The Concept of ‘Militant Democracy’ in the Context of Russia’s Armed Aggression Against Ukraine

Abstract

Background: The fall of a dictatorship is accompanied by a period of democratic transit, which necessitates the use of special measures to protect a young and, thus far, unstable democracy. This model’s use began in practice after the Second World War in connection with the spread of the doctrine of "democracy capable of defending itself," also known as militant democracy (English) or Wehrhafte (Streitbare) Demokratie (German). The flagship here was the German science of constitutional law, which formed the tools for the creation of a new legal system accounting for the mistakes of the Weimar Republic. This experience is especially relevant for Ukraine, as since 2014, it has faced external armed aggression by revanchist forces that took power from the heir of the Soviet empire, Russia, in which a totalitarian regime was established and became a full-fledged aggressor state. Methods: The following methods were used in the work to study the concept of militant democracy in the conditions of Russia's armed aggression against Ukraine. The system multi-structural method was utilized to discover the means of militant democracy in Ukraine (ban of political parties, lustration, etc.), as well as problems associated with the use of certain militant democracy means. The logical-legal method made it possible to identify the essence of the decisions of the constitutional, supreme, and other courts, the decisions of the European Court of Human Rights, in which the means of militant democracy were used or the legality of their use was assessed (legality, constitutionality, or compliance with the European Convention on Human Rights). The comparative method justified the implementation of different countries’ experience (primarily, European) in reforming the constitutional and legislative regulation of the militant democracy in Ukraine and the mechanisms required for further action. Results and Conclusions: The work contains proposals for the constitutional and legislative improvement of the regulation of the means of militant democracy in Ukraine, which are based on the pre-existing experiences across the world and the use of already existing practices that have been successfully tested and achieved results.