By Dr Ed Bates, Associate Professor, University of Leicester.
The main focus of this post is on the extra‑territorial application of Article 3. I have some sympathy with the CDDH’s calls for caution in that specific area and wish to raise some broader, related issues. However, I feel compelled to frame my comments with some initial points.
Nothing I say below should be taken to suggest that the Court does not already exercise great caution in relation to Article 3. I strongly commend its jurisprudence overall in that field, as well as that under the spotlight generally in relation to the Chișinău process. I consider that process unnecessary and potentially harmful. The Declaration risks giving respectability to a totally false and very damaging narrative about the Court: that on matters of migration it is out of touch and out of control, so much so that the states have had to intervene to bring it to heel.
The false narrative was given sustenance by the exaggerated, emotional, and populist “letter of nine”. The detailed, expert analysis within the CDDH’s ‘Chișinău Report’ effectively exposes and disproves it, largely endorsing the relevant ECtHR case law for its prudence and balance. The proposed Declaration text does not chime with that. It is a vast improvement on the “letter of nine”; however, taken overall it still comes across as telling the Court to adopt the self-restraint approach that it already exercises. It therefore potentially gives credibility to the above false narrative about the Court. If so, that undermines public confidence in it, rather than helping to restore it. Council of Europe governments have a chance to rectify this before signing the Chișinău Declaration. That would be consistent with the ‘deep and abiding commitment of the States Parties to the Convention’ which the draft text speaks of at its outset.
I now proceed in four steps. First, some general observations about criticism of the Court. Second, I refer to a controversy related the extra‑territorial application of Article 3, and its relevance to reform debates. Steps three and four both concern the CDDH Report/ the proposed Declaration on Article 3’s extra-territorial dimension.
Room for ‘loving’ criticism?
In 2012, former President Wildhaber observed, ‘Institutions and states will perish if those who love them do not criticize them, and if those who criticize them do not love them.’
Wildhaber’s remarks speak to the Court’s vulnerability to populist attacks. Its opponents are eager to discredit it, seeing any criticism —however measured— as ammunition. I therefore write this post with trepidation and reiterate my opening comments.
However, Wildhaber also implied that ‘loving’ criticism of the Court can be a form of loyalty to it, and in short supply. Former Registrar (later Judge) Paul Mahoney once referred to an ‘all‑too‑common intolerance in European human rights circles of anyone who dares’ to question Strasbourg—such individuals being cast as ‘“renegades” or “traitors”, rather than “true human rights ‘patriots’”.
What follows is in the spirit Wildhaber advocated.
Article 3 under the spotlight
In June 2025, under the headline ‘Rapist and murder suspect block extradition with ECHR claims’, The Times reported on an ITV News investigation (video). Two men wanted in Brazil for serious crimes — including murder and the rape of a five‑year‑old child — had avoided extradition from the UK by arguing that returning them would breach Article 3, apparently based on the prison conditions existing in Brazil. One had already been convicted in Brazil before fleeing to the UK and was later found guilty in Britain of possessing and distributing large quantities of child abuse images (including the most serious category).
The above judgments were not published. So, I cannot comment on the Article 3 aspect, the prison conditions or wider issues, and I do not know if a stark choice crystallised between upholding Article 3 and potentially enabling evasion of Brazilian justice. The ITV report indicated that attempts had been made to obtain diplomatic assurances. It suggested hundreds of fugitives had avoided extradition to Brazil since 2010; however, it seems that Article 3 applied to only a very small number. This whole affair must therefore be approached with caution.
Lord Anderson was clearly thinking of the above case when delivering a lecture in December 2025. He defended the Court’s Article 8 immigration case law, and expressed strong support for the Convention. However, he commented:
… The relatively low threshold for inhuman and degrading treatment, applicable to domestic and international cases alike, coupled with the fact that balancing factors such as risk to the domestic population may not be taken into account, has given rise to some domestic extradition judgments that though well-reasoned and faithful to the Convention case law, come to results that fair-minded people may reasonably find difficult to accept.
Before this former President Spano seemed to have Article 3 in mind when he referred to the dangers of an ‘overly expansive view of the individual rights’, one that, ‘risk[ed] engendering outcomes that are simply not credible or indeed, even understandable, to the average person’ (lecture). Subsequently, Spano strongly defended the Court’s Article 8 case law but suggested there remained scope for an open‑minded debate on aspects of Article 3’s extra‑territorial application, without questioning its absolute character domestically.
Returning to Lord Anderson, he maintained it would be ‘purist’ if any collective state position advocating change was seen as an ‘improperly political intervention’. As he put it:
The pursuit of change, … is surely a more productive outlet for frustration than allowing controversy over the Convention and its enforcement to spill over into public disaffection and threats to withdraw.
Obviously, it would be clearly inappropriate—indeed futile—for the Court to adjust its positions to placate politicians so already opposed to it that they would withdraw. Nor should the Court decide cases purely based on the fear of negative reactions from ‘fair‑minded people’, or what the ‘average person’ might find not ‘credible’ or ‘understandable’.
However, if the genuine application of the Court’s case law (as opposed to misapplication and/ or media misrepresentation of it) has that result, it must make it harder for moderate politicians to defend the Convention to such (reasonable) people. And I assume that readers would prefer such moderates to remain in office, rather than others. Of course, I am not suggesting these considerations can be converted into some sort of rule of application/interpretation, especially given that human rights (often of minorities) are involved. But I do suggest they may be of relevance in certain contexts, such that it is not always a contradiction to support the Court yet recognise certain political realities related to it, namely that its authority ultimately depends on intergovernmental cooperation – and so confidence in it from states acting in good faith. There may be a larger institutional good at stake.
Article 3: the Court must ‘avoid […] unnecessary constraints on decisions to extradite’
Coming now to the CDDH’s treatment of Article 3, its Report focuses solely on ECtHR case law. There is no mention of the Brazilian cases, nor any commentary or facts/ figures to substantiate supposed problems with Article 3. Here the Report falls short of the Commissioner for Human Rights’ request for a ‘factual’ Report, to avoid ‘confusion’ based on ‘a lack of clarity about the actual nature and scale of the issues’, so that ‘an evidence-based discussion’ can occur.
The CDDH was asked to propose draft text for possible inclusion in the Chișinău Declaration. The paragraphs for Article 3 are over 600 words alone. They ‘emphasise’ and ‘recall’ the absolute nature of Article 3 but call for interpretive caution to ‘avoid […]unnecessary constraints on decisions to extradite, or to expel foreign nationals’. The proposed Declaration text would involve states:
Express[ing] concern, as recognised by the Court, that where a person cannot be extradited to face trial or serve a penal sentence for a serious offence, this may give rise to impunity, allowing a person to evade justice in a country in which they have committed an offence, simply by virtue of having left that country; and consider that all possible steps must therefore be taken to avoid this, consistent with Convention obligations.
The first part draws on the Grand Chamber ruling in Sanchez-Sanchez v United Kingdom ([94]).
The CDDH’s Report gives no examples of what it means by ‘unnecessary constraints’, but highlights the reserved approach the Court already takes in its Article 3 case law (pp. 7–10). With minor qualifications, it reads as a strong, overall endorsement of the Court’s jurisprudence. It is regrettable that the tenor and tone of the proposed Declaration text is not more positive, implying that the Court is not reserved enough generally.
Loving criticism of Sanchez-Sanchez?
The CDDH Report and proposed Declaration send a strong signal that the Court should reject a maximalist approach to the extra-territorial application of Article 3, contrary to the stance it appears to take at [99] of Sanchez-Sanchez v United Kingdom. Appears to take – for the CDDH Report correctly highlights that there are passages within the same judgment which are not easy to square with the maximalist approach ([25], Report).
The CDDH Report and proposed Declaration do not explicitly reject Sanchez-Sanchez. However, the former stresses its fact specific nature (life sentences, Article 3 safeguards and extradition). The overall effect is to push back on the suggestion that the case is a general precedent for the application of Article 3 in extra-territorial cases. Thus, the draft Declaration prioritises the passage extracted above, about extradition and avoidance of impunity (from Sanchez-Sanchez) and the principle that ‘the Convention does not purport to be a means of requiring the States Parties to impose Convention standards on other States’ (a paragraph which Sanchez-Sanchez did not endorse, yet appeared in earlier chamber judgments (see Report, [25]).
The Declaration would seek further ‘guidance’ from the Court for specific contexts. It maintains that caution is needed when applying the Court’s case law—including by domestic courts —when deciding whether expelling or extraditing someone to a non‑State Party would breach Article 3 obligations.
On its own I would not see the above as an attack on the Court, but it is certainly a challenge given that it has been made clear what is expected of the further ‘guidance’ from Strasbourg. Is this inappropriate political interference with the Court’s independence? Doubtless some strong arguments can be made here (bolstered by brilliant defences of Article 3). In the specific context above, could the CDDH Report be viewed as the type of loving criticism Wildhaber referred to? As someone who advocates a self-restraint approach from Strasbourg, I think that good arguments can be made for this, especially given how unclear Sanchez-Sanchez is.
Even so, and to be clear, this does not justify the Chișinău process, and here I reiterate my opening remarks. One avenue ripe for making points like those identified in relation to Sanchez-Sanchez, would be Court’s Advisory Opinion procedure. So, as states seek ‘guidance’ from the Court on this matter should those which have not accepted Protocol 16 (the UK, amongst them) not now do so, to prove the sincerity of their ‘loving’ criticism?
Thank you very much to Professor Alice Donald and Dr Andrew Forde for feedback on an earlier version of this text.
