Fundamental rights under geopolitical pressure: The limits of restricting freedoms in democracies bordering authoritarian or totalitarian regimes

In the past decade, ‘geopolitics’ has become a recurrent concept in constitutional adjudication across Europe, particularly in democracies bordering authoritarian or totalitarian regimes (Žalimas, 2014). What began as a foreign-policy term is increasingly used in legal discourse to justify restrictions on fundamental rights, often as part of a wider rhetoric of ‘national survival’ or ‘geopolitics’ (Guzzini, 2012). This shift is understandable given the proximity of many democratic states to zones of instability, hybrid threats and disinformation. Yet when ‘geopolitics’ migrates from the political to the judicial sphere, its meaning must be carefully delimited.

Geopolitics is not a legal concept but a descriptive framework encompassing territorial, economic and cultural dimensions of power (Britannica, 2025). When invoked in court reasoning, it must therefore be transformed into a legally verifiable fact: courts must explain how a specific regional or international situation creates a concrete and immediate threat to constitutional order or public safety. Without such clarification, ‘geopolitics’ risks becoming a placeholder for anxiety rather than evidence.

Judicial invocation of geopolitics must meet the same evidentiary standards as any other restriction of rights. It is insufficient to state that a state is ‘located near an authoritarian regime’ or ‘exposed to hybrid threats’. Courts must demonstrate, based on reliable information—such as intelligence assessments, international monitoring or prior incidents—that the threat is real and specific.

The ECHR, in a sensitive case concerning the criminal punishment for denying the Armenian genocide Perinçek v. Switzerland (European Court of Human Rights, 2015, § 280), held that the state was not required to impose criminal sanctions to protect the rights of the Armenian community at risk. The Court weighed all relevant elements: whether the applicant's statements addressed a matter of public interest or constituted incitement to hatred or intolerance; the context in which the statements were made; whether they were linked to heightened tensions or specific historical developments in Switzerland; whether the statements could be regarded as offending the dignity of members of the Armenian community to such an extent as to require a criminal-law response in Switzerland; whether Switzerland was under any international-law obligation to criminalise such speech; and, finally, whether an intervention in the form of a severe criminal penalty was necessary to protect the rights of the Armenian community in this case.

This reasoning illustrates a wider principle: geopolitical narratives or historically sensitive issues cannot replace verification and balancing.

The obligation of verification extends beyond history to contemporary geopolitics. Courts must ascertain whether the invocation of external threats is grounded in objective data. For example, if a government claims that a neighbouring state conducts systematic hybrid attacks, it must present concrete indicators—cyber incidents, disinformation campaigns or cross-border interference—that substantiate the claim. Absent such evidence, restrictions on rights lack the factual basis required under the principles of legality and proportionality.

The danger of deferring to unverified political narratives is particularly acute in democracies under security pressure. When courts echo government rhetoric without demanding substantiation, they risk turning geopolitical reasoning into a smokescreen for weak legal arguments. This concern is not theoretical. In Refah Partisi v. Turkey (European Court of Human Rights, 2003, § 132), the Court upheld the dissolution of an Islamist political party because the evidence showed a concrete programme to replace democracy with a theocratic system and to use force to achieve it. Conversely, in United Communist Party of Turkey v. Turkey (European Court of Human Rights, 1998, § 51–61), the Court found a violation precisely because there was no proof of violent or anti-democratic conduct. The contrast demonstrates that democratic self-defence is permissible only when it rests on demonstrable facts, not on assumptions about ideology or identity.

Generalised references to geopolitics tend to mirror executive rhetoric, not independent judicial reasoning. When courts adopt such narratives uncritically, they abdicate their role as guardians of legality. Broad invocations of ‘foreign influence’ or ‘regional instability’ can justify virtually any limitation on speech, assembly or association. This practice transforms courts from guarantors of rights into legitimisers of policy.

The ECHR's jurisprudence establishes a different expectation: that democratic institutions must demonstrate the necessity of each restriction in light of verifiable facts. By treating geopolitics as a contextual factor rather than a conclusive argument, courts preserve both flexibility and fidelity to the rule of law. The following section examines how this approach interacts with the test of ‘necessity in a democratic society’ and the principle of proportionality that underpins all legitimate restrictions of fundamental rights.

Under both constitutional and international human rights law, qualified rights—such as freedom of expression, assembly or movement—may be restricted only when the measure is prescribed by law, pursues a legitimate aim and is necessary and proportionate. ECHR has described this as the requirement of a ‘pressing social need’ (Handyside v. United Kingdom, European Court of Human Rights, 1976, § 49).

In recent years, states on Europe's eastern frontier have increasingly claimed that geopolitical instability itself constitutes such a pressing need. Governments point to hybrid threats, disinformation campaigns or the instrumentalisation of migration as reasons to expand restrictions on rights (Pūraitė and Seniutienė, 2025: 230). Yet, as the ECHR has repeatedly clarified, the existence of a general regional threat cannot by itself satisfy the test of necessity. Each restriction must be supported by verifiable evidence showing that it directly addresses a specific risk and that no less intrusive means are available.

Thus, the proportionality analysis acquires a heightened importance in the geopolitical context. Measures based solely on geographic proximity to an authoritarian neighbour or on ideological alignment with a hostile power cannot be presumed necessary. They must instead demonstrate a factual and causal connection between the external threat and the individual restriction. Without this link, ‘geopolitics’ becomes a rhetorical umbrella under which disproportionate or discriminatory limitations can shelter.

Geopolitical reasoning often enters judicial analysis through the content of the contested measure, for example, restrictions on language use, media or association. Here, courts must examine not only whether the aim of the restriction is legitimate but also whether its specific content is proportionate to that aim.

Consider a state that blocks a foreign news outlet during a period of international tension or prohibits demonstrations perceived as sympathetic to an adversary. Courts reviewing such measures must ask three questions:

• Does the restriction target demonstrably harmful conduct or content?

• Is the measure limited in scope and duration?

• Does it remain the least restrictive means available?

If the answer to any of these is negative, the restriction risks failing the proportionality test. Blanket bans justified merely by ‘foreign influence’ or ‘regional instability’ fall short of the European Convention for the Protection of Human Rights and Fundamental Freedoms (further—Convention) standard and tend to conflate potential with actual harm.

This analytical framework ensures that courts focus on the substance of state action rather than its geopolitical packaging. It prevents the substitution of political generalities for legal reasoning and ensures that national security claims remain evidence-based, individualised and reviewable.

While geopolitical realities shape the context of adjudication, they cannot redefine its legal criteria. The legitimacy of democratic self-defence depends on the continued application of ordinary proportionality tests, even in extraordinary times.

The ECHR's doctrine of the margin of appreciation allows states some discretion in balancing rights and national interests. However, that discretion is neither unlimited nor immune from review. The Court retains ultimate authority to determine whether the domestic balance remains compatible with the Convention (Grabenwarter and Pabel, 2021, p. 153).

The margin tends to widen when there is no European consensus or when moral and cultural factors are at stake, but it narrows where fundamental rights—especially those linked to personal liberty and expression—are directly affected. In recent cases, the ECHR reaffirmed that even under intense geopolitical pressure, states must uphold procedural safeguards and individualised assessments (Mestan v. Bulgaria, European Court of Human Rights, 2023, § 51; Rodina and Borisova v. Latvia, European Court of Human Rights, 2025, § 117). For example, in Rodina and Borisova v. Latvia, the ECHR carried out an individualised assessment of whether the restriction on freedom of assembly was appropriate in a democratic society, basing its reasoning on specific factual circumstances. The Court held that calls expressing the superiority of one nation over another or aggressive ‘war propaganda’ aimed at supporting unrecognised separatist entities and their paramilitary forces in eastern Ukraine have no place in a democratic society (§119). As regards the first applicant, the Court found that both the intimidating nature of the slogans used during previous events organised by it and the videos available on its website—containing war scenes and individuals in military uniforms—were overriding considerations in this context (§120).

Accordingly, geopolitical considerations may inform but cannot replace the judicial inquiry into legality and proportionality. The rule of law requires that courts convert general political judgements into specific, evidence-based legal findings. Where this conversion fails, the state crosses the line from constitutional self-defence to constitutional self-erosion.

Latvia's constitutional jurisprudence provides a revealing microcosm of how geopolitical reasoning can both safeguard and endanger democratic order. Situated on the European Union's eastern frontier, Latvia faces undeniable security challenges stemming from its historical experience of occupation and its proximity to Russia and Belarus. These circumstances have made national security and geopolitical awareness integral to political discourse. Yet when invoked in judicial reasoning, these same considerations must be constrained by principles of legality and proportionality. The following three case studies illustrate how the Constitutional Court of Latvia has approached this tension and where its reasoning risks sliding into overgeneralisation.

The Ždanoka litigation, extending over nearly two decades, exemplifies both the legitimacy and the perils of relying on geopolitics in constitutional adjudication. Tatjana Ždanoka, a former member of the Communist Party of Latvia (CPL), was barred from standing for election to the national parliament. The restriction was originally justified as a temporary safeguard against the re-emergence of anti-democratic forces following Latvia's independence.

In Ždanoka v. Latvia (European Court of Human Rights, 2006), the Grand Chamber accepted the restriction, noting the fragile state of Latvian democracy in the early 1990s and the genuine security concerns of the period. However, the Court also emphasised that such restrictions should be subject to regular review and should not outlast their justification.

The Latvian Constitutional Court, in its 2018 judgement, narrowed the scope of the restriction, allowing disqualification only where candidates continued to pose a tangible threat to democracy (Constitutional Court of Latvia, 2018). Yet, by instructing the Central Election Commission to evaluate whether a candidate ‘still poses a threat’, the Constitutional Court arguably expanded the Commission's discretion beyond the law's text. This interpretive extension raises concerns of legal uncertainty: candidates cannot foresee whether their past actions will disqualify them and decisions risk resting on political perception rather than evidence.

In Ždanoka v. Latvia (No. 2) (European Court of Human Rights, 2024), the Court upheld the measure but stressed that Latvia's interpretation of the restriction must remain ‘strictly necessary in light of current circumstances’. ECHR found the restriction accessible and foreseeable, especially in light of the Constitutional Court's interpretive narrowing, which made its application clearer rather than broader. It also confirmed an aim—to protect independence of Latvia, democratic order and national security. Moreover, ECHR emphasised the special historic and political context in Latvia and acknowledged that regional stability had decreased (since Russian aggressions), potentially justifying a wider margin of appreciation for Latvia in defending its democratic framework.

While the ECHR's intent was to align with democratic self-protection, its method illustrates the difficulty of calibrating geopolitical sensitivity within the rule of law. Nearly 35 years after the events in question, the continued reliance on the Soviet past as a basis for exclusion reveals how historical geopolitics can linger as an unexamined justification for rights restriction.

In this context, the question still arises, whether the judgement of the Constitutional Court expanded the meaning of the law beyond what the legislature intended, by requiring the Central Election Commission to assess whether a candidate still poses a threat to Latvia's independence and democracy. The restriction was meant to apply only to those who actively worked in the Communist Party or related organisations between 13 January 1991 and their ban in September 1991. It was a narrow, historically defined measure aimed at people who had tried to restore the Soviet regime during the critical period. Furthermore, by making the Central Election Commission evaluate whether a candidate ‘still poses a threat’, the Court may have given the Commission too much discretion. This would create legal uncertainty, as candidates cannot predict whether they will be disqualified until after registration. Besides, the law, as newly interpreted, could be ineffective: in practice, it applies only to a very small number of individuals (one individual). And, above that, nearly 35 years have passed since the activities in question. Is this restriction still necessary and proportionate in a democratic society?

A more recent case, Constitutional Court of Latvia (2025), concerned a challenge to Article 5.1 of the Pre-Election Agitation Law, which required that paid political advertising be conducted only in the state language, Latvian. The applicant, the political party Saskaņa, argued that this violated freedom of expression under Article 100 of the Constitution.

The Court upheld the restriction, reasoning that it served legitimate aims: protecting national security and democratic order. The decision placed strong emphasis on the potential influence of Russian-language media and the risk of foreign propaganda in the electoral process. Yet the Court offered no empirical evidence linking the use of Russian to actual threats. The assumption that language choice could by itself endanger democracy substituted geopolitical symbolism for factual analysis.

The question, which arises as we speak of geopolitical considerations, is whether restriction of language is appropriate in order to protect national security, official language and a united society. Freedom of expression includes the right to choose language for communication; therefore, political parties are interested and, for this reason, should be free to address voters in the language that best enables them to reach their audience. Restriction of using foreign language in pre-election periods would possibly mean strengthening the national language—Latvian—which statistically has been spoken by the majority of voters. Even more, strengthening the national language was also the reason why the national parliament decided on such a restriction. The Court, however, based its ruling on national security concerns and the alleged risk that the Russian language carries Kremlin influence. Based on this conclusion arises the question, whether language itself should be blamed for ideology, knowing that the unwilling influence of ideology can also originate from the national language. Namely, disinformation also exists in Latvian; therefore, the only issue is content, not language.

ECHR jurisprudence has established that restrictions on political expression during election periods must be narrowly tailored (Mestan v. Bulgaria, European Court of Human Rights, 2023, § 54). Political parties are entitled to address specific voter groups in the language most effective for communication, and any limitation of this freedom interferes with pluralism. Moreover, disinformation can exist in any language; thus, the real issue is the content of speech, not its linguistic form. By conflating language with loyalty, the Court's reasoning risked framing minority identity as a security threat.

The Constitutional Court assumed that Russian language campaigning spreads Russian propaganda. However, there was no proof that using Russian in political ads endangers national security. Therefore, the assumption was contrary to the previously mentioned connection with evidence, established in the case law of ECHR. There also exist safeguards—legal tools to restrict parties that threaten democracy or promote foreign hostile interests, e.g., Political Parties Law, Criminal Law. These mechanisms target specific harmful conduct, not the entire languages.

From a constitutional perspective, the decision blurs the boundary between promoting the official language and restricting minority participation in political life. Strengthening national identity is a legitimate aim, but when justified by vague geopolitical concerns without proof of necessity, it risks producing arbitrariness.

A review of these cases between 2000 and 2025 reveals a gradual shift from concrete assessments of security threats to broader, more abstract invocations of geopolitics. Earlier judgements emphasised evidence-based reasoning and careful balancing of rights. More recent decisions have relied increasingly on generalised assertions of foreign influence or regional tension. These developments underscore a broader risk: when courts adopt the logic of geopolitical defence too readily, they erode the evidentiary rigour that distinguishes constitutional adjudication from political decision-making. The challenge, therefore, is not to deny the reality of external threats but to ensure that their invocation in judicial reasoning remains specific, proportionate and verifiable.

Democracies facing existential threats are often tempted to defend themselves through the restriction of rights and concentration of state power. Yet history shows that democracies rarely collapse through external conquest alone; more often, they erode from within, as exceptional measures become normalised. The challenge is thus to build constitutional mechanisms capable of defending democracy without replicating authoritarian logic.

The idea of wehrhafte Demokratie—a ‘militant’ or ‘defensive’ democracy—emerged in postwar Germany as a constitutional response to the fragility of democratic institutions. Article 18 of the German Basic Law provides that anyone who abuses fundamental rights ‘to fight against the free democratic basic order’ may forfeit those rights, but only upon decision of the Federal Constitutional Court (Pagenkopf, 2009: 723). This provision acknowledges that rights can be weaponised to destroy the system that guarantees them, while simultaneously ensuring that any forfeiture occurs through strict legal procedure and under judicial control.

The Federal Constitutional Court has applied Article 18 only symbolically, notably in the 1974 case BVerfG 2 BvA 1/69 (BVerfGE 38, 23), where it affirmed the principle of defensive democracy but refrained from imposing actual forfeiture (Bundesverfassungsgericht, 1974). This restraint demonstrates that militant democracy is not a licence for repression but a legal doctrine of containment. It reflects the insight that the preservation of democracy requires adherence to legality even when confronting those who would exploit it.

The ECHR has echoed this reasoning. In Refah Partisi v. Turkey (European Court of Human Rights, 2003, § 132), the Court recognised that states may take measures to protect democracy from movements seeking its abolition, but only where there is credible evidence of intent and capacity to undermine the democratic order. Similarly, the Court has insisted that democracy itself is part of the ‘European public order’ and that no one may invoke Convention rights to destroy or weaken it. The principle thus balances protection with restraint: a democracy must be capable of self-defence, but its methods of defence must remain democratic.

In contexts of heightened insecurity, judges face an additional, subtler pressure—the pull of national consensus. When political elites and public opinion converge around the language of threat, courts risk internalising this narrative, interpreting constitutional norms through the lens of fear rather than principle. This dynamic blurs the boundary between adjudication and policy.

Judicial independence, therefore, demands more than institutional autonomy; it requires epistemic vigilance. Courts must recognise when their reasoning unconsciously mirrors executive rhetoric and reassert their evidentiary standards. The duty of independence includes the courage to render unpopular judgements that affirm rights even amid collective anxiety.

Recent ECHR jurisprudence reinforces this point. In Google LLC and Others v. Russia (European Court of Human Rights, 2025, § 71), the Court held that the invocation of national security cannot exempt states from demonstrating necessity and proportionality. The judgement condemned the automatic censorship of digital content deemed ‘threatening to sovereignty’, underscoring that national interest is not a self-justifying category.

These cases illustrate that the judiciary's legitimacy depends on its ability to translate geopolitical claims into verifiable legal arguments. Where courts adopt the language of defence without the discipline of evidence, they risk transforming constitutional review into a form of national-security endorsement.

To preserve the integrity of constitutional adjudication under geopolitical pressure, courts should adopt a structured analytical framework grounded in three interrelated principles:

• Evidentiary Principle—Geopolitical claims must be substantiated by verifiable and independently assessable evidence, not by conjecture or official rhetoric. Courts should require documentation, expert testimony or corroboration by international organisations before accepting such claims.

• Proportionality Principle—Restrictions based on geopolitical reasoning must be narrowly tailored and demonstrably necessary to achieve a legitimate aim. The burden of proof lies with the state, and any residual doubt must favour the protection of rights.

• Temporal Principle—Measures justified by exceptional geopolitical conditions should be temporary and subject to regular judicial and parliamentary review. The indefinite continuation of emergency restrictions is incompatible with democratic legality.

By institutionalising these criteria, courts can strike a balance between constitutional resilience and respect for individual rights. This approach transforms the judiciary from a reactive body that merely validates state security claims into a proactive guardian that ensures democratic defence remains bounded by law.

The paradox of democratic strength lies in restraint. A democracy that abandons its commitment to legality to survive external pressure may win the battle but lose its character. The true measure of constitutional maturity is the ability to resist fear with law. For states like Latvia, positioned at the fault line of geopolitical confrontation, this means refusing to equate vigilance with suspicion or unity with conformity.

Ultimately, the purpose of constitutional adjudication under geopolitical pressure is not to minimise risk but to civilise it—to channel the logic of survival into the logic of rights. The task of the court is to remind the state that security and freedom are not mutually exclusive but mutually reinforcing: the rule of law is itself the most credible form of national defence.