The Administrative Dispute Chamber of the National Court approved the decision taken in 2023 by the Minister of Defense, Margarita Robles, to change the name of the Flag Commander Franco of the Third Grand Captain 1st of the Legion, based in Melilla, to the Flag of Spain. In a judgment of December 17 known this Monday, the five magistrates thus reject the appeal presented by the Francisco Franco Foundation which requested the recovery of the dictator’s man, considering that Robles had acted for “exclusive ideological reasons in approving an orphan provision of legal protection to change the name of a military unit”. However, the court concluded that the name change is protected by the Democratic Memory law, which proposes the elimination of any elements glorifying the 1936 military uprising or the dictatorial regime.
The change of name of this flag (equivalent to battalion) of the elite unit of the Spanish army was the first measure adopted by Defense in application of the Democratic Memory law which entered into force on October 21, 2022. Robles then created an internal commission to undertake the task of applying said rule within the armed forces, one of the provisions of which orders an “ex officio” review of the military decorations and awards granted to senior officials of the Franco dictatorship. In the resolution in which she ordered the removal of the name Bandera Comandante Franco and its replacement with the flag of Spain, the minister used article 35 of this law, which affects “symbols and elements contrary to democratic memory”.
This decision was the subject of an appeal by the Francisco Franco Foundation, which considers that the name of the dictator should be preserved since he was one of the founders of the Legion, along with Lieutenant Colonel José Millán-Astray, and referred to a historical event that “guaranteed the Spanishness of Melilla and the lives of the inhabitants of Melilla in 1921”, when the dictator had the rank of commander of the army. The entity stressed that the Democratic Memory Law does not have the mission of removing everything related to Francisco Franco but rather of removing the elements of division between citizens and that, in addition, the change of name of military units was not provided for in the norm.
The National Court rejects these arguments and considers that the name change is protected by Article 35 of the law, the same one cited by Robles in his resolution. This article lists measures that aim to eliminate elements of division between citizens and to exalt military uprising or dictatorial rule. The magistrates support the argument put forward by the public prosecutor on behalf of the Defense to defend the name change and emphasize that “the simple exaltation of the highest leader of the previous regime is contrary to the principles and objectives of the latter (law on democratic memory) and the Administration must put an end to it”.
“We cannot ignore that the one who led the uprising of 1936 and the political regime that followed is a symbol of these phases of the history of Spain in the totality of his person and his personality, so that his military vicissitudes prior to July 18, 1936 cannot be excluded, since these experiences and his previous military merits also placed him in the situation and with the necessary experience which ultimately allowed him to exercise his leadership in the civil conflict”, concludes the sentence, taking up the literality of the ministry’s arguments.
In its judgment, the Chamber also rejects the request of the Francisco Franco Foundation to present a question of unconstitutionality regarding Article 35 used by Robles to change the name of the military unit and imposes on the entity the payment of 1,500 euros as procedural costs.
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