In a recent incident in the Polish Parliament, an extreme right-wing MP, Konrad Berkowicz, displayed a modified Israeli flag bearing a swastika in place of the Star of David while accusing Israel of committing genocide. The legal issue is not that he expressed harsh – even incendiary – criticism of a state. In principle, the ECHR and its case law protects severe criticism of governments, allegations of international crimes, and speech that “shocks, offends or disturbs”. Yet this does not resolve the matter. The question is not whether this speech was provocative, but whether the use of a Nazi symbol by a parliamentary representative remains within the bounds of protected political expression in a European constitutional order shaped by the legacy of Nazism and the Holocaust. In our view, it does not.

Political speech that shocks, offends or disturbs

The starting point is straightforward. Parliamentary speech enjoys heightened protection because legislatures are central arenas of democratic contestation. Political expression, particularly on matters of war, state violence, and foreign policy, is thus the central core of the protection under the ECHR (Lingens v. Austria, paras 41–42). The Strasbourg Court has consistently emphasized that freedom of expression is especially important for elected representatives, who speak not only as individuals but as participants in public self-government (Castells v. Spain, paras 42–43). Accordingly, the Court has been particularly cautious regarding sanctions imposed on parliamentarians for statements made in political debate (Karácsony and Others v. Hungary paras 137–139; Jerusalem v. Austria, paras 36–40). However, this elevated level of protection is not absolute. Parliamentary immunity and the constitutional value of uninhibited debate do not transform every expressive device into legitimate democratic speech.

This point is too often obscured in public discourse. One may defend the broadest possible space for political criticism of Israel – including criticism framed in severe moral and legal terms – without endorsing the public display of a swastika in a parliament. The latter is not merely an intensified form of rhetoric. It introduces into democratic debate a symbol that, in Europe, is inseparable from totalitarian domination, the racial extermination of the Jewish people and persecution of other minorities, and the destruction of constitutional democracy itself.

Importantly, the Court has never treated its pro-speech jurisprudence as a blanket authorization for all forms of political symbolism. In a distinct line of cases, it has made clear that expression connected to the denial, rehabilitation, or normalization of Nazism occupies a fundamentally different position under the Convention.

In Garaudy v. France, the Court held that Holocaust denial and revisionism are contrary to the fundamental values of the Convention and therefore fall outside Article 10 protection. Although sometimes read narrowly as confined to denialism, this interpretation is unduly restrictive. The underlying constitutional logic is broader: the Convention does not require neutrality toward expression that undermines the post-war normative settlement upon which European public order rests.

A similar logic is evident in Nix v. Germany, where the Court declared inadmissible a complaint concerning a conviction for the public use of symbols associated with unconstitutional organizations after the applicant posted a photograph of Heinrich Himmler on his blog. Although the applicant claimed anti-extremist intent, the Court accepted that the use of Nazi symbolism could legitimately be sanctioned, given Germany’s historical experience and the need to protect democratic order and public peace. The key point is not that every such use is automatically punishable, but that claims of metaphor, criticism, or contextual distancing do not confer automatic immunity.

This broader constitutional intuition is also reflected in the Court’s treatment of Holocaust-related analogies and trivialization. Strasbourg has repeatedly signalled that instrumentalizing the memory of the Holocaust for unrelated political causes raises serious concerns under the Convention, particularly where it distorts the meaning of Nazi crimes or degrades the memory of victims. Expressions such as “Holocaust on your plate” (PETA v. Germany) in the context of animal rights advocacy, or “Babycaust” in anti-abortion campaigns (Hoffer and Annen v. Germany), have been treated as breaching one of the few remaining taboos in contemporary European public culture. While the Court’s jurisprudence is not entirely linear, it clearly does not support the view that Nazi imagery and comparisons constitute merely one rhetorical resource among

Nazi symbolism is not just another political metaphor

This is where certain contemporary defences of the Polish incident fall short. They rely on an undifferentiated appeal to “free speech” and the familiar claim that democracy must tolerate even the most offensive political gestures. That argument is incomplete. While democracy must tolerate a wide range of expression, it need not treat all symbols as constitutionally equivalent. There is a qualitative legal and moral difference between radical criticism of state conduct and the normalization of Nazi symbolism as an argumentative shortcut. The swastika is not merely a visual intensifier; within the European legal imagination, it signifies the total negation of human dignity and democratic order.

Under Polish law, the incident also falls within the potential scope of criminal liability, and the Public Prosecutor’s Office has already initiated relevant steps. Article 256 of the Polish Criminal Code criminalizes, inter alia, the public promotion of a fascist or other totalitarian system, as well as incitement to hatred based on nationality, ethnicity, race, or religion. Accordingly, the public display of Nazi symbolism in a parliamentary setting cannot be reduced, in legal terms, to mere provocation or emphatic metaphor. Whether the threshold of criminal liability is met in a specific case depends on a careful assessment of context, form, and communicative meaning. Nevertheless, the relevant point is clear: such conduct cannot plausibly be regarded as lying comfortably outside the domain of punishable expression. This reinforces the constitutional argument. Irrespective of the ultimate criminal law determination, the claim that such expression merits strong protection under freedom of speech standards is exceptionally weak.

At the EU level, the legal framework is not identical, but it points in a similar direction. The Court of Justice has consistently recognized freedom of expression as a foundational value of the Union, now protected under Article 11 of the Charter of Fundamental Rights (Connolly v. Commission, Case C-274/99 P, paras 39–43; Schmidberger, Case C-112/00, paras 79–82). At the same time, EU law does not proceed on the assumption that all forms of political expression are equivalent. The Union is founded on the values enshrined in Article 2 TEU, including human dignity, equality, and respect for human rights. In areas such as audiovisual regulation, non-discrimination, and the fight against racism and xenophobia, EU law accepts that expression may be restricted where it undermines these foundational commitments. The Framework Decision on combating certain forms and expressions of racism and xenophobia by means of criminal law exemplifies this constitutional orientation.

Public institutions as agora

The current debate over parliamentary speech also has a broader institutional dimension. Across Europe, contestation is intensifying not only over what may be said within parliamentary spaces, but also over who may access those spaces and under what conditions. This context lends significance to the pending EU litigation in Demblon v. Parliament, which reportedly concerns an entry ban imposed by the European Parliament following a protest in the visitors’ gallery. Although not directly concerned with Nazi symbolism, the case reflects a broader convergence between questions of speech, access, protest, institutional security, and the permeability of representative institutions. This broader perspective should prompt greater, not lesser, caution in distinguishing legitimate democratic disruption from the introduction of totalitarian symbols into parliamentary discourse. A commitment to openness does not entail neutrality toward symbols of Nazism.

Determinants of counterspeech

In its recent judgment in Mortensen v. Denmark, the European Court of Human Rights afforded robust protection to speech used as response to far-right and anti-Muslim agitation in public debate. It situated the impugned statement within their political context and accepted that forceful condemnation of hatred may serve democratic values. In other words, anti-hatred counterspeech, including in its militant memory spectrum, may function as a tool of militant democracy. While the judgment is significant, it does not imply that every extreme analogy employed in political conflict falls within the protection of freedom of expression. Rather, it affirms that democratic societies must safeguard robust counterspeech against hatred, an importantly distinct proposition.

However, militant democracy framework does not extend to the use of Nazi symbols as tools of contemporary parliamentary rhetoric and condemnation. The distinction is not merely formal; it goes to the structural foundations of democratic constitutionalism in Europe. Counterspeech may defend democracy by exposing and condemning exclusionary ideologies. Nazi symbolism, by contrast, embodies the historical memory of democracy’s destruction. The former can contribute to public reason, even when harsh. The latter corrodes it.