The Council of Ministers today approved the challenge before the Constitutional Court, with the favourable opinion of the Council of State, of the Law of Cantabria 1/2024, which repeals its Law 8/2021, of Historical and Democratic Memory of Cantabria.
It should be noted that the Autonomous Community of Cantabria declined the invitation of the State to open the procedure of Article 33.2 of the Organic Law of the Constitutional Court to try to reach an agreement, through dialogue, in the Bilateral Cooperation Commission.
Legal bases
The Law of Cantabria does not make a technical or aseptic derogation of the autonomous legislation of democratic memory, but eliminates all the provisions of the Law of Democratic Memory of the Autonomous Region, totally abrogates the legal status of the victims, as well as the provisions of collaboration that allowed the effective application of the State Law. Consequently, this block derogation undermines compliance with the Democratic Memory Act (LMD).
In our Law, the duty of memory is clearly established in Article 34 of the Democratic Memory Act, which is issued under the exclusive competence of the State for the regulation of the basic conditions that guarantee the equality of all Spaniards in the exercise of rights and in the fulfillment of constitutional duties, attributed by Article 149.1.1 of the Spanish Constitution (CE).
This duty affects all public administrations, as established in article 14 of the Democratic Memory Act, which uniquely reflects the principles of collaboration and subsidiarity in relation to this Act.
On the other hand, it should be remembered that the Democratic Memory Act is based on Article 149 of the Spanish Constitution, which grants the State exclusive competence over the basic rules for the development of Article 27 of the Constitution, in order to guarantee the obligations of the public authorities in this matter.
Likewise, the repeal of the provisions related to the curricular update and the teacher training actions in relation to the Democratic Memory, actions of exclusive competence of the Autonomous Community, lead again to raise the unfeasibility of the practical application of the provisions of the State Law in relation to the educational field established under article 149 of the Spanish Constitution.
The majority opinion of the Council of State, moreover, appreciates “the origin of the challenge of the whole law”.
Therefore, the challenge is appropriate, whether the violation only of the duty of collaboration established constitutionally is appreciated, as well as in the state regulations and especially in article 14 of the Democratic Memory Act, or whether it is understood that such violation necessarily implies the violation of the constitutional rights that ultimately support the legal norms that establish the obligations resulting from such duty of collaboration, in order to guarantee the attention of all public administrations to the victims of serious violations of human rights in the terms established by the Democratic Memory Act, in accordance with article 10.2 of the Spanish Constitution, “in accordance with international human rights treaties ratified by Spain.”
In short, these are two different arguments, but related and which in any case lead to the same conclusion, which is the unconstitutionality as a whole of the autonomic norm.