By Natasa Mavronicola, University of Birmingham
Article 3 ECHR is under pressure. At a recent informal
ministerial conference in Strasbourg on human rights day, 10 December 2025, Ministers
from 27 Member States of the Council of Europe prepared a
joint statement that is likely to shape a political declaration at the next
formal session of the Committee of Ministers in Chișinău in May 2026. Two
stand-out elements of the statement concern Article 8 and Article 3 ECHR and indicate
a push towards a re-writing or reinterpretation of these rights in order to
facilitate expulsion decisions, and particularly the removal of ‘foreigners
convicted of serious crimes’.
While references to the qualified right protected by Article
8 are overtly orientated at recalibrating the proportionality assessment
involved in its application in order to favour individual removal decisions and
generalised state expulsion policies, the statement is cast as seeking
‘clarity’ on Article 3, which enshrines an absolute right:
‘Clarity
about inhuman and degrading treatment: The scope of “inhuman and degrading
treatment” under Article 3, which is an absolute right, should be constrained
to the most serious issues in a manner which does not prevent State Parties
from taking proportionate decisions on the expulsion of foreign criminals, or
in removal or extradition cases, including in cases raising issues concerning
healthcare and prison conditions.’
The wording adopted suggests that the Ministers are
taking issue with the contours of the non-refoulement duty under Article
3 ECHR. Yet while the motivation of the pursuit of ‘clarity’ is framed in terms
of easing expulsions, the overarching goal appears to be to constrain the
‘scope’ of inhuman and degrading treatment under Article 3 more generally.
I have written extensively on Article 3 elsewhere,
including in relation to non-refoulement and related state obligations
pertaining to persons in irregular(ised) migration contexts (eg here
and here),
and I hope to write more on the specific wording being contemplated (eg in the
recently published preliminary
draft text from the CDDH) soon. For the purposes of this blog post,
however, I consider these (re)new(ed) efforts to recast the absolute character
and the scope of Article 3 ECHR in more fundamental terms, contemplating what
is really at stake here. I argue that the ‘concessions’ sought on inhuman and
degrading treatment strike at the absolute character and at the core, and not
the (notional) periphery, of Article 3, and threaten the whole human rights
edifice.
Absolute rights and red lines
Article 3 ECHR
is a pithy provision whose categorical terms guarantee an absolute right: No
one shall be subjected to torture or to inhuman or degrading treatment or
punishment. The absolute character of a right entails that it is not
displaceable – that is, the obligations corresponding to the right cannot
be overridden by extraneous considerations. This understanding of absolute
rights is clearly reflected in the jurisprudence of the ECtHR on Article 3.
The ECtHR distils
the absolute character of Article 3 to three main elements (see, for example, Chahal v UK, para
79). First, Article 3 makes no provision for lawful exceptions. In contrast to
other provisions within the ECHR, including Article 8 ECHR, there is no
possibility of lawful interference that is deemed ‘necessary in a democratic
society’ for the fulfilment of a legitimate aim. Second, Article 15 ECHR does
not allow for any derogation from Article 3 even in the event of war or other
public emergency threatening the life of the nation. Lastly, as frequently
underlined by the ECtHR, Article 3 ECHR protects everyone unconditionally,
irrespective of their conduct. In other words, the protection conferred by
Article 3 ECHR is not conditional on any quality or behaviour of the victim or
potential victim.
Given that the Convention, as the ECtHR affirms,
leaves no scope for Article 3 to be justifiably infringed or overridden, the
interpretation and application of Article 3 ECHR necessarily involves drawing red
lines between conclusively unlawful and potentially lawful State conduct. The
ECtHR has developed a rich corpus of line-drawing case-law, with Article 3
being applied in a range of contexts well beyond the conventionally invoked
scenario of interrogational torture – contexts such as police brutality, domestic
violence, child abuse and child neglect, and subjection to degrading detention
conditions and living conditions (see the analysis here,
here
and here).
It has elaborated the now well-established non-refoulement obligation
under Article 3 ECHR, which prohibits the removal of persons to places where
there are substantial grounds to believe that they face a real risk of torture
or inhuman or degrading treatment or punishment. Non-refoulement also
necessarily entails a ‘procedural obligation under Article 3 of the Convention
to assess the risks of treatment contrary to that provision’ (MA and ZR v Cyprus,
para 95).
The three elements of absoluteness outlined by the
Court – no exceptions, no derogations, and the unconditional protection of all
persons within the jurisdiction of Contracting States – shape the
interpretation of the right. As I argue in my study
on Article 3, to adhere to its absolute character, the contours of the
right must be specified in such a way as to set a firm, and not porous, red
line; through reasoning that relates to the nature of the wrongs at issue and
not to extraneous considerations; and without displacing the right through the
back door by incorporating qualifications, conditions, or other mechanisms of
displacement into the right’s interpretation.
The nascent proposal we find in the 10 December
statement is already indicative of reasoning that falls foul of the
fundamentals of interpreting an absolute right. While it may purport to be
concerned with ‘seriousness’, a word not dissimilar from the ECtHR’s references
to a ‘minimum level of severity’ in drawing Article 3’s red line, the intent does
not appear to be to grapple meaningfully with how severity is understood and
why. The reference to seriousness as the qualifying criterion is swiftly
followed by a more overt indication of what states seek to carve out of the
right’s protection: ‘proportionate’ expulsion decisions. The words ‘in a manner
which does not prevent’ make it clear that this is not an exercise in reasoning
through notions of severity, but a push to redraw or arbitrarily vary the red
line so as to enable states to expel, remove or extradite people more easily. The
intention of carving out desired conduct, coupled with the use of the term
‘proportionate’, which alludes to extraneous considerations that purport to
outweigh Article 3’s imperatives, exemplifies displacement (of at least
elements of the right) through the back door.
Moreover, the statement
beckons to the ECtHR to redirect the line-drawing to states. To the question of
how to determine what constitutes treatment that is not serious enough to fall
foul of Article 3 ECHR, the ministerial statement’s thinly veiled answer is ‘according
to what states feel strongly about being allowed to do [in this instance, in
the context of migration]’. What states wish to do is equated with a lack of
gravity. The idea that the ECtHR should adjust the ‘minimum level of severity’
threshold to exclude certain action that states wish to take, in relation to
people that they have little desire or political incentive to protect,
contradicts not only absoluteness but also the rule of law. Human rights law is
there to hold states to certain minimum standards, and these are meant to be delineated
by the ECtHR on a basis distinct from whatever State authorities consider preferable
or convenient in any given context.
The core of Article 3
It seems to me that implicit in what is being floated in these
(re)new(ed) attempts to vary the scope of Article 3 is the notion that what is
being proposed is merely tinkering with (or, euphemistically attaining
‘clarity’ on) the periphery of the right. This notion is false.
What is Article 3 about? Torture, the wrong identified in the
title of the right enshrined in Article 3 (‘Prohibition of torture’), is not
simply about the infliction of suffering. It involves, as Jay Bernstein
has put it, showing to the victim ‘that her standing as human is
insupportable and unsustainable’. Elaine Webster
reflects that torture embodies, and indeed is an archetype of, ‘symbolic
exclusion from the human community’. Michelle Farrell
comments that torture is ‘the reduction of the human … to the status of less
than human’. Jean Améry,
seeing precisely this ‘quality’ in the torture he endured at the hands of
the Nazis, argued that ‘torture was not an accidental quality of this
Third Reich, but its very essence’.
There is, in torture, not just a violation of the human person
themselves, but also a profound rupture in our relational humanity and a
repudiation of the equal and elevated status ascribed within the human rights
edifice to all human persons, and the basic respect and concern that it
demands. It
is for this reason that Améry saw torture as the
‘apotheosis’ of Nazism, which ‘hated the word “humanity” like the
pious man hates sin, and [thus] spoke of “sentimental humanitarianism”’.
Article 3 stands against treatment that falls foul of
our relational, deontic humanity – or, in other words, our human dignity. While
inhumanity and degradation may not involve the fanfare of denial of
human dignity that torture encompasses, they nonetheless fundamentally convey ‘that
this creature does not matter, at least not like a person does’. They lie,
in other words, on a continuum of radical othering.
The ECtHR’s jurisprudence reflects Article 3’s
imperative of countering the many forms that dehumanisation can take,
particularly in relation to persons who find themselves on the margins of
public, political or indeed judicial goodwill. Besides its demands in the
context of irregular(ised) migration, Article 3’s extensive application in the
prison context goes some way to reclaim the humanity of people who are all too
often at best disregarded and stigmatised and at worst treated as ‘human waste’.
Torture as well as inhuman and degrading treatment and
punishment are part of a cycle
of othering – they happen predominantly to persons who are othered, and
mark them as ‘other’. These practices thrive where hatred, stigma,
marginalisation, discrimination or systemic disregard prevail. Those whose life
and welfare are rendered marginal are considerably more vulnerable to torture
and inhuman or degrading treatment or punishment.
The 10 December statement is therefore all the more
pernicious in this light: by foregrounding a perceived imperative of stripping
non-nationals of certain protections established under Article 3 ECHR, the
statement not only contradicts the unconditional character of Article 3 but
exemplifies the dehumanisation that Article 3 was meant to guard against. Insofar
as the proposals’ purpose is that of (explicitly or implicitly) demarcating
those that particular publics think deserving of cruelty or inhumanity (or
simply undeserving of rights), and reducing their protection from such abuses
accordingly, they therefore stand at odds both with the right’s absoluteness
and with the core of what the right stands for. Assuming that we can preserve
the core or essence of Article 3 by making such concessions on the contours of
inhuman or degrading treatment, or the non-refoulement duty, or both, would
be deeply misguided.
The heart of human rights
What Article 3 proscribes goes to the heart of human
rights. The ECtHR has repeatedly underlined that ‘the very essence of the
Convention is respect for human dignity’ and that Article 3 is ‘closely bound up with respect
for human dignity’. Article 3 stands as an archetype of a collective
commitment to uphold human dignity in all circumstances, by ensuring that every
human person is afforded a baseline of respect and concern. It should be noted
that it does not represent our success in doing so – torture and inhuman
and degrading treatment remain as pervasive as they are egregious, and this is
indeed part of the reason why the duty not to remove people to places where
they face a real risk of such abuse is an essential aspect of Article 3. In
that sense, Article 3 constitutes a vital if yet unrealised promise to meet the
demands of human dignity, and the jurisprudence that has emerged out of Article
3 represents a remarkable and perhaps unparalleled effort to do so within human
rights law.
To abandon this promise in the way contemplated by the
ministerial statement is to abandon the egalitarian, dignitarian premise of
human rights. As the CoE Commissioner for Human Rights Michael O’Flaherty has aptly
put it, the recent ministerial statement evokes a ‘hierarchy
of people’, a stance associated with ideologies that reject the ‘human’ in
human rights – and which Jean Améry recognised as fundamental to his experience
of torture. Human dignity represents the rejection of such a hierarchy, and the
absolute right protected by Article 3 ECHR constitutes one of the most potent
concretisations of this rejection. Diluting or denting Article 3 in the manner
proposed would be an attack on human dignity that would strike at the heart of
human rights and threaten the whole human rights edifice.
Conclusion
Article 3 is a vital source of protection for people
who fall through the cracks of majoritarian processes and dominant
socio-political norms and practices, people who find themselves on the margins
of society’s regard, disenfranchised or otherwise disempowered, and whose abuse
might otherwise have faced too few barriers and attracted little meaningful
redress or condemnation. Being a bulwark against such abuses was always Article
3’s purpose, and the basis for its absolute character: both because torture and
inhuman and degrading treatment tend to be inflicted on persons who are
othered, and, crucially, because the wrongs of torture, inhumanity and
degradation have othering at their core.
It is precisely in contexts where it has attracted
backlash, such as the migration context, that Article 3’s importance in
vindicating the egalitarian character of human rights and the unconditional
protection of human dignity is most evident. To continue to uphold Article 3 as
an absolute right is to remain faithful to the premise and still-unrealised
promise of human rights.
Saving Article 3 ECHR from the concessions or
dilutions proposed in the 10 December statement is an imperative of the highest
possible stakes. To borrow from Jeremy
Waldron, messing with Article 3 ECHR in this manner does not begin our
descent down the slippery slope, but finds us at the bottom.
Acknowledgements
I am grateful to Alan Greene, Corina Heri and Lydia
Morgan for comments on earlier versions of this blog post.
