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

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.