FIFTH SECTION CASE OF HERRI BATASUNA AND BATASUNA v. SPAIN (Applications nos. 25803/04 and 25817/04) JUDGMENT STRASBOURG 30 June 2009 FINAL 06/11/2009 This judgment has become final under Article 44 § 2 of the Convention. HERRI BATASUNA AND BATASUNA v. SPAIN JUDGMENT 1 In the case of Herri Batasuna and Batasuna v. Spain, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President, Rait Maruste, Karel Jungwiert, Renate Jaeger, Mark Villiger, Isabelle Berro-Lefèvre, judges, Alejandro Saiz Arnaiz, ad hoc judge, and Claudia Westerdiek, Section Registrar, Having deliberated in private on 23 June 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in two applications (nos. 25803/04 and 25817/04) against the Kingdom of Spain lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two political parties, Herri Batasuna and Batasuna (“the applicant parties”), on 19 July 2004. 2. The applicant parties were represented before the Court by Mr D. Rouget, a lawyer practising in Saint-Jean-de-Luz. The Spanish Government (“the Government”) were represented by their Agent, Mr I. Blasco, Head of the Legal Department for Human Rights, Ministry of Justice. 3. Relying on Articles 10 and 11 of the Convention, the applicant parties alleged, in particular, that their dissolution had entailed a violation of their right to freedom of expression and of their right to freedom of association. They complained that Institutional Law no. 6/2002 on political parties (Ley Orgánica 6/2002 de Partidos Políticos – “the LOPP”) of 27 June 2002, which they described as an ad hoc law, was neither accessible nor foreseeable, had been applied retrospectively and that their dissolution had pursued no legitimate aim but had been intended, in their view, to silence any debate and to deprive them of their freedom of expression. They considered that the measure imposed on them had not been necessary in a democratic society and that it was incompatible with the principle of proportionality. Lastly, the first applicant party observed that the acts referred to in the judgment of the Spanish Supreme Court of 27 March 2003 against the applicant parties had taken place one year before the LOPP had come into force, and that Herri Batasuna had been dissolved even though the Supreme Court had not found it guilty of any such act occurring after the 2 HERRI BATASUNA AND BATASUNA v. SPAIN JUDGMENT relevant Law had come into force. In those circumstances, it had to be concluded that the Law had been applied to it retrospectively. 4. The Chamber to which the case had been allocated decided to join the applications (Rule 42 § 1 of the Rules of Court). 5. By a decision of 11 December 2007, the Chamber declared the applications partly admissible. 6. On 1 July 2008 the Chamber notified the parties of its intention to relinquish the case to the Grand Chamber, in accordance with Rule 72 § 1. Relying on Rule 72 § 2, the Government objected to that relinquishment. Accordingly, the Chamber continued to examine the case. 7. The applicant parties and the Government filed additional observations (Rule 59 § 1). The Chamber decided, after having consulted the parties, that it was not necessary to hold a hearing on the merits of the case (Rule 59 § 3 in fine). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 8. The first applicant, the political party Herri Batasuna, was founded on 5 June 1986. 9. The second applicant, the political party Batasuna, was founded on 3 May 2001. A. Background to the case 10. On 27 June 2002 the Spanish parliament enacted Institutional Law no. 6/2002 on political parties (Ley Orgánica 6/2002 de Partidos Políticos – “the LOPP”). According to its explanatory memorandum, that Law was intended to develop Articles 1, 6, 22 and 23 of the Spanish Constitution by amending and updating Law no. 54/1978 of 4 December 1978 on political parties, regard being had to the experience acquired over the years, and to establish a complete and coherent framework for political parties, reflecting their role in a consolidated democracy. 11. The main innovations introduced by the new Law appeared in Chapter II on the organisation, functioning and activities of political parties, and in Chapter III on their dissolution and suspension by the courts of their activities. 12. Chapter II lays down the basic criteria intended to ensure compliance with the constitutional requirement that the organisation and operation of political parties be democratic and that they may freely engage in their HERRI BATASUNA AND BATASUNA v. SPAIN JUDGMENT 3 activities in accordance with the Constitution and the law. Section 9 requires parties to respect democratic principles and human rights, describing in detail the type of conduct that would be in breach of the principles in question. According to the explanatory memorandum, the Law is based on the principle that any project or objective is constitutional provided that it is not pursued by means of activities which breach democratic principles or the fundamental rights of citizens. The Law is not intended to prohibit the defence of ideas or doctrines calling into question the constitutional framework. Its aim is rather to reconcile freedom and pluralism with respect for human rights and the protection of democracy. The explanatory memorandum states that a party may be dissolved only in the event of repeated or accumulated acts which unequivocally prove the existence of undemocratic conduct at odds with democracy and in breach of constitutional values, democracy and the rights of citizens. In that connection, sub-paragraphs (a), (b) and (c) of paragraph 2 of section 9 draw a clear distinction between organisations which defend their ideas or programmes, whatever they may be, in strict compliance with democratic methods and principles, and those whose political activity is based on an accommodation with violence, political support for terrorist organisations or violation of the rights of citizens or democratic principles. 13. Chapter III sets out the grounds on which political parties may be dissolved or their activities suspended by order of the court and describes the applicable procedure in the courts. The Law invests the “special Chamber” of the Supreme Court established by section 61 of the Judicature Act (Ley Orgánica del Poder Judicial – “the LOPJ”) with jurisdiction for the dissolution of political parties. Furthermore, provision is made for specific priority proceedings, involving a single level of jurisdiction, which may be brought only by the public prosecutor’s office or the government, of their own motion or at the request of the Chamber of Deputies or the Senate. According to the LOPP’s explanatory memorandum, the proceedings in question are intended to reconcile the principle of legal certainty and the rights of the defence with the principle of promptness and a reasonable time-limit. The judgment delivered by the Supreme Court upon completion of those proceedings may be challenged only by way of an amparo appeal to the Constitutional Court. Section 12 details the effects of the court- ordered dissolution of a political party. Once the judgment has been served, the dissolved party must cease all activity. Furthermore, it may not set up a political organisation or use an existing party with a view to pursuing the activities of the party that has been declared illegal and dissolved. In order to rule as to whether or not there is any continuity between an existing party and a party which has been dissolved, the Supreme Court has regard to whether any “substantial similarity” exists between the structure, organisation and operation of the parties in question, or other evidence such as the identity of their members or leaders, their funding or their support for 4 HERRI BATASUNA AND BATASUNA v. SPAIN JUDGMENT violence or terrorism. The assets of a dissolved political party are liquidated and transferred to the Treasury to be used for social and humanitarian purposes. 14. The LOPP was published in the Official Gazette of the State on 28 June 2002 and came into force the following day. B. Proceedings to dissolve the applicant parties 15. The facts of the case, as submitted by the parties, may be summarised as follows. 1. Founding of the applicant parties as political parties 16. Founded as an electoral coalition, the political organisation Herri Batasuna took part in the general elections of 1 March 1979 (the first elections in Spain following the entry into force of the 1978 Constitution). On 5 June 1986 it was entered into the register of political parties at the Ministry of the Interior. 17. Following the Supreme Court’s sentencing on 1 December 1997 of twenty-three members of Herri Batasuna’s national directorate to imprisonment for collaboration with an armed organisation, Euskal Herritarrok (“EH”) was set up on 2 September 1998 to stand in the Basque elections of 25 October 1998, initially as an association of voters and then as a political party. 18. On 3 May 2001 Batasuna filed documents at the register of political parties seeking registration as a political party. 2. Action brought by the autonomous government of the Basque Country challenging the constitutionality of the LOPP 19. On 27 September 2002 the Basque autonomous government brought an action before the Constitutional Court challenging the constitutionality of the LOPP, criticising in particular sections 1(1), 2(1), 3(2), 4(2) and (3), 5(1), 6 and 9, Chapter III (sections 10 to 12) and paragraph 2 of the sole transitional provision of that Law. 20. By a judgment of 12 March 2003, the Constitutional Court declared the impugned Law constitutional.