What is the ECHR For and What Not

In an announcement to the British every day The Sunday Instances on 26 October 2025, Poland’s Prime Minister Donald Tusk welcomed the novel concept that, if the 46 signatories can’t agree on adjustments to the European Conference on Human Rights (the Conference), it could be “fairly affordable” to think about leaving it. The initiative was put ahead by Reform UK and the Conservative Half, and whereas the federal government spokesman was fast to elucidate that the Polish Authorities was not contemplating denouncing the Conference, the Prime Minister’s assertion has raised critical issues. Particularly within the context of an earlier Might Letter revealed by Donald Tusk and eight European prime ministers on 22 Might 2025, and the next assembly of the initiative’s proponents in Italy final week, which allegedly already resulted a primary draft of a declaration aimed toward curbing the interpretive scope of the ECtHR. We urge the Prime Minister to publicly surrender these concerns, because the Conference varieties a constitutional aspect of Poland’s dedication to exterior human rights oversight and to safety of shared human rights inside a united and peaceable Europe ruled by the rule of legislation. By no means once more shall politics management the legislation and its establishments; as an alternative, it should adhere to the choices of impartial nationwide and worldwide courts and respect their case legislation. This have to be so if we actually wish to present that now we have learnt from the tragic historical past of our continent, the place legislation has been bent, manipulated, and instrumentalized at will.

The Might Letter

Within the Might Letter, the principle level of rivalry seems to concern migration. Particularly, the expulsion of migrants accused of crimes. The proponents imagine that the European Court docket of Human Rights (ECtHR) has interpreted the Conference, lengthy understood because the dwelling instrument, far too extensively. They said:

“Nonetheless, as leaders, we additionally imagine that there’s a want to have a look at how the European Court docket of Human Rights has developed its interpretation of the European Conference on Human Rights. Whether or not the Court docket, in some circumstances, has prolonged the scope of the Conference too far as in contrast with the unique intentions behind the Conference, thus shifting the stability between the pursuits which must be protected.

We imagine that the event within the Court docket’s interpretation has, in some circumstances, restricted our means to make political choices in our personal democracies. And thereby affected how we as leaders can defend our democratic societies and our populations towards the challenges going through us on the planet right now”.

“Salami techniques” on human rights

Seventy-five years have handed because the textual content of the Conference was adopted. It entered into power in 1953. The ECtHR issued its first judgment in 1960. The Conference itself and the ECtHR’s judgments have at all times been carefully monitored by the governments and the general public desirous about human rights. They’ve been steadily topic of the dialogue and fierce criticism. But by no means earlier than have the actions of the Strasbourg Court docket been referred to as into query to the extent that 9 heads of states at the moment are threatening the Court docket and urging it to vary its case legislation.

The the explanation why Donald Tusk determined to signal this Might Letter are unknown to the Polish public. The matter had not been beforehand mentioned in Poland in any public discussion board – both governmental or parliamentary. The Might Letter appeared as a deus ex machina. The Secretary Basic of the Council of Europe Alain Berset responded to it by saying:

“Debate is wholesome, however politicizing the Court docket isn’t. In a society ruled by the rule of legislation, no judiciary ought to face political stress. Establishments that defend elementary rights can’t bend to political cycles. In the event that they do, we danger eroding the very stability they have been constructed to make sure. The Court docket should not be weaponized – neither towards governments, nor by them.”

The query arises now as as to whether the Prime Minister’s interview with The Sunday Instances must be seen as one other stage in testing whether or not – and to what extent – it’s doable to systematically weaken the place of the Conference and, extra broadly, human rights in Poland? Such a “salami tactic” should trigger concern. For years, successive rounds of negotiations have been going down between the States Events to the Conference with a view to reforming the Conference system and enhancing the functioning of the Court docket. Since 2023, additional talks have been held, generally known as the “Reykjavik course of”. It was within the Icelandic capital that the States Events determined that additional reflection on the Conference’s construction and future was vital to enhance its functioning. Poland has a greater alternative to affect the way forward for the Conference by taking an energetic half in these talks than by means of ill-considered populist makes an attempt to mobilise public opinion towards human rights, that are offered as an alleged impediment to making sure safety for each the State and society alike, and as an try and undermine the legitimacy of the Court docket.

The ECtHR restores religion within the rule of legislation

Polish residents have constantly present that they wish to be a part of Europe and share its values. Poland joined the Council of Europe in 1991 and acceded to the European Union in 2004. The Conference has grow to be a elementary level of reference and a supply of inspiration for the European Union when decoding EU legislation. For its half the Court docket of Justice of the European Union in Luxembourg has lengthy recognised the rights assured therein as a part of the final rules of EU legislation. Due to this fact, declaring – as this authorities rightly does – that Poland is and intends to stay a part of the Union as a result of that’s its raison d’état, whereas on the identical time making an attempt to undermine the significance of the Conference, is each contradictory and legally indefensible.

The Conference is a authorized instrument that should sustain with the altering socio-political circumstances which outline its atmosphere. Its interpretation by the Court docket demonstrates that sure values are immutable and have to be at all times revered. It reminds us that human rights are usually not a magnificence contest through which the authorities graciously resolve who must be allowed to take pleasure in them and who mustn’t. They belong to all individuals and are based mostly on human dignity.

For thirty-two years, no matter which celebration has been in energy, Polish residents have been lodging functions with the Court docket towards Poland for breaches of their Conference rights. It’s this Court docket that has repeatedly restored their religion within the rule of legislation when their very own State faltered. The Court docket gave Poles hope that nobody will likely be disadvantaged of their liberty arbitrarily, with out affordable grounds for doing so. It’s because of successive judgments of the Court docket that Poland has strengthened ensures towards any deprivation of liberty with out adequate grounds. It has slowly restored their religion that they’ve the suitable to having their circumstances heard inside an affordable time. Certainly since 2004, because of the jurisprudence of the Court docket, the residents have been in a position to complain to nationwide courts in regards to the extreme size of judicial proceedings and obtain applicable compensation. The Court docket upholds the liberty of expression, together with the suitable to data. It has just lately held that an affiliation monitoring the actions of public establishments ought to have been allowed to acquire entry to the assembly schedule of members of the (now captured and emasculated) Constitutional Tribunal to find out whether or not and once they met with politicians. The Court docket additionally gave impetus to claims for compensation from the state for properties misplaced within the Bug River area to be made real looking and efficient, after years of inaction by the authorities on this matter, and for compensation to be paid in actual cash. The Court docket has reminded time and time once more that the residents have the suitable to an intensive investigation into the circumstances of the loss of life of their family members and to these accountable to be held accountable – if the loss of life was attributable to third events, no matter whether or not it was the results of the actions of public officers or not. The Court docket upholds the suitable to household life. The place the home household court docket fails, the Court docket has been prepared to look at whether or not the state has offered the defendants with adequate means to make sure the continuity of household relationships. Lastly, after 2018, the Court docket has mentioned time and time once more that judges can’t be depending on the whims of the chief department, and that residents have the suitable to a good trial earlier than an impartial, neutral, environment friendly court docket established by legislation.

In a democratic state, it’s at all times doable – and certainly vital – to strike a good stability between totally different pursuits, each within the sphere of lawmaking and later within the follow of its software. The requirement for the state authorities to hunt, in every particular person case, such stability between the rights of the person and different pursuits worthy of safety, comparable to safety, is a elementary precept of the Conference.

All this takes on particular significance and is thrown into sharp aid given the fragility in Poland of the tradition of human rights, the rule of legislation, and, extra broadly, of constitutionalism. Add to this the years of the lawlessness throughout the Legislation and Justice (PIS) rule which have shattered it to smithereens and left behind the rule of legislation decreased to rubble, and you’ve got an image of the intense vulnerability of a person left on the unchecked mercy of the ever-changing powers that be. Due to this fact, it’s within the residents’ finest curiosity to cherish and defend the Conference and the Court docket. Robust reactions to the Prime Minister’s assertion (for our personal absorb Polish see right here) are good indication of how inappropriate it was and the way delicate a nerve it struck in a rustic the place human rights haven’t taken root but and the place they nonetheless depend upon the whims of the political course of. Thankfully, the Conference as an distinctive social contract isn’t for politicians, however for societies who wish to adhere to its values. We imagine that Polish residents will proceed to belief the Court docket and lodge their functions with it. Whereas belief takes years to construct, it may be destroyed in a second, and it takes an eternity to have it regained. Sadly, the Prime Minister’s assertion doesn’t contribute to constructing belief within the rule of legislation and to strengthening the predictability of the general public authorities’ actions. Fairly the opposite.

The promise of post-war Europe: politics follows the legislation

Lastly, we should ask a elementary query prompted by the Prime Minister’s disturbing statements. Is there nonetheless room within the Civic Coalition’s political challenge for Europe and for the good “Sure” of our mother and father’ and grandparents’ technology? For our desires of and aspirations for a peaceable continent of which Poland constitutes an integral aspect. For desires and aspirations that, throughout the eight darkish years of PiS rule, suffered simply as a lot because the humiliated and violated Polish Structure?

When the Prime Minister raises the thought of presumably withdrawing from the Conference or repeats empty slogans about Strasbourg judges allegedly exceeding limits of their judicial mandate, we want to remind him that European international locations as soon as settled disputes by means of bloody conflicts. From the very starting, the energy and ambition of the Conference have been to be based mostly on the authority of the legislation binding on all and the respect for its establishments. Due to this fact, after 1945, European constitutionalism was formed by liberal custom that assumed the primacy of legislation over politics. Aware of the tragic experiences of the previous, when the need of the bulk turned a instrument of oppression and led to unimaginable crimes dedicated within the identify of “the individuals”, European states have been ready to relinquish a part of their sovereignty in favour of an impartial group and powerful supranational establishments. Every time a majority wins within the nationwide political course of, it’s sure by elementary guidelines that can not be modified at will simply because “we gained the elections”. Political energy was to be restricted not solely from inside (establishments, procedures, courts) but additionally from outdoors (European buildings) to make sure that political decisions on the nationwide degree would by no means once more result in authoritarianism. Taking into account the tragic previous and the atrocities that some Europeans inflicted on others within the identify of the distinctiveness of their very own nation and historical past, the post-war European order was based mostly on the precept that politics should conform to the legislation, and by no means the opposite means round.

On this sense Prime Minister Tusk’s remarks are usually not solely an unlucky slip of the tongue, however they undermine one of many elementary rules of this order: “by no means once more”. Certainly, one can anticipate the Prime Minister from Gdańsk to grasp the deep and painfully highly effective symbolism of those two phrases. In 1989, we in Poland believed within the energy of the legislation and impartial establishments, which have been presupposed to characterize a transparent break with the interval of facade establishments and a paper structure. That’s the reason we set our course for Europe. Will now populist questioning human rights grow to be the driving power behind the actions of this authorities that in spite of everything was shaped after the elections of 15 October 2023 on a wave of civic mobilization and hope for a return to Europe after the anti-European and anti-constitutional reign of PIS celebration?

By asking this dramatic query we quite danger overreacting quite than passively watch for a return to a world through which the political authorities are at all times proper, the courts bow right down to the directions and expectations of the political powers, and the place, as Russian poet Mayakovski as soon as infamously wrote, “the person is nothing”.

Paraphrasing right here Chief Justice of the US Supreme Court docket John Marshal’s dictum in McCulloch v Maryland, “we should always remember that it’s a structure we’re expounding”, we remind Donald Tusk and different European leaders for that matter that it’s the Conference as “a constitutional instrument of European public order”, “designed to take care of and promote the beliefs and values of a democratic society”, that we’re speaking about right here. It’s the long-term constancy to this doc and to the widespread heritage of political custom, beliefs, freedom, and the rule of legislation because the underlying values of the Conference, and to not fleeting impulses of the second. This constancy should function the final word check for the political credibility of all actors working inside the European public house.