Reportage
The assault on the human rights court begins, ‘trampling on basic rights’
Nine European governments are trying to pressure the EuropeanCourt of Human Rights on immigration policy. ‘The real risk here is of a collective, coordinated refusal to comply with ECHR judgments if no compromise is reached. But a court’s jurisprudence cannot be negotiated.’
“It’s as if the executive branch in Italy wrote to the Constitutional Court saying, ‘Look, you need to issue rulings that are a bit better on these issues.’”
Pasquale De Sena, professor of international law at Palermo and former president of the Italian Society of International and EU Law, says he was taken aback by the letter nine European governments have sent to the European Court of Human Rights (ECHR). The initiative came from Italy and Denmark – one led by the hard right, the other by the centre-left.
“I’ve never seen anything like it. They’re trying to pressure a judicial body that should rule in complete independence on fundamental rights. The letter has clear indications for the positions the Court should have,” he adds.
The letter had leaked in recent weeks and was officially unveiled on Thursday, May 22, at a press conference with Italian prime minister Giorgia Meloni and her Danish counterpart Mette Frederiksen. It was published on Saturday, May 24. After the routine statements of support for the rule of law and human rights, the missive insists there is a need to reopen the debate on the international conventions: “The world has changed radically since many of our ideas were conceived in the ashes of the great wars.” In short, that was then, but now things have come to a head.
“What the signatories are cheering for is precisely what the higher-order charters – in this case, the European Convention on Human Rights – were designed to prevent: authorities arbitrarily trampling on the most basic rights, such as the right to life or to not be subjected to inhuman and degrading treatment,” says Loredana Leo, a lawyer with the Association for Legal Studies on Immigration.
While they haven’t yet managed to rewrite the treaties themselves, the governments have zeroed in on the Court, the final guarantor. Their letter demands three things: greater powers to national authorities to expel foreigners convicted of crimes, especially violent or drug-related offences; more powers to control offenders who cannot be returned; and greater powers against “hostile states” that use migrants as leverage.
“The letter flips the whole picture upside down: it claims the ECHR is limiting state sovereignty, yet that very limitation is the safeguard of fundamental rights that predate states and borders,” Leo says.
Over the years, the Court has swung back and forth – sometimes siding with migrants, sometimes with governments – but in cases of individual expulsions it has consistently taken a line in favor of the protection of individual rights. Not based on abstractions, but starting from a bedrock principle of the culture of human rights: no one, not even the worst criminal, can be expelled if doing so would put them at risk of death or of inhuman or degrading treatment.
Attacks on rights always begin with the limit cases, the so-called “public enemies” – but they never stop there. Donald Trump’s unlawful deportations prove the point: they were also used against people with no criminal record and have sparked a fierce battle with the courts. The letter follows the same playbook: the tone is soft, but the message is unmistakable.
Some jurists and legal scholars warn of the risk that the Court could actually be influenced by this initiative, not least because most of its budget depends on funds from member states and its judges are appointed by national governments. De Sena underscores another danger: “The real risk here is of a collective, coordinated refusal to comply with ECHR judgments if no compromise is reached. But a court’s jurisprudence cannot be negotiated.”
For all Meloni’s fanfare, the letter has not gained much traction. Denmark aside, only seven other countries signed: Austria, Belgium, the Czech Republic, Estonia, Latvia, Lithuania and Poland. Germany and the other large EU members are conspicuously absent. Nine of the EU’s 27 members is not a lot; nine of the 46 members of the Council of Europe – under which the ECHR formally operates – is even less. Nevertheless, the way has been opened.
“I am very worried,” De Sena continues. “A substantive compromise – a formal agreement between these states and the rest of the Council of Europe – may be needed to avoid a radicalization of the situation that would leave the Court’s rulings unenforced.”
Originally published at https://ilmanifesto.it/inizia-lassalto-alla-cedu-vogliono-sabotare-la-corte on 2025-05-24