Introduction

Democracy cannot accommodate all political ideas and movements. This is a demonstration of the “eternal dilemma of democratic rule, that of ‘tolerance for the intolerant’.” (Capoccia 2001, 432). Constitutional provisions, for instance, of the majority of European states prescribe a range of actions or ideas which, if overstepped, can lead to the prohibition of a political party or disqualification of a candidate at elections. These frames form limits of democratic tolerance, which are supposed to be uniform under the common umbrella of the European Convention on Human Rights (the Convention). However, practice and constitutional parameters show how unique and different these limits of democratic tolerance can be.

Any discussion on the limits of democratic tolerance should begin with the mapping of cases on the prohibition of political actors, evidence of which serves as the best measure to weight parties from democratic to anti-democratic. A thorough attempt to systematize the mapping of party banning in Europe was made by Bourne and Casal Bértoa, who reviewed state practice on party bans in 37 European countries. They attempted to explain the dissolution of parties within legal and political contexts, and concluded that party bans have taken place in 20 out of 37 European countries, thereafter analysing 52 individual cases of party banning (Bourne and Casal Bértoa 2017, 230). The authors viewed incidents of party banning in Europe as evidence of the ongoing practice of the application of the concept of militant democracy.

In this paper, I argue that not all party bans can fall under the logic of militant democracy and, moreover, certain countries have abstained from using the militant democracy theory as such. Understanding the limits of democratic tolerance is essential to explaining why certain democracies ban far-right or anti-democratic parties, while others prefer to keep them afloat on the political market. The Federal Constitutional Court of Germany once acknowledged that the legal methods used to address the threats of anti-constitutional parties vary significantly, and while one state prohibited the Fascist party constitutionally, another state used a criminal method of intervention (Judgment of August 17, 1956—1 BvB 2/51, 1956).

To fill in this gap in understanding of why democracies ban parties, I propose an original classification of democratic state orientation towards party prohibition, based on three approaches: liberal, institutional, and militant. (Only the last applies the concept of militant democracy.) Each of these models has its own limits of democratic tolerance, with one being highly liberal towards any anti-democratic actors and another highly militant and resilient against undemocratic ideas and actions. This classification is primarily grounded in judicial decisions on the prohibition and legislative bans of parties.

To date, about 150 cases on the prohibition of political parties can be identified among the member states of the Council of Europe. (Starting from the date of Russia’s expulsion from the CoE, cases from the Russian Federation have not been taken into account.) The most active countries on party closures (see Appendix 1) are the Russian Federation (53 prohibited parties before 2022), Turkey (23 prohibited parties), Ukraine (22 prohibited parties), France (13 prohibited parties) and Romania (9 prohibited parties). Fewer parties were prohibited in Spain (4 prohibited parties), Italy (3 prohibited parties), the Netherlands (3 prohibited parties and 1 rejected case), Belgium (3 prohibited parties), Germany (2 prohibited parties), Austria (2 prohibited parties). Only one party ban occurred in Norway, Slovakia, Latvia, Lithuania, Estonia, Moldova, the Czech Republic, Croatia, Bulgaria, the UK and Greece. Thus, a ban on political parties has taken place in 21 domestic jurisdictions among 46 member states of the CoE.

In my research I purposely refrain from analysing the practice of the European Court of Human Rights (the Strasbourg Court) because the Strasbourg Court has calibrated its own approach to party closure, a model with its own features and peculiarities that are different to those discussed in this paper. I will only briefly explain the key characteristic of the Convention model: under the Convention, member states of the Council of Europe have a positive obligation to ban political parties if the latter use violent actions to achieve political goals and/or undermine fundamental democratic principles (Refah Partisi (The Welfare Party) and Others v. Turkey, 2003). Each time the Strasbourg Court considers a case on party banning, it applies a three-fold test which involves a legal assessment of the following criteria: whether it is prescribed by law, whether it has a legitimate aim, and whether it is necessary in a democratic society (Herri Batasuna v. Spain, 2009). The Strasbourg Court has considered twenty-three cases on party closure so far.

In the pages that follow I present different approaches to understanding party banning in the scholarly literature. In this section, I develop models to describe the party-banning paradigm. The following three sections are devoted to each of the models I have identified: liberal, institutional, and militant. The article ends with conclusions and three Appendices.

The selection of particular cases of prohibition is determined by the importance and legal value of the jurisprudence under consideration. First, the UK ban and its lifting against Sinn Féin stands as a unique example within a European context, validated by practice, where the liberal model was applied. The study is narrowed to the Council of Europe member states because they are obliged to follow the same standards of ECHR, while the party bans in other democratic states, such as Australia or the USA, maintain the logic of the liberal model.

Second, German democratic militancy has deep roots both in academic literature (Molier and Rijpkema 2018) and constitutional legacy, being strongly embedded in two milestone judgements against the Communist Party and Socialist Reich Party. Therefore, it is an excellent starting point for any research on party dissolution.

Third, I intentionally cover Ukrainian practice related to party closure more deeply and with more context since it constitutes the most recent developments in the field of our investigation. Additionally, the Ukrainian experience in dealing with party bans has been given little consideration (Bourne and Casal Bértoa 2017, and the study, however, does cover Ukrainian cases only superficially, for instance, the case on the prohibition of the Communist party of Ukraine was ignored due to its “ambiguity”) in academic literature, despite its dynamism and overarching consequences. Spanish precedents, on the other hand, are well known and widely discussed (Bligh 2013; Bourne 2013; Bourne and Casal Bértoa 2017, Casal Bértoa and Bourne, 2016).

From the outset, the Spanish cases might be better matched with relevant experience in dealing with separatists’ (or secessionists’) political movements (as in Turkey or the UK), but the following inquiry shows that the Spanish model of democratic tolerance has the same pattern as Ukraine or Bulgaria. This comparison may add original understanding to an already large corpus of work regarding the density and fragility of the limits of democratic tolerance.

Last but not least, in Malkopoulou and Norman’s study, analysed below, the classification of state orientation towards party bans was scrutinized through the lens of competition between three models, i.e. militant, procedural and social, although the authors decided to give preference to the latter. In their opinion, the social model better explains the nature of democratic self-defence (Malkopoulou and Norman 2017).

The models in the three-tier model—i.e. liberal, institutional, and militant—elaborated in this research, are not competitive, as these models exist at the same time, highlighting variations of democratic (in)tolerance. I do not suggest that one of my models is better than the other, as their parameters and the limits they set are a matter of fact and have little to do with the quality of democracy as such.

My approach instead offers the conclusion that guarding democracy as a value does not necessarily equate to the application of precisely the same limits of democratic tolerance, nor the necessity to strive to this goal. Such an understanding is of the utmost importance for any further analysis of party closures, and for knowing why and when certain democracies are not willing to ban political parties, while others strike them down.

Approaches to party prohibition

European democracies are facing increasing threats from far-right political movements or political parties infiltrated by foreign agents, with certain European politicians being paid by Moscow to support a pro-Kremlin agenda (Laine et al. 2023). For instance, Germany has started to face the threat of far-right radicalism, which entered parliament despite the severe stance on militancy in the Basic Law (Brandmann 2022, 414).

This is why formulating a legitimate theoretical basis for when and why a party can be legitimately banned is an important task. A party can be banned without guilt being established within the framework of criminal law, purely on the basis of the anti-constitutional or anti-democratic nature of its conduct and goals.

For instance, Ukrainian courts mandated the prohibition of more than twenty political parties because their activities or goals were contrary to the constitutional limits of democratic tolerance (see Appendix 1), given their pro-Russian engagement. Turkey has prohibited about forty political parties on the basis of national security concerns and the securing of secularism. The prohibition of two parties in Italy in 1974 and 1975 was of a different nature and appealed to historic safeguards against authoritarian rule.

To understand the nature of all these party bans, we need to consider the following scholarly approaches. Bligh argues that there are currently two paradigms to explain the phenomenon of party banning: the Weimar paradigm and the legitimacy paradigm (Bligh 2013). In short, the Weimar model entails banning a party if it seeks to implement an anti-democratic agenda, while the legitimacy paradigm justifies party banning in the case of a threat to certain elements of the “liberal constitutional order” (Casal Bértoa and Bourne, 2016, 8).

Bligh pointed out that the Weimar paradigm is limited by a procedural understanding of democracy and therefore cannot meet the threats posed by extremist parties such as the Herri Batasuna party in Spain (Bligh 2013, 1346–1357). He adds that “the current theoretical accounts of party banning lack a coherent approach as to the purpose of the banning of parties within the new banning categories” (Bligh 2013, 1357). The core of Bligh’s theory is that the first task in dealing with extremist parties is to deprive them of legitimacy, as this best meets the needs that arise in modern conditions (Bligh 2013). According to this philosophy, it makes sense to abandon the Weimar paradigm and replace it with the legitimacy paradigm.

However, his theory lacks a coherent explanation of how this particular concept of legitimacy serves as an independent doctrine and not merely as a complement to the model proposed by the European Court of Human Rights. The author himself comes to the conclusion that the Strasbourg Court continues to apply and expand the Weimar paradigm. The lack of normative explanation in Bligh’s work, especially regarding the refutation of the case law of the European Court of Human Rights, makes it hard to agree with his idea of the emergence of a new theory for justifying party banning, that is, the legitimacy paradigm.

Another approach to party banning has been proposed by Fox and Nolte in their illuminating study examining the toleration of anti-democratic political movements within democracies (Fox and Nolte 2000). The study indicates that the range of measures that can be taken by states is rather limited (Fox and Nolte 2000, 405–6), with the main one being the banning of political parties. In order to classify and analyse national practices, in particular the prohibition of anti-democratic or extremist activities, the authors propose using “two models of democratic government” (Fox and Nolte 2000): a procedural model and a substantive mode.

Fox and Nolte further divide these two models into four subcategories: tolerant procedural democracy; militant procedural democracy; tolerant substantive democracy; and militant substantive democracy. The first model, tolerant procedural democracy, includes the UK, Botswana, and Japan (Fox and Nolte 2000, 406). This model prescribes that democratic order is maintained mainly through procedures such as elections and parliamentary hierarchy. The second model, militant procedural democracy, is characteristic of the USA (Fox and Nolte 2000, 409). According to the authors, this model implies that the lack of constitutional guarantees for securing the democratic order can be relieved by utilizing specific legal acts and corresponding court practices which uphold their legitimacy. The third model, tolerant substantive democracy, includes countries such as France, Canada and India (Fox and Nolte 2000, 411). The model infers that freedom of association is protected in the constitutional acts and freedom bills, so it cannot be voluntarily disregarded. Finally, the fourth model, militant substantive democracy, is typical of Germany, Italy, Spain, Israel and Costa Rica, amongst others (Fox and Nolte 2000, 415). Under the last model, parties can be prohibited only because of the ideas in their programme, regardless of their implementation and violent behaviour.

However, this proposed classification has a number of shortcomings. The principal disadvantage of the Fox and Nolte model is that the different constitutional frameworks for banning anti-democratic parties in, for example, Germany and Spain, have a number of significant disparities in terms of both constitutional requirements and constitutional jurisprudence. The inclusion of both countries in one category may therefore create a false perception of similarity between the models for banning political parties in countries as different as Germany and Spain.

Bourne has supported the classification calibrated by Fox and Nolte, although not without reservation (Bourne 2010). She explained that Fox and Nolte’s model is causing dissonance, for instance, in mislabelling France’s practice on party banning (Bourne 2010, 16). This is why it is necessary to introduce “variables” between states that “ban parties for anti-democratic or anti-system behaviour” and “those which may also, or only, ban parties for holding anti-democratic ideologies” (Bourne 2010, 16).

There is also an attempt to classify bans within the logic of the following two groups: belligerent “militant” responses to extremism and less-belligerent “immunized” responses (Bourne 2010, 14). According to Pedahzur’s vision, the “immunized” model presents a liberal approach to anti-constitutional political movements, while the “militant” model employs interference, which can be regarded as undemocratic, to address threats from political actors, whose activities may be deemed anti-constitutional (Bourne 2010, 14).

To determine whether the model is either “immunized” or “militant”, Pedahzur analysed a set of factors, including civil control, educational control, intelligence, administrative practices, and, at the top, legal and judicial control. Her conceptual framework on democratic tolerance is situated between two lines of research: “theoretical-normative” and “political-institutional” (Pedahzur 2004, 127).

My disagreement with Pedahzur’s logic here comes from a methodological viewpoint. Defining the boundaries of democratic tolerance by means of a set of variables that are neither legally equal nor universally recognizable for assessing democratic militancy, seems troublesome. To address one more issue of concern, the author concluded that Israel and Germany are somewhere in the middle between her two models (“immunized” and “militant”), which renders the proposed classification even less applicable.

Analysing the Greek case on the striking down of Golden Dawn, Anthoula Malkopoulou proposed two systems of democratic orientation towards party bans: a “militant” model of democratic defence and a “procedural” model. She argues that the first model proscribes parties that work against democratic values, while the second intends to use means of criminal legislation to address illegal activity (Malkopoulou 2021). In her previous work with Ludvig Norman, they even proposed a three-fold system to classify democratic self-defence, namely militant, procedural and social. The former, according to these scholars, “requires unconditional democratic inclusion” of political actors (Malkopoulou and Norman 2017).

The significance of their work cannot be overstated, and moreover, their view on the procedural model is in line with the understanding of the liberal model presented in this study. They add that the procedural (here liberal) model “demands for proof of evidence in line with regular penal law” (Malkopoulou and Norman 2017). These frameworks accordingly exclude prohibition of any political actor unless there is criminal conduct in its activities.

The leitmotif of the aforementioned paper is in opposition with “Kelsenian proceduralism” and militant democracy as coined by Loewenstein, and the newly introduced social model. However, the applicability of their doctrine beyond the realms of normative discussion was never discussed. Do we have the evidence that countries or courts are referring to the social model, in what cases, and on what grounds do they rely? These questions are mostly unanswered. Thus, further investigation into the topic is necessary, considering not only theory, but practice.

Having reviewed existing approaches to the classification of democratic states’ orientations on party bans and identifying the gaps therein, I suggest their revision by proposing a new, original categorization of the models related to party banning: liberal, institutional and militant. The proposal provides a more adaptable approach to the limits of democratic tolerance and thus can accurately classify the model of prohibition of political parties the domestic authorities apply.

The liberal model:

Under the liberal model, the activities of a party, like any other group, are limited only by the requirements of criminal law. The application of this model always requires the availability of proof, higher standards of compliance with procedural law, a sound base of evidence and other sine qua non criminal proceedings. The critical difference between the institutional model and the liberal model is that the former does not require the application of criminal law as a mandatory instrument for banning a party. Countries that use the liberal model include the UK, Iceland, Greece and, outside the CoE, e.g. the USA and Australia.

The institutional model:

Under the institutional model, parties are prohibited from promoting a programme aimed at: violating state independence, national sovereignty or territorial integrity; seizing power; committing acts of political violence; inciting hostility; spreading discrimination; violating human rights and freedoms; etc. The example of Herri Batasuna and Batasuna v. Spain is one of the clearest examples of a state choosing the institutional model to ban a party while retaining the possibility of applying criminal charges. Article 37 of the Constitution of Ukraine may also serve as a meaningful reflection of the institutional model. The institutional model can also be seen in Hungary, Slovakia, Austria, Belgium and the Netherlands.

The militant model:

The key distinguishing factor of the militant model is that, in addition to unconditionally guaranteeing the institutional foundations of the state, it prohibits political parties from promoting the abolition of the democratic system as a political goal. The militant model is most clearly illustrated in Article 21 of the Basic Law of the Federal Republic of Germany. States that apply the militant model include Germany, Turkey and the Czech Republic.

To determine the model in operation in a certain country, a simple legal reading of the constitutional provisions does not suffice. The determination should be made on the basis of several criteria, including constitutional provisions and judicial decisions, and sometimes also law enforcement practices. The case of Spain’s party prohibition experience is rather intriguing, because Spanish courts on the one hand refuse to recognize the militant model, and on the other claim that the liberal model is not substantiated. As a result, Spaniards are placed perfectly in between approaches used in the UK and Germany.

The previously mentioned classification has specific reservations. First, transition between models is possible, though only as an exception, but in practice we find that only Ukraine made a transit from the liberal to the institutional model. Second, the models are overlapping (see Appendix 3), which means that the liberal model sets the mildest response to anti-democratic or anti-constitutional political forces. As the UK experience shows (see the example in the section on the liberal model), such democratic policies keep even the most ferocious enemies of democracies (or anti-state actors) afloat, giving priority to individual criminal actions. The second, the institutional model dictates that a certain set of actions are prohibited (e.g. violation of territorial integrity or war propaganda), but only the militant model prescribes that certain ideas can lead to a party ban, making the last model the most rigid.

The liberal model

The liberal model of the prohibition of political parties is the most open-minded. Under this system, parties are allowed to pursue any goals, including anti-democratic or anti-constitutional ones. The only bar for parties’ activities is set out by criminal legislation. This model is commonly used in the Anglo-Saxon legal system, namely in the UK, the USA (Pedahzur 2004, 137) and Australia (‘Communist Party case’, 1951). For countries with the liberal model of prohibition, the absence of constitutional provisions which directly govern the status of political parties or grounds for their prohibition is relevant.

As an illustration, we can discuss the Greek scenario. Despite the militancy in the text of the Greek Constitution, law enforcement practice and case law demonstrate the reluctance to use the concept of militant democracy (as was shown in the case of Golden Dawn). Malkopoulou explains their unwillingness to ban parties because of the historic memory of “the military junta’s dissolution of all political parties in 1967”. So it might be more accurate to conclude that Greece is an example of the liberal model of party dissolution. The prohibition of Golden Dawn took the form of the dissolution of a criminal organization, not a political party as such (Malkopoulou 2021). Adding the numerous charges against the members of Golden Dawn, we can group Greece with the states that have opted for the liberal approach to party bans.

UK: keeping politically afloat insurrectionary opponents by applying the liberal model

In 1922, the Parliament of Northern Ireland passed “the Civil Authorities (Special Powers) Act” (SPA), the provisions of which gave the power to prohibit illegal associations. Between 1922 and 1972, the SPA empowered the Northern Ireland government to take the measures necessary to maintain peace and order (Bourne 2018, 114). In 1956, the Home Secretary banned one of the Northern Irish political parties, Sinn Féin, by Order No 199, issued on the basis of the SPA.

The grounds for the ban were that the party’s activities constituted “a threat to the maintenance of peace and order and a threat to law and order and proper governance” (Bourne 2018, 114). In 1957, in a similar order, order No. 42, a political movement formed after the ban on Sinn Féin, the Republican Clubs, was banned. The ban on Sinn Féin occurred in the context of a series of attacks by the Irish Republican Army (IRA) on British military units, police stations, courts and other facilities in Northern Ireland in 1956. This campaign continued until 1962. Sinn Féin, for its part, came out in support of the actions of the IRA, for example, with a statement to the following effect: “The Sinn Féin Organization states to the Irish people that they are proud of the risen nation and appeal to the people of Ireland to assist in every way they can the soldiers of the IRA. Constitutional methods alone against armed occupation, civil injustice and victimization, could not possibly be made effective. Only when Ireland is completely free and independent will Ireland be at peace” (Bourne 2018, 116–7).

The case on the banning of Republican Clubs was referred to the House of Lords, but the question of whether the ban was lawful was not considered (McEldowney v Forde, 1969). The government of Northern Ireland saw Sinn Féin and the Republican Clubs as a structural part of the military threat posed by the IRA. The Home Secretary, who was briefed on the party ban, said that Sinn Féin should not be regarded “as a political organization in the traditional sense, because it has more to do with bullets than with ballot boxes” (Bourne 2018, 119). However, in 1973–1974, the status of Sinn Féin and the Republican Clubs was restored, and the ban on their activities was lifted (Bourne 2018, 129).

The lifting of the ban took place after the IRA declared a cease-fire and Great Britain established direct governance in Northern Ireland. By legalizing banned parties, the British government hoped that such a measure would help end the violence (Bourne 2018, 131–2).

Ten years after the ban, the British government noted that some members of Sinn Féin and the Republican Clubs continued to associate themselves with the IRA and with its policy of terror (Bourne 2018, 134). Despite the continuation of terrorist attacks, the British government offered the main rationale for the legalization of Sinn Féin and the Republican Clubs being to give them the opportunity to participate in the electoral process. The latter, in turn, was supposed to be a favourable environment in which to find a political compromise on the conflict in Northern Ireland. Despite the restoration of the status of banned organizations, the government continued to actively prosecute individual members of these organizations within the framework of criminal law, in particular for committing terrorist acts (Bourne 2018, 138).

The experience of Great Britain in the practice of banning political parties is highly controversial, mainly because the status of banned parties was reinstated when terrorist attacks continued, and many members of these organizations were affiliated with the IRA. On the other hand, the British government has developed its approach to combatting violence as a means of achieving political goals by making a rather tentative distinction between the political activities of Sinn Féin and the Republican Clubs and the criminal activities of its members. Thus, the UK opted for the liberal model of the prohibition of political parties because the government was mainly focused on the criminal activities of party members and simultaneously allowed the activities of the party.

The institutional model

The institutional model assumes that parties are allowed to pursue any political goals except those aimed at destroying the state, inciting hatred, and grossly infringing on fundamental rights and freedoms and others (see Appendix 2). The key delimiter between the institutional and militant model is whether the changing of the democratic political order as such is permissible or not. The militant paradigm strongly and expressly declares all political ideas or actions which go contrary to democratic principles to be unconstitutional. The institutional model does not operate as a safeguard of democracy in the militant fashion.

This set of prohibited actions or aims specifically grants protection for the foundation of the state, independence and territorial integrity. Thus, the issues of territorial concession or the separation of certain regions from a state can legitimately trigger the dissolution of a political party. Countries operating under this framework use the institutional model to address the threats posed by radical far-right parties, e.g. CP'86 in the Netherlands or the Flemish Bloc in Belgium, (Bligh 2013, 1339–40) or insurrectionary parties (such as the Opposition Bloc—For Life in Ukraine, OPFL).

In certain instances, the protection of human rights might be seen as an obligation to protect the democratic order. Protecting political rights and freedoms is barely possible for authoritarian societies. Although democracy as a value and principle is inherently connected to human rights and the rule of law, the Statute of the Council of Europe and the Convention regard these values separately. More fundamentally, ECtHR consistently articulates the necessity to find an appropriate balance between individual rights and the interests of democratic society, consistently attributing the primacy to latter (Refah Partisi (The Welfare Party) and Others v. Turkey, 2003). The same methodological distinction is maintained throughout my paper. So, in the context of human rights, the institutional model is essentially focused on the individual rights-protection approach rather than on defending the abstract value of a democratic order.

Furthermore, the institutional model prohibits the questioning of territorial integrity, while it is generally acceptable for the Strasbourg Court (Yazar et al. v. Turkey, 2002), and the prohibition of insurrectionary movements can thus take place. Certain practitioners have found the decision to ban separatist parties at odds with fundamental human rights principles (Letnar Cernic, 2010) but these rigid limits as to territorial integrity or national security are natural for an institutional model.

Spain: refusing militant and liberal paradigms to justify banning insurgent and terrorist movements

In 2003, the Supreme Court of Spain mandated its first ban against the Herri Batasuna (and EH and Batasuna) political parties (hereinafter, we will refer to this case as the “Herri Batasuna” case). Herri Batasuna, translated from the Basque, means Popular Unity. The ban happened merely a year after the adoption of new organic law no. 6/2002 on Political Parties. It is therefore important to recall the contours of Spain’s constitutional status regarding political parties, since political pluralism is a driving normative value for all aspects of political life on the territories of the Iberian Peninsula.

Political parties are the expression of political pluralism, they contribute to the formation and expression of the will of the people and are an essential instrument for political participation… (Section 6 of the Constitution of Spain)

The main reason given to dissolve Herri Batasuna was its affiliation and collaboration with the terrorist group ETA. The Supreme Court of Spain characterized the activities of Herri Batasuna as the political facade of terrorism, which operated in constant political complicity with the ETA group. The task of Herri Batasuna was therefore to legalize or favour violence and terrorist acts. There were no signs of disapproval from the leaders or members of Herri Batasuna, and the party even endorsed acts of violence (Judgment of March 27, 2003 (HB and successors ban), STS 2133/2003, 2003). The Constitutional Court upheld the decision of the Supreme Court. The final straw in the dispute was announced in Strasbourg, where the Strasbourg Court found no violations of the applicant’s right to freedom of association (Herri Batasuna v. Spain, 2009).

In 2008, the second ban came into effect against the political party Eusko Abertzale Ekintza—Acción Nacionalista Vasca (EAE/ANV). The Supreme Court of Spain found the party to be acting as a successor to the prohibited Herri Batasuna. The political objectives of EAE/ANV were identical to its predecessor, despite the fact that Herri Batasuna was prohibited, given its aforementioned promotion of unconstitutional aims. The party’s activities and aims were determined to be systematically and seriously complementary to Herri Batasuna, and consequently, to be in support of the terrorist band ETA (Judgment of September 22, 2008 (Judgment of September 22, 2008 (Eusko Abertzale Ekintza—Acción Nacionalista Vasca ban), STS 4581/2008, 2008). The appeal was declined by the Constitutional Court. The party’s petition to the Strasbourg Court was also unsuccessful.

At a similar time and in a similar style, the Supreme Court of Spain outlawed the political party Euskal Herrialdeetako Alderdi Komunista/Communist Party of The Basque Lands (EHAK/PCTV). Like the EAE/ANV, the party had maintained close political, operational and economic relationships with the prohibited Herri Batasuna party. In so doing, the party legitimized violence as a means to achieve political objectives in the same manner as Herri Batasuna (Euskal Herrialdeetako Alderdi Komunista/Communist Party of the Basque Lands ban, 2008).

In many regards, the position of the Supreme Court of Spain is emblematic of the institutional model of the prohibition of political parties. The Spanish Court specifically dedicated a part of its reasoning to the model of prohibition inherent to the Spanish constitutional system. The Court stressed that the Constitution is not governed by the concept of a militant democracy, and instead the constitutional provisions form an extremely tolerant system open to absolutely all ideas (Judgment of September 22, 2008 (Eusko Abertzale Ekintza—Acción Nacionalista Vasca ban), STS 4581/2008, 2008). The Court labelled this “combatively tolerant” (Judgment of March 27, 2003 (HB and successors ban), STS 2133/2003, 2003).

The reasoning of the Spanish courts means that an imaginary political programme or actions within prescribed constitutional frameworks to eliminate the democratic order will not per se constitute adequate legal grounds to ban a party. This hints at a principal distinction between the militant and institutional models, as the former can exclude actors with undemocratic aims or actions from the political competition. To wit, the Supreme Court of Spain distanced itself from the doctrines applied by their French or German counterparts by pointing out that the Spanish Constitution accepts all changes unless they strictly contravene formal and procedural requirements (Judgment of September 22, 2008 (Eusko Abertzale Ekintza—Acción Nacionalista Vasca ban), STS 4581/2008, 2008).

Yet, the Spanish institutional model, despite its focus on violent (terrorist) activities in the cases of Herri Batasuna, is not a liberal model, as some scholars mistakenly consider it (Letnar Cernic, 2010, 5). The Spanish courts’ argumentation was mainly based on terrorist activities, although it was not limited to the criminal context of ETA terrorist acts (Euskal Herrialdeetako Alderdi Komunista/Communist Party of the Basque Lands ban, 2008). Thus, the review of the cases on party banning was wider than a mere listing of indictments of ETA members and their affiliation with political parties. Rather, the role of parties was screened through the lens of mediators and political actors to cover violent activities.

The Court addressed the claim of Herri Batasuna that illegal conduct of the party and its subsequent ban should be admissible within the scope of the Penal Code. Responding to that, the Supreme Court of Spain rejected the defendant's position. The nature of article 6 of the Constitution of Spain explicitly allows the imposition of additional limitations on the activities of political parties which are not necessarily connected to criminal offences as such (Judgment of March 27, 2003 (HB and successors ban), STS 2133/2003, 2003). In the PCTV/EHAK case, the Court concluded that the presence of criminal convictions of the party’s members or its absence plays only a secondary role and in no way can be regarded as the single guiding reason to outlaw a party (Euskal Herrialdeetako Alderdi Komunista / Communist Party of the Basque Lands ban, 2008).

This is why the prohibition of political parties is non-criminal in nature (as in the UK case of Sinn Féin), and guarantees of the criminal proceedings are not applicable therein. Limits on the activities of political parties, the Court promulgated, are required for the normal development of parties in democratic societies within the framework of the institutional model.

Bulgaria: defining constitutional value of the highest order

In 2000, the Constitutional Court of Bulgaria declared the political party “United Macedonian Organization—Ilinden”, a party for economic development and integration of the population (“OMO-Ilinden”—PIRIN), as unconstitutional (Constitutional case No. 3 of 1999, 2000). The Court considered “OMO-Ilinden”—PIRIN as a successor to the illegal OMO “Ilinden” organization which sought to “unite ethnic Macedonians from Pirin Macedonia” and secede from Bulgaria. The link between “OMO-Ilinden”—PIRIN and OMO “Ilinden” was of critical importance because it allowed the Court to consider the activities of the party from a historical perspective.

The limits of Bulgarian democratic tolerance have been set through two avenues in the Constitution: article 11 and article 44. The Court examined these two constitutional avenues separately. No violations were found under article 11 of the Constitution, and the Court focused its reasoning around article 44 of the Constitution to verify whether the activities of the party pose a threat to the territorial integrity of Bulgaria. The Court found that leaders and members of “OMO-Ilinden”—PIRIN were promoting ideas about the separation of the Pirin region from Bulgaria and integration into Macedonia (Constitutional case No. 3 of 1999, [2000]). For instance, there was a distribution of maps where the Pirin region was painted as a part of Macedonia. The Constitutional Court established that the party’s activities were centred around the Pirin region, which they regarded as “non-Bulgarian land”, a territory under temporary administration by Sofia.

Thereafter, the Court concluded that the party manifestly acted against the territorial integrity of Bulgaria, which is why “OMO-Ilinden”—PIRIN had overstepped the limits of democratic tolerance fixed by the Constitution (Constitutional case No. 3 of 1999, 2000). The territorial integrity and indivisibility of Bulgaria is of a “value of the highest order”, so all ideas or actions that lead to secession have no right to exist in the Bulgarian political market.

Ukraine: transformative model from liberal to institutional

In 1991, following Ukrainian independence, the Presidium of the Ukrainian Parliament banned the Kompartiia. In 2001, the Constitutional Court of Ukraine (CCU) fully reversed the 1991 ban on the outlawed Kompartiia, finding that the Presidium’s decision to ban was legally flawed (Decision № 20-rp/2001, 2001). In making its decision, the Constitutional Court of Ukraine opted for the liberal model of banning parties because the absence of criminal liability of the leaders of Kompartiia meant the party could not be accused of acting unconstitutionally.

The decision to reverse the Kompartiia ban had great symbolic significance in reviving Soviet-era nostalgia in Ukraine (Trochev 2003, 535), but the implications reached far beyond the purely symbolic. The Court’s reasoning oscillated between legal and factual analysis (Trochev 2003, 540), and as such, no fully comprehensive legal analysis took place. The Court appeared to apply freedom of association standards—using the liberal model—without fully considering the context and background that necessitated the ban. The application of the liberal model in circumstances when criminal proceedings were almost impossible due to the challenges of the transitional period seems inadequate and erroneous.

Since the Euromaidan Revolution in 2014, Ukraine has encountered many challenges in banning political organizations and prosecuting leaders who have made attempts to undermine the territorial integrity and constitutional order of the country. There were no cases prior to 2014 of a Ukrainian court ruling to ban a political party for its unconstitutional activities. From 2014 to 2023, the Ukrainian government initiated dozens of proceedings to ban political parties.

Though the banning of parties in Ukraine bears some contextual resemblance to similar European bans, the dissolution of political parties based on the argument of self-defence raises new human rights concerns. Namely, it raises the question of the extent to which European freedom of association standards apply to political parties in times of war or public emergency. Roman David astutely noted that the “situation in Ukraine… is different from the situation in other countries… The application of European standards needs to take into account both of these facts” (David 2018, 150).

In 2014, during the first wave of bans, Ukrainian courts banned two Russian-oriented parties, which operated mainly in Crimea. During the second wave of bans in 2015, the Court terminated the activities of two pro-communist parties. The third wave started after the full-scale invasion of Ukraine by the Russian Federation and resulted in the dissolution of 17 political parties, mainly because of their political affiliation with Russia.

In the first wave in April 2014, the District Administrative Court of the City of Kyiv (DACCK) ruled in favour of the Ministry of Justice (MoJ) claim, effectively banning the Russian Bloc (Postanova (ruling) on Russian Bloc party—case No. 826/4717/14, 2014). The Court found that the head of the Russian Bloc had held meetings at which he had called for unlawful actions such as the formation of paramilitary groups to violently overthrow the government. Also in April 2014, the District Administrative Court of the City of Kyiv started proceedings to ban Russian Unity, another Russian-oriented political party (Ukhvala (order), 2014). Serhii Aksyonov (Prosecutor General’s Office of Ukraine 2016), the self-proclaimed prime minister of Crimea, was leader of the party at the time. The Court ruled that the leader of Russian Unity had called for the violent overthrow of the government, the mobilization of militia groups, and other legal violations (Postanova (ruling) on Russian Unity party—case No. 826/4716/14, 2014).

The second wave included the banning of two communist parties. In July 2015, the District Administrative Court of the City of Kyiv commenced proceedings to terminate the activities of the Communist Party of Workers and Peasants (CPWP), based on a lawsuit filed by the Ministry of Justice (Ukhvala (order), 2015). In September 2015, the Court ruled in favour of terminating the activities of the party (Postanova (ruling) on the Communist Party of Workers and Peasants—case No. 826/15405/15, 2015). In its findings, the Court ruled that current laws permit the banning of political parties whose goals or activities involve the glorification of totalitarian ideology and symbols.

The banning of the Communist Party of Ukraine (renewed) (CPU) took place alongside the banning of the CPWP. In September 2015, the Court ruled to officially ban the Communist Party of Ukraine (renewed), (Postanova (ruling) on the Communist Party of Ukraine (renewed)—case No. 826/15406/15, 2015), the most contentious case of political party banning in Ukraine. Between 2014 and 2015, the Ministry of Justice brought two separate sets of proceedings against the CPU (on banning and termination of activities). The CPU was finally prohibited only in 2022, in line with other anti-Russian bans.

In July 2019, the Constitutional Court, contrary to its counterparts in Hungary and Poland, and to its own decision in 2001, declared that the banning of communist and National Socialist ideology and symbols under Law No. 317-VIII was fully constitutional (Decision № 9-p/2019, 2019). This decision is remarkable in many respects. For one thing, this was the first time a Ukrainian court had condemned the ideological remnants of Ukraine’s Soviet period and their implementation by parties. With this decision, the CCU took a tough stance on condemning totalitarian regimes and ascertained the necessity to ban their ideological symbols for the sake of historical and national security interests (i.e. the Court acknowledged that Communist propaganda and symbols are an element of aggression against Ukraine). This is also the moment when the Constitutional Court reversed its opinion as of 2001, and the liberal model for prohibition of political parties was no longer valid.

The third wave began in 2022. In May–June 2022, the Ministry of Justice of Ukraine filed claims with the court to ban 16 political parties (see Appendix 1). The submissions resulted in the prohibition of 16 political parties. Of the 16 mentioned parties, OPFL was the only major party and the only party that had a parliamentary faction. It won 43 seats in the 2019 early parliamentary elections and was the second biggest parliamentary faction at the beginning of the parliament’s tenure. According to the analysis of the Civil Movement Chesno, the party had more than 3400 deputies in local councils (Fedoriv 2023).

All of these political parties were prohibited due to their systematic and anti-constitutional activities aimed at overthrowing the constitutional order of Ukraine. In the case of the prohibition of OPFL, the Court analysed the statements and speeches of the members (and former members) of the OPFL, noting that the party’s members actively called for violence, did not condemn Russian actions and carried out anti-state activities (Appeal decision on satisfying the administrative lawsuit of the Ministry of Justice of Ukraine on banning the OPFL party, № П/857/8/22, 2022). In the same vein, the Court outlawed Shariy’s party, prompted by the Ukraine-phobic statements of Anatoliy Shariy and his discreditation of Ukrainian state institutions, which shared the narrative of official Russian propaganda (Appeal decision on satisfying the administrative lawsuit of the Ministry of Justice of Ukraine on banning the Shariy’s Party, № П/857/1/22, 2022). The argumentation and logic of the court decisions in all of the other cases were the same.

Ukrainian courts had focused their party-related jurisprudence around measuring the parties’ rhetoric, rather than actions or financial flows. In all cases, the Court reported that parties incited violence and spread war propaganda. In their decision, the courts referred to the concept of a “democracy capable of defending itself”, mentioning that this concept is a part of Ukrainian constitutional architecture and it is applicable to insurrectionary parties, whether or not they strive to change the democratic order. However, all references made regarding the concept of a “democracy capable of defending itself” were inconsistent and legally questionable. The courts merely cited that such a concept exists, although no links to how in particular this concept was to be applied for concrete cases were provided.

Here we recall two important implied observations. Given the role of Russian-affiliated parties operating in Ukraine, it is possible to conclude that their final political goal was to replace the democratic order by appeasing Russian invaders and helping Russian troops to establish authoritarian order. If so, the reference to the concept of a “democracy capable of defending itself” might be found valid and sound. If not, the parties were then merely instruments in the hands of Moscow, functioning exclusively to undermine the national security of Ukraine. This argument, however, was not addressed by the courts directly.

The second matter of concern is whether the activities of insurrectionary parties to which a foreign undemocratic state contributes should immediately invoke the application of a “democracy capable of defending itself”. The practice is too uncommon to answer definitively now. The limits of Ukrainian democratic tolerance have been set, evolving through two avenues. Between 2001 and 2014, the Ukrainian model resembles patterns of the liberal model. Starting from actively banning the Russian-affiliated parties, the system gradually changed into the institutional model in 2022 on the eve of the war with Russia.

Barring foreign interference in domestic politics: lessons from Ukraine

Ukraine’s experience is the only contemporary example that sheds light on the case of banning political parties controlled or infiltrated by agents of a foreign state. This is despite the problem of the growing tendency of foreign interference, especially inspired by authoritarian regimes, in the domestic politics of European countries (or other democratic countries, such as Australia). Historic examples demonstrate how foreign influence on national politics led to state collapse, the case of Czechoslovakia being a good example (Issacharoff 2015, 57). Instead Finland, like the modern Ukrainian state, barred foreign-infiltrated parties from operating on the political scene and in so doing preserved the state’s existence.

Even so, there are cases of foreign interference by the Russian Federation, including in Cyprus, where parliament passed a pro-Kremlin resolution to lift sanctions under the direct interference of Moscow, which bribed Cypriot politicians to support the resolution (Tkachenko and Laine 2023). In the European south, disturbing reports threw light on how local deputies in Italy adopted a resolution on lifting EU sanctions in exchange for a trip to Crimean wineries (Anesi et al. 2023). Moreover, some official reports clearly identify that Russia is behind many “proxy actors to exert political influence and cause social unrest… via Far-Right groups… in the West” (Intelligence and Security Committee of Parliament, Extreme Right-Wing Terrorism, 2022).

Australian officials started to become concerned about the threat stemming from foreign interference on internal policy and subsequently passed a law banning foreign donations (Hawke 2019). The adoption of new restrictions took place amidst talks on the necessity of limiting Chinese influence on political decisions. The same concerns were shared by neighbouring New Zealand, which moved to pass the same ban on foreign donations (Little 2019).

The militant model: the bellicose enemy of authoritarianism

In the group of states which fall under the militant model, democratic order is explicitly protected through constitutional provisions or sometimes through the militant interpretation of constitutional courts (or, if the latter is absent, high courts). In certain cases, the militant character of a democracy might be prescribed by constitutional prerequisites, although the case law may demonstrate the lack of militancy.

Under the first model, that of militant, political parties can promote any ideas or implement any doctrines except those aimed at dismantling a democratic system. The concept of “militant democracy” or “democracy capable of defending itself”, as defined by the Strasbourg Court, is the theoretical backbone of this model. According to this approach, democracy tolerates all political ideas except the idea that democracy must perish. In the militant model, a democratic order is “granted superior status” and it “requires [parties] to abide to such normative democratic criterion” in their programme goals or behaviour (Malkopoulou 2021).

The German militant tradition to protect the democratic order

The basis of the militant model is the Basic Law of the Federal Republic of Germany and two precedents on the prohibition of political parties: the Socialist Reich Party (SRP) ban (Judgment of October 23, 1952—1 BvB 1/51, 1952) and the Kommunistischen Partei Deutschlands (KPD) ban (Judgment of August 17, 1956—1 BvB 2/51, 1956). These two parties are exemplary of the militant model, described thus in Article 21 of the Basic Law:

Parties that, by reason of their aims or the behaviour of their adherents, seek to undermine or abolish the free democratic basic order… of the Federal Republic of Germany shall be unconstitutional.

In the 1952 case, the Federal Constitutional Court found strong evidence of similar patterns in the activities, programmes, ideas and overall style of the Socialist Reich Party and the German Nationalsozialistische Deutsche Arbeiterpartei (NSDAP)/Nazi party. Members and leaders of SRP were alleged to engage in the glorification of Hitler, revisionism and revanchism. The political aims of the SRP were to dismantle the multiparty political system, liquidate human rights guarantees and revive antisemitism. The Court subsequently mandated a ban by promulgating the party as unconstitutional (Judgment of October 23, 1952—1 BvB 1/51, [1952]).

In the 1956 case, the Federal Constitutional Court delivered a second verdict on dissolution of the KPD (Judgment of August 17, 1956—1 BvB 2/51, 1956). Whereas the SRP case can be viewed, largely, as an attempt to prevent revanchism by remnants of Nazi perpetrators, the KPD case became a battle of ideologies, the liberal democratic system opposed to the socialist-communist social order. The Court indicated that it was not in a position to argue with the soundness of Marxism-Leninism teachings per se, but instead, the task before the first-elected German constitutional judges was to assess whether the KPD followed communist teachings in a way that endangered the free democratic order. In so doing, the Court promulgated the unconstitutional character of the KPD and subjected it to dissolution (Judgment of August 17, 1956—1 BvB 2/51, 1956).

However, the German Federal Constitutional Court in the recent case against the National Democratic Party of Germany (NDP), (2BVerfG, 2 BvB 1/13, National Democratic Party II, [2017]), ruled not to ban the party despite its clearly stated anti-democratic goals (Molier and Rijpkema 2018, 394). The Federal Constitutional Court’s decision was based on “a ‘risk calculation’ test” which judged whether or not there was a real probability of the NDP implementing an antidemocratic agenda (Molier and Rijpkema 2018, 406). In the end, the Court ruled that the party was too insignificant to warrant a ban.

German militancy is a perfect example of this model of the prohibition of political parties. The foundation of militancy is based on the text prescribed by the Basic Law, while militancy is simultaneously deeply rooted in the history of Germany as a precaution for future democratic backsliding. Militancy in Germany is also becoming more adaptable to new realities and threats posed not by clear enemies of democracies, but by threats coming from far-right political actors with ambiguous views.

Pioneering experience in the Czech Republic of dealing with far-right political movements

In 2010, the courts of the Czech Republic decided to dissolve the Workers’ Party. This was the first case of a political party being banned in the Czech Republic. The case consisted of three separate submissions. The government's first submission in the Pst 1-2008 case was rejected due to insufficient evidence. In the second submission in the Pst 1-2009 case, the government claimed that the Workers’ Party violated the Constitution and laws, and its purpose was to eliminate the democratic order of the state (Miroslav Mareš, 2012, 33). In its decision, the Supreme Court agreed with the government's evidence and ruled to ban the Workers’ Party (Judgment Pst 1/2009, 2009). The Constitutional Court, in turn, rejected the appeal of the Workers’ Party, drawing attention to the need to respect the constitutional principles of free and peaceful competition between political parties (Miroslav Mareš, 2012, 41).

In the Court’s opinion, statements made by the members and leaders of the Workers’ Party promoted xenophobia and racism, especially against the Roma ethnic group. Simultaneously, the party’s rhetoric created an atmosphere of fear and hostility towards foreigners, homosexuals and Jews (Judgment Pst 1/2009, 2009). In regard to the party’s programme alignment with the ideology of German National Socialism, the Court stated that the ideological positions of the Workers’ Party were in line with and in certain instances identical to the doctrine of National Socialism (Miroslav Mareš, 2012). Third, the party was founded in connection with extreme far-right movements, neo-Nazi organizations and even paramilitary formations (such as the Protection Corps). Fourth, the party systematically took part in and organized meetings with the aim to foster hate speech against minorities (Miroslav Mareš, 2012).

All the above allowed the Court to conclude that the activities of the Workers’ Party overstepped the limits of democratic tolerance in the Czech Republic, and it was subject to dissolution. While the prohibition of a political party because of hate speech and threatening to cut off minorities’ rights can fall within the margins of the institutional model, the Court's reasoning made it clear that the militant model is applicable in the Czech Republic. The Workers’ Party, the programme of which was in line with the programme of German National Socialism, was attempting to impose totalitarian ideology contrary to the Czech democratic order. To wit, the Court several times recalled the concept of defending democracy throughout the text of its judgement. For example, the judges noted that defending democracy opens the possibility for the judiciary to take preventive measures against anti-democratic actors.

The Supreme Court also addressed the issue of criminal convictions against the members of the Workers’ Party, though the presence or absence of criminal cases serves only as a complementary, not stand-alone, source of consideration (Judgment Pst 1/2009, 2009).

Thus, the militant model of prohibition is evident through the lens of the Workers’ Party case. The origins of militancy also stem from the Act of Law 424/1991 Coll., on association in political parties and political movements of the Czech Republic. The above prescribes,

The following political parties and movements may not be established and operate: a) political parties and movements breaching the constitution and acts of law or seeking to remove the democratic foundations of the state… (Art. 4, Act of Law 424/1991 Coll., on association in political parties and political movements).

This is in addition to the fact that the Constitution of the Czech Republic does not have a strong text on its militant character, instead requiring parties only to “respect fundamental democratic principles”. The notion of democratic principles might be seen as much more limited in comparison with the German counterpart of a free democratic order. The important path to militancy of the Czech Republic also has roots in the history of the country, which was under military occupation, first by the Nazis, and later by the Communists (Miroslav Mareš, 2012, 147).

Conclusions

Bourne and Bértoa in their seminal work on the mapping of militant democracy relied heavily on Bligh’s model of democratic tolerance, which they characterized as “the most extensively-developed”, leading them to the conclusion that the “Weimar party ban paradigm has largely been replaced by the legitimacy paradigm” (Bourne and Casal Bértoa 2017).

In contrast, the findings in the present paper demonstrate that not all party bans are connected to the concept of militant democracy per se. Some of them (as in the UK or Spain) have nothing in common with the concept of militant democracy. Second, if Bourne and Bértoa’s mapping implies the almost complete replacement of Weimar by the legitimacy paradigm, this research instead revises party proscription models as stable and utterly predictable elements. Even when transformation is happening (as in the Ukrainian case from liberal to institutional), it is a rather exceptional scenario, the result of judicial misinterpretation or external shocks.

Yet, a lack of court practice might hinder the pronouncement that a country is employing one of the three models, but, on the other hand, this is not essential if there is a well-functioning political landscape, with no proscription precedents in place. The models of party banning can also help to reduce ambiguity, which Bourne and Bértoa, for instance, noted relating to the classification of the prohibition of the Communist Party of Ukraine (Bourne and Casal Bértoa 2017). Applying the three-tier model we are able to clarify any such ambiguities by establishing through analyses of Ukrainian court decisions and Constitutional provisions that the militant democracy concept has not been applied, and courts mandated the banning of Ukrainian communists on the grounds of their links with Russia and subversive activities, instead of their undemocratic goals.

To sum up, the present three-fold classification allows for a better understanding of the logic domestic authorities apply in dealing with cases of the dissolution of political parties. The idea of how, when and why a democratic state intends to ban a political party lies in its history, constitutional prerequisites, jurisprudence and law enforcement practice. We established three different types of limits to democratic tolerance: liberal, institutional and militant. The proposed models explain why certain democracies ban anti-democratic political actors while other democratic countries prefer to keep all political parties alive.

Germans decided to secure a free democratic order by integrating direct provision in the Basic Law. The Federal Constitutional Court scrutinized this constitutional concept and gave birth to it. In doing so, the German model towards party prohibition become militant. Any idea or action contrary to a free democratic order can be constitutionally outlawed. It is important to stress that under the militant model, a party can be dissolved only because of the abstract implementation of its future policy, regardless of ongoing actions or aims.

The Spanish paradigm rejects use of the idea of prohibiting parties only for abstract ideas, which might even go beyond democratic principles. Instead, the Spanish judiciary decided to use the institutional model of party banning, in which a party is not allowed to perform a specific set of actions directed against basic constitutional premises. Finally, the UK approach to party bans can fall only under the liberal party banning domain because of an unwillingness to prohibit any political party unless the criminality of the party's members is established.

Here it can be concluded that the concept of militant democracy, which is frequently used as a legal and theoretical justification for party bans, has no role in half of the incidents related to party closures. The concept is consequently not universally applied as an integral backbone for setting the limits of democratic tolerance, nor it does play a role in disqualifying a political competitor, at least, in half of the member states of the CoE.

Setting clear limits of democratic tolerance, either the broadest through the liberal paradigm, or the narrowest through the militant paradigm, is the primary task of the court, as it is the single arbiter in giving a red card to a political player and sending him out of the political arena. The proposed three-tier model can help the judiciary in tackling this burdensome task rigorously, while allowing them to avoid traps when referring to the militant democracy concept (which Ukrainian courts blindly cited, though affording it no legal value).

Bourne and Bértoa expressed the belief that building models to analyse why democracies decide to ban political parties, and what concerns accompanied such proscriptions, can help to better understand the tendencies of how European countries set limits of democratic tolerance (Bourne and Casal Bértoa 2017). This work corroborates these joint efforts, revealing trajectories of party banning presented in different societies and political contexts. Thus, despite the circumstances differing in every country, their experiences can be grouped and evaluated in the defined categories, elucidating the logic of why and when democracies decide to ban a party.