CEDH · CASELAW;CLIN;ENG — 11 décembre 2007

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Spain - 25803/04 Decision 11.12.2007 [Section V] Article 10 Article 10-1 Freedom of expression Orders dissolving political parties on the grounds that they were the political arm of a terrorist organisation and banning candidates or political groups from standing for election: admissible   Article 11 Article 11-1 Freedom of association Orders dissolving political parties on the grounds that they were the political arm of a terrorist organisation and banning candidates or political groups from standing for election: admissible   The Spanish Parliament passed organic law 6/2002 on political parties (“the LOPP”), the purpose of which was to develop Articles of the Constitution concerning the organisation, functioning and activities of political parties and their dissolution or judicial suspension. Dissolution of a political party required the reiteration or accumulation of actions irrefutably amounting to conduct at variance with democracy and damaging to constitutional values, democracy and human rights. The LOPP made the Special Division of the Supreme Court responsible for cases involving the dissolution of political parties. It also laid down a specific, priority procedure comprising a single level of jurisdiction, which could be set in motion only by the prosecuting authorities or the Government, of its own motion or at the request of the Chamber of Deputies or the Senate. The procedure concerned aimed to reconcile legal certainty and the rights of the defence with the requisite speed and reasonable duration. A judgment delivered by the Supreme Court lay open only to an amparo appeal before the Constitutional Court. Finally, following notification of the judgment ordering the dissolution of a political party, the party had to cease all activities. Furthermore, it was not permitted to set up another political formation or use another, existing party to pursue the activities of the party declared illegal and dissolved. In assessing such continuity, the Supreme Court based itself on the existence of a substantial similarity between the structure, organisation or functioning of the parties, or on other evidence, such as the identity of the members or leaders, their financing or their support for violence or terrorism. The possessions of a dissolved political party were liquidated and transferred to the State for social and humanitarian use. Following the Supreme Court’s judgment imposing prison sentences on the twenty-three members of the national directorate of the Herri Batasuna party for collaboration with an armed organisation, the Euskal Herritarrok (“EH”) party was formed to stand for the Basque elections. The applicant Batasuna then took steps to have it registered as a political party. The Autonomous Government of the Basque Country lodged a complaint of unconstitutionality against the LOPP. The Constitutional Court found the law constitutional. It held that legitimising terrorist actions or justifying or minimising their antidemocratic significance and the fact that they violated fundamental rights was something that could be done implicitly, through conclusive acts, in certain circumstances. There was no question of an infringement of freedom of expression in such cases. Furthermore, a party exposed itself to dissolution only if, through its actions, not its ideology, it sought effectively and actually to weaken or destroy the system of liberties in a recurrent and serious manner or in a repeated or cumulative manner. The provision applied only to the future and to political parties with convicted persons at their head or as candidates, and considered as grounds for dissolution the regular use of persons who could be considered, on the strength of evidence, to be sympathetic towards the methods of terror; it did not apply to those which had ideas or programmes which terrorist organisations might conceivably seek to implement. Lastly, it was illegal, immediately before or at any time after the date of entry into force of the LOPP,   to set up a political party which continued or took over the activities of another party for the sole purpose of circumventing the application to that party of the provisions of the LOPP. The law applied to activities carried out subsequent to its entry into force. It was perfectly possible, however, to take into account what the law called the background, which might include conduct prior to the entry into force of the law, but by no means in a manner that could be interpreted as retroactive application of the law as prohibited by the Constitution. The Autonomous Government of the Basque Country subsequently lodged an application with the Court which was declared inadmissible. Meanwhile, the central investigating judge of the Audiencia Nacional ordered the suspension of Batasuna’s activities and the closure, for three years, of any offices and premises Herri Batasuna and Batasuna might use. Proceedings to dissolve the political parties Herri Batasuna, EH and Batasuna were brought before the Supreme Court. Batasuna applied for the reporting judge who had been appointed to be removed on account of a direct or indirect interest in the case, as he had publicly stated that the preliminary draft LOPP was compatible with the rule of law and the Constitution.The Supreme Court joined the two proceedings, appointed H. as the reporting judge and dismissed the request for his removal.Batasuna requested that a preliminary question be put to the Constitutional Court concerning the constitutionality of the LOPP.The Supreme Court refused, unanimously, pointing out that that objection had already been examined and dismissed by a judgment of the Constitutional Court. The Supreme Court declared the parties Herri Batasuna, EH and Batasuna illegal and ordered their dissolution on the grounds that they were part of a tactical   separation strategy at the service of terrorism, issuing frequent calls to armed struggle in their internal documents and their external activities. It considered it proven that the three parties were essentially one and the same entity and linked to the terrorist organisation ETA, and found that to all intents and purposes they formed a whole. It noted that the calls to violence that motivated the restriction of the freedoms of the parties concerned were the result of an intentional sharing of tasks between terrorism and politics since, for ETA, justifying the need for terrorism was one of the roles it required Herri Batasuna to play.Bearing in mind the historical and social context of the battle against terrorism, the court considered that the terrorist organisation ETA and its satellite organisation, Koordinadora Abertzale Sozialista , had run Herri Batasuna since its inception. It based that finding on evidence showing the existence of hierarchical links between the three organisations. As to the operational   succession found to exist between the three parties declared illegal, the Supreme Court based its finding on the fact that the same people occupied responsible positions in all three organisations and they shared the same premises. On the matter of the links between the applicant parties and the terrorist organisation ETA, the Supreme Court referred to the conviction of certain of their members for terrorism-related offences. The activities of the applicant parties following the entry into force of the LOPP – a series of activities corresponding to a strategy predefined by the terrorist organisation ETA – were of a nature to complement and politically support the action of terrorist organisations in achieving their aim of disturbing the constitutional order or causing serious public disorder. The conduct held against the applicant parties thus fell within the scope of the LOPP. In examining whether the dissolution of the parties was necessary and proportionate, the Supreme Court pointed out that it took into consideration both the Convention proper and the Court’s case-law. It found that in view of the frequent calls to violence made by the applicant parties, their dissolution was justified in order to protect the fundamental rights of others. The Batasuna and Herri Batasuna parties lodged two amparo appeals with the Constitutional Court against the Supreme Court, but both were dismissed by unanimous judgments. The Constitutional Court emphasised that any project or aim was considered compatible with the Constitution unless it was defended by an activity prejudicial to democratic principles or the fundamental rights of citizens, and reiterated that the constitutionality of the LOPP had been confirmed in a judgment. From the constitutional point of view, associating with terrorism and violence   fell outside the legitimate framework of freedom of association and expression and could therefore be prohibited by law in a democratic society. Moreover, the various reasons that could give rise to the dissolution of a party were taken into account only subsequent to the entry into force of the law. The applicant party had not been dissolved because of activities prior to that date, or because of conduct attributable to other parties, but because Batasuna, Herri Batasuna and EH   had been found to constitute successive avatars of a single entity – a political formation used by a terrorist group for illegal ends. The successive formations of what was in fact one and the same political party had been dissolved. The dissolution ordered by the Supreme Court was based on subsequent events entirely attributable to the applicant party, the Supreme Court having found that the three parties dissolved were in fact one and the same. Finally, the Supreme Court dismissed the complaints of lack of impartiality and non-observance of the adversarial principle as lacking in constitutional substance. Admissible under Articles 10 and 11. Inadmissible under Article 6 – The complaints of lack of impartiality on the part of the President of the Division of the Supreme Court and failure to observe the adversarial principle in the proceedings raised questions in respect of Article 6 of the Convention, although the applicants relied on Article   13. The Court was faced with the question of the applicability of Article 6 to the special procedure for the dissolution of political parties before the Special Division of the Supreme Court. It noted in that connection that the instant case differed from those where dissolution had been ordered by a Constitutional Court. However, the Court saw no reason to depart from the conclusion it had reached in those cases. The procedure in question concerned a dispute over the applicants’ right as political parties to pursue their political activities. It was in essence a political right and, as such, did not fall within the scope of Article 6   §   1. Moreover, the right of Batasuna and Herri Batasuna to peaceful enjoyment of their possessions had not been raised in the proceedings before the Supreme Court, then the Constitutional Court. The procedure at issue thus concerned neither a dispute over the applicants’ civil rights and obligations nor a criminal charge against them within the meaning of Article   6   §   1. Nor did that part of the application raise any question that fell within the scope of Article 13 of the Convention: incompatible ratione materiae. The complaint concerning the ineffectiveness of the amparo appeal was dismissed as manifestly ill-founded. (see also Etxeberria and 3 other cases v. Spain , below).   © 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