CEDH · CASELAW;CLIN;ENG — 11 décembre 2007

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Spain - 35579/03 Decision 11.12.2007 [Section V] Article 10 Article 10-1 Freedom of expression Dissolution of electoral groups on the grounds that they were continuing the work of a previously dissolved   party: admissible   Article 3 of Protocol No. 1 Stand for election Dissolution of electoral groups on the grounds that they were continuing the work of a previously dissolved   party: admissible   Institutional Law no. 6/2002 on political parties (“the LOPP”) was aimed at ensuring that political parties respected democratic principles and human rights. It listed the forms of behaviour which were incompatible with those principles and explained the procedure followed and its consequences (see also Herri Batasuna and Batasunav. Spain , above). Following the entry into force of the law the Supreme Court declared the political parties Batasuna (“B.”), Herri Batasuna (“H.B.”) and Euskal Herritarrok (“E.H.”) illegal, for violating the LOPP by a series of activities that irrefutably amounted to conduct incompatible with democracy, prejudicial to constitutional values, democracy and human rights and contrary to the principles laid down in the explanatory part. The parties B. and H.B. lodged an amparo appeal against that decision with the Constitutional Court, but the appeal was dismissed. Then the electoral commissions of the Basque Country and Navarre registered the applicants (in the cases before the Court) as candidates in the municipal, regional and autonomous community elections. State Counsel and the Public Prosecutor’s Office lodged appeals with the Special Division of the Supreme Court to have approximately 300   candidatures struck off the lists, including those of the four applicant electoral groups. They accused the applicants of continuing the activities of the political parties B., H.B. and E.H . , which had been declared illegal and dissolved. On the same day the Supreme Court, applying the principles of promptitude and grouping of cases applicable in disputes concerning electoral matters, summoned the applicants to appear that very day. The Supreme Court barred the candidates from standing because their aim was to carry on the activities of the three parties declared illegal and dissolved. It dismissed the applicants’ allegations that they had not had enough time to submit their pleadings, finding that the brevity of the time allowed had been justified by the exceptional nature of this type of appeal, which had to be determined, in accordance with the Elections Act, within two days. For the Supreme Court, while the dissolution of political parties did not deprive their leaders or members of the right to vote or stand for election, the activities of the parties dissolved could not be allowed to continue in the future under other names or legal guises. In order to determine whether such continuity or succession existed between a political party and an electoral group, the Elections Act set forth a number of criteria such as substantial similarity of structure, organisation or operation, the origin of their financial resources or their support for violence or terrorism. The Supreme Court considered that the purpose of the Elections Act was not to restrict the candidates’ right to stand for election but to prevent the subversion of electoral groups as instruments of citizen participation. The Supreme Court also listed other criteria that could be taken into account to determine whether there was continuity. The various factors had to be weighed together in such a way that it was possible to determine, in a reasonable, non-arbitrary manner, whether the electoral group had acted, to all intents and purposes, as a successor to parties declared illegal. There was evidence showing that the purpose of the electoral groups in question was to carry on the activities of parties which had been declared illegal and dissolved. As to the links between the candidates of the applicant groups and the parties declared illegal, numerous leaders and former candidates of those parties were candidates on the lists of the groups in issue. Moreover, certain of those leaders had made statements to the media shortly before the elections affirming that all the organisations which had been declared illegal had continued to exist. This was evidence of a strategy on the part of the political parties declared illegal to circumvent the effects of the judgment declaring them illegal through the electoral groups. The applicant groups lodged an amparo appeal with the Constitutional Court complaining, inter alia, of violations of their right to an impartial hearing, the rights of the defence, their right to a hearing attended by all safeguards, their right to make use of evidence relevant to their defence, their right to respect for their private life combined with the right to a hearing attended by all safeguards and the right to freedom of thought, the right to be presumed innocent and to be informed of the charges against them, the right to participate in public affairs directly or through representatives, freedom of association and the principles of non-retroactivity of the rules restricting political and civil rights, and of non-discrimination. The Constitutional Court dismissed the appeals of the four applicants in the instant cases before the Court. However, the amparo appeals of twenty of the electoral groups involved in the domestic proceedings were allowed. As to the complaints concerning the right to a fair hearing, the right to a hearing attended by all safeguards and the rights of the defence, the Constitutional Court referred to its own case-law with regard to the constitutionality of the electoral disputes procedure and pointed out that the brevity of the time allowed for appeals against the registration of candidatures and candidates did not, per se , infringe the right to a fair hearing. The applicants had been able to present their complaints and submit evidence to challenge the appeals against their candidatures before the Supreme Court. Also, they had had the opportunity, in an amparo appeal, to make further submissions. Finally, on the complaint concerning the right to participate in public affairs, the Constitutional Court referred to the Supreme Court judgments in question and found that they were reasonable and sufficiently well-reasoned to attest to the existence of a joint strategy, elaborated by the terrorist organisation ETA and the dissolved party B., aimed at helping to rebuild the party and present candidates in the forthcoming municipal, regional or autonomous community elections. The Constitutional Court pointed out that it had no authority to review that finding as it concerned a matter of ordinary law. It highlighted the evidence the Supreme Court had considered relevant in reaching its conclusion. It also pointed out that restrictions on the right to participate in public affairs could be justified only if, after an assessment of the proportionality between the aim pursued and the restricted right, it was possible to prove that the electoral groups had been subverted by individuals who turned them into political parties giving de facto continuity to other parties which had been dissolved. In those circumstances and as the Supreme Court seemed to have weighed the evidence in a reasonable manner and taken into account all the rights and interests involved, the Constitutional Court found that the restriction on the right to participate in public affairs had been justified. Finally, on the question of freedom of expression, the Constitutional Court pointed out that freedom of thought and expression and the right to participate in public affairs had no objective bearing on the impugned judgment and should not be examined as such. Inadmissible under Article 13 (complaint concerning the effectiveness of the amparo appeal) – The Court noted that the applicants had been able to present the arguments they had considered necessary in their defence to the Constitutional Court and that they confined their complaint to expressing their disagreement with the way in which the Constitutional Court had carried out its supervisory role. The Court pointed out that the effectiveness of a remedy did not depend on the certainty of a favourable   outcome: manifestly ill-founded . Admissible for the remainder of Article 13. Admissible under Article 10 of the Convention and Article 3 of Protocol No. 1.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes