ITEMID: 001-93475
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF HERRI BATASUNA AND BATASUNA v. SPAIN
IMPORTANCE: 1
CONCLUSION: No violation of Art. 11
JUDGES: Alejandro Saiz Arnaiz;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: 8. The first applicant, the political party Herri Batasuna, was founded on 5 June 1986.
9. The second applicant, the political party Batasuna, was founded on 3 May 2001.
10. On 27 June 2002 the Spanish parliament enacted Institutional Law no. 6/2002 on political parties (Ley Orgánica 6/2002 de Partidos Políticos – “the LOPP”). According to its explanatory memorandum, that Law was intended to develop Articles 1, 6, 22 and 23 of the Spanish Constitution by amending and updating Law no. 54/1978 of 4 December 1978 on political parties, regard being had to the experience acquired over the years, and to establish a complete and coherent framework for political parties, reflecting their role in a consolidated democracy.
11. The main innovations introduced by the new Law appeared in Chapter II on the organisation, functioning and activities of political parties, and in Chapter III on their dissolution and suspension by the courts of their activities.
12. Chapter II lays down the basic criteria intended to ensure compliance with the constitutional requirement that the organisation and operation of political parties be democratic and that they may freely engage in their activities in accordance with the Constitution and the law. Section 9 requires parties to respect democratic principles and human rights, describing in detail the type of conduct that would be in breach of the principles in question. According to the explanatory memorandum, the Law is based on the principle that any project or objective is constitutional provided that it is not pursued by means of activities which breach democratic principles or the fundamental rights of citizens. The Law is not intended to prohibit the defence of ideas or doctrines calling into question the constitutional framework. Its aim is rather to reconcile freedom and pluralism with respect for human rights and the protection of democracy. The explanatory memorandum states that a party may be dissolved only in the event of repeated or accumulated acts which unequivocally prove the existence of undemocratic conduct at odds with democracy and in breach of constitutional values, democracy and the rights of citizens. In that connection, sub-paragraphs (a), (b) and (c) of paragraph 2 of section 9 draw a clear distinction between organisations which defend their ideas or programmes, whatever they may be, in strict compliance with democratic methods and principles, and those whose political activity is based on an accommodation with violence, political support for terrorist organisations or violation of the rights of citizens or democratic principles.
13. Chapter III sets out the grounds on which political parties may be dissolved or their activities suspended by order of the court and describes the applicable procedure in the courts. The Law invests the “special Chamber” of the Supreme Court established by section 61 of the Judicature Act (Ley Orgánica del Poder Judicial – “the LOPJ”) with jurisdiction for the dissolution of political parties. Furthermore, provision is made for specific priority proceedings, involving a single level of jurisdiction, which may be brought only by the public prosecutor’s office or the government, of their own motion or at the request of the Chamber of Deputies or the Senate. According to the LOPP’s explanatory memorandum, the proceedings in question are intended to reconcile the principle of legal certainty and the rights of the defence with the principle of promptness and a reasonable time-limit. The judgment delivered by the Supreme Court upon completion of those proceedings may be challenged only by way of an amparo appeal to the Constitutional Court. Section 12 details the effects of the court-ordered dissolution of a political party. Once the judgment has been served, the dissolved party must cease all activity. Furthermore, it may not set up a political organisation or use an existing party with a view to pursuing the activities of the party that has been declared illegal and dissolved. In order to rule as to whether or not there is any continuity between an existing party and a party which has been dissolved, the Supreme Court has regard to whether any “substantial similarity” exists between the structure, organisation and operation of the parties in question, or other evidence such as the identity of their members or leaders, their funding or their support for violence or terrorism. The assets of a dissolved political party are liquidated and transferred to the Treasury to be used for social and humanitarian purposes.
14. The LOPP was published in the Official Gazette of the State on 28 June 2002 and came into force the following day.
15. The facts of the case, as submitted by the parties, may be summarised as follows.
16. Founded as an electoral coalition, the political organisation Herri Batasuna took part in the general elections of 1 March 1979 (the first elections in Spain following the entry into force of the 1978 Constitution). On 5 June 1986 it was entered into the register of political parties at the Ministry of the Interior.
17. Following the Supreme Court’s sentencing on 1 December 1997 of twenty-three members of Herri Batasuna’s national directorate to imprisonment for collaboration with an armed organisation, Euskal Herritarrok (“EH”) was set up on 2 September 1998 to stand in the Basque elections of 25 October 1998, initially as an association of voters and then as a political party.
18. On 3 May 2001 Batasuna filed documents at the register of political parties seeking registration as a political party.
19. On 27 September 2002 the Basque autonomous government brought an action before the Constitutional Court challenging the constitutionality of the LOPP, criticising in particular sections 1(1), 2(1), 3(2), 4(2) and (3), 5(1), 6 and 9, Chapter III (sections 10 to 12) and paragraph 2 of the sole transitional provision of that Law.
20. By a judgment of 12 March 2003, the Constitutional Court declared the impugned Law constitutional. As regards the very existence of such a Law making provision for the dissolution of political parties and its purpose which, according to the Basque government, consisted of “establishing a model of militant democracy imposing restrictions on political parties, in particular by imposing on them an obligation, not provided for in the Constitution, to accept a given political regime or system”, the Constitutional Court stated:
“According to the applicant government, the argument set out above is based on references in certain paragraphs of sections 6, 9 and 10 of the LOPP to the ‘constitutional values expressed in constitutional principles and human rights’ (section 9(1)), to ‘democratic principles’ (sections 6 and 9(2)), to the ‘system of liberties’ and to the ‘democratic system’ (sections 9 (2) and 10(2), sub-paragraph (c)), to the ‘constitutional order’ and to ‘public peace’ (section 9(2), sub-paragraph (c)). Despite the fact that the legal significance of those references can be grasped only in the context of each of the provisions containing them and that each of the provisions in question must in turn be interpreted in the light of the law and of the legal system as a whole, the Basque government’s submission that there is no place, in our constitutional order, for a model of ‘militant democracy’ within the meaning given to that expression by the Government, namely, a model in which not only compliance with, but also positive acceptance of, the established order and first and foremost the Constitution is required, must be endorsed ... The impugned Law allows for no such model of democracy. Right at the outset, the explanatory memorandum lays down the principle of a distinction between the ideas and aims proclaimed by political parties, on the one hand, and their activities, on the other, and states that ‘the only aims explicitly vetoed are those which fall within the criminal law’, so that ‘any project or objective is deemed to be constitutional provided that it is not pursued by means of activities which breach democratic principles or the fundamental rights of citizens’. Consequently, and as regards the aspect which is of particular interest here, the Law lists as grounds for illegality ‘conduct’ – that is to say, acts – of political parties which, through their activities, and not through the ultimate aims proclaimed in their manifestos, fail to satisfy the requirements of Article 6 of the Constitution, which the impugned Law merely mentions.
... Secondly, and most importantly, it is clear that the principles and values to which the Law refers can be none other than those proclaimed by the Constitution, and that their content and scope depend on the meaning arising out of the interpretation of the positive constitutional provisions as a whole. Thus, in our system, ‘democratic principles’ can only be principles specific to the democratic order arising out of the institutional and normative fabric woven by the Constitution, the actual functioning of which leads to a system of powers, rights and balances giving form to a variant of the democratic model which is precisely that assumed by the Constitution in establishing Spain as a social and democratic State governed by the rule of law (Article 1 § 1 of the Constitution).”
21. As regards the applicant parties’ argument that the provisions of the Law, namely some of the cases referred to in section 9(3) (tacit support, for example), established a “militant democracy” in breach of the fundamental rights of freedom of ideology, participation, expression and information, the Constitutional Court stated:
“... the system established by the first three paragraphs of section 9 of the LOPP must firstly be described. The first paragraph refers not to a positive adherence of any kind but to simple respect for constitutional values, which must be demonstrated by political parties when engaging in their activities and which is compatible with the broadest ideological freedom. Paragraph 2 provides that a political party may be declared illegal only ‘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’. Lastly, sub-paragraphs (a), (b) and (c) list the general criteria for a party to be declared illegal on account of its activities ... As regards paragraph 3 of section 9 of the LOPP, the flawed drafting of its introduction might suggest that the instances of behaviour described by that provision are in addition to those specified in the preceding paragraph and that they must therefore be interpreted separately. However, an interpretation of these two provisions taken together and an interpretation of the whole section which contains them show that the instances of behaviour described in paragraph 3 of section 9 have the general features described in paragraph 2 of the same section. The instances of behaviour referred to in section 9(3) of the Law merely specify or clarify the principal causes of illegality set out in general terms in section 9(2) of the Law. A separate interpretation and application of such conduct can be done only on the basis of the cases provided for in section 9(2).
That having been said, while it is not for the Constitutional Court to determine whether or not mere failure to condemn [terrorist acts] can be construed as implicit support for terrorism, it is clear that symbolic actions can be used, in certain circumstances, to legitimise terrorist acts or excuse or minimise their anti-democratic effects and implicit violation of fundamental rights. In such circumstances it is plainly impossible to speak of a violation of the right to freedom of expression.
...
The same can be said, in general, of sub-paragraph (c) of section 10(2) of the LOPP, which provides: ‘where, through its activities, it repeatedly and seriously violates democratic principles or seeks to impair or to destroy the system of liberties or to hinder the democratic system or to put an end to it by means of the conduct referred to in section 9.’ It must also be stated in this regard that that provision concerns only the activities of political parties and in no way extends to their aims or objectives. The wording of that provision shows, therefore, that only those parties which through their activities rather than their ideology effectively and proactively seek to ‘impair or to destroy the system of liberties’ are liable to be dissolved.”
22. As regards the Basque government’s complaint that the dissolution measure prescribed by law was disproportionate, the Constitutional Court stated:
“... taken separately, none of the conduct described in section 9 of the LOPP can entail a party’s dissolution. In order for that measure to be pronounced, as stated in section 9(2), the conduct in question must be engaged in ‘repeatedly and seriously’. Secondly, it must be pointed out that the existence of a party which, through its activities, collaborates with or supports terrorist violence, jeopardises the survival of the pluralist order proclaimed by the Constitution and that, faced with that danger, dissolution would appear to be the only sanction capable of repairing the damage done to the legal order. Lastly, it must be stressed that Article 6 of the Constitution contains a definition of a party. According to the Constitution, a party may only be considered a party if it is the expression of political pluralism. Consequently, it is quite acceptable, constitutionally, for a party whose activities undermine pluralism and to a greater or lesser extent destabilise the democratic order, to be dissolved. Similarly, the European Court of Human Rights has considered that even though the margin of appreciation left to States must be a narrow one where the dissolution of political parties is concerned, where the pluralism of ideas and parties inherent in democracy is in danger, a State may forestall the execution of a policy at the root of that danger [Refah Partisi (the Welfare Party) and Others v. Turkey, nos. 41340/98, 41342/98, 41343/98 and 41344/98, 31 July 2001].
... it is not sufficient to establish the existence of just one of the acts described by the Law. On the contrary, those acts need to be engaged in ‘repeatedly and seriously’ (section 9(2)) or ‘repeatedly or cumulatively’ (section 9(3)). ... To conclude, [the relevant provisions] describe particularly serious conduct and establish as grounds for dissolution only those which are manifestly incompatible with the peaceful and lawful means which are an essential part of the process of political participation to which the Constitution requires political parties to lend their qualified support. ... The criteria established by the case-law of the European Court of Human Rights as regards the dissolution of political parties have therefore been complied with (United Communist Party of Turkey and Others v. Turkey, 30 January 1998, Reports of Judgments and Decisions 1998I; Socialist Party and Others v. Turkey, 25 May 1998, Reports 1998III; Freedom and Democracy Party (ÖZDEP) v. Turkey [GC], no. 23885/94, ECHR 1999-VIII; Refah Partisi (the Welfare Party) and Others v. Turkey, nos. 41340/98, 41342/98, 41343/98 and 41344/98, 31 July 2001 and [GC], ECHR 2003II; Yazar and Others v. Turkey, nos. 22723/93, 22724/93 and 22725/93, ECHR 2002II; and Dicle for the Democratic Party (DEP) of Turkey v. Turkey, no. 25141/94, 10 December 2002). That case-law states that in order to comply with the European Convention on Human Rights, the dissolution of a party must satisfy certain criteria, namely: (a) the law must include the circumstances and causes of dissolution (that criterion is clearly satisfied by the rules at issue, since they are set out in a formal law); (b) the aim pursued must be legitimate (which, as indicated above, consists in the instant case of protecting the democratic process of political participation through the exclusion of any associative organisation which could be likened to a party exercising an activity not falling within the constitutional definition of political parties); and (c) the dissolution must be ‘necessary in a democratic society’ (demonstrated in the context of the foregoing analysis of the specific causes of dissolution provided for by law).
... The fact that convicted terrorists are regularly appointed to positions of leadership or entered on lists of candidates for election may appear to constitute an expression of support for terrorist methods which goes against the obligations imposed by the Constitution on all political parties. Furthermore, the fact that such a practice can be taken into account only if the convicted terrorists have not ‘publicly rejected terrorist aims and methods’ cannot be interpreted as an obligation to disavow earlier activities. The provision in question [section 9(3)(c)] is of prospective effect only and applies only to political parties which are led by convicted terrorists or whose candidates are convicted terrorists. It lays down as a cause of dissolution the regular use of people who may legitimately be assumed to sympathise with terrorist methods rather than with any ideas and programmes that terrorist organisations might seek to implement.
...”
23. Lastly, as regards the Basque government’s complaint that the principle of non-retrospectivity in relation to section 9(4) of the LOPP and paragraph 2 of the sole transitional provision had been violated, the Constitutional Court held:
“For the purposes of applying section 9(4) of the LOPP, which lists the factors that can be taken into account in assessing and characterising activities that may give rise to the dissolution of a political party, the aforementioned paragraph characterises as unlawful ‘the establishment, on a date immediately preceding or following the date of entry into force, of a political party which pursues the activities of another party or succeeds that party with a view to evading application of the provisions of this Law in respect of it’. Worded as it is, that provision cannot be held to be unconstitutional as it is quite clear that its sole purpose is to enable section 9(4) of the LOPP to be applied ‘to activities pursued after the entry into force of this Institutional Law’, as stated therein. In no circumstances does it make provision for the judging of activities and acts prior to the LOPP, since only those subsequent to the entry into force of the Law are deemed to be relevant.
In other words, the Law specifically states that the various causes that may lead to dissolution of a party may be taken into account only after its entry into force. The activities considered separately and ‘the continuing nature or repetition’ of the activities mentioned in section 9(4), to which the transitional provision refers, are subsequent to the entry into force of the LOPP. That said, for the purposes of determining the significance of those activities and assessing their relevance to the overall conduct of the party concerned (and for that purpose only, since to take account of conduct pre-dating the effective date of the Law in order to justify a declaration of unlawfulness would be unconstitutional because it would constitute a breach of the principle of non-retrospectivity enshrined in Article 9 § 3 of the Constitution), it is perfectly possible to take into consideration what the Law refers to as the ‘trajectory’ (section 9(4)) of the party in question, which trajectory could encompass acts prior to the entry into force of the Law, but that cannot in any way be considered as a retrospective effect under the Constitution.”
24. The Constitutional Court also rejected the complaints based on the principle of non bis in idem, the lack of foreseeability and the exceptional nature of the Law, the specific features of the judicial proceedings and the allegations concerning the system for founding and registering political parties. Accordingly, it dismissed the applicant parties’ claims, stating in paragraph 23 of its reasoning that sections 3(1), 5(1), 9(2) and (3) and paragraph 2 of the sole transitional provision of the LOPP were constitutional only if “interpreted in accordance with the terms set out in paragraphs 10, 11, 12, 13, 16, 20 and 21” of the reasoning of its judgment.
25. The government of the Autonomous Community of the Basque Country subsequently lodged an application with the Court (no. 29134/03), which was declared inadmissible on the ground of incompatibility ratione personae on 3 February 2004.
26. Meanwhile, by a decision of 26 August 2002 delivered in the context of criminal proceedings for illegal association (Article 515 of the Spanish Criminal Code), central investigating judge no. 5 at the Audiencia Nacional had ordered the suspension of Batasuna’s activities and the closure, for three years, of any headquarters and offices that could be used by Herri Batasuna and Batasuna. The same measure was applied to EH, which is not an applicant before the Court.
27. On 2 September 2002, implementing an agreement adopted by the Council of Ministers on 30 August 2002, the Attorney-General (Abogado del Estado) lodged an application with the Supreme Court on behalf of the Spanish government for the dissolution of the political parties Herri Batasuna, EH and Batasuna on the ground that they had breached the new LOPP on account of various acts which conclusively demonstrated conduct inconsistent with democracy, constitutional values, democratic practice and the rights of citizens.
28. On the same day, State Counsel (Procurador General) also filed an application with the Supreme Court with a view to the dissolution of the political parties Herri Batasuna, EH and Batasuna in accordance with sections 10 et seq. of the LOPP. In his application, he asked the Supreme Court to find that the parties in question were illegal, and order that they be removed from the register of political parties, that they immediately cease their activities and that the effects of the Law be extended to any party newly created in breach of the Law or succeeding any of the parties concerned, that their assets be liquidated and that they be dissolved in accordance with section 12(1) of the LOPP.
29. On 10 March 2003 Batasuna sought the referral of a preliminary question to the Constitutional Court concerning the constitutionality of the LOPP as it was of the view that the Law as a whole, and several of the sections thereof taken separately, violated the rights to freedom of association, freedom of expression and freedom of thought, and the principles of lawfulness, legal certainty, non-retrospectivity of less favourable criminal laws, proportionality and non bis in idem, as well as the right to take part in public affairs.
30. By a unanimous judgment of 27 March 2003, the Supreme Court refused to refer Batasuna’s question to the Constitutional Court, pointing out that that organisation’s challenges to the constitutionality of the LOPP had already been examined and rejected in the Constitutional Court’s judgment of 12 March 2003. It declared Herri Batasuna, EH and Batasuna illegal and pronounced their dissolution under sections 9(2) and (3) of the LOPP on the ground that they were part of “a terrorist strategy of ‘tactical separation’”. It considered that significant similarities between the three parties at issue, and between them and the terrorist organisation ETA – “three organisations having substantially the same ideology ... and, moreover, tightly controlled by that terrorist organisation” – had been established. It concluded that in reality there existed a “single entity, namely, the terrorist organisation ETA, hidden behind an apparent plurality of legal entities created at different times according to an ‘operational succession’ devised in advance by that organisation”. It also liquidated the assets of the parties at issue, in accordance with section 12(1)(c) of the same Law.
31. The Supreme Court noted in its judgment that, while political parties constituted the essential foundations of political pluralism, they had to engage in their activities and pursue their aims and objectives in accordance with the law and democratic processes, stating that activities involving the use of violence or restricting the fundamental rights of others could not be tolerated. The Supreme Court referred to the Spanish constitutional system, which, in its view, unlike other legal systems, did not constitute a model of “militant democracy”, since the only condition imposed on the expression of differences was respect for the rights of others. It pointed out that the LOPP recognised that any project or objective was constitutional provided that it was not “pursued by means of activities which breach[ed] democratic principles or the fundamental rights of citizens”. In that regard, it pointed out that, by law, political parties were liable to be declared illegal only on the basis of “activities” consisting of serious and repeated conduct. In the instant case, according to the Supreme Court, the calls to violence justifying the restriction of the freedoms of the parties at issue stemmed from a deliberate apportionment of tasks between terrorism and politics, ETA devising “justification of the need for terrorism as one of the functions” entrusted to Herri Batasuna.
32. Bearing in mind the historical and social context of the fight against terrorism in Spain, the Supreme Court held that the terrorist organisation ETA and its satellite organisation, Koordinadora Abertzale Sozialista (“KAS”), had been directing Herri Batasuna since its creation. To reach that conclusion, it relied on evidence demonstrating the existence of hierarchical links between the three organisations and revealing, in particular, that KAS, as ETA’s delegate, had controlled the process of appointing the most senior members of Herri Batasuna and its successors (EH and Batasuna) and had participated in it. The Supreme Court held that Herri Batasuna had been created in response to ETA’s wish to split armed activity and mass activity “organically and structurally”, which resulted in “clear hierarchical submission” of the parties at issue to the terrorist organisation ETA. In that connection, it referred to a KAS internal document which read as follows:
“KAS ... considers that armed struggle in association with mass struggle and institutional struggle – the latter serving the former – is the key to the advance and triumph of the revolution; mass struggle likewise requires an historical alliance of Popular Unity, the physical manifestation of which is Herri Batasuna.”
33. As regards the “operational succession” held to exist between the three political parties that had been declared illegal, the Supreme Court relied on the fact that the people occupying posts of responsibility within the three organisations – notably their spokesperson, A.O. – and belonging to different parliamentary groups, were the same. It also took account of the existence of premises used by all the parties at issue. As regards links between the applicant parties and the terrorist organisation ETA, it noted that several of their members, in particular their spokesperson, A.O., had been convicted of terrorism-related offences.
34. The Supreme Court held that the evidence set out below, subsequent to the date of entry into force of the LOPP, showed that the applicant political parties were instruments of ETA’s terrorist strategy.
– On 3 July 2002 Batasuna had refused to appoint representatives to the Basque parliamentary committee responsible for the situation and needs of victims of terrorism, as it considered it to be “political, manipulated and biased”.
– On 3 July 2002, reacting to the decision of central investigating judge no. 5 at the Audiencia Nacional by which Batasuna had been declared civilly liable for damage caused by street violence (kale borroka), A.O., the spokesperson for that organisation, had exhorted the Basque people to respond “energetically to this new attack” and had criticised the decision for having provoked a “serious and anti-democratic situation”.
– On 7 July 2002, during a commemoration of the 1936 battle of Monte Albertia, A.O. had made the following statement:
“We must continue to work and to struggle, either within or outside the law. The reality is that we will not falter because we are at a point in history where the process we have undertaken must be rendered irreversible.”
– On 13 July 2002 the mayor and a Batasuna councillor of the municipality of Lezo had taken part in a demonstration in support of ETA terrorists living in Venezuela.
– On 16 July 2002, at a gathering outside the San Sebastian navy command, a Batasuna municipal spokesperson, referred to as J.L., had explained that the purpose of that demonstration was to let the State authorities know “that they could not move around with impunity in Euskal Herria”.
– On 19 July 2002 J.E.B., Batsuna’s spokesperson in the municipality of Vitoria, had stated that Batasuna “didn’t want ETA to stop killing, but did not want Euskal Herria to have recourse to any kind of violence and wanted those who engaged in it to cease to exist”.
– At a plenary session of the municipal council on 30 July 2002 Batasuna had refused to condemn the campaign of threats against councillors of the Basque Socialist Party (PSE-EE) in the municipality of Amorebieta.
– At a press conference on 2 August 2002 concerning the potential handover to Spain of K.B., an ETA member convicted in France, the mayor and the chairman of the Human Rights Committee of the municipality of Ondarroa, L.A. and A.A., Batasuna members, had declared that they supported K.B. and “all those who [were] in the same situation”.
– Batasuna and its leaders had refused to condemn the Santa Pola attack of 4 August 2002 in which two people had died. In that regard, during a press conference in Pamplona A.O. had described that event as a “painful consequence” of the failure to solve the “political conflict” in the Basque Country and had accused the Spanish Prime Minister [then J.M. Aznar] “of bearing the greatest responsibility” for “what [had happened] [at] that time and what [might] happen in future”.
– Municipalities run by Batasuna and that party’s website had used an anagram of “Gestoras Pro-Amnistía”, an organisation that had been declared illegal by central investigating judge no. 5 at the Audiencia Nacional and was on the European list of terrorist organisations (Council Common Position 2001/931/PESC).
– At a demonstration organised by Batasuna in San Sebastian on 11 August 2002 and run by Batasuna’s leaders A.O., J.P. and J.A., slogans supporting ETA prisoners and threatening expressions such as “borroka da bide bakarra” (the struggle is the only way), “zuek faxistak zarete terroristak” (you, the Fascists, are the real terrorists) or “gora ETA militarra” (long live ETA military) had been used.
– On 12 and 14 August 2002, Batasuna-run town halls had put up placards on their facades supporting terrorism or those engaging in terrorism, alluding to the transfer of “Basque prisoners to the Basque Country” and showing photographs of several terrorists.
– At a Batasuna press conference held in Bilbao on 21 August 2002, A.O. had criticised the “Spanish State’s genocide strategy” and proclaimed that the Basque people were going to “organise themselves” and “fight” so that some “little Spanish Fascist” could never again tell Basques what their institutions should be. He had also warned the government of the Autonomous Community of the Basque Country (nationalist government coalition) that if it took part in closing down Batasuna headquarters, the result would be “an unwanted scenario”, expressions which had been interpreted the following day by the media as “a threat against the Basque executive”.
– During an interview with the newspaper Egunkaria on 23 August 2002, J.U., Batasuna’s 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”.
– On 23 August 2002 at a Batasuna meeting held in Bilbao following the demonstration organised by that party against its dissolution, J.P. had criticised the leaders of the Basque Nationalist Party for abiding by Spanish law, accusing them of lacking “national dignity”. He had also encouraged the participants to “go out into the street and respond vigorously”.
– Municipalities governed by the parties in question had advocated terrorist activities, as evidenced by the fact that two ETA terrorists had been made honorary citizens (hijo predilecto) by the municipalities of Legazpia and Zaldibia.
– Since 29 June 2002 Batasuna council representatives in Vitoria and Lasarte-Oria had been committing acts of harassment against the representatives of non-nationalist parties, thus contributing to a climate of civil confrontation.
– Municipalities governed by Batasuna had displayed sketches and placards calling for a struggle against the State, against representatives of State power, against other political parties or members of those parties, notably the Prime Minister of the Spanish government and the leaders of the Partido Popular and the Spanish Socialist Party.
– After the entry into force of the LOPP, the three parties at issue had continued to pursue the same strategy of complementing, on a political level, the actions of the terrorist organisation ETA in the context of a jointly organised “operational succession”.
35. Relying on the above evidence, the Supreme Court held that the activity of the applicant political parties, as manifested through conduct in line with a strategy predefined by the terrorist organisation ETA, consisted of “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”, within the meaning of section 9(2)(c) of the LOPP. It concluded that the conduct of which the applicant parties had been accused corresponded to the cases referred to in sub-paragraphs (a), (b), (d), (f) and (h) of paragraph 3 of section 9 of that Law. It stated firstly that some of the conduct described, such as Batasuna’s demonstration in San Sebastian, where pro-ETA slogans had been heard, could be characterised as explicit political support for terrorism, while other conduct, such as the refusal of Batasuna and its leaders to condemn the Santa Pola attack of 4 August 2002, sought to “justify terrorist actions and minimise their importance and the violation of the fundamental rights arising therefrom”. In that connection, the Supreme Court stated:
“In the constitutional context, the existence of political parties which, from an intellectual point of view, fail to take a clear and unequivocal stance against terrorist activities or which, with calculated ambiguity, systematically seek to conceal the fact that they do not disavow criminal acts by officially deploring the consequences thereof without, however, censuring in any way the barbaric behaviour of those who cause such acts through the use of violence to achieve their objectives, cannot be tolerated.
...
For the purposes of these proceedings, the repeated strategic and systematic silence of a political party concerning terrorist activities can only be interpreted, from a political and constitutional viewpoint, as a clear sign of their ‘acceptance by omission’ or ‘implicit acceptance’, that is, as their alignment with the arguments of the perpetrators of those criminal actions and the tacit acceptance of violence as a means of achieving set objectives which, in our constitutional system, can only be achieved by peaceful means.”
36. The court held, secondly, that other conduct of which the applicant parties had been accused, such as the harassment of representatives of non-nationalist parties in the municipalities of Vitoria and Lasarte-Oria, had contributed to the emergence of a climate of civil confrontation intended to intimidate opponents of terrorism and deprive them of their freedom of opinion.
37. It observed, thirdly, that conduct such as publicly describing ETA prisoners as political prisoners or using the anagram of “Gestoras Pro-Amnistía” proved that the parties at issue were using symbols reflecting terrorism or violence. It noted, lastly, that the applicant parties had also taken part in activities in praise of terrorist activities.
38. Turning to the need for and the proportionality of the dissolution of the applicant parties, the Supreme Court pointed out that it was taking account of the text of the Convention and of the Court’s case-law, which would serve as a guide in the interpretation of fundamental constitutional rights, in accordance with Article 10 § 2 of the Spanish Constitution. It considered that, in view of the applicant parties’ frequent calls to violence, as established by the above-mentioned evidence, the measure to dissolve the applicant parties had been justified for the purposes of protecting the fundamental rights of others, “a necessary element of democracy”. The Supreme Court referred in particular to the Court’s judgment in Refah Partisi (the Welfare Party) and Others v. Turkey ([GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, ECHR 2003II), considering that that judgment imposed on parties claiming to exercise functions in a democratic society a real legal duty to distance themselves from any ambiguous or unclear messages as to the use of violence (ibid., § 131). It pointed out furthermore that the calls to violence at issue in the case before it appeared to be more explicit than those at issue in the case submitted to the Court.
39. Batasuna and Herri Batasuna lodged two amparo appeals with the Constitutional Court against the judgment of the Supreme Court.
40. In their appeals, they complained firstly of the lack of impartiality of the President of the Supreme Court, who had been the reporting judge in the proceedings leading to their dissolution even though he was the president of the Judicial Council, the body which had issued a favourable report on the bill resulting in the Law at issue. They submitted that the conflation of jurisdictional and consultative functions in one person had resulted in a loss of objective impartiality. Batasuna relied in that regard on Article 24 § 2 of the Constitution (right to a fair hearing before an independent and impartial tribunal).
41. Secondly, the applicant parties alleged that the guarantees of a fair trial had not been rigorously observed in so far as the dissolution of Batasuna had been based, inter alia, on the conduct attributed to certain Zaldibia and Legazpia municipal councillors, who had made an alleged member of ETA and an ETA member who had been convicted and had served his sentence honorary citizens (hijo predilecto), facts which had been established ex parte, after completion of the phase of the proceedings during which new evidence could be introduced and without the applicant parties having been able to defend themselves against such allegations.
42. They complained, thirdly, of a violation of the presumption of innocence, submitting that the facts deemed to have been proven in the judgment of the Supreme Court had been based on a single press release and that Batasuna and its members had been deemed to have carried out acts attributable to another political organisation, namely EH. Moreover, they criticised the judgment of 27 March 2003 for having considered as established fact that Batasuna had been created on the basis of an agreement between the leaders of Herri Batasuna and ETA, and that Herri Batasuna, EH and Batasuna were in fact one and the same organisation which had been assigned certain functions by ETA and which acted under the instructions of the latter, while those allegations had actually been based on documents having no probative value and on the statements of expert witnesses working for the Spanish government.
43. Fourthly, and lastly, the applicant parties considered that their right to freedom of expression, thought and association had been breached as a result of their dissolution.
44. By two unanimous judgments of 16 January 2004 the Constitutional Court dismissed the appeals.
45. In the judgment on Batasuna’s amparo appeal, the Constitutional Court repeated the arguments contradicting the applicant parties’ submissions concerning “militant democracy” set out in its judgment of 12 March 2003. It pointed out that “any project or objective [was] constitutional provided that it [was] not pursued by means of activities which breach[ed] democratic principles or the fundamental rights of citizens”. It also pointed out that “the constitutionality of section 9 of the LOPP ha[d] been recognised by judgment 48/2003” and that “the answers to the objections raised by Batasuna as to the constitutionality [of the conduct described by the provisions of the Law at issue] could be found in the legal bases of that Law”.
46. The Constitutional Court stated:
“The refusal of a political party to condemn terrorist attacks can be seen, in certain cases, as ‘[...] tacit political support for terrorism’ [section 9(3)(a) LOPP], or ‘legitimising terrorist actions for political ends’ [section 9(3)(a) LOPP], in so far as it may excuse terrorism or minimise the significance thereof ... The failure to condemn terrorist actions also constitutes a tacit or implicit manifestation of a certain attitude towards terror. ... Against a backdrop of terrorism that has been in place for over thirty years, with those responsible always legitimising terror by claiming equality between the types of forces fighting each other and by presenting it as the only possible solution to an allegedly historical conflict, the refusal of a party to condemn a specific terrorist attack, which undeniably reflects that party’s wish to disassociate itself from the condemnatory stance taken by other parties in relation to such acts, is all the more significant since it reflects the position of a party which has sought to pass off the terrorist phenomenon as an inevitable reaction to the past and unjust aggression of a terrorised State. ... Furthermore, ... the refusal to condemn [terrorist acts], combined with serious and repeated acts and conduct, indicates an accommodation with terror which runs counter to organised coexistence in the context of a democratic State. ... It must therefore be concluded that it would not appear to be unreasonable or erroneous to take account of facts judicially established in proceedings having observed all the guarantees covering the grounds for dissolution laid down by the LOPP – whose unconstitutionality in abstracto was ruled out by Constitutional Court judgment no. 48/2003 – thus ruling out any possibility of a breach of Article 24 of the Constitution, and that no substantive fundamental right, such as the right of political association (Articles 22 and 6 of the Constitution), the right to freedom of conscience (Article 16 § 1 of the Constitution) and the right to freedom of expression (Article 20 § 1 (a) of the Constitution) has been breached.”
47. Lastly, in the reasoning of its judgment the Constitutional Court pointed out that in its appeal, Batasuna had literally alleged that the effect of the LOPP “had been to deprive ideologies linked to terrorism and violence of any possibility of developing lawfully, in breach of the procedural definition of democracy”, and had argued that the Law at issue declared unlawful “the mere fact of providing political and ideological support to the actions of terrorist organisations with the aim of overthrowing the constitutional order”. It held that this “link with terrorism and violence” ... “fell outside the constitutionally legitimate scope of the exercise of freedom of association and freedom of expression and could therefore be prohibited by the democratic legislature”.
48. As regards Herri Batasuna’s amparo appeal, the Constitutional Court again referred to its judgment of 12 March 2003, in which it had indicated that the various causes of dissolution of parties could only be taken into account as of the entry into force of the Law, stating, however, that “for the purpose of determining the significance [of the activities listed by the Law] and assessing their importance having regard to the overall conduct of the party at issue (and for such purposes only, since to take account of conduct prior to the entry into force of the Law in order to justify a declaration of illegality [would have been] unconstitutional in that it [would have] breached the principle of non-retrospectivity enshrined in Article 9 § 3 of the Constitution), it [was] perfectly possible to take into consideration what the Law called the ‘trajectory’ (section 9(4)) of the party at issue which could encompass conduct prior to the entry into force of the Law, without it being possible in any circumstances to consider that to be a case of retrospective application prohibited by the Constitution”. The Constitutional Court pointed out that the applicant party had not been dissolved because of acts pre-dating the entry into force of the Law or conduct attributable to other parties, but because it had been held that Batasuna, Herri Batasuna and EH “constituted ‘successive units’ of a single reality – namely a political organisation used as a tool by a terrorist group for unlawful purposes –, that the successive forms assumed by a single political party had de facto been dissolved, and that the dissolution pronounced by the Supreme Court had been based on subsequent facts stated as being entirely attributable to the applicant party on account of the fact that the Supreme Court had found the three dissolved parties to be materially identical”.
49. Lastly, the Supreme Court dismissed the complaints of lack of impartiality and failure to comply with the principle of adversarial proceedings as lacking any constitutional basis.
50. On 6 June 2007 ETA ended the ceasefire that it had declared on 24 March 2006. Since that date, several fatal attacks have been carried out in Spain.
“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.”
“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.”
“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;
...”
“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.”
“...
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.”
“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 ...”
“...
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.”
“ ... 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].”
“... 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;
...”
“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.”
“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 10 – 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.”
NON_VIOLATED_ARTICLES: 11


ITEMID: 001-4971
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: FREEMAN v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a British national, born in 1939 and living in London, England. He is represented by Mr S. Creighton, a lawyer working with Bhatt Murphy, a firm of solicitors based in London.
A.
The applicant has been involved in the manufacture and distribution of erotic films since the 1960s. On 8 December 1969 the applicant was convicted of murdering one of his employees and sentenced to life imprisonment.
The applicant was released on licence on 24 May 1979.
In 1982 the applicant was convicted on charges of conspiracy to publish obscene articles, procuring women to become prostitutes, procuring acts of gross indecency between men in public and possession of cannabis. He received a prison sentence. The Secretary of State, on the recommendation of the Parole Board, revoked the applicant’s licence with effect from 31 August 1983.
The applicant was released on licence on 7 May 1986.
In February 1987 the applicant was bound over for one year following an altercation with another man in a London bookshop.
In January 1989 the applicant was charged with theft, possessing an offensive weapon, threatening behaviour and possession of cannabis. The first two charges were dropped. On 28 March 1989 the applicant was cautioned for disturbing the peace and on 17 April 1989 it was alleged that he had been seen standing on a mound overlooking a police office in a London park making provocative gestures while a woman filmed the scene from behind bushes.
The applicant absconded to the Netherlands before his trial on the threatening behaviour and possession charges.
On 14 July 1989 the applicant’s licence was again revoked. The Dutch authorities subsequently refused the request of the authorities of the respondent State that the applicant be returned to the United Kingdom, being of the opinion that the charges he faced in the English courts were not sufficiently serious to justify this.
On 26 September 1994 the applicant was deported to the United Kingdom following a renewed request to the Dutch authorities based on different grounds. On his arrival in the United Kingdom the applicant was informed that the charges brought against him in 1989 had been dismissed.
The revocation of the applicant’s life licence was confirmed by the Parole Board on 28 April 1995. On 17 July 1996 the Parole Board refused to recommend that the applicant be released or moved to open conditions on the grounds, inter alia, that he had committed a particularly brutal murder and although released twice on licence he had shown a marked disregard of his licence obligations.
The applicant sought to challenge the Parole Board’s decision by way of judicial review. The legal challenge was settled before a full hearing could take place on the judicial review application and in view of the Parole Board’s undertaking to reconsider the applicant’s case. Following the applicant’s complaint to the Prison Ombudsman about the delay in setting down a date for reconsideration of his application for release, the Parole Board recommended on 9 April 1997 the applicant’s immediate release from prison without his having to spend a period of time in open conditions. In reaching its recommendation, the Parole Board noted, inter alia, that reports on the applicant were positive and that it trusted that the applicant would remain firm in his resolution that “he can be in the film business and stay within the law...”
On 8 December 1997 the Secretary of State informed the applicant that he had decided to accept the Parole Board’s recommendation. However, he considered that:
“[the applicant] should spend six months in open conditions before ... release where any outstanding work on [his] offending behaviour, including [his] attitude to pornography and drugs, can be carried out and, in light of [his] previous failure to comply with the conditions of [his] life licence, [his] future trustworthiness can be tested.”
The applicant’s solicitors made representations to the Secretary of State in respect of this decision. In a letter dated 9 January 1998, the Secretary of State replied to these representations stating that:
“[the applicant’s] behaviour in absconding to Amsterdam in 1989 demonstrates his untrustworthiness and raises serious concerns about the likelihood of his abiding by the conditions of his life licence and probation service in the future. This aspect, together with his attitude to drugs (a feature of the index offence and the incident in Battersea Park in 1989 when he was charged with the possession of cannabis) and pornography, need to be tested in the more relaxed conditions of an open prison.”
For these reasons the Secretary of State affirmed that he was not prepared to alter his decision not to order the applicant’s release until he had satisfactorily completed a six-month stay in open conditions.
The applicant challenged the Secretary of State’s decisions of 8 December 1997 and 9 January 1998 by way of judicial review proceedings.
In a judgment handed down on 5 June 1998 Mr Justice Turner quashed the impugned decisions and ordered that the applicant’s case be given urgent reconsideration by the Secretary of State. The judge held that:
“The question remains, however, whether the reasons advanced in setting a period of six months as one in which the question of the applicant’s ‘trustworthiness’ could effectively be tested requires the most anxious scrutiny. The reasons are tenuous in nature and capable of producing the appearance that the applicant is to be sentenced again for his conduct in breaching the terms of his previous life sentences when he has already been punished for those breaches by the period which he has served in custody since 1989. Any such reason would have to be condemned as unfair if not irrational, as being incapable of supporting the decision. As a ‘reason’ it may also fail, because it is quite unrealistic to suppose that the extra period of six months could have made the difference between the applicant being considered trustworthy as opposed to his present, and supposed, state of not being ‘trustworthy’. It is trite law in the field of reasons that for such to be impervious to judicial interference they must be ‘proper, sufficient and intelligible’. In my judgment, the reasons advanced in support of the decision to require that the applicant, which must be regarded as a further six months, as a minimum, fail the tests of propriety (in the sense of fairness) and intelligibility. They also fail to satisfy the test of particularity why the decision of the Parole Board which was reached after a prolonged and careful investigation, was not accepted.”
In correspondence following the judgment, the Secretary of State expressed his disagreement with the court’s judgment but nevertheless put in place arrangements for the applicant to be released immediately. The applicant was released on 29 June 1998.
B. Relevant domestic law
1. Life sentences
Murder carries a mandatory sentence of life imprisonment under the Murder (Abolition of Death Penalty) Act 1965.
2. Release on licence of prisoners serving mandatory life sentences
Section 35 of the Criminal Justice Act 1991 (reproduced in section 29 of the Crime (Sentences) Act 1997) provides that the Secretary of State, if recommended to do so by the Parole Board and after consultation with the Lord Chief Justice, together with the trial judge if available, release on licence a life prisoner who is not a discretionary life prisoner.
The power to release under section 35(2) of the 1991 Act cannot be exercised unless the Secretary of State has first referred the case to the Parole Board for its advice (section 35(3)). According to section 32(6) the Secretary of State may give the Parole Board directions as to the matters to be taken into account in discharging its functions.
On 30 March 1993 the Home Secretary gave directions to the Parole Board concerning the release of mandatory life sentence prisoners. In those directions the Home Secretary stated that the final decision on the release of a mandatory life prisoner rests with him and that the decision may be taken on grounds that go beyond the risk posed by the prisoner.
On 27 July 1993 the Secretary of State made a statement in Parliament explaining his practice in relation to mandatory life prisoners. The statement emphasised that before any mandatory life prisoner is released on life licence, the Secretary of State:
“will consider not only, (a) whether the period served by the prisoner is adequate to satisfy the requirements of retribution and deterrence and, (b) whether it is safe to release the prisoner, but also (c) the public acceptability of early release. This means that I will only exercise my discretion to release if I am satisfied that to do so will not threaten the maintenance of public confidence in the system of criminal justice.”
On 7 December 1994 the Secretary of State issued a statement in which he made clear that in the normal course of events a period in open conditions is vital in terms of testing the prisoner’s suitability for release and in preparing him for a successful return to the community. He declared that it is therefore normally the practice to require a prisoner to spend a period in open conditions before release.


ITEMID: 001-88669
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF RUSU v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 5-2;Violation of Art. 5-1-f;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1967 and lives in Timisoara, Romania.
7. On 24 February 2002 the applicant’s passport and luggage were stolen in Nice when she was on her way back to Romania from a journey in Spain. After the French police had provided her with a document certifying that she had declared the theft, she continued her trip via Italy and Austria.
8. On 25 February 2002 the Hungarian border police refused the applicant leave to enter Hungary and sent her back to the Austrian border police; on the same day, the Neusiedl/See District Administrative Authority (Bezirkshauptmannschaft) ordered her detention with a view to her expulsion pursuant to section 61(1) of the Aliens Act 1997 (Fremdengesetz 1997). The reasoning read as follows:
“You entered Austrian territory, coming from Italy, at 10.30 a.m. on 25 February 2002 at 2425 Nickelsdorf (marker stone A29-30), circumventing border controls and without being in possession of a valid travel document and stamp. On 25 February 2002 at 10.30 a.m. you were apprehended by border control officials.
Your entry into and stay in Austria are therefore illegal. You do not have any fixed accommodation in Austria, nor do you have sufficient funds to finance your stay.
The Neusiedl/See District Administrative Authority has instituted proceedings for your deportation with a view to your expulsion from the country.
In view of the foregoing there is reason to fear that, if released, you would abscond and seek to evade the proceedings.”
9. The order for the applicant’s detention with a view to her expulsion (Schubhaftbescheid), issued in German and consisting of two pages, included instructions as to available remedies (Rechtsmittelbelehrung), referring in particular to a complaint to the Independent Administrative Panel (Unabhängiger Verwaltungssenat) against the lawfulness of the order, arrest or detention. It was handed to the applicant at around 6 p.m. together with two information sheets in Romanian.
10. Information sheet I read as follows:
“Section A
You are hereby informed that you have been arrested by law-enforcement officers (federal police/customs officers/Austrian federal army) in accordance with section 43(1)(2) of the Aliens Act because you entered Austria without reporting to the Border Control Office and were apprehended immediately afterwards.
You are entitled to have a relative or other person close to you advised of your arrest, at your request, without unnecessary delay and according to your choice. In addition, the consular representation of your country of nationality will be immediately informed of your detention.
You will be immediately brought before the authority responsible, namely the Neusiedl am See District Administrative Authority, which will issue the subsequent orders.
Section B
I ... (Name) ... (Date of birth)..., would like the following person to be advised of my arrest: ...
Would you like your consular representation in Austria to be informed of your arrest? Yes O No O
By signing, I also confirm receipt of information sheet I.
(Signature)”
11. The applicant filled in the form, asking that Mr L. B. [full name], whose address and telephone number she indicated, be informed of her arrest, and ticked the box indicating that she wished the consular representation to be informed of her arrest. The applicant duly signed the form.
12. Information sheet II read as follows:
“Section A
(1) You are informed that the Neusiedl am See District Administrative Authority/Federal Police Directorate have, in accordance with section 41(1) and (2) of the Aliens Act, ordered your detention pending deportation as being necessary to secure your expulsion or deportation to your country of nationality.
Aliens, that is to say, persons who are not Austrian citizens, may, according to section 35(1)(1) of the Aliens Act, be required to return to a foreign country if they have entered Austria without reporting to the Border Control Office and have been apprehended within 7 days.
According to section 17(2)(6), aliens may, in the interest of public order, be expelled on the basis of an order if they have entered Austria without reporting to the Border Control Office and have been apprehended within 1 month.
In your case, you were arrested by law-enforcement officers on 25 February 2002 at 10.30 a.m. after entering federal territory in the ... local administrative area on 25 February 2002 at ... o’clock without reporting to the Border Control Office, and therefore illegally.
(2) You are entitled to appeal to the Independent Administrative Panel (‘UVS’ – Unabhängiger Verwaltungssenat) of the Province of Burgenland, alleging the unlawfulness of the order for your detention pending deportation, your arrest or your detention. This appeal can be addressed to the Independent Administrative Panel Burgenland, Neusiedlerstraße, 7000 Eisenstadt or to the Bezirkshauptmannschaft Neusiedl/See, Eisenstädterstr. 1a, 7100 Neusiedl am See (designation and address of the District Administrative Authority).
Please mark the envelope ‘UVS-Beschwerde’ (‘UVS Appeal’).
(3) If you have not taken part in the determination of your identity and nationality to the required extent or if the approval necessary for entry has not been given by another country, detention pending deportation can last for six months if earlier deportation is not possible for these reasons.
Therefore it is above all in your interest to declare any identity papers which may have been handed over to other persons or hidden or thrown away in Austria, in particular travel documents, or to have them sent by your relatives from your country of nationality. Your participation in the determination of your identity by your representation office can also considerably shorten your detention pending deportation.
(4) If you have further questions you can also address them in writing to Bezirkshauptmannschaft Neusiedl/See, Eisenstädterstr. 1a, 7100 Neusiedl am See (designation and address of the District Administrative Authority).
Section B
(1) Can you contribute to the determination of your identity? Yes O No O
(2) Furthermore, I confirm by this signature the receipt of information sheet II dated ...
(Signature)”
13. The applicant ticked the box stating that she could contribute to the determination of her identity, and signed the information sheet confirming that she had received it on 25 February 2002.
14. That evening she was transferred to the Graz police detention centre, where she was issued with a leaflet in Romanian informing her of her rights as a detainee (Informationsblatt für Festgenommene), including the maximum length of police detention, the right to consult a lawyer, the right to inform a person close to her and the consulate, the right to obtain medical care, and her rights during questioning. She also received and signed an information sheet concerning assistance for persons in detention pending deportation (Information über die Schubhaftbetreuung) in Romanian and ticked the box for requesting such assistance. She also received a short version of the internal prison rules.
15. According to the applicant, she then requested a lawyer and an interpreter in order to be informed of the reasons for her arrest. She alleged that her request had been ignored. In the Government’s view these submissions were misleading since the relevant information had been provided to the applicant through information sheets I and II.
16. On 26 February 2002 the Neusiedl/See District Administrative Authority requested the Romanian embassy in Vienna to issue a provisional travel document for the applicant’s return and to do so speedily, given the applicant’s detention with a view to her expulsion. This letter was dispatched and sent by registered post on 27 February 2002 and arrived at the Romanian embassy on 1 March 2002.
17. Also on 26 February 2002 the applicant called the Romanian embassy in Vienna, which promised to issue her with a provisional travel document by 1 March 2002. This did not happen, even after two more phone calls by her to that effect.
18. On 7 March 2002 the applicant was questioned at the Graz police detention centre in the presence of an interpreter, for the purpose of issuing an expulsion order. The minutes of this interview were prepared in German. According to the minutes the interpreter translated into Romanian the decision of 25 February 2002 ordering the applicant’s detention with a view to her expulsion.
19. The applicant submitted that it was only then that she had learnt for the first time that she was going to be expelled from Austria. The Government contested this statement as being incorrect in the light of the above submissions concerning information sheet II, which had been handed to the applicant on 25 February 2002.
20. On 13 March 2002 the Neusiedl/See District Administrative Authority issued a deportation order (Ausweisungsbescheid) against the applicant. The order was transmitted by fax to the Graz police detention centre and handed to the applicant on 14 March 2002.
21. On the same day the Romanian embassy in Vienna issued a provisional travel document, valid from 13 March until 13 May 2002, which was received by the Neusiedl/See District Authority on 15 March 2002. This document was transmitted to the Graz Federal Police Directorate on 18 March 2002 and from there immediately to the Graz police detention centre.
22. On 15 March 2002 the Austria-Hungary liaison office (Kontaktbüro) examined whether the applicant was prohibited from entering Hungary.
23. On 22 March 2002 she was expelled by train from Austria via Hungary to Romania.
24. At the material time, the relevant provisions governing the arrest and detention of aliens with a view to their expulsion and remedies against such arrest and detention were contained in the Aliens Act 1997 (Fremdengesetz 1997), which entered into force on 1 January 1998.
25. Section 61 governed detention with a view to expulsion. In so far as relevant, it provided:
“(1) An alien may be arrested and detained (detention with a view to expulsion) where this is necessary in order to secure the conduct of the procedure for issuing an exclusion order or an expulsion order until it becomes enforceable, or in order to secure his or her expulsion, removal or transit. ...
(2) Detention with a view to expulsion shall be based on an order. ...
...
(4) The decision to detain a person with a view to his or her expulsion shall be amenable to appeal under section 72.”
26. Section 63 concerned the arrest of aliens. In so far as relevant, it provided:
“(1) The law-enforcement agencies shall be empowered to arrest an alien:
...
2. who is apprehended within seven days of entering the country, if he or she has entered the country by circumventing the border controls. ...”
27. Section 66 dealt with less intrusive measures:
“(1) The authorities may refrain from detaining a person with a view to his or her expulsion if they have reason to believe that the same purpose can be achieved by means of less stringent measures. ...
(2) Less stringent measures shall take the form in particular of an order to reside in accommodation designated by the authorities. Less stringent measures shall be implemented only if the alien concerned agrees to the collection of personal identification data, ...
(3) Following collection of his or her personal identification data, the alien concerned shall reside in the accommodation designated by the authorities and shall report every other day to a police station designated for the purpose. ...”
28. The provisions referred to in the two information sheets (see paragraphs 10 and 12 above) were the relevant provisions of the Aliens Act 1992, which was in force prior to 31 December 1997. Sections 17(2)(6) and 35(1)(1) governed the right to expel aliens who had entered Austria illegally by circumventing border controls. Section 43(1)(2) concerned the arrest of aliens who had been apprehended within seven days of circumventing border controls, and section 41 concerned detention with a view to expulsion.
29. Section 72 of the Aliens Act 1997, in so far as relevant, provided:
“(1) Persons arrested under section 63 or who have been or are being detained on the basis of this Federal Law, shall have the right to apply to the Independent Administrative Panel alleging the unlawful nature of the order for their detention with a view to expulsion, or of their arrest or detention.”
30. Section 73 of the Act, in so far as relevant, provided:
“(1) The Independent Administrative Panel within whose judicial district the applicant was arrested shall be competent to deal with the application.
(2) ...
2. The Independent Administrative Panel shall give a decision on the alien’s continuing detention with a view to expulsion within one week, unless the alien’s detention ends sooner.
...
(4) If the alien concerned remains in detention, the Independent Administrative Panel must in any event determine whether at the time of its decision the conditions for his or her continuing detention with a view to expulsion are met. ...”
31. Decisions given by the Independent Administrative Panel may be challenged before the Constitutional Court (Verfassungsgerichtshof) and the Administrative Court (Verwaltungsgerichtshof).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-2
VIOLATED_BULLETPOINTS: 5-1-f


ITEMID: 001-85958
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: ALWIN v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych
TEXT: The applicant, Mr Pawel Alwin, is a Polish and German national who was born in 1936 and lives in Bydgoszcz.
From 1 August 1988 the Wuppertal Railway Social Insurance Office (the “Insurance Office”) paid the applicant an invalidity pension based on a bilateral agreement between Germany and Poland (see “Relevant domestic law” below) and informed him that he was to disclose any changes in his address as the pension entitlement depended on him continuing to reside in Germany.
On 20 January 1999 the Insurance Office received an anonymous letter that the applicant had transferred his domicile to Poland and that he only travelled to Germany to receive his pension.
On 21 May 1999 the Insurance Office asked the applicant whether his permanent domicile was in Poland or in Germany, but the applicant failed to provide the required information.
On 20 September 1999 the Bydgoszcz registration office (Einwohnermeldeamt) informed the Insurance Office that since 1 March 1991 the applicant had been domiciled in Bydgoszcz.
On 22 December 1999 the Insurance Office informed the applicant of its intention to cease the payment of the invalidity pension as of January 2000. Moreover, it ordered him to reimburse the payments effected between 1 March 1991 and 31 December 1999 amounting to some DEM 147,200. The Insurance Office served its decision on the applicant’s address in Poland. The applicant’s wife acknowledged receipt of the decision.
On 25 January 2000 the applicant lodged an administrative appeal against that decision. He alleged inter alia that he had not received the decision as he no longer lived with his wife.
On 29 January 2001, relying on the information provided by the Bydgoszcz registration office about the applicant’s domicile, the Insurance Office rejected the administrative appeal.
On 24 April 2001 the applicant brought an action before the Frankfurt Social Court to have the decision of the Insurance Office annulled.
On 31 July 2001 the Frankfurt Social Court requested the Berlin Social Court to hear two witnesses.
On 24 October 2001 the Berlin Social Court heard those witnesses. The applicant, although he had been informed of the hearing, did not appear.
On 16 June 2004 the applicant lodged his application before the Court.
On 2 March 2007 the applicant received the Frankfurt Social Court’s summons to the hearing scheduled for 11 May 2007.
On 11 May 2007 the Social Court held the hearing, which the applicant did not attend, and dismissed the applicant’s action, arguing that he had acted with gross negligence.
The judgment was served on the applicant by post.
On 17 July 2007 and on 26 September 2007 the Court requested the applicant to inform the Court about the outcome of the proceedings before the Social Court.
On 30 October 2007 the Court received the applicant’s letter in which he, without further comments, submitted a copy of the Social Court’s judgment.
On 18 December 2007 the German Government informed the Court that the judgment of the Social Court had not yet become final as the applicant had not returned the acknowledgment of the judgment’s receipt to the Social Court.
This bilateral agreement establishes that persons who moved to Germany by 31 December 1990 could receive their pension from a German insurance company. The agreement applies only as long as the pensioner has his domicile in Germany.
Pursuant to section 80 § 1 of the Code of Administrative Court Procedures administrative appeals and actions for annulment have suspensive effect. Administrative acts may only be enforced if they have become final or if legal remedies to challenge these acts have no suspensive effect.
The German law does not provide for a party to pay interest in cases where he or she is found liable to reimburse unlawfully obtained pension payments.