What if the Supreme Court agrees with the Franco?




On page 90 of its application, the State Bar recognized that “it is not the intention of this party to deny the contrary [la familia Franco] the application of the provisions “in the Civil Code, while stating”the will of the State to pay the defendants the expenses that are legally appropriate to pay»In the incident of liquidation of the possessory state. A year earlier, the committee of experts created by the Ministry of Culture at the request of a unanimous agreement of the Parliament of Galicia reflected in its report on the Pazo de Meirás that “prudentially it can be classified as a possession in good faith” that exercised by the Franco’s grandchildren. Immediately afterwards, the opinion indicates that “this consideration implies that the reintegration” of the property “into the scope of public property of the State, in hypothesis, could represent a cost for the public purse”.

There is no evidence that the BNG detected “Franco’s stink” in the demand of the State or in the committee of experts, as it did with extreme lightness this week when referring to the Third Section of the Provincial Court of La Coruña. In the same way that the declarations of the leaders of the Galician PSOE surprise, that the matter should not have been read well. Why? Because the anomaly is neither in the appeal ruling, nor in the initial claim that gave rise to the entire judicial procedure, but in the judgment of the judge. Marta Canales.

With the Civil Code and jurisprudence in hand – and not a few civil experts consulted – even the possessor in bad faith must be reimbursed for the expenses necessary for the maintenance of a property. Even the descendants of a dictator, unless the Block aspires to a civil copyright, which is applied in one way or another depending on the recipient. In western democracies that is banished.

The Franco defense petitioned the Provincial Court on Friday for a certification of their appeal sentence, a simple formality prior to an eventual appeal to the Supreme Court. Those outraged with the recognition of “possession of good faith” have intoned in unison the request that the State or the Xunta also resort to the Supreme CourtAfter moving forward your initial intention is not to. “Whitening of the Franco regime”, as the BNG affirms, or simple and plain knowledge of the Law?

In an Agreement of the Plenary of the Supreme Court of 2017, the strict requirements of the cassation appeal were established, and the limitations when raising it. Among them was that it must be respected «the assessment of the evidence contained in the judgment under appeal“, So that” a review of the proven facts or a new evidentiary assessment cannot be claimed. ” This is relevant in the case of Meirás, since the decision of the Hearing considers that there was no bad faith in the possession, nor any probative element that supported that affirmation. “Bad faith is not necessarily transferred to the heirs, as seems to be understood,” he goes on to say. The starting point for the State or Xunta to appeal is very complex, since it would demand from the Supreme Court a very exceptional reading of its own doctrine.

Recover the Pazo

The possibility that the Supreme Court – in the event that it admits the hypothetical appeal of the Franco family – will undo everything that has been done to date and restore the Pazo to its previous owners is a scenario that cannot be ruled out by any legal operator. It is different if it ends up happening. The appeal ruling reduced much of the historical noise that Judge Canales made in her initial ruling.

The magistrates considered that the pages and pages of the ruling on who or how the Pazo was paid, the environmental considerations of the incipient dictatorship, the alleged coercion to carry out the popular subscription or the sale of the neighboring farms in no way affect the subject of the dispute: if the State complied with the formal requirements to usucapir Meirás, and if in case of doing so, the Francs could reverse the procedure with a new usucapion in their favor.

On this, and only this, the Supreme will say if it is finally asked. The whole account of the looting and usurpation is unproven. «It is not enough to say that things have happened in a specific way“, Recalls the Hearing,” the facts are in need of proof so that they can be considered in the process as actually happened.

Regarding whether the State usucked or not, the magistrates themselves recognized “the great factual doubts that arise when it comes to clearly assessing the events that occurred.” At various points there is an impact on that, on the “doubts.” In the section on the imposition of costs, even “serious doubts of fact and law” are admitted.. Despite this, it is ruled in favor of the State because it is understood that it occupied the farm, invested in its reform and maintenance until 1975 and owned it as owner, although not exclusively. It will be on these requirements where the Supreme has to pronounce.

In the second scenario, that of the second usucapion by the Francs, there is a previous barrier: the consideration of public property of Meirás once it becomes public ownership and is used for an institutional purpose as the headquarters of the Head of State during summer periods. The Court, unlike Canales, does recognize that there may be a tacit disaffection of an asset, becoming patrimonial, and therefore it would be possible to acquire it by usucaption. But he doesn’t think it happened in this case. However, he admits that the Francos “have been using the Pazo de Meirás in a public, peaceful, uninterrupted way and as owners” for more than four decades, that is, with all the requisites of usucapion fulfilled since 1975. What is wrong? That a public property cannot be acquired in this way.

The doubtfulness of the tacit disaffection is derived from its non-regulatory regulation at the state level until recently, where it is strictly prohibited by the legislator. But the jurisprudence of the Supreme Court It has admitted specific cases, such as the land expropriated for a road or train track that cannot be executed and would allow its previous owner to recover it. Publicity is linked to the public service that is granted or intended to be granted to the specific asset. Did Meirás lose it when, after Franco’s death, it ceased to be an official residence? It will be another of the tasks of the Supreme.

As anticipated from the beginning, the Meirás lawsuit will leave Galicia to land at the TS Civil Chamber, where anything can happen, even a favorable ruling for the Franco and, therefore, very tricky for an overactive state and overflowing with propaganda. And everything, with democratic laws in hand, do not forget.

Jose Luis JimenezJose Luis Jimenez

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