“Militant” Democracy under the ECHR: Between Pluralism and Democratic Self-Defence

Kriszta Kovács

the Chair of the Human Rights and Politics Department of ELTE University, Budapest and a Visiting Fellow at WZB Berlin Social Sciences Centre.

“Militant” democracy refers to a constitutional doctrine and a set of legal mechanisms designed to protect liberal democracy from actors seeking to undermine its constitutional order. As is well-known, the concept emerged in response to the threats posed by fascism, Nazism and communism in the 1930s. Karl Loewenstein famously argued that, if democracy is determined to defend itself against its “enemies,” it should rely not only on ordinary democratic means but also on measures capable of countering those used by anti-democratic forces. Democracy thus becomes “militant” because, when authoritarian forces pose a serious threat to its constitutional order, it may respond through exceptional constitutional measures, such as restrictions on certain political rights and the banning of political parties.

The Paradox of a “Militant” Democracy

The paradox of a “militant,” or rather self-defending, democracy is also well-known: if democratic mechanisms do not protect the system against anti-democratic forces or projects, it remains defenceless. On the other hand, if mechanisms that systematically violate fundamental rights come into effect, the system loses its constitutional democratic character. The “Trojan horse” of democracy can be, for example, the freedom to form parties, freedom of speech or the electoral system itself.

Today, we face additional challenges in applying this concept. First, the nature of the threats to democracy has changed. In the early twentieth century, democratic orders were often confronted by actors seeking to overthrow them by overtly coercive means. Today, democratic decline instead often takes the form of gradual erosion, with power being acquired through seemingly lawful and peaceful means.

Second, our understanding of democracy today differs from the predominantly procedural conceptions that prevailed among early twentieth-century theorists. Today, more substantive approaches understand democracy as the self-government of free and equal persons, in which political and civil rights are co-original and coequal. Basic rights and democratic procedures are therefore both “constitutional essentials” of legitimate democratic government.

Yet despite these new challenges, the fundamental question remains unchanged: whether “one must remain faithful to one’s flag even when the ship is sinking,” as Kelsen put it in 1932. The metaphor captures the enduring dilemma of “militant” democracy: how far can democracy depart from its ordinary constitutional commitments to defend itself without undermining the very conditions that make it democratic?

A possible answer is to argue that “militant” democratic tools do not target the equal rights and participation of those considered to threaten democracy. As Benjamin Schupmann argues in Democracy despite Itself, abolishing democracy is not an exercise of democratic self-government but rather a violation of the rights of others. This provides an important normative constraint on “militant” democracy: measures adopted in defence of democracy must themselves remain compatible with the equal political status and participation of those subject to them.

Positive State Obligations to Protect Democracy

The modern understanding of democracy increasingly recognises that states have positive obligations to uphold human rights and protect the integrity of the democratic system, including by taking measures to secure the effective enjoyment of rights and the conditions necessary for democratic participation.

This is particularly relevant in the context of the European Convention on Human Rights (ECHR), which is grounded in a pluralist conception of democracy. The positive obligations doctrine developed by the European Court of Human Rights (ECtHR) requires states not merely to refrain from violating Convention rights but also, in certain circumstances, to take reasonable measures to protect those rights from threats and interference. However, states retain a margin of appreciation (MoA) as to how such obligations are fulfilled, the scope of which depends on the nature of the right and the competing interests at stake.

Pluralism and Democratic Self-Defence

In the context of “militant” democracy, positive state obligations operate in two related dimensions: the duty to maintain the pluralism necessary for democratic participation and the duty to take active measures to defend democratic institutions against threats to their integrity.

In the ECtHR’s jurisprudence, Member States may, under certain circumstances, deploy measures that can be understood as forms of “militant” democracy to safeguard the democratic order and constrain activities that threaten its underlying principles. The Court’s approach, consistent with the Statute of the Council of Europe, is rooted in democratic pluralism, the rule of law and the protection of fundamental rights. Liberal democracy has therefore emerged as a relevant benchmark in assessing measures directed against actors seeking to undermine these principles.

The Court has confirmed that the requirement of political loyalty to the constitutional principles on which the state is founded can legitimately be imposed on civil servants (Vogt v. Germany, judgment of 26 September 1995, para 59). It has also affirmed that states may, under certain conditions, ban political parties whose programs and objectives are considered incompatible with the fundamental principles of a democratic society (Yazar, Karatas, Aksoy and the People’s Labour Party v. Turkey, judgment of 9 April 2002; Refah Partisi and Others v. Turkey, judgment of 13 February 2003). The breadth of this case law raises the question of whether the Court leaves sufficient space for non-violent actors who advocate for a political order different from liberal democracy.

At the same time, however, the Court has approached serious threats to the democratic system with caution. Bradshaw and Others v. the UK (judgment of 22 July 2025) provides a useful case study of how the Convention framework responds to contemporary threats to democratic processes.

Three UK politicians who were serving as Members of Parliament brought the case before the Court, relying on the findings of two parliamentary bodies: the Digital, Culture, Media and Sport Committee’s 2019 report on disinformation, and the Intelligence and Security Committee’s 2020 “Russia report.” Both documented evidence of Russian interference in the 2014 Scottish independence referendum, the 2016 Brexit referendum, and the 2019 general election.

The applicants argued that these reports and supplementary evidence demonstrated plausible attempts by Russia to disseminate disinformation, conduct digital influence operations and disrupt the United Kingdom’s democratic processes. They further argued that the government had failed to initiate a comprehensive independent investigation and had not put in place an adequate legal framework to protect elections from foreign interference. In their view, this constituted a violation of the positive obligations arising under the right to free elections (Article 3 of Protocol No. 1 ECHR).

The Court found no violation. It invoked the concept of “a democracy capable of defending itself” and held that securing the right to free elections requires states to take appropriate measures to protect the integrity of democratic elections against hostile foreign state interference. At the same time, however, the ECtHR held that a violation of Article 3 of Protocol No. 1 arises only in cases of a “flagrant failure” that destroys the “very essence” of the right (paras. 137–138). While recognising that states may be required to respond actively to threats to electoral integrity, it did not prescribe particular measures. Instead, relying on the MoA, the Court declined to impose an obligation to pursue a specific investigative approach whenever foreign interference is alleged.

Certainly, there are practical reasons why positive obligations to protect the integrity of elections must leave states a certain degree of discretion. Different electoral systems, legal traditions, institutional capacities and security environments may affect the appropriate response to foreign interference. Requiring a full-scale investigation after every election or allegation could divert resources from other threats to democratic security.  Moreover, foreign interference is often difficult to identify and attribute: disinformation and influence operations may be covert, involve intermediaries, and overlap with legitimate political debate. Persistent investigations could also undermine public confidence in electoral processes and thereby weaken, rather than protect, democratic integrity.

However, foreign interference in elections is not an isolated phenomenon, but a recurring and evolving threat to electoral processes across Europe (see, e.g., Călin Georgescu v. Romania (decision of 11 February 2025)). It may target electoral infrastructure, involve violent attacks during election periods intended to influence voters, or take the form of disinformation and covert influence operations. The increasing range of threats is particularly significant: recently, foreign interference has also extended into the physical domain, including drone attacks.

In light of these developments, the Court’s “flexibility” is a particularly high threshold for finding a violation. By setting the threshold so high, however, the Court risks undermining its commitment to liberal democracy as the benchmark against which threats to democratic processed are assessed. The Court might therefore afford greater interpretative weight to the need for democratic self-defence, while reamining attentative to the risk that measures adopted in its name may themselves become abusive and undermine the pluralism and political participation that are essential to democracy.

Concluding Remarks

The paradox of “militant” democracy has acquired a new dimension. The danger is no longer only that democracy may fail to defend itself against actors openly seeking its destruction. Contemporary democratic erosion is often driven by actors who seek to undermine democracy covertly or incrementally. These developments make positive state obligations increasingly important. Yet democratic self-defence cannot be understood as open-ended mandate for state intervention. Because pluralism, political participation and individual tights are themselves constitutive of democratic government, measures adopted to protect democracy must remain constrained by those same principles. The challenge for the Convention system is therefore not simply to determine when the state may defend democracy, but to develop a form of democratic self-defence that is sufficiently effective in responding to contemporary threats without turning the protection of democracy into a justification for suppressing pluralism.

Kriszta Kovács, is the Chair of the Human Rights and Politics Department of ELTE University, Budapest and a Visiting Fellow at WZB Berlin Social Sciences Centre.

Suggested Citation: Kriszta Kovács, ‘Militant Democracy at the Supranational Level: Between Activation and Caution’ IACL-AIDC Blog (17 September 2026) “Militant” Democracy under the ECHR: Between Pluralism and Democratic Self-Defence