The ECHR’s Procrustean bed: A final call for perspective in the Chișinău process

By Alice Donald and Andrew Forde

In Greek mythology, Procrustes made visitors fit his bed by either stretching them or cutting off their legs. Sure, they would “fit” the bed, but at what cost? Applying an arbitrary approach to a complex problem and ignoring the harm that may result, Council of Europe governments are building their own Procrustean bed.

 

Member states will meet in Chișinău in May to adopt a political declaration on migration and the European Convention on Human Rights. It marks the first time that states have embarked on a process that, judging by its origins and conduct, can only result in a regression in human rights protection for certain (still ill-defined) categories of migrants and perhaps, in time, for everyone.

 

The process stems from an Informal Ministerial Conference on 10 December 2025, where states instructed the Steering Committee for Human Rights (CDDH) to prepare elements for the political declaration (see the latest iteration here). Following meetings in January and February, and another on 10-12 March, the CDDH must report back by 22 March so that Ambassadors can finalise the declaration before the Committee of Ministers (CM) meets on 14-15 May 2026.

 

Much has been written about the Chișinău process and the letter of nine of May 2025 and Joint Statement of 27 states issued in December, which effectively set its agenda; see our submission to the CDDH, analyses of the process (Acconciamessa, Donald and Forde, Glas, Krommendijk and Möller) and commentaries focusing on the risk of weakening Article 3 in expulsion cases (Fikfak, Mavronicola). 

 

Here, we argue that the process has not escaped its problematic origins in the politicised sniping at the Court from various capitals. It has been rushed and exclusionary, and brings greater risks than benefits for a system already under pressure. The result has been a narrative driven by certain states without a clear evidential basis, with many silent states yet to reveal their hand publicly. We urge member states to use the remaining weeks to build on points of progress and minimise the scope for unintended consequences, transforming the Chișinău Declaration into something constructive for the Convention system and states alike.

 

Comparison with Interlaken

The Chișinău process compares unfavourably with the Interlaken process from 2010-2020. Interlaken had a clear and constructive purpose – “reinforcing the effectiveness and sustainability of the Convention system”. While its impact was mixed, and some states used it as a venue to challenge the authority of the European Court of Human Rights, it had a solid evidential basis: the unsustainable caseload in Strasbourg caused by states’ failure to fully implement the Convention and the Court’s judgments.

 

The Interlaken process also allowed for participation by civil society and national human rights institutions (NHRIs), including through the CDDH and its subcommittees. High-level conferences stressed the importance of external consultation, which in turn influenced the declarations, notably Brighton in 2012 and Copenhagen in 2018.

 

A rushed and politicised process

By contrast, the Chișinău process is unusually compressed. In October 2025, the Secretary General proposed a high-level conference and the adoption of a declaration in 2026, but this did not bind states to a May deadline, which was set by Ministers at the 10 December meeting amid growing political pressure from some states. The timetable – less than six months from start to finish – was unduly short to consider such consequential issues and has made it difficult for external stakeholders to contribute (although we acknowledge, and appreciate, that our unsolicited submission was informally circulated to CDDH members). It has also largely precluded consultation or parliamentary deliberation at national level. The “very short deadline” also led the CDDH to decide, unusually, that comments submitted by participants and observers would only be discussed when supported by the delegation of a member state.

 

Not only is the Chișinău process less inclusive than Interlaken, but it also has more parochial aims, reflecting some states’ wish for a freer hand to reduce migration and speed up expulsions while reducing the scope for legal challenge based on the ECHR. The process must also be seen in the context of the EU Migration Pact, which enters into force in June, just a month after the declaration. The Pact already pushes the boundaries of human rights law, and EU states may be hoping that the Chișinău declaration will serve as a convenient shield for the measures foreseen nationally and collectively under the Pact. 

 

The CDDH process

It is welcome that the process has been brought within the proper channel of the CDDH, which allows for structured, comprehensive and transparent discussions, with the participation of the other Council of Europe organs and observers drawn from civil society, academia and NHRIs, supported by an expert secretariat. Yet, many of these potential advantages now risk being squandered.

 

The Council of Europe Commissioner for Human Rights has proposed four yardsticks for the  process: that it should be law-based rather than driven by political considerations; factual and evidence-based; firm on the principles of the universality of human rights and the Court’s independence; and transparent to the public.

 

We now consider how far these have been – or still could be – achieved.

 

Law-based or political?

The overtly political origins of the Chișinău process justify the Commissioner’s concern for the declaration to be legally watertight.

 

Some significant revisions have been made in the CDDH document between its first and second iterations. For example, the latest version omits an earlier suggestion that, in situations of “mass irregular arrivals”, states may apply “rules-based decision-making … without necessarily examining individual circumstances in every case”. This proposal ran counter to the Council of Europe’s 2009 Guidelines on accelerated asylum procedures and was not supported by the Court’s case law. 

 

Another welcome revision is the removal of a statement in the section on “instrumentalisation of migration” that the concept of “democracy capable of defending itself”, as developed in the Court’s case law under Article 17 (prohibition of abuse of rights), may be relevant. This could have been read as suggesting that applicants alleging violations during state pushbacks were complicit in their own instrumentalisation and attempting to undermine the Convention system – a troubling echo of the Joint Statement of 27 states, which referred, without substantiation, to human rights being instrumentalised by “hostile regimes and individual applicants with ulterior motives” (emphasis added).  

 

However, other questionable passages that evince the blurring of the legal and political remain. These include ambiguous statements that could be read as seeking to qualify or relativise states’ obligations, e.g. that in determining the minimum level of severity for inhuman or degrading treatment or punishment, the Court should “[avoid] unnecessary constraints on decisions to extradite, or to expel foreign nationals”. This implies, without reference to case law, that the Court creates "unnecessary constraints” and, moreover, could be read as an instruction to the Court in disregard of its interpretive authority under Article 32.

 

It is problematic, too, that the CDDH document retains references to case law from which the Court has expressly distanced itself. For instance, it cites the 2012 judgment in Babar Ahmad and Others v UK to the effect that “treatment which might violate Article 3 because of an act or omission of a Contracting State might not attain the minimum level of severity which is required for there to be a violation of Article 3 in an expulsion or extradition case”. This relativist approach was rejected in 2022 by the Grand Chamber in Sanchez-Sanchez v UK, which stated that the Court “does not consider that any distinction can be drawn between the minimum level of severity required to meet the Article 3 threshold in the domestic context and the minimum level required in the extra-territorial context”.

 

It is not only specific passages but also the framing of the Chișinău process that is questionable, in at least two respects.

 

First, while the CDDH text states that the principle of non-refoulement is codified in other international instruments (the UN Refugee Convention and Convention Against Torture) and reflective of customary international law, it fails to sufficiently acknowledge that Convention standards reflect other norms of treaty and customary international law and are applied consistently with other standards of international human rights law and refugee law. This omission matters in national contexts, like the UK, where the ECHR has become the focus of opprobrium of radical right wing parties and public debate is insufficiently informed about the range of treaty obligations that states have undertaken and their mutually reinforcing nature.

 

Secondly, the process has been framed as a zero sum trade-off between, on the one hand, human rights (especially migrants’ rights) and, on the other hand, national security and public safety. For example, the CDDH document underlines in relation to Article 8 that “the right balance must be struck between individual rights and interests and the weighty public interests of defending freedom and security”. Yet, elsewhere, the text recalls that in matters of national security, the Court affords national authorities a wide margin of appreciation and attaches significant weight to their decision making. In sum, the text appears to acknowledge that the Strasbourg framework is capable, without amendment or reinterpretation, of being applied by domestic authorities in a way that gives due respect to the public interest and discretion of national authorities. Certainly, no case law is adduced to suggest otherwise – unsurprisingly given the Court's increasingly deferential approach to states in its case law on migrants’ right to private and family life.  

 

The framing of human rights and security as being inherently in tension has been contested in the context of anti-terrorism measures. Similar scrutiny is warranted in the migration context. The implication that migration correlates with increased criminality at a societal level has not been substantiated in the Chișinău process and ignores evidence to the contrary. This framing risks reinforcing intolerance by scapegoating migrants for public policy challenges not of their making – and highlights the need for careful presentation of evidence in making any case for change.

 

The need for evidence and guidance 

This brings us to the Commissioner’s plea for clarity about the nature and scale of migration-related issues facing states. 

 

The CDDH text reveals the potential to misrepresent data. For example, it states that “a significant reduction in irregular maritime crossings may result in a reduction in the loss of lives at sea”. Data relating to Mediterranean routes show no correlation between the number of crossings and the numbers who died or are missing; for example, when arrivals peaked at more than one million in 2015, there were 4,055 losses, while in 2016, when some 364,000 people crossed the Mediterranean, there were 5,136. Data analysis would reveal why death rates are variable, including changes to states’ search and rescue policies, use of excessive force and unlawful killings. The text as it stands is misleading in its suggestion that blocking maritime crossings would necessarily save lives.

 

More broadly, the political declaration should be accompanied by data and case law analysis that provides a public evidence base both for the perceived problems and the proposed solutions. There is no uniform migration experience across European states, but rather a variety of policy challenges experienced to different degrees by different states. For member states to arrive at targeted and effective solutions, the necessary starting point is a triage of the issues they face. This should encompass factors that may impede the efficient removal of individuals who have no legal right to remain in a state, such as resource constraints, administrative blockages and problems in cooperation with receiving states.

 

If, in addition, governments consider that domestic decision makers are not keeping pace with the Court’s case law, they have the opportunity – indeed responsibility – to correct them, whether through guidance, legislation or a more active domestic litigation strategy, as the UK Attorney General has advocated. Further, if as the CDDH text states, member states need "further guidance” from the Court on questions of interpretation,  they may seek an Advisory Opinion from the Court under Protocol No. 16 or engage in dialogue with other Convention actors, which would serve to reinforce the principle of subsidiarity – properly conceived – and avoid fundamentally compromising the system.

 

Firm on core principles

On the question of universality, the Commissioner has ventured that, “Any discourse that suggests a hierarchy of rights holders on the basis of their being more or less deserving is deeply problematic”. By design, or by consequence, if certain groups of rights-holders are singled out and states make it clear how they want the Court to go in its reasoning, we are moving towards a managed retreat from the very idea of universal human rights protection.

 

Another key concern is respect for the interpretive authority of the Court under Article 32, especially in the section of the CDDH text on “instrumentalisation” of migration. It includes a definition of instrumentalisation which is, without a citation, adapted from an EU source; states that instrumentalisation “may raise new legal and factual issues”; and adds that member states “look forward to receiving guidance from the forthcoming Grand Chamber judgments in the pending cases”. This passage strays uncomfortably close to pressurising the Court and usurping its interpretive authority: to date, neither the Court nor the Council of Europe has defined instrumentalisation, and the Court has not determined whether it raises new legal issues. Pronouncements by member states on pending cases also appear ill-suited to a declaration that aspires to longevity.

 

Transparency

The CM notes in its 2017 Guidelines for civil participation in political decision making that participation is “at the very heart of the idea of democracy” to help ensure that public needs are met and democratic pluralism upheld. Information, it adds, should be “provided in a timely manner allowing for substantive input while decisions are still reversible” (emphasis added). 

 

The Chișinău process falls short of these standards. While publication of the CDDH texts is welcome, submissions by governments, participants and observers have not been published due to the “interest in ensuring an appropriate environment in which to conduct negotiations on these sensitive issues”. This relative lack of transparency has been exacerbated by the unreasonably rushed and non-inclusive nature of the process.

 

Meaningful engagement serves multiple purposes, including ensuring better quality, more acceptable, more legally robust and practically implementable outcomes. Civil society actors are key partners in building the public trust and confidence in the Convention system to which the CDDH text aspires.  

 

Conclusion

The Chișinău process is moving into the political negotiation phase where states will hope to reach unanimity. It remains to be seen how the CM will manage the process between now and the Moldova summit, but what does seem clear is that states committed to a rules-based international order and those “on the fence” still have significant leverage to make Chișinău a win-win proposition – an honest acknowledgement of challenges and a tool for progress. But this requires clear-eyed reflection by member states: they need to examine the veracity and “shelf-life” of their current positions and reflect on alignment with their longer-term interests at a time when Europe faces an aggressor to the east, uncertainty to the west and the risk of international rupture.

 

Political engagement with the ECHR system is not only welcome, it is essential. We need more good faith political engagement, not less. States should maximise their use of the robust feedback loop in the Council of Europe, raising specific concerns including within the framework of the CM, the network of superior courts and the Parliamentary Assembly.  

 

And what of Procrustes? He was ultimately undone by Theseus, champion of Athenian democracy. Theseus used no weapon, he simply applied Procrustes' own arbitrary standard to the giant himself – finishing him on his own bed. If member states weaken the European human rights system to solve today’s migration challenges, they may find that the same approach of diminishing protections and expanding state powers will, one day, be used to target the very democratic freedoms they currently seek to defend.

New ECHR Readings

Please find below our newest selection of academic readings related to the European Convention on Human Rights and its Court: 

* Tobias Mortier, ‘The four horsemen of illegitimacy? Unveiling the ECtHR’s interpretation of its legitimate aim requirement through a comparative categorization of illegitimate aims’, Human Rights Law Review , vol. 26, issue 1 (2026):

‘Most rights in the European Convention on Human Rights are qualified, meaning that restrictions imposed upon them can be justified. To that end, the aim in pursuit of which the State adopted the restriction is critical, with the European Court of Human Rights (ECtHR) requiring that this aim be legitimate. In practice, however, the ECtHR does not regard this ‘legitimate aim’ requirement with much interest, resulting in the appearance that nearly all aims will pass this test. Yet, there are a few aims that the ECtHR has rejected in its case law. Drawing inspiration from the case law of the US Supreme Court, an institution that does scrutinize governmental purpose more consistently, this article asks what the ECtHR can learn from the aims that have been denounced as illegitimate by the US Supreme Court. The article provides a two-fold argument. First, assessing aims through the lens of illegitimacy rather than legitimacy provides important lessons for the ECtHR. Second, the ECtHR would benefit from linking its legitimate aim analysis more closely and consistently with the principles and values of a democratic society, which constitute the basis for findings of illegitimacy in the ECtHR’s case law.’

* Katerina Aikaterini Tsampi, ‘Rethinking the predominant purpose test under Article 18 ECHR—lessons from the détournement de pouvoir à la française', Human Rights Law Review , vol. 26, issue 1 (2026): 

‘The doctrine of détournement de pouvoir illustrates how legal transplants from domestic legal orders can shape the European Convention on Human Rights (ECHR) system. Originating in French administrative law, its influence on Article 18 ECHR highlights both the promise and pitfalls of legal transplants. Although Article 18 lay dormant for decades, its recent activation has strengthened the Convention’s capacity to address rule of law violations. Yet the ECtHR’s adoption of détournement de pouvoir—particularly through the ‘predominant purpose’ test in Merabishvili—reflects a broad and somewhat mechanical borrowing. The Court did not fully consider the doctrine’s French nuances, instead holding that Article 18 is violated only where the illegitimate aim outweighs the legitimate one. This approach generates ambiguity. In this sense, the test functions as a ‘legal irritant’. A more tailored adaptation, through transposition and tuning, is necessary to ensure that domestic legal concepts enhance rather than disrupt the ECHR system’s legal coherence and effectiveness.’ 

* Antonio Di Marco, ‘The ambiguous complementarity of twins: co-operation between the European Union and the Council of Europe’, Human Rights Law Review, vol. 26, issue 1 (2026):

‘The co-operation between the European Union and the Council of Europe is traditionally regarded as complementary in the integrative process of the European continent. This study argues that such characterization constitutes a conceptual illusion, hiding an asymmetrical relationship with the potential to undermine the credibility of the Council of Europe. Through an analysis of the legal basis for co-operation, an examination of their institutional co-ordination, and an assessment of the operational integration achieved to date, the study illustrates how these two organizations interact in practice. It advances the argument that their relationship is shaped by a functional hierarchy, grounded in the diversity of their functions. By evaluating the degree of institutional and operational asymmetry in the protection and promotion of human rights, the study also assesses the implications that the Union’s accession to the European Convention on Human Rights, or its prolonged postponement, may have on the current cooperative framework.’ 

* Nikos Koumoutzis, ‘Presuming parentage in lesbian – as in heterosexual – couples? Equal treatment claims before the European Court of Human Rights: Boeckel and Gessner-Boeckel v Germany, and R.F. and Others v Germany’, The International Journal of Human Rights (2026):

‘It is increasingly common in married or registered lesbian couples to conceive children through assisted reproduction with donor sperm. In these families, parentage is automatically attributed to the woman giving birth, while the birth mother’s spouse or partner – sometimes even the egg provider – must typically undergo adoption to be recognised as the other parent. This starkly contrasts with heterosexual couples in which the birth mother’s spouse is the other parent by virtue of the presumption of legitimacy, without further steps, sparing stakeholders from legal uncertainty, costs, and emotional strain. This article examines how the European Court of Human Rights responds to claims of alleged discrimination caused by this disparity, with particular attention to Boeckel and Gessner-Boeckel v Germany and R.F. and Others v Germany. It argues that ‘biological differences’ between the couples are insufficient to explain the unequal treatment. At the same time, it considers whether such unequal treatment can be justified on grounds of collective interests, drawing on broader case law under the European Convention on Human Rights, where it provides necessary contextual background for specific points of the analysis. It concludes that, in certain circumstances, States retain discretion to refuse a gender-neutral extension of the presumption of legitimacy and thereby perpetuate the systemic imbalance in their family laws.’

* Aleksandra Mezykowska, ‘Reparations for victims of the war against Ukraine: reconciling the available legal avenue before the ECtHR with the emerging compensation mechanism’, The International Journal of Human Rights (2026):

‘This article examines how consistency and effectiveness can be ensured within the fragmented international reparations framework through which victims of Russia’s aggression against Ukraine may seek redress. In particular, it focuses on the parallel operation of the European Court of Human Rights (ECtHR) and the Register of Damage for Ukraine (the Register), which constitutes the first component of an international compensation mechanism. Despite their different legal nature, both bodies are currently dealing with large numbers of closely related claims that may be submitted by the same individuals, although the Register currently accepts only claims concerning harm inflicted on or after 24 February 2022. The article argues that, as a matter of principle, individual claims arising from the full-scale invasion should be channelled to the compensation mechanism. Following the ECtHR’s judgment in Ukraine and the Netherlands v. Russia of July 2025, the Court could adopt an approach analogous to the pilot-judgment procedure with respect to remaining individual applications, striking them out and directing applicants to the Register. This would require the Court to consider the Register an effective remedy within the meaning of the Convention. Such an approach would reduce jurisdictional duplication, prevent double recovery, enhance legal certainty and procedural economy, and facilitate broader access to reparations for affected individuals.’ 

New Book on Legal Mobilization of Workers before the ECtHR

Filiz Kahraman (University of Toronto) has just published a new book entitled 'Labor in Hard Times: Workers' Legal Mobilization at the European Court of Human Rights'. It discusses workers' turn to human rights litigation before the European Court of Human Rights and the impact of this litigation. This is the abstract:

'Labor in Hard Times examines how organized labor in Turkey and the United Kingdom turned to international human rights law in response to domestic repression and neoliberal restructuring. Drawing on extensive fieldwork and a unique database of labor rights cases, the book traces how workers used litigation at the European Court of Human Rights not just to win legal victories, but to build political pressure, assert legitimacy, and reclaim space for collective action. Focusing on public sector unionists in Turkey and blacklisted construction workers in the UK, it offers a rare view of how grassroots activists and lawyers mobilized international law as a tactical resource: Workers engaged rights discourse strategically to pursue concrete goals, while remaining rooted in class-based solidarity. With vivid case studies, this book speaks to readers interested in international courts, human rights, and the evolving strategies of labor movements in an era of democratic backsliding and global inequality.'

Workers' Legal Mobilization at the European Court of Human Rights

 

The Court's Annual Report and Opening of the Judicial Year

At the end of January, The European Court of Human Rights organised its opening of the judicial year and published its annual report.

At the formal opening, the President of the Court, Mattias Guyomar, in his speech called for judicial unity and solidarity in the face of changing realities in the world. He called on judges of superior courts in the Convention's state parties, saying about the ECHR: "We are all ‘Convention judges’, having this legal embodiment of humanism, in our hands."

The President also mentioned a number of statistics, which are to be found in greater detail in the Annual Report 2025 of the Court: the number of pending cases decreased by 11% in the past year to around 53,450 currently, even n the face of the influx of 31,000 new applications. The Court's docket, although still very large, is through the efforts of the registry now at its lowest point in two decades. Notable, the average time of dealing Wirth impact cases has decreased from a staggering 68 months to 28 months now and the Court aims to bring this back to 1,5 year (18 months) eventually. The President also emphasised: "The European Court is both a whistleblower and a guardian of democracy and the rule of law at the European level. The Convention is our common good and applying it every day is our shared responsibility." Al the more important of course, in the context of the ongoing political debates around the Court and the Convention.

As every year, the official opening was accompanied by a judicial seminar. This time the topic was 'Defending media pluralism and the democratic process in challenging times.' Four aspects were discussed more in detail: “Media pluralism and the right to information,” “Freedom of information and the competences of the European Union: the case of restrictive measures,” “The integrity of the democratic process and judicial control,” and “The free expression of the people’s will as a prerequisite for the protection of a democratic state order.” The background paper to the seminar, which discusses the Court's case-law on these issues can be found here. The President of the Court also spoke here.

New Book on the ECtHR and Authoritarian Populism

Alain Zysset (University of Glasgow) has just published a new book, entitled 'Responding to Authoritarian Populism at the European Court of Human Rights: A Calibrated Framework'. The book focuses on authoritarian populism as a threat to democracy and the rule of law and the way in which the European Court of Human Rights responds and should respond to this. This is the abstract:

'The book offers the first systematic account of the European Court of Human Rights' actual and potential response to the wave of authoritarian populism consolidating across Council of Europe states. It develops an original framework combining philosophical, social-scientific and legal analysis. The book first develops the claim that authoritarian populism is characterised by a severe distortion of democracy and a corrupt rule of law. Drawing on these insights, the book points to the infrastructural erosion of Convention rights, highlighting the limits of the Court's 'democratic society' in the media, judicial, and electoral domains. Taking into account the Court's subsidiary position, the book demonstrates how the Court's proportionality test can and should be enhanced to better detect and respond to infrastructural erosion across these areas.'

‘We Make It, You Take It’: Fake Dialogue and Genuine Pressure between the States and the European Court of Human Rights

By Kanstantsin Dzehtsiarou, University of Liverpool

The Dialogue

The Steering Committee for Human Rights (CDDH) has just published a Preliminary Draft Text for the Outcome Document Containing Elements for a Political Declaration. Most of this document is dedicated to the issues of migration, something that occupies the minds and hearts of the member states. I am sure that this part of the report and subsequent declaration will attract a lot of academic attention. The commentary by Natasa Mavronicola on Article 3 ECHR already engages with some of the core issues. I will look at another part of this document, namely the dialogue between the states and the European Court of Human Rights (the Court or the ECtHR) which is included in its final section.

Before I consider this part of the document, I need to make an introductory remark. The context in which the formal session of the Committee of Ministers in Chisinau is going to happen should not be ignored: the states are trying to influence the Court and to reduce its impact on human rights protection in Europe. Looking at how the recent discussions around the ‘reform’ of the Court and Convention have taken place, it is perhaps the notion of pressure that more precisely captures the current iterative and asymmetric nature of  interaction and intentions between the Court and the states. This means that even those ideas that could have been seen positively in other circumstances have to be treated with caution now. With this principle in mind, I will review what this less controversial part of the draft document has to offer.

This section of the draft document discusses ‘dialogue’, which, in my view, does not capture the fact that this exchange is taking place between vastly different actors with significantly different procedural and political roles. I explored this exchange in the context of feedback loops previously and argued that giving the opportunity to the states to voice their concerns is a positive thing which can prevent exit from the organisation. That said, a particularly delicate balance must be maintained between the legitimate articulation of issues and the exertion of pressure on the Court. While the former may be both appropriate and constructive, the latter is clearly unacceptable. By way of example, the well-known leaked letter of nine cannot be characterised as a form of feedback; rather, it constitutes a clear instance of abstract political pressure on the Court.

Much like I did in my paper, the CDDH begins this section by presenting what might be described as a “shopping list” of potential feedback loops. This is one of the challenges that the drafters of CDDH draft document had to tackle, namely that the Court already engages extensively in feedback loops with member states. This exchange is done through visits, regular meetings with higher national courts and other authorities, through the Superior Courts Network, various formal and informal routes, before and after certain judgments are adopted. So, the exchange of feedback between the Court and member states has not been absent. This part of the draft document mostly elaborate on mechanisms that have already been in operation for many year but some suggestions are more controversial which practical operation and implications are not immediately apparent. In this blog, I will zoom in on three of those proposals that concern third-party interventions, referrals to the Grand Chamber, and the new so-called forum for dialogue.

Third-Party Interventions

One such practical suggestion concerned third-party interventions from the states into cases pending before the Court. This mechanism provides an effective means for interested states to engage in a direct feedback loop with the Court prior to the delivery of its judgment. In a separate paper, I examined states’ engagement with this procedural avenue and argued that such interventions are frequently motivated by self-interest, in particular by a desire to influence the Court’s approach to issues that may have implications for the intervening state itself. The Court, in turn, appears well aware of these underlying motivations and assesses such interventions accordingly.

Through the document the CDDH urges the Court to ‘facilitate third-party interventions in appropriate cases’. It is not immediately apparent what is meant by such ‘facilitation’. Interviews conducted with government agents for the purposes of my research suggest that, while communication between the Court and national authorities is not always optimal and information about significant cases may occasionally reach agents at a late stage, this is not the primary obstacle to more frequent third-party interventions. Rather, there was broad agreement among interviewees that the principal impediment lies in resource constraints at the national level. In most states parties, responsibility for litigation before the Court is discharged in-house by relatively small teams, which lack the capacity to prepare third-party interventions in addition to their existing workload as respondent states. The Chisinau declaration should perhaps encourage the member states to resource their representatives before the ECtHR better and instruct them to intervene in sensitive cases.

While third-party interventions by states may be genuinely helpful in certain cases, they are not an unqualified good, for at least two reasons. First, such interventions inevitably have the potential to prolong proceedings, particularly where the Court decides to make specific procedural arrangements to accommodate them. Given that the Court is frequently criticised for the length of its proceedings, an increase in multiple third-party interventions is unlikely to alleviate this concern. One can however suggest that the Court will be able to absorb a relatively small increase of such interventions in small number of high profile cases. Second, third-party interventions carry an inherent risk of exerting pressure on the Court. Although my research on third-party interventions in Grand Chamber cases did not reveal any clear link between such interventions and more lenient judicial outcomes, a systematic increase in the practice would make such pressure more difficult for the Court to disregard. This concern is particularly acute in light of the possibility that the forthcoming Chisinau Declaration may encourage the Court to accord greater weight to such interventions.

In sum, encouraging state interventions is not a risk-free idea in the context of increased hostility towards the Court especially in certain areas. While in some cases, third-party interventions might enhance the decision-making process, and make the judgments more holistic and well grounded; if overused they can mount unnecessary pressure on the Court both in terms of resource implications and more importantly political considerations.

Referrals to the Grand Chamber

Another suggestion advanced by the CDDH concerns requests for referral to the Grand Chamber of the Court. One procedural route by which a case may come before the Court’s most authoritative formation, composed of seventeen judges, is through referral following the delivery of a judgment by a Chamber of seven judges. In such circumstances, a request for referral may be made by one or both of the parties to the proceedings. The suggested wording is to ‘[r]eiterate the invitation to the Court to adapt its procedures to make it possible for other States Parties to indicate their support for the referral of a case to the Grand Chamber when relevant, which may be useful to draw the attention of the Court to the existence of a serious issue of general importance’. Perhaps in practice this would mean that the Court will have to inform member states of all referrals and ask if they would support any of them. I would expect these statements of support to be reasoned and explain why a particular state would like to see the case under consideration in the Grand Chamber. This proposal is akin to the suggestions concerning third-party interventions discussed in the preceding subsection, albeit focused on a more specific procedural issue.

It is essential that the Court retains a high degree of discretion in managing its Grand Chamber docket. Proceedings before the Grand Chamber are considerably more complex and time-consuming than those before a Chamber, and the Court has the capacity to hear no more than approximately 20–25 Grand Chamber cases per year. Reflecting this structural constraint, the overall success rate of referral requests remains very low, at around 5 per cent. Should the Court, under increased pressure, begin to accept a greater number of referrals, there is a real risk of generating a backlog of cases and further exacerbating the already lengthy duration of proceedings.

Occasionally, some cases admitted to the Grand Chamber appear rather unusual, and input from the member states might be helpful; however, this could potentially come at a cost to the Court’s legitimacy. The procedure of referrals is not very transparent. The panel of five judges deciding on referrals normally offers no reasons for their decision (Rule 73 of the Rules of Court). If many states support a referral but the panel decides against it without giving any reasons, this may not appear very dialogical. Furthermore, the Court’s procedure requires at least the semblance of equality of arms: would such a proposal, for example, provide an opportunity for NGOs or other stakeholders to comment on the referrals? Again, taking into account the context of the formal session of the Committee of Ministers in Chisinau, it is unlikely to be so.

My final point is that a Grand Chamber judgment should emerge naturally from several feedback loops between state reactions and Chamber judgments. A premature Grand Chamber judgment risks entrenching a standard that may be difficult for the member states to accept and even harder to amend within the Court’s internal architecture.

Forum for Dialogue Among Member States

For me the most unclear suggestion in the draft document is related to the new forum of the member states on migration. The document suggests that ‘the Council of Europe may provide a forum for dialogue among member States to address the challenges relating to migration, thereby contributing to the coherence, effectiveness and credibility of the Convention system’. It is hardly a secret that the whole idea of the formal session of the Committee of Ministers in Chisinau is to deal with migration but how a forum can contribute to the effectiveness and most of all credibility of the Convention system is not explained (yet).

There appears to be no apparent added value in establishing this forum; it is unclear how it would be organised or what impact it might have on ongoing case law or its implementation. Considering the broader context in which this reform is taking place, the forum risks appearing as a lobbying instrument aimed at limiting the Court’s engagement with ‘migration issues’. Unless further details are provided regarding its working methods, and, more importantly, its potential impact on the ECtHR’s case law, its role and impact remain a matter of mistery.

Interim Conclusion

This section of the draft document concludes by encouraging the Court to maintain and strengthen ‘its dialogue, through its judgments and otherwise, with the highest national courts of the States Parties’. While this is a laudable objective, it is also necessary to recall that, pursuant to Article 46 of the Convention, the Court’s judgments are legally binding. Although the Court must retain a degree of flexibility and responsiveness, such adjustment should not become a one-way process.

Article 3 ECHR and Chișinău: What Are the Stakes?

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.