Prevention of terrorism
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW A. The Spanish Constitution Article 6 “ Political parties are the expression of political pluralism; they contribute to the formation and expression of the will of the people and are an essential instrument for political participation. Their creation and the exercise of their activities are free in so far as they respect the Constitution and the law. Their internal structure and their functioning must be democratic. ” Article 22 “ 1. The right of association is recognised. 2. Associations which pursue ends or use means legally defined as criminal offences are illegal. 3. Associations set up on the basis of this section must be entered in a register for the sole purpose of public knowledge. 4. Associations may only be dissolved or have their activities suspended by virtue of a court order stating reasons. 5. Secret and paramilitary associations are prohibited. ” B. Law no. 6/1985 of 1 July 1985 – “the LOPJ ” ( as amended by Institutional Law no. 6/2002 of 27 June 2002 on political parties ) Section 61 “ 1. A Chamber comprising the President of the Supreme Court, the different divisional presidents and the most senior and the most recently appointed judge of each division shall examine : ( i ) applications for review of judgments ... ; ( ii ) challenges [ to the President of the Supreme Court, the different divisional presidents, or more than two senior divisional judges ]; ( iii ) civil liability claims against divisional presidents ...; ( iv ) investigation and adjudication of claims against divisional presidents; (v ) allegations of judicial error imputed to a division of the Supreme Court; (vi ) procedures for a declaration of illegality and consequent dissolution of political parties, pursuant to Institutional Law no. 6/2002 of 27 June 2002 on political parties; ... ” C. Institutional Law no. 6/2002 of 27 June 2002 on political parties – “the LOPP ” Section 9 “ 1. Political parties may freely engage in their activities. In engaging in those activities, they shall respect the constitutional values expressed in democratic principles and human rights. They shall perform the functions attributed to them under the Constitution democratically and in full respect for pluralism. 2. A political party shall be declared illegal 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 : ( a) systematically violating fundamental freedoms and rights by promoting, justifying or excusing attacks on the life or integrity of the person, or the exclusion or persecution of an individual by reason of ideology, religion, beliefs, nationality, race, sex or sexual orientation; ( b) fomenting, encouraging or legitimising violence to be used as a means to achieve political ends or as a means to undermine the conditions that make the exercise of democracy, pluralism and political freedoms possible; ( c) 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, subjecting the public authorities, certain persons or certain groups in society or the population in general to a climate of terror, or contributing to increasing the effects of terrorist violence and the resulting fear and intimidation. 3. The conditions described in the preceding paragraph shall be deemed to have been met where there has been a repetition or an accumulation, by the political party, of one or more of the following instances of behaviour : ( a) giving express or tacit political support to terrorism by legitimising the use of terrorist actions for political ends outside peaceful and democratic channels, or by excusing them or minimising their significance and the ensuing violation of human rights; ( b) accompanying violent action with programmes and activities promoting a culture of civil conflict and confrontation associated with the actions of terrorists or those who resort to intimidation; pressurising, neutralising or socially isolating anyone opposing that violent action, by forcing them to live with a daily threat of coercion, fear, exclusion or deprivation of freedom and depriving them in particular of their freedom to express their opinions and to participate freely and democratically in public affairs; ( c) including regularly in its directing bodies or on its lists of candidates for election persons who have been convicted of terrorist offences and who have not publicly renounced terrorist methods and aims, or maintaining among its membership a significant number of militants who are also members of organisations or bodies linked to a terrorist or violent group, except where it has taken disciplinary measures against them with a view to their exclusion; ( d) using as instruments of its activity, jointly with its own or in place thereof, symbols, slogans or items which represent or symbolise terrorism or violence and conduct associated with terrorism; ( e) conceding to terrorists or to any person collaborating with terrorists the rights and prerogatives which the legal system – and in particular electoral law – grants to political parties; ( f) collaborating habitually with entities or groups which systematically act jointly with a terrorist or violent organisation or which defend or support terrorism or terrorists; ( g) supporting, through government institutions, the entities referred to in the preceding paragraph through administrative, financial or any other measures; ( h) promoting or covering activities the object of which is to reward, pay tribute to or honour terrorist or violent actions or those who commit them or collaborate or participate in them; ( i ) covering disruptive, intimidatory or socially coercive actions that are linked to terrorism or violence. 4. In assessing and evaluating the activities to which this section refers and the continuing nature or repetition thereof in the context of the trajectory of a political party, even if that party has changed its name, account will be taken of the party ’ s decisions, documents and communiqués, its bodies and its parliamentary and municipal groups, the conduct of its public activities and the way in which it calls on citizens to mobilise, demonstrations, interventions and public engagements of its leaders and members of its parliamentary and municipal groups, the proposals formulated within or outside institutions as well as the significant repetition, by its members or candidates, of certain behaviour. Account will also be taken of administrative penalties imposed on the political party or its members and any criminal convictions of its leaders, candidates, elected officials or members for the offences listed in Titles XXI to XXIV of the Spanish Criminal Code and which have not resulted in disciplinary measures leading to the exclusion of the parties concerned.” Section 10 “ ... 2. The judicial dissolution of a political party shall be decided by the relevant court in the following cases : ( a) where the party is considered to be an illegal association for the purposes of the Spanish Criminal Code; ( b) where it continuously, repeatedly and seriously breaches the obligation imposed by sections 7 and 8 of this Institutional Law to have a democratic internal structure and to operate democratically; ( c) where, as a result of its activities, it repeatedly and seriously infringes democratic principles or seeks to impair or to destroy the system of liberties or to hinder or to put an end to the democratic system by means of the conduct referred to in section 9. ... 5. The cases provided for in sub-paragraphs (b) and (c) of paragraph 2 of this section shall be examined by the special Chamber of the Supreme Court created by section 61 of the LOPJ, in accordance with the procedure laid down in the following section of this Institutional Law, which derogates from the LOPJ .” Section 11 “ 1. The government or the public prosecutor may trigger the procedure to have a political party declared illegal and to have it dissolved ... ... 7. No appeal shall lie against a judgment delivered by the special Chamber of the Supreme Court pronouncing dissolution or rejecting an application for dissolution save, as the case may be, an amparo appeal before the Constitutional Court ... ” Sole transitional provision “ ... 2. For the purposes of application of the provisions of paragraph 4 of section 9 to activities subsequent to the entry into force of this Institutional Law, the constitution, on a date immediately prior or subsequent to that date of entry into force, of a political party carrying on the activities of another party or succeeding it with the aim of avoiding application to it of the provisions of this Law, shall be deemed to constitute a fraudulent evasion of statutory provisions. This will not constitute an obstacle to the application of this Law and sections 10 and 11 of this Institutional Law may be applied to the party concerned. The special Chamber of the Supreme Court shall be vested with power to assess continuation or succession and fraudulent intent.” D. European Union law 1. Council Common Position 2003/402/PESC of 5 June 2003, updating Common Position 2001/931/PESC on the application of specific measures to combat terrorism Annex (list of persons, groups and entities referred to in Article 1) “ ... 7. Euskadi Ta Askatasuna /Tierra Vasca y Libertad / Basque Fatherland and Liberty (ETA) [ The following organisations are part of the terrorist group ETA: K.a.s ., Xaki, Ekin, Jarrai-Haika-Segi, Gestoras pro- amnistía, Askatasuna, Batasuna (a .k.a. Herri Batasuna, a .k.a. Euskal Herritarrok ]. ” E. Council of Europe law 1. Resolution 1308 (2002) of the Parliamentary Assembly of the Council of Europe on restrictions on political parties in the Council of Europe member States “ ... 2. The Assembly considers that the issue of restrictions on political parties is by nature a very complex one. However, the tragic events which took place in New York on 11 September 2001 should encourage us to reflect still further on the threats to democracy and freedoms posed by extremism and fanaticism. ... 11. In conclusion and in the light of the foregoing, the Assembly calls on the governments of member States to comply with the following principles : ... ( ii ) restrictions on or dissolution of political parties should be regarded as exceptional measures to be applied only in cases where the party concerned uses violence or threatens civil peace and the democratic constitutional order of the country; ... ( v ) a political party should be banned or dissolved only as a last resort, in conformity with the constitutional order of the country, and in accordance with the procedures which provide all the necessary guarantees to a fair trial; ... ” 2. Council of Europe Convention on the Prevention of Terrorism, which entered into force on 1 June 2007, signed and ratified by Spain (entry into force on 1 June 2009) Article 5 – Public provocation to commit a terrorist offence “ 1. For the purposes of this Convention, ‘ public provocation to commit a terrorist offence ’ means the distribution, or otherwise making available, of a message to the public, with the intent to incite the commission of a terrorist offence, where such conduct, whether or not directly advocating terrorist offences, causes a danger that one or more such offences may be committed. 2. Each Party shall adopt such measures as may be necessary to establish public provocation to commit a terrorist offence, as defined in paragraph 1, when committed unlawfully and intentionally, as a criminal offence under its domestic law. ” Article 9 – Ancillary offences “ 1. Each Party shall adopt such measures as may be necessary to establish as a criminal offence under its domestic law : ... ( c) contributing to the commission of one or more offences as set forth in Articles 5 to 7 of this Convention by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either : ( i ) be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of an offence as set forth in Articles 5 to 7 of this Convention; or ( ii ) be made in the knowledge of the intention of the group to commit an offence as set forth in Articles 5 to 7 of this Convention. ... ” Article 1 0 – Liability of legal entities “ 1. Each Party shall adopt such measures as may be necessary, in accordance with its legal principles, to establish the liability of legal entities for participation in the offences set forth in Articles 5 to 7 and 9 of this Convention. 2. Subject to the legal principles of the Party, the liability of legal entities may be criminal, civil or administrative. 3. Such liability shall be without prejudice to the criminal liability of the natural persons who have committed the offences .” THE LAW I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 51. The applicant parties alleged that their dissolution had entailed a violation of their right to freedom of association. Describing Institutional Law no. 6/2002 on political parties (“ the LOPP ”) as an ad hoc law, they argued that it was neither accessible nor foreseeable and complained that it had been applied retrospectively. Stating that the purpose of their dissolution had been to eliminate political debate in the Basque Country, they complained that the measure had had no legitimate aim. They argued that it could not be considered necessary in a democratic society and considered it to be in violation of the principle of proportionality. The relevant parts of Article 11 provide : “ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association ... 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. . .. ” A. Whether or not there was interference 52. The parties acknowledged that the dissolution of the applicant political parties amounted to interference in the exercise of their right to freedom of association. The Court shares that view. B. Whether that interference was justified 53. Such interference will constitute a breach of Article 11 unless it was “prescribed by law”, pursued one or more legitimate aims under paragraph 2 and was “necessary in a democratic society” for the achievement of those aims. 1. “ Prescribed by law ” ( a) The parties ’ submissions 54. The applicant parties argued that the LOPP did not satisfy the criteria of foreseeability and stability required by the Court ’ s case-law. They claimed that it had been applied retrospectively and had therefore been in breach of the principle of legal certainty. 55. The Government submitted that the dissolution of the applicant parties had been based on an existing, accessible and foreseeable law. ( b ) The Court ’ s assessment 56. The Court reiterates that the expressions “prescribed by law” and “in accordance with the law” in Articles 8 to 11 of the Convention not only require that the impugned measure should have some basis in domestic law, but also refer to the quality of the law in question. The law should be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct ( see, among other authorities, The Sunday Times v. the United Kingdom ( no. 1), 26 April 1979, § 49, Series A no. 30). Experience shows, however, that it is impossible to attain absolute precision in the framing of laws ( see, for example, Ezelin v. France, 26 April 1991, § 45, Series A no. 202). 57. In the instant case, the Court notes that the Law at issue entered into force on 29 June 2002, the day after its publication in the Official Gazette of the State, and that the dissolution of the applicant political parties was pronounced on 27 March 2003. That Law defined sufficiently clearly the organisation and functioning of political parties and the conduct that could entail their dissolution or suspension by the courts of their activities (see Chapter III of the Law). 58. Turning to the complaint concerning the retrospective application of the Law, the Court finds at the outset that, although all the acts enumerated in the judgment of the Supreme Court having pronounced the dissolution at issue concerned Batasuna, the Supreme Court held Batasuna and Herri Batasuna to be “ in reality a single entity ... hidden behind an apparent plurality of legal entities” (see paragraph 30 above). In those circumstances, the Court considers that the complaint concerns all the applicant parties. 59. As to the merits of the complaint, the Court reiterates that Article 7 § 1 of the Convention guarantees non- retrospectivity only in the context of criminal proceedings, and that the instant case does not concern criminal matters. In any event, the Court notes that the acts taken into account by the Supreme Court in order to pronounce the dissolution of the applicant parties were committed between 29 June and 23 August 2002, that is, after the date of entry into force of the LOPP. Moreover, the Convention contains no provision ruling out the possibility of relying on facts preceding enactment of the Law. 60. Consequently, the Court considers that the interference at issue was “ in accordance with the law ” and that the applicant parties ’ complaints concerning the impugned measure would be better examined from the viewpoint of the need for that interference. 2. “ Legitimate aim ” ( a) The parties ’ submissions 61. The applicant parties submitted that their dissolution had pursued an illegitimate aim in that it had sought to eliminate the Basque political independence movement from political and democratic life. 62. The Government submitted that the dissolution had been a means of preventing the applicant parties from acting against the democratic system and the fundamental freedoms of citizens by supporting violence and the activities of the terrorist organisation ETA. They argued that the applicant parties had constituted a threat to human rights, democracy and pluralism. They denied that the dissolution had been intended to eliminate political pluralism in Spain, and highlighted, as an example, the peaceful coexistence on Spanish territory of several political parties advocating nationalism or independence which engaged in their activities normally. ( b) The Court ’ s assessment 63. The Court considers that the applicant parties have failed to show that their dissolution was motivated by reasons other than those advanced by the national courts. It cannot subscribe to the applicant parties ’ argument that, as far as the Government were concerned, the dissolution had been a means of eliminating any debate concerning the left-wing Basque independence movement. In that connection, it upholds the Government ’ s observations set out in the preceding paragraph and points out that various so-called “separatist” parties coexist peacefully in several autonomous communities in Spain. 64. Having regard to the circumstances of the case, the Court considers that the dissolution pursued several of the legitimate aims referred to in Article 11, notably public safety, the prevention of disorder and the protection of the rights and freedoms of others. 3. “ Necessary in a democratic society ” and “ proportionality of the measure ” ( a) The parties ’ submissions ( i ) The applicant parties 65. Arguing that a declaration of illegality was the only kind of interference provided for by the LOPP to sanction disparate conduct of varying degrees of seriousness, the applicant parties alleged that the Law at issue violated the principle of proportionality. That Law failed to take account of the case-law of the Strasbourg Court intended to ensure that the interference of public authorities in the exercise of the right to freedom of association was in proportion to the seriousness of the impugned conduct and that dissolution be reserved for situations in which the activities of the political party at issue seriously endangered the very survival of the democratic system. 66. The first applicant party argued that, with the exception of its alleged “ operational unity” with Batasuna and EH, no fact warranting its dissolution could be attributed to it. 67. The second applicant party criticised the Supreme Court ’ s judgment of 27 March 2003 for having held that Batasuna ’ s calls to violence were much more explicit than those made by the members of Refah Partisi ( the Welfare Party ), which had been declared illegal by Turkey ( see Refah Partisi ( the Welfare Party ) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, ECHR 2003 -II ), and for having relied on that difference to justify the impugned dissolution measure. The second applicant party made the observations below as regards the facts deemed to constitute grounds for dissolution in the judgment in question. – The fact that it had not appointed representatives to the Basque parliamentary committee responsible for examining the situation and needs of victims of terrorism had amounted to a manifestation of the right to freedom of thought and was not of the “ particularly serious ” nature required by the LOPP to dissolve a political party. – A.O. ’ s statements in response to the judgment of central investigating judge no. 5 at the Audiencia Nacional having found the applicant party civilly responsible for acts of street violence ( kale borroka ) had merely amounted to a manifestation of the right to freedom of expression of the applicant political party, against which, moreover, the Spanish authorities had taken no criminal action. – As regards A.O. ’ s participation in a tribute to Basque fighters who were victims of Fascism during the civil war, organised by Basque Nationalist Action, a legal political party, no such activity was listed among the grounds for dissolution provided for by the LOPP and it could not therefore be criticised by the Government, as they had done in their observations. – The participation of a Batasuna mayor and councillor in a demonstration in support of ETA members resident in Venezuela could not be taken into account to justify the dissolution since that demonstration had not been banned by the Basque government. Furthermore, the criminal proceedings brought against the participants had resulted in their acquittal and the events had not even given rise to an administrative penalty. – Although the statements of Batasuna ’ s municipal spokesperson in San Sebastian had contained expressions which could be deemed “capable of offending, undermining or disrupting the State ” they had been protected by the freedom of expression enjoyed by active members of a political party. – The courts had interpreted the statements made by Batasuna ’ s spokesperson in the municipality of Vitoria subjectively, whereas that person ’ s conduct should have been protected by the right to freedom of expression. – The information establishing the refusal of elected members of Batasuna to condemn the threats received by certain leaders of other political organisations during a meeting of the council of the municipality of Amorebieta had been based on a press article and had not been checked against the minutes of the meeting. Therefore, that ground for illegality had been based on a mere presumption. – As regards the press conference organised by the mayor and the chairman of the Ondarroa Human Rights Committee concerning the return to Spain of an ETA member convicted in France, in relation to which the Supreme Court had considered that explicit political support had been given to the ETA member in question, deemed to be a “ victim of political reprisals ”, that information had been based exclusively on a press article and could not be taken into account. It had been based on a value judgment of the journalist who had written the article. The conference in question had not been organised by Batasuna and it was the sister of the ETA member concerned who had spoken. No statement could be attributed to the town ’ s mayor. In any event, it had been a manifestation of ideological and political freedom which should not have been taken into account in the process of declaring a political party illegal. – As regards Batasuna ’ s refusal to condemn the fatal attack carried out by ETA at Santa Pola, the national courts, when examining that ground for illegality, had merely taken account of random expressions used in the applicant ’ s speech without considering it as a whole and without carrying out an “ acceptable assessment of the relevant facts ”, thus disregarding the Court ’ s case-law (see Dicle for the Democratic Party ( DEP ) of Turkey v. Turkey, no. 25141/94, § 57, 10 December 2002 ). In that connection, it would appear that the judgment of the Supreme Court had concluded that there had been a “minimum standard”, an implicit set of codes of behaviour requiring the applicant party to expressly condemn the attacks. However, since those codes had not been explicit, the applicant party ’ s behaviour could at most have attracted social censure, but not a political sanction. – As regards the use of the anagram of “ Gestoras Pro- Amnistía ” ( an organisation appearing on the European list of terrorist organisations) in the municipalities run by Batasuna, the Government ’ s argument that that could be “ easily associated with the use of terrorist violence and those who engage in it” was debatable. The logos in question had contained no reference to ETA and it had merely amounted to a manifestation of ideological freedom. – As regards the attitude of Batasuna ’ s leaders during a demonstration in San Sebastian in 2002, the Government ’ s allegations that the pro-ETA slogans had emanated from the leaders in question were unfounded. They had been off-the-cuff remarks that could not be deemed to be linked to terrorism and which, in any event, were not of the particular degree of seriousness required by law to constitute a cause of dissolution. Furthermore, no criminal action had been taken against the organisers. – As to displaying posters in support of terrorism on the facades of Batasuna -run town halls, the posters in question had been put up only in a minority of town halls. Consequently, that should not have been characterised as “ repeated behaviour ” for the purposes of the LOPP. – A.O. ’ s statements during a Batasuna press conference in Bilbao had concerned a “political evaluation” of the judicial decision to trigger a procedure to suspend Batasuna ’ s activities. The criticism of the State at that conference had been harsh and hostile. However, in accordance with the Court ’ s case-law, those statements “ could not in themselves constitute evidence that [a] party was equivalent to armed groups implicated in acts of violence ” ( see Dicle for the Democratic Party (DEP) of Turkey, cited above, §§ 59 and 60). Furthermore, A.O. had been acquitted of the criminal charge of making terrorist threats. Therefore, the impugned statements had been made in the context of a political leader exercising his freedom of expression in describing his particular vision of the Spanish State. – Statements made by of one of Batasuna ’ s leaders and published in a Basque newspaper had simply criticised the Government and had not gone beyond the bounds of freedom of expression. – As regards the statements made by a Batasuna leader at a meeting organised by the party to protest against its dissolution, the leader in question had merely “ done his duty in noting the concerns of the electorate” ( ibid., § 60 ) faced with the seriousness of a potential declaration of illegality of the organisation of which he was a member. The criticisms had been made in the context of a political debate concerning a matter of general interest, namely, the declaration of illegality of a political organisation representing a large part of Basque society. Since the criminal proceedings brought on that occasion had been dropped, once again it had amounted to a manifestation of freedom of expression. – The tributes to terrorists who had been made honorary citizens ( hijos predilectos ) had not been organised by Batasuna. Moreover, those events had occurred after 26 August 2002, the date on which the activities of Batasuna and Herri Batasuna had been suspended, and had amounted to a manifestation of freedom of expression. – As regards the harassment of the municipal representatives of non-nationalist parties attributed to members of Batasuna in certain municipalities, the involvement of the applicant party in the events at issue had not been proved before the national courts. – There was no evidence of the alleged existence of graffiti, posters and placards inciting militancy against the State in certain municipalities run by Batasuna. In any event, the texts and content of those items could not be considered to be referring to violence or terrorism but had to be seen as mere expressions of ideology. 68. An analysis of those eighteen incidents, separately or together, showed that they had not warranted a measure as severe as the dissolution of a political party. Furthermore, the dissolution measure had clearly been disproportionate to the aim pursued. As stated by the first applicant party, the dissolution of a political party was the only interference in the exercise of the right to freedom of association provided for by the LOPP, which made no provision for any intermediate sanction and did not allow for account to be taken of the seriousness of the alleged offences. Dissolution should be pronounced only where the activities of a party seriously jeopardised the survival of the democratic system. 69. In the light of the foregoing, the dissolution had amounted to interference in the exercise of the right to freedom of association that had not been prescribed by law. Moreover, that measure had not pursued a legitimate aim and had not been necessary in a democratic society. 70. In the alternative, the fact remained that the arguments submitted under Article 11 were also valid for Article 10 and that a violation of that provision should also be found. ( ii ) The Government 71. The Government pointed out that section 9 (2) of the LOPP provided that dissolution could only be pronounced in cases in which the conduct referred to therein was serious and repeated. 72. They submitted that the measure had been necessary to preserve democracy in Spanish society, and cited in that connection the Court ’ s case-law according to which democracy was a fundamental feature of the European public order. They listed various factors which in their view warranted the adoption of such a serious measure, namely, the dissolved parties ’ explicit calls to violence, the high number of deaths from attacks carried out by ETA, the statements of the leaders of the dissolved parties, the use of certain symbols, the inclusion of individuals convicted of terrorist offences on the membership lists of the parties concerned and the acts and manifestations of support for terrorist activity. Moreover, the Government argued, having regard to the actual political nature of the parties in question, that the Supreme Court had struck a fair balance between the interests at stake in concluding that the applicant parties had constituted a threat to democracy. 73. In that connection, the Government stressed that the applicant parties had justified assassinations carried out by ETA, that they had legitimised violence as a means of achieving political objectives and that they had inflicted a climate of terror on citizens opposed to the demands of those who, like them, were part of the terrorist milieu (revolutionary tax). In that context, the Government referred to the case of Gorzelik and Others v. Poland ( [GC], no. 44158/98, § 96, ECHR 2004-I ) and pointed out that it was in the first place for the national authorities to assess whether there had been a “pressing social need” to impose a restriction on the rights guaranteed by Articles 10 and 11, without prejudice to any supervision by the Court. ( b) The Court ’ s assessment ( i ) General principles 74. The Court observes at the outset that, notwithstanding its autonomous role and particular sphere of application, Article 11 must also be considered in the light of Article 10. The protection of opinions and the freedom to express them is one of the objectives of the freedoms of assembly and association as enshrined in Article 11. That applies all the more in relation to political parties in view of their essential role in ensuring pluralism and the proper functioning of democracy ( see Partidul Comunistilor ( Nepeceristi ) and Ungureanu v. Romania, no. 46626/99, § 44, ECHR 2005 -I ). 75. When it exercises its supervision in this regard, the Court ’ s task is not to take the place of the competent national authorities but rather to review under Article 11 the decisions they delivered pursuant to their power of appreciation. This does not mean that the Court ’ s supervision is limited to ascertaining whether a respondent State exercised its discretion reasonably, carefully and in good faith. It must look at the interference complained of in the light of the case as a whole in order to determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 11 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts ( see, for example, Sidiropoulos and Others v. Greece, 10 July 1998, Reports of Judgments and Decisions 1998 ‑ IV; United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 47, Reports 1998 ‑ I; and Partidul Comunistilor ( Nepeceristi ) and Ungureanu, cited above, § 49 ). 76. According to a well - established principle of the Court ’ s case-law, there can be no democracy without pluralism. The Court considers one of the principal characteristics of democracy to be the possibility it offers for debate through dialogue, without recourse to violence, of issues raised by various tides of political opinion, even when they are troubling or disturbing. Democracy thrives on freedom of expression. It is for that reason that freedom of expression as enshrined in Article 10 is applicable, subject to paragraph 2, not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb (see, among many other authorities, Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24, and Jersild v. Denmark, 23 September 1994, § 37, Series A no. 298). The fact that their activities form part of a collective exercise of freedom of expression in itself entitles political parties to seek the protection of Articles 10 and 11 of the Convention. (see United Communist Party of Turkey and Others, cited above, §§ 42 and 43). 77. The exceptions set out in Article 11 are to be construed strictly; only convincing and compelling reasons can justify restrictions on freedom of association. In determining whether a necessity within the meaning of Article 11 § 2 exists, the States have only a limited margin of appreciation, which goes hand in hand with rigorous European supervision embracing both the law and the decisions applying it, including those given by independent courts (see, for example, Sidiropoulos and Others, cited above, § 40). That is especially so in relation to political parties in view of their essential role in “a democratic society” ( see, for example, United Communist Party of Turkey and Others, cited above §§ 25, 43 and 46). 78. Moreover, it is well established in the Court ’ s case-law that drastic measures, such as the dissolution of an entire political party, may only be taken in the most serious cases ( see Refah Partisi (the Welfare Party) and Others, cited above; United Communist Party of Turkey and Others, cited above, § 46; Socialist Party and Others v. Turkey, 25 May 1998, § 50, Reports 1998-III; and Freedom and Democracy Party (ÖZDEP) v. Turkey [GC], no. 23885/94, § 45, ECHR 1999-VIII). That is why the nature and severity of the interference is also a factor to be taken into account when assessing its proportionality ( see, for example, Sürek v. Turkey ( no. 1) [GC], no. 26682/95, § 64, ECHR 1999-IV). 79. That said, the Court also reiterates that a political party may promote a change in the law or the legal and constitutional structures of the State on two conditions: firstly, the means used to that end must in every respect be legal and democratic; secondly, the change proposed must itself be compatible with fundamental democratic principles. It necessarily follows that a political party whose leaders incite to violence or put forward a policy which fails to respect democracy or which is aimed at the destruction of democracy and the flouting of the rights and freedoms recognised in a democracy cannot lay claim to the Convention ’ s protection against penalties imposed on those grounds ( see, mutatis mutandis, Socialist Party and Others, cited above, §§ 46 and 47; Partidul Comunistilor ( Nepeceristi ) and Ungureanu, cited above, § 46; Yazar and Others v. Turkey, nos. 22723/93, 22724/93 and 22725/93, § 49, ECHR 2002-II; and Refah Partisi (the Welfare Party) and Others, cited above, § 98 ). 80. Admittedly, the Court has already considered that the constitution and programme of a political party cannot be taken into account as the sole criterion for determining its objectives and intentions. The content of the programme must be compared with the actions of the party ’ s leaders and members and the positions they defend. Taken together, these acts and stances may be relevant in proceedings for the dissolution of a political party, provided that as a whole they disclose its aims and intentions ( see United Communist Party of Turkey and Others, cited above, § 58, and Socialist Party and Others, cited above, § 48 ). 81. The Court nevertheless considers that a State cannot be required to wait, before intervening, until a political party has seized power and begun to take concrete steps to implement a policy incompatible with the standards of the Convention and democracy, even though the danger of that policy for democracy is sufficiently established and imminent. The Court accepts that where the presence of such a danger has been established by the national courts, after detailed scrutiny subjected to rigorous European supervision, a State may “reasonably forestall the execution of such a policy, which is incompatible with the Convention ’ s provisions, before an attempt is made to implement it through concrete steps that might prejudice civil peace and the country ’ s democratic regime” ( see Refah Partisi (the Welfare Party) and Others, cited above, § 102 ). 82. The Court takes the view that such a power of preventive intervention on the State ’ s part is also consistent with Contracting Parties ’ positive obligations under Article 1 of the Convention to secure the rights and freedoms of persons within their jurisdiction. Those obligations relate not only to any interference that may result from acts or omissions imputable to agents of the State or occurring in public establishments but also to interference imputable to private individuals within non-State entities. A Contracting State may be justified under its positive obligations in imposing on political parties, which are bodies whose raison d ’ être is to accede to power and direct the work of a considerable portion of the State apparatus, the duty to respect and safeguard the rights and freedoms guaranteed by the Convention and the obligation not to put forward a political programme in contradiction with the fundamental principles of democracy ( ibid., § 103). 83. In this connection, the Court points out that the adjective “necessary”, within the meaning of Article 11 § 2, implies a “pressing social need”. Accordingly, the Court ’ s overall examination of the question whether the dissolution of a political party on account of a risk of democratic principles being undermined met a “pressing social need” (see, for example, Socialist Party and Others, cited above, § 49) must concentrate on the following points: ( i ) whether there was plausible evidence that the risk to democracy, supposing it had been proved to exist, was sufficiently and reasonably imminent; and (ii) whether the acts and speeches imputable to the political party formed a whole which gave a clear picture of a model of society conceived and advocated by the party which was incompatible with the concept of a “democratic society” ( see Refah Partisi (the Welfare Party) and Others, cited above, § 104). ( ii ) Application of these principles to the instant case 84. The Court will focus the first part of its examination on ascertaining whether the dissolution of the applicant parties met a “ pressing social need ”. It will then assess, as appropriate, whether that measure was “ proportionate to the legitimate aims pursued ”. In so doing, it will, like the Supreme Court, start from the premise (see paragraphs 30 -33 above) that the two applicant parties constituted “ a single entity”. Accordingly, the reasoning set out below must be deemed to apply to both applicant parties. ( α) Pressing social need 85. The Court observes that in order to pronounce the impugned dissolution, the Supreme Court did not restrict itself to establishing that the applicant parties had not condemned the attacks committed by ETA, but described conduct enabling it to conclude that the parties concerned were instruments of ETA ’ s terrorist strategy. It distinguishes two types of conduct in issue here, namely, conduct having encouraged a climate of social confrontation and conduct having implicitly supported ETA ’ s terrorist activities. It notes, in particular, that during the demonstration organised by Batasuna in San Sebastian on 11 August 2002 and led by A.O., J.P. and J.A., the party leaders, not only had slogans in support of ETA prisoners been heard, but also threatening expressions such as “ borroka da bide bakarra ” ( struggle is the only way ), “ zuek faxistak zarete terroristak ” ( you, the Fascists, are the real terrorists ) or “ gora ETA militarra ” ( long live ETA military ). The Court notes further that in an interview with the newspaper Egunkaria on 23 August 2002, a Batasuna 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”. Lastly, the Court notes the attendance of a Batasuna councillor at a pro-ETA demonstration, the fact that ETA terrorists had been made honorary citizens of towns run by the applicant parties and that the anagram of the organisation “ Gestoras Pro-Amnistía ”, declared illegal by central investigating judge no. 5 at the Audiencia Nacional and included on the European list of terrorist organisations (Council Common Position 2001/931/PESC), had been posted on the website of the second applicant party. 86. As found by the national courts, such conduct bears a strong resemblance to explicit support for violence and the commendation of people seemingly linked to terrorism. It can also be considered to be capable of provoking social conflict between supporters of the applicant parties and other political organisations, in particular those of the Basque country. In that connection, the Court reiterates that in the actions and speeches to which the Supreme Court referred, the members and leaders of the applicant parties had not ruled out the use of force with a view to achieving their aims. In those circumstances, the Court considers that the national courts sufficiently established that the climate of confrontation created by the applicant parties risked provoking intense reactions in society capable of disrupting public order, as has been the case in the past. 87. The Court cannot subscribe to the applicant parties ’ arguments that none of the conduct taken into account by the Supreme Court corresponded to any of the grounds for dissolution of a political party provided for by the LOPP. It considers, in fact, that the actions in question must be considered in their entirety as being part of a strategy adopted by the applicant parties to achieve a political aim essentially in breach of the democratic principles enshrined in the Spanish Constitution, and that they therefore corresponded to the ground for dissolution defined in section 9 ( 2 )( c) of the LOPP, that is, 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. Moreover, the Court cannot consider that the impugned conduct was covered by the protection afforded to freedom of expression, as claimed by the applicant parties, since the methods used fell outside the bounds set by the Court ’ s case-law, namely the lawfulness of the means used to exercise that right and their compatibility with fundamental democratic principles. 88. The Court agrees with the grounds on which the Constitutional Court ruled that the refusal to condemn violence against a backdrop of terrorism that had been in place for more than thirty years and condemned by all the other political parties amounted to tacit support for terrorism. Although the applicant parties submitted that their dissolution had been based exclusively on that failure to condemn violent actions, the Court considers that this factor was not the sole basis for the impugned measure, noting in that connection that the Constitutional Court found that it was part of a series of serious and repeated acts and conduct, making it possible to conclude that there had been an accommodation with terror going against organised coexistence in the framework of a democratic State. In any event, the Court points out that merely because the dissolution was partly based on failure to condemn did not make it incompatible with the Convention. A politician ’ s conduct usually includes not only his or her actions or speeches but also, in some circumstances, omissions or a lack of response, which can constitute acts indicating that politician ’ s stance and be just as telling as any overtly supportive action (see, mutatis mutandis, Ždanoka v. Latvia [GC], no. 58278/00, §§ 123 and 130, ECHR 2006- IV ). 89. The Court considers that in the instant case the national courts arrived at reasonable conclusions after a detailed study of the evidence before them and sees no reason to depart from the reasoning of the Supreme Court concluding that there was a link between the applicant parties and ETA. Moreover, in view of the situation that has existed in Spain for many years with regard to terrorist attacks, more particularly in the “ politically sensitive region ” of the Basque Country ( see, mutatis mutandis, Leroy v. France, no. 36109/03, § 45, 2 October 2008), that link may objectively be considered to constitute a threat to democracy. 90. The Court considers, furthermore, that the findings of the Supreme Court respond to the concern to universally condemn justification for terrorism, as evidenced at European level by the European Council framework decision on combating terrorism, Article 4 of which refers to incitement to terrorism; Council Common Position of 27 December 2001 on the fight against terrorism – adopted soon after the attacks of 11 September 2001, it obliges States to take measures to suppress “ active and passive support ” to terrorist organisations and individuals; Resolution 1308 (2002) of the Parliamentary Assembly of the Council of Europe on restrictions on political parties in the Council of Europe member States; and the Council of Europe Convention for the Prevention of Terrorism, which came into force on 1 June 2007 and was signed and ratified by Spain. Article 5 of that Convention provides for “public provocation to commit a terrorist offence” to be defined as an offence. Furthermore, Article 10 recognises the responsibility of legal entities which participate in terrorist offences defined by the Convention and establishes as an offence, under Article 9, participation in the commission of the offences in question. 91. Having regard to the foregoing, the Court accepts the findings of the Supreme Court and the Constitutional Court and considers that the actions and speeches imputable to the applicant political parties, taken together, give a clear picture of a model of society conceived and advocated by them, which is incompatible with the concept of a “ democratic society” (see, conversely, Partidul Comunistilor (Nepeceristi) and Ungureanu, cited above, §§ 58-60 ). Accordingly, the penalty imposed on the applicant parties by the Supreme Court and upheld by the Constitutional Court can reasonably be considered, even in the context of the narrower margin of appreciation enjoyed by the States, as meeting a “ pressing social need ”. ( β) Proportionality of the impugned measure 92. It remains to be determined whether the interference complained of was proportionate to the legitimate aim pursued. 93. In this regard, the Court has found that the interference in question met a “pressing social need”. Since the applicant parties ’ political plans were incompatible with the concept of a “ democratic society ” and entailed a considerable threat to Spanish democracy, the sanction imposed on the applicant parties was proportionate to the legitimate aim pursued, within the meaning of Article 11 § 2 ( see Refah Partisi (the Welfare Party) and Others, cited above, §§ 133 and 134). C. Conclusion of the Court as to Article 11 94. After having ascertained, from the information available to it, that there were convincing and compelling reasons to justify the dissolution of the applicant political parties, the Court has held that that interference corresponded to a “ pressing social need ” and was “ proportionate to the aim pursued”. The dissolution can therefore be deemed to be “necessary in a democratic society”, notably in the interest of public safety, for the prevention of disorder and the protection of the rights and freedoms of others, within the meaning of Article 11 § 2. 95. In the light of the foregoing, the Court concludes that there has been no violation of Article 11 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 96. The applicant parties also relied on Article 10 of the Convention, the relevant parts of which provide: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 97. The Court considers that the questions raised by the applicant parties under this Article concern the same facts as those raised under Article 11 of the Convention. Consequently, it does not find it necessary to examine them separately.
The Court held that there had been no violation of Article 11 (freedom of assembly and association) of the Convention. With regard in particular to the proportionality of the dissolution measure, the fact that the applicants’ projects were in contradiction with the concept of “a democratic society” and entailed a considerable threat to Spanish democracy led the Court to hold that the sanction imposed on the applicants had been proportional to the legitimate aim pursued, within the meaning of Article 11 § 2 of the Convention.