A new Council of Europe declaration on migration and human rights preserves the core legal principles it was expected to defend, but risks weakening protection against inhuman or degrading treatment in deportation and extradition cases, according to a legal assessment by DIGNITY, the Danish Institute Against Torture.
The assessment, issued under the name of Therese Rytter of the institute’s legal department, concludes that the Chișinău declaration contains important principles and a real cause for concern at the same time.
What the declaration was for
The text followed pressure from states including Denmark, the United Kingdom and Italy for greater room to act in expulsion and extradition cases. The aim is to make it easier to deport rejected asylum seekers and foreign nationals convicted of crimes, and to extradite people for prosecution or to serve sentences.
That is a legitimate political debate, the institute notes, but one that has to be conducted within the legal framework European states have bound themselves to.
On the positive side, the declaration reaffirms the independence of the European Court of Human Rights, the integrity of the convention system, states’ responsibility to protect human rights, and the absolute prohibition in Article 3 of the European Convention on Human Rights against torture and inhuman or degrading treatment or punishment. Article 3 is one of the few convention rights that admits no exception, no balancing and no derogation, including in emergencies.
Where the concern lies
The declaration also states that the threshold at which conditions amount to inhuman or degrading treatment must be high and constant, and that unnecessary restrictions on expulsion and extradition decisions should be avoided.
Read together, the institute argues, those two propositions put pressure on a protection that is meant to be absolute. Once a situation falls inside the prohibition on inhuman or degrading treatment, it is a matter of fundamental legal protection rather than of policy convenience.
The assessment points to Muršić v. Croatia, in which the Court’s Grand Chamber found that serving a sentence in extremely cramped conditions violated Article 3. That finding, the institute says, was not an unnecessary restriction — and neither is the rule that people may not be sent to conditions carrying a real risk of inhuman or degrading treatment.
What happens next
Historically, Article 3 has been the decisive guarantee against returning people to torture, ill-treatment or plainly unacceptable conditions. The institute says it will follow the Court’s future case law closely, and that the prohibition on torture and inhuman treatment must be upheld in practice as well as in wording.
This report was produced by the HuMedia newsroom.
