1.- Introduction

On 19th February 2002 the Spanish government proposed various measures (in fact, six) to the commission for the Pursuit of the Anti-terrorist Pact. Undoubtedly the best known because of the great controversy which it caused was the reform of the Political Parties, which reformed Law 54/1978 of December 4th of Political Parties.

It is sufficient to say at this point that the said law was established with the clear and stated aim of proceeding to ban what is known as the pro-independence left, which at the moment of passing the law took the form of the political party BATASUNA.

Summary of the Constitutional Law 6/2002 of the 27th June of Political Parties


2.- Banning of Herri Batasuna, Euskal Herritarrok and Batasuna.

By means of a document dated 2nd September 2002, which was presented before the High Court on the following day, the Attorney General’s office presented to the Special Court governed by article 61 of the Constitutional Law of Judicial Power, a demand for the dissolution of the political parties HERRI BATASUNA (HB) EUSKAL HERRITARROK (E.H) and BATASUNA under articles 10 and those following of constitutional law 6/2002, of the 27th June, of Political Parties.

Prior to the presentation of the demand for the banning on 20th August, the judge of the Central Court of Instruction no 5 of the High Court, Baltasar Garzón begins proceedings to suspend the activities of Batasuna “given the apparent integration of the latter within the terrorist complex ETA-KAS-EKIN.

On the 26th August, the Judge of the High Court, Baltasar Garzón issues a judicial decree, ordering the suspension of all the activities of Batasuna, which involves the closing for three years of all the central offices, premises and establishments of which Batasuna disposes, directly or indirectly, irrespective of where they are situated.

On the 27th August Garzón orders, in a new judicial decree the eviction of Batasuna from their central offices. The premises in Bilbao, San Sebastian, Vitoria and Pamplona are cleared in spite of the resistance of Batasuna activists.

On the 27th March 2003 the High Court issues a sentence in which it rules, accepting fully the demands made by the State Prosecutor, representing the Government of the Nation, and on behalf of the Attorney General, the banning of the political parties against which the suit had been filed, that is to say HERRI BATASUNA, EUSKAL HERRITARROK and BATASUNA, it declares the dissolution of said political parties with the consequences established in article 12.1 of Constitutional Law 6/2002 of Political Parties; it orders the cancellation of their respective enrolments in the Register of Political Parties; it orders that the named political parties whose banning is declared must stop immediately all the political activities which they carry out just as soon as the present sentence has been notified; it requires the opening of a process of liquidation of all the property of HERRI BATASUNA, EUSKAL HERRITARROK and BATASUNA as established in article 12.1.C of Constitutional Law 6/2002 of political parties which will be carried out in execution of the present sentence.

3.- Illegalization of AuB and local platforms

AUTODETERMINAZIORAKO BILGUNEA was born officially on 16th February 2003. Distinguished members of the pro-independence Basque left but also of other political backgrounds endorsed the setting up of a new political initiative based, as they state, on two principles: Claiming the right of Basque men and women to decide their future and supporting a democratic solution to the Basque political conflict.

On the 14h March 2003 AuB announce that they will present candidates in the elections for the Parliament of Navarre and for the JUNTAS GENERALES of the provinces of ALAVA, BIZKAIA and GIPUZKOA in the elections due on the 25th May 2003.

In the same day in different areas of the Basque Country there began to crop up local platforms of the left, and pro-independence, who announce their intention of standing in the municipal (local government) elections to be held on the 25th May.

On 18th April AuB declares that it has presented before a notary the signatures of more than 80,000 Basque citizens, who have supported the candidature of AUTODETERMINAZIORAKO BILGUNEA and of local platforms so that they can contest the elections on 25th May.

Following an intense media campaign, whereby government sources and opposition parties insisted on the need to ban this candidature, on 28th April Jesús CARDENAL, the public prosecutor of the Spanish state, announced that he would present a collective challenge against the Basque popular candidatures, basing his case, for the purpose thereof, on the presence in these lists of people who previously stood for BATASUNA, EH or H.B

The JUNTA ELECTORAL CENTRAL (JEC) i.e. the Spanish Central Electoral Committee agrees to allow the party of which JOSE MARIA AZNAR is president, the popular party, to see who are those who have signed in support of the candidatures, thus contradicting what the Provincial Electoral Committee of Navarre had done the day before when they refused a similar request from the UNION DEL PUEBLO NAVARRO, arguing that such an action was an attack on fundamental rights and against citizens’ rights to privacy.

On 29th April, the Official Bulletins of ALAVA, BIZKAIA GIPUZKOA and NAVARRA publish a list of all the candidatures officially declared for the municipal and foral (Parliament of NAVARRE) elections of 25th May. This step pre-supposes ratification, through the usual procedures, of all the popular and patriotic lists presented in these elections, as occurred with dozens of other lists also which did not bear the initials of any party.

The minister of Justice, JOSÉ MARIA MICHAVILA gives assurances that a special workgroup was comparing the names of candidates in these elections with those who contested previous elections as candidates of HB and EH in order to try to find a correlation on which to base his challenge.

In a written document dated 1st May of this year 2003, the Public Prosecutor in his function as such, issues a litigious administrative challenge, under article 49, sections 1 and 5 of the Constitutional Law of the General Electoral Rules, in the wording amended by the Additional Second Disposition, subsection 2 of constitutional law 6/2002, which regulates Political Parties, against the declaration of candidature agreements, issued by the Area Electoral Committees of the provinces of ALAVA, GUIPUZCOA and VIZCAYA and by the Provincial Electoral Committee of NAVARRE, all of them dated the 28th April 2003 and published in the Official Bulletin of the Historic Territory of ALAVA, in the Official Bulletin of Vizcaya (BISCAY) and in the Official Bulletin Guipuzcoa of 29th April 2003.

The challenge to said procedural representation, against those acts of declaration of candidates, refers to 249 candidatures.

The document told them that they had until 3 o’clock the next afternoon to formulate declarations and that they must appear with due legal representation. In some cases this notification was received on the 2nd itself at 10 o’clock or 11.00.

Early in the night of 9th May, the decision of the Spanish High Court is made known, confirming that 241 popular candidatures will not be able to take part in the May elections.

On the 5th May AuB has a meeting in Iruñea (Pamplona) with different representatives of political groups, which it asks to ensure that the democratic representation which comes out of the election boxes on the 25th May be respected, without taking into account the claim of the state, which will consider invalid the votes of AuB.

4.- Ban on Herritarren Zerrenda

On 24 April 2005, in Donostia, a group of independent citizens –with no links to any specific political parties or social organisations- presented the initiative called Herritarren Zerrenda, HZ –the Citizens’ List- in order to stand for election to the European Parliament. The promoters stated that this candidature would represent a left-wing position as well as one favourable to the right to self determination for the Basque Country, but they insisted: «we have no political will to represent any other political agent in Basque society; rather, we intend to offer an option that is open to those citizens who agree with our basic principles».

During the following days, they began collecting signatures. This is a condition set by Spanish election law for any electoral grouping.

On May 10, 49,000 signatures were presented, comfortably exceeding the stipulated number of 40,000. After this, the Central Election Board proceeded to officially proclaim the validity of the candidature in the Official State Bulletin (BOE).

On May18, the Spanish government of José Luis Rodríguez Zapatero impugned Herritarren Zerrenda’s candidature and the Lawyer of the State filed appeal Nº 1/2204 against the decision by the Election Board to validate the said candidature. In its appeal, the executive challenges the HZ election list on the grounds that 33 of its 54 members are linked to “the complex of Batasuna and/or ETA, the BNLM, Segi or other outlawed organisations” based upon Law 6/2002 of Political Parties. These links are absolutely gratuitous, as none of the candidates is involved in any penal or administrative process that would prove this kind of link. In addition, the Lawyer of the State maintains that the impugned candidature is “but the consequence of the terrorist group ETA’s strategy to act through a two pronged approach in the political-institutional front”. Obviously, a clandestine organisation cannot take part in elections, but what is in fact being argued here is that if ETA considers a given electoral group favourable to its project, the latter can be subject to a ban due to this alone. Furthermore, the appeal adds a determining ideological element in order to establish the link, as according to the State Lawyer, the candidature publicly defines itself as being “from the Basque pro-independence left”. In other words, it comes from the pro-independence and left-wing Basque sociological spectrum, which was never a secret because, to date, it is a legitimate political section of society.

The appeal was sent to the special court known as the Sala 61 (a special court within the Supreme Court with jurisdiction in cases dealing with the validity of political parties according to the Law of Political Parties), in charge of “proceedings to declare political parties illegal and thereby, to declare their disbandment”. The Supreme Court, in a decision dated 21 May 2004, considered that “the activity of outlawed and disbanded political parties may not continue in the future, even under other “legal draping”, categorically stating that the same conclusion to ban all activity would be arrived at as often as the transmission or taking on board, through whichever legal formulae, of the same functional content in an identical or similar distribution of duties with the terrorist group ETA is detected”. It continues to justify this reasoning due to the HZ candidates having taken part in other candidatures and deciding to declare the list “not conforming to the law and to annul the proclamation”.

The reply to appeal Nº 3293/2004 before the Constitutional Court was similar. However, a new element was introduced: condemnation of terrorist actions. Literally, and in a contradictory loop, “whilst expressions of support or rejection, cannot be demanded, by principle, of any citizen, as they must in any case spring from their freedom of speech; in a democratic society, it is perfectly acceptable to expect […] an unequivocal declaration of distance, rejection and condemnation of everything represented by a criminal organisation and its political instruments, from an electoral group […] as soon as a suspicion of connivance with terror looms over it”. In other words, a declaration cannot be demanded, but if it does not take place, at least in whichever terms the courts and the Spanish powers consider appropriate, that omission is “the minimum demand to make of those who wish to use the benefits given by the system the criminals wish to subvert”. Nevertheless, this can hardly be justified, because the main candidate, María Jesús Fullaondo, stated she condemned “all forms of violence that occur in the Basque political context” in the Basque regional Television (EITB) programme “Políticamente Incorrecto”. It would seem this statement is not enough for the high Court. All in all, the Constitutional Court dismissed the appeal due to the silence of the candidature promoters about a circumstance –violent action by a non-state agent- which did not occur during the entire election campaign.

5.- Ban on Aukera Guztiak

In view of the constant bans on political parties and popular election candidatures, a group of citizens with a high public profile and who had never previously taken part in political activity announced their intention to promote a group for the elections, “to defend all civil and political rights” aimed at “ensuring that all the citizens are able to exercise their right to vote”. Thus, Aukera Guztiak (All Options) was launched as a “civil, not political” initiative, concerned “because of the fact that all the political options in our country are not allowed to take part in the upcoming election, if we are to believe the statements coming from the Madrid Government”

In view of a situation where “Basque citizens’ rights are constantly violated, while we also suffer a daily situation with multiple expressions of violence”, Aukera Guztiak defended the idea of “building peace jointly, because we are all partly responsible for the mistakes that have bee made and a part of the conflict”. Therefore, with this as their sole am, they stated that they had no political programme as such, neither were they standing for election in an attempt to “substitute anyone”.

After an intense media campaign whereby political spokespersons asked for this election platform to e banned, on 12-03-0, Conde-Pumpido, the Attorney General, stated he would take action against Aukera Guztiak’s lists due to his “personal conviction” that “it is a cover for Batasuna”. “My intention is to use all the tools in the legal system to prevent their presence in the Basque Parliament”.

In an unprecedented example of social control, every single person who had signed their name in order to allow Aukera Guztiak to stand for election was investigated on the General Attorney’s orders. Cándido Conde-Pumpido confirmed the institution he is head of was carrying out “control” of those who signed in order to cross-reference their data against the data contained in various police databases, in order to see if there is any connection between this platform and members or supporters of Batasuna.

On 7th March, the case was put to the Special Court of the Supreme Court, based on the “evidence sent by the Audiencia Nacional” and on “other pieces of evidence”. On 27th March the Supreme Court passed a sentence declaring Aukera Guztiak’s candidature void, considering that the existing evidence is “enough to infer the existence of continuity between the Batasuna network and Aukera Guztiak”. Among these, they highlighted the fact that AG had not used the verb “to condemn” against ETA.

Once the appeals by the defence were assessed and rejected, the candidature disappeared from the list of political parties standing for election on April 17th.

6.- Candidatures declared illegal in the Basque Country: ASB and ANV-EAE

In recent days we have witnessed frenzied legal action against Basque candidatures to posts in local and provincial elections, including the Parliament of Navarra, on the 27th of May of this year.

To summarise briefly, the State Prosecutor’s Office and State Legal Service brought lawsuits against the electoral candidatures that had been presented collectively as ASB (Abertzale Sozialisten Batasuna). Their supporters had gathered 83,000 signatures, a requirement for inclusion on the ballots. An additional suit was brought against a legal party registered as such for a number of years, known as ANV-EAE- Acción Nacionalista Vasca –Eusko Abertzale Ekintza. In the ASB case, they allege that the banned party Batasuna is behind ASB working “the two-pronged strategy of terrorist and political activity adopted by ETA” and so they should be prohibited from elections. In the ANV case, most of their lists are “contaminated or infiltrated” by members of Batasuna, that is, “through the appearance of personal or individual participation, what has really been created is that the very party which was declared illegal is the one that is behind the contested candidature.” Therefore, the State Prosecutor opted for a strange benchmark for measuring the “contamination” of the lists of the historical nationalist group ANV, and this happens because they include “at least three candidates with a direct and relevant affiliation with the illegal party, as candidates of that party in prior electoral processes or for holding or having held organic posts in their representation.”

To obtain this information, the State Prosecutor’s Office and State Legal Service availed of files of an ideological nature on 15,000 citizens according to some sources, and 19,000 according to others. These data were contrasted with the 11,700 candidates that would appear on the ASB’s 246 and the ANV’s 133 contested lists.

On 5 May, the Supreme Tribunal’s Article 61 Special Court handed down a unanimous decision prohibiting all 246 electoral lists presented by ASB based on electoral legislation. The Supreme Tribunal took a different tack for the ANV, as the case gave rise to a legal debate on whether or not there was any basis for banning lists of a perfectly-legal party, and therefore their discussions were based on the Political Parties act. In the end, their decision forbade the registration of the ANV’s 133 lists.

Spain’s High Tribunal upholds the concept that individuals that have participated in illegal parties may not run for election. These parties include Herri Batasuna, Euskal Herritarrok and Batasuna, as part of the so-called “theory of fraudulent succession”. But this criterion has also been extended to include participation in other candidatures or parties which over time have been declared illegal – AuB- Autodeterminazioaren Biltzarrak and the lists of candidates to municipal offices in 2003, Aukera Guztiak, Herritarren Zerrenda- as well as those who participated in the electoral process as proxies or representatives.

After the defence for ASB and ANV presented their appeals to the Constitutional Tribunal, considering that fundamental rights were being violated, the Supreme Tribunal’s decision was left to stand and so all of the candidatures of the nationalist and socialist groupings, along with the ANV’s 133 candidatures, were invalidated. In their unanimous decision, the Constitutional Tribunal concurred that the electoral lists presented together under the common denominator of Abertzale Sozialistak constituted a succession or continuity of previously-banned parties, while the rest were “infiltrated” by Batasuna, according to the Supreme Court’s terminology.

To finish with the process of illegalisation, on16 May the Supreme Tribunal’s Article 61 Special Court hold a public hearing to analyze if the ASB party, besides the prohibition of its candidatures, could be considered legal and be inscribed in the Register of Political Parties. The accusation - the State Prosecutor’s Office and State Legal Service- has the same allegations that before. The lawyers that support the rights of ASB stated that the Statutes of the new party “are unblemished” taking into account the Political Parties Law and in is impossible to know at this level if they have an attitude of continuity of other illegalized parties or they have an identity in the “structure, organization or functioning” as it has not done still any activity. In this regard the lawyers assessed that the accusation is asking to the Court to do a “prophecy”. In any case, the Tribunal took a deliberation of few hours to estimate the illegalization in a unanimous decision.

In conclusion, this decision closes the process which denies the right to the electoral process of the ASB candidatures endorsed by over 83,000 signatures of Basque citizens, and 133 lists in the case of ANV, such that their candidatures will be present in fewer than half of Basque municipalities and only 15% of the citizenry may support them in provincial elections. Furthermore, in a longer sight and regarding the solution of the Basque political conflict, a large sector of the Basque society has not a political representation.

According to the representatives of the State, the annulment of thousands of candidates, many of whom had no relation with the illegal parties, is not a violation of rights.

On the contrary, we believe that there has been at the very least a violation of the right to privacy of those who were investigated due to their participation in prior electoral processes or for holding office in institutions, by virtue of other criteria that seem to have been used to fill out their files in the investigation. The citizenry is subjected to a suffocating degree of social control, as expressed by the European Democratic Lawyers in their declaration made on 21 April in Munich.

We also consider that whoever accepts in legal terms the language used by the State Prosecutor’s Office and State Legal Service, i.e. “contamination”, ”infiltration”, “invasion”, participates in the discrimination of a sector of the citizenry in a persistent expansion of a policy that irreversibly precludes them from exercising their right to stand for election. Similarly, the lack of clarity, the ambiguity and the extent of the deeds that are considered “contaminating”, along with the denial of access to those files, generates a sense of legal insecurity due to the complete lack of knowledge of whose political rights have been restricted and why, and whose have not.

Furthermore, resorting to the procedure derived from the Political Parties act or electoral legislation with the aim of hastening decisions for mere political purposes, disassociating this dispute with the electoral campaign period, has had a serious impact on the right to defence.

Finally, these decisions, in evidence of their utterly low legal standard, and on the contrary, the political determination that inspires them, has a serious impact on the voter’s rights, denying Basque citizens of the right to vote for a political option with deep roots in society. The repeatedly-denounced criminalisation of politics, or conversely, the politicisation of justice has helped to generate, in this specific case, an insurmountable democratic deficit, which furthermore dashes the hopes of political normalisation of an absolute majority of Basque society.