depuracio-personal/context-juridic - Arxiu General

The purge processes of civil servants were carried out basically under the protection of three legal provisions:

• Ley de 9 Febrero de 1939 de Responsabilidades Políticas which, in essence, did the following: typify the essential corpus of punishable conduct (without any appearance of respecting the principle of typicality, since any specific conduct or serious passivity contrary to the “Movement” was punishable), which gave rise to political responsibilities and could involve sanctions limiting activity, freedom of residence or economic ones; establish the bases of the procedures for the demand of political responsibilities (setting up an inquisitorial procedure, in the procedural sense of the term, as well as a separate part for economic responsibilities); and finally, establish a jurisdictional and administrative structure so that the processes could be applied, with the National Court of Political Responsibilities, dependent on the vice presidency of the government, as the highest responsible, and which proposed to the vice presidency the creation of regional and provincial investigative courts.

• Ley de 10 de febrero de 1939 fijando normas para la depuración de funcionarios públicos, establishing standards for the purge of public officials, which specified the aforementioned conduct and sanctions and defined the procedure, which followed the following outline: request for reinstatement based on a sworn statement, instruction aimed at determining the conduct of the officials, proposal for admission without sanction or initiation of disciplinary proceedings, elevation and possible intervention of the Head of the National Service to request additional proceedings (especially in cases in which it was proposed that the person be admitted without sanction), hearing of the accused, statement of charges, response of the interested party and resolution of the case by the respective minister, possibility of review.
• Orden 12 de marzo de 1939 de depuración de funcionarios de la Administración Local en relación con el Movimiento National, which culminating in this cascade structure, specified these procedures at the local level. As singularities, it is worth mentioning that it was applicable to all civil servants (not only those in the "liberated" areas), the instructor could be a manager of the corporation or a civil servant (even of the State) with authorization from the Head of the Department in which he provided services, the corporation could order the practice of new proceedings and it was also the corporation that resolved the file, without prejudice to the possibility of appeal before the Ministry of Interior (which was interposed before the Civil Government of the Province). Within the framework of the Barcelona Provincial Council, from an organic point of view, the processes had a hybrid/mixed nature, since the investigation and proposed resolution was in charge of a special investigating court (in charge of a judge appointed by agreement of the war auditor of the IV Military Region in September 1939), and the resolution of the file was handled by the corporation itself (at that time a Management Commission appointed by decree of the Minister of Government, Ramon Serrano Suñer, and chaired by Antoni M. Simarro). This justifies that the files are in the archives of the Barcelona Provincial Council, and not in the judicial or military archives.

Finally, it is necessary to mention other complementary regulations to the three previously mentioned, within the framework of the purification processes, such as:

• Orden de 27 de febrero de 1939 on the payment of salaries to temporary local administration officials mobilized.
• Orden de 28 de febrero de 1939 on the purge of officials and employees of charitable entities. This order included all staff whether administrative, faculty, technical, ecclesiastical, subordinate or of another order.
• Orden de 20 April de 1939, by which the amount of assets to be received by the civil servants subjected to purge is determined.
• Orden de 2 de junio de 1939 clarifying the one of April 29 last regarding receipt of assets by officials subject to purge.
• Circular de 22 julio de 1939, on the duration of the information in the clearance files of officials.
• Decreto de 25 de agosto de 1939 providing that the State officials dismissed by the Red Government will have the right to receive their salaries.
• Circular de 19 de octubre de 1939, encouraging the Civil Governors to excite the zeal of the local Corporations of their provinces so that they print the greatest activity in the expedients of purification of their officials.
• Orden de 11 de noviembre de 1939 for the purge of officials on leave of absence or waiting for assignments from the local administration.
• Orden de 21 de diciembre de 1951 by which rules are issued to the effect that the local Corporations can proceed in certain cases to review the files of political-social purification of their officials.

We will analyze the legal basis currently in force that legitimizes the current process of opening to the public the files of the purge of civil servants of the Barcelona Provincial Council.

• Spanish constitution, which in its art. 20 recognizes the fundamental right to freedom of information (section 1.d), which must be placed in relation to article 105.b) which refers to the access of citizens to administrative archives and records (with the limits of the security and defense of the State, the investigation of crimes and the privacy of individuals). However, as no fundamental right is absolute, in this case the right to freedom of information could affect the rights to the protection of personal data (in particular, the right to be forgotten or deleted) and to the honor and privacy (present or past) of the people affected by these files. This involves making a balancing judgment in the following terms:

a) Right to be forgotten (or deletion of personal data): the GDPR itself (art. 17.3) excludes the right to be forgotten when the processing is necessary to exercise, among others, the right to freedom of information (section a) or to fulfill purposes of public interest, scientific, historical or statistical research (section d). The SSTJUE of 13 May 2014 (case C-131/12) and 24 September 2019 (case C-136-17) reiterate this.

b) Right to honour: the jurisprudence of the Constitutional Court is clear (SSTC 138/1996, 144/1998, 21/200, 112/2000, 76/2002, 61/2004, 43/2004, 58/2018): in essence, it states that freedom of information has a preferential character, given that these are facts of historical relevance and that, in addition, affect the professional (not private) life of those affected.

• Ley 16/1985, of 25 of junio, of the Spanish Historic Heritage (art. 57.1.c) and 49.2). It establishes the general principle of free consultation of the documents that constitute the Spanish documentary heritage, with exceptions linked to the classified nature of the information, the impact on national security or defence or the express provision of a law.
• Law 52/2007, of 26 of December, which recognizes and extends rights and establishes measures in favour of those who suffered persecution during the civil war and the dictatorship (Historical Memory Law). Article 22 of the Law establishes a reinforced right of access, guaranteeing the right of access to documentary funds deposited in public archives (and private archives supported with public funds) and obtaining copies that are requested, for the purposes of the law, which according to its article 1 is to: “recognise and extend rights in favour of those who suffered persecution or violence, for political, ideological or religious reasons, during the Civil War and the Dictatorship, promote their moral reparation and the recovery of their personal and family memory.” Law repealed by Law 20/2022, of 19 October, on Democratic Memory.
• Law 19/2013, of 9 of December, on transparency, access to public information and good governance, which develops art. 105.b) EC. According to its article 13, this information is public information (when it is held by one of the subjects included in the scope of application of the law), and access to personal data, even if they are specially protected, is legitimate if it is protected by a rule with the rank of law (art. 15.2 LTAIPBG).
• Catalan law 19/2014, of 29 of December, on transparency, acces to public information and good governance (and Law 10/2001 of Archives and management documents, which refers to the access regime of the LTAIPBG). It is public information (art. 2.b) and is of public interest (art. 8.1.m), which alludes to the publication of any matter of public interest).
• Catalan law 11/2017, on legal reparation for victims of the Franco regime, declared illegal the courts of the War Audit of the Army of Occupation, later called the Audit of the IV Military Region, which operated in Catalonia from April 1938 to December 1978, for being contrary to the law and violating the most elementary requirements of the right to a fair trial. The law, in its first final provision, authorizes and entrusts the National Archive of Catalonia to publish a list of people who were instructed in military judicial procedures (courts of war, preliminary proceedings and similar). We have followed the initiative of the National Archive of Catalonia, given that the examining judge of the purge files appointed in September 1939 by the Management Commission of the Barcelona Provincial Council, was Salvador Viada López-Puigcerver, lawyer and captain of the Military Legal Corps of the IV Military Region.
• Ley 20/2022, of 19 of October, of Democratic Memory (art. 27, 48.3 and final willingness 8ª), which provides for free, free and universal access to public and private archives, as well as the consultation of historical documents that are part of documentary series or collections of Documentary Heritage assets on the coup d'état, the civil war and the Franco dictatorship.