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  • Centro de Investigaciones en Derechos Humanos 6:39 pm on August 27, 2012 Permalink | Reply
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    Extreme right and xenophobic parties in Spain, Part II 

    By Daria Terradez Salom, CIDH Pro Igual

    This is Part II of the article analyzing Spanish extreme right and xenophobic parties. It continues the Pro Igual series of blogs exploring the connection between the extreme right movement and hate crimes in Spain. 

    Party pluralism is a barometer of the political health of a state, as well as a fundamental pillar of the democracy. The very first article of the Spanish Constitution affirms “political pluralism” as one of the “superior values” of the Spanish political system. That said, it is unfortunate that under the guise of freedom of expression and that same political pluralism, the forces are surging that propagate racism, xenophobia and exaggerated protection of the “Spanishness” in face of supposed invasion of foreigners “threatening” national stability, social tradition and culture in Spain. This analysis sheds light on the apparent discord between the legal existence of hate-mongering parties and organizations, on the one hand, and the democratic system and the rule of law, on the other. We seek to explain, by analyzing the existing legal framework, how such political parties manage to legally exist, take part in elections and enjoy participation in local organs of the government.

    We must stress that the present analysis by no means pretends to play down the importance freedom of expression, association or political pluralism. However, we do believe that from the point of view of active democracy there must be reasonable limits on the abuse of fundamental rights, for the sake of democracy itself.

    Constitution

    In addition to Article 1 of the 1978 Spanish Constitution listing political pluralism among the “supreme values,” Article 6 states: “Political parties express democratic pluralism, assist in the formulation and manifestation of the popular will, and are a basic instrument for political participation. Their creation and the exercise of their activity are free within the observance of the Constitution and the laws.” (“Emphasis added.)

    The Constitution envisions a rather flexible regulatory framework for political parties. But if apparently there are minimal limits on the creation of political parties to guarantee political pluralism, the constitutional limit acquires even greater importance. Freedom to form political parties is bound to respect the supreme norms, and one of such norms is respect for fundamental rights, including nondiscrimination established in Article 14 of the Constitution, as well as human dignity outlined in Article 10, paragraph 1, as a basis for public order and social peace. Article 6 is also closely related to Article 22, which establishes the fundamental right to association, and to Article 16, which guarantees freedom of ideology and beliefs.

    Political parties play an enormously important role in the democratic life of the state. They are a sign of political pluralism and of respect for the fundamental freedoms of ideology and association. They are not random formations, but are communities of like-minded individuals, who can take part in the elections and represent the wishes of their voters. That means they can end up in the state´s representative organs, which obligates them to firmly respect the Constitution and the legal norms regulating their activities.

    Law 54/1978 on Political Parties

    The Law 54/1978, presently superseded by a newer legislation of 2002, was the first norm regulating the creation of political parties in Spain. It was promulgated in 1978, just a few days before the Constitution. The 1978 Law established essentially an absolute freedom for establishing political parties, derived from the fundamental right to association. At that time Spain was trying to shake off forty years of the dictatorship and it was crucial to maximally facilitate the creation of political parties to ensure the uttermost political pluralism and representation which up to that point simply had not existed.

    The Law 54/1978 did not establish a rigid procedure for registering parties. In practice, the only limit on the party establishment and activities was a clear intent to commit a criminal offense or to fail to respect democratic norms, nothing more. When the registration documentation was delivered to the Ministry of Interior, the latter examined the papers and if there were no indications that the entity planned to commit a criminal offense, the party was registered. If such indications were noted, the Interior forwarded the papers to the Prosecutor who re-examined them. Only if the Prosecutor also found the intent to commit illegal activities, could the party be denied registration or dissolved.

    Such initially very liberal framework resulted in proliferation of political parties, including political organizations with extreme nationalist tendencies, for example, the Basque parties demanding political independence. We must also add that, thanks to the Law 21/1976 on the Right to Political Association, Falange Española de las JONS (established in 1976) – the only legal party under the Franco regime – managed to join the democratic playfield, despite having foundations clearly contrary to the Constitutional principles that would be adopted two years later.

    The Spanish political panorama since 1978 till the derogation of the Law 54/1978 has been developing in giant steps, given an incredible ease with which new parties could be registered. It was necessary for the young democracy, which Spain was at the time, to catch up, by guaranteeing political pluralism and stressing the importance of fundamental political rights, such as freedom of expression, ideology and association.

    Organic Law 6/2002 on Political Parties

    After 25 years of the original law on political parties, there was a broad consensus that the time was ripe for a new legislation. The two main reasons, expressed in the Preamble of the new Law 6/2002 on Political Parties (hereafter, “LOPP”), were as follows. Besides being pre-constitutional, the 1978 Law was simply too brief and by then has fulfilled its objective of “establishing a simple procedure for registering political parties.” Sufficient time has passed and experience has been accumulated on functioning political parties, so as to systematize and adapt this experience to the more mature constitutional system.

    The second reason for changing the law was much more critical. It was recognition that the old norm lacked “concrete constitutional limits for the establishment and functioning of parties and for their conformity with the Constitution and the laws.” Obviously, the old law could not demand conformity with the Constitution which at that moment had not yet been adopted. And that reason alone necessitated the adoption of the new norm.

    Noting passing, this omission in the old law is responsible for allowing the registration of the PxC and Democracia Nacional (both established prior to the 2002 LOPP), parties known for their racist and xenophobic tenor. The new LOPP aimed to prevent that: “the goal is to guarantee the democratic system and fundamental liberties of the citizens and to prevent that parties, in a continued and aggravated manner, attack this democratic order based on liberties, justify racism and xenophobia or support violence and terrorist activities.”

    However, notwithstanding some convincing reasoning in the Preamble, not all of the intended constitutional boundaries entered into the text of the new LOPP. For example:

    • In the Preamble to the new LOPP, the legislator reasoned that some other (foreign) legal systems when regulating fundamental rights have “formulated much more categorically a duty of compliance and stricter subjection to the constitutional order, and moreover a positive duty to realize the active defense and pedagogy of democracy, withfailure to fulfill this duty leading to the exclusion from the legal order and democratic system.” Such “pedagogy of democracy” is not part of the constitutional doctrine in Spain where any “project or objective is deemed compatible with the Constitution so long as it does not involve activities violating democratic principles or fundamental rights of citizens.”Thus, the pedagogical aspect of democracy has been omitted from the text of the new LOPP.
    • While putting emphasis on political pluralism, the legislator seemed to forget that Article 1 of the Constitution also listed liberty, justice and equality as “superior values” of the social and democratic rule-of-law state. If we add to this the concept of human dignity, advanced in Article 10 as the basis for a political order and social peace, and affirmed by the Spanish Constitutional Tribunal (hereafter, “CT”) as a logical and ontological prius for the existence and fulfillment of all other human rights (Sentencia del Tribunal Constitucional 53/1985), then parties infringing on human dignity should not be allowed to exist. Instead, the legislator added that this norm “is placed in equilibrium, carefully mediating between the high degree of freedom inherent in political pluralism and respect for the human rights and democracy.” This argument was trying to explain the reasons for excessive laxness of the law, but still left the door open to promoting pretty much “any project,” as stated in the Preamble, without articulating further limits.
    • The legislator expressed the intent to prevent that “a political party… attack the democratic order based on liberties, justify racism and xenophobia or support violence and terrorist activities.” However, the new law overlooked a small and seemingly insignificant detail. The cited paragraph of the Preamble mentions as separate activities, on the one hand, “justification of racism and xenophobia,” and on the other hand, “political support for terrorist activities,” separated by “or.” This “or” disappeared from Article 9 of the LOPP being substituted by “and.” The result of this substitution is that in order to be deemed illegal, parties or political organizations need to do both, otherwise, by default, they could continue their activities.

    While the new LOPP stipulated that “political parties could operate freely,” it did set out the boundaries on their activities: “They must respect constitutional values expressed in democratic principles and human rights.” The LOPP further outlined the motives for outlawing and potentially dissolving a political party:

    A political party shall be deemed illegal when its activities violate democratic principles, especially when it attempts to undermine or destroy the order of liberties or make impossible or eliminate the democratic system by one of the following acts, committed repeatedly and maliciously:

    a) Violate systematically fundamental rights and freedoms, by promoting, justifying or glorifying attempts on life or on integrity of persons based on ideology, religion or beliefs, nationality, race, gender or sexual orientation.

    One is left to wonder how a party like España 2000 could have passed through the filter of this norm and was legally registered, given its racist and xenophobic attitude it does not even try to conceal either in the founding documents or in public declarations of its official representatives.

    There are two more grounds for dissolution. However, this is where the legislator substituted “or” with “and” (please see above), thus requiring both clauses to be satisfied in order to ban or dissolve a party. So the apparent intention of the legislator here was not so much to ensure the existence of parties that respect the Constitution and fundamental human rights, as to outlaw political formations that supported ETA (a Basque terrorist organization).

    We do not mean to criticize this legislative intent, but wish to warn of the danger of political organizations which even though do not officially resort to violence still attack fundamental rights and the very Constitution by their discourse and attitudes. The law, in principle, should have prevented that. It is not healthy for our democracy that parties, openly propagating the inferiority of other races and calling for denying to specific groups of people some of the most fundamental human rights, enjoy the constitutional freedom to act in this manner.

    Constitutional jurisprudence

    In one of the earlier cases before the CT, the case of Violeta Friedman, concerning the revisionism and denial of the Holocaust by Leon Degrelle, a Nazi fugitive resident in Spain, the Court de facto recognized limits of the freedom of expression in the face of human dignity. It reasoned that in regards of human dignity (Article 10), there is an obligation to respect it, and “in so far as public bodies and citizens are subject to the Constitution and the rest of the legal order, this has to be demanded also of political parties.”

    However, in the case of Pedro Varela Geiss – Librería Europa (Sentencia del Tribunal Constitucional 235/2007), the CT issued a confusing decision. On the one hand, Varela´ conviction for denying the Holocaust was confirmed. On the other hand, the CT ruled unconstitutional the provisions of the Penal Code that restricted activities of political parties. The CT rejected the argument of the prosecution that the Spanish system does not follow the model of “militant democracy” and thus fundamental rights cannot be restricted even if used for unconstitutional purposes. This, by the way, was the same reasoning found in the Preamble to the 2002 LOPP. The CT did affirm that there are limits to Article 20.1 of the Constitution regarding freedom of expression when expression is “vilifying, racist or humiliating” to human dignity. The reason for declaring the provision of the Penal Code unconstitutional was its interference with the exercise of the right to freedom of expression itself.

    In the more recent case, which concerned the dissolution of a political party (Fundamento jurídico 16, Sentence 5/2004, of 16 January 2004: dissolution and banning of the Herri batasuna), it was re-affirmed in respect of political parties that those are “a medium designed for expressing pluralism and to which they serve as expression; consequently, they find in freedom of ideology the basis necessary for defining their political identity, a genuine reference for those whom they offer to represent in the process of forming the popular will.” The CT added that “restricting the liberty to create political parties amounts to trampling the rights for whose exercise … this liberty has been conceived in the first place.”

    The party in question was dissolved and banned. Yet the case served to reiterate the tremendous importance attached in the Spanish juridical system to providing protection to political parties and organizations, given their role of the guarantor of other fundamental rights and freedoms.

    Conclusions

    Analysis of Spanish legal norms and constitutional jurisprudence on the matters of political parties and freedom of speech leads to various conclusions.

    One of the conclusions is that the Spanish constitutional system seems to waver when it comes to condemning racist and xenophobic expressions and attitudes of political parties, which do no more than contaminate the quality of our rule-of-law state. Even though such parties are in minority, they still enjoy representation in the state organs of power, with all the consequences this entails.

    Another conclusion is that we cannot ignore the latent danger posed for democracy by political parties and organizations propagating racism and xenophobia. With the ongoing economic crisis, their scape-goating of immigration becomes much more extensive and socially acceptable than would be appropriate and desirable in our democratic system.

    The final conclusion is that freedom of expression should not be a catchall where every ideology could be lumped together. Human dignity is a natural and necessary limit on free speech. The Spanish state ought to adopt a more pro-active approach of “militant democracy” and constitutional pedagogy to prevent that political pluralism and freedom of expression are swayed by anti-democratic discourse.

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  • Centro de Investigaciones en Derechos Humanos 3:06 pm on May 10, 2012 Permalink | Reply
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    No basta con solo indignarse 

    Demetrio Gomez, CIDH Pro Igual

    Siempre me he mostrado cercano al movimiento 15M. Pero no soy de los que cambian el escapulario por otros dogmas, esa acción es para mi igual de dañina. La conciencia crítica está para algo, para no ser borregos, para ser independientes y pensantes, como mucho acepto los axiomas matemáticos, esos que nos dicen que las paralelas no se cruzan en el infinito, siempre me ha parecido gracioso lo de comparar los axiomas matemáticos con los autos de fe.

    En fin, esta mañana empece a leer el artículo que os enlazo y no deja de confirmar muchas de las cuestiones que yo he planteado en infinidad de ocasiones: NO BASTA SOLO CON INDIGNARSE.

    Coincido plenamente con las ideas expuestas por el catedrático Fermín Bouza en este artículo y coinciden con muchas de mis críticas hacia el movimiento, y por favor, que nadie se rasgue las vestiduras que no hablamos de lo divino, sagrado e incuestionable sino de un movimiento y su desarrollo.

    Me ha preocupado desde el inicio que esto sea una miscelanea extraña que no se define ni de izquierdas ni de derechas, hueco que han sabido aprovechar sobretodo los grupos neofascistas que se definen a si mismos como “ni de izquierdas ni de derechas, somos la voz del pueblo” así lo expresan tanto Casa Pound como otros movimientos parecidos, sin ir más lejos la ultraderecha racista y antigitana de la Rep. Checa. Me ha inquietado por que ya hemos visto como estos grupos neofascistas aprovechan la menor rendija para contaminar movimientos, organizaciones… que no nos olvidemos de sus “marcas blancas” camufladas bajo organizaciones de defensa animal y ecologista o sus infiltraciones como las de la CGT que saltó a la prensa en agosto de 2010.

    Me asusta, cuando paseo entre los perfiles nazis y fascistas del Facebook, observar como algunos de ellos llevan colocado en su perfil una fotografía o un slogan alusorio al 15M.

    Eso lo he visto reflejado en el “todo vale”, en el uso indiscriminado de noticias provenientes de medios fascistas como “Alerta Digital” y similares que han tenido su espacio y su medio de difusión en los foros de este movimiento porque hacían crítica al, en aquel momento, gobierno socialista de Zapatero usando las armas propias de la ultraderecha, la difamación, la mentira y el populismo, con eso no quiero decir que el anterior gobierno fuera poco criticable o lo hiciera muy bien, quiero que se entienda mi postura con claridad.

    La carencia de referentes políticos y de marco han creado situaciones tan paradójicas como que en alguna asamblea un nazi se haya plantado para soltar su arenga y el grupo se haya quedado bloqueado discutiendo si era propio de la libertad de expresión permitir o no su intervención… Señores/as hablamos de ODIO, discursos que invitan al GENOCIDIO y la EXCLUSIÓN, como podemos ser tan lerdos/as.

    No se puede organizar un movimiento con seriedad y respuestas desde la presunción y la ingenuidad. Antes del 15M ya eramos muchos los que escribíamos y actuábamos en múltiples formas contra el sistema, el movimiento antisistema y creativo no nació, no se inventó, con el 15M, perder esos referentes es dejar al movimiento en pañales y carente de referencias.

    A pesar de esto, seguiré apoyando este movimiento porque es algo que surge desde el pueblo, es un revulsivo contra esta sociedad cruel y deshumanizada, porque están los sueños de otras muchas personas con deseos saludables de cambio y los esfuerzos de muchas personas que ponen lo mejor de si… pero NO TODO VALE.

     
  • Centro de Investigaciones en Derechos Humanos 6:14 pm on July 31, 2011 Permalink | Reply
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    When hate kills 

    By Alphia Abdikeeva, CIDH Pro Igual

    In the first place, sincere condolences to the victims and families who endured or lost their loved ones in the massacre in Norway. Then comes reflection on this heinous crime of hate.

    There has been considerable coverage of the terror attack itself and of the perpetrator, some coverage bigoted (especially before any facts came to life), some thoughtful and balanced. In a nutshell: an extreme right-wing Christian terrorist took out his hatred of immigrants and especially Muslims on scores of innocent people. The response of the Norwegian government has been noble: so far, it has pledged to respond to terror with more democracy, not with hunting ´em down. But how long and how effectively can democracy withstand attacks on democracy itself?

    Breivik, Wilders, LePen, Griffin, and Co. enjoy talking about “Western” values which are presumably “threatened” by immigration (read: Muslims). But their demagogy is ridiculously plain to see when they call to stop that mythical “threat” with as undemocratic means as could be. Banning mosques and minarets means not only restricting freedom of religion but doing so in a discriminatory fashion; outlawing headscarves and dictating personal dress codes amounts to violating not just religious expression but privacy and personal integrity; deporting foreigners is often breaching not only freedom of movement but elementary, non-derrogable due process. And now merciless mass killing.

    Even though not every right-wing leader has explicitly called for violence, the fact of the matter is that terrorism as a weapon against immigration in general and against Muslims in particular has been in place for some time now, undeniably inspired by the toxic populist rhetoric. Just last Autumn a “lone gunmen” terrorized the immigrant community in a Swedish town of Malmo. Muslim mosques had been burned in the Netherlands just a few years before that. Daily verbal if not physical harassment against ordinary Muslims in Europe is as common as it is impunible. But these things do not get reported and speculated about as much as alleged attacks by “Islamic terrorists”, who are about as representatives of Muslims as breiviks are of Norwegians.

    Hate kills, we have just witnessed that, yet again. Moreover, there are concerns that the massacre in Norway can be a template for others. And while the intention of responding to terror with more democracy is respectable, it is useful to remember that even democracy has its limits, if it is to survive. The Constitution of the Federal Republic of Germany — a country that knows these things first hand — stipulates: “Whoever abuses the (basic rights) in order to combat the free democratic basic order shall forfeit these basic rights.” Norway, and the rest of Europe where right-wing terrorism has taken hold, must resist to protect their democratic values. That means restricting rights of breiviks and especially people in the position of power who influence breiviks with their hate speech (Dutch courts that last month let Wilders off the hook should take note). Hate does not just speak, it kills.

     
  • Centro de Investigaciones en Derechos Humanos 8:50 am on June 23, 2011 Permalink | Reply
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    Freedom of intolerance 

    Alphia Abdikeeva, CIDH Pro Igual

    As was to be expected, Geert Wilders was acquitted of hate speech against Muslims. The media reported that the case tested limits of freedom of speech in a “traditionally liberal” country. But could it be that the case merely tested the limits of intolerance?

    Indeed, The Netherlands has been traditionally considered a “liberal” country. But perhaps we should specify what we mean by “liberal”, as it may mean different things to different people. For some, the US democrats are “liberals”; for others, staunch free marketeers are “liberals”. Some assume that not killing opposition members is a sign of “liberalism”; yet others might mean something completely different. Let´s face it: for many people outside of The Netherlands, its “liberalism” essentially equals the red lights district plus permissive soft drugs policies (a propos, something that the Wilders´ party has vowed to do away with).

    But if you belong to the first, second, third or other generation of non-European immigrants, especially if you look Muslim (whatever that might mean to different people), and especially if you insist on doing “Muslim things” (whatever that might mean to different people), then you are entitled to have your doubts about the Dutch “liberalism.” The Volendam girl expelled from a school for wearing a headscarf is certainly entitled to have her doubts.

    Many critics point out that freedom of expression, including religious expression, is applied inconsistently across Europe; The Netherlands is no exception. For example, Muslim women are not permitted to wear headscarves in a number of countries, even though nobody has any issues with the nuns´ outfits. Holocaust denial is outlawed in several countries, but speech that offends Muslims´ religious feelings is permitted (remember the Danish cartoons?) And now hate speech against Muslims as a group has also been upheld in the Dutch court.

    In my opinion, there is formidable consistency of Dutch, or for that matter European, attitudes towards Muslims. This consistency is manifested in two clear patterns. Pattern I: religious expression of Muslims is curbed. Pattern II: anti-Muslim expression is protected. To put it bluntly, intolerance against Muslims is not intolerance, it is freedom.

    So, it appears that the Netherlands has just got itself a new right: freedom of intolerance. But this is hardly an achievement to be proud of.

     
    • Illegal Immigration Statistics 8:33 pm on July 20, 2011 Permalink | Reply

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  • Centro de Investigaciones en Derechos Humanos 4:43 pm on August 28, 2010 Permalink | Reply
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    Wikileaks controversy 

    Alphia Abdikeeva, CIDH Pro Igual

    Recently Wikileaks found itself embroiled in a fresh controversy. Some of the US critics claim that Wikileaks only picks on the US and other western democracies. Their opponents reason that Wikileaks is only as good as its sources of information. But even if there is certain preference for exposing the US and western countries — something that so far has not been truly demonstrated by critics — wouldn´t such preference be justified?

    It is a fact that the USA and most of the western powers are real democracies, where most human rights are truly respected. Criticism of the authorities there is well tolerated and in fact Wikileaks would not be conceivable in many other countries.

    It is also a fact that, say, Turkmenistan or Thailand are not real democracies, and many if not most human rights there are not at all respected. Criticism of the authorities there is not tolerated, and critics might find themselves in jail pretty quickly for doing a fraction of what Wikileaks considers its mission.

    But let´s consider implications of the actions, especially beyond their borders, of the US versus, say, Turkmenistan. As a consequence of actions of the US in Iraq, Afghanistan, and earlier in Serbia/Kosovo, thousands of people were killed and many more were displaced or made destitute. (By now, probably, many more people died from the US force, than in hands of the regimes the US sought to topple.) To those dead and to their families, it does not matter that the US is one of the freest countries in the world. It only matters that in their eyes the US forces murdered their loved ones.

    And how many people were killed by unfree Turkmenistan beyond its borders? Zero, correct. The fact that the government of Turkmenistan may be not very nice towards its own people may not speak in its favor, equally as the fact that people of Turkmenistan continue to put up with such government may not speak in their favor, either.

    But the implications for the rest of the world are clear: there is much more potential damage and life loss inflicted by the free and democratic US than by unfree and undemocratic Turkmenistan. And this potential to inflict damage warrants that extra bit of attention from Wikileaks and the like watchdogs.

    In the free speech terminology, it is in the public interest to subject to scrutiny someone in a position of authority. The US certainly is and regards itself to be in a position of considerable international authority. As such, it should be flattered, not angered by the interest its actions generate.

     
  • Centro de Investigaciones en Derechos Humanos 2:45 pm on March 24, 2010 Permalink | Reply
    Tags: , , Greece, , ,   

    National pride revisited 

    Alphia Abdikeeva, CIDH ProIgual

    My long-time colleague Panayote Dimitras of the Greek Helsinki Monitor is being harassed for the alleged slandering of Greece. A right-wing MP in a parliamentary question accused Panayote of insulting and defaming Greece “wherever he goes.” For the record: Greek Helsinki Monitor is a human rights organisation, which by virtue of its mission uncovers human rights violations in Greece and elsewhere. Ostensibly, improving human rights in a country should make it a better place. So, why the fuss?

    The answer to this lies in a misplaced sense of “national pride.” This is not a specifically Greek phenomenon. There are stories from around the world about people being persecuted for “insulting,” or “slandering,” or “libelling,” or “defaming” — in plain terms, for criticising their countries. Criticism there is not received well, whether it is about shop service  or about their political system. Most typically people who have courage to speak up in such environment happen to be human rights activists; they are therefore sworn “enemies” of “patriots.”

    I empathise with Panayote and really hope it ends well. “National pride” and “patriotism” can at times reach epic proportions — and disastrous consequences. Still, it is rather sad that Greek and other “patriots” behave in this way. Suppose, you have a friend and a problem. Would you rather have your friend lie to you that you don´t have a problem, until it gets out of control, or would you rather hear the truth and solve the problem?

    Genuine pride in one´s country does not mean shutting up critics. It means working to make things better in that country, including its record in human rights. That sometimes requires learning things about your country that might not be flattering, but that is hardly the fault of a messenger.

     
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