During the following days, they began collecting signatures. This is a condition set by Spanish election law for any electoral grouping as they are in a different category from political parties due to their being considered as standing for election as a contingent objective, whilst political parties are deemed to intend to last in time, with a permanent structure and organisation.
On May 10, 49,000 signatures were presented, comfortably exceeding the stipulated number of 40,000. After this, the Central Election Board proceeded to officially proclaim the validity of the candidature in the Official State Bulletin (BOE).
On May18, the Spanish government of José Luis Rodríguez Zapatero impugned Herritarren Zerrenda’s candidature and the Lawyer of the State filed appeal Nº 1/2204 against the decision by the Election Board to validate the said candidature. In its appeal, the executive challenges the HZ election list on the grounds that 33 of its 54 members are linked to “the complex of Batasuna and/or ETA, the BNLM, Segi or other outlawed organisations” based upon Law 6/2002 of Political Parties. These links are absolutely gratuitous, as none of the candidates is involved in any penal or administrative process that would prove this kind of link. In addition, the Lawyer of the State maintains that the impugned candidature is “but the consequence of the terrorist group ETA’s strategy to act through a two pronged approach in the political-institutional front”. Obviously, a clandestine organisation cannot take part in elections, but what is in fact being argued here is that if ETA considers a given electoral group favourable to its project, the latter can be subject to a ban due to this alone. Furthermore, the appeal adds a determining ideological element in order to establish the link, as according to the State Lawyer, the candidature publicly defines itself as being “from the Basque pro-independence left”. In other words, it comes from the pro-independence and left-wing Basque sociological spectrum, which was never a secret because, to date, it is a legitimate political section of society.
The appeal was sent to the special court known as the Sala 61 (a special court within the Supreme Court with jurisdiction in cases dealing with the validity of political parties according to the Law of Political Parties), in charge of “proceedings to declare political parties illegal and thereby, to declare their disbandment”. This is the same proceeding as the one followed to outlaw Batasuna, HB and EH, as well as to prevent AuB and many local platforms from standing in regional and local elections. The Supreme Court, in a decision dated 21 May 2004, considered that “the activity of outlawed and disbanded political parties may not continue in the future, even under other “legal draping”, categorically stating that the same conclusion to ban all activity would be arrived at as often as the transmission or taking on board, through whichever legal formulae, of the same functional content in an identical or similar distribution of duties with the terrorist group ETA is detected”. It continues to justify this reasoning due to the HZ candidates having taken part in other candidatures and deciding to declare the list “not conforming to the law and to annul the proclamation”.
The reply to appeal Nº 3293/2004 before the Constitutional Court was similar. However, a new element was introduced: condemnation of terrorist actions. Literally, and in a contradictory loop, “whilst expressions of support or rejection, cannot be demanded, by principle, of any citizen, as they must in any case spring from their freedom of speech; in a democratic society, it is perfectly acceptable to expect […] an unequivocal declaration of distance, rejection and condemnation of everything represented by a criminal organisation and its political instruments, from an electoral group […] as soon as a suspicion of connivance with terror looms over it”. In other words, a declaration cannot be demanded, but if it does not take place, at least in whichever terms the courts and the Spanish powers consider appropriate, that omission is “the minimum demand to make of those who wish to use the benefits given by the system the criminals wish to subvert”. Nevertheless, this can hardly be justified, because the main candidate, María Jesús Fullaondo, stated she condemned “all forms of violence that occur in the Basque political context” in the Basque regional Television (EITB) programme “Políticamente Incorrecto”. It would seem this statement is not enough for the high Court. All in all, the Constitutional Court dismissed the appeal due to the silence of the candidature promoters about a circumstance –violent action by a non-state agent- which did not occur during the entire election campaign.
Nevertheless, there are several unanswered points in the decisions by both the high courts as well as several interpretations that clearly violate political principles of the UN Universal Declaration of Human Rights and the European Convention of Human Rights and its protocols. In principle, there are several procedural issues related to questions about the jurisdiction of the special court in the Supreme Court, the summary nature and speed of the procedure and the physical distance between the courts and the geographic space where the candidature was registered. In addition, a formal issue should be taken into account, this time related to the Constitutional Court itself, according to which, “political parties and electoral groups are not equivalent; they are not even comparable”. Continuity cannot be understood if there are different categories and methods of working.
However, let us concentrate on the specific political rights and public freedoms violated in these proceedings.
This observatory has previously stated its position on the law that is the basis for these proceedings: law 6/2002 of Political Parties, which I Amnesty International’s words includes “vague, indeterminate, broad, extensive […] expressions, abstract concepts, which are difficult to assess legally and which may infringe the right to ideological freedom, freedom of speech, of association and of participation in public business”. Additionally this legislation would also violate the principles of legality and legal security, the principle of proportionality, retroactive application of punitive legislation and an extraordinarily rigid and arbitrarily determined legal procedure.
More specifically, the ban on the HZ candidature is an interference in the exercise of the right to freedom of expression. This interference affects both the physical persons who are candidates, and the candidature itself, which jointly exert the right to communicate information and ideas through their participation in political debate, in electoral debate. But it also constitutes an obstacle to citizens’ freedom of choice and a direct attack on society’s right to freely express opinions and freely choose its representatives before the institutions. This is one of the most serious attacks on the foundations of political democracy itself. The application of these criteria forbids, in a general and absolute manner, the possibility of these “soiled” candidates taking part in elections per secula seculorum, and in fact automatically becomes a reason for total ineligibility, which affects this case and any other future candidature that includes the affected. This can only be deemed a situation of total ideological “apartheid” in which a section of society has no way to exercise its right to active or passive suffrage.
This process is also a clear example of connivance of the judiciary power with the government’s political interests and priorities, once again proving the complete lack of independence between these two powers.