Hostname: page-component-74656f9884-npj9w Total loading time: 0 Render date: 2026-11-07T12:43:02.734Z Has data issue: false hasContentIssue false
  • English
  • Français

Framing democracy and its opposite: States and banned political parties before the ECtHR

Published online by Cambridge University Press:  28 September 2026

Esra Demir-Gürsel Open the ORCID record for Esra Demir-Gürsel [Opens in a new window]
Esra Demir-Gürsel*
Affiliation:
Centre for Fundamental Rights, Hertie School of Governance , Germany
*
Email: e.guersel@hertie-school.org
Rights & Permissions [Opens in a new window]

Abstract

The European Convention on Human Rights protects both individual rights and the democratic order in state parties. When these two come into conflict, the European Court of Human Rights (the Court) must choose between them. This tension produces an ambivalence in the Court’s reasoning, requiring it to decide what is necessary to safeguard a democratic society: stability or rights and freedoms, cohesion or pluralism. In this article, I approach this ambivalence as a symptom of the fundamental indeterminacy of European human rights law and seek to identify the structural biases that shape the Court’s judgements. To this end, I focus on two relatively old cases: Refah Partisi v Turkey (the Welfare Party) and Herri Batasuna and Batasuna v Spain. By analysing how the Court frames the respondent states as democracies and the dissolved political parties as threats to democracy, I argue that the ambivalence surrounding the conception of democracy in the Court’s case law is symptomatic of the indeterminacy of European human rights law, serving to favour outcomes that help preserve the status quo in Europe. This, in turn, has important implications for the Court’s current failures to timely and rigorously address state parties’ policies and practices that are incompatible with democracy.

Keywords

indeterminacy of European human rights lawliberal democracypolitical Islamterrorismtotalitarianism

Information

Type
Special Issue Article
Information
Global Constitutionalism , First View , pp. 1 - 20
Creative Commons
Creative Common License - CCCreative Common License - BY
This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0), which permits unrestricted re-use, distribution and reproduction, provided the original article is properly cited.
Copyright
© The Author(s), 2026. Published by Cambridge University Press

Introduction

‘Has the case-law of the European Court of Human Rights taken proper notice of the trajectory followed by the Russian Federation?’ asks Judge Pavli in his concurring opinion in Novaya Gazeta and Others v Russia. Footnote 1 He answers in the negative, noting that although its case law itself is an indicator of systematic deterioration of the state of human rights and democracy in Russia, the European Court of Human Rights (ECtHR or the Court) failed to address the situation as a whole, severely restraining its capacity to capture the actual state of democracy in the country.Footnote 2

But why has the ECtHR, whose raison d’être is often explained as the prevention of political trends against human rights and democracy, failed in responding to the rise of authoritarian trends among state parties? Is it because of a lack of resources, as the Court asserts in some of its decisions?Footnote 3 Or is it because it does not have the tools to detect the entrenchment of authoritarianism in state parties in a timely manner? New forms of authoritarianism have triggered discussions as to the difficulty of detecting them.Footnote 4 With respect to the ECtHR, however, it is difficult to speak of a detection problem, as the Court’s case law is itself ‘a sad chronicle of the incremental but systematic shrinking of democratic spaces’, as Judge Pavli puts it.Footnote 5 Nor can it be reduced to a limited capacity problem, as the Court has not efficiently used even the tools at its disposal.Footnote 6

In this article, I seek to understand the ECtHR’s inability to timely and rigorously address authoritarian entrenchment among state parties by concentrating on the ambiguities surrounding the conception of democracy underpinning its case law. To do this, I return to two relatively old political party dissolution cases: Refah Partisi v Turkey (the Welfare Party) and Herri Batasuna and Batasuna v Spain (Batasuna).

The case of Welfare Party concerns the dissolution of an Islamist party that was part of the coalition government at the time of its dissolution by the Turkish Constitutional Court (TCC). Relying on the statements and positions of some party members, the ECtHR framed the Welfare Party as a ‘threat to democracy’ and concluded that its dissolution was justified under Article 11 of the European Convention on Human Rights (ECHR or the Convention).Footnote 7 The Batasuna case concerned the closure of two political parties deemed to be linked to ETA (Euskadi ta Askatasuna), a separatist group in the Basque region of Spain and France classified as a terrorist organisation. In this case, the ECtHR found that certain members of the party covertly supported ETA through their statements, slogans and silences, and deemed this sufficient to establish that the party posed a ‘threat to democracy’ in Spain.Footnote 8

In both cases, we come across an opposition established between the respondent states as ‘democracies’ and the banned political parties as ‘threats to democracy’. They thus provide an opportunity to study not only how democracy but also its contrary is framed in the Court’s jurisprudence. Investigating the opposite of a concept such as democracy is crucial to understanding the very concept itself. As famously suggested by Giovanni Sartori, forming concepts relies on classification, and this makes dichotomies central to how we think about them.Footnote 9 In other words, to construct what a concept is or involves, we need an idea of what it is not or does not involve.

My interest in this article, however, is limited to understanding the Court’s conceptions of democracy and its opposite. To explore how the state parties are constructed as democracies and dissolved political parties as non-democratic threats by the Court, I draw on frame analysis to study how certain facts were selected, assembled and organised, and which others were excluded or downplayed to construct a particular version of reality.Footnote 10 Frame analysis is a particularly useful analytical tool for the purposes of this article, as it orients the research away from questions of truthfulness and falsity toward the framer’s choices, and thus to the framer themselves.Footnote 11 As I am interested in understanding the Court’s conceptions of democracy and its opposite, frame analysis guides the questions I ask in order to uncover the Court’s choices and their reasons. Accordingly, I trace what the Court emphasises and de-emphasises, what it brings to the fore, and what it leaves to the margins or pushes out of the frame.

In what follows, I begin by briefly sketching the ambivalences surrounding the Court’s conception of democracy (section ‘Ambivalences of democracy in the Court’s case law’). I will then turn to the Court’s case law on political party dissolution, which leaves very little room for such ambivalences (section ‘The protection of political parties under the ECHR and its limits’). The Welfare Party and Batasuna cases not only constitute exceptions to this pattern but also provide an opportunity to study how democracy and its opposite are defined by the Court (section ‘Democracies confronting non-democratic threats’). I use this opportunity to explore how the Court frames the state parties as democracies (section ‘Framing state parties as democracies’) and the banned political parties as non-democratic threats (section ‘Oppositional framing of the dissolved political parties’). Building on the analysis of the Court’s framings of the states and political parties in the Welfare Party and Batasuna cases, I define the ambivalence surrounding the Court’s conception of democracy as a symptom of the fundamental indeterminacy of European human rights law and discuss the implications of this for the Court’s failure to timely and rigorously respond to authoritarian entrenchment among state parties (section ‘Ambivalent democracy, the indeterminacy of European human rights law, and some implications for today’).

The argument of the article is as follows: the Court’s judgements in the cases of the Welfare Party and Batasuna frame democracy in opposition to the ‘Others’ of European states, who are likened to past ‘totalitarian’ movements or labelled as ‘terrorists’. This requires the Court to navigate between two different conceptions of democracy. First, with regard to the respondent states, it employs a porous conception of democracy that accommodates non-democratic elements. Second, with regard to the dissolved political parties, it adopts an impermeable conception of democracy that separates democracy from non-democracy in absolute terms. Finally, this differentiated and asymmetrical treatment of the parties to these cases suggests that the ambivalence surrounding the notion of democracy in the Court’s case law is a symptom of the indeterminacy of European human rights law and serves to favour outcomes that help preserve the status quo in Europe.

Ambivalences of democracy in the Court’s case law

According to the ECtHR, democracy is not only ‘a fundamental feature of the European public order’ but also the only political model ‘compatible’ with the ECHR.Footnote 12 In its long-established case law, the Court related democracy to ‘tolerance’, ‘pluralism’ and ‘open-mindedness’, which it defined as the ‘hallmarks of a democratic society’.Footnote 13 In some judgements in relation to freedom of assembly under Article 11, it has also invoked ‘social cohesion’ as a value inherent in a democratic order along with tolerance and pluralism.Footnote 14 According to the Court, social cohesion is only possible through ‘[t]he harmonious interaction of persons and groups with varied identities’.Footnote 15

These four features attributed to a ‘democratic society’ by the ECtHR – namely tolerance, pluralism, open-mindedness and social cohesion – are not only vague but may also conflict with one another. Indeed, the Court’s case law assumes a tension between pluralism and cohesion. In some judgements, for instance, the Court emphasises the need for a ‘cohesive’ and ‘stable pluralism’.Footnote 16 This assumed tension between plurality and cohesion and between individual rights and stability justifies the balancing of rights and public interests in the Court’s case law. In some cases, this may require ‘the fair and proper treatment of minorities’,Footnote 17 while in others, it may serve as a justification for the concessions expected from individuals. As the Court has stated:

Pluralism and democracy are based on a compromise that requires various concessions by individuals or groups of individuals, who must sometimes agree to limit some of the freedoms they enjoy in order to guarantee greater stability of the country as a whole.Footnote 18

As implied in this quote, the Court attributes to the Convention the ability to protect both a democratic order and individual freedoms. However, this means that in every case where the two pull in different directions, the Court must make a choice. This is precisely what creates the ambivalence in the outcomes of the Court’s reasoning in cases where it needs to decide on what is required to protect a democratic society: stability or rights and freedoms, cohesion or pluralism.

Moreover, this ambivalence also extends to the relationship between the individual violation findings of the Court, where it deems a measure not necessary in a democratic society, and the overall state of democracy in that country. In Novaya Gazeta and Others v Russia, Judge Pavli, too, ponders this ambivalence and asks:

In particular, is the necessity clause to be construed as an abstract yardstick, derived from a sort of idealised form of democracy, against which any interference with these fundamental rights is to be judged? Or should the Court also take account of the specific national context – the particular “democratic society” – in which such interference has taken place? Put another way, can an individual form or instance of interference be deemed to have been “necessary in [an abstract] democratic society” if the general democratic credentials of a particular political system, at a particular moment in time, are in serious doubt?Footnote 19

These questions indicate that the Court’s case law on the question of what is necessary in a democratic society is not only shaped by the tensions within a society between the interests of the society as an abstract whole and its smaller parts. It is also shaped by the tensions between the necessities of a particular state party (accepted as constituting ‘a democratic society’) and an ‘abstract democratic society’, which could be understood as European democratic society in the context of the ECHR. It is these tensions that lead the Court to make a choice in each case.

The protection of political parties under the ECHR and its limits

One part of the Court’s case law that leaves little room for the kind of ambivalence described above comprises cases concerning political parties. The fundamental place of democracy within the Convention system and the role attributed to the political parties for its effective functioning provide them with strong protection under Article 11 of the Convention. According to the Court, political parties are ‘essential to the proper functioning of democracy’.Footnote 20 This is explained by the Court with a reference to the role attributed to the state as the ‘ultimate guarantor of pluralism’.Footnote 21 Accordingly, states are under an obligation to hold free elections and create the conditions for the ‘free expression of the opinion of the people in the choice of the legislature’. For this, ‘a plurality of political parties’ representing different views and contributing to the political debate is sine qua non for a democratic society.Footnote 22

In cases concerning political parties, the Court thus requires the strict interpretation of the exceptions set out in Article 11. According to the Court, ‘only convincing and compelling reasons can justify restrictions on such parties’ freedom of association’.Footnote 23 In cases concerning the dissolution of political parties, temporary restrictions on their operationsFootnote 24 or the refusal of their registration,Footnote 25 states are thus, in principle, left with a ‘limited margin of appreciation’.Footnote 26

Moreover, this strong protection also applies to political parties advocating for a change in the constitutional structure of a state.Footnote 27 In a strand of cases against Turkey, the Court held that the mere use of words such as ‘communist’ or ‘socialist’ in their names or drawing attention to the existence of Kurds in the country as a separate people or a minority and defending their right to self-determination in the party programmes or in the statements of a party’s leaders could not constitute legitimate grounds for measures as drastic as the dissolution of entire political parties.Footnote 28

This liberty to advocate for a change in the constitutional order of a state, however, has its limits. The Court has identified two conditions for a political party to pursue ends that seek a change in the legal and constitutional order of a state under the protection of Article 11 of the Convention: ‘firstly, the means used to that end must be legal and democratic; secondly, the change proposed must itself be compatible with fundamental democratic principles’.Footnote 29 In turn, if the Court decides that a party incites violence or that its policies are not compatible with democracy or seek its destruction, those political parties are not eligible for the Convention’s protection.Footnote 30

In the case of Welfare Party, the Court’s reasoning centred on the goals attributed to the party that were deemed incompatible with democracy. These included the allegations that the party aimed at creating a plurality of legal systems which would lead to discrimination based on religion; that it planned to apply Sharia law in the internal and external relations of Muslims; and that some party members had raised the possibility of using violence as a political method to realise these plans. Finding these allegations reasonable (in particular, the first two), the Court stated that the goals attributed to the party were incompatible with the concept of a democratic society. Taking into account the possibility of the party coming to power alone in subsequent elections, it held that the threat to democracy created a pressing social need for the intervention.Footnote 31

An alleged link to violence by a political party was at the crux of the Court’s judgement in Herri Batasuna and Batasuna v Spain, in which the Court reviewed the dissolution of two Basque parties by the Spanish Constitutional Court. The ECtHR found that the dissolution of the applicant parties was justified for their alleged links with the terrorist activities of ETA. Based on the slogans and statements by some of the party members and leaders, which were found attributable to the applicant parties, as well as the silence of the party members with respect to the activities of ETA, the Court concluded that the applicant parties were fostering ‘a climate of social confrontation’ and showing ‘implicit support’ to ETA.Footnote 32 Taking into account the past terrorist attacks in Spain and ‘more particularly in the “politically sensitive region” of the Basque Country’, the Court found the applicant parties’ covert support to ETA sufficient to consider them as a threat to democracy in Spain, despite the fact that they were not themselves violent.Footnote 33 In line with this, the Court considered the dissolution of applicant parties by the Spanish Supreme Court as part of European-level legal efforts to ‘universally condemn justification of terrorism’.Footnote 34

Democracies confronting non-democratic threats

The Court’s case law on party dissolutions before the case of the Welfare Party exhibited a gradual development of robust European supervision of the domestic courts’ decisions, questioning how convincing and compelling the reasons they adduced were.Footnote 35 This leaves little room for ambivalence in the determination of what is necessary in a democratic society when it comes to the dissolution of a political party. Nevertheless, the Welfare Party and Herri Batasuna cases depart from this pattern. The Court’s judgements in both cases are replete with assumptions in line with the states’ arguments.Footnote 36 Consider, for example, the Court’s assessment of certain expressions by Batasuna leaders as bearing ‘a strong resemblance to explicit support for violence and the commendation of people seemingly linked to terrorism’ or the refusal to condemn terrorist acts as ‘tacit support for terrorism’.Footnote 37 In the Welfare Party case, likewise, the Court’s assessments of the pluralist legal system and Sharia relied on sweeping assumptions with regard to both the Welfare Party and Islam as a religion in general.Footnote 38 Moreover, not only is the cogency sought by the Court in the domestic courts’ reasoning and justifications rather weak in these two cases, but the Court also did not properly question the method of state interference with the freedom of assembly and its severity.Footnote 39

As such, the Welfare Party and Batasuna cases appear as the exceptions to the rigorous standards developed by the ECtHR for the party dissolution cases. This exceptional handling of these cases, through weakened supervision and wider deference shown to the states, is usually seen as linked to militant democracy. As is well known, militant democracy ‘refers to the idea of a democratic regime which is willing to adopt pre-emptive, prima facie illiberal measures to prevent those aiming at subverting democracy with democratic means from destroying the democratic regime’.Footnote 40 It is thereby understood as ‘a particular variant or sub-type’ of liberal democracy, not a deviation from it.Footnote 41 This article, however, is not interested in whether the Welfare Party and Batasuna cases constitute examples of ‘militant democracy’.Footnote 42 Instead, this article attempts to study these cases as sites bringing together what is viewed as democracy and its opposite by the ECtHR.

In the case law of the Convention organs on measures considered related to militant democracy, state parties were confronted with political ideologies historically viewed as the antitheses of European democracy, namely Nazism and communism. This case law involves cases where the Court and the European Commission of Human Rights (Commission) dealt with a wide range of laws and practices,Footnote 43 such as loyalty laws for civil servants,Footnote 44 prosecutions for Nazi activitiesFootnote 45 or denial of the Holocaust.Footnote 46 Among these, the cases concerning the dissolution of political parties are particularly illustrative of the oppositional relationship established between state parties and banned political parties, and of how in turn this opposition is used to relax the conditions under which states can legitimately interfere with the functioning of political parties.Footnote 47 In one of the earliest examples from 1957, for instance, the Commission rejected the application of the German Communist Party concerning its dissolution by the German Federal Constitutional Court on the basis of the abuse of rights clause under Article 17 of the ECHR.Footnote 48 Despite a lack of evidence suggesting the applicant party aimed to seize power through undemocratic methods, the Commission determined that its advocacy for establishing a ‘socialist-communist system through a proletarian revolution and the dictatorship of the proletariat’ was enough to constitute a threat to democracy.Footnote 49 In a similar vein, in Welfare Party, the relaxation of the conditions under which a state may interfere with the functioning of a political party was explained by the Grand Chamber as follows:

a State cannot be required to wait, before intervening, until a political party has seized power and begun to take concrete steps to implement a policy incompatible with the standards of the Convention and democracy, even though the danger of that policy for democracy is sufficiently established and imminent. The Court accepts that where the presence of such a danger has been established by the national courts, after detailed scrutiny subjected to rigorous European supervision, a State may reasonably forestall the execution of such a policy, which is incompatible with the Convention’s provisions, before an attempt is made to implement it through concrete steps that might prejudice civil peace and the country’s democratic regime (see the Chamber’s judgment, § 81).Footnote 50

According to the Court, such ‘preventive intervention’ aligns with the states’ positive obligations under Article 1 of the Convention to protect the rights and freedoms of those within their jurisdiction. In that vein, states’ positive obligations may require them to impose duties on political parties to respect the Convention rights and to avoid political agendas that are against the principle of democracy.Footnote 51

For the Court, therefore, states can and should pre-emptively safeguard the rights and freedoms enshrined in the Convention against political parties identified as non-democratic, whose actions and plans are viewed as ‘incompatible’ with democracy.Footnote 52 As such, the incompatibility with democracy attributed to the banned political parties in the Court’s judgements comes simultaneously with the association of the respondent states with (self-preserving) democracy. The Welfare Party and Batasuna cases thus enable us to study both the Court’s conception of democracy and its opposite through a pair placed in opposition: the contracting states as democracies and the political parties against which the states were found to be entitled to take pre-emptive measures for their alleged intent to destroy democracy.

Framing state parties as democracies

Studies that draw from the historical origins of the Convention and the Court’s early case law,Footnote 53 as well as those exploring its established case lawFootnote 54 indicate that the model of democracy that informs the Court’s jurisprudence is a liberal model. Liberalism in this context resonates with Uday Singh Mehta’s description in terms of a commitment to ‘securing individual liberty and human dignity through a political cast that typically involves democratic and representative institutions, the guarantee of individual rights of property, and freedom of expression, association, and conscience, all of which are taken to limit the legitimate use of the authority of the state’.Footnote 55

As noted at the outset, the Court has defined democracy as ‘the only political model contemplated by the Convention and, accordingly, the only one compatible with it’.Footnote 56 Along with the reference to the notion of ‘democratic society’ in Articles 8 to 11 of the Convention, the Court has based this inference on the Preamble to the Convention. It has emphasised the connection drawn between the Convention and democracy in the Preamble and its reference to the common heritage of European states. It has noted that ‘in that common heritage are to be found the underlying values of the Convention’ and ‘the Convention was designed to maintain and promote the ideals and values of a democratic society’.Footnote 57 The presumption of democracy, therefore, finds its basis in the Preamble to the Convention.

In the cases of Welfare Party and Batasuna, however, there were certain considerations that remained inconsequential to the Court’s presumption of democracy. In the Welfare Party case, for instance, the Court ignored the findings of its previous case law, which repeatedly found the dissolution of political parties in the Turkish legal system incompatible with the notion of democratic society under the Convention.Footnote 58 As explained in section ‘The protection of political parties under the ECHR and its limits’, in these cases, the ECtHR found, for instance, that the TCC decided to dissolve political parties merely for mentioning the existence of Kurdish people in Turkey or using words such as ‘communist’ or ‘socialist’ in their party names and held in turn that they were ‘penalised for conduct relating solely to the exercise of freedom of expression’.Footnote 59

Indeed, the TCC has dissolved political parties on 26 occasions in its history, citing alleged threats of ‘terrorism’, ‘separatism’ or ‘religious extremism’, and relying on the necessity of the protection of national security and/or public order alongside the protection of the rights and freedoms of others.Footnote 60 Moreover, the Court’s case law shows how sweeping and arbitrary notions of what national security, public order and the rights of others require have been used by Turkish legal and political organs to suffocate political diversity, also in cases other than the dissolution of political parties.Footnote 61 In this vein, the Court’s case law against Turkey spanning more than three and a half decades constitutes perhaps the most important documentation of Turkey’s systematic human rights violations in the field of civil and political rights. In the Welfare Party case, however, the Court moved these out of its frame through which it effectively defined Turkey (with its legal and political organs) as a neutral and impartial state capable of eliminating a threat to pluralism and tolerance in society.

The Court’s framing of state parties as democracies seems, on the one hand, to ‘conflate democracy with liberal institutions’, and on the other hand, to foreground their adherence to legality.Footnote 62 Accordingly, the member states are assumed to be and ‘remain democratic in at least the sense that violence is never necessary to resist within their system’.Footnote 63 In Herri Batasuna, the Court reiterated that it ‘considers one of the principal characteristics of democracy to be the possibility it offers for debate through dialogue, without recourse to violence, of issues raised by various tides of political opinion, even when they are troubling or disturbing’.Footnote 64 However, it moved out of the frame the question of whether the Spanish constitutional order – allegedly being protected through the dissolution of the applicant parties – provided lawful avenues for addressing their grievances, specifically their demands for secession. Not only is the possibility of secession in the case of democratically expressed support still an unresolved issue under the Spanish Constitution,Footnote 65 but the more recent crackdown on the Catalan independence movement suggests that even political activism for the independence meets with serious repressive measures.Footnote 66

Unlike the ever-debated status of Turkey as a democracy within the European politico-legal order, Spain has long been regarded as ‘a living democracy, with a culture of free and open public debate, where the mere expression of pro-independence views is not a ground for criminal prosecution’.Footnote 67 It is assumed to have left behind its authoritarian tendencies with the fall of the Franco regime. However, studies on the state of democracy in Spain suggest that the country’s unresolved authoritarian past from the Franco era may have contributed to subsequent unlawful practices in the field of counterterrorism.Footnote 68 They also point out that the counterterrorism discourse created around the case of ETA extended to ‘all expressions of regional nationalism (as well as antiglobalization and other “undesirable” activities), leading to greater social control and in turn the erosion of democratic values of tolerance, freedom of expression, and association’.Footnote 69 Moreover, measures adopted to counter terrorism after September 11 have made authoritarian tendencies in liberal countries more salient.Footnote 70 The law that formed the legal basis of the dissolutions of Herri Batasuna and Batasuna was drafted in 2002. As the ECtHR noted, the decisions of the Spanish Supreme Court were a response to ‘the concern to universally condemn justification for terrorism’ expressed in various European regulations adopted after September 11.Footnote 71

The Court’s framing of Turkey and Spain as self-preserving democracies in the cases of Welfare Party and Batasuna therefore foregrounds the presence of liberal institutions and the formal adherence to legality on the part of the state parties, while setting aside their anti-democratic policies and practices towards certain political alternatives. In doing so, the Court relies on a porous notion of democracy – one that allows for the coexistence of policies and practices that otherwise contradict its presumption of democracy.

Oppositional framing of the dissolved political parties

The exclusion of political parties from elections is not only a rather radical measure under the substantive notions of democracy that usually associate it with pluralism and tolerance, but also under more formalistic procedural notions of democracy. Indeed, a prominent strand in the literature defines the normative essence of democracy in procedural rather than substantive terms. Accordingly, what democracy fundamentally guarantees is the formally equal opportunity of all members to form a majority and pursue their political goals. Relatedly, the core of democracy is defined in terms of the capacity of future majorities to reverse or correct the decisions of present majorities.Footnote 72 Their proscription, therefore, deprives them even of the formally equal opportunity to form a majority in the future and to pursue their goals.

Accepting the severity of party dissolutions, the Court notes that such a drastic measure can only be taken ‘in the most serious of cases’.Footnote 73 For this, inter alia, there must be ‘plausible evidence that the risk to democracy, supposing it had been proved to exist, was sufficiently imminent’.Footnote 74 As is well known from the Court’s vast body of case law, there are state parties to the Convention that systematically violate Convention rights to suppress dissent through criminal laws, administrative fines, or police violence. If such states can still be considered ‘democracies’ within the Convention system, what leads the Court to frame the Welfare Party and Batasuna as threats so severe that they can and must be pre-emptively barred from contesting subsequent elections? What, in other words, leads the Court to construe them as risks to the existing regimes in their respective countries that are so severe that they are deemed to be ‘conceiving’ and ‘advocating’ ‘a model of society […] incompatible with the concept of a “democratic society”’?Footnote 75

One thing is clear from the judgements in the Welfare Party and Batasuna cases: the banned political parties are not merely regarded as ‘adversaries’ or ‘opponents’ but are instead viewed as something akin to ‘enemies’ – a categorisation that implies not only a heightened degree of opposition but also a qualitatively distinct type of adversary.Footnote 76 In the Welfare Party case, referring to the above-mentioned Commission decision in Communist Party (KDP) v Germany, the Court noted:

The possibility cannot be excluded that a political party, in pleading the rights enshrined in Article 11 and also in Articles 9 and 10 of the Convention, might attempt to derive therefrom the right to conduct what amounts in practice to activities intended to destroy the rights or freedoms set forth in the Convention and thus bring about the destruction of democracy (see Communist Party (KPD) v. Germany, no. 250/57, Commission decision of 20 July 1957, Yearbook 1, p. 222).Footnote 77

The way the Court defines the threat that may be posed by political parties in this quote suggests that, in such cases, political parties are viewed as absolute opposites of democracy. It is as though, were such a political party to continue operating, ‘democracy’ cannot survive.Footnote 78 This absolute opposition established between democracy and these political parties reflects a different conception of democracy from the porous notion of democracy applied to state parties, which permits non-democratic policies and practices to coexist within democracies, as discussed above. Instead, the conception of democracy underpinning the Court’s framing of the Welfare Party and Batasuna cases is an impermeable conception, defining non-democracy in an exhaustively exclusive manner.

The distinct form of adversary attributed to the Welfare Party aligns with the Court’s reference to the concept of ‘totalitarianism’ in the judgement immediately after its reference to Communist Party (KDP) v Germany:

[…] the Court considers that it is not at all improbable that totalitarian movements, organised in the form of political parties, might do away with democracy, after prospering under the democratic regime, there being examples of this in modern European history.Footnote 79

Totalitarianism is a ‘foundational concept’ for the Convention system,Footnote 80 as the drafters of the ECHR saw it primarily and undisputedly as a ‘collective pact against totalitarianism’.Footnote 81 The widely accepted original intent behind the Convention was to create an ‘early warning system’ to prevent backsliding into ‘totalitarianism’ in any of the member states.Footnote 82 Pierre-Henri Teitgen, one of the key figures in the drafting of the Convention, explains:

What is our aim in establishing the Convention at all? It is to prevent the establishment of a totalitarian regime in any country whatsoever, and to set up an international body which right from the start can halt any movement in the direction of dictatorship. It is from the very moment of the assassination of a Matteotti or the burning of the Reichstag that the European guarantee must become effective.Footnote 83

First the drafters of the ECHR,Footnote 84 and later the Council of Europe organs, including the ECtHR,Footnote 85 invoked totalitarianism to define communism along with fascism and Nazism. Many historians, however, regard this concept less as a descriptive or analytical category than as an ideological tool due to the pejorative meaning it gained with the start of the Cold War.Footnote 86 Accordingly, the concept was used to criticise the common features of fascism, Nazism and Stalinism in the interwar period.Footnote 87 Since the Cold War, however, it has been used more to repudiate communism by portraying it as ‘cut from the same cloth’ as fascismFootnote 88 and as a murderous ideology comparable to Nazism.Footnote 89 This requires, however, a selective focus on their similarities while disregarding significant differences between them.Footnote 90 For this reason, their invocations constitute acts of framing that select and organise certain information while excluding others to construct a particular version of reality. Moreover, ‘totalitarianism’ functions as a frame with oppositional effects. When invoked, it not only attributes opposition to democracy to the ‘totalitarian they’, but also reinforces the self-identification of the ‘we’ with liberal democracy.Footnote 91

By adopting the frame of totalitarianism to define what Nazism, fascism and communism represent, the drafting states sought to create a new image for Europe, which helped distance it from its Nazi past while attributing ‘the same evil’ to its then political rival, that is communism. This form of othering performed through the oppositional framing of the states making up the Council of Europe and communism has continued to exist even after the Cold War, when the former communist countries of Eastern Europe, including Russia, joined the CoE.Footnote 92 After a brief ‘liberal hiatus’ between the end of Cold War and roughly September 11,Footnote 93 the ‘Others’ of the European states have expanded to include political Islam and terrorismFootnote 94 in line with the trajectory of the concept of totalitarianism in other contexts.Footnote 95 This period also coincides with the expansion of measures justified under the notion of ‘militant democracy’ targeting political Islamism and terrorism, as seen in the Court’s jurisprudence.Footnote 96 However diverse from one another they are, all ‘Others’ of European democracy are perceived as seeking to ‘destroy democracy’ and, in turn, typically constructed as a specific political formation, almost invariably associated with or likened to ‘totalitarianism’ in the history of the ECHR.

Against this background, it seems no coincidence that in the Welfare Party case, the Court has returned to the Commission’s reasoning in Communist Party (KDP) v Germany and referred to the concept of ‘totalitarianism’. The similarity established between the totalitarian movements of the past and the Welfare Party – a party representing political Islam – not only cast the Welfare Party as the antithesis of European democracy. With the same oppositional effects, it has also reaffirmed Turkey’s place among European liberal democracies.

Likewise, the framing of Spain as a democracy defending itself against the threat posed by the applicant parties was further reinforced by the criminalisation of Herri Batasuna through anti-terrorism laws. The Court found these legal regulations to be in line with Europe-wide legislative efforts to combat terrorism. Viewing the relationship between the applicant parties and ETA through a criminal ‘terrorism’ frame, however, was only possible by moving the political roots of the conflict out of the frame, thereby reducing the issue to a narrowly defined problem of ‘ETA’s terrorism’, against which Spanish democracy can legitimately protect itself.Footnote 97

It is important to emphasise here that proscription itself is one of the major tools of such oppositional politics. It functions as a tool that not only identifies and constructs the proscribed party as an existential threat but also constructs, performs and represents the identity of the actor wielding the power to define the threat.Footnote 98 This identity is almost always portrayed as ‘liberal, democratic, tolerant, and just’Footnote 99 in opposition to the totalitarian, theocratic/Islamist or terrorist Other. Viewed from this perspective, the Welfare Party and Herri Batasuna have not only been considered existential threats to democracy but their framing as such has also reinforced the framing of the state parties as self-defending democracies.

Ambivalent democracy, the indeterminacy of European human rights law, and some implications for today

The oppositional framing assembles and organises certain facts about both sides of the pair placed in opposition to each other. In the Welfare Party and Batasuna cases, the Court focused on information that allowed it to frame the dissolved political parties as non-democratic threats, while simultaneously foregrounding the liberal legalist features of the respondent states and excluding their anti-democratic features. In doing so, it employed two distinct conceptions of democracy: a porous conception of democracy for state parties, permitting the coexistence of policies and practices contrary to liberal democracy, and an impermeable conception for banned political parties, leaving no room for contradictions as in the case of state parties and defining non-democracy in an exhaustively exclusive manner.

The different conceptions of democracy invoked through the ECtHR’s oppositional framing reveal an asymmetry between the state parties and the political parties forming the two sides of the party dissolution cases. As noted at the outset, thinking through frames is a way of researching the framer’s choices and perspective. The asymmetrical and differentiated treatment of the parties to these cases gives us an important clue as to the choices made by the ECtHR. In these two cases, by selecting where to focus and what to ignore, and in turn creating an oppositional effect, the ECtHR elevated the state parties while condemning their ‘Islamist or terrorist Others’.Footnote 100 Oppositional framing and the ambivalence associated with the Court’s conceptions of democracy therefore tend to produce favourable outcomes for the state parties.

This resonates with arguments about the fundamental indeterminacy of international law and more specifically of European human rights law,Footnote 101 which stems from its claim to reconcile conflicting premises that may be impossible to reconcile.Footnote 102 As noted above, the Court’s case law attributes to the Convention the ability to protect both a democratic order and individual freedoms. In every case where the two pull in opposite directions, the Court must choose between them. However, this is not to suggest that the outcomes of the cases decided by the ECtHR are random. On the contrary, it ‘still de facto prefers some outcomes or distributive choices to other outcomes or choices’,Footnote 103 in accordance with its ‘structural biases’.Footnote 104 As Koskenniemi observes, indeterminacy is generally used as a means to privilege ‘conservative or status quo oriented choices’.Footnote 105 The structural biases constrain the range of possible outcomes and operate to stabilise international order. As the human rights court of a European interstate organisation, the most salient structural bias underpinning the indeterminacy of the Court’s jurisprudence must be the preservation of the status quo in Europe.

In light of the foregoing, the ambivalence surrounding the notion of democracy in the Court’s case law is better understood as a symptom of the fundamental indeterminacy of European human rights law. As such, the analysis of the Welfare Party and Batasuna cases has important implications for the ECtHR’s current failure to respond to authoritarianism among state parties.

First, the analysis of the Welfare Party and Batasuna cases implies that non-democracy is mainly confined to actors other than state parties to the Convention. If we turn back to the case of Russia, for instance, we find that some crucial cases for the preservation of democracy were concluded only after its expulsion from the Council of Europe following its invasion of Ukraine.Footnote 106 Moreover, following its expulsion, the Court began to review the cases against Russia with greater rigourFootnote 107 and increased generosity.Footnote 108 This suggests that the Court’s failure to produce timely and rigorous responses to the entrenchment of authoritarianism is related to its unwillingness to abandon its presumption of liberal democracy for state parties unless they are excluded from the ECHR system.

Second, the different approaches to cases against Russia in the pre- and post-expulsion periods are also in line with the argument that the ambivalence surrounding the conception of democracy in the Court’s case law is symptomatic of indeterminacy, serving to favour outcomes that help maintain the status quo in Europe. Above all, while maintaining the status quo once required keeping Russia within ‘the European club of liberal democracies’Footnote 109 until its invasion of Ukraine, the disruption caused by that act now necessitates framing Russia as the non-democratic ‘Other’ of European democracies.Footnote 110

Third, unlike totalitarianism or ‘threats’ likened to totalitarianism such as political Islam and terrorism, the Court seems not to regard authoritarianism as a non-negotiable existential threat to European democracies. Authoritarianism is understood here as the elimination of institutions and mechanisms that ensure the accountability of the ruler.Footnote 111 Crucially, the forms of authoritarianism the Court increasingly and casually detects in the practices and policies of state parties are not per se deemed threats to democracy that need to be addressed with urgency.Footnote 112 This may explain, for instance, the Court’s insistence on the exhaustion of domestic remedies before individual applications can be submitted, even in contexts where the judiciary is neither independent nor effective, often resulting in years-long delays before cases reach the Court.Footnote 113 Likewise, it may also explain the significant delays in concluding applications that call on the Court to respond to practices and policies that gravely undermine democracy in European states. One striking example of this has been the case concerning the Russian Foreign Agents’ Law that has been used to intimidate and silence human rights organisations in the country. Brought by multiple human rights organisations affected by the law, this crucial case took the Court nine years to conclude.Footnote 114

In sum, the exceptional status of the Welfare Party and Batasuna cases within the Court’s case law concerning political parties shows that the ambivalence associated with the conception of democracy underpinning the Court’s case law is a symptom of the fundamental indeterminacy of European human rights law. The Court’s failures to respond to the entrenchment of authoritarianism in the past two decades are also linked to the structural limitations of the Court, orienting it towards outcomes that prioritise the preservation of the status quo in Europe.

Conclusion

In an article published in 2011, Luzius Wildhaber, a former President of the ECtHR, noted that only a handful of cases were ‘so exceptional as to influence, per se, the fate of a European democracy’.Footnote 115 The examples Wildhaber provided,Footnote 116 one of which is the Welfare Party case, involved actions against non-governmental actors, against whom the respondent states were perceived as defending democracy.Footnote 117 In contrast, numerous cases where the Court has found states’ serious and systemic human rights violations are not defined as ‘so exceptional as to influence, per se, the fate of a European democracy’. This contrast highlights the Court’s asymmetrical treatment of actors other than state parties, as illustrated by the analysis of the Welfare Party and Batasuna cases.

By examining how the Court framed the opposite of democracy in the Welfare Party and Batasuna cases, this article has shown that the Court attributes non-democracy to actors other than state parties, almost invariably associated with or likened to ‘totalitarianism’, and defined in extreme terms with respect to the threat they are deemed to pose to democracy. By casting these actors as extremes in the threats they pose to democratic order and, in turn, as absolute opposites of democracy, the Court frames state parties as democracies and guarantors of pluralism, tolerance, open-mindedness and social cohesion. For this, however, it has to leave aside and tolerate non-democratic policies and practices of state parties.

I have argued that this reflects the Court’s asymmetrical approach to the two sides of the conflict it seeks to resolve, insofar as it adopts two different conceptions of democracy vis-à-vis the parties of the cases. For state parties, the Court adopts, on the one hand, a porous conception of democracy that is flexible enough to accommodate non-democratic elements. On the other hand, it applies a non-permeable notion of democracy, one that cannot coexist with the threats posed by political parties. This differentiated treatment of state parties and their ‘Others’ points to the structural biases shaping the outcomes of these cases. These biases draw the ECtHR towards outcomes likely to preserve the status quo in Europe.

The analyses of the Welfare Party and Batasuna cases, as such, have important implications for the Court’s failure to address recent authoritarian trends among state parties in a timely and rigorous manner. Above all, the ambivalence surrounding the Court’s conception of democracy reflects the inherent indeterminacy of European human rights law. The Court’s inability to mount an effective response to the consolidation of authoritarian practices and policies over the past two decades is equally attributable to the structural constraints underpinning the indeterminacy of European human rights law. It is these structural constraints that pull the Court towards outcomes that serve to preserve the existing European order and, in turn, to disregard or underestimate the severe damage done to pluralism by state parties themselves.

Acknowledgments

I would like to thank the editors of the Special Issue on ’Taking Ambivalence Seriously: The European Court of Human Rights and Democracy Promotion’, the participants of the workshops organized around the same theme in Copenhagen and Edinburgh, and Elisenda Casañas Adam and Jens T. Theilen, as well as colleagues at the Hertie School’s Centre for Fundamental Rights and the two anonymous reviewers, for their very helpful comments on earlier drafts. All errors remain my own.

Funding statement

This article is part of the research project ‘Reality and Normativity in European Human Rights Law: Climate Change, Migration, and Authoritarianism’, funded by the Volkswagen Foundation.

Competing interests

No competing interests.

References

1 Concurring Opinion of Judge Pavli in Novaya Gazeta and Others v Russia, App nos 11884/22 and 161 others (ECtHR, 11 February 2025) § 2.

2 Ibid § 7.

3 Turan and Others v Turkey, App nos 75805/16 and 426 others (ECtHR, 23 November 2021) § 98.

4 New features of contemporary authoritarianisms have led scholars to compile list of tools commonly used in the processes of autocratization. New features of contemporary authoritarianisms have led scholars to compile list of tools commonly used in the processes of autocratization. See, for example, Protect Democracy, ‘The Authoritarian Playbook’ (15 June 2022), available at <https://protectdemocracy.org/work/the-authoritarian-playbook/>; DV Kochenov and P Bárd, ‘The Four Elements of the Autocrats’ Playbook’ (Verfassungsblog, 18 September 2018), available at <https://verfassungsblog.de/the-four-elements-of-the-autocrats-playbook/>.

5 Concurring Opinion of Judge Pavli in Novaya Gazeta and Others v Russia § 7.

6 B Çalı and E Demir-Gürsel, ‘The Council of Europe’s Responses to the Decay of the Rule of Law and Human Rights Protections: A Comparative Appraisal’ (2021) 2(2) The European Convention on Human Rights Law Review 165–79.

7 Refah Partisi and Others v Turkey [GC], App no 41340/98 (ECtHR, 13 February 2003).

8 Herri Batasuna and Batasuna v Spain, App nos 25803/04 and 25817/04 (ECtHR, 30 June 2009).

9 G Sartori, ‘Concept Misformation in Comparative Politics’ (1970) 64(4) American Political Science Review 1033–53.

10 Frame analysis is an oft use analytical tool in the study of the constructions of reality. See E Goffman, An Essay on the Organization of Experience – Frame Analysis (Northeastern University Press, 1986 [1974]); on the exclusionary effects of frames, see J Butler, Frames of War (Verso, Boston, 2009); RM Entman, ‘Framing: Toward Clarification of a Fractured Paradigm’ (1993) 43(4) Journal of Communication 51–8; on various functions of framing, see DA Snow, R Vliegenthart, and P Ketelaars, ‘The Framing Perspective on Social Movements: Its Conceptual Roots and Architecture’ in DA Snow, SA Soule, H Kriesi and HJ McCammon (eds), The Wiley Blackwell Companion to Social Movements (2nd edn, Hoboken, NJ: Blackwell Publishing, 2018), 393.

11 E Demir-Gürsel, JT Theilen, and B Çalı ‘Frame Analysis of European Human Rights: The Construction of Realities Surrounding Migration, Climate Change, and Authoritarianism by the Council of Europe’ (2026) 30(2) The International Journal of Human Rights 333–53, 337, 343.

12 The United Communist Party of Turkey and Others v Turkey [GC], App no 19392/92 (ECtHR, 30 January 1998) § 45.

13 Young, James and Webster v the United Kingdom, App no 7601/76 (ECtHR, 13 August 1981) § 63.

14 E.g., see Ouranio Toxo and Others v Greece, App no 74989/01 (ECtHR, 20 October 2005) § 42; Eğitim ve Bilim Emekçileri Sendikası v Turkey, App no 20641/05 (ECtHR, 25 September 2012) § 70.

15 Gorzelik and Others v Poland, App no 44158/98 (ECtHR, 17 February 2004) § 92; The Moscow Branch of the Salvation Army v Russia, App no 72881/01 (ECtHR, 5 October 2006) § 61.

16 Bayatyan v Armenia, App no 23459/03 (ECtHR, 7 July 2011) § 126.

17 Gorzelik and Others v Poland (n 15) § 90.

18 Refah Partisi and Others v Turkey [GC] (n 7) § 99.

19 Concurring Opinion of Judge Pavli in Novaya Gazeta and Others v Russia § 6.

20 The United Communist Party of Turkey and Others v Turkey (n 12) § 25. The ECtHR’s approach to political parties thus resembles Kelsenian notion of democracy, which also views political parties as ‘one of the most important elements of democracy’. See H Kelsen, ‘Vom Wesen und Wert der Demokratie’ in Matthias Jestaedt and Oliver Lepsius (eds), Verteidigung der Demokratie (Tübingen: Mohr Siebeck, 2006) 149–228, 166.

21 The United Communist Party of Turkey and Others v Turkey (n 12) § 44.

22 Ibid.

23 Ibid.

24 Christian Democratic People’s Party v Moldova, App no 28793/02 (ECtHR, 14 February 2006).

25 Partidul Comunistilor (Neperecisti) and Ungureanu v Romania, App no 46626/99 (ECtHR, 3 February 2005).

26 The United Communist Party of Turkey and Others (n 12) § 46.

27 Ibid.

28 The United Communist Party of Turkey and Others v Turkey (n 12); The Socialist Party and Others v Turkey, App no 21237/93 (ECtHR, 25 May 1998); Freedom and Democracy Party (ÖZDEP) v Turkey [GC], App no 23885/94 (ECtHR, 8 December 1999).

29 Yazar and Others v Turkey, App nos 22723/93, 22724/93, 22725/93 (ECtHR, 9 April 2002) § 49.

30 Ibid.

31 Refah Partisi and Others v Turkey [GC] (n 7) §§ 107–32.

32 These include the making of ETA members as honorary citizens of the towns governed by the applicant parties, slogans by the party leaders in support of ETA prisoners, expressions such as ‘struggle is the only way’, ‘you, the Fascists, are the real terrorists’ or ‘long live ETA military’, as well as an interview statement by a Batasuna representative in the Basque parliament that ‘ETA [did] not support armed struggle for the fun of it, but that [it was] an organisation conscious of the need to use every means possible to confront the State’. See Herri Batasuna and Batasuna v Spain (n 8) §§85–6.

33 Ibid § 89.

34 Ibid § 90.

35 R O’Connell, Law, Democracy and the European Court of Human Rights (Cambridge: Cambridge University Press, 2020) 123.

36 Ibid, 128, 132–3.

37 Herri Batasuna v Spain (n 8) §§ 85, 86, 88.

38 Refah Partisi and Others v Turkey [GC] (n 7) §§ 126–34.

39 The Grand Chamber held unanimously that the dissolution of the Welfare Party and the imposition of a five-year political ban on five party members did not violate Article 11 of the Convention. However, the previous Chamber judgment to the same effect was adopted by a majority vote. The three judges dissenting from the Chamber’s judgment underlined that no compelling and convincing reasons had been shown to indicate that the Welfare Party had taken any steps incompatible with the values of the Convention, to destroy or undermine secular society, to incite violence or religious hatred or to pose a threat to the legal and democratic order of Turkey before or after its entry into the coalition government. They pointed out that many of the speeches accepted as evidence in the judgment were made before the party came to power; they were ‘isolated’ speeches spread over a period of 6 years. For the Chamber judgment, see Refah Partisi and Others v Turkey, App no 41340/98 (ECtHR, 31 July 2001).

40 K Löwenstein, ‘Militant democracy and fundamental rights I’ (1937) 31 American Political Science Review 417–32 (emphasis added). On the cases Welfare Party and Batasuna as examples of militant democracy, see, inter alia, P Macklem, ‘Militant Democracy, Legal Pluralism, and the Paradox of Self-Determination’ (2006) 4(3) International Journal of Constitutional Law 488–516; R O’Connell, ‘Militant Democracy and Human Rights Principles’ (2009) 1 Constitutional Law Review 84–90.

41 P Harvey, ‘Militant Democracy and the European Convention on Human Rights’ (2003) 29(3) European Law Review 407–20, 408, 410.

42 Note that in the case of Batasuna, Spanish Supreme Court and Constitutional Court, whose views on the legal basis of party dissolutions and the dissolution of Batasuna were endorsed by the Court, rejected the argument that the law regulating the dissolution of political parties established a militant democracy. According to these domestic courts, the Spanish legal system allowed the dissolution of political parties only when their activities breached ‘democratic principles’ or ‘the fundamental rights of citizens’. As Batasuna was deemed as the political arm of a terrorist organisation, its dissolution was discursively justified more on the grounds of terrorism, in other words ‘criminality’, rather than militant democracy. See Herri Batasuna and Batasuna v Spain (n 8) §§ 20, 21, 31, 45).

43 See Harvey (n 41); Paulien de Morree, Rights and Wrongs under the ECHR - The prohibition of abuse of rights in Article 17 of the European Convention on Human Rights (Antwerp: Intersentia, 2016), 225–46.

44 For example, Glasenapp v Germany, App no 9228/80 (ECtHR, 28 August 1986).

45 Kühnen v Germany (dec), App no 12194/86 (ECmHR, 12 May 1988).

46 Garaudy v France (dec), App no 65831/01 (ECtHR, 24 June 2003).

47 Those working on militant democracy see the dissolution of political parties as the ‘most restrictive and visible of militant laws’. See G Capoccia, ‘Militant Democracy: The Institutional Bases of Democratic Self-Preservation’ (2013) 9 Annual Review of Law and Social Sciences 207–26, 209.

48 Article 17 of the ECHR prohibits the abuse of rights: ‘Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention’.

49 German Communist Party v Germany (dec), App no 250/57 (ECmHR, 20 July 1957).

50 Refah Partisi and Others v Turkey [GC] (n 7) §102 [emphasis added], endorsing the view expressed in the previous Chamber judgments.

51 Ibid §103.

52 Ibid §132; Herri Batasuna v Spain (n 8) § 91.

53 S Marks, ‘The European Convention on Human Rights and its “Democratic Society”’ (1995) 66 British Yearbook of International Law 209–38, 231–4.

54 For example, see O’Connell (n 35) 84–142.

55 US Mehta, Liberalism and Empire: A Study in Nineteenth-Century British Liberal Thought (Chicago: University of Chicago Press, 1999) 3. Note, however, that the right to property was not included in the Convention due to disagreements among the delegates. The controversy stemmed from the decision to exclude social rights from the Convention’s scope, despite the consideration of rights such as property and parental authority over their children’s education. Although these debates led to the initial exclusion of these rights from the main body of the Convention, they were later incorporated into the First Protocol to the Convention. See M Duranti, The Conservative Human Rights Revolution: European Identity, Transnational Politics, and the Origins of the European Convention (Oxford: Oxford University Press, 2017) 379.

56 The United Communist Party of Turkey and Others v Turkey (n 12) § 45.

57 Ibid.

58 See (n 28).

59 The United Communist Party of Turkey and Others v Turkey (n 12) § 58.

60 See S von Steinsdorf et al., The Constitutional Court of Turkey: Between Legal and Political Reasoning (Baden-Baden: Nomos, 2022) 115–26; D Koğacıoğlu, ‘Progress, Unity, and Democracy: Dissolving Political Parties in Turkey’ (2004) 38(3) Law & Society Review 433–62.

61 On Turkey’s securitarian and secularist tendencies throughout its long history within the Convention system, see B Çalı and E Demir-Gürsel, ‘Continuity and Change in Human Rights Appropriation: The Case of Turkey’ (2023) 21(1) International Journal of Constitutional Law 266–84.

62 L Raible, ‘A Look At the ECHR’s Democratic Society – Secessionist Movements and Human Rights’, Forum Transregionale Studien Working Papers 19/2023.

63 Ibid, 15.

64 Herri Batasuna and Batasuna v Spain (n 8) §76.

65 Recent research shows that the possibility of secession in case of democratically expressed support yet an unresolved issue under Spanish Constitution. See EC Adam, ‘Constitutional Law and Secession in Spain’, in RD Griffiths, A Pavković, P Radan (eds), The Routledge Handbook of Self-Determination and Secession, (London: Routledge, 2023) 604–6.

66 N Krisch, ‘Political Rights Violations and the Catalan Pro-Independence Movement as an “Objectively Identifiable Group”’ in NT Casals (ed), Mutual Trust, Fundamental Rights and ‘Objectively Identifiable Groups’ The Jurisprudence of the European Court of Justice in the Catalan Context (Carles Puigdemont i Casamajó) 139–62, 147, available at <https://masponsianglasell.cat/wp-content/uploads/2024/06/Estudi-GOI-v4.pdf>.

67 See Parliamentary Assembly Resolution 2381, ‘Should Politicians be prosecuted for statements made in the exercise of their mandate’ (2021) para 9, available at <https://pace.coe.int/en/files/29344/html>.

68 S Martí, P Domingo and P Ibarra, ‘Democracy, Civil Liberties, and Counterterrorist Measures in Spain’ in A Brysk and G Shafir (eds), National Insecurity and Human Rights: Democracies Debate Counterterrorism (Berkeley: University of California Press, 2007) 118–36.

69 Ibid, 132. More specifically, the Spanish Law on Political Parties was criticized by the then United Nations Special Rapporteur for its vagueness, which might be used against all political parties sharing similar objectives with armed organisations. See M Scheinin, The Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Mission to Spain, A/HRC/10/3/Add.2 (16 December 2008) para 14.

70 K Roach, ‘Anti-Terrorism and Militant Democracy: Some Western and Eastern Responses’ in A Sajó (ed) Militant Democracy (Utrecht: Eleven International Publishing, 2004) 171–207.

71 Herri Batasuna and Batasuna v Spain (n 8) § 90.

72 E.g., see B Rijpkema, Militant Democracy: The Limits of Democratic Tolerance (London: Routledge, 2020) 134–6; J-W Müller, ‘Protecting Popular Self-Government from the People? New Normative Perspectives on Militant Democracy’ (2016) 19 Annual Review of Political Science 249–65.

73 Refah Partisi and Others v Turkey [GC] (n 7) § 100; Herri Batasuna and Batasuna v Spain (n 8) § 78.

74 Ibid, § 104; Ibid, § 83.

75 Ibid, § 104; Ibid, § 91.

76 On the transformation of adversaries to enemies as a result of moralization of politics, see C Mouffe, ‘The Limits of Liberal Pluralism: Towards an Agonistic Multipolar World Order’ in A Sajó (ed), Militant Democracy (Utrecht: Eleven International Publishing, 2004), 69–79, 74.

77 Refah Partisi and Others v Turkey [GC] (n 8) § 99.

78 It is interesting to note here that the Court rejected an invitation to review this case under Article 17 of the Convention, which prohibits the abuse of Convention rights, and which was viewed as a self-protection tool for democracies against totalitarianism. See Collected edition of the ‘Travaux Préparatoires’ of the European Convention on Human Rights vol II (Leiden: Martinus Nijhoff, 1975), 136. Despite this, however, the Court implicitly and indirectly reviewed the case under Article 17. See A Buyse, ‘Contested Contours: The limits of freedom of expression from an abuse of rights perspective – Article 10 and 17 ECHR’ in E Brems and J Gerards (eds), Shaping Rights in ECHR: The Role of the European Court of Human Rights in Determining the Scope of Rights (Cambridge: Cambridge University Press, 2013), 183–208, p 202.

79 Refah Partisi and Others v Turkey [GC] (n 8) § 99 [emphasis added].

80 E Demir-Gürsel, ‘The shifting frames of the Council of Europe: From Totalitarianism to Authoritarianism, From Populism to Democratic Backsliding’ (2026) 30(2) The International Journal of Human Rights 445–65, 447.

81 Ed Bates, The Evolution of the European Convention on Human Rights: From Its Inception to the Creation of a Permanent Court of Human Rights (Oxford: Oxford University Press, 2010) 6–8, 75.

82 P Mahoney, ‘An Insider’s View of the Reform Debate (How to Maintain the Effectiveness of the European Court of Human Rights)’ (2004) 29(2) NJCM-Bulletin 170. Note that ‘authoritarianism’ is used in the literature either alongside or in place of ‘totalitarianism’ to refer to the origins of the CoE and its Convention system. See, for example, S Greer, The European Convention on Human Rights: Achievements, Problems and Prospects (Cambridge: Cambridge University Press, 2006) 56.

83 Collected Edition of the ‘Travaux Préparatoires’ of the European Convention on Human Rights vol. VII (Leiden: Martinus Nijhoff, 1985) 158 [emphasis added].

84 Collected edition of the ‘Travaux Préparatoires’ of the European Convention on Human Rights vol I (Leiden: Martinus Nijhoff, 1975) 40. Also see H Cannie and D Voorhoof, ‘The Abuse Clause and Freedom of Expression in the European Human Rights Convention: An Added Value for Democracy and Human Rights Protection?’ (2011) 29(1) Netherlands Quarterly of Human Rights 54–83, 56–7; MR Madsen, ‘“Legal Diplomacy”: Law, Politics and the Genesis of Postwar European Human Rights’ in SL Hoffmann (ed), Human rights in the Twentieth Century: A Critical History (Cambridge: Cambridge University Press, 2011), 62–81.

85 E.g., see Schimanek v Austria [dec], App no 32307/96 (ECtHR, 1 February 2000); Partidul Comunistilor (Nepeceristi) and Ungureanu v Romania, App no 46626/99 (ECtHR, 3 February 2005).

86 In his concurring opinion, Judge Kovler has also made the same point by criticizing the majority for using terms like ‘totalitarian movements’ and ‘threat to the democratic regime’, which according to him belong to ‘politico-ideological discourse’. See the Concurring Opinion of Judge Kovler in Refah Partisi and Others v Turkey [GC] (n 7).

87 E Traverso, ‘Totalitarianism between History and Theory’ (2017) 56(4) History and Theory 97–118, 98.

88 A Port, ‘The Banalities of East German historiography’, in M Fulbrook and A Port (eds), Becoming East German: Socialist structures and sensibilities after Hitler (New York: Berghahn, 2013) 1–30.

89 Traverso (n 87).

90 D Losurdo, ‘Towards a Critique of the Category of Totalitarianism’ (2004) 12(2) Historical Materialism 25–55.

91 Demir-Gürsel (n 80).

92 Ibid, 5–7.

93 C Gearty, ‘Airy-Fairy’ (2001) 23 London Review of Books, available at <https://www.lrb.co.uk/the-paper/v23/n23/conor-gearty/airy-fairy>.

94 See J Petman, ‘Human Rights, Democracy and the Left’ (2006) 63(2) Unbound 77–86; S Moyn, ‘From Communist to Muslim: European Human Rights, the Cold War, and Religious Liberty’ (Winter 2014) The South Atlantic Quarterly 63–96.

95 Traverso (n 89) 101; Losurdo (n 90) 53.

96 Macklem (n 40); Harvey (n 41). For the broader context, also see JW Müller, ‘Protecting Popular Self-Government from the People? New Normative Perspectives on Militant Democracy’ (2016) 19 The Annual Review of Political Science 249–65 (defining this expansion as ‘transmutation of militant democracy’).

97 P Duhart, ‘Criminalizing Peace: Anti-Terrorism Law and Its Impact on Peacemaking in the Basque Country and Northern Ireland’ (2020) 8(4) Peacebuilding 432–6.

98 L Jarvis and T Legrand, Banning Them, Securing Us? Terrorism, Parliament and the Ritual of Proscription (Manchester: Manchester University Press, 2020) 107.

99 Ibid, 210.

100 Critical security studies suggest that this asymmetry is the effect of a fundamental semantic strategy underpinning the discourses on ‘Self’ and ‘Others’. See I Van der Valk, ‘Right-wing parliamentary discourse on immigration in France’ (2003) 14(3) Discourse & Society, 309–48.

101 For an in depth exploration of the indeterminacy of European human rights law, see JT Theilen, European Consensus between Strategy and Principle - The Uses of Vertically Comparative Reasoning in Regional Human Rights Adjudication (Baden-Baden: Nomos, 2021); F Mégret, ‘The Apology of Utopia: Some Thoughts on Koskenniemian Themes, With Particular Emphasis on Massively Institutionalized International Human Rights Law’ (2013) 27(2) Temple International Law & Comparative Law Journal 455–97.

102 M Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Reissue with a New Epilogue, Cambridge: Cambridge University Press, 2005) 599.

103 Ibid, 606–7.

104 Ibid, 607.

105 Ibid, 610.

106 Crucially, see Ecodefence and Others v Russia, App nos 9988/13 and 60 others (ECtHR, 14 June 2022).

107 E.g., see Ukraine v Russia (Re Crimea) [GC], App nos 20958/14 and 38334/18 (ECtHR, 26 June 2024), where the Grand Chamber unanimously concluded that Russia has violated ‘almost all substantive rights and freedoms of the Convention’. On this point, see Kanstantsin Dzehtsiarou, ‘Ukraine v Russia (re Crimea): the European Court of Human Rights Goes “All-in”’ (EJIL:Talk!, 27 June 2024), available at <https://www.ejiltalk.org/ukraine-v-russia-re-crimea-the-european-court-of-human-rights-goes-all-in/>.

108 E.g., see Ukraine and the Netherlands v Russia [GC], App nos 8019/16 et al (ECtHR, 9 July 2025), where the Court has applied an unusually broad notion of jurisdiction §§ 327–66.

109 A von Bogdandy and L Hering, ‘In the Name of the European Club of Liberal Democracies: On the Identity, Mandate and National Buffering of the ECtHR’s Case Law’ in Hélène Ruiz-Fabri et al. (eds), International Judicial Legitimacy, (Baden-Baden: Nomos, 2020) 271–300.

110 See Reykjavík Declaration – United Around Our Values (16–17 May 2023), available at <https://rm.coe.int/4th-summit-of-heads-of-state-and-government-of-the-council-of-europe/1680ab40c1>. On the Reykjavík Declaration’s framing of Russia and the remaining Council of Europe member states, see E Demir-Gürsel and JT Theilen, ‘Framing Europe in Human Rights, Framing Human Rights in Europe – Authoriarianism, Migration, and Climate Change in the Council of Europe’ (2023) 12(4) ESIL Reflections 1–10.

111 See CJ Friedrich and Z Brzeziński, Totalitarian Dictatorship and Autocracy (2nd edn, Cambridge: Harvard University Press, 1965) 4. See also J Brownlee, ‘Authoritarianism after 1989 – From Regime Types to Transnational Processes’ (2010 Winter) Harvard International Review 44–9; M Glasius, ‘What Authoritarianism is … and is Not?: A Practice Perspective’ (2018) 94(3) International Affairs 515–33; P Schmitter and T Karl, ‘What Democracy is … And is Not’ (1991) 2(3) Journal of Democracy 75–88 (defining accountability as the core element of democracy).

112 Also see, E Demir-Gürsel, ‘The ECtHR as a Conservative Institution (even) in the Face of Authoritarianism’ (Strasbourg Observers, 17 December 2025), available at: <https://strasbourgobservers.com/2025/12/17/the-ecthr-as-a-conservative-institution-in-the-face-of-authoritarian-policies-and-practices/>.

113 One notable exception to this pattern has been the cases against Poland. On the possible grounds for this exceptional treatment of the Polish cases, see A Hancı, ‘On the Exhaustion of Local Remedies: Reconciling Sovereignty and Justice Before the European Court of Human Rigths’ (2024) 45(3) University of Pennsylvania Journal of International Law 793–831.

114 See Ecodefence and Others v Russia, App nos 9988/13 and 60 others (ECtHR, 14 June 2022). For an analysis on the implications of the Court’s delay in concluding this case, see J Gavron, ‘The ECtHR and the Russian Foreign Agents’ Law’ (Strasbourg Observers, 28 April 2022), available at <https://strasbourgobservers.com/2022/04/28/the-ecthr-and-the-russian-foreign-agents-law-a-devastating-case-of-judicial-passivity/>.

115 See L Wildhaber, ‘Rethinking the European Court of Human Rights’ in J Christoffersen and MR Madsen (eds) The European Court of Human Rights between Law and Politics (Oxford: Oxford University Press, 2011) 226–7.

116 The cases Wildhaber mentions include Rekvényi v Hungary [GC], App no 25390/94 (ECtHR, 20 May 1999); Refah Partisi (the Welfare Party) and Others v Turkey [GC] (n 7); Ždanoka v Latvia [GC], App no 58278/00 (ECtHR, 16 March 2006); Denmark, Norway, Sweden and the Netherlands v Greece (‘The Greek Case’, report) App nos 3321/67, 3322/67, 3323/67, and 3344/67 (ECmHR, 5 November 1969).

117 E Demir-Gürsel, ‘The Limits of the European Court of Human Rights vis-à-vis Contestation and Authoritarianism: Concluding Observations’ in HP Aust and E Demir-Gürsel (eds), The European Court of Human Rights: Current Challenges in Historical Perspective (Cheltenham: Edward Elgar Publishing, 2021), 244–63, 245.