CEDH · CASELAW;CLIN;ENG — 30 juin 2009

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Spain - 35579/03 Judgment 30.6.2009 [Section V] Article 3 of Protocol No. 1 Free expression of opinion of people Stand for election Cancellation of candidacy of electoral groups to territorial elections on grounds that they were carrying on activities of parties that had been declared illegal owing to their links with a terrorist organisation: no violation   Facts : The applicants are Spanish nationals and electoral groupings which were active within the political parties that were declared illegal and dissolved (in particular, Herri Batasuna and Batasuna) on the basis of Organic Law 6/2002 on political parties (“the LOPP”). In April 2003 the electoral commissions of the Basque country and Navarra registered the candidacies of the groupings in the municipal, regional and Autonomous Community elections scheduled to take place in the Basque country and Navarra in May 2003. State Counsel and the public prosecutor’s office lodged applications with the Supreme Court for judicial review of an electoral matter, seeking to have approximately 300 candidacies, including those of the electoral groupings in question, struck off the lists. They accused the groupings of pursuing the activities of the political parties Batasuna and Herri Batasuna, which had been declared illegal and dissolved in March 2003. The Supreme Court granted the applications lodged by State Counsel and the public prosecutor’s office in the part concerning the electoral groupings which have now applied to the Court, and barred the groupings from standing on the ground that their aim had been to carry on the activities of the three parties that had been declared illegal and dissolved. The electoral groupings concerned then lodged an amparo appeal with the Constitutional Court, which dismissed it. Sixteen of the electoral groupings involved in the domestic proceedings had their amparo appeals allowed. Law : Article 3 of Protocol No. 1 – The applicants complained that they had been deprived of the possibility of standing as candidates in the elections to the parliament of Navarra and of representing the electorate; this had hindered the free expression of the opinion of the people in the choice of the legislature. Spanish legislation provided for the disputed measure and the applicants could reasonably have expected that the provision in question, which was sufficiently foreseeable and accessible, would be applied in their case. The impugned restriction pursued aims that were compatible with the principle of the rule of law and the general objectives of the Convention, in particular the protection of democracy. As to whether the measure had been proportionate, the national authorities had had considerable evidence to suggest that the electoral groupings in question intended to continue the activities of the political parties that had previously been declared illegal. Furthermore, the Supreme Court had based its reasoning on elements external to the manifestos of the groupings concerned and the authorities had taken the decisions barring the candidacies on an individual basis. In addition, after an examination in adversarial proceedings during which the groupings had been able to submit observations, the domestic courts had found an unequivocal link with the illegal political parties. In the instant case it had been sufficiently proven by the Spanish courts that the groupings concerned intended to continue the activities of Batasuna and Herri Batasuna, which had been dissolved because of their support for violence and for the activities of the terrorist organisation ETA. Lastly, the political context in Spain, characterised by the presence of separatist political parties in the institutions of government of certain Autonomous Communities and in particular in the Basque country, demonstrated that the impugned measure had not been intended to prohibit all manifestations of separatist ideas. Accordingly, the restriction complained of had been proportionate to the legitimate aim pursued and, in the absence of any element of arbitrariness, had not infringed the free expression of the opinion of the people. Conclusion : no violation (unanimously). Article 10 – Applicability : Even if the right to freedom of expression was linked in a specific case to an electoral procedure, that did not suffice to find that it did not apply in the instant cases. Article 10 was therefore applicable. Compliance : With regard to some of the applications, the Court referred to its findings under Article 3 of Protocol No. 1. As to the applications relying on Article 10 alone the Court considered, taking into account the close relationship between the right to freedom of expression and the criteria arising from the case-law concerning Article 3 of Protocol No. 1, that the Spanish authorities had not overstepped their margin of appreciation under Article 10. Conclusion : no violation (unanimously). Article 13 – The time allowed to the groupings in question to submit their appeals had been short, particularly with reference to the standards laid down by the Venice Commission. However, there was a lack of unanimity on the subject among the Council of Europe member States. Hence, the time-limit laid down in Spain was not an isolated example or manifestly unreasonable when compared with the approach taken by most other European countries. In any event, the applicants had not demonstrated that the time-limits had prevented the representatives of the groupings in question from lodging their appeals with the Supreme Court or the Constitutional Court and from filing observations and defending their interests in an appropriate manner. Conclusion : no violation (unanimously). See also Herri Batasuna and Batasuna v. Spain , nos. 25803/04 and 25817/04, in relation to Article 11, and Herritarren Zerrenda v. Spain , no. 43518/04, 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