30 May 2025
Challenging
Strasbourg
The May
2025 Letter and the Pushback Against the European Court of Human Rights
Since 22 May
2025, a disquieting letter has been circulating: nine leading EU politicians
are calling for “a new and open-minded conversation about the interpretation of
the European Convention on Human Rights,” with particular reference to
migration.
Peter
Hilpold
Dr. Peter
Hilpold is Professor of International Law, European Law and Comparative Public
Law at the University of Innsbruck and author of more than 300 publications.
The
signatories seek to explore whether “the Court, in some cases, has extended the
scope of the Convention on Human Rights too far compared with the original
intentions behind the Convention, thus shifting the balance between the
interests that should be protected.” At the core of their appeal lies a demand
for more national discretion in deciding when to expel criminal foreign
nationals.
This letter
raises not only political and ethical questions but also significant legal
concerns. Before examining these implications, it is important to provide a
brief overview of its content.
Regular and
irregular migration: what is the problem and who is to blame?
The letter
begins by reaffirming the signatories’ commitment to European values, the
rule-based international order, democracy, and the inviolable dignity of the
individual. The signatories then turn to
address the so-called European migration challenge. They acknowledge
that while many migrants successfully integrate and make valuable contributions
to their host societies, others remain socially segregated or even engage in
criminal activity. Although the latter problem concerns only a minority of
immigrants, the letter argues, it risks undermining the very foundations of
European societies.
Throughout
the letter, the signatories refer variously to “Europe’s challenges with
migration,” the need to “regain control of irregular migration,” and problems
posed by “criminal foreign nationals.” While all these issues present serious
challenges, they cannot be casually lumped together if meaningful solutions are
to be found.
The
signatories, however, seem to suggest that they have identified the main
culprit behind this “polycrisis”: the European Court of Human Rights (ECtHR).
They appear determined to address what they see as the Court’s overreach:
“[A]s
leaders, we also believe that there is a need to look at how the European Court
of Human Rights has developed its interpretation of the European Convention on
Human Rights. Whether the Court, in some cases, has extended the scope of the
Convention too far compared with the original intentions behind the Convention,
thus shifting the balance between the interests that should be protected.”
Even the
premises on which this letter is based leave the reader puzzled: Do these
politicians aim to address migration as a whole, only irregular migration, or
merely the problems associated with foreign nationals who engage in criminal
activity? Depending on the answer, the relevance and impact of ECtHR
jurisprudence on these developments (if any) will vary considerably.
The ECtHR
jurisprudence on migration
The question
of whether, and to what extent, the jurisprudence of the ECtHR has influenced
migration into the territorial area covered by the European Convention on Human
Rights (ECHR) is a complex one. The ECtHR began addressing migration issues
relatively late1) but has since issued a series of judgments with significant
impact on international migration law.
Among the
most notable decisions is Soering v. United Kingdom (1989), in which the Court
declared illegal the extradition of an applicant to a country where they faced
the risk of inhuman or degrading treatment In M.S.S. v. Belgium and Greece
(2011), the Court prohibited returning an applicant to Greece under the Dublin
rules where they would face inhuman conditions and a lack of remedies.
In Hirsi
Jamaa v. Italy (2012), the Court found that push-back operations on the high
seas, returning migrants to Libya where they faced a risk of inhuman and
degrading treatment, violated the prohibition of collective expulsion and the
requirement of access to effective remedies.
In Tarakhel
v. Switzerland (2014), the transfer of an Afghan family to Italy under the
Dublin framework was found to violate Article 3 due to the absence of adequate
guarantees concerning the children’s age and the preservation of family unity.
More
recently, in J.A. and Others v. Italy (2023), the Court ruled that the
prolonged stay in the Lampedusa hotspot constituted inhuman and degrading
treatment.
Nevertheless,
much of the scholarly literature remains critical of the ECtHR’s willingness to
robustly and consistently defend the human rights of migrants.2) In contrast,
the signatories of this letter seem to believe the Court has gone too far.
The
questions raised
This
development raises several questions: Should we abandon our understanding of
the ECHR as a “living instrument”?
There can be
no doubt that doing so would entail the loss of one of the Convention’s most
characteristic features. Moreover, the “living instrument” approach has
inspired human rights protection systems across the globe. A retreat from this
approach could trigger a broader global regression in human rights
jurisprudence.
Even if the
decision were taken to abandon this dynamic interpretative approach, a further
question would immediately arise: how far back should the ECtHR jurisprudence
be reversed? From which specific rulings or lines of reasoning should the Court
now depart? Such a retreat could potentially compel the ECHR system to abandon
some of its most important achievements.
Based on the
content of the letter, it appears that the primary concern of its signatories
is to curtail the Court’s jurisprudence insofar as it hinders the expulsion of
individuals convicted of crimes. However, this jurisprudence is intricately
connected with other advances in human rights protection. To cite just one
example, the “Soering jurisprudence” was developed in the context of a criminal
case, but its significance extends far beyond such cases, as is well
established.
Furthermore,
even if it were theoretically possible to separate jurisprudence related to
“severe” criminal cases from other categories – such as less severe criminal
offences or civil or administrative matters –
leaving the latter unaffected by the proposed reforms, this would do
little to address Europe’s broader migration challenges, which the letter
itself identifies as a primary concern. Why then, this apparent fixation on
“criminals”?
One is left
with the impression that the emphasis on “criminals” serves as a pretext to
question the ECtHR’s jurisprudence on migration as a whole. As already
mentioned, in most cases, it would be impossible to isolate a distinct body of
case law that applies exclusively to severe criminal cases and to excise from
it all elements introduced by the Court’s “dynamic interpretative approach”
that transformed the ECHR into a “living instrument”. How, for instance, could
the Soering jurisprudence be limited to non-criminals? Should the prohibition
of torture and inhuman or degrading treatment no longer apply to (alleged)
criminals? Such a move would plainly place the ECHR system behind both the
standards of the UN Human Rights system and those of comparable national and
regional systems. Although the letter does not explicitly propose such
outcomes, it is difficult to see how they could be avoided, despite the vague
language of the letter.
Even more
worryingly, some international lawyers have endorsed the initiative and
interpreted it even more broadly. They argue that Article 3 ECHR has been
interpreted too expansively and that it should become possible to expel
“foreign criminals” who have committed “serious crimes.” According to this
view, such individuals have “forfeited” the right to the highest standards of
fundamental rights.3)
But can this
claim be sustained? Does this mean that the Soering jurisprudence would no
longer apply? Could “murderers and rapists” now be extradited to countries
where they would face inhuman or degrading treatment, or even torture? Or do
these international lawyers simply fail to grasp the scope of the
jurisprudence, or fail to appreciate its relevance?
Even if it
were possible to carve out an exception under the ECHR for migrants who have
committed (or are merely accused of committing?) “serious crimes” (and who
would determine what constitutes a “serious crime”?) there is a serious risk
that such an exception would effectively dismantle the protection of migrants
under the Convention altogether.
The letter
raises numerous additional questions and concerns. If the letter was intended
to have a practical impact, we must ask: to whom is it addressed? To the
European Court of Human Rights itself? Do nine member states (out of 46)
possess the authority to call upon the Court to revise its interpretation of
the ECHR? Could even all member states acting together compel such a change?
The answer is no. Neither the ECHR nor general international law attributes
such powers to the member states collectively, let alone to a minority of them.
Would such political interference with the activities of an independent
international court be politically and legally acceptable?
The Council
of Europe responded swiftly and decisively to these concerns. On 24 May 2025,
Alain Berset, the Secretary General of the Council of Europe, issued a
statement firmly defending the ECtHR’s independence and the need to uphold the
rule of law in Europe:
“Upholding
the independence and impartiality of the Court is our bedrock. Debate is
healthy, but politicizing the Court is not. In a society governed by the rule
of law, no judiciary should face political pressure. Institutions that protect
fundamental rights cannot bend to political cycles. If they do, we risk eroding
the very stability they were built to ensure. The Court must not be weaponized
— neither against governments, nor by them.”
Conclusions
Perhaps the
letter of the nine was mainly intended for an internal audience. Its cautious
language appears designed to preempt and mitigate anticipated criticism, as
acknowledged within the letter itself:
“We know
that this is a sensitive discussion. Although our aim is to safeguard our
democracies, we will likely be accused of the opposite.”
While the
initiative has prompted widespread critique, the responses from some
international lawyers reveal how quickly long-standing achievements in human
rights protection can be called into question.
At the same
time, there is no doubt that the ECHR and its judicial machinery are indeed in
urgent need of reform. The ECtHR’s jurisprudence on migration is only one –
arguably not even the most urgent – element warranting reassessment, ideally
within the EU framework.
A more
fundamental concern lies in the procedural inefficiencies of the ECHR system
itself. The fact that over 95 percent of complaints are declared inadmissible
is arguably the system’s far more serious problem. This procedural bottleneck
represents a genuine challenge to the rule of law in Europe. Reforming the ECHR
is thus both legitimate and necessary, but it should happen within a broader
framework — perhaps at a conference of states — where priorities are
established based on actual needs and competences, and grounded in thorough and
informed discussion.
Migration
indeed poses a serious challenge for Europe, and public expectations for
effective governmental responses are high. However, if national governments –
either individually or through EU mechanisms –fail to find viable solutions,
attacking the ECtHR is the wrong response. To undermine a judicial institution
already struggling with dysfunction is incompatible with a commitment to the
rule of law in Europe.
A final
observation is warranted. Although the controversy sparked by the May letter –
serious as it may appear – will likely prove to be a storm in a teacup, largely
due to the strong counter-reaction it provoked, it should not be downplayed in
terms of the danger it poses to the defense of fundamental human rights and the
rule of law. This controversy once again confirms something particularly dear
to this author: that the high-quality teaching of international law is more
important today than at any time in history.
References
References
↑1 See Marie-Bénédicte Dembour, The
Migrant Case Law of the European Court of Human Rights, in: B. Cali et al,
(eds.), Migration and the European Convention on Human Rights, Oxford
University Press 2021, pp. 19-40.
↑2 Ibid. See also recently Jens T.
Theilen, Framing Migration in Human Rights: How the Reasoning of the European
Court of Human Rights Legitimises Border Regimes, in: 27 European Journal of
Migration 2025, pp. 66-93.
↑3 The following declaration has been made
in this context: “Ich stehe für einen hohen Grundrechtsschutz. Bei einer
schweren Straftat hat man diesen allerdings verwirkt.“ See „Die Presse“ 24 May
2025, p. 10.
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