
State was submitted for national approval.
Of the votes cast, there were 12,628,983 votes for and 643,501
against, with 320,877 spoilt papers.3
3 Salvador de Madariaga, Spain: a Modern History (New York: Frederick A.
Praeger, 1958), p. 599.
C. The Participation of the Cortes in the Making of Laws
1. COMPOSITION, NOMINATION AND ELECTION OF THE CORTES
Article 8 of the Law on the Principles of the National Movement
lays down the representative character of the State and submits as
a principle that The participation of the people in the work of
legislation ... shall be effected through the family, the commune, the
syndicate and other organizations endowed with an inherently
representative nature and recognized for that purpose by the law.
The rules governing the composition and election of the Cortes
reflect this principle.
The composition of the Cortes has been established definitively
by the Law of March 9, 1946, at the time of their first reelection.
By virtue of this law, the procuradores are divided into three categories:
(a) The members whose function in law in this capacity derives
from the nature of the office they fulfill, the duration of their term
being dependent upon the exercise of these functions. They are:
the Ministers; the national councillors of the Falange; the Presidents
of the State Council, the Supreme Court, and the Supreme Court of
Military Justice; the mayors of the 50 provincial capitals in addition
to those of Ceuta and Melilla; the Chancellors of the Universities; the
presidents of the Spanish institute and of the Supreme Council of
Scientific Research; the president of the Institute of Civil Engineers;
and the chiefs of the twenty-four syndicates.
(b) The members appointed by the Chief of State are from among
the most eminent persons in civilian, ecclesiastical, and military life.
They are fifty in number.
(c) The elected members. These are divided into syndical
members, not to number more than one third of the total number of
the members; members representing the municipalities, 52 in number
(one for each province); members representing provincial deputations
(general councils), also 52 in number; and members representing
certain corporations (lawyers, doctors, members of the academic
profession, etc.), 18 in number.
The 52 representatives of the provincial deputations and the
52 representatives of the municipal councils are in fact the only ones
who might-at least to a certain degree-be said to represent the
population at large: The Executive is indirectly associated with the
election of the members listed in category (a) above, because it
appoints them to the offices and positions by virtue of which they
2. THE JURISDICTION OF THE CORTES
As Luis Sanchez Agesta, professor at the University of Granada,
The Cortes does not correspond to the type of parliamentary assembly,
from which a government, controlled by it, originates. On the contrary,
one has downright to ascertain a power of direction and control exercised by
the Chief of State over the Cortes, through the mediation of the President
of the Cortes (convocation and adjournment of the meetings, establishment
of the agenda, appointment of the Committees, see Standing Orders of the
Cortes of December 26, 1957, Section 14, Subsections 2, 4 and 19; Section 61,
The President need not be a member of the Cortes.
Therefore, he is a heteronomous organ, who is appointed by the government
for an unlimited time, an organ directing the activities of the Cortes ...
In discharging his most important functions he must act in accordance with
The Cortes is essentially an advisory body. First of all, its
jurisdiction is also limited ratione material. Following Article 10
of the above-mentioned Law, its advice is confined to Laws relating
to one of the following matters:
(a) Ordinary and extraordinary budgets of the State;
(b) Important economic or financial bills;
(c) The creation or amendment of the system of taxation;
(d) Bank and currency regulations;
(e) The economic activity of the syndicates and legislation
fundamentally affecting the national economy;
(f) Basic laws regulating the acquisition and loss of Spanish
citizenship and the rights and duties of Spaniards;
(g) The political-legal organization of the institutions of
(h) The regulation of local government;
(i) Fundamental aspects of civil, mercantile, social, penal, and
(j) Fundamental aspects of the judiciary and public adminis-
(k) The regulation of agriculture, commerce, and industry;
(I) The laws affecting national education;
(m) Any other law which the government on its own initiative,
or on that of the respective committees of the Cortes, should decide
to submit to a full session of the Cortes. The government may also
submit to full session measures which do not have the character of law.
The Cortes is also competent in the ratification of treaties which
affect the items listed above (Article 14). The drafts of laws are
SLuis Sanchez Agesta, Constitutional Developments in Spain since, 1936 ",
in Yearbook of the Public Law of the Present Time, (Tiibingen, J. C. B. Mohr),
New Series/Vol. 10, pp. 410-411.
5 Ibid., p. 412.
normally prepared by the government. Before being submitted to
the plenary assembly, they should have been pre\iousl\ studied
and reported on by the respective common ees (.Artcle I I. The
actual examination of law drafts is carried out bhi these committees,
which also discuss and decide upon possible anendments.
In this way they exercise a certain influence upon the regulalnon
of matters submitted to them. It is therefore of considerable unport-
ance to the government not to lose all control over the composition
of the parliamentary committees. For this reason the la \ has
provided that the committee members be appointed bi the President
of the Cortes.
The text of a draft law is rarely discussed ifter it h.s been deli-
berated upon by the committee. With ,erN Ife% exceptions it is
always adopted by the plenary assembly According to the terms
of Article 16 of the Law, the president of thi Corte, ,hall send
Laws drafted by the same to the government fo r other approval by
the Chief of State ". The latter is under no obligation to gr:nt thji
approval; he may alternatively return the draft It:v. to the Cortes
for further study. So far, General Franco has normal[\ salnctioned
the draft laws as amended by the respective committees of the Corres.
The Chief of State may legislate without consulting the Cornes in
matters not enumerated in Article 10 of the La3\ Then. he exercises
the legislative power provided for by the Lan ofl Januar; 30. 193>.
and August 8, 1939, which are not limited in an: w,\ The cllf-
limitation mentioned in the preamble to the Laq\ creating tile Corrte
does not apply here.
Neither is consultation of the Cortes obli.leorn ini the case of
war or emergency. At such a time the goterrnent ma; seittlc b:,
decree those matters on which it is obliged to consult the Core, ~ i
normal times. Immediately after the pro.mulgaiion of the de ree it
must submit the decree to the Cortes (Article 13 of the La\ In the
original text, this sentence was completed bh, tle Iolloiing %ords:
"for study and to be turned into a law wirli suggested modilicatrioins
which might be thought necessary"; this pair of the selence \.as
suppressed by the Law of March 9, 19461 A State o l Emeriencs
and a State of War are declared by means of a decree b\ the Go ern-
ment who must then inform the Cortes itlout dela-. ( La~J on Public
Order of July 30, 1959; Sections 25, 26, 33o.
D. The Legislative Power of the Government
Spanish law contains certain provisions pro iding for the delegation
of legislative powers to the government. Thus. in ith L.i\ on the
Legal Structure of State Administration of Jul, 2n. 1957. Section 10
states the following:
The Council of Ministers has the power of submniing the draft o1 a Lav. to
the Chief of State, if this power has been delegated i he Go.emrnrrent. by
a legislate act of the Cortes and if the draft of this law has been approved
b. tlie State Council at a plenary assembly.
In order to tinderstand this provision, it must be recalled that the
La',. ol' July 26. 1957, presupposes that the functions of Chief of State
and President of the Council are exercised by two different persons.
Tis- is evident from the introductory explanation where it is stated
that: The pr.Menlt ie\t does not devote any of its provisions to the
Chief of State, because the powers and prerogatives of the latter,
respected as they .re in their entirety and considering their essential
character, must be defined by a fundamental law." Inasmuch as
the functions of the President of the Council are performed by the
Chief of State, and inasmuch as the latter is invested with the legis-
lative powers defined by the Laws of January 30, 1938, and September
29, 1939, the delegation of legislative powers to the government by a
decision of the Cortes would be an extremely rare occurence. In
practice, we note examples of delegation of power in the two following
1. The so-called organic laws contain a clause bestowing upon the
Executive the right not only of making rules and regulations but also of
legislating, in complete independence, within the area delimited by
the fundamental laws.
2. The legislative acts adopted by the Cortes occasionally authorize
the Executive to revise and combine different legal texts into a single
text. A typical example is the Decree of September 21, 1960, which
will be analyzed below.
V. THE POWERS OF THE EXECUTIVE
A. Organization and Powers
The Law on the Legal Structure of State Administration of July 26,
1957, lays down the manner of organization of the Executive and
upper administrative authorities (Council of Ministers, interministerial
committees, President of the Council of Ministers, Under-Secretaries
of State, Directors-General, i.e., Heads of Departments) and defines
According to Section 2 of the Law, the highest executive powers
of the administration are: the Chief of State, the Ministerial commit-
tees, the President of the Council and the Ministers. All other State
administrative bodies and authorities are subordinated to the Chief of
State or the respective appropriate Minister."
The Law does not define the position and powers of the Chief of
State. According to the introductory explanation his prerogatives and
powers are to be the subject of a fundamental law. For the time being,
they are governed by Laws and Decrees passed during and immediately
after the civil war and which have already been mentioned on several
occasions, e.g., the Decree of September 29, 1936, appointing the Chief
of State, and the Laws of January 30, 1938 and August 8, 1939.
Inasmuch as General Franco is both Chief of State and Head of the
Government, the two offices are now virtually one and the same. On
the basis of the Law of July 26, 1957, cited above, it may be inferred
that the powers conferred thereby on the President of the Council
were amalgamated with those attributed to the Chief of State by earlier
The Chief of State appoints Ministers who are responsible to him.
He alone has the power to dismiss them. It seems appropriate to list
the powers attributed to the Council of Ministers, as set out in Section
10 of the Law of July 26, 1957:
1. To approve the over-all planning of government action and the major
policy lines that govern all action entrusted to the Ministries.
2. To establish the definitive text of draft laws, especially budgetary laws
on the basis of draft projects submitted by the competent Departments,
either directly of after previous consultation with the Ministerial committees;
to send draft laws to Parliament (The Cortes) and to withdraw them when
3. To propose decree-laws to the Chief of State in time of war or by reason
of a state or emergency. The Chief of State will evaluate the proposal in
consultation with the appropriate committee as provided in Article 12 of the
Law Creating the Cortes.
4. To submit to the Chief of the State all projects for statutory provisions,
whenever the government is vested with special powers voted by Parliament
and the opinion of the Council of State in plenary session has been obtained.
5. To authorize the negotiation and signature of international treaties,
agreements or conventions, or adherence to existing ones.
6. To ask the Chief of State to consent to the regulations needed to implement
parliamentary enactments, subject to the opinion by the Council of State.
7. To debate proposals-after they have been submitted to the Chief of the
State-for appointments and revocations of high functions within the
framework of public administration, e.g., for posts like that of Ambassadors,
High Commanders of the Armed Forces, Under Secretaries of State, Heads
of Departments, Governors of the Provinces, Administrators, and the Gov-
ernors, Administrators, and Secretaries of State for the African provinces.
The proposals shall be made by the Head of the appropriate Department of
a Ministry, without neglecting the provisions delegated to the military com-
manders as under the organizational laws of the army.
8. To establish or dissolve Ministerial committees according to the require-
ments of the administration.
9. To concede a total or partial suppression of Articles 12, 13, 14, 15, 16,
and 18 of the Charter of the Spanish People, determining the extent and
duration of this disposition, and to declare or waive it in accordance with
the Law on Public Order, a state of emergency, alarm or war.
10. To call general elections as provided by law.
II. To concede the non-performance or the total or partial suspension of
the verdicts given by Administrative Disputes tribunals in the form and
instances provided for by the law governing the said jurisdiction.
12. To decide such appeals which, under the provisions of the law, are set
before the Council of Ministers.
13. To give a decision in all matters in which a Minister having sought
the mandatory opinion of the Council of State or the Council of National
Economy disagrees with such opinion, and to decide on the proposals put
by those Councils to the Minister.
14. To determine the restrictions placed on currency transfers and take such
steps as may be dictated by the economic situation of the country, without
prejudice to the powers of Parliament.
15. To authorize outlays of more than one million pesetas, provided they
are effected from credits relating to an initial outlay or investments.
16. To authorize transactions in which the Treasury is concerned after
hearing the opinion of the Council of State.
17. Any other power conferred by law or government edicts; and in general
to debate those matters which should be settled by a statutory decree, or
those whether by reason of importance or repercussions upon the life of the
nation require the knowledge and opinion of all members of the government.
B. Maintenance of Law and Order
The maintenance of law and order is one of the main duties of any
government. Under the provision of the Law on Public Order of
July 30, 1959, the Spanish Government has been given very broad
powers for carrying out this duty. This Law will be discussed in greater
detail in the chapter dealing with the defence of the regime. Suffice it
to say here that only the government is empowered to declare -%ar or
a State of Emergency. According to Section 25 of the L;a on Public
Order the government has power to decree a State of Emergcnc, in
the whole, or part, of the National Territory if law and order I, threat-
ened and can no longer be maintained by ordinary means O)nly the
government can decide when law and order has brorkn do\,n and
when the legal means are no longer able to cope with the isnuaion.
Its sole duty is to bring to the notice of the Cortes the Decree decla;ring
the State of Emergency.
If the government decides to resort to Section 25 of the Law on
Public Order, it acquires a large number of special powers. It may,
- prohibit pedestrian and vehicular traffic in the streets;
- prohibit gatherings;
- restrict the free movement of persons;
- establish safety zones which the public is forbidden to enter or
- arrest an individual without having to comply with the procedure
laid down by the Penal Code;
- decree the compulsory notification of any change of address or
- order the temporary deportation of suspects;
- subject suspects to enforced residence in a specified zone;
- institute censorship of the press, television, radio, films and any
public spectacle, or to suspend them if it considers that they may
directly or indirectly lead to a breach of public order.
C. Administrative Law
The two important enactments on this subject are the Administra-
tive Procedure Law of July 17, 1958 (ley de procedimiento administra-
tivo) regulating the relations between the administration and indivi-
duals and the Administrative Justice Law of December 27, 1956 (ley
regulatory de la jurisdicci6n contencioso administrative) regulating the
organization of the Administrative Disputes Divisions of the ordinary
courts and the procedure to be followed before these courts.
1. The Administrative Procedure Law of July 17, 1958, which was
inspired by advanced ideas, was passed with a view to modernizing
the administration by simplifying it and improving its efficiency. At
the same time, the Legislature endeavoured to associate the people
with the activities of the administration and to strengthen their legal
position before the latter. When introducing the Bill before the Cortes,
the government spokesman stated in this connection:
One 'o the grcal objectles of this Law is to win the cooperation of the popu-
laion The German Professor Forsthoff said, that administrative law has,
in recent )ears, I'.lloued a trend towards substituting for the system of res-
trictions a policy of collaboration with the population. This is found to be
the guiding principle of many Sections. E.g., Sections 33 and 34 provide
for the establishment of an information, suggestions and complaints section
in every non-military Ministry. The functions of such sections are the
giving of information and the receiving of suggestions and complaints; they
are to study and evaluate proposals put forward by officials and the public,
and also to attend to complaints which might result from delay, negligence
and other anomalies of officialdom. All autonomous organizations and
all administrative agencies are to have such a section.
Here special mention must be made of Section 87, which provides for a public
hearing, whenever the nature of the proceedings is suitable for publication
or if the matter in question affects organized professional, economic or social
groups; there is also Section 130-dealing with the drafting of rules and
regulations-which determines that: 'whenever possible, and when the nature
of the subject matter makes it advisable, a syndicate organization or any
other entity which is designated by the law to represent or protect the interests
of organized groups, must be given an opportunity to expound its views in
a detailed report.'
The procedure to be followed before the adoption of new adminis-
trative regulations or before making an administrative decision in-
volving an individual is laid down in detail in Section 67 to 91 of the
Law. Section 91 guarantees to persons who are parties to proceedings
the right of being heard before an administrative ruling is made.
But, in fact, owing to the extreme complexity of the administration
and of its activities, a large number of special forms of procedure
have come into being alongside this general procedure. A list, which
is not exhaustive, of these special forms of procedure may be found in
the Decree of October 10, 1958. Among these special forms of proce-
dure attention is particularly directed to those concerned with expro-
priation, free pardons, the acquisition or loss of nationality, the reim-
bursement of taxes and prosecution for tax frauds. In these special
forms of procedure, the appearance of the parties is always provided for.
2. The main rules governing disputes with the administration are
laid down in the Administrative Justice Law of December 27, 1956.
The basic principle is that all decisions made by the Executive and by
the administration, whether concerned with the adoption of new
regulations or with individuals, are subject to the control of the Judi-
ciary (Administrative Disputes Divisions of the Courts of Appeal and
of the Supreme Court). This system is theoretically more liberal in Spain
than in most other western European countries.
As regards decisions concerned with the adoption of new regula-
tions, these can be challenged in two distinct ways:
(a) Either the applicant challenges directly the new regulations
adopted by the administration, in which case the challenge must be
entered within two months from the date of publication of the new
regulations in the Official Gazette; challenges may be entered by
corporations or institutions representing the general interest affected
by those new regulations. However, should the application of the nek
regulations not give rise to the making of administration decision
concerned with individuals, they may be opposed by an, iidri.dual
or by any corporate body.
(b) Or the interested party waits for a decision to be m.ide by
the administration under the new regulations, and then opposes this
As regards administrative decisions concerned with individuals,
the principle of control by the Judiciary over the actions of the admi-
nistration admits of some exceptions. Only the two most important
ones will be mentioned here.
According to Section 2, paragraph 1, of the Law of December 27,
1956, civil law or penal law matters which come under the jurisdiction
of ordinary courts are not subjected to the jurisdiction of the Admi-
nistrative Disputes Divisions, nor are matters which, although by
their nature would normally come under the jurisdiction of Admi-
nistrative Disputes Divisions, have been subjected by law to the
jurisdiction of special tribunals. These provisions are especially
concerned with those cases in which the administration acts in a
private capacity; for example, when purchasing a building through
one of its Departments, or else those cases in which a civil servant or
an agent of the administration commits a penal offence.
Moreover the Law of December 27, 1956, especially excludes from
judicial control a series of administrative actions of a political cha-
racter. It should, however, be added that no legal provision defines
the meaning of the words administrative actions of a political charac-
ter ", and the administration by giving them the broadest possible
interpretation, thus succeeds in placing many actions, often among
the most important, beyond judicial control.
The Law only mentions a few examples of "political actions ":
decisions associated with the government's political activities,
such as those concerned with the defence of the national territory,
international relations, the internal security of the State, and the
organization and leadership of the army;
decisions concerned with the scope of the administration's ordi-
nary and emergency powers;
measures taken in exercising police powers against the press,
broadcasting companies, cinemas and theatres;
decisions made under the Code of Military Law (comprising
military penal law and penal procedure);
actions which an express provision of the Law places outside the
jurisdiction of Administrative Disputes Divisions.
It is thus mainly the actions of the Chief of State and of the Coun-
cil of Ministers that the Law qualifies political actions and places
outside the control of the administrative tribunals. In practice,
judicial control over the decisions of the local government authorities
and of the central administration is excercised in an effective manner.
A large number of appeals are made each year against decisions of
this kind and the appellants have often been found to succeed.
Decisions made by the Chief of State or by the Council of Ministers
however enjoy de facto immunity, inasmuch as they can almost
always be qualified political actions ", thereby avoiding any form
of judicial control.
VI. THE JUDICLARY AND THE BAR
A. The Ordinary Courts
1. BASIC LAWS
The main statutes concerned \"ith the Spanish judicial s. stem
- The Organic Law on the Judiciary of September 15. 1870:
- the Supreme Court Law of Jul\ 17. 1945:
- the Decree of November 2. 19-5. appro', img the regulations
governing the Judicial School:
- the Law of December 18, 1950. concerned ith the Re-organijation
of the Judicial School;
- the Law of December 20. 1952 pro.,ding Ior the inspection
of Justice, of the Public Pro'ecutor'\ Department and of the
- the Decree of December II, 1953. pro,,iding for lie inspection
of courts and tribunals;
- the Decree of February 10. 1956, prorriulgating organic regulations
governing career judges; arnd
- Article IX of the Fundamental Principles of the National ,Mve-
ment (Law of May 17, 1950,.
2. APPOINTMENT OF JUDGES
In Spain, the preparation for judicial ollice is ubtainrd riov\.'daj-%
at the Judicial School, admittance to v\hich is b. \%ay o1 compctiti'c
examination open to lay Spanish male citizen, holding a la\, degree
and over 21 years of age. In fact. candidates munst alo b- -.upporters
of the National Movement and be able to pro\e their ~Nmrpathv
for this organization; other' ic th-ir qualificatons .ire likely to
be overlooked. The governmnliti mLan.i- t0o jppoini to judicial
office only citizens who are devoted tI the regime and to b.ir those
known for their independent turn of mind. In tins. the goierrmenti
has only fully succeeded in thc upper rankls of the Judiciary. In
general, the Judiciary is jealous of us tradition of independence.
It is because of its desire to nflulence recrLitnlimen to th; Judiciary
that the government has founded the Judicial School to \0hich it
has entrusted the selection and training of laIt graduates v.ho embark
on a career on the Bench or as public prosecutor.
Judy:JL in c.'Iuri- of first instance (de primera instancia y instruc-
1,61) i;re appointed by the Minister of Justice from among graduates
of the Judicial School. Judges of the Courts of Appeal (audiencias)
and of the Supreme Court are appointed by the Council of Ministers'
Decree on the advice of the Minister of Justice.
Judges of the first, second and sixth Divisions of the Supreme
Court, these being the Civil, Criminal and Labour Divisions,
belong to the Judiciary and are appointed by the government from
among Courts of Appeal judges proposed by the Council of Justice.
Judges of the third, fourth and fifth Divisions of the Supreme Court,
those constituting the Administrative Disputes Division of the Sup-
reme Court who control the legality of the administration's actions,
are appointed under the conditions prescribed by the Administrative
Justice Law of December 27, 1956. According to Section 20 of
this Law, one third of the members of the Administrative Disputes
Division of the Supreme Court are selected from among career
judges, one third from among magistrates who are permanent mem-
bers of the lower Administrative Disputes Divisions and who have
been sitting on these tribunals for over ten years, and one third
from among law graduates who belong to the administration or
are members of the Bar.
Rules introduced on July 25, 1956, have altered the wording
of the oath taken by judges being sworn into office. The oath
now runs as follows: "I swear before God and the Holy Gospels
to obey unconditionally the commands of the Caudillo of Spain,
and also the laws and provisions attached to the exercise of my
office, with no motive other than the accomplishment of my duty
and the good of Spain. "
It seems difficult to reconcile such an oath with the requirements
of a sound and impartial administration of justice.
The conditions for promotion are laid down in the Law of De-
cember 20, 1952, and in the Organic Decree of February 10, 1956.
The judges of Courts of Appeal, other than those of Barcelona and
Madrid, are promoted according to seniority. In theory, the same
rule applies also to the Courts of Appeal of Barcelona and Madrid,
but in practice, in addition to the seniority requirement, the approval
must also be obtained of a special body known as the Council of
Justice whose members include the President and Public Prosecutor
of the Supreme Court, and the President and one other judge of
each Supreme Court Division. The Council of Justice not only
controls the promotion of judges, but can also play a decisive part
in their careers and pronounce on their incapacity without having
to give reasons. Its origins go back to the days of General Primo
de Rivera's dictatorship. The present body was created by the
Law of December 20, 1952, for essentially political ends.
The appointment of the President and Public Prosecutor of the
Supreme Court is entirely within the government's discretion. The
Presidents of Divisions are selected from among the Supreme Court
3. DISCIPLINARY MEASURES AGAINST JUDGES
The main rules concerning professional discipline are laid down
in the Law of September 15, 1870, as amended by the Law of Decem-
ber 20, 1952. Reference should also be made to the Law of February
19, 1939, which relates to the purging of State officials and which
specifies that judges may be dismissed on political grounds.
These Laws provide for two kinds of sanction: dismissal and
separaci6n del servicio (dismissal on political grouuds).
Under the provisions of Section 224 of the Law of September
15, 1870, as amended by the Law of December 20, 1952, a career
judge can be dismissed on any of the following grounds:
when he finds himself in one of the six classes relating to
incapacity7, or incompatibility8, listed in the Organic Law;
- when he has committed grave faults which, even though they
do not constitute penal offences, are detrimental to the dignity
of the Judiciary;
- when his civil liability has been recognized on one or more oc-
casions in the course of a lawsuit;
- when he is found guilty of loose living or of repeated negligence
which renders him unfit to exercise his profession.
Dismissal is by a decree signed by the Minister of Justice with the
approval of the Cabinet. The grounds for dismissal listed above have
existed since the Organic Law of 1870 came into force. But the
amendment of 1952 releases the government from having to consult
the Council of State beforehand, whereas before such consultation
was made compulsory.
(ii) Separaci6n del servicio
This measure must not be confused with dismissal. It is governed
by the Law of February 19, 1939, which was intended to enable
the government to exercise control over the attitude of State officials
I Among the Presidents of the six Divisions now in office, five have held,
before their present appointments, essentially political positions in the regime.
7 A judge is declared incapacitated if he suffers from a physical or mental
infirmity; if he has been convicted and has not been given a complete remission
of his sentence; if he is being prosecuted for any misdemeanor; if he has been
sentenced to a penalty involving loss of civil rights; if he has been declared bank-
rupt and has not been discharged; if he is being sued for debts without being
charged with an offence, if he has vices of a depraved kind, or if he has committed
acts which degrade him before the public (Law of 1870, Section 10).
8 There is incompatibility if he holds other public offices or political offices,
or if he holds a junior position before the courts (Law of 1870, Section 11).
towards the National Movement. 9 It can affect all classes of State
officials, including career judges.
According to Section 2 of this Law there is discretion in consider-
ing the taking of disciplinary measures in regard to the conduct
of State officials. All the circumstances have to be taken into account,
in particular their past records, the conditions in which the office
has to be carried out and the requirements of the administration.
It is therefore not possible to give a specific list of grounds which
would justify suspension; only some examples can be given, for
(a) all actions which have led to a sentence by military courts;
(b) the fact of having benefited from abnormal promotion
or of holding a position or carrying on work inconsistent with the
normal functions of a judge;
(c) the fact of having deliberately remained aloof from the
(d) generally, all actions or inactions which indicate an
unpatriotic attitude or opposition to the National Movement.
(iii) Dismissal and Suspension Procedure
Both of these disciplinary measures are outside the jurisdiction
of the courts. The decision is made by the government at the out-
come of an enquiry handled, in a case involving dismissal, by the
central inspector of courts and tribunals, and, in a case involving
suspension, by the bureau for purging State officials. This latter
procedure is secret, the only formal requirement being that the
respondent must be heard and be permitted to submit documentary
evidence in his defence.
A dismissed judge may lodge an appeal before the fifth Division
of the Supreme Court. But since this Division has the reputation
of being the judicial authority most amenable to the regime, potential
appellants usually avoid resorting to this alternative. A suspended
judge only has the right to apply for a fresh hearing before the Min-
ister of Justice. He can then learn of the charges laid against him,
answer them and resort to all available means in support of his
defence, but at no time is he allowed to examine the file.
B. Special Courts
I. LABOUR TRIBUNALS
The main statutes relating to the activities of these tribunals
are the Law of October 17, 1940, on labour tribunals, and the Decree
of November 14, 1958, on labour tribunal judges and registrars.
9 This Law was essentially passed to carry out a purge of the administration
after the civil war. It has, however, remained in force. A Law passed in 1941
has made possible certain rehabilitations.
The setting-up of labour tribunals is founded on the doctrinal
principles which form the basis of the Spanish syndicalist orga n iza ion.")
It was logical for national syndicalism to bring about the wciine-
up of a large judicial machine, known as the Magistratur' e/; 1' Ilti/,v.
which is independent of the ordinary Judiciary. These tribunals
are totally different, both in structure and operation, from the or-
dinary courts and tribunals. Once appointed to labour tribunals,
career judges leave the ordinary courts and henceforth depend
exclusively on the Ministry of Labour and no longer on the Ministry
Judges of the labour tribunals are professional judges and form
a separate judicial corps. Recruitment is made by competitive
examination open to Bench and public prosecutors having served
for over five years. Successful candidates are posted by the Minister
of Labour. They are appointed for life but their activities are
tightly controlled by inspectors.
Labour tribunals are considered to be tribunals of high intel-
lectual and moral standing. Proceedings before these tribunals
are free in the case of employees; they are mainly oral and less formal
than civil proceedings.
The structure of the labour tribunal system is as follows: at
the lower level come the tribunals of first instance. Each of these,
termed Magistratura del Trabajo, covers a given area. The judges
move around within their areas and hold itinerant hearings at the
most important centres. At the upper level comes the Central
Labour Tribunal which is the appeal tribunal. The Central Labour
Tribunal is presided over by a Director-General appointed by the
Minister without prior competitive examination. Finally as a
last resort, and only in certain cases, a further appeal can be made
to the Supreme Court.
The powers of the labour tribunals are determined either by the
legal relationship between the parties involved employerss and
employees), or by the subject of the action. According to Section 1
of the Decree of July 4, 1958, setting out the procedure to be adopted
in labour matters, labour tribunals may be called upon to deal
- the settlement of claims arising out of injuries incurred during
- disputes between employees and various State insurance bodies;
- disputes between employees and employers about the terms
of an employment contract.
10 See above p. 14 ff.
2. TRIBL'N.NLS FOR THE PROTECTION OF THE SYNDICAL
In addition to the labour tribunals, the Spanish judicial system
provides another kind of jurisdiction in the field of labour, i.e.,
the tribunals for the protection of the syndical organization or
tribunales de amparo de la organisacidn sindical, set up by an Ordinance
of January 12, 1948. These tribunals deal in the first place with
appeals against decisions made by the syndical hierarchy. The
Spanish syndical organization has very broad powers; it is this or-
ganization which, for example, gives or refuses permission to start
a new business undertaking or to found an agricultural cooperative;
it is this organization also which decides whether or not a contract
for the distribution of commercial films is valid. These tribunals
can moreover exercise a prerogative on matters of civil law; these
are the reclanmaciones con character facultativo. Supposing that
an individual has been wronged by a syndical decision, he can appeal
to the ordinary courts and claim damages; the Ordinance of January
12, 1948, authorizes him to refer the matter to a protection tribunal.
Prima facie, these reclamaciones con character facultativo appear
to have only little practical value. However, it must be remembered
that the single syndical organization has great de facto power. A
litigant who refuses to refer a civil action to the protection tribunal
is likely later to get into trouble with the syndical organization.
As a result, civil lawsuits are practically unheard of in certain parts
of the Spanish economy; this is, for example, the case in the film
industry to which the syndical organization is able to impose the
settlement of disputes before these special tribunals.
The provincial protection tribunals are chaired by the provincial
labour delegates whereas the chairmanship of the Central Protection
Tribunal is assumed by the national secretary of the syndical or-
ganization. Syndical officials thus pronounce judgment in complaints
and appeals against their own syndical organization. It is difficult
to see how such tribunals can be regarded as truly impartial.
3. MILITARY COURTS
In other countries of western Europe, military courts play in
peacetime only a secondary role which is restricted to trying purely
military offences, e.g., damage caused to military installations,
desertion and common law offences committed by servicemen.
In Spain, the position is quite different. Military courts constitute
one of the pillars of the existing regime, which regime was itself
brought into being by a military uprising. Their jurisdiction is
very broad in ordinary penal law matters and even more so in penal
law matters of a political character. The government has resorted
to rather odd devices for extending the jurisdiction of the military
courts to fields which are normally quite alien to them. Special
laws, in particular the Decree of September 21, 1960, have assimilated
to military penal law offences, certain common law offences and
political offences committed by civilians (see page 71).
At the lower level operate the courts-martial. Their members
are appointed by the competent judicial authorities (Autoridades
Judiciales), e.g., Captain-Generals of Regions, army Generals and
Admirals (Section 49 of the Code of Military Law). At the upper
level comes the Supreme Court of Military Justice which is the
appeal court. Its members are appointed by governmental decree.
The following also form part of the military justice organization:
- the special military judge for the suppression of extremist activ-
ities, who is an examining judge, and
- the special judge dealing with illegal propaganda.
C. Independence of the Judiciary
The absolute independence of judges is a fundamental principle
in any society based on legality and the Rule of Law. According
to Section IX of the Law on the Principles of the National Movement
of May 17, 1958, every Spaniard is entitled to an independent Judica-
ture, the access to which shall be free to all who are without suffi-
cient resources ". Yet this requirement is not in practice fully
complied with. The Executive, i.e., in the final resort the Caudillo,
exerts a definite influence on the Judiciary. This is achieved in two
ways. First, as already pointed out, the government appoints
at its discretion the holders of some of the key offices in the ordinary
courts. Secondly, and in particular, the government has set up
a large number of special tribunals which it tightly controls; as a
result, some essential fields of social activity escape the jurisdiction
of ordinary judges. The most important of these special tribunals
are, as has just been pointed out, the military courts which have
jurisdiction over penal law matters.
It is a fact that in Spain there is strong opposition to the regime,
which opposition is only kept under by means of restrictions on
the freedom of association and expression. This underground
opposition includes a large number of groups of highly differing
tendencies ranging from Carlist traditionalism to communism.
The regime thus has to keep a close watch on this opposition. More-
over, it must have resilient and effective means at its disposal for
repressing subversive activities. Accordingly, it has introduced
a set of extremely complex penal regulations. The application
of the special laws which have been passed to this end has been
entrusted to the military courts, and the Caudillo, in his capacity
of Commander-in-Chief of the Spanish Army, enjoys great authority
over officers of military justice.
D. Organization of the Bar
1. THE COLEGIOS "
Advocates practising in one area form a body known as a colegio.
From a disciplinary point of view, they depend on the sole authority
of this college ". Only university graduates in law may be ad-
mitted to the profession. Each college freely administers its own
affairs and enacts its own bye-laws and regulations. A General
Council, based in Madrid, coordinates the activities of these various
colleges. The statutory basis for practising at the Bar rests on the
Decree of June 28, 1946, defining the general status of the Bar, and
on the Decree of February 3, 1947, defining the status of these colleges.
A college of advocates frequently has in its midst practitioners
holding positions in the regime. They are numerous and their
voices are often decisive; principally they are advocates employed
in the syndical organization. Since they are largely dependent
on the regime, they will naturally be inclined to defend it. Their
action often succeeds in thwarting within their college moves which
do not meet with the approval of the regime. The failure of the
petition presented by the Madrid College of Advocates for the
abolishment of the Decree of September 21, 1960, is significant
of this state of affairs.
Many advocates nowadays consider that the profession should
be thoroughly reorganized by new laws which would amalgamate
existing statutory provisions in possibly recast form bearing in mind
the conclusions approved at the Bar's third annual Congress held
in Valencia in June 1954. In this connection several drafts have
already been submitted and others are being prepared.
2. PROFESSIONAL DISCIPLINE
Each college of advocates has disciplinary powers over its members.
The exercise of these powers is delegated to a body termed Council
of Governors". Each college formulates its own bye-laws and
regulations which define the powers of the Council and lays down
the sanctions which it may inflict. The courts may also take dis-
ciplinary action against advocates who commit serious breaches
of the rules of proper conduct in court.
The following disciplinary action can be taken against advocates:
(ii) severe warning;
(iii) a reprimand;
(iv) a fine;
(v) total or partial forfeiture of fees or rights derived from
the acts that gave rise to the offence with which they are
(vi) suspension for a period not exceeding three months, or
in the case of a repeated offence, not exceeding six mon:h,.
3. INDEPENDENCE OF THE ADVOCATES
Prima facie, the independence of Spanish advocates is not sub-
jected to restrictions other than those laid down in the rules of pro-
fessional conduct. In addition to these rules, however, there are
various provisions in the Penal Code which should be mentioned.
Under the Penal Code, legal proceedings can be taken against an
advocate who commits a breach of professional secrecy (Section
361) or commits a grave professional fault which has caused direct
prejudice to his client (Section 360). There is nothing unusual
in these provisions; identical provisions exist in most other countries.
In court, Spanish advocates make it a practice to express their opinions
quite freely and seldom does this give rise to direct or immediate
repercussions. Thus, at the Ceron trial, 1 the leader of the Spanish
Christian Democrat opposition Party, Sr. Jos6 Maria Gil Robl6s,
was able to unfold before the Supreme Court of Military Justice
at a session open to the public what was virtually a political
programme for the opposition to the regime. At other more recent
political trials, such as the Pujol trial and the Babiano trial, similar
demonstrations of almost complete freedom of expression occurred.
But the work of the advocate is made difficult by the fact that he can-
not take part in some stages of legal proceedings. In particular,
he is completely excluded from the preliminaries of a penal enquiry.
As long as his client remains in the hands of the police, the advocate
cannot get in touch with him nor intervene in any way whatsoever.
This is a far cry from the Anglo-Saxon system which enables a prisoner,
both at the police and the magistrate stage, to answer questions
only in the presence of his lawyer. Moreover, an advocate is not
allowed to plead in summary proceedings before military courts.
It has already been said that a large number of political offences
are tried before military courts in summary proceedings.
Spanish advocates, however, play nowadays an important role.
The Bar is making a courageous stand against various abuses of the
present regime with certain colleges of advocates taking vigorous
action, and is patiently waiting for a progressive return to a true Rule
of Law system. A recent example shows the astonishing courage
of Spanish advocates and the effectiveness of their concerted efforts.
On June 18, 1959, the government issued a Decree relating to the
expenses of judicial proceedings. According to this Decree, all
financially solvent parties engaged in court actions were required to
pay certain taxes. The object of the Decree was to pass on to litigants
the extra expenses incurred by the salary increases given to judicial
staff, whose salaries had hitherto been notoriously inadequate. The
1 See Appendix 7.
consequences of this reform were likely to be deplorable: people of
modest means, yet considered solvent, would practically be prevented
from going to court to exercise their rights if they were required to
deposit large sums of money with the clerk. As soon as this Decree
was published, all colleges of advocates and in particular those of
Madrid and Barcelona, went up in arms. In July and August 1959,
the colleges of advocates of almost all provinces met and addressed
protests to the Ministry of Justice, the secretary of the office of the
President of the Council, the members of the Cortes and other author-
ities. The text of these protests was widely diffused throughout
the country thereby starting an extensive opposition movement. On
November 30, 1959, Dr. Escobedo, President of the Madrid Bar
and an important personality in the regime, was forced to resign
for having made a stand in favour of the Decree in face of a majority
of his colleagues. The Madrid advocates then elected on December 30
an advocate of independent views to the office of president to replace
VII. CIVIL LIBERTIES AND POLITICAL RIGHTS
On July 13, 1945, the Cortes approved the Charter of the Spanish
People ", which defined the duties and rights of the Spanish. Among
the rights granted to the Spanish people are the following: freedom
of expression (which includes freedom of the press); freedom of
peaceful assembly and association; freedom of belief and religion
(but forbidding external ceremonies or manifestations other than
those of the Catholic religion); freedom and privacy of correspondence
(but only on national territory); freedom of movement and residence
on national territory; inviolability of domicile; and the prohibition
of rectroactive penal laws.
Civil liberties are normally asserted having regard to the State.
They set a limit to the intervention by the public authority in the
sphere of individual activity. Nevertheless, it is recognized that
individuals only enjoy their Fundamental Rights to the extent that
these are compatible with the demands of public order and the
country's internal and external security. However, it is also reco-
gnized that the limitations placed upon the exercise of public freedoms
must be materially justified. If a constitutional provision authorizes
the regulation by law of a civil liberty, the legislator should respect
the essence of that freedom. If the freedoms should be conceived
in terms of order, then order, in its turn, should not be understood
except in terms of those freedoms whose exercise it guarantees. "12
Order cannot and should not be anything more than a safeguard
of the freedoms.
In order to restrict or regulate the freedoms, the State may have
recourse either to repression or prevention. The repressive regime
(regime of laws) is more readily compatible with the conception of
civil liberties than the preventive regime (police regime). The
restriction of individual freedoms by police measures of a preventive
character is only justified in exceptional circumstances. In a free
society, preventive measures are considered legitimate when they
are indispensable in order to re-establish law and order, if the
latter has been disturbed, or in order to ward off grave dangers which
menace it in a direct and imminent fashion ".13
12 Georges Burdeau: Les Libertis publiques (Paris: Pichon and Durand-Auzias,
1961), p. 32.
'~ Arrits du Tribunal federal suisse (Law Reports of the Swiss Federal Tribunal),
Vol. 67, Part I, p. 76.
By virtue of Article 35 of the Charter of the Spanish People,
the enforcement of Articles
12 (freedom of expression and of the press),
13 (inviolability of correspondence),
14 (freedom of residence),
15 (inviolability of domicile),
16 (freedom of assembly and association), and
18 (immunity from detention, except in those cases and in the
forms prescribed by the law)
may be temporarily suspended by the government, totally or partially,
by means of decrees which strictly limit the application and duration
of such a measure. The Charter does not impose a single condition
governing the application of this Article by the government. In
particular, it does not specify that suspension of the Fundamental
Rights is inadmissible, except when a state of siege or State of Emer-
gency has been declared. The government is free to suspend the
fundamental freedoms whenever it sees fit to do so. An instance
of this was seen when the government suspended Article 14 of the
Charter by the Decree of June 8, 1962, thus depriving the Spanish
people for two years of the right to establish freely their place of
residence on national territory. This Decree was passed as a response
to the participation of 80 members of the internal opposition in the
Congress of the European Movement, which took place on June 7
and 8, 1962, at Munich. Upon their return from Munich, the
Spanish participants in the Congress were apprehended by the police
and forced to choose between exile and assignment of a fixed domicile
in one of the Canary islands. Several eminent persons, such as Gil
Robl6s, Prados Arrarte, Dionisio Ridruejo, chose the path of exile.
The comportment of the participants in the Munich Congress with
which the government found fault was defined in the preamble to
the Decree of June 8, in the following terms: the campaign directed
from abroad against the prestige and reputation of Spain has found
an echo in certain persons, who have abused the rights accorded
by the Charter, in associating themselves with such unworthy in-
trigues ". In fact, the 80 members of the internal opposition within
the country had met 38 delegates of exiled Spaniards in Munich.
Together they agreed upon the draft of a resolution to be submitted
to the Congress, the tenor of which is as follows:
The Congress of the European Movement which met in Munich on June
7 and 8, 1962, considers that the integration of every country with Europe,
either in the form of membership or in the form of association, demands
that the country in question possess democratic institutions. This requires
the recognition of the following privileges in Spain, in accordance with the
European Convention of Human Rights and the European Social Charter,
(1) the establishment of truly representative and democratic institutions.
which guarantee that the Government be founded upon the conser of ihc
(2) the effective guarantee of all the Human Rights, in particular those
of personal liberty and freedom of opinion and the suppression of govern-
(3) recognition of the legal personality of various groups and communities;
(4) the exercise of the right to organize trade unions on a democratic basis
and the right of the workers to defend their fundamental rights, notably
by strike action;
(5) the opportunity of organizing different currents of opinion and political
parties, as well as respect of the rights of the opposition.
The Congress expresses the profound hope that the evolution which follows
the application of these points will make possible the incorporation of Spain
within Europe of which it is an essential part. The Congress records the
firm conviction, expressed by all the Spanish delegates present at the Congress,
that the immense majority of Spanish people desire that this evolution take
place according to the rules of political wisdom and as rapidly as the circum-
stances will permit, with the sincerity of all concerned and their commitment
to refrain from all active or passive violence before, during, and after this
process of evolution.
In addition to Article 35, which authorizes the government to
suspend certain Fundamental Rights according to its pleasure, the
Charter contains another provision which contributes to the precar-
iousness of its guarantees. This is Article 33, the tenor of which is
The exercise of the rights that are recognized in this Charter may not affect
the spiritual, national, and social unity of the community.
This signifies that the State may restrict a Fundamental Right as
soon as it alleges that the exercise of such a freedom injures the
spiritual, national, and social unity of Spain.
It is evident that the spiritual, national, and social unity of
Spain is a much wider and more elastic notion than the reservations,
based on law and order or internal and external security, with which
the fundamental freedoms are guaranteed in a free society.
A. Freedom of Association and Assembly
Article 16 of the Charter guarantees freedom of association and
assembly in the following terms:
Spaniards may assemble and associate freely for lawful purposes and according
The same Article goes on to formulate the following reservation:
The State may create and maintain such agencies as are deemed necessary
for the accomplishment of its service.
I. FREEDOM OF ASSOCIATION
Freedom of association entails the right to unite in order to achieve
a common goal by means of collective effort. Complicated or difficult
formalities governing membership, the constitution of associations,
and even more so, the requirement of an authorization, are opposed
to this freedom of association. This freedom further supposes the
right of a citizen not to belong to an association, or group (freedom
of adherence), and the right of the association to draft its statutes
freely as well as to designate its officers.
The domain of freedom of association is singularly limited in Spain
due to the fact that it is not applicable to the formation and activity of
political parties and unions. These latter come under the ruling of the
second Paragraph of Article 16 of the Charter according to which the
State may create and maintain such agencies as are deemed necessary
for the accomplishment of its service ". It was recalled above (page 6)
that the political movements which supported the military rebellion
-to wit, the Falange Espahola y de las JONS and the Carlist Loya-
lists-were merged by General Franco's Decree of April 19, 1937,
and incorporated into the State by subsequent legislation. The
formation of any other political party was forbidden. Furthermore,
a single syndical organization was created by the State. Thus, groups,
whose actions are likely to take on a political significance because they
pursue ideals which are in no way as yet sanctioned by official legal
thinking, have been subjugated by the State. In this way the regime
has put an end to that pluralism which, to the extent to which it
effects those sources which inspire the law, is a necessary condition of
modern liberty. Without it the whole legislative process of the State
would be threatened by a negative conformism excluding not only
progress in legislation, but also the role of opinion in the formation of
the law." 14
In principle, the laws in force make the formation of an association
dependent upon State authorization. The fundamental text on this
subject is the Law of June, 30, 1887. This was modified by the Decree
of January 25, 1941, which specified that no association whatsoever
may be constituted without preliminary authorization by the Ministry
of the Interior (Ministerio de Gobernaci6n), or by its representatives
in the provinces, the Governors. After having laid down this general
rule, an exception is made in favour of the following associations:
(i) associations formed for the purpose of economic profit subject
to civil or commercial law;
(ii) Catholic Associations, constituted for purely religious motives;
(iii) institutions and corporations subject to special laws;
Burdeau, op. cit., p. 177.
(iv) cooperative associations subject to legislation of the Ministry
(v) associations subject to syndical legislation and the control of
Inasmuch as some associations are subject to special laws, it is
impossible to decide whether or not they enjoy freedom of asso-
ciation without examining the legal texts which apply to them. We
have already explained that the associations listed after (v) above, are
subject to a system that is not one in which freedom of association
The Decree of January 25, 1941, contains in its Section 4 the list of
documents which the founders of associations, subject to ordinary
legislation, must submit to the competent authority in the locality
where they wish to establish the seat of their association. These
authorities arc the Governors, in the provinces, and the Directorate
of police, in Madrid. This list specifies:
(i) two copies of the statutes, regulations and conventions;
(ii) two copies of a list bearing the names and private addresses
of the directors, representatives, and of all the administrative
(iii) a membership list, also indicating nationality;
(iv) an inventory of assets;
(v) a copy of the last balance-sheet.
All associations which fail to respect the conditions laid down by
this Decree are considered illegal (Penal Code, Section 172, Sub-
section 4), and its founders are liable, under Section 174 of the Penal
Code, to severe penalties (6 months and a day to six years' imprison-
ment and a fine of 10,000 to 100,000 pesetas).
The Governor of the province in question enjoys great power of
discretion in the matter of granting authorizations. He may either
grant or refuse a permit, according to whether he judges the activities
of the proposed association to be useful or dangerous. After having
given his approval, he may oppose the appointment of the Chairman
or of any one of the officers proposed. In this way, he is able to exer-
cise an indirect but effective control over the destiny of the association.
2. REGULATIONS GOVERNING RELIGIOUS ASSOCIATIONS
The provisions of the Decree of January 25, 1941, according to
which purely religious associations may be formed without demanding
authorization from a State authority, have been ratified in the form
of a Treaty by Article 34 of the Concordat of August 27, 1953, between
the Holy See and Spain. The text is as follows:
The Associations of the Spanish Catholic Action may freely exercise their
apostolate, depending directly on ecclesiastical authority, providing they
keep within the spirit of the general legislation of the State, in all that relates
to activities of other kinds.
On the subject of this provision, the following is an extract from
the message of Chief of State on the occasion of submitting the text
of the Concordat (October 26, 1953) to the Cortes for ratification ".
One of these [provisions] refers to the submission of the Associations of the
Spanish Catholic Action to the discipline of the Concordat. This Associa-
tion is conceived as a lay organization for the apostolate in immediate depend-
ence on the ecclesiastical authority. Its Associations shall enjoy full freedom
to exercise their apostolic activities. However, they must submit to the
general legislation of the State all other activities, should it be necessary
for them to engage in such.
It is evident from these texts that the organizations to which they
refer enjoy a genuine freedom of association. Their constitution is not
dependent upon State authorization. No provision whatsoever
infringes upon their right to freely elect their directors and adminis-
trators. Their activities are not subject to State control, as long as
they keep within the limits of the apostolate. It is obvious that the
notion of apostolate may give rise to differences of interpretation.
These, in turn, are liable to incite conflicts between State and Church
with regard to the extent of the freedom of association granted to
Spanish Catholic Action. Such a conflict arose on the occasion of the
strikes in the spring of 1962. Since it revealed opposing views with
respect to the freedom of action of the Associations for Catholic
Action, it deserves description.
Among the Associations of Catholic Action, there exist several
workers' associations, notably the Brotherhoods of Catholic Action
Workers (Hermandades des Obreros de Accidn Catolica, abbreviated
to HOAC) and Young Catholic Workers" (Juvendud Obrera
Catolica, abbreviated to JOC). Adherence to these groups, which are
not Christian trade unions, does not discharge members from the
obligation of enrolment in the vertical syndicates.
The HOAC and JOC supported the claims raised by the workers
on the occasion of the strike of the Asturian miners in April 1962.
In The Manifesto of May 8, 1962, which has since become famous,
they proclaimed on the one hand the right to a fair wage sufficient
to permit dignified human life in accordance with the level attained
by the society of our times as well as the right to resort to a strike in
case of need. On the other hand, they proclaimed the necessity for a
truly active share for the workers in the undertaking, in which they
were engaged, and its profits, and even in its property. Finally, they
demanded for workers the right to free association. In conclusion,
The Manifesto affirmed that life within a society and the social
relations which this involves should not be founded upon force, but
upon law for the realization of justice inspired by love of one's fellow-
The regime's counter measure was not long in coming. First. it
took the form of an editorial in Arriba (the Falangist Newspaper)
entitled Render unto Caesar what is Caesar's where, among other
things, it was stated:
The Spanish Government has always lent spiritual and material aid to the
Church in order to favour the growth of Christian virtues. The doctrine
and actions of the Church are always well received. But it is sad to see
the Church intervening, either consciously or unconsciously (and the latter
is the most deplorable), in social, political, or government matters which
belong entirely to the jurisdiction of the State.
Arriba at the same time accused the Church of making common
cause with those who, either from within or from the outside, per-
petuate the convulsion which rocks the world of today ".
Two leaders of Catholic Action were arrested. They were sentenced
to pay a fine of 50,000 pesetas for violating the legal provisions regard-
ing associations. In the government's opinion, the distribution of the
HOAC and JOC Manifesto was not within the limits of the exercise
of their apostolate and therefore was not covered by Article 34 of the
Concordat. This dispute furnished the occasion for a series of talks
between General Franco and the Cardinal-Primate of Spain, Mon-
signor Pla y Deniel. The tension was finally reduced by a letter from
the Cardinal-Primate addressed to the Foreign Minister. In this letter,
Monsignor Pla y Deniel proclaimed his fidelity to the government and
gave the assurance that the Spanish Church would remain true to the
principle of non-intervention in the affairs of State. However, he
maintained his personal approval of the HOAC and JOC Manifesto
and stuck by the assertion that The Manifesto was not in contradiction
with Article 34 of the Concordat. He argued as follows:
Is it not applying the secular criteria of the partisans of State control, to main-
tain that it is not the work of the apostolate to cite literally a doctrine con-
tained in the encyclical Mater et Magistra-just because it is in contradiction
with State legislation? Would it not be more logical, on the contrary, to
reform that which ought to be reformed in order to bring it into harmony
with this encyclical, in a State which calls itself Catholic and Social, and
whose Leader has declared in numerous speeches that it follows the social
doctrine of the Church?
3. FREEDOM OF ASSEMBLY
The exercise of the freedom of assembly is subject to very strict
preventive control and is meaningless as far as this control is put into
effect. A Circular, dated July 20, 1939, forbids all demonstrations or
assemblies which are not organized with the consent of the Ministry
of the Interior. In filing their applications, the organizers must specify
the purpose of the assembly or meeting; the speakers who are to be
present; and the topics to be presented.
The government authorities have a discretionary power in refusing
or granting the authorization requested. All meetings which are not
authorized are dispersed and their organizers are liable to be fined.
This regulation also includes under the heading of assemblies meetings
for commemorations, opening ceremonies, inaugural and similar
ceremonies, including meetings for collections, subscriptions, or for
charity purposes. Illegal public meetings and demonstrations consti-
tute an act against the public order within the meaning of Section 2(e)
of the Law on Public Order of July 30, 1959.
The only associations exempt from these restrictions are the
statutory assemblies of legally constituted associations and Catholic
According to reputable sources, the Ordinance of July 20, 1939,
is frequently diverted from its original purpose the control of public
meetings and made to serve as a means of keeping under obser-
vation persons suspected of harbouring ideas against the Franco
regime. Armed with these powers, the police sometimes enter private
houses where meetings of families or friends take place; no action can
be taken against such intrusions made without warning.
By virtue of an Ordinance of April 18, 1940, all speeches and lec-
tures, and all other forms of oral expression of thought which are not
held under the auspices of the Church, the university, or of the Falange
are subject to preliminary approval by the Directorate-General of
B. The Free Expression of Ideas and Especially Freedom of the Press
1. In pursuance of Article 12 of the Charter of the Spanish People,\
" All Spaniards may freely express their ideas so long as they do not
advocate the overthrow of the fundamental principles of government ".
Among the freedoms of thought, an important place is occupied by
the freedom of the Press. If we are to judge by the anxieties it causes
governments, then the freedom of the press must be one of the funda-
mental freedoms, because it makes their task more difficult. It is right
that it should be so, because a power which met with no resistance
would be on the verge of becoming an irresponsible power, both in
the moral as well as in the political sense of the term." 15 It is therefore
not surprising that certain governments have been tempted to curb
the press and have evolved a considerable number of administrative
police measures to this effect: government authorization, special
directives, preliminary censorship, seizure, suspension of publication,
etc. Unless these measures are substantially justified in order to ward
off dangers which directly and imminently threaten public order,
they are incompatible with freedom of the press. In the free countries
there cannot be a preventive regime with regard to the press." 16
'~ Burdeau, op. cit., p. 202.
1 Georges Scelle, A propos des accords de press, Cahiers de la Press 1938,
(Paris: Librairie du Rucueil Sirey), p. 204.
2. The newspapers and re\ie\\s in Spain are regulated by the Law
on the Press of April 22, 193S. supplemented by the i-\o Ordinances
of April 24. 194U. and FebruarN 24. 1942
Inthe %\ordsofthe introductory explanation of hie La\% on the Press:
The e-i:tence of a fourth esate cannot te tolerated. It is t nadirnusible that
the press can e\,it outside of the State. The edlls whichh spring from free-
dom of the democratic kind' nimst be aoitded The press should alaa,
serve the national interest : it should be a national instiLttij n. a public
enterprise in the ericei of the State
Section I of the Press La:,. also states: The organization. super-
vision, and control of the national institution of newspaper, and re-
views is incumbent upon the State." In the exercise of these functions
it is charged, according to Section 2. \ ith tile following duties:
(i) to regulate the number and circulation of newspapers and
(ii) to intervene in the choice of the editorial stafT.
(iii) to regulate the profession of journalism:
(iv) to super ise the raciiity of the press.
(v) to practise censorship as long as it has not been decided to
Inspite of the enactment of the Charter ol the Spanish People.
censorship has not been abolished. The control of the press has not
been modified, although articlee 12 of the Charter guarantees the free
expression of ideas.
The Mirustn of Information and Tourism. the pro incial dele-
gations of this MNinitry. and the Goaernors of the pro\irces are
responsible for putting the Press La\\ into effect.
3. Censorshlui and Dit t'/it'res (Secion 2. Subsections 4 and 5 of the
Press Lau). Censorship is practised. in accordance \wtlh directi\es
issued b3 the Mtinistr of Information and Tourism. b\ the Ministr 's
provincial delegates. When pro\ ncial or local information is innolked.
this duty is carried out h\ the (Go.crnors of the proa nces In Madrid.
the newspapers niust submit their final proofs to the Directorate-
General of the Press.
Here are some of the topics forbidden b\ Ihe direcInes of the
Ministry of Information: the regime. the succession of the Cau idlo.
certain activities of nmenibers of the government separatist acti\lties.
strikes and other forms of political and social agitation. offences
against morals. and in general anything likely to be disapproved of bh
the censorship of the Roman Catholic Church. It is also forbidden to
spread scandal, to report a trial in which government officials are
implicated, or to publish information of the kind which h would place
the national situation in an unfa\ourable light.17
17 IPI Surrey No. 5. The Prei in .-uthorirarian State' (Zurich: Internatonal
Press Institute. 1959I p 146.
At ilie Spa ish Press Congress of 1952, it was revealed that a
jourInali'lt had found himself in difficulties for having reported a deficit
in ihe orange harvest. It was also reported that the editor of a daily
paper in Malaga had been arrested and subsequently released upon
payment of a fine for having published information on an epidemic of
poliomyelitis in Andalusia. In Barcelona, a journalist was arrested
for having criticized the defects in the construction of workers'
houses-a construction project which was placed under the respons-
ibility of the Governor of the province. Released after having been
able to prove his good faith and service in the Falange, he was never-
theless forced to publish a humiliating correction.
The authorities responsible for the control of the press do not
confine themselves to preventing the publication of opinions and news
which seem undesirable to the regime; thlvyaJs.Q5jsue~irectives to
editors to pass over certain internal or external events in silence or to.
treailt'?nn ini -pcciIl \'a, By means of these instructions they are
able to orchesraitc the entire Spanish press, if need be. According to
the study made by the International Press Institute special instructions
are regularly given to inspire the editorials which ought to celebrate
July 18, the anniversary of the outbreak of the national revolution ".
The same system is followed whenever there is a particular circum-
stance to which the government attaches special importance and which
it wishes to control, down to the smallest detail. Thus following the
death of Ortega y Gasset, the Ministry of Information and Tourism
issued the following order: Each newspaper may publish up to three
articles relative to the death of Ortega y Gasset: a biography and two
commentaries. Every article on the writer's philosophy must underline
his errors in religious matters. It is permissible to publish photographs
of the mortuary on the front page, of the death mask or body of
Ortega, but no photographs made during his lifetime."
The Directorate-General of the Press also makes use of the tech-
nique of obligatory insertion ". The Ministry of Information and
Tourism edits a text and sends it to a newspaper which is obliged to
insert it in the place and on the page indicated by the Ministry without
any mention whatsoever of the source. This procedure misleads the
public as to the opinions of the paper. The article thus published is
often no more than a simple piece of information which all newspapers
must report in a perfectly uniform fashion, such as a student demon-
stration, for example. But it may also constitute a leading article
forced upon a single newspaper. In this way, the weekly, Destino de
Barcelona, whose editors are journalists known for their admiration
of Ortega y Gasset, was forced to publish an editorial condemning the
latter and accusing him of being responsible for the misfortunes of Spain.
Lastly, there eisl : still siibtler technique \v.hich consists of isujing -
a warning to a newspaper. in the form of a supposedly private tele- V/
phoneoneconersation. One ofthe Nllinistri ofl'nformnton and Tourism's
official; Linder the guise of sympathizing with the newspaper in question
amiably warns the editor that the political orientation of the news-
paper is displeasing to the government which plans to impose penalties
upon it. Few indeed are the papers which refuse to heed these
4. Immunity from Censorship. A_nimenmorandumn dated Ma _l,
1941, exempted the Falangist press from censorship. As the Falange
is controlled by the State, this immunity obviously causes-the regime
to run no risk.
An immunity which, on the contrary, deserves special mention is
that enjoyed by the weekly, Ecclesia, the official organ of Cjahol-i
Action. By virtue of a gentleman's agreement between the Cardinal-
Primate and the Caudillo, Ecclesia is exempted from all censorship.
Taking advantage of this immunity, the weekly in question has raised
its voice, on several different occasions, against the abuses of censor-
ship. It protested especially against censorship exercised by the
Directorate-General of the Press and demanded a reform of the
legislation in this sphere. In an article which appeared in May 1954,
the Reverend Father Jesus Iribarren, at that time the editor of Ecclesia,
wrote: How can one hold up as ideal a government press policy
which obliges one to search outside the newspapers for that which
should be their raison d'etre, that is to say, for information? This
article caused such discontent among the ruling circles that it led to
the resignation of its author several months later. An editorial
published early in 1955 under the direction of the Reverend Iribarren's
successor demanded the abolition of the system of directives, by which
" the newspapers are obliged to present the opinions of the rulers as
though they were their own, an act which is an outrage against Human
Rights ". At the time of the strikes in the spring of 1962, when the
Church took a stand in favour of the right to strike, the position
defended by the Church furnished the topic for a long editorial in the
May 12 issue of Ecclesia. Although strikes are strictly illegal in Spain,
they were described in this article as the ultimate measure to which
the working classes should resort when it believes that its rights are
scorned ". Mention was made of the "justified anomaly of a
strike" as supplanting the unjustified anomaly of abuse and
The doctrine of the Church was stated in the following terms:
Natural Law and Christian morals, which reject the Marxist dialectic of
systematic class struggle and mass abstention from work, recognize as a
lawful weapon the decision to cease work, after the efforts to reach a direct
settlement by means of the syndicates has failed to produce an equitable
result, and providing the general interests of society are safeguarded as far
as possible. In the name of these interests, the government may at a given
moment, declare a strike to be illegal either before or after it has taken place.
Such restriction of a social right permitted by Catholic Doctrine and recog-
nized by the majority of non-Marxist codes may only be invoked in order
to defend the national commonweal or in order to avoid evils even greater
than the strike, itself, or the deficiencies which have motivated it.
5. Editorial Staff and the Profession of Journalism. In pursuance
of Section 2 (Subsections 2 and 3) of the Press Law, the State inter-
venes in the choice of editorial staff of the newspapers and controls
the profession of journalism. The editor of each newspaper must be
approved by the Minister of Information and Tourism (Section 8).
The latter may discharge him whenever he believes that his con-
tinuation as head of the newspaper is dangerous to the State "(Sec-
In order to practise the profession of journalism, the diploma of
the National School of Journalism is required. This institution is
under the direction of the Directorate-General of the Press and its
professors are appointed by that institution. Students are admitted
on presentation of the baccalauriat (a certificate giving access to the
university), their police record, and a certificate of adherence to the
regime. In order to practise his profession a journalist must also be
enrolled on the official register of journalists, kept by the Ministry of
Information and Tourism. The Minister has the right to refuse this
A corporate control of the press exists independently of the
administrative control. The: Fcdertilion of Press Associations, together
with the Directorate-General of the Press, has drawn up a code of
preifesioinal moral.l for journalists, which has been labelled the Ten
Commandments for a Journalist", and was ratified by the government
on April 2S, 1955.
Honorary tribunals composed of journalists ensure its application.
The most serious sanction which it can impose upon a journalist is
removal from the professional register, which signifies exclusion from
Here are a few of the principles contained in the Ten Command-
As Spaniards of the Catholic faith and as defenders of the principles of the
glorious National Movement, we have the duty to serve this religious truth
as well as this political truth with fervour in our task of information and
orientation ... The journalist owes allegiance to the newspaper to which
he lends his services within the framework of those principles previously
declared. Service to the interests of the newspaper is obligatory. Service
to the personal interests of the journalist is lawful, providing that these
interests are not incompatible with the ethic inspired by the Catholic faith,
the doctrine of the Movement, and the general needs of the community ...
Each news item should be judged at its proper value. In its manner of
presentation and in the title under which it is published, truth and justice
must be respected and prudence must be exercised on account of the power
of the press upon public opinion. All conscious changes of the content
of the news item, all equivocal playing up of news, all sensationalism must
6. Other Means of Administrative Control. According to
Section 2 (Subsection 1) of the Press Law, The State is responsible
for the regulation of the number and circulation of newspapers and
and reviews. It is apparently under this heading that the State
determines the number of copies of a newspaper priced: its number
of pages and the amount of paper to be allocated to the publisher.
It is notably through the allocation of supplies of newsprint that the
government is able to bring strong pressure to bear upon thosc papers
which lack enthusiasm with regard to the regime.
The study already mentioned made by the International Press
Institute furnishes a revealing example : 18
... At the beginning of the summer of 1958, the traditionalist monarchist
paper of Madrid Informaciones was advised by the Ministry of Information
that its ration of newsprint for the month of July would be reduced by ten
per cent, representing a cut of 6,000 tons of newsprint for the paper. The
Ministry justified the measure by claiming that the paper's political nuances "
were offensive to the government. It went on to say that the 6,000 tons of
newsprint denied to Informaciones would be equally divided between two
other papers, ABC (monarchist) and Madrid (independent), which were
carrying out a policy of which the government highly approved ".
7. Repressive Regime. Inasmuch as a regime which is preventive
vis-d-vis the press is incompatible with the concept of freedom of the
press, it follows that the abuses of this freedom should be curbed
by penal laws applied by an impartial and independent judge. Spanish
penal legislation includes a considerable number of provisions which
affect the free expression of ideas and thought and thus also the free-
dom of the Press. Before going into these, we should like to draw
attention to a singular provision which confers power of criminal
jurisdiction upon the Minister of Information with respect to certain
" writings ". This provision is Section 18 of the Press law, the first
Subsection of which runs as follows:
Independently of specific misdemeanours or faults in penal legislation,
the Minister in Charge of the National Press Service shall have the power
to punish administratively all writings which, directly or indirectly, cast a
slur upon the prestige of the Nation or of the regime; slander the work of
the government in the new State: or spread pernicious ideas among the weak
By misdemeanors and faults specified in the legislation",
mentioned in Section 18, one must include the offences committed by
means of the press and completed by the publication itself. The
number and definition of these offences is such that it seriously
hampers the freedom of the press. Freedom of the press is only real
" if all opinions may be heard, even those which are hostile to the
parties in power ".'9 However, it is evident from several provisions
to be cited below that the regime has secured itself against all manifes-
tations of hostile ideas and against all serious criticism. Thus Sec-
tion 251 of the Penal Code of 1944 provides for a fine of 10,000 to
100,000 pesetas, as well as imprisonment from 6 months to 6 years,
for all persons engaged in propaganda, in whatever form, with the
object of" ... destroying or lessening the national sentiment ...
8 Ibid., p. 149.
Burdeau, op. cit., p. 232.
discrcdiing or damaging the prestige or authority, harming the inter-
e.st, or offending the dignity of the Spanish Nation ".
Section 2 of the Decree of September 21, 1960, assimilates to the
crime of military rebellion, as it is defined by Section 286 (Subsection 5)
of the Code of Military Law, the act of spreading false or tendentious
news with a view to disturbing law and order and prejudicing the
security of the State or to damaging the prestige of the State, of its
institutions, of its government, of its army, or of its public
The provisions of penal law tending toward the protection of
the regime will be examined in greater detail in the following
8. The Free Expression of Ideas other than through Periodical
Publications. Besides the legislation governing periodical publica-
tions, the free expression of ideas is also curbed by the following
The Ordinance of April 29, 1938, places under the control of the
Minister of Information and Tourism the publication, distribution,
and sale of books of all kinds, and of pamphlets and all other printed
matter or even of simple reproductions, whether Spanish or foreign.
The Ordinance of July 15, 1939, initiates State censorship of
all scenarios, plays, reprints of patriotic works, words in opera and
operetta, and the manuscripts of all musical composition dedicated
to an official personality or based upon an official theme ".
The Ordinance of April 18, 1940, provides that all speeches,
lectures and all other forms of oral expression of ideas ", presented
other than under the auspices of Church, university, or Party, or
which are not the responsibility of these institutions are subject to
preliminary approval by the Directorate-General of Propaganda.
The Decree of March 21, 1952, created a specialized authority
for the classification and censorship of all films, Spanish or foreign
according to their moral, political, and social content.
C. Religious Freedom
Article 1 of the Law of Succession of June 7, 1947, specifies that,
"Spain, as a political unit, is a Catholic ... State ..." (Emphasis
added.) The Law on the Principles of the National Movement of
May 17, 1958, lays down in Article 2:
The Spanish nation considers it a rule of honour to respect the law of God,
according to the doctrine of the Holy Catholic Apostolic and Roman Church,
the sole depository of truth-Faith inseperable from the national conscience.
That Faith shall inspire the nation's law.
The relations between State and Church were regulated by the
Concordat of August 27, 1953, which bestowed noteworthy powers
and privileges upon the Catholic Church. Canonical marriage, for
example," is a civil law marriage if at least one of the parties concerned
is Catholic (Section 42 of the Civil Law Statutes). Civil marriage
may only be contracted if neither of the two parties is Catholic.
Those wishing to contract civil marriage must furnish written proof
that they are not members of the Church. In the event that they are
unable to furnish such proof, they must solemnly swear that they have
never been baptized. The validity and effect of the marriage thus
contracted depends upon the veracity of this oath.
The Catholic Church intervenes in public education in a pro-
nounced manner. Religious instruction which has been compulsory
in primary schools since 1937, became obligatory in secondary educa-
tion in 1938, and was similarly introduced, in 1944, at the university
level. The Church has the right to control school textbooks. Arti-
cle 26 of the Concordat expressly stipulates:
In all centres (of education) of every sort, whether State institutions or not,
instruction shall conform to the principles laid down by the dogma and morality
of the Catholic Church.
The ordinaries will freely fulfil their mission of supervising the said educa-
tional institutions, with respect to purity of faith, high moral standards, and
These ordinaries may demand that books, publications, or educational
materials, be banned or withdrawn from circulation, if they are contrary
to Catholic dogma and morality.20
By virtue of Article 29 of the Concordat.
The State shall see to it that a suitable place be given to the teaching and
defence of religious truth in the institutions and services engaged in forming
public opinion, and in particular in radio broadcasts and television programmes.
This work shall be carried out by priests and members of the religious orders
designated by agreement with the ordinary in question.
The Catholicity of the Spanish State and the position which it
bestows upon the Church inevitably weaken the constitutional
guarantee of religious freedom. This guarantee is worded in the
following terms (Charter of the Spanish People, Article 6):
The profession and practice of the Catholic religion, which is that of the
Spanish State, will enjoy official protection.
Nobody will be molested because of his religious beliefs or the private exercise
of his creed. No external ceremonies or manifestations will be permitted
except those of the Catholic religion.
In the free countries, it is generally, recognized that religious
freedom is not just an inner freedom, but that it implies the freedom
20 The term ordinary designates a religious authority vested with power
of jurisdiction within his province. If the school Chaplain is a member of the
secular clergy, it is the Bishop who fulfils this mission of vigilance ". If the
Chaplain is a member of a religious order, the Prior of the Order occupies the
place of the ordinary, in the sense of the Concordat.
of each individual to profess his faith through freedom of
Freedom of worship consists in the right of each person to practise
outwardly the religion of his choice in performing its rites and con-
ducting its ceremonies. This right postulates the opportunity of
public worship, since private worship does not answer to all the exi-
gencies of a true freedom.
According to the terms of the Charter of the Spanish People
(Article 6, paragraph 2), freedom of public worship is guaranteed to
none except the Catholic Church. Other religions, therefore, only
enjoy limited freedom of worship. Something that is even more open
to criticism, is that freedom of conscience-" nobody shall be molested
on account of his religious beliefs "-is not firmly respected. In a
report published in 1961, the Ecumenical Council of Churches called
attention to a series of troublesome incidents endured by the Protes-
rant minority, which does not constitute more than 30,000 persons.
Here are a few examples taken from the report.
A few years ago during the week of prayer for Christian unity,
the police, accompanied by the Reverend Father Sanchez de Le6n,
made an inspection of the building known as El Porvenir, belonging
to the Spanish Evangelical church and including the church, the
residence of several pastors, the parish centre, the school and the
seminary. This building, which was located in Madrid, at 85 Bravo
Murillo Street, was subsequently closed down along with the Sociedad
Biblica, at 2 Flor Alta Street, and the doors barred with an official
seal. The stock of books of the Sociedad Biblica (a subsidiary of the
London Bible Society) which included around 5,000 Bibles, 9,000 New
Testaments, and 5,000 Hymnals was seized by the police authorities
and converted into paper pulp. This action of the police was approved
post factum by the Minister of the Interior who pointed out that the
seminary functioned without an authorization ". However, at the
time the seminary was founded some 80 years ago no law existed
requiring a special authorization for the creation of a new educational
centre. Whatever the case may be, the Spanish Government opposed
all diplomatic protests which it received with the argument that there
had been no authorization. Among the countries which protested
were the Federal Republic of Germany, Switzerland, the United States,
and the United Kingdom. The Lutheran Bishop, Dibelius, intervened
with Cardinal Frinks of Cologne and with His Holiness Pope John
XXIII. The Spanish Minister of Foreign Affairs responded to the
various protests by saying that the measure had been taken up by the
Council of Ministers repeating that the seminary had not been regis-
tered among the centres authorized by the Ministry of Education and
was considered as functioning clandestinely.
Another example: the Concordat of 1953 adopted Article 3 of
the former Concordat of 1851, which provides that the Governors of
each province and, if need be, the government itself should support
by every means at their disposal the supervision exercised bh the
Bishops over protestant activities.20a With this purpose the Commission
for the Defence of the Catholic Faith was created by the Bishops, \ith
branches, in the principal cities of Spain. Its director is the Reverend
Father Sinchez de Le6n. This office is concerned with the study of
protestantism and the supervision of protestants. In fact, it is a semi-
official body which enjoys the benefit of assistance from the State
Police. Among the numerous instances in which the police have
acted under pressure from this organization, the case of a protestant
doctor, Villa de Rubi, of Barcelona, was cited. Dr. Rubi was at first
forbidden to exercise his profession; later he was obliged to close the
private school which he directed.21 In the end, he was forced to
The Commission for the Defence of the Catholic Faith, owns a
personal filing index on the 30,000 Spanish protestants, containing
information on their private as well as their professional lives and
on their political opinions.
D. The Right of Petition
To speak truthfully, wrote Professor W. E. Rappard on the
subject of the right of petition, there is no need to be a partisan of
natural law in order to see in the freedom to complain, or protest,
the inalienable right of every citizen of a free country. 22 Moreover,
the right of petition is only mentioned in so many constitutions for
historical reasons. For, in the XVIIIth century, in the time of Euro-
pean Absolutism, the presentation of petitions was often considered
as an unlawful interference of the subjects in the jurisdiction of the
public authorities, even as a sort of rebellion. By guaranteeing consti-
tutionally the freedom of petition, all illegal character was removed
from the act of presenting a petition.
Article 21 of the Charter of the Spanish People guarantees the
freedom of petition in the following terms:
Spaniards may address individual petitions to the Chief of State,
to the Cortes and to public authorities.
Corporations, public officers and members of the Armed Forces
and institutions may only exercise this right according to the laws by
which they are ruled.
2oa The words of the Concordat are to the effect that the Government shall
bring its powerful protection to the Bishops when the latter so request, prin-
cipally when they have to withstand those who try and pervert the faithful and
corrupt their morals.
21 This was the result of intervention by the authorities in question, who
acted on the strength of an unfavourable police report.
22 W. E. Rappard, La Constitution fddrale tie la Suisse, 1848-1948 (Neuchatel
Editions de la Baconniere, 1948), p. 184.
Exercise of the right of petition is governed by the Law of Decem-
ber 22, 1960. It will be recalled that, in pursuance of Article 34 of the
Charter, the Cortes... will vote the necessary laws for the exercise
of the rights recognized in this Charter. "
According to Section 2 of the Law, of December 22, 1960, all
Spaniards of more than 21 years of age may present a petition. The
petition must be addressed to the Chief of State, to the Council of
Ministers, to the Cortes, to the Ministerial Committees, to the Presi-
dent of the Council of Ministers, and to the Ministers; it may also be
addressed to the local authorities; the Governor, Mayor, President
of the deputation or any other local head of administration. A peti-
tion may only be presented by physical persons individually; collective
petitions are illegal. The authority to whom the petition is addressed
must make out a receipt. He may also make an investigation of the
facts presented in the petition, if these fall within his competence.
The Law specifies that no detriment shall result to the signatory
because of his request, particularly in the case where a misdemeanor
should be committed by means of the petition-e.g., if the latter
should constitute an act of defamation. As a result of the petition,
the authority may either make a decision in respect of the individual
or issue an order applicable to the general public.
Already before the adoption of the Law of December 22, 1960,
the Cortes had inserted provisions into their statutes, relative to the
petitions addressed to them (Section 80 and 81). Section 80 lays
down that in agreement with Article 21 of the Charter, every natural
person or artificial persona juridica may address a petition to the
Cortes, bearing on a matter within their jurisdiction, through the
mediation of their president. Fraga Iribarne has written that
" this Section contains a very interesting stipulation. Article 21 of
the Charter recognizes individual petitions, which excludes collective
petitions; here, however, it is specified that petitions from corporate
bodies are receivable, which of course include a great number of
natural persons ". The astonishment of this pro-Franco author is
significant for, apart from the exception which we have just mentioned,
the Spanish legislator has taken care to forbid collective petitions,
wishing, doubtlessly, to place an obstacle in the way of all movement
of opinion to which a collection of signatures might give rise. Also
certain ways of presenting petitions have been subjected to penalties
under Sections 152-154 of the Penal Code:
Those members of the Armed Forces, who attempt to penetrate into the
Chamber of the Cortes in order to present petitions, either in person or
collectively, shall incur the penalty of banishment.
The penalty of banishment extranamiento is defined in Section
86 of the Penal Code: He who is condemned to banishment shall
be expelled from Spanish soil for the duration of his sentence. "
Those who, without being members of the Armed Forces, attempt to pene-
trate into the Chamber of the Cortes in order to present a petition, in person
and collectively, shall incur the penalty of confined residence.
He who attempts to penetrate, alone, into the same place in order to present,
in person and individually, one or several petitions, shall incur the penalty
of interdiction of residence.
All those who are members of the Armed Forces and who present, or attempt
to present, petitions to the Cortes, collectively, even if not in person, shall
also incur the penalty of confined residence.
A similar penalty shall be incurred by those who are members of the Armed
Forces, and who present, or attempt to present, them [petitions] individually
without following the disciplinary rules relative to the matter.
The maximum penalties indicated in this Section and in Section 152 shall be
imposed, respectively, where persons are concerned who occupy positions of
command in the Armed Forces.
The penalty of confined residence (confinamiento) and interdiction
of residence (destierro) are defined in Sections 87 and 88 of the Penal
Code, as follows:
Those who are condemned to confined residence shall be conducted to a
locality or district situated on the Peninsula, the Balearic Islands, or the
Canaries, where they shall live at complete liberty under supervision of the
In deciding upon the place where the condemned person shall serve his
sentence, the tribunal will take into account the occupation, social position,
and manner of life of the condemned, in order that he may assure his subsis-
He who is sentenced to interdiction of residence, will be forbidden to enter
one or several localities which shall be designated in the sentence or to enter
within a certain radius determined by the latter. This radius will comprise
a minimum of 25 and a maximum of 250 kilometres from the place desig-
nated, which area shall include, if the plaintiff so demands, the place in which
the misdemeanor was committed and the normal place of residence of the
guilty person and of the plaintiff and his close relatives.
Universal suffrage of adults is allowed in two cases:
(1) All the men and women of the nation of more than 21 years "
have the right to take part in a referendum ordered by the Chief of
State, by virtue of the Referendum Law of October 22, 1945.
(2) All legislative acts which modify, abrogate, or replace one of
the fundamental laws of the Nation are submitted to an obligatory
referendum. These laws are mentioned in Article 10 of the Law of
Succession of June 7, 1947 as follows: The Charter of the Spanish
People, the Labor Charter, the Constituent Law of the Cortes, the
present Law of Succession; the Law of National Referendum, and
whatever other law shall be latterly promulgated as fundamental. "
The only Law so far promulgated in this way is the Law on
the Principles of the National Movement of May, 17, 1958.
As far as local suffrage is concerned, the right of suffrage has been
conceded to heads of families who cooperate in the election of one
third of the municipal councillors. The Organic Law on Local
Administration, of July 17, 1945, stipulates that the municipal coun-
cillors must be elected as follows. One third by the heads of families;
one third by the syndicates of the community; and one third by the
municipal councillors previously elected, who will choose their can-
didates from a list prepared by the Governors of their province.
In order to be eligible, the voters must be at least 23 years of age.
The heads of families may only vote for other heads of families. Those
who are not eligible are all those stipulated by the Law ofAugust 5, 1907,
(concerning loss of civic rights by reason of judicial sentences, bank-
ruptcy, or because of debt to the State).
The Mayor, the President of the Municipal Council and the
government delegate, is appointed:
(a) by the Minister of the Interior in communities having a
population of over 10,000 inhabitants;
(b) by the Governor of the province in communities having a
population of less than 10,000 inhabitants. He may be
dismissed by the Minister of the Interior.
VHI. DEFENCE OF THE REGIME
All States have penal legislation f1tr protecling heir security It
is legitimate, even essential, for the State to regard actions directed
against its internal and external security as crimes or offences, and
to punish those plotting against or undermining its constitutional
institutions, its national defence and its independence. The principle
on which such legislation is founded cannot be disputed. The pro-
blem, however, is where to draw the line beyond which individual
liberty may be subjected to restrictions by the State-i.e., when repres-
sion is directed against actions which, although dangerous for the
security of the State, nevertheless constitute the exercise of fundamen-
tal human liberties. The Spanish Legislature has not been unduly
concerned about this problem. In Spain, the penal legislation for the
protection of the State is in fact, legislation for the defence of the
regime, which tends to repress any activity that is oppositional in
A. Law on Public Order of July 30, 1959: A Penal Law Enforced
by the Administration
The concept of law and order has a dual aspect. It is invoked to
justify restrictions on individual liberty, first in the interests of social
equilibrium (protection of society and, in particular, of individual
rights and interests), and secondly, in the interests of State security.
The Law on Public Order of 1959 has been framed to cover both of
these aspects. It will be examined here insofar as it is concerned with
the protection of the State, or, to be more exact, with the defence of
Section 1 defines law and order as the normal operation of
public and private institutions, the maintenance of internal peace, and
the free and peaceful exercise of the individual, political and social
rights recognized in the fundamental laws of the nation ". Section 2
enumerates the actions that are deemed contrary to law and order,
(a) actions that interfere or tend to interfere with the exercise of rights
defined in the Charter of the Spanish People and other fundamental laws
of the nation, or that are prejudicial to the spiritual, national, political or
social unity of Spain;
(b) actions that affect or tend to affect public security, the normal operation
of public services and the regularity of supplies or prices by abusive exploi-
tation or circumstances;
(c- organized 4irike;, illegal shut-downs of, or lock-outs by, manufac-
turing or business concerns, and causing or making possible the occurence
of one or other of these actions;
(d) actions liable to create agitation on the public highway, and the act
of committing or attempting to commit disturbances by means of violence,
threats or force, with arms or explosives;
(e) public demonstrations and meetings that are illegal or which give rise
to disturbances and violence, or holding public spectacles in similar circum-
(f) activities by means of which subversion is propagated, encouraged
or caused, or which defend the use of violence or any other means for achieving
(g) actions directed against public health and the violation of sanitary
arrangements which have been prescribed for preventing the break-out and
spread of epidemics;
(h) the incitement to break regulations for the maintenance of law and
order and the disregarding of decisions made by the authorities or their
representatives for preserving or restoring law and order;
(i) any other action, not included in the preceding Sections, which fails
to comply with the requirements of the present Law or which would constitute
a breach of the peace or of social harmony.
These actions constitute offences for which their authors are
punished with fines imposed by the authorities unless they violate
special provisions prescribing severe penalties. The authorities
having the right of penal jurisdiction are the Council of Ministers,
the Minister of the Interior, the Director-General of Security, Civil
Governors and Mayors. The Council of Ministers may impose
fines of up to 500,000 pesetas, and the Minister of the Interior
fines of up to 100,000 pesetas.
In the matter of appeals, Section 21 of the Law on Public Order
makes the following provisions:
1. Only the interested party may lodge an appeal against these adminis-
trative penalties. This appeal will have the dual characteristic of being
both a request addressed to the authority having imposed the penalty and
an appeal before the higher administrative authority immediately above
2. When the penalty imposed by the administrative authorities consists
of a fine, the appellant is required to make a deposit amounting to one third
of the fine. This requirement may be dispensed with if the authorities having
imposed the fine are satisfied that the appellant manifestly has inadequate
The following example may serve to illustrate the spirit in which
the Law is enforced and the manner in which the authorities interpret
the concept of law and order:
On May 1, 1960, the HOAC and JOC held a meeting at the Arriaga
theatre in Bilbao in celebration of Labour Day. This meeting was
attended by Sr. Alzola, the Diocesan Bishop, the president of the
JOC national committee, and by Sr. Martinez Conde, a member
of the HOAC national committee. The two last mentioned made
speeches before the gathered assembly. Both were later punished
for disturbing the public order. Among the charges levelled against
the president of the JOC national committee, who was fined 10,000
pesetas, was that of having incited workers to protect themselves
from the loss in purchasing power of wages ". As for Sr. Martinez
Conde, he was sentenced on May 6, 1960, by the Governor of the
province of Biscay to a fine of 25,000 pesetas and to be detained
until the fine has been paid. This unusually heavy sentence was
based on a finding of guilty on the following counts:
1. of having placed the prelate who was present at the meeting in an em-
2. of having attacked the country's social institutions and the measures
taken by the government in implementing its stabilization policy;
3. by is attitude, for having incited his listeners to break the rules and
regulations on public order, and by his speech, for having created an atmos-
phere favourable to subversive activity contrary to the maintenance of
4. of jeopardizing the social unity of Spain.
In order to demonstrate to what extent these charges were un-
founded, the full contents of a note addressed by the Bishop to the
Governor are quoted below:
We, Doctor Pablo Gurpide Beope, Bishop of Bilbao by the grace of God
and of the Holy Apostolic See, believe it to be our duty to address your
Excellency with all due respect, and to transmit to him this note in the
accomplishment of our sacred duty of Bishop in order to defend the works
of the Church, because they from a part of the Church itself, as in the case
of the HOAC which is an apostolic movement of the Catholic Church in
Spain and in the entire world and which is therefore a part of the apostolate
of the Diocese.
As regards the meeting held at the Arriaga theatre on May 1, 1960, and the
charges brought against Sr. Victor Martinez Conde who is a member of
the HOAC national committee, which charges have led to his arrest in Madrid
and to a fine of 25,000 pesetas imposed by the civil government of Biscay,
we would like to bring the following points to the attention of your Excellency
by means of this communication:
1. That we were surprised by the charge according to which an embarrassing
situation was created for our person by the contents of the speech, whereas
in fact we did not give the slightest indication of disapproval and we followed
this speech with the greatest of interest, since it contained nothing that was
contrary to doctrine and since we considered that the concepts of the inaliena-
ble rights of man and of the functions of the social institutions to which
reference had been made were in full conformity with the doctrine of the
2. That the meeting was held with our consent and approval and that we
were present at said meeting.
3. That at no time in the course of the speech had there been any kind of
exhortation to break the rules and regulations on law and order or any
threat to the peace, the meeting having taken place without incident and
without the slightest breach of law and order or of the peace, both inside
and outside the theatre.
4. That the social contents of the speech in no way changed the apostolic
nature of the meeting.
5. That as regards the statements made by the speaker, we do not consider
that these constituted a harsh criticism of any of the social institutions of
the State, but rather constituted a mere outline of the practical aspects of
syndical and professional life, questions which are in no way alien to the
apostolic aims of the Church.
6. That, furthermore, we expressed our approval by our applause and by
the few words spoken at the end of the meeting.
7. That to our great surprise and disapproval, we observed that a detach-
ment of police had been posted on the occasion of an apostolic meeting of
the Church, a meeting organized and presided by the ecclesiastical authorities.
8. That, in our opinion, he deserves neither a fine nor the strong measures
which have been taken against him.
9. That we were also surprised by the fact that sanctions had been taken
against an activity of the Church without our having been warned beforehand,
and that this should have been brought to our notice through public rumours
and by our counsellors.
10. Consequently, we believe that our appeal should be accepted and that
a favourable decision should be made.
The concept of law and order, as defined in the Law on Public
Order, and which is as broad as it is imprecise, has also been adopted
by the courts when they are called upon to pass judgment in a matter
involving a penal provision that includes a reference to law and order
(for example, Section 2 of the Decree of September 21, 1960, accord-
ing to which any person who spreads false or tendencious news
with a view to disturbing law and order will be considered guilty of
B. Law on Political Responsibilities of February 9, 1939
Immediately after the civil war, the victorious side undertook a
vast settling up of old scores with its former adversaries by passing
the Law on Political Responsibilities, which was retroactive in effect.
This Law attached "political responsibility to persons both natural
and artificial who contributed between October 1, 1934, and July
18, 1936, to the subversions of every kind that occurred in Spain,
and to those persons who after the second of the said dates, opposed
or oppose the National Movement by positive action or by marked
In order to appreciate the meaning and scope of this Law, a few
dates will be recalled. On April 14, 1931, Spain was proclaimed
a Republic. On February 16, 1936, general elections were held at
which the Popular Front scored, as is well known, a great victory:
163 Republicans, 90 Socialists and 16 Communists totalling 269
seats for the Popular Front, as opposed to 142 seats for the Right-
wing parties. On July 17, 1936, General Sanjurejo started the
military uprising against the legal government of the Republic.
That is why the date of July 18, 1936, marks the beginning of the
period in which the insurgents' opponents are held politically respon-
sible. As from that date, any kind of opposition to the military
insurrection is liable to penal sanctions. As regards actions that
took place between October 1, 1934 and July 17, 1936, only those
persons who "contributed in bringing about or aggravating subver-
sions of every kind that occurred in Spain can be prosecuted.
According to Section 4 of the Law the following persons were consid-
ered to fall into this category:
- those having held leading positions in the parties, groups and
associations listed in Section 2, and those having represented the
same in any kind of public or private corporation or body. (Under
Section 2, all political and social parties and groups that had
formed part of the so-called Popular Front since the call for
the elections held on February 16, 1936; parties that were allied
with or supported the Popular Front; and separatist organizations
that opposed the triumph of the National Movement" were
- those having figured, by virtue of an entry made before July 18,
1936 and maintained up to the said date, on the membership
lists of those parties, groups and associations listed in the pre-
ceding paragraph, with the exception of ordinary members of
- those who have publicly distinguished themselves by the intensity
or the effectiveness of their activity for the Popular Front or
those parties and groups covered by Section 2, or those who
have contributed to the activities of these parties and groups
by means of freely and voluntarily provided economic assistance
with the deliberate object of favouring them, although they did
not hold leading positions or have representative functions, nor
carry out confidential assignments or missions, nor were members
- those having called for the 1936 parliamentary elections, or who
had been members of the government that ran them, or who had
assumed important functions in the said government, or who
had been government candidates or candidates of any one of
the Popular Front parties or of their allies or supporters, or who
had been delegates of these parties for the election of the President
of the Republic in that same year.
- those who belong or have belonged to the freemasons, with the
only exception of those who had left the sect before July 18,
1936 of their own volition or have explicitly broken off with them
or have been expelled for having acted against their principles
or their appointed ends.
- those having incited or caused any one of the activities mentioned
in the preceding paragraphs to be carried out, whether it be
by word of mouth, the press, the radio or any other broadcasting
means, or by writings addressed to different people.
The penalties prescribed by the Law on Political Responsibilities
were imprisonment (maximum: 15 years), the total or partial seizure
of property, fines, the loss of civil rights, exile, and relegation to
Spain's African possessions. The Law was administered by Political
Responsibilities Tribunals composed of representatives of the army,
of the Judiciary, of the Falange, who shall set by their common
action the tone that inspires the National Movement (preamble
of the Law).
The enforcement of the Law on Political Responsibilities gave
rise to an era of massive repression. Statistics reveal that the penal
population, which before the civil war fluctuated between a minimum
of 6,000 prisoners and a maximum of 12,500 (in 1934 after the revolt
of the Asturias), numbered 250,719 on December 31, 1939. The
number of prisoners was still 213,373 on December 31, 1940. As
a result of remissions of sentences, this number was reduced to
139,990 in 1941, to 95,601 in 1942, to 46,661 in1943 and to 28,077
A Decree issued on April 13, 1945, put an end to the enforcement
of the Law on Political Responsibilities (" the provisions of the
Law of February 9, 1939, and February 12, 1942, are declared null
and void insofar as they relate to the institution of fresh proceedings
concerning political responsibilities "). The Minister of Justice was
directed to make the necessary arrangements for the dissolution
of the special Responsibilities Tribunals.
The relationship between the victors and the vanquished of the
civil war has been very accurately depicted in 1951 by Fernandez
Cuesta, then Minister Secretary-General of the Falange, when he
declared: Between their Spain and ours there is an abyss that can
only be crossed by repentance and submission to our doctrine.
Otherwise, may they remain on the other side of the abyss, and if
they attempt to cross it surreptitiously, may they perish."
This attitude of the victors prompted Salvador de Madariaga
to make the following observation: How could the body of Spain
be healed when her soul was still cut in two? 23
C. Penal Legislation for the Protection of the State and the Defence
of the Regime
Under this heading, that legislation is considered which is adminis-
tered by the Judiciary, as opposed to the Law on Public Order which
is administered by the Executive. In particular those provisions
23 Salvador de Madariaga, op. cit., p. 559.
are listed which protect the security of the State and the stability of
the regime by means of restrictions on the freedom of expression
and on the freedoms of association and of assembly, and by out-
lawing strikes. These provisions appear notably in the following
- the Penal Code of December 23, 1944;
- the Code of Military Law of July 17, 1945;
- the Decree of September 21, 1960; and
- the Law for the Repression of Freemasonry and Communism of
March 1, 1940.
1. THE PENAL CODE2'
The provisions which are particularly worth mentioning are:
(a) Treasonable offences
Gross insults to the Spanish nation, to the feelings of
its unity, to its symbols and to its emblems shall be
punished with sentences of minor imprisonment; if they
are made publicly, they shall be punished with sentences
of major imprisonment.
(b) Offences that compromise peace and the independence of the State
Subsection 1: Those who in any way keep up an under-
standing or a relationship with foreign governments,
with their agents or with international or foreign
groups, organizations or associations with the object of
damaging the authority of the State or compromising
the dignity or vital interests of Spain.
The Spaniard who, outside national territory, com-
municates or causes to circulate documents or false,
spurious or tendentious rumours or commits any kind
of act liable to cause prejudice to the credit or authority
of the State or to compromise the dignity or interests
of the Spanish nation shall be punished with imprison-
21 The classification of liberty-depriving sentences of imprisonment introduced
by Section 78 of the 1944 Penal Code is as follows:
major solitary confinement with hard labour
minor solitary confinement with hard labour
major imprisonment, interdiction of residence
major arrest, interdiction of residence
20 years and 1 day-30 years
12 years and 1 day-20 years
6 years and I day-12 years
6 months and 1 day-6 years
1 month and 1 day-6 months
1 day -30 days
ment, absolute legal incapacity and fines ranging from
10,000 to 50,000 pesetas.
The same penalties shall be incurred by aliens who
commit on Spanish territory any one of the acts listed
in the preceding paragraph.
(c) Offences committed during the exercise of individual
rights recognized by law
The following associations shall be considered illegal:
1. those that are, by their object or their nature, contrary
to public morality;
2. those whose object is to commit an offence;
3. those that are banned by the competent authority; and
4. those that are formed without complying with the
conditions and formalities prescribed by law.
The following fall under the provisions of the preceding
1. groups or associations apt to destroy or weaken
2. groups or associations, whether or not they are
formed on national territory, whose object is to
attack in whatsoever manner the unity of the
Spanish nation or to promote or spread separatist
activities. Persons incriminated under the present
Subsection shall be liable to fines of 10,000 to
100,000 pesetas in addition to the prescribed
3. proscribed associations, organizations, political par-
ties and other groups, and all those of similar ten-
dencies, even when they are reconstituted in a
different form and under a different name;
4. those who attempt to introduce a regime based on
the division of Spaniards into political groups or
classes of whatsoever kind; and
5. formations having a para-military nature expressly
banned by law. When the convicted person belongs
to the Armed Forces, he shall be penalized with the
immediately higher ranking sentence.
The following shall incur minor imprisonment, special
incapacity and a fine of 1000 to 5000 pesetas:
1. the founders, leaders and presidents of associations
against which the preceding Section and Subsections
1, 2 and 3 of Section 172 are directed.
If the association could not be formed, the penalties
shall consist of longterm arrest, suspension and a
fine of 1000 to 3000 pesetas.
If the object of the organization is the overthrow
by violence or the destruction of the political,
social, economic or judicial organization of the
State, its founders, organizers or leaders shall be
sentenced to minor solitary confinement with hard
labour, and its ordinary members shall be sentenced
to minor imprisonment.
When the actions with which the preceding para-
graph is concerned are not grave or when the
association could not be formed, the court shall
pronounce the immediately lower ranking penalty or
interdiction of residence and impose a fine of 1000
to 5000 pesetas.
2. those, who, by their economic assistance, even when
it is indirect, facilitate the foundation, the organiza-
tion, the reconstitution or the activity of the asso-
ciations, groups, parties and formations mentioned
in the last paragraph of the preceding Subsection.
In this instance, when the convicted person can
afford it, the courts can increase the fine to
250,000 pesetas, bearing in mind the circumstances
in which the act was carried out and its consequences.
Section 175: The following shall be liable to major arrest:
1. the founders, leaders and presidents of associations
covered by Section 172, Subsection 4;
2. the leaders, presidents and ordinary members of
associations who do not permit representatives of
the authorities to enter the premises in which their
meetings are held or to attend such meetings;
3. the leaders and the presidents of associations that
do not break up their meetings at the express request
of representatives of the authorities, and ordinary
members who in such an event do not withdraw; and
4. the ordinary members of associations covered by
Section 172, Subsections 1, 2 and 3. and Section 173.
(d) Insurrectional offences
Section 222: The following shall be punished as crimes of
3. workers' strikes;
Section 223: Those found guilty of offences enumerated in the
preceding shall be punished with:
1. major imprisonment if they have been the promoters,
organizers and leaders, or if they have resorted to
violence or intimidation in carrying out their
2. minor imprisonment in other cases.
In addition to the enumerated penalties, the court may
impose a fine of 5000 to 50,000 pesetas having regard
to the circumstances of the case, the offender and,
especially, his economic situation.
(e) Illegal propaganda offences
Those who carry on propaganda of any kind inside or
outside Spain for any one of the following purposes
shall be punished with minor imprisonment and fines
of 10,000 to 100,000 pesetas:
1. the overthrow by violence or destruction of the
political, social, economic or judicial organization
of the State;
2. the break-up or destruction of national feeling;
3. the disruption of the Spanish nation's unity, the
promotion or propagation of separatist activities;
4. the committal or planning of an attempt on the
security of the State, damaging its good name,
prestige or authority, or harming its interests, or
offending the Spanish nation's dignity.
By propaganda is meant the printing of any type of
book, leaflet, pamphlet, poster and periodical, and of
any kind of typographic or other publication, as also
their distribution and stocking for distribution;
speeches; radio broadcasts and any other means of
spreading publicity. When the acts of propaganda that
are punishable under this Section are committed through
abusive exercise of a teaching appointment, in addition
to the sentences enumerated the convicted person shall
be deprived of the right to exercise his profession.
He who in any way communicates or causes to circulate
false, distorted or tendentious news or rumours with the
intention of causing prejudice to the credit or authority
of the State, or commits any kind of action tending to
achieve the same purpose, shall be punished with
major solitary confinement with hard labour and with
absolute legal incapacity.
If the facts are not serious, the court man after making
into consideration the personal circumstances of the
offender, limit the penalty to one of minor solitary
confinement with hard labour or interdiction of resi-
dence, and to a fine of 2000 to 20,000 pesetas.
2. CODE OF MILITARY LAW
Reference should be made to the following three types of offence:
(a) Espionage offences
Section 274: Any person who has kept up any kind of relationship
with a foreign power or with an international organiza-
tion or association with a view to procuring data or
information which, while not necessarily being of a
confidential or military character, could relate to
national defence, and any person who furnishes the
said data or information, shall be punished with impri-
sonment in peacetime and with solitary confinement
with hard labour in wartime. A sentence of death may
be passed in the latter case if the facts are obviously
The scope of this Section has been commented on, in the intro-
ductory explanation in the following characteristic terms: The legal
provisions are so broad in their field of application that they can
cover any informational activity which, by virtue of its extent or of
its regularity, in peacetime as in wartime, can be considered to con-
stitute a possible danger to the interests of national defence, even
when concerned with non-secret and non-military information and
(b) The crime of rebellion
Section 286: Subsection 5: Those shall also be considered offences
of military rebellion which are defined as such in the
special laws or in decrees issued by the military
(c) Insurrectional offences
Section 302: Any person who by word of mouth, by writings or by
mechanical publication or broadcasting or in any other
way causes rumours to circulate among troops liable to
create discouragement or a lessening of their zeal for
military service, or criticisms directed against the latter,
shall be punished with a prison sentence of up to 6 years.
26 See, for instance, the Decree of September 21, 1960, considered below
at pp. 71-72.
3. DECREE OF SEPTEMBER 21, 1960
This enactment has revised, combined and revived provisions
which had been contained in the Law of March 2, 1943, and in the
Decree of April 18, 1947, on the repression of banditry and terrorism.
This Decree assimilates a series of offences having a political character
to military rebellion, which is the central notion of the whole of the
present regime's political penal law. Section 2 is worded in the
The following shall be considered guilty of military rebellion,
in accordance with Section 286, Subsection 5, of the Code of
Military Law, and liable to the sentences prescribed in the said
(a) any person who spreads false or tendentious news with
a view to disturbing law and order and prejudicing the security of
the State, or to damaging the prestige of the State, of its institu-
tions, of its government, of its army or of its public authorities;
(b) any person who by whatsoever means conspires or takes
part in meetings, conferences or demonstrations having as their
object those cited in the preceding paragraph.
The following shall also be considered acts of military rebellion:
mutiny, strikes, sabotage and any other similar act, if they are
inspired by political motives or seriously disturb law and order.
The inclusion in this Section of the phrase any other similar act
(to mutiny, strikes and sabotage) has practically the effect of directing
the judge to apply a penal enactment by analogy, which is contrary
to the principle of nullum crime sine lege and penalties covered by
Sections 1 and 2 of the Penal Code and confirmed by the consistent
decisions of the Supreme Court.
The penalties prescribed by the Code of Military Law for offences
of military rebellion are as follows:
The leader of the rebellion, senior commanders of
rebellious forces or elements, and rebels having a
command equivalent to that of a company or other
larger unit in the army, navy or air force shall be
sentenced to death.
The court can inflict at its sole discretion penalties
ranging from a sentence of death to a sentence of
twelve years and one day upon those, not covered by
the preceding Section, who exercise a subordinate
command in the rebellious forces or who have merely
taken an active part therein.
Those who, although they did not take part in the
rebellion or were not identified as rebels, have given
assistance to rebels for whatsoever reason shall be
punished with penalties ranging from imprisonment of
six months and one day to twenty years of solitary
confinement with hard labour.
The Decree of September 21, 1960, gives moreover preferential
jurisdiction to military courts in the matter of political offences.
According to Section 8, military courts shall be competent to
determine whether offences enumerated in the present provisions are
to be dealt with by them. They shall try the cases by summary
proceedings. If the circumstances surrounding the offence are such
that it is found to be of no real gravity or that they do not permit the
application of the Decree, and if at the same time the matter is con-
cerned with common law offences, the military courts may refer the
matter to the ordinary courts ".
4. LAW FOR THE REPRESSION OF FREEMASONRY AND COMMU-
NISM OF MARCH 1, 1940
Section 3 of this Law, purporting to prohibit propaganda, practic-
ally outlaws freemasonry and communism. This Section reads as
Section 3: Any propaganda which exalts the principles or the
alleged benefits of freemasonry and spreads corrupting
ideas against religion, the fatherland and its fundamental
institutions and against social harmony, shall be punished
by the suppression of the journals and organizations
that carry it on, the sequestration of its assets, and with
major solitary confinement with hard labour for the
principal offender or offenders and of minor solitary
confinement with hard labour for accomplices.
The offence of membership of a freemasonry or of a Communist
organization and the penalties attached thereto are defined in Sec-
tions 4 to 7 of the Law:
Section 4: All those persons are freemasons who have joined the
freemasonry and who have not been expelled therefrom,
or who have not resigned or have not explicitly broken
off relations therewith. Those to whom the sect has
permitted under whatsoever form or means to simulate
their estrangement, shall still be deemed freemasons.
Under the provisions of this Law, the leading proponents
in building up the Soviet way of life or in spreading
propaganda, Trotskyists, anarchists and the like will be
Section 5: From the date of publication of this Law, the offences
of belonging to freemasonry and to communism as defined
in Section 4 shall be punished with minor solitary con-
finement with hard labour. If one of the aggravating
circumstances listed in Section 6 should also apply, the
penalty shall be major solitary confinement with hard
Section 6: The following are considered aggravating circumstances
for the masonic qualification: the fact of having held a
rank between the 18th and the 33rd, inclusive of both,
or of having taken part in assemblies of the International
Masonic Association, in national assemblies of the Spanish
Grand Orient, of the Spanish Grand Lodge, or of other
masonic organizations established in Spain, or of having
carried out an assignment or a commission such as to
presuppose special trust on the part of the sect in the
person to whom the assignment or commission was given.
The following are considered aggravating circumstances
for communism, the fact of having figured in leading
agitation groups, in central committees and committees
for liaison with foreign organizations, and the fact of
having actively participated in national and foreign
It is apparent from the details given above concerning offences
against the State and the regime that their definition is often vague
and unprecise, thereby increasing the scope for penal prosecution.
This is particularly so in the case of offences constituted by the
expression of an opinion: insults to the Spanish nation (Penal
Code, Section 123); false, spurious or tendentious rumours that
prejudice the credit or authority of the State (Penal Code, Section
132); propaganda aimed at destroying or weakening national
sentiment (Penal Code, Section 251); false or tendentious news
spread with a view to damaging the prestige of the State, of its
institutions, of its government, of its army or of its public authorities
(Decree of September 21, 1960, Section 2); acts that violate the spiri-
tual, national, political or social unity of Spain (Law on Public
Order, Section 2).
It will also be observed that the same action can come under
several penal provisions. Thus, under Section 2 of the Law on Public
Order, organized strikes are an offence for which the right to
punish belongs to the administrative authorities; Section 222, Sub-
section 3, of the Penal Code assimilates workers' strikes to an
insurrectional offence; Section 2 of the Decree of September 21,
1960, assimilates strikes to acts of military rebellion.
As a result of this situation, identical offences can be dealt with
by different courts or tribunals and tried under different procedures.
Speaking from personal experience, eminent Spanish lawyers have
pointed out that the author of a few lines of poetry criticizing the
regime or working conditions can be brought before the following
courts or tribunals:
- the ordinary courts that try the offence under the Penal Code
in accordance with ordinary procedure;
- courts-martial that try the offence under the Code of Military
Law or the Penal Code in accordance with procedure laid down
in the Code of Military Law; and
- courts-martial that judge the offence under the Decree of Sep-
tember 21, 1960, and under summary procedure as laid down
in Sections 918-937 of the Code of Military Law.
Finally, the police may entrust the investigation to the special
military judge in Madrid for the repression of extremist activities.
IX. THE PENAL PROSECUTION OF POLITICAL OFFENCES
A. The Predominant Role played by Military Courts
The particular character of the political penal law of the present
regime is also clearly revealed in the type of procedure adopted. An
examination of the various phases of penal procedure is therefore
relevant, especially with regard to the regulations which discriminate
against the political offender by comparison with the non-political
criminal. The first thing that is noticeable is the predominant role
assigned to military law in the suppression of offences against the State
or the regime. The offenders, whether military or civilian, are prose-
cuted before a military court, in the majority of cases. They must
answer for the offences of which they are accused before the military
court, within whose jurisdiction the case falls. The investigation in
the cases which are tried by courts-martial is assigned to the examining
By the Decree of January 24, 1958, the government appointed a
special examining judge, the military judge extraordinary for the
repression of extremist activities ", charged with the investigation of
" the recently discovered extremist activities ". A Decree of April 25,
1958, extended the scope of this judge's power to the investigation of
" punishable acts of a later date, if they are connected to those which
justified the Decree of January 24, 1958 ".
In virtue of the Decree of April 25, 1958, the special judge a
position occupied at the present time by Colonel Eymar may de-
mand that any case be investigated by himself, if he believes it to
involve extremist activity ", whether a new case is involved whose
investigation he initiates under his own authority, or whether it is a
case investigated by another authority which he thus places under his
own jurisdiction. The term extremist activity is a very vague one
which easily lends itself to a highly elastic interpretation. Actions of
the most varied kind-demands presented by a group of workers to
the head of an undertaking, holding up a placard requesting amnesty
for political prisoners, or taking up a collection among the personnel
of a concern for the benefit of the family of an imprisoned fellow
worker-may suffice to arouse the suspicion of extremist activity and
set in motion the agency under control of Colonel Eymar. The latter
decides, once the affair has been investigated, to which jurisdiction it
shall be referred. For reasons which are easy to guess, Colonel Eymar
generally commits to a military court those offenders with whom the
regime intends to deal severely. The Code of Military Law has a scale
of punishments which is much more severe than that at the command
of the judge under ordinary penal law. Moreover, certain political
offences-as, for instance, the offences alluded to in the Decree of
September 21, 1960-must be judged according to a summary proce-
dure (Code of Military Law, Sections 918-937) which considerably
limits the rights of the accused. Notably, he may only be defended by
a serving officer-to the exclusion of all lawyers. Furthermore, the
decision pronounced under summary procedure does not permit any
appeal on the part of the defendant. At the most, it may be the subject
of fresh debates before the Supreme Court of Military Justice, in the
event that the Captain-General of the Region in which the trial takes
place refuses to countersign the decision.
B. Arrest and Preventive Custody
The fundamental principle in this field is laid down by Article 18
of the Charter of the Spanish People, according to which:
No Spaniard may be arrested except in the cases and in the form prescribed
by law. Within a period of 72 hours all arrested persons will be set free
or turned over to the judicial authorities.
The ruling according to which every person held in custody shall
be released or transferred to the judicial authorities within a period of
seventy-two hours also applies to the arrests carried out in accordance
with the Law on Public Order of July 30, 1959 (Section 2).
According to Section 490 and 492 of the Code of Penal Procedure
of September 14, 1882, the following persons may be arrested:
Whoever prepares to commit an offence;
Whoever is caught in flagrante delicto;
Whoever escapes from a prison while he is serving a sentence;
Whoever escapes from a prison while awaiting transfer to a penitentiary;
Whoever escapes during his transfer to a penitentiary;
Whoever escapes following his arrest, or while he is in custody;
Whoever has been condemned in his absence;
Whoever is about to be accused of an offence punishable by a prison sentence
of more than 6 years;
Whoever is suspected of having committed an offence punishable by a less
severe penalty, whenever there is reason to fear that the accused will attempt
to evade justice.
An individual suspected of being an accomplice to an offence may
be apprehended under the same conditions as the principal.
The conditions of arrest are more flexible under the provisions of
the Law on Public Order. Under the terms of Section 12 (which is only
directed against acts constituting misdemeanours):
The government authority or its agents may arrest whoever commits or
intends to commit acts contrary to law and order, and whoever disobeys
the orders which are addressed to him directly with relation to the said acts,
by the authority or the agents thereof.
In accordance with Section 28 of the same Law, if the government
has declared a State of Emergency or a state of siege, anyone may be
arrested, providing administrative authorities, and in particular the
police, consider such a measure to be necessary in order to maintain
law and order.
The police may make an arrest without a warrant delivered by a
judicial authority. Individual freedom is protected by the rule accord-
ing to which every person apprehended by the police, must either be
released within a period of 72 hours or else transferred to the judicial
authorities. However, when dealing with offences of a political
character, this rule is not always respected. Frequently, the police
detain a person well beyond the authorized 72-hour limit, and do not
bring him before the judge for a month or more. In other cases, per-
sons may be released from custody after several weeks without ever
having appeared before the judges, because no charge whatsoever
can be sustained against them. There is no provision at all for an
appeal either military or civil, against extension of illegal detention by
the police. However, a complaint based on Section 184 of the Penal
Code may be lodged against the police officer or authority who has
illegally arrested someone or held him in custody. In practice, there
have been several instances of complaints lodged against illegal arrests.
Their effect has been to prompt the police to bring before the courts
very rapidly the arrested persons who have been held in custody for
more than 72 hours. Usually the deposition of a complaint has
not given rise to the opening of an enquiry. Nevertheless in a few
isolated cases, an enquiry has been opened and has resulted in a
In many cases the police have not hesitated to resort to threats, acts
of violence, bodily injury, etc., in order to extract from the prisoners the
confessions which are deposed and are included in the defendant's file.
Depositions obtained by illegal means often constitute the essential
element of the file and are the deciding factor in the court decisions
-especially when the case is judged according to the summary
procedure provided by the Code of Military Law, which is applied in
the case of numerous political prosecutions. Although under Spanish
legislation no decisive weight is attached in court to the statements
gathered by the police in the course of the investigation stage, never-
theless the courts, both ordinary and military, tend to place their
confidence in the files prepared by the police, especially when political
offences are to be tried. This is true even when the judges have the
private conviction that the confessions of the defendants have been
obtained by illegal means.
The judge to whom the police have referred the case, first of all,
decides the immediate future of the defendant. The latter may be
imprisoned or released. In the first case, the defendant is placed in
custody and transferred from police headquarters to the prison. The
judge may also order the temporary release of the defendant, with or
without bail. According to Section 529 of the Code on Penal Procedure,
the judge may release the accused providing that the offence for which
he is being prosecuted is not punishable by a sentence exceeding minor
A Decree of March 22, 1957, considerably restricts the application
of this regulation when the offence in question is an offence committed
against the State's internal security. According to Section 1:
The following provisions are added to Section 503 of the Code of Penal
Procedure: If the offence being prosecuted is one of those dealt with and
forbidden under the second chapter of part two of the Penal Code, the defendant
must be maintained in custody, whatever the sentence incurred and as long
as law and order have not been restored."
In the introductory explanation to the Decree it is stated that, If
it was thought necessary to release persons not yet tried, before law
and order has been restored, the result would be the lowering of the
public morale and the encouragement of inveterate criminals to
persist in their attitudes. The efforts on the part of the State to
reestablish law and order would thus be seriously compromised ".
Section 503 of the Code on Penal Procedure has been further
complemented by the Decree of November 23, 1957, Section 1 of which
The following provisions are added to Subsection 4 of Section 503 of the
Code of Penal Procedure: the offender who has committed an act against
the Chief of State, the Council of Ministers or its members, or the regime,
or any other act implying illegal propaganda-may not benefit from provi-
The Decrees of March 22 and November 23, 1957, thus created a
special system of dealing with all offences, which either directly or
even remotely, affect the Chief of State, the political regime, or State
Lastly, persons accused of having committed the offences enumer-
ated in the Decree of September 21, 1960, may not benefit from the
provision of provisional release. The prosecution of these offences
comes within the competence of military justice and the procedure of
the Code of Military Law is used. Now, according to Section 922 of
the Code of Military Law provisional release may not be granted in
those cases tried under the summary procedure.
As long as he is held in custody by the police a person does not
have the right to communicate with a lawyer. Thus he may not benefit
from a lawyer's counsel when he is being questioned. The same applies
if the person is held in custody by order of the judge. However, in
practice, persons indicted for offences under ordinary law may be
authorized to communicate with their lawyers before making a state-
ment. Furthermore, under ordinary penal procedure, each defendant
may freely choose his own counsel, communicate with him and receive
assistance from him from the moment he has been notified of his bill
This principle of the free choice of lawyer on the part of the
defendant, also applies to ordinary procedure before a military court.
On the other hand, it ceases to apply when summary procedure is
adopted before the same military courts. In this case, an officer defends
the accused (Code of Military Law, Section 927). In principle, the
defendant may choose the officer who is to defend him. However, in
most cases, counsel for the defence is appointed since the choice must
be made from the list of officers of the military region where the trial
is to take place. As soon as he is notified of his nomination, the officer
must contact his client at least once ". He then prepares his defence,
sometimes with the help of a professional lawyer. In practice these
" officers for the defence often work with zeal and true professional
conscience. But for them, it is a matter of adhoc duty and a temporary
function. The defending officer is on duty when he appears before the
court. Face to face with a General who presides over the court,
the defending officer hesitates before launching himself into a defence
that is too energetic or eloquent, even if only for the sake of his career.
This conflict of interests runs the risk of harming the defendant.
Moreover, it is obvious that the fact of being defended by someone
who is not a lawyer, is not to the defendant's advantage. The exclusion
of lawyers from summary procedure is therefore a very serious measure.
At this point a digression is appropriate. It appears that the
present regime has frequently resorted to summary procedure in order
to be able to exclude lawyers from the proceedings. The Spanish
lawyers have shown exceptional courage before all courts, as is proven
by their speeches for the defence in the course of the political trials
which aroused world-wide interest in the last few years (Cer6n,
Babiano, and Pujol). The present regime avoids frontal attacks on
lawyers and allows them complete freedom of speech, but it excludes
them from a procedure frequently employed in the prosecution of
The defendant has no appeal of any kind against the verdict
delivered as the result of summary military procedure. The State, on
the contrary, has an appeal: if its representative, the Captain-General
of the Region, refuses to countersign the court decision, the case is
referred to a higher authority, the Supreme Court of Military Justice,
which conducts the trial according to ordinary military procedure.
This procedure permits the participation of lawyers. But the latter are
obliged to work under conditions which are often unfavourable.
Generally, the lawyer only receives the client's legal file a short time
before the trial. He has had no part in the preliminary investigation
of the case which has proceeded entirely independently of him; he has
not been able to question the witnesses or require expert opinions to
counter those of the prosecution during the investigation. He must
therefore defend his client on the basis of a file which is perhaps in-
complete and without having had time to study the case thoroughly.
The Julio Cer6n case is an eloquent example of this anomaly. On
November 9, 1959, the Military Court of Madrid tried-under sum-
mary procedure-seventeen Spaniards with liberal-Catholic leanings,
who were accused of military rebellion. They were accused of having
transported pamphlets and tracts in their baggage in June of the same
year, inciting workers to strike. The principal defendant, Julio Cer6n
Ayuso, 31 years of age, member of the Spanish delegation to the
International Labour Conference in Geneva, was condemned to
3 years imprisonment. The others were sentenced to terms ranging
from 6 months to 2 years. General Miguel Rodrigo, Captain-General
of the Madrid Region, refused to countersign the judgment, since the
penalties imposed seemed to him too lenient. The case was brought
before the Supreme Court of Military Justice. On December 23, 1959,
this tribunal overruling the first, lengthened the sentences of imprison-
ment to 8 years for Cer6n, and terms from 1 to 6 years' imprisonment
for the other defendants. Now, the lawyers of the Madrid Bar who
defended the convicted persons before the Supreme Court of Military
Justice, notably Messrs. Gil Robl6s, Ruiz Gallardon and Zulueta,
only received the file 24 hours before the trial.26 The cases submitted
to military jurisdiction are often very complex, and this case was parti-
cularly so. This kind of restriction on the rights of the defence is liable
to cause serious detriment to the accused.
D. Admission of the Public to Trials
Although the investigation stage is secret, the proceedings before
the courts-whether civil or military-are public. Nevertheless, an
ordinary court may order a session in camera, either on its own
authority, or at the request of the prosecutor, whenever public morale
or order demands ", or out of respect for the injured party or his
family (Code on Penal Procedure, Section 680). A military court
may order a session in camera in the interest of the public morality,
discipline, or to protect secrets regarding the national defence (Code
of Military Law, Section 722). It is rare that a session in camera is
ordered, even in a military court or when it is a political trial. But
public attendance at the trials is often no more than an appearance.
In actual fact, in order to avoid the presence of too large a crowd at
the proceedings of a political trial, the government has adopted a
system, on several occasions, which is as ingenious as it is effective:
well before the beginning of the session, policemen in civilian dress
fill the benches reserved for the public, so that when the curious
spectators arrive, there is no place for them left.
26 An abstract of this file-which is of great importance-is given in Appendix 7.
As to the reports of court cases in the press, it is once more neces-
sary to draw the distinction between political trials and ordinary trials.
Censorship allows commentaries on ordinary penal cases to get by-if
they are sober, objective, and preferably moralizing. In this matter,
censorship accomplishes a beneficial task: every careful reader of the
Spanish press must admit that it does not contain news items which
play up the sensational, gory accounts, and the glorification of certain
criminals which constitute the commercial value of the reports of trials
in other countries. However, the use of censorship is entirely different
when political trials are involved. Thus, as was mentioned above,
the government may easily control the news and commentaries spread
by the press by the system of directives, and by compulsory insertions.
The newspapers, inasmuch as they are obliged to publish texts edited
by the government on the editorial page, play an important part in
reporting political trials. The government is certainly able to deliver
its own version of the facts to the public by means of the press.
Spanish legislation on penal procedure, whether civil or military,
provides a highly evolved system of review and appeal. This system
may hardly be distinguished from those of democracies. There is only
one blot in this picture: the absence of any appeal whatsoever avail-
able to the defendant in the case of a court-martial under summary
procedure-a procedure which is applied in a large number of prose-
cutions involving offences against the State and the regime. In this
way, the regime deprives persons against whom it has initiated legal
proceedings of a political nature, of those guarantees essential to their
Modern Spain rests upon foundations that were laid at the time
of the civil war. The Commander-in-Chief of the rebelling seg-
ments of the army was appointed Chief of State in the third month
of a civil war that raged for almost three years. In this capacity,
he was given full powers (Decree of September 29, 1936) including
the unlimited power of making laws. The concentration of power
in the person of General Franco, in spite of certain self-imposed
limitations, is the most prominent feature of the modern Spanish
State. Luis Sanchez Agesta stresses the exceptional character of the
office of the Chief of State who is provided with extraordinary powers,
and describes it as the consequence of the charismatic authority
attributed to General Franco. His office constitutes a personal
ascendancy belonging to a specific personality and is based on faith
in the individual competence of its bearer; it will expire with his
death or incapacity. 27 When, in the year 1937, Franco made the
political platform of the Falange party into a State ideology, he
wanted, according to his own words, to transform Spain into a totali-
tarian State. Subsequently, especially after the second World War,
he moved away from totalitarianism in certain statements. He did
not, however, abandon the intolerance and subjugation of all opposi-
tion which characterize a totalitarian system. After the victory of the
civil war party under his command he ruthlessly settled accounts with
the opposition, on the basis of a retroactive penal law (Law on
Political Responsibilities of February 9, 1939).
The numbers of the opposition from the time of the civil war
-numbers which run to six figures-who were thrown into prison
will be found on p. 65 of this Report. According to a communi-
cation received by the Associated Press correspondent, Charles Foltz,
from an official of the Spanish Ministry of Justice, the number of
death sentences carried out between April 1939 and June 1944
amounts to 192,684,28 though this was probably a considerable
exaggeration ".29 It is nevertheless hardly possible to deny the bitter
27 Luis Sanchez Agesta, op. cit., p. 403.
28 Stanley G. Payne, Falange (Stanford, California: Stanford University Press,
1961), p. 242.
phrase "render immortal the frontier traced in blood ". 0 More-
over, Luis Gonzales Vic6n, a leading Falangist, wrote to his friend
fellow party member, Arrese, in 1956, saying that one of Spain's
fundamental political problems was due to the fact that it had failed
to end the civil war.
In this very moment, the difference between being a Red or a non-Red,
between having supported the Movement or not, in other words between
conquerors and conquered, is a reality in national life and in the adminis-
trative decisions of the government. The accessibility of power which is
perfectly delimited between conquerors and conquered, the treatment of
citizens in which the difference is equally marked, the chance for social
influence and many other factors, clearly indicate that this most grave problem
still lacks solution. If this is so obvious from our camp you can easily
imagine how it appears from the other side. They not only regard them-
selves as defeated and politically unsatisfied; they see themselves treated as
second-class Spaniards and exaggerate the injustice which they receive,
building up hatred against the other half whom they think the cause of the
The Law on Political Responsibility was abrogated in the year
1945. However, already earlier, on March 29, 1941, a State Security
Law comprising 66 Sections was issued. This was followed by other
special laws whose purpose was the protection of the regime. These
are nowadays no longer in force because their provisions have largely
been taken over by the regular penal legislation. The present penal
legislation which serves to protect the State and the regime is mostly
to be found in the Penal Code; in the Code of Military Law; in the
Law on Public Order of July 30, 1959; and in the Decree of September
21, 1960. Spanish political penal legislation contains numerous
offences constituted by the expression of an opinion. It is hardly
possible to find a single form of opposition activity which is not
threatened by legal sanctions. According to the Decree of Septem-
ber 21, 1960, the following activities are punishable as military
rebellion: spreading false or tendencious news capable of damaging
the prestige of the State, its organization, the government, the army
or the officials; strikes, sabotage, and any other similar act ", to
the extent to which they are based on political motives. Political
offenders are often placed at a great disadvantage in judicial pro-
ceedings, especially whenever they are tried under the summary
procedure of the Code of Military Law.
The Law of July 17, 1942, re-established the Spanish Cortes, but
in a new form; the members are no longer representatives of a people
organized into political parties. Moreover, their powers are so
limited, that it is completely justifiable to designate them as merely
consultative bodies. They draw up law drafts relative to certain
80 E. de la Souchere, Explication de l'Espagne (Paris: Ed. Bernard Grasset, 1962),
31 Payne, op. cit., p. 253.
areas which are definitely enumerated in the legislation of the Cortes.
Without ratification by the Chief of State the projected laws elaborated
by the Cortes do not become law. The preamble of the Law Creating
the Cortes recalls the Laws of January 30, 1938, and August 8, 1939.
which vested the Chief of State with unlimited powers of legislation.
It goes on to characterize the new Cortes as an instrument of legis-
lative cooperation created according to the principle of self-
limitation (of Franco's power). Laws which do not concern one
of the topics enumerated in the Cortes Law, are laid down by the
Chief of State without the collaboration of the Cortes. Moreover,
the Cortes does not exercise its consultative powers when the govern-
ment has declared a State of Emergency or siege. The declaration,
continuation, or termination of the State of Emergency or siege is
not under control of the Cortes.
After the end of the second World War, General Franco deemed
it opportune to play down the authoritarian dictatorial character
of his regime through the introduction of several laws having a
democratic and liberal appearance. This was brought about chiefly
through the establishment of the Charter of the Spanish People
of July 13, 1945, and the Referendum Law of October 22, 1945. The
latter provides that the Chief of State may, in order to serve the
nation more faithfully ", submit to a referendum certain laws which
have been elaborated with the collaboration of the Cortes, if their
importance or the commonweal make it seem advisable. While
the initiation of such a referendum is left completely to the judgment
of the Chief of State, the Law of Succession of June 7, 1947, introduced
a compulsory referendum for the abrogation or change (not, however,
for the introduction) of any of the so called fundamental laws. This
obligatory referendum is the only genuinely democratic institution
in Spanish Public Law. Thus, for example, the annulment or alter-
ation of the Charter of the Spanish People is subject to a referendum.
Nevertheless, this is devoid of practical significance, since the most
important Fundamental Rights contained in the Charter have already
been undermined by legislation and administrative practice.
Already in the text of the Charter a reservation is to be encountered,
which is capable of legalizing various interference with Funda-
mental Rights. The exercise of Fundamental Rights must not
compromise the spiritual, national or social unity of Spain. This
condition goes significantly further than the reservations of public
order, health, morality, etc. Another provision, also contained in
the Charter, further empowers the government to suspend temporarily
such important Fundamental Rights as the freedom of speech, free-
dom of association and assembly, freedom of residence, inviolability
of correspondence, and the inviolability of domicile-and this without
the necessity of a State of Emergency or siege having to exist. An
illuminating example is furnished by the Decree of June 8, 1962,
through which the freedom of residence was suspended for a period
of 2 years within the entire national territory. This Decree was
issued because 80 Spaniards from inside Spain met 38 exiled fellow
citizens in Munich and participated with them in the Congress of
the European Movement, where they submitted the resolution cited
on pages 41-42. According to its preamble, this Decree was issued
because The campaigns directed from abroad against the prestige
and reputation of Spain which found an echo in certain persons,
who have abused the rights accorded by the Charter [of the Spanish
People] ". This event was regarded by the Spanish Government
as sufficient grounds for depriving all Spaniards living on national
territory of their freedom of residence for a period of 2 years.
The exercise of certain freedoms contained in the Charter has
for years been rendered impossible by the respective legislation.
This is especially true of the legislation governing the press, through
which the press is completely gagged. Freedom of association is
in a similar predicament. Freedom is not granted in precisely that
area in which there is the most urgent need for an organized and
autonomous union of individuals, namely in the creation of political
parties and labour unions, activities which are forbidden and
punishable by law. Even the single party which is permitted,
the Falange, or National Movement, does not enjoy freedom of
It would be erroneous to designate Spain as a one-party State.
It is true that the Falange Espahola, the JONS, and the Carlists had
freely evolved and organized themselves as political parties or move-
ments, under the Spanish Republic. Subsequently, however, they
were so to say nationalized to a certain extent by Franco through
the Decree of April 19, 1937, which merged them. The organiza-
tional structure of the new party was determined by State decrees.
The Chief of State made himself leader of the party and empowered
himself with the prerogative of appointing the members of the highest
collective organ of the party, the National Council. In order to
consolidate his position in the Falange by altering its original com-
position, General Franco even resorted to the compulsory recruitment
of members. In this way, all army officers and non-commissioned
officers were forcibly incorporated as members. Similarly, in pur-
suance of the Law of October 1, 1938, everyone who had been sen-
tenced to deprivation of personal liberty for political reasons within
republican territory, became a member of the Falange. The hetero-
geneous character of the Falange which had become the State party
was clearly revealed in the composition of the first National Council
of the Falange appointed after nationalization ". Of the 50 Na-
tional Council members, not more than 20 were members of the
original Falange Espalola and 8 were Carlists, 5 were Generals.
The remaining 17 members represented a selection of monarchists,
conservatives, and opportunists. The Falange, far from control-
ling the state, was no more than an instrument for holding the state
together ".32 It has remained the instrument of the dictatorship of
the Chief of State and leader of the party.
These circumstances are not denied by the original Falangisks
(camisas viejas). When in 1956, a committee presided o\er by the
Secretary-General of the party, received the commission from
General Franco, of preparing a reform of the fundamental laws and
the party statutes, Luis Gonzalez Vicbn, who has already been alluded
to, expressed himself very forcefully on the subject. In his letter of
June 8, 1956 to the Minister and party secretary, Arrese, he wrote
with great emphasis against the maintenance of the Filhrerstaat and
dictatorship, and for the following reasons:
1. Because of the mortality and mutability of men.
2. Because it [dictatorship] bears within itself an absolute rule that can,
in some cases, result in tyranny.
3. Because in it is employed the personal and direct method of naming the
commander, with its grave consequences of coercing leaders, [promoting]
servility, and denying liberty to men who fulfill functions of judging and
acting, and with the danger that when the commander errs (and the com-
mander errs since he is a man, even though he may err less than other men),
the error is automatically supported by everyone and can take the dimensions
of a cataclysm.
4. Because, unfortunately, men are capricious, above all, the men who
are more highly placed, and the country cannot be forced to suffer the caprice
and fickleness of any one man no matter how high he may be.
5. Because this procedure of force and command from the top downward
unleashes in the nation the activity of all the incorrigibles of unmerited
ambition, since one arrives at a position of influence through personal con-
nection and not through work, political service, knowledge, or personal
6. Because there is no way, in this type of command, to take advantage
of a country's wealth of talent, since all nominations have to be made among
those who are known by or visible to the one who makes the appointment,
and one man, however exceptional he may be, can never have before his
sight or imagination more than a limited number of persons, and no filing
system can replace personal acquaintance.
7. Because a selection of the worst is made, since only those are seen whose
temperament, economic ambition, or lack of employment lead them to make
These considerations and opinions of Vic6n, reproduced above,
are the result of observations and experiences on the part of a person
who by reason of his position was permitted to see behind the scenes.
To this extent they are illuminating a self-portrait as well as a self-
criticism of the regime.
Doubtlessly, the Falange is one the main stays of Franco's power,
like others-especially the army. Inasmuch as it represents a power
factor, it serves as a counterweight against other power factors,
32 Payne, ibid., p. 200.
3S Ibid., p. 254.
since its weight-as has been shown repeatedly-may be regulated
according to the needs of the moment.
The fact that the Spanish regime happens to call itself Na-
tional Syndicalist" proves that the corporative organization of its
economy is one of the foundation stones of the constitutional organi-
zation of Franco's Spain. The representational character ascribed
to the Spanish State by various fundamental laws is chiefly derived
from the function and organization of the vertical syndicates.
These syndicates are official unions which workers and employers
are obliged to join; they are directed by the State by means of
the Falange which is itself incorporated into the structure of the
State and subject to its authority. As far as representation of
the labouring classes and their vital interests by the syndicates
is concerned, the legal organization of the unions described above
already makes the effective fulfilment of this task highly questionable.
In the section of this Report devoted to the syndical organization,
mention was made of the letter written on November 15, 1960, by the
Cardinal-Primate of Spain to the Minister Secretary-General of the
Movement, Sr. Solis. In this letter it was pointed out that the
contemporary organization of the syndicates granted no "genuine
representation to the working classes. The 339 Basque priests
expressed themselves even more clearly in their letter of May 30, 1960,
to the four Basque Bishops: The Spanish syndicate ... is neither a
trade union nor Christian '. It is the creation of the State, and it
defends the interests of the State... genuine trade unionism, i.e.,
free trade unionism, springing from the working class and enjoying
its confidence, is not only a right of the masses, but still more it is
the most effective and suitable means in existence to-day by which
the masses can exercise their responsibilities in social and economic
life, responsibilities which involve both rights and duties." 34
The available data on salaries and the distribution of income
seem to justify the opinion of the Basque priests. The monthly
wages earned by the majority of Spanish workers vary between 1,000
and 1,500 pesetas. The legal minimum daily wage is 36 pesetas,
whereas, according to a declaration of the Archbishop of Seville on
March 3, 1962, a married industrial worker with two children should
earn at least 110-120 pesetas a day in order to live decently. The
periodical Ecclesia published a pastoral epistle of the Bishop of
Bilbao in its February 10, 1962, issue, containing the following
Recent statistics show that Spain is one of the countries with the lowest
popular income in the whole of Europe. On the other hand, with regard
to unnecessary expenditure it is third highest of all the countries in the world.
The luxury and urge to extravagance of the wealthy classes is a provocation
to those who lack the essential necessities in order to lead a dignified human
14 The text of this letter is reproduced in Appendix 8.
existence, and they give rise to a pathological condition within the social
An attempt, initiated by the Falangist syndicates officials to
improve the position of the workers through a structural reform,
was decisively defeated in the second Congress of Syndicates in
Franco declared in a speech made before an earlier National
Congress of Syndicates on January 24, 1945, that Spain was a Catholic
Welfare State and that the Catholic spirit, which permeated the
whole of life, was the best guarantee against the misuse of State
power. There is a grain of truth in this statement, as is revealed
today. In the foregoing sections of this Report, we have repea-
tedly pointed to the strong position of the Catholic Church and those
rights accorded by the Concordat and by legislation. Associations
with a religious purpose enjoy freedom of association. The period-
ical, Ecclesia, is not subject to State censorship of the press. The
associations of Catholic Action are permitted to freely carry out
their apostolate under supervision of the Church hierarchy, etc.
The Church, today, makes use of the freedom of expression of
ideas in speech, writings and in associations-namely by means of
the HOAC. It does so in order to criticize State social policy includ-
ing the structure of the syndical organization. The Church did not
even hesitate to postulate the act of striking, under certain circum-
stances, as one of the rights of the workers, even though the legisla-
tion for the protection of the State had equated strike with military
rebellion. The Church's intervention in the discussions on social
policy is based upon the social philosophy propounded in the ency-
clical Mater et Magistra. This encyclical, which met with an enor-
mous response in Spain, enables the Church to claim the undisturbed
propagation of the Catholic social doctrine as part of the apostolate,
the free exercise of which was guaranteed by Article 34 of the
DECREE TO PROMULGATE THE LABOUR CHARTER
DATED MARCH 9, 1938 *
Chapter I. Status of Labour
1. Definition. Labour is the participation of man in production
by the voluntary exercise of his intellectual and manual powers
according to his individual vocation, in harmony with the dignity
and comfort of his existence and the satisfactory development of
the national economy.
2. Dignity of labour. Labour is essentially personal and human
and shall not be regarded as a mere commercial commodity nor be
the subject of any transaction incompatible with the personal dignity
of the worker.
3. Right to work. The right to work is the consequence of the
duty imposed on man by God, for the achievement of his individual
aims and for the prosperity and greatness of his country.
4. Protection of labour. The State shall esteem and dignify
labour as the fertile expression of the creative spirit of man and with
this conception shall protect it with all the authority of the law,
bestow upon it every possible advantage and make it compatible with
the achievement of the other aims of the individual, family, and com-
5. Social duty required of all Spaniards. Work shall be regarded
as a social duty and as such shall be exacted in one form or another
from every Spaniard capable of performing it, as a compulsory contri-
bution to the national wealth.
6. The State as the guardian of the worker. Work is one of the
most noble attributes of rank and honour and constitutes a sufficient
claim to the assistance and protection of the State.
Source: International Labour Office (Geneva, Switzerland), Legislative
Series, 1938, Sp. 1; based on text found in Boletin Oficial del Eslado, March 10,
1938, No. 505; errata: B.O., March 11, 1938, No. 506.
7. Conditions and aims of work. Service is work performed under
conditions of heroism, unselfishness and self-sacrifice, with the object
of contributing to the higher good represented by the Spanish State.
8. Right to work. All Spaniards shall be entitled to work. The
satisfaction of this right shall be the primary duty of the State.
Chapter II. Regulation of Employment
1. Hours of work; prohibition of night work for women and chil-
dren; homework; prohibition of employment of married women in work-
shops and factories. The State shall assume responsibility for con-
stant and efficacious action for the protection of the worker, his life
and his labour. It shall place suitable restrictions upon hours of
work, in order that the working day shall not be excessive, and shall
safeguard labour by affording it every possible guarantee of a protec-
tive and humanitarian character. In particular, it shall prohibit night
work for women and children, regulate homework and set married
women free from the ties of the workshop and factory.
2. Sunday rest. The State shall maintain Sunday rest as an
inviolable condition in the performance of work.
3. Religious festivals and civil holidays. With due consideration
for the technical needs of the undertakings concerned, the law shall
require observance of the traditional religious holidays and statutory
civil holidays and attendance at the ceremonies ordered by the national
authorities of the Movement, without loss of remuneration.
4. Labour Day. The eighteenth day of July is hereby declared
a national holiday in commemoration of the glorious Revolt and shall
be celebrated as the National Labour Day.
5. Annual holidays with pay. Every worker shall be entitled to
annual holidays with pay, in order that he may enjoy a well deserved
rest; for this purpose institutions shall be set up to ensure the best
application of this provision.
6. Workers' spare time. The necessary institutions shall be set
up to provide workers during their spare time with facilities for the
enjoyment of all benefits of education, recreation, military training,
health and sports.
Chapter III. Remuneration
1. Minimum wage. The remuneration for work shall not be less
than the amount sufficient to enable the worker and his family to
live a fitting and honourable life.
2. Family allowances. Family allowances shall be introduced by
means of suitable organizations.
3. Standard of living of workers. The workers' standard of
living shall be raised gradually and steadily, in so far as the superior
interest of the nation may permit.
4. Mutual duties of employers and employees. The State shall
lay down principles for the regulation of employment and the relations
between employees and employers shall be established on the basis
of these principles. The fundamental basis of these relations shall be
the performance of work and remuneration therefore and further the
mutual duties of loyalty, assistance and protection on the part of
employers and faithfulness and obedience on the part of employees.
5. Conditions under which work is performed. The State shall
take steps to ascertain through the industrial associations that the
economic and other conditions under which work is performed satisfy
the just claims of the workers.
6. Guarantee of stability of employment. The State shall take
measures to ensure stability of employment.
7. Information to be given by employers to their employees res-
pecting the progress of production. Employers shall inform their
employees of the progress of production in so far as may be necessary
to strengthen in them a sense of responsibility in the work of the
undertaking, under the terms and conditions laid down by law.
Chapter IV. Handicrafts
1. Encouragement and protection. Handicrafts, the living heri-
tage of a glorious corporative past, shall be encouraged and efficacious-
ly protected, as being the complete reflection of the human personality
of the worker in his work and a form of production having as little
in common with capitalistic concentration as with Marxist collec-
Chapter V. Agriculture
1. Principles of work. The principles governing work in agri-
cultural undertakings shall be adapted to the special characteristics of
this form of work and the seasonal variations imposed by nature.
2. Technical instruction. The State shall pay special attention to
the technical instruction of the farmer to make him capable of per-
forming all the various processes necessitated by the operation of a
3. Revaluation of agricultural products. The prices of the prin-
cipal products shall be regulated and revised for the purpose of
ensuring minimum profits for the farmer in normal circumstances,
and consequently requiring him to pay to the workers rates of wages
which will allow them to improve their living conditions.
4. Small holdings. Every peasant family shall be granted a small
holding or family plot which will enable the family to meet its essential
needs and will provide occupation in case of unemployment.
5. Rural housing. The standard of rural life shall be raised by
improving rural housing and health conditions in the villages and
hamlets of Spain.
6. Stability of employment in agriculture. The State shall ensure
stability of employment in agriculture by means of long-term con-
tracts which will guarantee the farmers against unjustified notice and
ensure them the full benefit of any improvements made in the land
farmed by them. The State is desirous of providing suitable means
for the transfer of the land on equitable terms to those who are
directly engaged in its development.
Chapter VI. Maritime Workers
1. Protection of seamen. The State shall devote special care to
maritime workers and shall provide them with suitable institutions to
prevent the depreciation of merchandise and help them to acquire the
means necessary for the exercise of their calling.
Chapter VII. Labour Judicature
1. Transfer of judicature to the State. A new labour judicature
shall be set up based on the principle that the State is responsible for
Chapter VIII. Organisation of Undertakings
1. Definition of capital. Capital is a means of production.
2. Hierarchy of elements of production. The undertaking as the
producing unit shall organise its component elements in a hierarchy
which shall subordinate material requirements to the human elements
and both to the common weal.
3. Management of undertakings and responsibility therefore. The
head of the undertaking shall himself assume the management thereof
and shall be responsible thereof to the State.
4. Distribution of profits. The profits of the undertaking, after
deduction of an equitable interest on capital, shall be utilised primarily
for the constitution of the reserve necessary for the stability of the
undertaking, the improvement of production and the amelioration of
the conditions of employment and standard -of living of the
Chapter IX. Credit
1. Credit. Credit shall be organised so as to contribute to the
establishment and maintenance of small undertakings in agriculture,
fishing, industry and commerce, while at the same time fulfilling its
task of developing the wealth of the nation.
2. Prosecution for usury. Honesty and confidence based on com-
petency and work shall constitute effective guarantees for the granting
of credit. The State shall prosecute relentlessly every form of usury.
Chapter X. Social Welfare and Insurance
1. Purpose of social welfare. The social welfare system shall give
the workers the certainty of protection in case of misfortune.
2. Social insurance. The various branches of social insurance,
namely, insurance against old age, invalidity, maternity, industrial
accidents, occupational diseases, tuberculosis and unemployment, shall
be developed with a view to the organisation of a complete system of
insurance. In the first place measures shall be taken to ensure the
provision of adequate superannuation allowances for aged workers.
Chapter XI. National Production
1. Economic unity; subordination of production to the national
interest. National production shall constitute an economic unit in
the service of the nation. It shall be the duty of every Spaniard to
defend, improve and augment production. All factors of production
shall be subordinated to the supreme interest of the nation.
2. Interference with the normal course of production. Individual
or collective action which tends in any way to disturb or impede the
normal course of production shall be deemed to be a crime against
3. Reduction of output. The fraudulent reduction of output shall
be suitably punished.
4. Lack of private enterprise. As a general rule the State shall
not engage in production unless this is necessary owing to lack of
private enterprise or in the higher interest of the nation.
5. Unfair competition. The State, acting directly or through its
industrial organizations, shall prevent unfair competition in the field
of production and also any activities which hinder the normal stability
or development of the national economy, and on the other hand shall
encourage all efforts which tend to promote improvements in pro-
6. Private enterprise. The State recognizes private enterprise as
the perennial source of the economic life of the nation.
Chapter XII. Private Property
1. Recognition, protection and limitation of private pp r'p ti '. The
State recognizes and protects private property as the natural means
for the fulfilment of the functions of the individual, the family and
the community. All forms of property shall be subordinated to the
supreme interest of the nation, of which the State is the embodiment.
2. Facilities for ownership and the extension thereof. The State
assumes the task of multiplying and making accessible to all Spaniards
the forms of ownership which are vital to the individual as a human
being, namely, the family home, inheritance of land and the tools and
implements of work for daily use.
3. The family heritage exempt from attachment. The State
recognizes the family as the natural nucleus and foundation of society
and at the same time as a moral institution endowed with inalienable
rights superior to any positive law. As a further guarantee of its
maintenance and continuity the family heritage shall be exempt from
Chapter XIII. National Trade Union Organisation
1. Fundamental principles. The national trade union organisa-
tion of the State shall be based on the principles of unity, totality
and graduated authority.
2. Vertical unions. All factors of economic life shall be incor-
porated in vertical unions according to branches of production or
services. The liberal and technical professions shall be organised in
a similar system, in conformity with the provisions to be laid down
3. The vertical union. The vertical union shall be a public body
incorporating in a single organisation all elements which are engaged
in the economic process in a specified service or branch of production;
the union shall be organised in hierarchic grades under the direction
of the State.
4. Trade union authority. The direction of the unions shall
devolve necessarily upon the militant members of the Spanish Tradi-
tionalist Falange and the Young Workers' National Trade Union
5. Subordination of the unions to the State. Powers and duties
of the unions. A vertical union shall be an instrument in the service
of the State and shall constitute the principal medium through which
the State will put its economic policy into effect. It shall be the duty
of the union to study problems of production and recommend solu-
tions, in accordance with the national interests. The vertical union
may take part in the regulation, supervision and application of con-
ditions of employment, through bodies specially equipped for the
6. Bodies dependent on the unions. A vertical union may set up,
maintain or supervise institutions for research, for moral, physical
and vocational education, for welfare and relief and for other social
purposes affecting persons engaged in production.
7. Employment exchanges. Employment exchanges shall be set
up with a view to providing employment for workers according to
their ability and merits.
8. Production statistics. It shall be the duty of the unions to
furnish the State with the data requisite for the compilation of statis-
tics of production.
9. Incorporation of economic and industrial associations. The
law respecting the organisation of trade unions shall specify the manner
in which the existing economic and industrial associations shall be
incorporated in the new organisation.
Chapter XIV. Protection of National Labour
1. International treaties. Spanish workers abroad. The State
shall issue the necessary provisions for the protection of Spanish labour
in Spain and shall take steps by means of labour treaties with other
Powers to secure protection of the conditions of employment of Spa-
nish workers resident abroad.
Chapter XV. National Renaissance
1. Equality of rights and duties of all engaged in production. At
the time of the promulgation of this Charter Spain is waging a heroic
struggle in which she is upholding the spiritual and cultural values of
the world at the sacrifice of no small portion of her material riches.
It shall be the duty of all citizens in every branch of economic life
to manifest the same spirit of gallant self-sacrifice as is shown by the
youth of Spain on the battlefield and by Spain herself.
Accordingly, in this Charter of rights and duties the State has
enumerated, as being the most urgent and imperative, the rights and
duties of those elements of production which must make a just and
resolute contribution towards the rebuilding of Spain and the laying
anew of the foundations of her might.
Chapter XVI. Honour to the Fighting Forces
1. Preference to be given to members of the fighting forces in posts
of labour, honour, and command. The State hereby undertakes to
appoint the youthful combatants to the posts of labour, honour and
command, to which they have a right as Spaniards and which they
have won as heroes.
ACT OF JULY 17, 1942, CREATING THE SPANISH CORTES
AS AMENDED BY ACT OF MARCH 9, 1946. *
Art. 1. The Cortes are the superior body through which the
Spanish people participate in the tasks of government. The principal
mission of the Cortes consists in the preparation and elaboration of
laws, subject to the concurrence of the Chief of State.
Art. 2. The members (procuradores) of the Cortes are ex officio
or elective, to wit:
(a) The Minister [of State];
(b) The national councilors;
(c) The presidents of the council of state, of the Supreme Court of Justice,
and of the supreme court of military justice;
(d) Representatives of the national syndicates (guilds and labor unions)
not to number more than one-third of the total number of the members;
(e) The mayors of the fifty provincial capitals, those of Ceuta and Melilla
(Morocco), and a representative for each of the other municipalities within
each province, elected by the municipalities from among their numbers;
a representative for each provincial deputation and interisland communal
council of the Canary Islands, elected by these corporations from among
(f) The presidents of the universities;
(g) The president of the Spanish Institute and two representatives elected
from among the members of the royal academies of which it is composed;
the president of the higher council for scientific research, and two represen-
tatives of the same elected from among its members;
(h) The president of the institute of civil engineers and one other represen-
tative of the same, elected by the president of the association of engineers;
two representatives of the bar associations; two representatives of the medical
association; a representative of the pharmacists association; a representative
of the veterinarians association; a representative of the architects association;
a representative of the association of bachelors and doctors of arts and sciences;
a representative of the public notaries association; a representative of the
national corporation of registrars; and one representative of the association
of solicitors-all elected by their respective associations; three representatives
of the official chambers of commerce, elected by their respective chambers;
Source: Amos J. Peaslee, editor, Constitutions of Nations (The Hague:
Martinus Hijhoff, 2nd ed. ,1956), pp. 285-287; texts based on translations provided
by the Spanish Embassy in Washington, D.C.