Symposium Introduction: Article 3 ECHR and the forthcoming Chișinău Declaration

By Dr. Natasa Mavronicola

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Over the next 10 days, Strasbourg Observers will be hosting a blog symposium on Article 3 ECHR and the forthcoming Chișinău Declaration on the ECtHR’s approach in migration cases. The symposium was convened by Natasa Mavronicola. It also features contributions from Mary Rogan, Rishika Sahgal, Eva Sevrin, and Elaine Webster.

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Background

The right not to be subjected to torture or to inhuman or degrading treatment or punishment, protected in pithy and potent terms under Article 3 of the European Convention on Human Rights (‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’) and considered an absolute right, is no stranger to attempts to circumvent, distort or dilute it. Nonetheless, there is at present an arguably unprecedented state-driven mobilisation to challenge and potentially transform (or, euphemistically put, to ‘modernise’) every key aspect of Article 3: its absolute character, its substantive scope, and the European Court of Human Rights’ (ECtHR’s) authoritative interpretation and application of the right’s red lines. This is happening through an ‘unusually compressed’ political process leading up to a political declaration to be adopted at the next session of the Committee of Ministers in Chișinău, 14-15 May (hereafter ‘the Chișinău process’).

On 22 May 2025, nine European states, on the initiative of Denmark and Italy, issued an open letter alluding to an overly expansive interpretation of the Convention in the field of migration resulting in ‘the protection of the wrong people’, and calling for a change in approach, particularly in respect of ‘criminal foreign nationals’. The letter, which was the subject of extensive political and academic engagement (for example, here, here and here) arguably precipitated the particular contours of the Chișinău process.

On human rights day, 10 December 2025, Ministers from 27 Member States of the Council of Europe issued a joint statement that was partly cast as seeking ‘clarity’ on Article 3 ECHR:

‘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 conveyed not so much an inquisitive stance towards pockets of uncertainty in the interpretation and application of Article 3 in the expulsion/extradition context, but rather a normative stance in favour of restricting Article 3’s application to ease expulsion/extradition decisions. Moreover, while the focus of the statement appeared to be the non-refoulement duty under Article 3 ECHR, a wider agenda of constraining the ‘scope’ of inhuman and degrading treatment more generally was also apparent therein.

The Steering Committee for Human Rights (CDDH) has more recently (on 20 March 2026) produced an outcome document containing elements for a political declaration. The proposed text for Chișinău contains an affirmation of the right’s absoluteness – ‘it permits no derogation, contains no exceptions, and allows for no legitimate interference’ – but also an adaptation of text from the ‘statement of the 27’ to the effect that Article 3’s severity ‘threshold’ must ‘remain high and constant’, thereby ‘avoiding unnecessary constraints on decisions to extradite, or to expel foreign nationals’. While the wording adopted in the outcome document is less blunt than the text of the 10 December statement, it retains core elements of the statement’s demand for a constrained application of Article 3, particularly (but not necessarily solely) in the expulsion/extradition context. Moreover, in targeting a specific group of rights-holders, it challenges the unconditionality of Article 3 and can be taken to represent what commentators have called a ‘managed retreat’ from the idea of universal human rights protection.

Particular invocations and framings of ECtHR jurisprudence are enlisted towards shaping the proposed text for the political declaration. The ‘possible elements’ outlined in the outcome document also include reiteration of the ‘relative’ assessment of severity and of the fact that the Convention does not purport to be a means of requiring the States Parties to impose Convention standards on other States, as well as appeals for guidance (or restraint) on several issues, including the application of Article 3 and its non-refoulement standard to medical cases, to detention conditions and to living conditions.

A preliminary note on absoluteness and minimalism

The argument has frequently been made that the terms of Article 3 were originally intended to capture only a very high degree of brutality or cruelty and that interpreting an absolute right such as Article 3 in a way which captures a vast array of wrongs entails the dilution of its moral force. There is, in the originalist dimension of this argument, a perspective that appears to envisage a ‘closed list’ of ill-treatment frozen in time, or that refuses to acknowledge the moral connections between the atrocities out of which Article 3 emerged and the manifold ways in which persons are abused and dehumanised today. 

More fundamentally, an implicit (or explicit) dimension of this argument is that Article 3 should capture a narrow set of conduct. This minimalist stance, seen in its best light, assumes that severe ill-treatment of the sort proscribed by Article 3 must necessarily be aberrant: infrequent and indeed exceptional. Yet there is no empirical or reasoned basis for assuming this. Indeed, a body of multi-disciplinary insights and lived experience, and notably feminist mobilisation towards recognising the applicability of Article 3 to gender-based violence, has shown us that inhuman and degrading treatment, as well as torture, can be both egregious and pervasive.

The minimalist stance is also unpersuasive if it simply pursues minimalism for minimalism’s sake rather than genuinely grappling with the wrongs at issue. A minimalist approach is more insidious still if it is adopted simply in order to make ECtHR doctrine on Article 3 more palatable or less inconvenient for (some) states.

There are also the appeals for ‘realism’. A dissent in Bouyid v Belgium somewhat exemplifies such appeals. In Bouyid, the Grand Chamber judgment in which single slaps inflicted by police officers on two persons in their custody were found by the majority to constitute degrading treatment, was the subject of a dissent from three judges who insisted that the majority’s finding ‘may impose an unrealistic standard by rendering meaningless the requirement of a minimum level of severity for acts of violence by law-enforcement officers’. They stressed that the majority’s conclusion ‘risks being completely at odds with reality’. The reasoning here reflects current appeals to be realistic or pragmatic about Article 3’s scope and delineate (or ‘modernise’) it accordingly. In Bouyid, the dissenters’ reasoning appeared to proceed as follows:

1. Article 3 prohibits torture as well as inhuman or degrading treatment or punishment in absolute terms, admitting of no displacement or trade-offs, and must therefore be seen as proscribing ill-treatment that we are not prepared to countenance.
2. Slaps in police custody and other similar forms of ill-treatment occur and are likely to occur very often.
3. Given that slaps in police custody occur and are likely to continue to occur very often, we ought to be prepared to countenance them.
4. Therefore, slaps in police custody ought not to be found to be in breach of Article 3.

The jump from ‘is’ to ‘ought’ in this syllogism returns us to the aberration/inconvenience logics outlined above. Adherence to a certain minimalism is both purpose and justification. Similarly, the Chișinău process has seen (some) states point to both its absolute character and to the ‘reality’ of present-day phenomena – notably, irregular(ised) migration, crime, and the often systemic inhumanity frequently faced by those involved in either or both of these phenomena in all too many states – to plead for a redrawing of Article 3’s red lines. Substantive engagement with the wrongs at the heart of Article 3 is lacking. On the other hand, the majority in Bouyid considered the power imbalance inherent in police custody and the profound impact and abuse of power involved in the violence inflicted before finding the dignitarian wrong at issue to constitute degrading treatment, engaging in precisely such reasoning.

The bottom line is that, if the integrity and absolute character of Article 3 are to be preserved, its contours and application must be determined by neither minimalism nor maximalism, but by a painstaking delimitation of its substantive contours.

Why this preliminary note? It seems to me that much of what is often said about (perceived) jurisprudential overreach in the interpretation of Article 3 or about the imperative, often put forward with reference to absoluteness, of keeping the Article 3 threshold ‘high’, is lacking in the substantive reasoning that is required in interpreting this absolute right. The aim of this symposium is to offer such a substantive engagement with key aspects of the right that are under pressure in the present moment.

The symposium

The symposium has been curated in the shadow of Chișinău, and brings together some key strands of reflection on Article 3 by a number of people who have spent a great deal of time thinking through, unpacking and applying this provision in various contexts. In the next days, we will be sharing a number of pieces by Mary Rogan, Rishika Sahgal, Eva Sevrin, Elaine Webster, and myself. What we cover includes critical examination of the case-law on non-refoulement and how it is being invoked in the CDDH outcome document, and engagement with examples or claims of alleged overreach in the interpretation and application of Article 3. The symposium is by no means exhaustive of the issues raised in respect of Article 3 on the road to Chișinău – but I hope it offers a substantive and substantial basis for more meaningful engagement with what is being contemplated in relation to Article 3.

I am enormously grateful to all the authors contributing to this symposium, for so generously sharing their thoughts and doing so under considerable time pressures, and to Strasbourg Observers for hosting these reflections – and I look forward to continuing and growing the conversation.