17/Jan/05. AnotherDem claims shutdown the Spanish governmental website on the European constitutional Treaty
[Versión en español]
In the 17th of January of 2005 the democrat group "Another Democracy Is Possible" (AnotherDem) submitted an appeal before the National Electoral Body claiming to shutdown the website of the Spanish Government on the popular consultation to be hold in the 20th of February. This is the reiteration of other appeal submitted in the 4th January that was rejected by the electoral authorities due to merely the referendum had not been officially called.
Contents of the governmental website are flagrantly biased for the ratification of the constitutional treaty; explicit -and even literal- references are plentiful for the vote "Yes", as described in the following appeal
Taking in account the website is made up using public funds, its unfair nature degrades conditions of equality of the consultation. But besides the website is part of the institutional campaign of who are calling for the plebiscite, that provokes its propaganda becomes into an electoral crime.
The democrat group AnotherDem has claimed for protection from the electoral authorities expecting they act with conclusiveness, avoiding the democratic legitimacy of the consultative referendum suffers from an irreversible degradation.
In this sense, it is worthy of report the rest of the institutional campaign of the Government shows the same unfair contents and biased nature, what could lead the next 20th of February to a plebiscite without democratic legitimacy
19/Jan/2005. Complete Answer of the National Electoral Body for the appeal repeated in the 17th January: The National Electoral Body bans the slogan of the Government and other elements
National Electoral Body: "The campaign that can be carried out by the Government in the present process of referendum has to be bound to inform objectively on the contents of the Treaty to establish a Constitution for Europe, removing all kind of value judgment or slogan used until now in TV, web site and other means, for example 'We the first with Europe' and statements that could, direct or indirectly, influence the position or attitude of the citizens."
11/Jan/2005. Complete answer of the National Electoral Body for the first submission in the 4th January:
National Electoral Body: "Facts of propaganda happened before the approval of the Royal Decree calling for a referendum are bounded by the limits related with the electoral campaign stated by the in force electoral legislation"
Appeal before National Electoral Body (17/Jan/2005)
The General Representantive of the Electoral Coalition Another Democracy Is Possible, invoking the Art.19.1h of the Organic Law 5/85 of the General Electoral System (LOREG), and the Art.2 of the Organic Law 4/2001 regulating the Petition Right, LORDP, sets out the following
In 15th January the Royal Decree 5/2005 has been published calling for a consultative referendum with the answer "Do you approve the Treaty establishing a Constitution for Europe?"
. In its Art.3 the scope of the institutional campaign
of the referendum is determined:
Art.3, RD 5/2005. "[...] the General Administration of the State will carry out a campaign with institutional nature to inform citizens on the date to happen the referendum, the procedure to vote and requirements and steps of postal vote [...]"
Also according to the RD 5/2005, the referendum is called in the terms regulated by the Art.92 of the Spanish Constitution and developed by the Organic Law 2/1980 on regulation of the different kinds of referendum (LOR) in its Art.6.
The Foreign Ministry opened a website named "The European Constitution", accesible from Internet with the address http://www.constitucioneuropea.es
Taking in account the public communication of the Foreign Ministry, of date 27th/Dec/2004, which is attached as Documental Annex I, the mentioned website belongs to an informative campaign
on the mentioned Treaty, a campaign that the Foreign Minister and another organs of the Government, coordinated by its Vice-Presidency, intend to carry out during the electoral process called by the RD 5/2005. Within the mentioned public communication, a quite clear will to split the contents of the "institutional campaign"
defined by the Art.50.1 LOREG and the "informative campaign"
Neither the Organic law 5/85 of the General Electoral System (LOREG), nor the Organic Law 2/1980 of the regulations of the several kinds of referendum regulate the existence of the informative campaigns. However, the governmental informative campaign is already being carried out during the electoral process called by the RD 5/2005, and also copes with contents essentially related to the answer of the referendum. This concurrence of dates and contents of the referendum implies that the Instruction of 13/1999 of the National Electoral Body is applicable on the campaign as it is managed by a public power.
In opinnion of this representantive, the contents of the mentioned website are a flagrant infringement of the conditions of fairness stated by the mentioned Instruction, as demostrated by the objective facts and data described below.
The own public communication of the Foreign Ministry declares explicitly that
"[...] The campaign is centered around two fundamental messages. Firstly, the European Constitution is a significant step of the European integration process, which has provoked countless advantages to Spain for the last 18 years [...]"
this, in the opinion of this representative, commits direct in the infringement stated by the Art.3 of the mentioned Instruction:
Instruction 13/Sep/1999 JEC. Art.3 In any case, the mentioned campaigns in the points a) and b) of the second article cannot contain references to achivements reached during the mandate of the public power which manages the campaign [...]
In the opinion of this representative, to carry out an institutional informative campaign on the countless achivements and advantages obtained by Spain, during the last 18 years, by the European integration process being a significat step of it the European Constitution, which is answered to be approved by voters, is undoubtly an example of ilegitime electoral propaganda in the terms described by the mentioned Instruction.
The own public communication of the Foreign Ministry states explicitly:
"[...] The campaign is centered around two fundamental messages. Secondly, the European commitment of Spain is a state commitment and is beyond of the difference among political parties [...]"
In this second fundamental message, the Government states that during the informative campaign, coincident with the electoral process, will try to spread the existence of a state commitment outside to dialectics, political opinion and plurality that are institutionalized in the political parties.
Seemingly, there is no dialectic room for who pretend to defend the inapropiateness to approve the European Constitution, or more simply for who defend approval or not of the Constitution has no effect to the actula status and commitment of Spain. In opinion of this representative the campaign, supposely informative, of the Government plans to divert the subject of the debate related to the "Do you approve the Treaty establishing a Constitution for Europe?"
, planning a plebiscitary debate centered subliminaly on the question: "European Union, Yes or No?"
Following is submitted a list of the elements, statements and texts spread by the Foreign Ministry in the website "The European Constitution"
, which, in opinion of this representative, are a clear inducement for the positive vote to the ratification:
Slogan of the website: "We the first with Europe"
, alluding the fact that likely the Spanish referendum will be the first of a serie in other member states of the European Union.
In opinnion of this representative, the slogan induces to the preconception of an eventual negative vote would lead to a setback of the European integration process. The semantic load of the slogan becomes more evident compared with another slogan as "We the first in Europe", which would be more typical of the institutional neutrality required by electoral legislation and doctrine.
Besides, there is a widespread use of the official embleme and flag of the European Union, an use promoting subliminaly the idea of the referendum tries to ratify or not the European Union or similar mental constructions; something that seemingly is one of the fundamental objectives of the governmental campaign, always according to the mentioned public communication of 27th/dec/2004.
Regarding of the selected slogan, "We the first with Europe"
, if there were any doubt about the institutional meaning that the Government wants to assign to it, it is possible to review the page with the same title, accesssible in the mentioned website:
We the first with Europe
Europe watches us
- The dictatorship makes Spaniards reach later than our European neighbours a democratic Constitution (1978) and also arrives later at the European construction. Now Spain recovers its key role in Europe and proofs it by being the first country ratifying by referendum the European Constitution.
- All Europe will be waiting for Spain the 20th February of 2005. The Spanish referendum will be the first great acid test of the ratification process of the European Constitution. Our vote could influence in the public opinnion of our partners in the European.
- Spaniards want to send a clear message of Europeanism and position ourselves in the vanguard of the European construction.
Spain goes well with Europe, that is the widest space of democracy, freedom and respect of the human rights in the World
- Our country has achieved an outstanding development since its membership into the EU in 1986. For these 18 years, we have consolidated our democracy, gone through an unprecedented economical growth and improved our social and territorial cohesion.
- Spaniards are able to move around, study, work and reside freely in any country of an Europe without borders.
- Within the European Union, the social rights of the Spaniards have become reinforced.
- Thanks to the EU, thousand of Spanish youngers participate in exchange programmes, as the university programme Erasmus, which was awarded this year with the Asturias' Prince Prize.
- We shared with our partners and neighbours the single currency, the euro, a powerful tool of economical and financial stability. The euro simplifies travels and business through Europe.
- Thanks to the economical contribution of the EU, Spain has improved its roads, its agriculture and its universities, amonh many other things. The influence of the EU has reached almost every field of the Spanish live.
- The Spanish soldiers, together with the ones of our partners, devote themselves to prevent conflicts and represent to the EU in many campaigns of humanitarian aid.
The European Union is, summing up, the widest space of democracy, freedom, respect of the human rights and defence of the international legality in the World.
With the European Constitution Spaniards win more democracy, more freedom and more solidarity
- With the Constitution, the European will have, for first time, a common Chart of Fundamental Rights which collects and strengthens the model of society elected by us, with a market economy subordinated to the respect of the social values
- The Constitution which reduces and simplifies the great number of existing European treaties, adds the leading role of the citizens to the States' role.
- With the Constitution, the EU wants to reduce even more the differences of the development grades of their members and set up a space fairer and carer.
- The Constitution reinforces the social rights being enjoyed in Spain, among them the information right, the collective negotiations, protection against unjustified dismissal, fair labour condtions and benefits of the Social Security.
- The Constitution boosts democracy to increase the competence of the European Parliament. And plans citizens of the Union and their representative associations could maintain an open and transparent dialogue with the European institutions. The Union recognizes and promotes the role of the social partners.
- With the Constitution, the European Union of 25 members advances quickly to biuld a firm political community talking with a single voice before the rest of the World by means of a common Foreign Ministry. Therefore Europe consolidates its stake for the peace, the multilateralism, the peaceful resolution of conflicts and cooperation for the development, and reaffirms the use of force could be only seen as the last resource to defend the human rights and the international legality.
- The Constitution commits to the members of the Union to mobilize to help any member State suffering from a natural disaster or victim of a terrorist attack.
- The Constitution provides Union with the required tools for a quick culmination of the European space of freedom, security and justice. Europe will be able to fight with more efficience against terrorism, the organized crime and the ilegal immingration.
- The sustainable development, in its triple dimension --economical, social and environmental--, is confirmed, thanks to the Constitution, as one of the essential aims of the European Union.
As easily could be appreciated, the general tone of this web page is glaringly unfair, for instance, when a polemical list of advantages is headed with th sentence "with the European Constitution Spaniards win more democracy, more freedom and more solidarity". But it is possible even to highlight some sentences which are almost a explicit petition to the vote for the ratification; for instance when in its campaign the Foreign Ministry states that Europe watches us [..] Spaniards want to send a clear message of Europeanism and position ourselves in the vanguard of the European construction".
To that same effect, the enumeration of the historical achivements headed by the sentence "Spain goes well with Europe" seems more typical of marketing businnes than the campaign of institutional publicity of a body calling for a referendum, and in the opinion of this representative affects seriously the Art.3 of the Instruction 13/Sep/1999 of the National Electoral Body.
Presentation of the campaign by the Foreigns Minister himself, accesible from the main page:
"[...] What role an European Constitution plays in these areas? The Constitution contains the tools and harmonizing procedures in Europe to carry out common politics in all those levels where action of member States is enough to reach the required objectives. Besides, the Constitution defines a democratic political space where our the citizens are the main figures. The Constitution is the tool to allow the Union throwing towards the future, a futuro which could be not other than the Citizens's Europe, the constitutional Europe. [...]"
The short presentation of the Foreigns Minister is described by itself; undoubtly it is more typical of an electoral meeting for the ratification than of an institutional message informing about the call for referendum and its contents.
Statement of the President of Government published in this campaign of institutional publicity:
"The sign of the Treaty of the European Constitution in Rome means the first step in the path of building of the political unity of our continent. The Constitution establishes the foundations of what could be a great power orientes towards peace, territorial and social cohesion, multilateralsm, cooperation and defence of the human rights and the international legality. Besides, it is a powerful tool establishing rules of common play for all European citizens. And, also, the guarantee of the great achivements existing until in Europa, from the democratic and social strengthening to the economical development, will be thrown towards the future.
Our country, Spain, that arrived later at the democratic Constitution and the European construction, takes now the opportunity to show that it is, unambiguous and majoritarianly, with Europe. I think firmly the European Constitution surpases, due to its capital importance, the political establishment and concerns all citizens. That is why, the Government will call for a referendum to be hold the next 20th February to allow Spaniards having their say, by means of popular vote, about their apporavl and rejection of the constitutional text.
That means Spain will be the first country to ratify by referendum the European Constitution. Therefore, our vote will have a continental dimension and influence the public opinnion in other twenty four countries. Now Europe watchs us; we are going to be a reference and an example; but I am certain of the Spaniards are going to send a clear emssage of Europeanism, and position ourselves in the vanguard of the European construction"
In opinion of this representative, the presidential statements in this institutional website lack the required fairness, in the same terms of the above presentation of the Foreigns Minister.
But besides in this case, there is a direct and explicit allusion to vote for the ratification, when in the institutional website transcribes the words of the President of the Government: "Our country [...] takes now the opportunity to show that it is, unambiguous and majoritarianly, with Europe. [...] That means Spain will be the first country to ratify by referendum the European Constitution. [...] Spaniards are going to send a clear emssage of Europeanism, and position ourselves in the vanguard of the European construction"
The section of News and Focus is an informative compendium where could be verified the vast majority of its contents are selected to induce to vote yes in the eventual referendum.
On the one hand, this section includes the answers of every Minister for the question "What European Constitution contributes?" It is easily verifiable that all opinnions of the Ministers -expressed in this website of institutional information- have a clear tone of induction for the vote Yes. But again, it is possible to identify some explicit references to the vote Yes, in all and every statements of the Ministers, published in this institutional website:
- Vicepresident of Government and Minister of Economy and Treasury: "[...] I think this is fundamental for a globalized society, and to that effect it has to opt clearly for the European construction and the Constitution [...]"
- Minister of Labor and Social Affairs: "Europe has been quite positive for Spain. [...] All of above is to be consolidated with the new European Constitution. [...]"
- Minister of Health and Consumption: "In a few months we the Spaniards are going to vote the project of the European Constitution, a text useful for Europe goes on moving forward [...]"
- Minister of Industry, Commerce and Tourist: "[...] The Constitution is, definitively, not only our political future but also our economical bet, in other words, the guarantee of the welfare and life quality of the Europeans in the futuro"
- Minister of Agriculture, Fishing and Food: "[...] Seemingly the futuro will also depend on the position of all and every one of countries of the European Union. That is why I think it is absolutely justified and of course quite justified in our sector that we have to say yes to the European Union. I thinks in these moments the rest of countries are watching to Spain as the first country to held a consultation of the new Constitution. And this Constitution is a first-rate tool to achieve and strength into the European construction.[...]"
- Minister of Defense: "[...] As a global threat that terrorism is for all countries, it seems mandatory to globalize a response. The response in security and defence. The European Constitution is a definitive and efficient tool for such an aim, [...] Come on. This is the will that be evident, nobody raise objection about it, [...]"
- Minister of Internal Affairs: "[...] I want to tell you the Spanish Government estimates the European Constitution is to be indispensable for the future building of Europe as political and judirical reality, because it will offer us a great political and normative framework from where, and by means of the legal development, continue building Europa in a decisive way. [...] And this is the importance of citizens of the Union support the European Constitution as done by the governments of the European Union. [...]"
The section of News and Focus develops also a serie of headlines exhibiting the same nature and contents biased by the unfairness than previously described. Following is shown a list of headlines that numerically are the majority of the total of present headlines. In this case it also easy to find out explicit references, and literal too, to the votes Yes to the referendum:
- Football and European Constitution: "Football players of the first and second division will promote this month the European Constituion from the filed. [...] After highlighting the opportunity to make the most of 'the capability of movilization of the football to make close to the citizenship the importance of the European Constitution [...]"
- The Andalusian Parliament passes an initiative for the European Constitution: "The Andalusian Parliament has passed an initiative that shows the support of the Plenum to the European Constitution as reference and juridic framework of coexistence within the European Union. The initiative summons the Andalusians to ratify it by their vote in the referendum called for the next 20th February [...]"
- Victory of the "Yes" in the internal consultation of the French Socialist Party: "[...] The former Head of the French State and president of the Convention that works out the European Constitution, Valery Giscard d'Esteing pointed up the victory of the "Yes" is a 'great step towards the ratification of the text'. [...]"
- The world of the creation for the European Constitution: "[...] At the end of the act a support statement was read for the ratification of the European Constitution [...]"
- Trade union UGT supports the European Constitution: "The trade union UGT supports 'clear and firmly' the Yes for the European Constitution [...] The syndical leader highlights that polls reflect already figures over a 40% of votes for the European Constitution [...]"
- Manifesto Moving forward with the European Constitution: "We are convinced that the process of European construction has to go on and the referendum for we are called to ratify the European Constitution is an unique happening where the Spaniards should feel involved: Not move forward now with the Constitution would be a drawing back and a great lost chance"
- The world of flamenco supports the "Yes" for the European Constitution: "[...] the director of the academy of the same name, Joaquín San Juan, encourages Spaniards to vote Yes in the referendum [...] 'The flamenco musicians are owing to Europe, our music had and has a very good acceptance, and then, we support this Constitution that we think it will be useful to set up a best world where conflicts could be solved talking and without violence', Sanjuan explains [...]"
- The Executive Board of the PNV party pronounces in favour of the Yes for the referendum: "The Executive Board of the PNV party pronounces during its weekly meeting of 23rd November in favour of the Yes for the referendum to be held in February on the Constitutional Treaty [...]"
- We the first with Europe. Page analyzed detailed in the item A)
The above list includes even literal references, rather than explicit; being, in opinnion of this representative, a clear proof of the general nature of the complete website of the Foreigns Ministry.
History of the Constitution, accesible from the main page of the website: Generally speaking the page avoids any reference which could provoke suspicions on lacks of the "constituent process" of the so named European Constitution. Particularly, it would be worth highlighting the follow description of the European Convention:
"The European Convention, that began its works in 28th February of 2002 and finish them in 18th July of 2003, has want to be a significant step, qualitatively speaking, in the process of the European construction, as far as being an instrument which looked for cutting down the monopoly exercised by the governments of the State members when they comes to debate and agree possible reforms of the constituent texts of the Union.
In 18th July of 2003 the President of the Convention submited to the in charge President of the European Council the Draft of the Treaty establishing a Constitution for Europe"
However, being the European Convention the institution that elaborated officially the text of the treaty, by means of above description the instituional page of the Foreigns Ministry hides to citizens fundamental information as the non-elected nature of the Convention, or the procedure used to appoint its members, or the fact of its members did not vote the texts rather they were submited to the Presidium who eventually has written the text, or the generated text has not been binding to the Intergovernmental Conference, being in fact modified at discretion.
Due to mere practical considerations, above description is not exhaustive, but it is clearly representative. The website of the European Constitution of the Foreigns Ministry has quite a lot of other elements that, in opinion of this representative, are quite clearly unfair.
It is no possible to identify regions of the website where we could state that concentrate the unfair contents or the explicit references, sometime literal references, for the vote Yes. Therefore, in opinnion of this representative, the whole of the present website is globally qualified by described nature and contents.
To access to this website, the Foreigns Ministry, has booked for its exclusive use the Internet domain constitucioneuropea.es
A designation so specific than, when it is accessed from wherever in the World, it is logical to infer to be before the reference Spanish website of the European Constitution. An exclusiveness, in opinnion of this representative, no proper for what is, or should be, the institutional campaign of information of the referendum. There is another domains more proper to its real nature as constitucioneuropea.gob.es, that finishes with "gob.es" meaning "Spanish government"..
By Resolution of the General Director of the Public Management Entity "Red.es" in 26th October of 2004 the Internet domain constitucioneuropea.es has been booked exclusively for the State Secretary for European Issues, attached to the Foreigns Ministry. The Public Management Entity "Red.es", attached to the Ministry of Industry, Tourist and Commerce, is the competent authority to manage the Registry of domain names of Internet ending with country code ".es".
It is strikingly obvious the lack of critical references against the treaty, even in its minimal expression. As Documental Annex II of this appeal, a critical analysis of the mentioned treaty is attached, on to the effects to be able to estimate the variety of lacking arguments in an institutional campaign of publicity plenty of opinnions and contents for the popular ratification of the treaty.
This representative states his respect to the enjoyment of the freedoms protected by the Art.20 of the Spanish Constitution by the posts with responsabilities in the Government, and generally speaking in all public powers. But when this enjoyment leads so clearly to influence the direction of the vote, these persons have to enjoy them in the terms of the Art.50.2 of the LOREG.
This representative states also his respect to the enjoyment of the freedoms protected by the Art.20 of the Spanish Constitution by the own institutions, and particularly the Government and its Foreign Ministry. But he estimate such an enjoyment has quite wide channels, both the own institutional speakers and the fluent access to the communication media. In any case, such freedoms cannot degrade the responsabilities related to the institutional campaign of publicity regulated by the electoral legislation and doctrine.
*COMPETENCE.*- By virtue of the Art. 8.1 of the LOREG,
LOREG, Art.8.1. The Electoral Administration is to guarantee in the terms of present Law the clearness and objectivity of the electoral process and the equality principle.
According to repeated doctrine of the National Electoral Body (JEC), the facts of propaganda happened after the approval of the Royal Decree of callging for referendum are subjected to the limits related to the campaign stated by the in force electoral legislation, being the Electorales Bodies competent before reports of propaganda acts or electoral publicity out of the term of electoral campaign (JEC Settlements 17/Apr/79, 17/May/89 y 24/May/89). And also according to the doctrine of the JEC, the Electoral Bodies could resolve the stoppage of acts and journals happening before the start of the electoral campaign when they have a nature of electoral propaganda (Settlement of 11/May/87), and could address directors of the communication media to avoid including in its programme planning that infringe the criteria of electoral propaganda (Settlement 21/May/87).
According to the doctrine of the JEC, criterium allowing to distinguish between electoral propaganda and the legitime exercise of rights protected by the Art.20 of the Spanish Constitution is the execution of activities or public statements are oriented to gain or condition the vote (Settlement 12/Apr/91, 9/Apr/99, 20/Apr. In opinion of this representative, the contents and nature of the website of the Foreigns Ministry are clearly oriented to the gain or condition the vote.
*LEGITIMACY.*- The Electoral Coalition Another Democracy Is Possible was legally consttituted during the past general elections in March of 2004, and according to dooctrine of the JEC endures until the end of mandate of the representative body for which election was constituted (Seettlement of 5/Feb/79, 30/Jan/80, 30/May/94 nd 13/Mar/97). Despite of no having the requirements of the Art.11.2 of the LOR, it is legitimated to submit complaints before the Electoral Administration (Setttlemeent JEC 17/Feb/86, 20/Feb/86 and 6/Mar/86).
The present document is framed by the Art.19.1h de la LOREG, and the Art.2 of the Orgnaic Law 4/20001 regulating the Petition Right, LORDP. This representative wants this document exhibits the formal nature of petition, in the terms regulated by the LORDP, to the effects of enjoying the jurisdictional protection offered by its Art.12.
*FIRST.*- In opinnion of this repressentative, the above facts and the own public communication of the Foreigns Ministry (Documental Annex I) prove the website of the Foreigns Ministry -accesible from the Internet address http://www.constitucioneuropea.es-
is part of an institutional informative campaign coincident in the time and contents with the electoral process called by the RD 5/2005. And, also in opinion of this representative, there are obvious proofs of the contents and nature of the website are glaring oriented to the gain or condition the vote Yes.
Therefore this representative estimates there is being a flagrant infrigement of the subject and limits of an institutional informative campaign in the terms defined by the Art.1 of the Instruction 13/Sep/1999 of the National Electoral Body (JEC), and also the exceptions stated by its Art.2 are no applicable:
Instruction 13/Sep/1999 JEC 1. The Electoral Administration is in charge to guarantee the principles of objectivity and transparence of the electoral process and the principle of equality among the electoral participants.
In order to make effective such principles and regardless of the resolutions of this National Electoral Body for each particular case, taking in account the specific circunstances, public powers cannot carry out any campaign during the electoral term offensive to the mentioned principles. [...]
More specifically, the above facts proves the contents and nature of the website of the Foreigns Ministry affects serioulsy the principles of objectivity and equality among the electoral participants, being these the positions of the vote Yes or No for the question of the referendum.
On the other side, the Government declares to have designing its institutional informative campaign around the mensaje that the European Constitution "is a significant step of the European integration process, which has provoked countless advantages to Spain for the last 18 years"
; this during the electoral process when the voters have to answer if approve or not such a constitution.
Well, the above description of facts proves the website of the Foreigns Ministry has converted in realities such plans. Contents are maintained and updated daily according to the guideline to enumarate the mentioned advantages, which in opinion of this representative is a infringement of the Art.3 of the Instruction of 13/Sep/1999 of the JEC:
Instruction 13/Sep/1999 JEC Art.3. In any case, the mentioned campaigns in the sections a) and b) of the Article 2 cannot have references to the achivements of the public power managing the campaign [...]
A specific example, among other, of materialization of the guideline to promote achivements is the section "Spain goes well with Europe"
in the page "We the first with Europe"
which has been above transcribed.
Existence of guidelines so concrete as the fundamental messages stated as objectives by the governmental campaign (see Documental Annex II), allows inferring that contents and nature of the website are not due to mistakes from the technical or maintain crew. Rather, it is possible to infer such crew will go on obeying such concrete guidelines during the complete electoral campaign and until the referendum date. In opinion of this representative, it is likely the infringement of the principles protected by the Instruction 13/Sep/1999 will going on happenning in the future.
Also in opinnion of this representative, the contents and nature of the website of the institutional campaign of publicity infriges celarly the General Law 34/1988 of Publicity (LGP). That is to say, it infringes not only the unfairness required by the Art. 50.1 of the LOREG but also it happens in the terms qualified by the LGP as illicit publicity.
Despite of this representative is aware of the LGP does not point any competence for the National Electoral Body, no administration can be outside from the precise juridical definition of the illicit publicity staed by this Law.
On the other side, spite of articles of the LGP is mainly dedicated to the so named commercial publicity, the mentioned law includes explicitly in its Art. 1 every public juridical body and there is no reservation or excluding mention of the institutional publicity. In the opinnion of this representative, and by virtue of equality before law protected by the Art. 14 of the Spanish Constitution, that means activities of publicity of the Foreigns Minister or the Government could not arbitrarily excluded, being also complied with the legal precepts of the LGP, that in its General Dispositions of its Art. 1 states:
1 Publicity wil be regulated by this Law and the special norms regulating certain publicity activities.
2 To the effectos of this Law, it is to mean for
Publicity: All form of communication carried out by a ... public juridical body ..., during the exercise of a ... profesional activity, to promote direct or indirectly the contracting of ... rights and duties.
Target people: Persons who is generated the publicitary message to, or who are in its coverage.
Summing up, it would be hard to understand the reasons why the electoral institutional publicity could no bounded to address -as a minimum- the criteria required to the rest of the society. That is why it make sense the Ley 16/2003 on the institutional publicity activity of the Public Admnistration of Aragon declares itself -in its Preamble- to be framed within the LGP.
The Title II of the LGP describes precisely the concept of illicit publicity in the Articles 3 to 7, and its different variants of deceptive, unfair and subliminal publicity. Taking in account the political nature of the electoral institutional publicity, an illicit objective would be to become into electoral propaganda, that according the doctrine of the National Electoral Body is the execution of activities or public statements oriented to gain o condition the vote (Settlement 12/Apr/91, 9/Apr/99, 20/Apr/99 and 10/Dec/99).
An significant amount of the contents of the website of the Foreigns Ministry are, in opinnion of this representative, what the LGP identifies as deceptive illicit publicity
LGP, Art.4. It is deceptive the publicity that by means of some way, including its presentation, induces or could induce its target people into error, being ... able to be damaging to a competitor.
It is also deceptive publicity that keeps silence about fundamental data of the goods, activities or services when the mentioned omission induces its target people into error.
Fundamental critical data -extracted to the Documental Annex II used as reference- that the Foreigns Ministry keeps silence among so numerous arguments for, could be for instance the fact of the ratification of the so named European Constitution leads to an institutional framework where the European Parliament is the unique elected institution, or implausiblely it is a parliament lacking the legislative initiative, or it lacks independence in the process of legislative elaboration that is shared in clear inferiority with the so named Council of Ministers, or it does not participate in the "constitutional" amendment. Fundamental data, undoubtly, taking in account we are talking about the unique elected institution and they are covered up in this institutional campaign of publicity. Being enough this example, among many others, to explain why this representative asks for protection of the electoral authorities before what he describes as illicit deceptive publicity, beyond what could be seen as a mere offence of unfairness.
But there is also reasons to estimate to be before a case of illicit unfair publicity in the terms described by the LGP:
LGP, Art.6a. It is unfair publicity that by means of its contents, presentation procedure or spreading provokes the discredit, denigration or underrating, direct or indirect, of a person, company or its products, services or activities.
The absolute lack of critical content against the treaty in the mentioned website, among the obvious amount of arguments for the popular ratification of the treaty, cannot induce in the target people other feeling except of discredit, denigration or underrating of the critical positions
Regarding of the widespread use of the official embleme and flag of the European Union in the informative campaign, that in opinion of this representative promotes subliminaly the idea of the referendum is to ratify or not the European Union, is possible to find a direct analogy in the Spanish electoral legislation, because likely the legislator wants to avoid this subliminal construction when banning to use electoraly the embleme or flag of Spain by the Art.46.5 LOREG. The regional electoral legislation state similar regulations regarding of their emblemes and flags. It makes sense the Settlement JEC 29/May/87 ratified in the electoral scope the regulations of the Art.8 of the Law 39/1981 regarding of use of the Spanish flag.
The above juridical foundations try to argue the opinnion of this representaitve about the more formal aspects: both the infringement of the Instruction of 13/Sep/1999 and the nature of illicit publicity. But, in the opinion of this representative the contents, presentation and nature of the website associated to the governmental informative campaign infringe mainly constitutional terms particularly relevant:
- The principle of interdiction of the arbitrariness of the public power stated by the Art 9.3 of the Spanish Constitution.
- The statement of the Art.103.1 ordering Public Administration to serve objectively the general interest.
The jurisprudence of the Supreme Court took the opportunity to develop, in relation to the institutional publicity, the mentioned constitutional precepts setting up the following principles:
- Firstly, difference of treatment gains the juridical category of discrimination, when thst difference appears without objective basement (Sentence of Supreme Court, 8th July 1987). The difference of treatment between the positions for and against the treaty are so obviously evident, and lacking amy kind of objective reasons, that the mentioned Sentence seems to be directly applicable to qualify juridically as discriminatory the website of the Foreigns Ministry. A juridical qualification of discrimination that leads to the clear infringement of the principles of objectivity and equality protected by the Instruction 13/Sep/1999, and to formalize the arbitrariness of the public powers bounded by the Art. 9.3 of the Spanish Constitution.
- Secondly, the Spanish Constitution bans some discriminatory attitude due to opinnion positions, except for justified, reasonable and fair reasons (Senetence of Supreme Court, 2nd July 1994). This representative is unable to imagine what non spurious reasons could justified the obvious discrimination that the Foreigns Ministry establishs between the arguments for and against the popular ratification of the treaty.
It cannot not be accepted, either of above cases, the publishing of this website associated to the informative campaign of the Government, is serving objectively the general interest, rather it seems to be in service to the particular electoral interes of persons with present responsabilities in the Government.
By virtue of the above description,
REQUIRES BEFORE THIS NATIONAL ELECTORAL BODY
, to admit this writing on behalf of the electoral coalition Another Democracy Is Possible, and according to the previous statements,
Taking in account the coincidence of time and contents of the electoral process called by the RD 5/2005 with the informative campaign being carried out by the Government, and as its nature of public power, to issue a Resolution declaring illicit as camppaign guidelines, in the terms described by the Instruction 13/Sep/1999, the two fundamental messages being the center of the mentioned campaign:
- "The European Constitution is a significant step of the European integration process, which has provoked countless advantages to Spain for the last 18 years."
- "The European commitment of Spain is a state commitment and is beyond of the difference among political parties."
As preventing measurement, taking in account the records deducible from the nature and contents of the mentioned website of the Foreign Ministry and more particularly the fundamental messages of the mentioned informative campaign, to require Government -becomes public- the schedule (contents, calendar and budgets) elaborated for the mentioned informative campaign.
taking in account the nature and contents of the mentioned website of the Foreigns Minister, and the existence of concrete guidelines as fundamental messages of the mentioned informative campaign, to issue Resolution ordering to the Foreign Ministry the temporal stoppage of this website -by a way to avoid from being accesible- while such guidelines are not modified and while its nature, contents and general tone are not suitable for the the principles of objectivity and equality protected by the Instruction 13/Sep/1999 for the campaigns of the public power carried out during the electoral processes.
As preventing measurement, to make sure fairness during the electoral process of the referendum, to issue Resolution ordering to the Public Management Entity "Red.es", attached to the Ministry of Industry, Tourist and Commerce, that the Internet domain constitucioneuropea.es is not to be usable and accesible until finishing the electoral process of the referendum. And, in any case, the domain allocation assigned to the State Secretary for European Affairs was transformed into the Internet domain constitucioneuropea.gob.es
Taking in account the above arguments, to issue Resolution to ban the public use of the slogan "We the first with Europe"
in the informative campaign of the Government.
Taking in account the above arguments, to issue Resolution to ban the public use of the embleme or flag of the European Union, even artistically modified, in the informative campaigns carried out by the public power.
Signed, the General Representative of the coalition Another Democracy Is Possible,
Madrid, 17th January of 2005
Documental Annex I
Public Communication of the Foreigns Ministry in 27th/December/2004
European Constitution. Informative and institutional campaigns. Referendum 20th February 2005
For the mentioned referendum, and presided by the Vice-Presidence of the Government, a group to set up the informative campaign and institutional campaign has been created.
1. Regarding of the informative campaign, the objective is to informe Spanish society on the achivements of Europe, as well as to inform on the text of the Constitutional Treaty to be hold in the bext 20th February.
The campaign is centered around two fundamental messages. Firstly, the European Constitution is a significant step of the European integration process, which has provoked countless advantages to Spain for the last 18 years. Secondly, the European commitment of Spain is a state commitment and is beyond of the difference among political parties.
Document can be downloaded in:
Documental Annex II http://www.demopunk.net/sp/intern/europe/pcon_euro02_en.html