A Militant Court? The Case Law of the ECtHR on Genocide Denial through the Lens of 'Militant Democracy’

Laws criminalizing genocide denial are often construed as a manifestation of the “militant democracy” concept denying certain democratic rights to the enemies of democracy. The ECtHR that accepts the criminalization of Holocaust denial is considered as applying a “militant” conception to the freedom of expression, association, and research. The paper sheds light on what the “militant democracy” concept adds to the ECHR and what its exact relationship to these original memory laws is. Based on the ECtHR case law review, it argues that “militant democracy” is more than a theoretical concept summarising “militant” provisions of the ECHR, but that it is considered to possess distinct normative weight. The paper finds that some of the ECtHR case law’s flaws can be explained by the inherent weaknesses of “militant democracy”. The paper explores the limits the concept sets for the restriction of the freedom of expression in the name of democracy.