Preamble

I 

Law 54/1978 on Political Parties, a pre-constitutional law and therefore brief in articles and content, fundamentally established a simple formation procedure in the framework of the freedom of political parties, an objective which, on the other hand, was highly relevant in the foundational time in which the Law was passed. All the other provisions which currently comprise the legal status of political parties in Spain derive from that established in the Constitution and laws which, like the Parliamentary Regulations and the Electoral Law, lay down the function and essential role of political parties in our democratic system, as well as from later legislative reforms like those contained in the Penal Code as regards the illegality of certain associations or those related to the funding of political parties, combined with the intensive interpretative work of the Judiciary and the Constitutional Court.

Today, nearly twenty-five years after the approval of that Law on Political Parties, which continues to be in force, the inadequacies of an incomplete and fragmentary legal status of political parties have become evident in a mature and firmly consolidated democracy, in which the  important role and constitutional relevance of political parties has not ceased to increase. Therefore, a reform is currently needed for several important reasons.

 First, to clearly and systematically reflect the experience gathered in these past years. 

Secondly, to renew provisions anchored on the priority concerns of the past, which are inadequate and insufficient to regulate the new realities of the present. Particularly in view of the vigour with which society currently complements the action of public institutions and opens new channels for participating or relating with them through instruments which, as in the case of associations, foundations or political parties, are being the subject of the respective legislative modernisation. 

On another front, although political parties are not constitutional bodies but association-based private entities, they are nonetheless an essential part of the constitutional architecture; they perform functions of primary constitutional relevance and hold a second characteristic which the doctrine tends to summarise with reiterated references to their constitutional relevance and institutional guarantee conferred by the Constitution. From both points of view, these current times call for the strengthening and improvement of the legal status of political parties, with a more defined, guarantee-based and complete system. If this is applicable to associations, it should be even more so to political associations, whose aim is to unite convictions and efforts in order to steer the democratic direction of public issues, contribute towards the operation of public institutions and prompt changes and improvements as a result of the exercise of political power. But also because political parties are essential instruments of the action of the State, in an advanced and demanding State based on the rule of law such as ours, which places limits and establishes guarantees and controls on all subjects, no matter how relevant they are in the constitutional structure. It could even be said that the greater a subject's prominence and function in the system, the greater the interest of a State based on the rule of law in improving its legal framework.

Alongside the above, in our case, there is general agreement on the deficiency of the current legislation in establishing the constitutional requirements for the democratic organisation and operation of political parties as well as an action procedure subject to the Constitution and the laws, both in terms of understanding the democratic principles and constitutional values to be observed in their internal organisation and external activities, and in everything affecting the procedures for making them effective. 

This deficiency now calls for a renewed effort to improve the provisions in force. The objective is to ensure the operation of the democratic system and the fundamental freedoms of citizens, preventing a political party from repeatedly and seriously attempting against that democratic system of freedoms, from justifying racism and xenophobia or politically supporting violence and the activities of terrorist groups. Particularly bearing in mind that, owing to terrorism activities, it is essential to clearly identify and differentiate organisations that defend and promote their ideas and programmes, no matter what they may be, including those which seek to revise the institutional framework, by scrupulously respecting the democratic methods and principles, from others which base their political action on complicity with violence, terror, discrimination, exclusion and violation of rights and freedoms.  

For such purposes, a judicial procedure is established for banning a political party on the grounds of giving real and effective political support to violence or terrorism, which is different from the judicial procedure established in the Penal Code for dissolving illegal associations on the grounds described in its articles 515 and 520. 

II 

To implement these objectives,  the current Organic Law on Political Parties, which develops essential provisions contained in articles 1, 6, 22 and 23 of our Constitution, includes thirteen articles grouped in four chapters, and it is rounded off with three additional provisions -which include the reform of two articles of Organic Law 5/1985 of 19 June, on the General Electoral System, and article 61 of Organic Law 6/1985 of 1 July, on the Judiciary-, a transitional provision, a repealing provision and two final provisions. 

III 

Chapter I establishes the principle of freedom in its three aspects of positive freedom to form, positive freedom to join  and negative freedom to belong or participate, and improves the procedures for forming a political party, completing the currently existing provisions, clarifying a number of doubts and overcoming several voids. The Law therefore does not introduce large modifications of substance in this section, respecting the principle of minimum intervention derived from the Constitution itself.

 The registration of the founding charter and the statutes in the Register of Political Parties gives   legal status to a political party, makes public its formation and statutes, binds the public authorities, and is a guarantee to third parties with dealings with the political party and its members. Said registration must be carried out by the person in charge of the Register within an established and brief period, after which the registration is deemed made.

Among the most salient introductions, it is worth highlighting the restriction on promoters of political parties established in article 2, applicable to persons who have committed specific crimes, as well as the prohibitions regarding the names of  political parties contained in section 1 of article 3, the responsibility of promoters established  in section 1 of article 4, the provision of a procedure for rectifying formal defects, and the suspension of the registration period in the circumstances described in article 5.

 This last article maintains the provision already contained in the previous Law, which lays down that evidence of criminal unlawfulness by a political party at the time of formation and registration in the Register may lead to a declaration of illegality by a criminal court judge, filed by the Public Prosecutor's Office after receiving a notification by the Ministry of the Interior, and therefore the   inadmissibility of the registration. 

IV

The biggest changes in the Law are contained in chapter II, from which, as the logical corollary, the new provisions of chapter III are derived.

Chapter II lays down the basic criteria for guaranteeing the constitutional mandate which establishes that the organisation, operation and activity of political parties must be democratic and adapted to that established in the Constitution and the laws, performing, as described in article 9, «the functions constitutionally conferred on political parties in a democratic manner and with utmost respect for pluralism».

 On the one hand, with articles 7 and 8, this Organic Law seeks to combine respect for the organisation and functional capacity of political parties through their statutes with several essential requirements to ensure the implementation of democratic principles in their internal organisation and operation. The aim is, first of all, to address the rights of members, but also seeking to «ensure the effective fulfilment of the functions constitutionally and legally conferred on political parties and, secondly, to contribute towards ensuring the democratic functioning of the State» (Constitutional Court Sentence 56/1995 of 6 March).

 From this double perspective, the Law envisages an assembly body of a general participative nature, responsible for making the most important decisions in the life of a political party; the free and secret vote, as the ordinary channel for filling management posts; the democratic control of such management posts; certain rights considered basic in any associative setting, to be enjoyed equally, such as the right to participate in elections and be electable in the bodies, and to information on activities, the financial situation and on the persons who make up the management bodies; as well as a number of basic rules regarding the operation and system of the meetings of the collegiate bodies.  

Article 9 endeavours to ensure political party respect for democratic principles and human rights. To do this, in view of the generic wording of the Law hereby repealed, this Organic Law establishes a detailed list of the types of misconduct which most notoriously infringe these principles, on the basis of two fundamental principles worth a brief mention.

The Law elects, first of all, to contrast the democratic nature of a political party and its respect for the constitutional values not on the basis of  the ideas or aims proclaimed by the party, but its activity as a whole. In this manner, the only aims explicitly vetoed are those deemed to be criminally unlawful.

It is well known that this is not the only choice offered by comparative law models. The need to defend democracy from certain odious aims and methods, to preserve its constituting clauses and the fundamental aspects of the rule of law, the obligation of public authorities to ensure respect for the basic rights of citizens, or the consideration of political parties as subjects obliged to perform specific constitutional functions, for whose purpose they are given a privileged status, have led some legislations to categorically lay down a strict duty of observance, establish an even greater adherence to the constitutional order and, moreover,  claim a positive duty to play an active role in defending and teaching  democracy. Duties which, when infringed, exclude political parties from the legal and democratic systems.

However, in contrast with other legislations, this Law begins by considering that any project or objective is compatible with the constitution, provided that it is not defended through an activity that breaches the democratic principles or the fundamental rights of citizens.

As mentioned in the statement of motives of Organic Law 7/2000 of 22 December, it is clearly not a question of prohibiting the defence of ideas or doctrines, no matter how far removed from the constitutional framework, even if they put it in question.

We could therefore conclude, without prejudice to other models, that this Law holds a balanced position, combining with extreme prudence the freedom inherent in the maximum degree of pluralism with respect for human rights and protection of democracy.

This approach is confirmed through the second principle taken into consideration, that of avoiding illegalisation for isolated misconduct, once again except of a criminal nature, requiring instead repeated or joined actions which unequivocally show a track record of breakdown of democracy and offence against the constitutional values, the democratic method and the rights of citizens.

This is addressed in paragraphs a), b) and c), section 2, article 9, clearly establishing the boundary between organisations which defend their ideas and programmes, no matter what they may be, scrupulously respecting the democratic methods and principles, and others which base their political action on complicity with terror, violence, violation of the rights of citizens or the democratic method and principles.

V

Having established the duty of political parties to respect the democratic principles and constitutional values, and outlined the evidentiary elements which establish when a political party has breached those principles and values and therefore must be declared illegal, chapter III of the Law establishes the existing legal safeguards for defending the rights and constitutional principles against the actions of political parties. Obviously, the starting point is the one established in the Constitution: only the judicial authority is competent to control the illegality of their actions or to decree, in the face of repeated and serious violations, the dissolution or suspension of the political party concerned.

 It is well known that case law has already clarified the cases where access to the civil jurisdiction is appropriate, in connection with the law suit intensions derived from the private transactions of political parties or filed by their members in connection with their internal operations, and the cases where the competent jurisdiction is the contentious-administrative, concerning issues arising from administrative procedures derived from the Law. In the same way, the Penal Code and the Law on Criminal Procedure nowadays clarify the cases where the dissolution or suspension of a political party through the criminal jurisdiction is appropriate and the procedure to follow to ensure that such an important decision is implemented with all the guarantees.

 Consequently, the main change introduced here is the regulation of the competent jurisdiction and procedure for the judicial dissolution of a political party on the grounds of failing to respect the democratic principles and human rights, a procedure already announced in the Law hereby repealed, although never developed.

 The Organic Law solves this serious situation with the general criteria that prevails in the constitutional framework of the structure and operation of political parties, i.e., stating that it can only be done through a judicial resolution. As explained in Constitutional Court Sentence No. 3/1981 of 2 February, «the Constitution, and also ordinary legislation, solely entrusts the Judiciary with the function of issuing a judgment on the legality of a political party. Turning to the Judiciary, which can decree, as mentioned above, the provisional suspension or, as a last resort, the dissolution of a political party, is precisely the means held by the State to defend itself when attacked by a political party which, through the content of its statutes or its actions, regardless of the first, attempts against its security».

 The text establishes that, given the constitutional importance and relevance of political parties and, moreover, the decisions affecting the declaration of their illegality or justifying their dissolution,   the Special Chamber of the Supreme Court, provided for in article 61 of the Organic Law on the Judiciary, is the competent body to dissolve a political party for serious misconduct which contravenes the Constitution. As explained in a ruling of 9 July 1999 by this very Chamber «for its composition, this Special Chamber symbolises the Full Bench of the Supreme Court. It is, in a manner of speaking, a "reduced" full bench, given that its composition includes the President of the Supreme Court and all the Chambers listed in article 55 of the Organic Law on the Judiciary which, as a whole, make up the Supreme Court, through their respective Presidents and Senior Judges, the longest serving and the most recent. The purpose of highlighting this here is to emphasise that, due to its significant composition, the Chamber mentioned in article 61 of the Organic Law on the Judiciary holds a "status" of supremacy in relation to ordinary Chambers, in terms of the definition of its competencies and those of ordinary Chambers...».

 For said Chamber to examine whether the operation and activities of a political party adhere to the democratic principles, a specific and preferential judicial process, comprised of a single proceeding, is established.  The process may only be prompted by the Public Prosecutor's Office and the Government, on their own initiative or at the request of the Chamber of Deputies or the Senate. Said procedure is configured in a classical manner, on the basis of documentation, with a series of conventional steps (allegations, evidence, new allegations and sentence) which, owing to the time frames and structure, combine the principles of legal certainty and the right of defence with the principle of promptness, endeavouring to ensure that the uncertainty which may arise as a result of the initiation of the judicial process is not aggravated by a drawn-out process.

The sentence passed by the Special Chamber may not be appealed, without prejudice, as the case may be, to an appeal to the Constitutional Court on grounds of violation of rights and liberties, and the sentence will be enforceable as soon as notified.

Lastly, article 12 gives details of the effects of the judicial dissolution of a political party. After the sentence is notified, all the activities of the political party concerned will be immediately stopped and deemed fraudulent. Consequently, the formation of any organisation which continues or succeeds a party declared illegal and dissolved will not be accepted. The dissolution will also mean the initiation of a liquidation of assets process, and the resulting net balance will be assigned to initiatives of social or humanitarian interest. 

VI

The regulation contained in this Organic Law is rounded off with referrals to other legal regulations on issues related to the funding of political parties (chapter IV) and with several complementary provisions which, among other things, enable to adapt to the new Law the provisions of the Organic Law on the Judiciary (first additional provision, so that the Special Chamber of the Supreme Court can hear these cases), and the Organic Law on the General Electoral System (second additional provision, to lay down that establishing groups of voters during an electoral period  to succeed, de facto, a dissolved or suspended political party is deemed fraudulent and, therefore, inadmissible).

On the subject of funding, it is worth highlighting that the referral is made to the Law on the Funding of Political Parties, but also to the accreditation and responsibilities system established in Organic Law 2/1982 of 12 May, on the Court of Auditors, and in Law 7/1988 of 5 April, on the Operation of the Court of Auditors.

Lastly, with regard to the competence of the Special Chamber, the Law carries the guarantee that this is the competent  Chamber to hear and resolve cases of fraud, either on the basis of its condition of Sentencing Court (sections 2 and 3 of article 12),  the express call hereby introduced into the electoral legislation to resolve appeals against the establishment or not of groups of voters (second additional provision), or that established in section 2 of the sole transitional provision, regarding the succession of political parties to avoid the effects of this Law.