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.

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 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 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 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. As regards the very existence of such a Law making provision for the dissolution of political parties and its purpose which, according to the Basque government, consisted of “establishing a model of militant democracy imposing restrictions on political parties, in particular by imposing on them an obligation, not provided for in the Constitution, to accept a given political regime or system”, the Constitutional Court stated:

“According to the applicant government, the argument set out above is based on references in certain paragraphs of sections 6, 9 and 10 of the LOPP to the ‘constitutional values expressed in constitutional principles and human rights’ (section 9(1)), to ‘democratic principles’ (sections 6 and 9(2)), to the ‘system of liberties’ and to the ‘democratic system’ (sections 9 (2) and 10(2), sub-paragraph (c)), to the ‘constitutional order’ and to ‘public peace’ (section 9(2), sub-paragraph (c)). Despite the fact that the legal significance of those references can be grasped only in the context of each of the provisions containing them and that each of the provisions in question must in turn be interpreted in the light of the law and of the legal system as a whole, the Basque government’s submission that there is no place, in our constitutional order, for a model of ‘militant democracy’ within the meaning given to that expression by the Government, namely, a model in which not only compliance with, but also positive acceptance of, the established order and first and foremost the Constitution is required, must be endorsed ... The impugned Law allows for no such model of democracy. Right at the outset, the explanatory memorandum lays down the principle of a distinction between the ideas and aims proclaimed by political parties, on the one hand, and their activities, on the other, and states that ‘the only aims explicitly vetoed are those which fall within the criminal law’, so that ‘any project or objective is deemed to be constitutional provided that it is not pursued by means of activities which breach democratic principles or the fundamental rights of citizens’. Consequently, and as regards the aspect which is of particular interest here, the Law lists as grounds for illegality ‘conduct’ – that is to say, acts – of political parties which, through their activities, and not through the ultimate aims proclaimed in their manifestos, fail to satisfy the requirements of Article 6 of the Constitution, which the impugned Law merely mentions.

... Secondly, and most importantly, it is clear that the principles and values to which the Law refers can be none other than those proclaimed by the Constitution, and that their content and scope depend on the meaning arising out of the interpretation of the positive constitutional provisions as a whole. Thus, in our system, ‘democratic principles’ can only be principles specific to the democratic order arising out of the institutional and normative fabric woven by the Constitution, the actual functioning of which leads to a system of powers, rights and balances giving form to a variant of the democratic model which is precisely that assumed by the Constitution in establishing Spain as a social and democratic State governed by the rule of law (Article 1 § 1 of the Constitution).”

21.  As regards the applicant parties’ argument that the provisions of the Law, namely some of the cases referred to in section 9(3) (tacit support, for example), established a “militant democracy” in breach of the fundamental rights of freedom of ideology, participation, expression and information, the Constitutional Court stated:

“... the system established by the first three paragraphs of section 9 of the LOPP must firstly be described. The first paragraph refers not to a positive adherence of any kind but to simple respect for constitutional values, which must be demonstrated by political parties when engaging in their activities and which is compatible with the broadest ideological freedom. Paragraph 2 provides that a political party may be declared illegal only ‘when as a result of its activities, it infringes democratic principles, in particular when it seeks thereby to impair or to destroy the system of liberties, to hinder or to put an end to the democratic system by repeatedly and seriously engaging in any of the conduct described below’. Lastly, sub-paragraphs (a), (b) and (c) list the general criteria for a party to be declared illegal on account of its activities ... As regards paragraph 3 of section 9 of the LOPP, the flawed drafting of its introduction might suggest that the instances of behaviour described by that provision are in addition to those specified in the preceding paragraph and that they must therefore be interpreted separately. However, an interpretation of these two provisions taken together and an interpretation of the whole section which contains them show that the instances of behaviour described in paragraph 3 of section 9 have the general features described in paragraph 2 of the same section. The instances of behaviour referred to in section 9(3) of the Law merely specify or clarify the principal causes of illegality set out in general terms in section 9(2) of the Law. A separate interpretation and application of such conduct can be done only on the basis of the cases provided for in section 9(2).

That having been said, while it is not for the Constitutional Court to determine whether or not mere failure to condemn [terrorist acts] can be construed as implicit support for terrorism, it is clear that symbolic actions can be used, in certain circumstances, to legitimise terrorist acts or excuse or minimise their anti-democratic effects and implicit violation of fundamental rights. In such circumstances it is plainly impossible to speak of a violation of the right to freedom of expression.

...

The same can be said, in general, of sub-paragraph (c) of section 10(2) of the LOPP, which provides: ‘where, through its activities, it repeatedly and seriously violates democratic principles or seeks to impair or to destroy the system of liberties or to hinder the democratic system or to put an end to it by means of the conduct referred to in section 9.’ It must also be stated in this regard that that provision concerns only the activities of political parties and in no way extends to their aims or objectives. The wording of that provision shows, therefore, that only those parties which through their activities rather than their ideology effectively and proactively seek to ‘impair or to destroy the system of liberties’ are liable to be dissolved.”

22.  As regards the Basque government’s complaint that the dissolution measure prescribed by law was disproportionate, the Constitutional Court stated:

“... taken separately, none of the conduct described in section 9 of the LOPP can entail a party’s dissolution. In order for that measure to be pronounced, as stated in section 9(2), the conduct in question must be engaged in ‘repeatedly and seriously’. Secondly, it must be pointed out that the existence of a party which, through its activities, collaborates with or supports terrorist violence, jeopardises the survival of the pluralist order proclaimed by the Constitution and that, faced with that danger, dissolution would appear to be the only sanction capable of repairing the damage done to the legal order. Lastly, it must be stressed that Article 6 of the Constitution contains a definition of a party. According to the Constitution, a party may only be considered a party if it is the expression of political pluralism. Consequently, it is quite acceptable, constitutionally, for a party whose activities undermine pluralism and to a greater or lesser extent destabilise the democratic order, to be dissolved. Similarly, the European Court of Human Rights has considered that even though the margin of appreciation left to States must be a narrow one where the dissolution of political parties is concerned, where the pluralism of ideas and parties inherent in democracy is in danger, a State may forestall the execution of a policy at the root of that danger [Refah Partisi (the Welfare Party) and Others v. Turkey, nos. 41340/98, 41342/98, 41343/98 and 41344/98, 31 July 2001].

... it is not sufficient to establish the existence of just one of the acts described by the Law. On the contrary, those acts need to be engaged in ‘repeatedly and seriously’ (section 9(2)) or ‘repeatedly or cumulatively’ (section 9(3)). ... To conclude, [the relevant provisions] describe particularly serious conduct and establish as grounds for dissolution only those which are manifestly incompatible with the peaceful and lawful means which are an essential part of the process of political participation to which the Constitution requires political parties to lend their qualified support. ... The criteria established by the case-law of the European Court of Human Rights as regards the dissolution of political parties have therefore been complied with (United Communist Party of Turkey and Others v. Turkey, 30 January 1998, Reports of Judgments and Decisions 1998‑I; Socialist Party and Others v. Turkey, 25 May 1998, Reports 1998‑III; Freedom and Democracy Party (ÖZDEP) v. Turkey [GC], no. 23885/94, ECHR 1999-VIII; Refah Partisi (the Welfare Party) and Others v. Turkey, nos. 41340/98, 41342/98, 41343/98 and 41344/98, 31 July 2001 and [GC], ECHR 2003‑II; Yazar and Others v. Turkey, nos. 22723/93, 22724/93 and 22725/93, ECHR 2002‑II; and Dicle for the Democratic Party (DEP) of Turkey v. Turkey, no. 25141/94, 10 December 2002). That case-law states that in order to comply with the European Convention on Human Rights, the dissolution of a party must satisfy certain criteria, namely: (a) the law must include the circumstances and causes of dissolution (that criterion is clearly satisfied by the rules at issue, since they are set out in a formal law); (b) the aim pursued must be legitimate (which, as indicated above, consists in the instant case of protecting the democratic process of political participation through the exclusion of any associative organisation which could be likened to a party exercising an activity not falling within the constitutional definition of political parties); and (c) the dissolution must be ‘necessary in a democratic society’ (demonstrated in the context of the foregoing analysis of the specific causes of dissolution provided for by law).

... The fact that convicted terrorists are regularly appointed to positions of leadership or entered on lists of candidates for election may appear to constitute an expression of support for terrorist methods which goes against the obligations imposed by the Constitution on all political parties. Furthermore, the fact that such a practice can be taken into account only if the convicted terrorists have not ‘publicly rejected terrorist aims and methods’ cannot be interpreted as an obligation to disavow earlier activities. The provision in question [section 9(3)(c)] is of prospective effect only and applies only to political parties which are led by convicted terrorists or whose candidates are convicted terrorists. It lays down as a cause of dissolution the regular use of people who may legitimately be assumed to sympathise with terrorist methods rather than with any ideas and programmes that terrorist organisations might seek to implement.

...”

23.  Lastly, as regards the Basque government’s complaint that the principle of non-retrospectivity in relation to section 9(4) of the LOPP and paragraph 2 of the sole transitional provision had been violated, the Constitutional Court held:

“For the purposes of applying section 9(4) of the LOPP, which lists the factors that can be taken into account in assessing and characterising activities that may give rise to the dissolution of a political party, the aforementioned paragraph characterises as unlawful ‘the establishment, on a date immediately preceding or following the date of entry into force, of a political party which pursues the activities of another party or succeeds that party with a view to evading application of the provisions of this Law in respect of it’. Worded as it is, that provision cannot be held to be unconstitutional as it is quite clear that its sole purpose is to enable section 9(4) of the LOPP to be applied ‘to activities pursued after the entry into force of this Institutional Law’, as stated therein. In no circumstances does it make provision for the judging of activities and acts prior to the LOPP, since only those subsequent to the entry into force of the Law are deemed to be relevant.

In other words, the Law specifically states that the various causes that may lead to dissolution of a party may be taken into account only after its entry into force. The activities considered separately and ‘the continuing nature or repetition’ of the activities mentioned in section 9(4), to which the transitional provision refers, are subsequent to the entry into force of the LOPP. That said, for the purposes of determining the significance of those activities and assessing their relevance to the overall conduct of the party concerned (and for that purpose only, since to take account of conduct pre-dating the effective date of the Law in order to justify a declaration of unlawfulness would be unconstitutional because it would constitute a breach of the principle of non-retrospectivity enshrined in Article 9 § 3 of the Constitution), it is perfectly possible to take into consideration what the Law refers to as the ‘trajectory’ (section 9(4)) of the party in question, which trajectory could encompass acts prior to the entry into force of the Law, but that cannot in any way be considered as a retrospective effect under the Constitution.”

24.  The Constitutional Court also rejected the complaints based on the principle of non bis in idem, the lack of foreseeability and the exceptional nature of the Law, the specific features of the judicial proceedings and the allegations concerning the system for founding and registering political parties. Accordingly, it dismissed the applicant parties’ claims, stating in paragraph 23 of its reasoning that sections 3(1), 5(1), 9(2) and (3) and paragraph 2 of the sole transitional provision of the LOPP were constitutional only if “interpreted in accordance with the terms set out in paragraphs 10, 11, 12, 13, 16, 20 and 21” of the reasoning of its judgment.

25.  The government of the Autonomous Community of the Basque Country subsequently lodged an application with the Court (no. 29134/03), which was declared inadmissible on the ground of incompatibility ratione personae on 3 February 2004.

3.  The proceedings to dissolve the applicant parties

26.  Meanwhile, by a decision of 26 August 2002 delivered in the context of criminal proceedings for illegal association (Article 515 of the Spanish Criminal Code), central investigating judge no. 5 at the Audiencia Nacional had ordered the suspension of Batasuna’s activities and the closure, for three years, of any headquarters and offices that could be used by Herri Batasuna and Batasuna. The same measure was applied to EH, which is not an applicant before the Court.

27.  On 2 September 2002, implementing an agreement adopted by the Council of Ministers on 30 August 2002, the Attorney-General (Abogado del Estado) lodged an application with the Supreme Court on behalf of the Spanish government for the dissolution of the political parties Herri Batasuna, EH and Batasuna on the ground that they had breached the new LOPP on account of various acts which conclusively demonstrated conduct inconsistent with democracy, constitutional values, democratic practice and the rights of citizens.

28.  On the same day, State Counsel (Procurador General) also filed an application with the Supreme Court with a view to the dissolution of the political parties Herri Batasuna, EH and Batasuna in accordance with sections 10 et seq. of the LOPP. In his application, he asked the Supreme Court to find that the parties in question were illegal, and order that they be removed from the register of political parties, that they immediately cease their activities and that the effects of the Law be extended to any party newly created in breach of the Law or succeeding any of the parties concerned, that their assets be liquidated and that they be dissolved in accordance with section 12(1) of the LOPP.

29.  On 10 March 2003 Batasuna sought the referral of a preliminary question to the Constitutional Court concerning the constitutionality of the LOPP as it was of the view that the Law as a whole, and several of the sections thereof taken separately, violated the rights to freedom of association, freedom of expression and freedom of thought, and the principles of lawfulness, legal certainty, non-retrospectivity of less favourable criminal laws, proportionality and non bis in idem, as well as the right to take part in public affairs.

30.  By a unanimous judgment of 27 March 2003, the Supreme Court refused to refer Batasuna’s question to the Constitutional Court, pointing out that that organisation’s challenges to the constitutionality of the LOPP had already been examined and rejected in the Constitutional Court’s judgment of 12 March 2003. It declared Herri Batasuna, EH and Batasuna illegal and pronounced their dissolution under sections 9(2) and (3) of the LOPP on the ground that they were part of “a terrorist strategy of ‘tactical separation’”. It considered that significant similarities between the three parties at issue, and between them and the terrorist organisation ETA – “three organisations having substantially the same ideology ... and, moreover, tightly controlled by that terrorist organisation” – had been established. It concluded that in reality there existed a “single entity, namely, the terrorist organisation ETA, hidden behind an apparent plurality of legal entities created at different times according to an ‘operational succession’ devised in advance by that organisation”. It also liquidated the assets of the parties at issue, in accordance with section 12(1)(c) of the same Law.

31.  The Supreme Court noted in its judgment that, while political parties constituted the essential foundations of political pluralism, they had to engage in their activities and pursue their aims and objectives in accordance with the law and democratic processes, stating that activities involving the use of violence or restricting the fundamental rights of others could not be tolerated. The Supreme Court referred to the Spanish constitutional system, which, in its view, unlike other legal systems, did not constitute a model of “militant democracy”, since the only condition imposed on the expression of differences was respect for the rights of others. It pointed out that the LOPP recognised that any project or objective was constitutional provided that it was not “pursued by means of activities which breach[ed] democratic principles or the fundamental rights of citizens”. In that regard, it pointed out that, by law, political parties were liable to be declared illegal only on the basis of “activities” consisting of serious and repeated conduct. In the instant case, according to the Supreme Court, the calls to violence justifying the restriction of the freedoms of the parties at issue stemmed from a deliberate apportionment of tasks between terrorism and politics, ETA devising “justification of the need for terrorism as one of the functions” entrusted to Herri Batasuna.

32.  Bearing in mind the historical and social context of the fight against terrorism in Spain, the Supreme Court held that the terrorist organisation ETA and its satellite organisation, Koordinadora Abertzale Sozialista (“KAS”), had been directing Herri Batasuna since its creation. To reach that conclusion, it relied on evidence demonstrating the existence of hierarchical links between the three organisations and revealing, in particular, that KAS, as ETA’s delegate, had controlled the process of appointing the most senior members of Herri Batasuna and its successors (EH and Batasuna) and had participated in it. The Supreme Court held that Herri Batasuna had been created in response to ETA’s wish to split armed activity and mass activity “organically and structurally”, which resulted in “clear hierarchical submission” of the parties at issue to the terrorist organisation ETA. In that connection, it referred to a KAS internal document which read as follows:

“KAS ... considers that armed struggle in association with mass struggle and institutional struggle – the latter serving the former – is the key to the advance and triumph of the revolution; mass struggle likewise requires an historical alliance of Popular Unity, the physical manifestation of which is Herri Batasuna.”

33.  As regards the “operational succession” held to exist between the three political parties that had been declared illegal, the Supreme Court relied on the fact that the people occupying posts of responsibility within the three organisations – notably their spokesperson, A.O. – and belonging to different parliamentary groups, were the same. It also took account of the existence of premises used by all the parties at issue. As regards links between the applicant parties and the terrorist organisation ETA, it noted that several of their members, in particular their spokesperson, A.O., had been convicted of terrorism-related offences.

34.  The Supreme Court held that the evidence set out below, subsequent to the date of entry into force of the LOPP, showed that the applicant political parties were instruments of ETA’s terrorist strategy.

–  On 3 July 2002 Batasuna had refused to appoint representatives to the Basque parliamentary committee responsible for the situation and needs of victims of terrorism, as it considered it to be “political, manipulated and biased”.

–  On 3 July 2002, reacting to the decision of central investigating judge no. 5 at the Audiencia Nacional by which Batasuna had been declared civilly liable for damage caused by street violence (kale borroka), A.O., the spokesperson for that organisation, had exhorted the Basque people to respond “energetically to this new attack” and had criticised the decision for having provoked a “serious and anti-democratic situation”.

–  On 7 July 2002, during a commemoration of the 1936 battle of Monte Albertia, A.O. had made the following statement:

“We must continue to work and to struggle, either within or outside the law. The reality is that we will not falter because we are at a point in history where the process we have undertaken must be rendered irreversible.”

–  On 13 July 2002 the mayor and a Batasuna councillor of the municipality of Lezo had taken part in a demonstration in support of ETA terrorists living in Venezuela.

–  On 16 July 2002, at a gathering outside the San Sebastian navy command, a Batasuna municipal spokesperson, referred to as J.L., had explained that the purpose of that demonstration was to let the State authorities know “that they could not move around with impunity in Euskal Herria”.

–  On 19 July 2002 J.E.B., Batsuna’s spokesperson in the municipality of Vitoria, had stated that Batasuna “didn’t want ETA to stop killing, but did not want Euskal Herria to have recourse to any kind of violence and wanted those who engaged in it to cease to exist”.

–  At a plenary session of the municipal council on 30 July 2002 Batasuna had refused to condemn the campaign of threats against councillors of the Basque Socialist Party (PSE-EE) in the municipality of Amorebieta.

–  At a press conference on 2 August 2002 concerning the potential handover to Spain of K.B., an ETA member convicted in France, the mayor and the chairman of the Human Rights Committee of the municipality of Ondarroa, L.A. and A.A., Batasuna members, had declared that they supported K.B. and “all those who [were] in the same situation”.

–  Batasuna and its leaders had refused to condemn the Santa Pola attack of 4 August 2002 in which two people had died. In that regard, during a press conference in Pamplona A.O. had described that event as a “painful consequence” of the failure to solve the “political conflict” in the Basque Country and had accused the Spanish Prime Minister [then J.M. Aznar] “of bearing the greatest responsibility” for “what [had happened] [at] that time and what [might] happen in future”.

–  Municipalities run by Batasuna and that party’s website had used an anagram of “Gestoras Pro-Amnistía”, an organisation that had been declared illegal by central investigating judge no. 5 at the Audiencia Nacional and was on the European list of terrorist organisations (Council Common Position 2001/931/PESC).

–  At a demonstration organised by Batasuna in San Sebastian on 11 August 2002 and run by Batasuna’s leaders A.O., J.P. and J.A., slogans supporting ETA prisoners and threatening expressions such as “borroka da bide bakarra” (the struggle is the only way), “zuek faxistak zarete terroristak” (you, the Fascists, are the real terrorists) or “gora ETA militarra” (long live ETA military) had been used.

–  On 12 and 14 August 2002, Batasuna-run town halls had put up placards on their facades supporting terrorism or those engaging in terrorism, alluding to the transfer of “Basque prisoners to the Basque Country” and showing photographs of several terrorists.

–  At a Batasuna press conference held in Bilbao on 21 August 2002, A.O. had criticised the “Spanish State’s genocide strategy” and proclaimed that the Basque people were going to “organise themselves” and “fight” so that some “little Spanish Fascist” could never again tell Basques what their institutions should be. He had also warned the government of the Autonomous Community of the Basque Country (nationalist government coalition) that if it took part in closing down Batasuna headquarters, the result would be “an unwanted scenario”, expressions which had been interpreted the following day by the media as “a threat against the Basque executive”.

–  During an interview with the newspaper Egunkaria on 23 August 2002, J.U., Batasuna’s representative in the Basque parliament, had stated that “ETA [did] not support armed struggle for the fun of it, but that [it was] an organisation conscious of the need to use every means possible to confront the State”.

–  On 23 August 2002 at a Batasuna meeting held in Bilbao following the demonstration organised by that party against its dissolution, J.P. had criticised the leaders of the Basque Nationalist Party for abiding by Spanish law, accusing them of lacking “national dignity”. He had also encouraged the participants to “go out into the street and respond vigorously”.

–  Municipalities governed by the parties in question had advocated terrorist activities, as evidenced by the fact that two ETA terrorists had been made honorary citizens (hijo predilecto) by the municipalities of Legazpia and Zaldibia.

–  Since 29 June 2002 Batasuna council representatives in Vitoria and Lasarte-Oria had been committing acts of harassment against the representatives of non-nationalist parties, thus contributing to a climate of civil confrontation.

–  Municipalities governed by Batasuna had displayed sketches and placards calling for a struggle against the State, against representatives of State power, against other political parties or members of those parties, notably the Prime Minister of the Spanish government and the leaders of the Partido Popular and the Spanish Socialist Party.

–  After the entry into force of the LOPP, the three parties at issue had continued to pursue the same strategy of complementing, on a political level, the actions of the terrorist organisation ETA in the context of a jointly organised “operational succession”.

35.  Relying on the above evidence, the Supreme Court held that the activity of the applicant political parties, as manifested through conduct in line with a strategy predefined by the terrorist organisation ETA, consisted of “providing assistance and political support to the actions of terrorist organisations with the aim of overthrowing the constitutional order or seriously disturbing the public peace”, within the meaning of section 9(2)(c) of the LOPP. It concluded that the conduct of which the applicant parties had been accused corresponded to the cases referred to in sub-paragraphs (a), (b), (d), (f) and (h) of paragraph 3 of section 9 of that Law. It stated firstly that some of the conduct described, such as Batasuna’s demonstration in San Sebastian, where pro-ETA slogans had been heard, could be characterised as explicit political support for terrorism, while other conduct, such as the refusal of Batasuna and its leaders to condemn the Santa Pola attack of 4 August 2002, sought to “justify terrorist actions and minimise their importance and the violation of the fundamental rights arising therefrom”. In that connection, the Supreme Court stated:

“In the constitutional context, the existence of political parties which, from an intellectual point of view, fail to take a clear and unequivocal stance against terrorist activities or which, with calculated ambiguity, systematically seek to conceal the fact that they do not disavow criminal acts by officially deploring the consequences thereof without, however, censuring in any way the barbaric behaviour of those who cause such acts through the use of violence to achieve their objectives, cannot be tolerated.

...

For the purposes of these proceedings, the repeated strategic and systematic silence of a political party concerning terrorist activities can only be interpreted, from a political and constitutional viewpoint, as a clear sign of their ‘acceptance by omission’ or ‘implicit acceptance’, that is, as their alignment with the arguments of the perpetrators of those criminal actions and the tacit acceptance of violence as a means of achieving set objectives which, in our constitutional system, can only be achieved by peaceful means.”

36.  The court held, secondly, that other conduct of which the applicant parties had been accused, such as the harassment of representatives of non-nationalist parties in the municipalities of Vitoria and Lasarte-Oria, had contributed to the emergence of a climate of civil confrontation intended to intimidate opponents of terrorism and deprive them of their freedom of opinion.

37.  It observed, thirdly, that conduct such as publicly describing ETA prisoners as political prisoners or using the anagram of “Gestoras Pro-Amnistía” proved that the parties at issue were using symbols reflecting terrorism or violence. It noted, lastly, that the applicant parties had also taken part in activities in praise of terrorist activities.

38.  Turning to the need for and the proportionality of the dissolution of the applicant parties, the Supreme Court pointed out that it was taking account of the text of the Convention and of the Court’s case-law, which would serve as a guide in the interpretation of fundamental constitutional rights, in accordance with Article 10 § 2 of the Spanish Constitution. It considered that, in view of the applicant parties’ frequent calls to violence, as established by the above-mentioned evidence, the measure to dissolve the applicant parties had been justified for the purposes of protecting the fundamental rights of others, “a necessary element of democracy”. The Supreme Court referred in particular to the