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decriminalized by the Suicide Act of 1961, this was not out of recognition of a
right to commit suicide. The policy of the law remained firmly opposed to suicide, as the continuing prohibition on assisting suicide made clear.44
In sum, although the reasoning of the court is less cogent than that of Lord
Bingham, Pretty is another persuasive rebuttal of an attempt to establish a
right to assisted suicide through the courts. As Lord Bingham noted, English
law prohibiting assisted suicide is consistent with “a very broad international
consensus.”45 There are, however, countries in Europe, most notably the
Netherlands, that permit euthanasia or physician-assisted suicide. The decision in Pretty determines that European states may prohibit assisted suicide,
not that they must do so.
44
Id. at 1618.
45
Id. at 1615.
Spain: Banning political parties as a response to
Basque terrorism
Leslie Turano*
New law banning political parties—terrorism—Batasuna, Basque separatist
party—government applications to declare a party illegal—freedom of association—
freedom of expression—decision of special chamber of the Supreme Court
For the first time since its return to democracy in 1977, Spain passed legislation
that will open the way for the Tribunal Supremo (Supreme Court) to order the
dissolution of certain political parties. The new Ley Orgánica de Partidos
Políticos1 (LOPP) was conceived to address the problem posed by the existence
of Batasuna,2 the radical Basque separatist party widely perceived to be the
political wing of the terrorist group ETA. Within weeks of the law coming into
force, on June 29, 2002, the Cortes (parliament) passed a motion urging the
government to bring a case against Batasuna for having violated various articles of the law. The motion was prompted by Batasuna’s refusal to condemn
ETA’s attack on August 4, 2002, in Santa Pola (Alicante), in which a car bomb
exploded, killing two bystanders. The new law expands the government’s
*
B.A., B,A., M.Phil., Ph.D., Lecturer in Law, King’s College, University of London
1
Ley Orgánica 6/2002 de 27 de junio de Partidos Políticos.
2
Founded in 1978 as Herri Batasuna (“Popular Unity”), the party was reconstituted in 1998
under the name Euskal Herritarok (Basque Citizens) and again in 2001 as Batasuna (“Unity”). Its
youth group, Segi (formerly Jarrai), was declared an illegal organization by Judge Baltasar Garzón
in 2001.
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powers by enabling it to ban groups that support violent acts committed by
others even though they do not engage in violence themselves. The following
examination analyzes the content and merits of the new law in light of the
case pending against Batasuna.3
1. Banning political parties
Political pluralism has particular resonance in Spain, where a single-party
system held sway during the thirty-seven-year dictatorship of General Francisco
Franco.4 No previous Constitution in Spain had included a right to form political parties, and the coalition that drafted the 1978 Constitution took great
care to dedicate a specific provision, article 6, to guarantee this right, rather
than merely implying it in freedom of association (contained in article 22).5
Article 6 states, “[p]olitical parties are the expression of political pluralism and
the manifestation of the will of the people, and they are the basic instrument
of political participation. Their creation and the exercise of their activities are
freely permitted to the extent that they respect the Constitution and the law.”6
The last paragraph of article 6 requires that the internal structure and
workings of political parties be democratic, yet the article does not address
the dissolution of parties that do not conform to democratic standards. Raúl
Morodo7 points out that at the time the Constitution was drafted, leftist
members of the drafting coalition did not want to follow the German model of
proscribing certain ideologies.8 They feared that such a law might be used
against communist or socialist parties.9 A law pertaining to political parties was
3
On October 4, 2002, the special tribunal of the Supreme Court gave leave to the government and
the ministerio fiscal (public prosecutor) to apply for a court order to dissolve the party.
4
Political parties became legal in 1977 pursuant to Ley 21/1976 de 4 de junio de Derecho de
Asociación Política. The law was subsequently developed in Ley 54/1978 de 4 de diciembre de
Partido Políticos. On the background to this legislation, see VÍCTOR M. PÉREZ-DÍAZ, THE RETURN OF
CIVIL SOCIETY: THE EMERGENCE OF DEMOCRATIC SPAIN 153–61 (Harvard Univ. Press 1993).
5
RAMÓN TAMAMES, INTRODUCCIÓN A LA CONSTITUCIÓN 18 (7th ed., Alianza 1995).
6
C.E. art. 6. Article 1 designates political pluralism as an elemental value of its legal system:
“Spain constitutes itself into a social and democratic state of law which advocates liberty, justice,
equality, and political pluralism as the superior values of its legal order.” C.E. art. 1(1).
7
Morodo was a member of the drafting coalition and professor of constitutional law at the
Universidad Complutense (Madrid). See Raúl Morodo, Derecho de partidos: Un proyecto de ley
polémico, EL PAÍS, Apr. 17, 2002.
8
Basic Law (Grundgesetz) article 21(2) declares unconstitutional any party that, by reason of its
aims or the behavior of its adherents, seeks to impair or abolish the free democratic basic order or
to endanger the existence of the state; this effectively outlaws the Nazi and Communist parties. See
G.G. art. 21(2).
9
As will be shown, the new legislation attempts to make clear a distinction between the ideology
of a party and its activity; only the latter can give rise to a dissolution order.
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passed following adoption of the Constitution; Ley 54/1978 de Derechos
Políticos is mainly concerned with the process by which parties may be constituted. Other provisions regarding political parties are found scattered throughout electoral law, criminal law, the rules relating to party funding, and in the
jurisprudence of the Tribunal Constitucional (Constitutional Court). But these
do not address the problem presented by Batasuna—the perceived threat to
democracy that arises when a legitimate political party, not committing an
offense itself, nevertheless gives support and publicity to a terrorist organization.
In its draft bill presented to the Cortes on March 25, 2002,10 the government identified gaps in the present law on political parties, which does not
specify the constitutional requirements of democratic organization and the
functioning of such organizations. The government pointed out that although
political parties are not constitutional bodies but private associations they
form an essential part of the constitutional architecture and carry out
functions of constitutional importance. In a state governed by the rule of law,
where limits and controls are set with respect to all citizens and bodies, the
greater the importance a particular individual or body has to the functioning
of the democratic system, the greater the state’s interest in defining the legal
regime governing that subject. The aim of LOPP is twofold: to set out clearly
the required democratic standards of organization referred to in Ley 54/1978
(which the new law repeals), and to prevent a party from indirectly violating
the rights of citizens by promoting racism, violence, and the ends and means
of terrorist groups. The código penal (criminal code) already contains
provisions for the dissolution of associations created for the commission
of criminal offenses; the new law makes supporting such acts grounds for
dissolution as well.
2. The content of LOPP
The new Ley Orgánica de Partidos Políticos has thirteen articles, grouped in
four chapters. It contains provisions amending article 2 of the Ley Orgánica
del Régimen Electoral (5/1985 de 15 de junio) and article 61 of the
Ley Orgánica del Poder Judicial (6/1985 de 1 de julio). Chapter I, comprising
articles 1–5, affirms the right to create, join, and participate in political parties
and sets out the requirements for inscribing a newly created party in the
register. Article 1 restates the content of article 6 of the Constitution, emphasizing freedom of association and minimizing the ability of the state to interfere in private associations. However, it adds new restrictions: article 2(1)
limits the capacity to create political parties by excluding those who have been
convicted of certain crimes, and article 3(1) prevents the adoption of a party
name that in any way recalls that of a previously banned party. Article 5
10
Anteproyecto de Ley No. 91112002/LD.
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simply consolidates existing law by providing that the sala de lo penal (criminal
division) can, at the request of the ministerio fiscal (public prosecutor), declare
illegal and suspend any party that has, as an association, committed a criminal offense from the moment of its constitution and inscription.
The most notable innovations are contained in chapter II, articles 6–9.
Article 9 is particularly important in that it lists the activities that allow a
declaration of illegality to be made against a party. It reiterates the freedom of
parties to conduct business to the extent that their activities respect democratic principles and human rights. Parties will be considered to have violated
these principles when they have repeatedly exhibited any of the types of
behavior listed in the subsections under paragraph 2. These include: a) violating fundamental rights by promoting, justifying, or excusing attacks on the life
or dignity of the person or the exclusion or persecution of an individual by reason of ideology, religion, beliefs, nationality, race, sex, or sexual orientation;
(b) encouraging or enabling violence to be used as a means to achieve political
ends or as a means to undermine the conditions that make political pluralism
possible; and c) assisting and giving political support to terrorist organizations
with the aim of subverting the constitutional order.11
Paragraph 3 further defines these types of behavior as comprising certain
forms of conduct, such as: a) giving express or tacit political support to terrorism,
and thus legitimizing terrorist actions by seeking to minimize the importance
of human rights and their violation; b) creating a culture of confrontation
linked to the actions of terrorists and thereby seeking to intimidate, deter,
neutralize, or socially isolate anyone who opposes such actions, forcing them
to live with the daily threat of coercion and fear and depriving them of the
fundamental right of freedom of expression and participation in public life; c)
including regularly in its directing bodies and on its electoral lists persons who
have been convicted of terrorist crimes and who have not publicly renounced
terrorist methods and aims, or maintaining among its membership a significant number of “double militants” (i.e., those who also belong to groups with
links to terrorist organizations), except where there are attempts by the party
to expel or discipline such persons; d) using in an official way symbols, slogans,
or other representational elements that are normally identified with a terrorist
organization; e) conceding to a terrorist organization or to those who collaborate with one the same rights and prerogatives that electoral law
concedes to parties; f) collaborating habitually with groups that act systematically in accordance with terrorist or violent organizations or that protect and
support terrorism and terrorists; g) giving institutional support, administratively or economically, to any of the groups mentioned in the preceding subparagraph; h) promoting, giving cover to, or participating in activities that
have as their objective rewarding, paying homage to, or honoring violent or
terrorist actions and those who commit or collaborate with them; and i) giving
11
See Ley Orgánica de Partidos Políticos, art. 9(2).
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cover to actions that socially intimidate, coerce, or disrupt public order and
that are linked to terrorism or violence.12
Chapter II sets out the procedure by which the government may apply for an
order to have a political party declared illegal. Article 10(2) repeats the
requirement that the activities described in article 9 must have occurred
repeatedly and systematically for the court to make the order. Paragraph 4
states that where the party has committed criminal offenses, the competent
court is still the sala de lo penal, but where the party has violated the prerequisites of democratic structure and function laid out in articles 7 and 8, or has
repeatedly engaged in activities listed in article 9, the matter will be resolved by
a sala especial (special chamber) of the Tribunal Supremo.13 Some acts that
are lawful in themselves and, therefore, not within the jurisdiction of the criminal court system, may, in certain circumstances, be brought before the courts.
The separation of jurisdiction in article 10 makes clear the distinction between
acts that are illegal in themselves (e.g., acts of violence) and those that
normally would be regarded as lawful exercises of freedom of speech but, if
exercised as a part of party policy, render that organization vulnerable to a declaration of illegality. The former actions fall outside the scope of this legislation
and come within the penal code; consequently they are dealt with by the criminal court system. The latter acts, however, bring the party under the jurisdiction of the sala especial of the Tribunal Supremo. The effect is that, as a result
of committing an act ordinarily regarded as lawful (e.g., voicing agreement
with the aims of a terrorist organization as an act of freedom of speech), the
actor will find this freedom curtailed if the actor is not an individual but
a political party committing the act as part of its policy.
According to article 11, the government and the ministerio fiscal have
standing to apply for an order banning a party at the request of either the
Congreso de los Diputados (Congress) or the Senado (Senate)—the two
branches of the Cortes. Once presented with an application, the sala especial
must then advise the party in question of the case against it, and the latter, in
turn, has eight days to respond. Once this period is up, the sala especial may
allow the case to be presented, and if it does, the defendant has twenty days in
which to respond. While the trial is in progress, the sala can order temporary
suspension of the party’s activities until a decision is reached. Such interim
decisions are not subject to appeal, notwithstanding the defendant’s ability to
make an application to the Constitutional Court for a declaration that there
has been a violation of fundamental rights guaranteed by the Constitution.
12
See id. art. 9(3).
13
The provisions for constituting a sala especial are contained in article 61 of the Ley Orgánica
6/1985 del Poder Judicial (Organic Law of the Judiciary): the sala is to consist of the president of
the Tribunal Supremo (Supreme Court), the president of each of the constitutent salas (of which
there are five: civil, penal, military, social, and administrative) and the first and last appointed
judge from each.
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3. The reception of LOPP
Both the draft bill and the ensuing legislation sparked debate among jurists
and politicians. There is concern about any law that allows a majority party to
seek the abolition of another political party because such a practice disturbs
the normal competitive relationship between them.14 Moreover, the banning
of a political party would disenfranchise a sector of the electorate, which, in
the case of Batasuna, is between 10 and 15 percent of Basque voters.15
Further, some provisions may lend themselves to a wider interpretation than
was intended by the drafters. For example, article 8(3)(b) penalizes the promotion of a “culture of social confrontation as a method for the achievement of
political objectives.”16 This provision could be deemed to include any radical
party. It is also possible that the subversive activities of individual members,
which might be enough to bring the party as a whole under article 8, could
result in the violation of the rights of association of other party members not
implicated in those activities.17
The requirement that party structures must be democratic in organization
and function (a restatement of article 6 of the Constitution), specifically
intended to catch Batasuna, may now train the spotlight on other parties,
given the heightened attention to party practices created by the new law. It is
well established that political parties in Spain, despite their democratic origins,
tend to favor an oligarchic structure that admits little dissent and places control in the hands of the leaders.18 Pressure to ensure that parties sustain a
democratic structure would not be a misfortune, but, conversely, it cannot be
entirely desirable to promote a political culture in which parties scrutinize one
another’s internal workings with an eye to seeking the dissolution of rivals.
Political parties are synonymous with liberal democracy,19 and a necessary
corollary is free competition between them. Extreme care, then, must be given
to any decision to exclude one party, as the power to do so strains against the
very limits of democracy.20 However, democracy itself is not incompatible with
the regulation of political parties, such as insisting that associations that fail to
display certain features may not constitute themselves as political parties. That
form of regulation certainly is the norm. By extension, it should not necessarily
be problematic for regulations to insist on the disbanding of an existing party
14
Morodo, supra note 7.
15
Ignacio Sánchez-Cuenca, ¿Ilegalizar a Batasuna? EL PAÍS, Apr. 4, 2002.
16
Ley Orgánica, art. 8(3)(b).
17
Marc Carrillo, Desafortunada y traumática, EL PAÍS, Apr. 21, 2002.
18
PÉREZ-DÍAZ, supra note 4, at 43–49; PAUL HEYWOOD, THE GOVERNMENT AND POLITICS OF SPAIN 214
(MacMillan 1995); JOAQUÍN GARCÍA MORILLO, LA DEMOCRACIA EN ESPAÑA 69–71(Alianza 1996).
19
HEYWOOD, supra note 18, at 213.
20
Francisco Rubio Llorente, Los límites de la democracia, EL PAÍS, Apr. 26, 2002.
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that does not comply with certain requirements. The right to create a political
party is based on the right of association, but party formation is not a simple
exercise of this right; parties are the principal players in a democracy and,
therefore, must adhere to certain conditions that would not apply to other
associations. As Francisco Rubio Llorente observes, although it is possible to
act against political parties, as against other kinds of associations, through the
criminal law, it must also be possible to ban them not for reasons that have to
do with criminal activities but simply because their end and methods are
incompatible with democracy.21 The reason for this must not be that they
intend to change the Constitution or the laws, but that they aim to do so by
means that are not fully legal and democratic. This was the reason given by the
European Court of Human Rights in Refah Partisi v. Turkey,22 when it decided
that the Turkish Constitutional Court’s decision to dissolve the Refah Partisi
(Welfare Party) was within the legitimate aims listed in article 11(2) (on the
freedom of association) of the ECHR.23
The supporters of LOPP have repeatedly insisted that a party should not be
dissolved on grounds of ideology, even if that ideology encompasses radical
change; hence, the limiting of proscribed activities in article 9 to those explicitly connected with physical violence. Dissolution can follow only when a
party, as the result of general practice, violates the fundamental rights and
freedoms of citizens.24 This limitation may ensure that any challenge to the
new law before the Strasbourg court will have to show a violation of articles
10 and 11 of the ECHR that is not justified by the legitimate aims of maintaining national security and public safety, the prevention of disorder or crime,
and the protection of the rights and freedoms of others.
The LOPP is unlikely to offend EU law; the EU definition of terrorism is
broad enough to include organizations like Batasuna that give public and
financial support to other groups that actually commit the violence. Under a
decision of the Council of the European Union, member states must ensure
that certain acts by nonterrorist bodies relating to terrorist groups are punishable. Such acts include supplying information or material resources and
funding activities, with the knowledge that such participation will contribute
to the criminal activities of the terrorist group.25 This easily encompasses the
activities of which Batasuna stands accused. Moreover, it would be difficult to
argue that by enacting the new law Spain would be violating the UN Covenant
21
See id.
22
35 Eur. H.R. Rep. 56 (2002).
23
See European Convention for the Protection of Human Rights and Fundamental Freedoms,
Nov. 4, 1950, art. 11(2), 213 U.N.T.S. 222, 232 [hereinafter ECHR].
24
See Manuel Aragón, Sin serios reparos jurídicos, EL PAÍS, Apr. 21, 2002.
25
Council Framework Decision (on Combatting Terrorism) of Jun. 13, 2002, 2002/475/JHA,
2002 O.J. (L 164/3), art. 2.
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on Civil and Political Rights.26 Articles 19 and 22 are similar to articles 10 and
11 of the ECHR, allowing for restrictions on freedom of expression and association where public order, national security, and the fundamental rights of
others are at stake. Furthermore, article 20 of the covenant prohibits advocacy
of national or racial hatred that constitutes an incitement to hostility or
violence, and article 21 restricts the right to peaceful assembly for the usual
reasons. As will be shown, these restrictions include the activities carried out
by Batasuna pursuant to party policy.
As mentioned above, the Constitution was based on the principle of
inclusivity, and this clearly informs articles 1, 6, 22, and 23 (the last of which
guarantees universal suffrage and the right of citizens to participate in public
affairs). At the time the Constitution was drafted, the scars of the civil war
were still very much felt, and this led to an atmosphere of moderation and
conciliation; the one aim shared by all parties was to avoid another war. On the
right, moderate forces within the Franco regime had emerged during the last
years of his dictatorship to smooth the transition. On the left, the PSOE27 and
the PCE28 were as keen as their opponents to avoid the excesses of the Second
Republic of the 1930s. In opinion polls carried out in June 1977, on the eve of
the first general election, four out of five Spaniards described themselves as
belonging to the area between right and left of center.29 Although cognizant of
extreme forces on both ends of the spectrum, the constitutional drafting coalition had not anticipated, perhaps, that the principle of inclusivity might shelter a legally constituted party whose aim was the disruption of the Spanish
state. The extreme parties that might, in theory, present a political threat were
too marginal to gain popular support.30 To this day, the studied moderation of
the Spanish electorate has meant that those parties have not prospered, with
the exception of Herri Batasuna.31
26
International Covenant on Civil and Political Rights, Dec. 19, 1966, G.A. Res. 2200A (XXI),
U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into
force Mar. 23, 1976).
27
Partido Socialista Obrero Español (Spanish Socialist Workers’ Party)
28
Partido Comunista de España (Communist Party)
29
PAUL PRESTON, THE TRIUMPH OF DEMOCRACY IN SPAIN 119 (Methuen 1986).
30
These included the Fuerza Nueva and Frente Nacional on the right: these parties either petered
out in the early 1980s or disintegrated into apolitical skinhead groups. See Sheelagh Ellwood, The
Extreme Right in Post-Francoist Spain, 3 PARL. AFF. 45 (1992). Before the creation of Herri Batasuna
in 1978, there were several weak and inconsequential parties on the left that supported ETA’s
aims. These were united under the new separatist party. See JOHN SULLIVAN, ETA AND BASQUE
NATIONALISM: THE FLIGHT FROM EUSKADI (Routledge 1988).
31
HEYWOOD, supra note 18, at 211–12.
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4. The case against Batasuna
The case against Batasuna is built on twenty-three charges assembled by the
minister of justice, José María Michavila. Most of the charges pertain to
Batasuna’s actions in the wake of ETA’s Santa Pola assault. Six of these relate
to refusals on the part of Batasuna to condemn the atrocity,32 and one refers
to a refusal to sign an institutional declaration of respect for human rights
adopted by all regional governments. These omissions are claimed to represent
tacit support, prohibited under article 9(3)(a) of the new law. Other charges
relate to explicit support in the form of public protests and expressions of identification with ETA, in violation of article 9(2)(c), (3)(d), and (3)(h); threats
issued to representatives of other parties, in violation of article 9(2) and (3)(b);
the presence of double militants in Batasuna and ETA, contravening article
9(3)(c); and creating an atmosphere of terror and intimidation (article 9(2)(a)
and (3)(b)). The most serious charges involve threats against politicians who
support a ban of the party and Batasuna’s recent act of physically preventing
the elected mayor of a Basque town from appearing in public, usurping her
place on the mayoral balcony in order to chant slogans in support of ETA.
Batasuna regularly refers to ETA atrocities, in neutral language, as “events,”
and leader Arnaldo Otegi Mondragón has laid blame for them at the door of
the government.33 The party has long tolerated double militancy, and it
has also given economic assistance and cover to the violent and now banned
Segi, formerly known as Jarrai, a Basque youth association noted for its devotion to “kale borroka” or organized street violence. Moreover, it is believed that
the youth group Segi serves as a training ground for the next generation of
terrorists.
It is clear that the activities of Batasuna push the limits of freedom of association and even of freedom of expression.34 But there have been doubts
expressed about the efficacy of banning a political party as an indirect method
of combating terrorism. Rubio Llorente points out that banning groups has
never prevented the birth of similar groups espousing the same rhetoric
and adopting the same aims and methods. Although there is a provision to
guard against the reformation of a banned party under another name (LOPP
32
Five charges refer to the silence of party representatives in the various Basque city councils,
provincial governments, and the Basque regional parliament with respect to the offical declaration
of condemnation issued by these bodies, and one relates to the refusal of Batasuna to participate
in the Victim Support Commission organized by the Basque parliament. A decision is expected at
the end of April, EL PAÍS, Jan. 15, 2003.
33
El Gobierno vasco convoca concentraciones para hoy al mediodía en repulsa del atentado, EL PAÍS,
Aug. 4, 2002.
34
Leader Arnaldo Otegi Mondragón has said that he does not want ETA “to give up killing.”
EL PAÍS, July 19, 2002. It has also been made clear that Batasuna, like ETA, has racial motives; the
separatist movement is founded on the notion that Basques form a separate race from Spaniards.
See JOHN HOOPER, THE NEW SPANIARDS (Penguin 1995).
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739
article 9(4)), members of Batasuna would be able to keep reforming as an
association, albeit without political power, but with a capacity to disrupt.
Moreover, as Rubio Llorente concludes, the move to ban a party is not a politically neutral legal process, but a political act brought about at the behest of the
particular party in power.35 A further difficulty with this view is that it does
not take into account the text of the LOPP, which makes clear that there must
be a close link with terrorism and that support for terrorist acts must be manifested as party policy and not as the opinion of the members as individuals. It
would be difficult to imagine that any party that gives at least lip service to
human rights would be captured under the LOPP. More troubling, perhaps, is
that the ability to negotiate with terrorists becomes more difficult if the
authorized face of the group is banished from sight. At best, the LOPP is a
desperate and probably ineffective measure against terrorism; one can only
hope that it will not serve to exacerbate the situation.36
5. Judgment of the sala especial
On March 17, 2003, the sala especial of the Tribunal Supremo handed down
its judgment, in which its sixteen members unanimously agreed with the
argument put forward by the ministerio fiscal that Batasuna was an illegal
organization because it had violated the Ley Orgánica de Partidos Políticos.37
The decision takes immediate effect.
In its conclusions, the special chamber accepted that Batasuna was an
adjunct of ETA. For its part, Batasuna alleged that the evidence only pointed to
a refusal to condemn ETA’s attacks, and that this did not amount to a sufficient
cause for illegalization under the new legislation.
35
See supra note 20.
36
On August 26, 2002, a congressional plenary session passed a motion urging the government
to petition the Tribunal Supremo. Three hundred and five votes were cast: 295 in favor, 10 against,
and 29 abstensions. These three categories break down, according to party, as follows: the PP (the
governing Partido Popular or conservative party), PSOE, and the regional Partido Andalucista and
Coalición Canaria in favor of the motion; the regional PNV (Partido Nacional Vasco), Esquerra
Republicana de Catalyuna, Eusko Alkartasuna, and Iniciativa per Catalunya against the motion;
and CiU (Convergencia i Unió, the main Catalan party), IU (Izquierda Unida, or United Left), the
regional Bloque Nacionalista Galego, and the Chunta Aragonista abstained.
On October 14, 2002, the sala especial granted leave to the government to apply for a declaration of illegality against Batasuna. After receiving notification, the party objected to the presence
of one judge from the sala de lo social, Milagros Calvo Ibarlucea, on the grounds the she was
biased, as evidenced by her participation in a press conference in which she expressd her approval
of a ban. Calvo was replaced by another judge from the same division, but the tribunal declined to
resolve the accusation of bias in order not to delay the process further.
37
El Supremo ilegaliza Batasuna por unanimidad, EL PAÍS, March 17, 2003. See also Spanish Supreme
Court bans radical Basque party, N.Y. TIMES, Mar. 19, 2003. The text of the decision is available at
http://www.poderjudicial.es/tribunalsupremo/.
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This judgment comes in the wake of the decision by the Tribunal
Constitucional that the new law does not infringe articles 22 and 23 of the
Constitución Española (on freedom of association and the right to participate
in public affairs).38 The case had been brought by the Basque government,
which had argued that the new law was unconstitutional because, in their
view, any restriction on otherwise legal activities amounted to control of a
party’s ideology. Such a restriction was specifically rejected in 1978 by the
Constitution’s drafting coalition. The Tribunal, however, held that the restriction in the instant case is not ideologically biased because it does not apply only
to one particular party but is applicable to all and is, therefore, constitutional.
In light of this, the Basque government has announced its decision to take the
matter to the European Court of Human Rights in Strasbourg.39
38
STC, Mar. 12, 2003, Sentencia 48/2003, available at http://www.tribunalconstitucional.es/JC.htm.
39
El Gobierno vasco recurrirá la Ley de Partidos en el Tribunal de Derechos Humanos de Estrasburgo,
EL PAÍS, Mar. 13, 2003.