Courts endorse erasing any reference to Franco from the Spanish Legion

Any reference to Franco in Spain can only mean one person: the former dictator Francisco Freanco who died in 1975. Any memory of the figure of the dictator - even if it refers to his military period before the 1936 coup and his dictatorship until 1975 - can be considered an apology for his figure and is illegal according to Spain's Law of Democratic Memory.

This is the opinion of the National Court, which has endorsed the decision of Margarita Robles' Ministry of Defence, which in January 2023 changed the name 'Bandera Comandante Franco' (Commander Franco Flag) to 'Bandera de España' (Flag of Spain). As the founder of the Legion, together with Lieutenant Colonel José Millán-Astray, the dictator gave his name until three years ago to one of the flags (equivalent to a battalion) of the elite unit of the Spanish Army.

The court dismissed an appeal filed by the Fundación Nacional Francisco Franco (Francisco Franco National Foundation), in which this group of nostalgics asked to keep the original name, on the grounds that the Ministry of Defence had acted in a sectarian manner for "exclusive ideological reasons".

In essence, the foundation argued that the name of this military unit had its origin in one of its founders, and not in the later figure of Franco as head of state. The foundation argued that the distinction of naming a flag with his surname was exclusively to remember the "historical fact that guaranteed the Spanishness of Melilla and its inhabitants". The foundation added that the mission of the Law of Democratic Memory is not to erase everything related to Francisco Franco, but to suppress elements of division between citizens.

The department led by Robles argued that the "norm considers the reference to the leaders of the dictatorship to be contrary to democratic memory, regardless of the reason by virtue of which the name was attributed and the date on which it was made".

The court, which agrees in all terms with the central administration, recalls the doctrine of the Supreme Court in this matter and points out that the change of name is covered by article 35 of the Law of Democratic Memory, which lists the measures whose purpose is to eliminate elements of division among citizens and which involve exaltation of the military uprising or the dictatorial regime.

In this case, it explains that, as the court argued, "the mere glorification of the highest leader of the previous regime is contrary to the principles and aims" of the Law of Democratic Memory, and the institutions must put an end to it.

"We cannot overlook the fact that the person who led the uprising in 1936 and the subsequent political regime is a symbol of these phases of Spanish history in the totality of his person and personality, in such a way that his military vicissitudes prior to 18 July 1936 cannot be excluded, as these previous military experiences and merits also placed him in the situation and with the necessary experience that allowed him, in the end, his leadership in the civil conflict", concludes the ruling, making it clear that the figure of Franco cannot be separated into two halves, before and after the coup that led to the Civil War and the almost 40 years of dictatorship.

The court also rejected the claim of the Francisco Franco foundation to present a question of unconstitutionality with respect to article 35 of the Law of Democratic Memory, since, in order to do so, there should be reasonable doubt as to the constitutionality of a regulation with the status of law applicable to the case, a condition that does not exist in this case.