A criminal defense lawyer’s perspective on Europe’s proposed retreat from fundamental rights
By Alexis Anagnostakis
There’s a document circulating through European diplomatic channels that deserves far more attention than it’s getting. Twenty-seven Council of Europe member states have issued a joint statement proposing fundamental changes to how we interpret human rights protections.
On its surface, it’s about addressing “modern challenges” and ensuring “democratic security.” Beneath the diplomatic language lies something far more consequential: a systematic attempt to weaken core human rights protections to make one thing easier—deporting foreign nationals convicted of crimes.
Not active threats. Not ongoing dangers. People who have already served their sentences.
What’s Actually Being Proposed
The statement wraps itself in commitments to the Convention system and the rule of law. But here’s what it actually asks for:
Rebalancing Article 8 (Right to Private and Family Life):
The proposal seeks to give more weight to the crime committed and less weight to whether someone has lived in Europe for decades, raised children here, or would be deported to a country they barely remember.
The European Court of Human Rights already permits deportations when the public interest genuinely outweighs individual circumstances. This happens regularly. What this statement seeks isn’t balance—it’s a predetermined outcome favoring deportation regardless of individual factors.
Constraining Article 3 (Prohibition of Torture and Inhuman Treatment):
This is where the proposal crosses a dangerous line.
Article 3 is absolute. Non-derogable. It prohibits torture and inhuman or degrading treatment under all circumstances. No exceptions. No balancing tests. This absoluteness isn’t accidental—it reflects hard lessons from Europe’s history.
The statement suggests this protection 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… including in cases raising issues concerning healthcare and prison conditions.”
In plain language: they want to weaken the absolute prohibition on inhuman treatment because healthcare and prison conditions abroad sometimes make deportations legally complicated.
We’re being asked to consider whether human dignity should be negotiable when it becomes administratively inconvenient.
The Human Dimension
Consider what this means in practice.
A young man arrives in Germany at age seven. He grows up in Hamburg, attends German schools, speaks German at home. At twenty-two, he commits a serious assault. He serves six years. During his sentence, he completes vocational training and begins therapy. Upon release, he has a German partner and a child who has never visited his country of birth.
Under current law, he might still face deportation if authorities demonstrate the public interest outweighs his family ties. It’s a difficult, individualized assessment that considers rehabilitation, family circumstances, and the person’s actual connection to both countries.
Under the proposed approach, his family ties and social integration receive less weight. The crime—already punished with six years of imprisonment—receives more. The balance tips toward a predetermined outcome.
This isn’t a hypothetical. Criminal defense lawyers across Europe represent people in exactly these circumstances every day.
Or consider the Article 3 implications: a person facing deportation to a country where the prison system is severely overcrowded, medical care is inadequate, or conditions amount to inhuman treatment. Currently, Article 3 prevents such deportations absolutely. Under the proposed approach, these concerns might not be “serious enough” to prevent removal.
The Independence Question
Perhaps equally concerning is the method.
The statement explicitly aims to ensure governments “no longer see instances where foreigners convicted of serious crime… cannot be expelled.”
This isn’t policy guidance. It’s a demand for different judicial outcomes in specific categories of cases.
The European Court of Human Rights interprets the Convention. How it applies principles like subsidiarity, proportionality, and the “living instrument” doctrine is a judicial function. That’s what judicial independence means.
When twenty-seven governments jointly declare they want different results in particular types of cases, they’re applying political pressure to judges. It may be diplomatic and indirect, but it’s pressure nonetheless—and it undermines the very independence they claim to support.
The Security Argument
The statement frames this as necessary for security. For protecting borders. For preventing crime.
But European states already possess substantial powers within the existing Convention framework. They can prosecute crimes. They can imprison offenders. They can deport foreign nationals when genuinely justified—the Court permits this regularly.
What frustrates governments isn’t inability to act. It’s the requirement to justify their actions. To demonstrate proportionality. To assess individuals rather than categories. To respect absolute prohibitions like Article 3.
That’s not a flaw in the system. That’s the entire purpose.
The question isn’t whether states can address security challenges within the Convention framework—they demonstrably can. The question is whether they should be required to respect human rights while doing so.
What This Really Means
For criminal defense lawyers, this proposal represents a fundamental shift in how justice operates.
Criminal law rests on principles: that sentences, once served, satisfy society’s punitive demands. That rehabilitation matters. That justice requires individual assessment, not categorical treatment. That some protections—like the prohibition on torture—are absolute because history taught us what happens when they’re not.
These aren’t abstract legal concepts. They’re practical safeguards that make the difference between justice and its mere appearance.
When governments propose weakening Article 3’s absolute character or predetermining Article 8 balancing tests, they’re not just changing legal standards. They’re changing what justice means.
The Precedent
There’s another dimension worth considering: precedent.
If Article 3 can be “constrained” when it makes deportations inconvenient, where does that logic stop? If political declarations can pressure courts toward predetermined outcomes in migration cases, what prevents the same approach in other contexts?
The strength of human rights protections lies precisely in their application to unpopular cases, inconvenient circumstances, and people the majority would rather not protect. Once we accept that these protections can be weakened when politically expedient, we’ve fundamentally altered their nature.
A Question of Values
The European human rights system isn’t perfect. No system is. It faces legitimate questions about its operation, its efficiency, its responsiveness to contemporary challenges.
But this statement doesn’t propose refinement. It proposes fundamental reinterpretation of core protections, driven not by legal principle but by political frustration with judicial outcomes.
The question facing Europe isn’t technical or legal. It’s about values.
Do we believe human dignity is absolute, or negotiable based on administrative convenience? Do we believe courts should independently interpret the law, or deliver outcomes governments prefer? Do we believe justice requires individual assessment, or categorical treatment?
These questions matter because the answers define what European human rights protections actually mean.
Moving Forward
Security and human rights aren’t opposing values. They’re complementary ones. Democratic societies can address genuine security challenges while respecting fundamental rights—European states do this every day within the existing framework.
What’s being proposed here isn’t necessary adaptation. It’s weakening of protections that define European standards, driven by political pressure for predetermined outcomes.
Criminal defense lawyers see daily what happens when expedience trumps principle, when categories replace individual assessment, when absolute protections become negotiable. The consequences aren’t abstract—they’re human beings whose dignity, whose families, whose futures hang in the balance.
The European human rights system matters most when it protects people we’d rather not protect. When it’s inconvenient. When it requires us to justify our actions and respect absolute limits.
That’s not a weakness to be corrected. It’s the entire point.
The question is whether Europe still believes that.
The statement awaits discussion at the Council of Europe Foreign Ministers’ meeting in May 2026. What happens there will signal whether Europe’s commitment to human rights remains genuine when it becomes inconvenient.
