4.  The applicants were born in 1958, 1977, 1956, 1981 and 1979, respectively (see appendix).
5.  On 2 March 2010 the first applicant was sentenced to two years’ imprisonment by a panel of the Fourth Section of the Audiencia Nacional for encouragement of terrorism (enaltecimiento del terrorismo). He was also acquitted of the charges of unlawful assembly and association (reunión ilícita y asociación ilítica).
6.  The first applicant brought a cassation appeal before the Supreme Court, challenging, inter alia, the impartiality of the President of the Fourth Section of the Audiencia Nacional and judge rapporteur of that judgment (hereinafter “the presiding judge”), as she had displayed hostility towards him during those criminal proceedings.
7.  In particular, the first applicant argued that during the oral hearing, and once the applicant had finished his statement, the presiding judge had asked him whether he condemned ETA’s (Euskadi Ta Askatasuna, the former armed Basque nationalist and separatist organisation) violence. The first applicant had refused to give an answer. The presiding judge had then replied that she “already knew that he was not going to give an answer to that question”.
8.  On 2 February 2011 the Supreme Court ruled in favour of the first applicant, finding that the presiding judge’s declarations during the trial had cast doubts on the absence of prejudice or bias. The Supreme Court stressed the following:
“The significance of the Judge’s action...cannot be reduced to an isolated assessment of the question raised by her, yet it must be put in direct connection with the comment that she made after the appellant refused to give an answer, as well as the nature of the charges, their legal characterization and the moment the question and the answer take place...
The question put by the presiding judge and, very particularly, her reaction to the appellant’s refusal to give an answer, can be interpreted, from an objective perspective, as an expression of a previously formed opinion...about the significance assigned to the words spoken by the appellant...The appellant had objectives reasons to think that the judge was precipitately voicing out a value judgment on the criminal nature of [his statements]”
9.  The Supreme Court, assessing the proceedings as a whole, found that there were “objective reasons” to consider that the presiding judge (and judge rapporteur of the case) was expressing a prejudice against the first applicant about the significance that should be given to the phrases and words expressed by him, which had also led to a preconceived idea as to his guilt. This had taken place before the oral phase had terminated, i.e, before the presiding judge (as well as the whole panel) had had an opportunity to assess all the pieces of evidence brought before her and prior to the applicant’s right to have a last word. Thus, the applicant’s doubts as to the impartiality of this judge were “objectively justified”. Consequently, the Supreme Court declared that the judgment was void and ordered a re-trial by a new panel formed by three other judges different from the ones that were part of the composition of that panel.
10.  As a result, a new and different composition of the Fourth Section of the Audiencia Nacional tried the applicant on the charge of encouragement of terrorism. On 22 July 2011 the Audiencia Nacional acquitted the applicant.
11.  In 2009, criminal proceedings were brought against all the applicants before the Audiencia Nacional, on the grounds that a political party that the applicants intended to create was in fact under the control of the terrorist organisation ETA. The applicants were accused of being members of this terrorist organisation. The facts have been referred to as the “Bateragune Case”. These proceedings were allocated to the Fourth Section of the Audiencia Nacional, whose composition consisted of the same judges that had taken part in the first set of criminal proceedings followed against the first applicant, which ended with the judgment of 2 March 2010, finally declared void by the Supreme Court on 2 February 2011. This time the presiding judge was not the judge rapporteur.
12.  The first applicant initiated proceedings to challenge the whole panel, arguing that the Section’s composition did not offer sufficient guarantees to exclude any legitimate doubt in respect of its impartiality, for the presiding judge had already showed signs of partiality and bias in previous criminal proceedings against him. According to the first applicant, the bias previously shown by the presiding judge created an objective situation which contaminated the impartiality of the judges. This also created a subjective situation of mistrust on the Section’s composition.
13.  On 26 April 2011 a special chamber of the Audiencia Nacional (a chamber that, according to Article 69 of the Judicature Act is ex professo formed to deal with challenge proceedings) ruled against the first applicant. According to the Audiencia Nacional, these new proceedings had a different object, i.e. his belonging to a terrorist organisation and the existence of strong and permanent links with ETA, which had nothing to do with his previous charge of encouragement of terrorism. Neither the question previously put by the presiding judge (see paragraph 7 above) nor her subsequent reaction showed any sign of prejudice against the first applicant.
14.  On 16 September 2011 the Audiencia Nacional delivered its judgment and sentenced the first and third applicants to ten years’ imprisonment for being a member and leader of a terrorist organisation. The second, fourth and fifth applicants were sentenced to eight years’ imprisonment for belonging to a terrorist organisation. All applicants were further disqualified from taking part in elections for the same length of time as their respective prison sentences.
15.  All the applicants brought a cassation appeal before the Supreme Court. The first and fifth applicants contested in particular the impartiality of the panel of the Fourth Section of the Audiencia Nacional reiterating the same arguments that were brought during the challenging proceedings before the Audiencia Nacional.
16.  On 7 May 2012 the Supreme Court, in a 3 to 2 decision, partially upheld the applicants’ appeals and reduced their sentence to six years and six months’ imprisonment in respect of the first and third applicants and six years in respect of the second, fourth and fifth applicants. The disqualification from taking part in elections was confirmed. However, the Supreme Court rejected the applicants’ arguments concerning the alleged violation of the their right to an impartial tribunal by declaring that the bias displayed by the presiding judge against one of the applicants during previous and different proceedings did not reach the necessary threshold to believe that the judges (and, specifically, the presiding judge) had become again biased or prejudiced, not only against the first applicant but against all of them. According to the Supreme Court, there was no evidence apart from what happened in previous proceedings that supported the alleged partiality of the judges. The Supreme Court stressed the following:
“To presume that every judge that has been declared biased in previous proceedings must be forcefully contaminated in any other further proceedings...implies to issue a universal judgment on bias that lacks a minimum objectives proofs ad causam...The question of subjective partiality or impartiality and even in many cases of objective impartiality is a very delicate one since it directly affect the composition of the Tribunals subject to the rule of law. Consequently, the appearances can only be relevant if they have a connection with the legal causes to challenge a judge as established by the lawmaker...in the sense that it is not possible to established different causes according to an analogic criterion or treating the appearance as an autonomous cause with its own procedural life...Therefore, the complaint must be rejected”
17.  Two of the Supreme Court’s judges issued two separate dissenting opinions. According to the first dissenting opinion (which was endorsed, in substance, by the second dissenting judge), the applicants’ right to an impartial tribunal had indeed been violated, because the preconceived idea showed by the presiding judge in previous criminal proceedings against the first applicant also affected her judgment during subsequent proceedings. This lack of impartiality also had affected the other two judges of the panel. Consequently, a new trial before a different panel of judges should have been ordered. According to the second dissenting opinion, however, there was not enough evidence to support the applicants’ conviction. Consequently, the fact that the Fourth Section of the Audiencia Nacional lacked impartiality, although true, was irrelevant, for the applicants should have been acquitted by the Supreme Court.
18.  On 21 June 2012 the third applicant lodged a separate amparo appeal against the judgments of 16 September 2011 and of 7 May 2012, arguing, inter alia, that there was not sufficient evidence to substantiate the applicant’s conviction. On 27 June 2012 the first, second, fourth and fifth applicants lodged an amparo appeal with the Constitutional Court against these judgments, arguing, inter alia, that the panel composition of the Fourth Section of the Audiencia Nacional fell short of the requirements of an impartial tribunal.
19.  On 22 July 2014 the Constitutional Court, in a 7 to 5 decision, ruled against the first, second, fourth and fifth applicants. The majority of the Constitutional Court found that the doubts as to the presiding judge’s impartiality were neither subjectively nor objectively justified. The Constitutional Court observed that the doubts on the presiding judge were in connection with previous proceedings dealing with a different subject, i.e. the determination on whether the first applicant had committed the crime of encouragement of terrorism, which differed from the charges they were all accused of in the framework of the second set of criminal proceedings. The two proceedings did not present enough similarities as to cast doubts on the judges’ impartiality.
20.  The five dissenting judges were of the opinion that the applicants’ right to an impartial tribunal had been violated. In particular, they considered that the presiding judge’s conduct in previous proceedings was a clear sign of a preconceived idea regarding the first applicant’s guilt, which made her impartiality during the proceedings against all applicants questionable.
21.  On 22 September 2014 the Constitutional Court ruled against the third applicant in a 4 to 2 decision.