Rewriting Rights? The ECHR’s Shift Away from the European Convention’s Text on Same-Sex Unions, Immigration, and the Judiciary

In many respects, 2025 was a special year for the European Court of Human Rights. On the one hand, it still remains one of the most influential international institutions in the world, with enormous ambitions to influence national policies in areas such as the economy, climate protection, family policy, immigration, and the judicial system. On the other hand, the Tribunal remains an administratively inefficient institution, with massive backlogs and years-long waiting times for cases to be adjudicated, resulting in citizens filing fewer complaints with it than in the past. Moreover, last year, for the first time in history, a large group of governments of Council of Europe member states openly criticized the Court’s case law, accusing it of an excessive focus on the rights of illegal immigrants while at the same time disregarding the threatened rights of citizens of European countries (see the Letter of Nine and the Letter of 27).

However, the European Court of Human Rights still weighs in on controversial issues. In 2025, as before, it demanded the legal recognition of same-sex unions and judicial reform in Poland, more lenient treatment of illegal immigrants in Hungary, as well as ensuring prisoners in Estonia the ability to smoke cigarettes.

The ECtHR remains overloaded and slow.

Among international institutions, the European Court of Human Rights continues to receive the most individual complaints worldwide. In 2025, approximately 31,800 new complaints were filed with the Court, and, in addition, more than 50,000 complaints from previous years are awaiting consideration. Just 10 to 15 years earlier, it was receiving as many as 50,000 to 60,000 complaints annually.

Complaints most often concern so-called routine matters, such as the excessive length of judicial proceedings (Article 6 of the European Convention on Human Rights — ECHR), prison overcrowding (Article 3 of the ECHR), and arbitrary arrest and detention (Article 5 of the ECHR). The most complaints were lodged against Turkey (over 18,000), Russia (over 17,000), Ukraine (over 4,000), and Poland (over 3,500).

The Strasbourg Court examined more than 38,500 complaints, of which only about 7,000 were decided on the merits; the remainder were dismissed on formal grounds or because a settlement was reached between the complainant and the Member State. These data show that for years the Court’s primary remedy for backlog has remained unchanged—a rigid formalism aimed at finding the slightest pretext to dismiss a complaint, in order to deal with it more quickly and reduce the number of pending cases.

Last year, the Court weighed in not only on routine matters, but also on matters of fundamental importance such as the status of same-sex unions, abortion, illegal immigration, and the rule of law in Poland.

Although the Court has 46 judges, supported by a staff of about 640 officials, it is still unable to handle cases efficiently. The waiting time for a complaint to be considered is extremely long—about 5–7 years, whereas in so-called urgent cases it is about 2–3 years. On the other hand, it is a fact that the situation was even worse 15 to 20 years ago, when the backlog hovered around 150,000 complaints awaiting review, and the waiting time for a judgment could be as long as a decade.

LGBT issues

The LGBT movement’s demands remain one of the key themes in ECtHR case law, and 2025 was no exception. For many years, the Court has consistently urged the member states of the Council of Europe to ensure that same-sex couples can formalize their relationship—even if this is opposed by their national constitution.

In 2025, the Court upheld the complaints brought against Poland by three same-sex couples seeking to formalize their relationships. The first case concerned two Polish-Spanish same-sex couples who applied to a Polish civil registry office for the issuance of a certificate of no impediment to marriage, in connection with their intention to get “married” in Spain (Szypuła v. Poland).

Polish law permits marriage only between a woman and a man, whereas Spanish law also allows “marriage” for same-sex couples. The Polish civil registry office refused to issue a certificate, citing a conflict between the applicants’ intent and Polish law, which does not provide for the formalization of same-sex unions.  The couples tried to challenge the decisions of the Civil Registry Office before the ordinary courts, but their appeals were dismissed by the administrative courts. They therefore lodged applications with the ECtHR, complaining of a violation of their right to respect for private and family life (Article 8 of the European Convention on Human Rights, ECHR).

In the proceedings before the ECtHR, the Ordo Iuris Institute intervened, submitting an amicus brief. Ordo Iuris argued that Article 8 of the ECHR, when speaking of family life, refers to a community based on the union of a woman and a man; therefore, no “right” to a new family structure centered on a same-sex couple can be derived from it.  Member States should be free to decide how to regulate the status of same-sex cohabiting partnerships, and the Court should not impose solutions in this area.

However, the Court held that Poland had violated Article 8 of the ECHR because it had left the applicants “in a legal vacuum,” resulting from the lack of “recognition and protection of same-sex couples in a stable and committed relationship.”

In 2025, the ECtHR also upheld the complaint of a Polish-English same-sex couple who had married in the United Kingdom and then applied for its recognition by the Polish civil registry office, which refused (Andersen v. Poland). The Ordo Iuris Institute also intervened in this case, submitting an amicus brief in which it raised arguments similar to those in the first case mentioned.

The Court again ruled that Poland violated Article 8 of the ECHR. This is now the fourth ECtHR judgment finding that Poland violated Article 8 of the Convention due to its failure to regulate the status of same-sex couples.

In Poland, there is an ongoing debate on this matter, in which the Ordo Iuris Institute takes an unequivocal stance against any form of institutionalization of same-sex unions. However, the legal context of this issue is complex. In theory, Article 46 of the Convention obliges Poland to execute the ECtHR judgments delivered in cases against it. On the other hand, the enforcement of these judgments would be difficult to reconcile with the Polish Constitution. The Ordo Iuris Institute has prepared an analysis indicating that implementing the ECtHR judgments through the general institutionalization of same-sex unions, that is, by creating the possibility of formalizing relationships within the family law regime (e.g., in the form of civil unions), would be incompatible with Article 18 of the Polish Constitution, according to which “Marriage, being a union of a man and a woman, as well as the family, motherhood and parenthood, shall be placed under the protection and care of the Republic of Poland.” For many years, this provision has been consistently interpreted in constitutional law doctrine as not only a prohibition on the redefinition of marriage but also as a prohibition on the establishment of institutions alternative to marriage. On the other hand, which makes the ECtHR’s judgment even more incomprehensible in light of the European Convention on Human Rights, Polish law already grants cohabitants, and even same-sex partners or persons in any close non-family relationships (e.g., roommates, neighbors, caregivers), numerous rights, such as obtaining information about the other person’s health (on the basis of a power of attorney), inheriting, collecting wages and parcels, maintaining a joint bank account, receiving insurance compensation and a pension in the event of the other person’s death resulting from bodily injury or impairment of health, provided that the deceased had voluntarily and continuously provided the other participant in this relationship with means of subsistence, claiming the body, provided the surviving close person voluntarily undertook to do so, receiving a funeral benefit, exemption from the obligation to testify or to answer questions regarding a person who is in a particularly close personal relationship with the accused, as well as representing, on the basis of a power of attorney, the other person at a bank, the tax office, the Polish National Health Fund (NFZ) or the state social insurance institution ZUS.

Protection of life in Poland

Last year, the ECtHR also once again weighed in on the possibility of performing abortions in Poland. The Court held that the imposition of a ban on eugenic abortion by means of a judgment of the Constitutional Tribunal issued with the participation of the so-called “duplicate judges” is incompatible with Article 8 of the European Convention on Human Rights (A.R. v. Poland). The ECtHR found a violation of the Convention on two grounds.

First, the restriction on the right to privacy was established pursuant to what the Court considers a defective legal basis—the 2020 Constitutional Tribunal judgment, which is said to have been delivered by an improperly constituted panel of judges. The ECtHR referred to its prior case law, from which it follows that 3 of the 15 judges of Poland’s Constitutional Tribunal were appointed to their posts in violation of the Polish Constitution. The violation of the Constitution was confirmed in Constitutional Tribunal rulings issued in 2015-2016, and it consisted in the fact that the Sejm of the 8th term (2015-2019), acting without a legal basis, annulled the resolutions of the Sejm of the 7th term (2011-2015) nominating three Constitutional Tribunal judges in advance, and then elected three new judges to replace them. Since then, they have been called “duplicate judges” because they were elected to seats already filled by Constitutional Tribunal judges chosen by the 7th-term Sejm.

Secondly, in the Court’s assessment, the ban on eugenic abortion was established under conditions of “general uncertainty as to the law in force,” caused by the prime minister’s months-long delay in publishing the Constitutional Tribunal’s judgment. Consequently, it was unclear whether abortion on eugenic grounds was punishable as of the date the judgment was handed down (October 22, 2020), or only as of the date of its promulgation in the Official Journal (January 27, 2021).

Contrary to some media reports, the judgment of the ECtHR did not question the ban on eugenic abortion as such. Once again, the Strasbourg Court did not challenge the legal provisions introduced in Poland concerning the scope of the legal protection of human life. The focus of the ECtHR’s criticism was the manner in which the abortion law was changed—through a judgment of the Polish Constitutional Tribunal that, in the ECtHR’s view, was delivered by an improperly composed panel of judges.

Rule of law in Poland

The dispute over the rule of law in Poland has been ongoing for more than 10 years, and the European Court of Human Rights continues to receive complaints alleging insufficient independence of Polish courts.

In 2025, the Strasbourg Court issued another judgment in a series of cases concerning the dispute over the rule of law in Poland, addressing, among other things, the procedure for appointing judges (Sadomski v. Poland).

In Poland, judges are appointed by the President of the Republic of Poland from among candidates selected by the National Council of the Judiciary (Krajowa Rada Sądownictwa, NCJ) through an open competition. From 1989 to 2017, the NCJ primarily represented the judiciary, whereas since 2018 most of its members have been elected by the Sejm. In 2020, however, three chambers of the Supreme Court adopted a resolution stating that the current method of electing the NCJ is unconstitutional because it makes it excessively dependent on the parliament. Although the Supreme Court, in its subsequent case law, stressed the inadmissibility of challenging the status of judges appointed since 2018, since then the ECtHR has found that Poland violates the right of everyone to an independent court established by law by allowing judges appointed at the request of the unconstitutional NCJ to adjudicate. The Ordo Iuris Institute itself has repeatedly criticized the ECtHR’s case law, arguing that the election of the judicial members of the NCJ by the Sejm is consistent with the Polish Constitution. This stance of Ordo Iuris was, moreover, confirmed by the Polish Constitutional Tribunal itself, and thus there are no legal grounds to question the legality of their election (see, e.g., the report How to Exit the Rule-of-Law Crisis).

This year, the European Court of Human Rights (ECtHR) found that Poland violated Article 6 of the Convention (right of access to a court) because of irregularities in the 2018 appointment of a group of judges to the Supreme Court’s Civil Chamber. The problem was not only the composition of the National Council of the Judiciary but also the lack of any real possibility to appeal its resolution on the outcome of the competition for judicial positions. In this case, a group of candidates rejected by the NCJ appealed the Council’s resolution to the Supreme Administrative Court, which stayed its enforcement pending a decision on the merits. The President of the Republic of Poland, however, without waiting for a ruling by the Supreme Administrative Court, simply appointed the candidates recommended by the NCJ, ignoring the order that suspended the enforcement of the aforementioned resolution. The Supreme Administrative Court did not consider the appeals until three years later, but this was purely symbolic for the appellants, who could no longer apply for the same judicial positions. The ECtHR held that, in such a situation, the possibility of appealing to a court was illusory.

Immigration

One of the most serious challenges of recent years is mass and uncontrolled immigration in various parts of Europe. On this issue, the European Court of Human Rights also spoke out last year, defending the rights of three illegal immigrants whom Hungary deported back to Afghanistan and Syria (H.Q. v. Hungary). The case involved two Afghans and one Syrian who were in Hungary illegally. Two of them crossed the border illegally with the help of a smuggler, and one of them crossed the border legally, but after his residency rights expired, he remained in Hungarian territory for 2 years until the Hungarian authorities became interested in him. All had applied for asylum in Hungary, citing a general sense of insecurity in their countries of origin. The Hungarian authorities deported all three of them without a detailed analysis of their claims of insecurity. However, all found refuge in other EU countries – one was smuggled by a smuggler to Germany, where he filed another asylum application, another went to Austria, where he also filed an asylum application, and the third is in Serbia.  The European Court of Human Rights upheld the complaint, finding that Hungary had violated the prohibition on the collective expulsion of foreigners (Article 4 of Protocol No. 4 to the ECHR), the right to an effective remedy (Article 13 of the ECHR) and the prohibition on degrading and inhuman treatment (Article 3 of the ECHR). This ECtHR judgment aligns with an already well-established line of case law that deems overly restrictive measures to protect the national border to be incompatible with human rights.

Another example is the situation in 2022, when the ECtHR blocked the UK government’s deportation to Rwanda of migrants who were caught attempting to illegally cross the border via the English Channel. London signed an agreement with Kigali under which migrants would wait in Rwanda for their asylum applications to be processed. The Court’s interim order, issued by a single judge, suspended the possibility of transfer at the last minute. Similar rulings have been handed down against France, Italy, and Poland. In turn, in 2023 the ECtHR issued a series of judgments condemning Denmark for deporting foreign nationals on account of their convictions for serious offenses. In the Court’s view, except in absolutely exceptional cases, even a dangerous criminal may not be deported if they have built a life in the host country, particularly if they have started a family.

The Court requires that asylum applications from honest individuals who submitted them in the appropriate place and in accordance with the proper procedure (e.g., at a consulate in their country of origin) be treated just as seriously as asylum applications from illegal immigrants who submitted them only after they were caught by the authorities while attempting to unlawfully cross the border. In the ECtHR’s view, every asylum application must be examined on the merits, and until that happens, the state should allow the immigrant to remain within its territory.

The Court’s case law is therefore increasingly blocking an effective immigration policy, forcing the admission to the territory of anyone who submits an asylum application (even one that is obviously unfounded), prolonging deportation procedures, and making it more difficult to expel foreigners who have committed serious crimes.

The year 2025 brought a political breakthrough on this issue. In May, the prime ministers of nine member states of the Council of Europe (Italy, Denmark, Austria, Belgium, the Czech Republic, Estonia, Latvia, Lithuania, and Poland) sent an open letter highlighting the dangerous phenomenon of uncontrolled mass immigration and criticizing the ECtHR’s case law. “The world has changed fundamentally since many of our ideas were conceived in the ashes

of the great wars. The ideas themselves are universal and everlasting. However, we now live in a globalized world where people migrate across borders on a completely different scale. (…) Others have come and chosen not to integrate, isolating themselves in parallel societies and distancing themselves from our fundamental values of equality, democracy, and freedom. In particular, some have not contributed positively to the societies welcoming them and have chosen to commit crimes. (…) [The current situation] concerns risks undermining the very foundation of our societies,” the statement reads.

Therefore, the signatories of the letter expressed the view that “there is a need to look at how the European Court of Human Rights has developed its interpretation of the European Convention on Human Rights. Whether the Court, in some cases, has extended the scope of the Convention too far as compared with the original intentions behind the Convention, thus shifting the balance between the interests which should be protected.”

Accordingly, the prime ministers of nine member states have called for giving national governments greater leeway in deciding on the expulsion of foreign nationals convicted of serious crimes, and—where deportation is not possible—greater leeway in monitoring their presence on national territory. The letter also indirectly referred to the hostile actions of Belarus, which organizes smuggling routes to Poland for illegal immigrants from around the world in order to destabilize Poland.

At the end of 2025, the representatives of 27 countries issued a statement at a conference of justice ministers of countries belonging to the Council of Europe. The statement concerned the ECtHR case law regarding the rights of illegal immigrants. In it, the signatories call on the Court in Strasbourg to broaden their discretion to deport foreign nationals who commit serious crimes, arguing that the interpretation of Article 8 of the Convention should take greater account of the nature and gravity of the crimes committed and attach less weight to the offender’s social, cultural, and family ties with the state of residence. In other words, the statement by the leaders of 27 countries calls for a change to the European Court of Human Rights (ECtHR) case law, which has so far held that, as a rule, a foreign national convicted of a serious crime cannot be deported if they have built a life in the host country, especially if they have started a family.

Additionally, the justice ministers pointed to the need to soften the interpretation of Article 3 of the European Convention on Human Rights, which prohibits torture and inhuman or degrading treatment. In their view, its scope “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 statement also noted that “a State Party should not be prevented from entering into cooperation with third countries regarding asylum and return procedures.” This point is of fundamental importance given the overall inefficiency of deportation procedures in Europe, which stems, among other things, from a lack of willingness to cooperate on the part of countries of origin of illegal immigrants, which are not necessarily willing to readmit them. That is why, for example, the United Kingdom entered into an agreement with Rwanda, under which, in exchange for financial support, Rwanda agreed to accept deported individuals regardless of their nationality. The trend in the ECtHR’s case law, however, indicates that the legality of such agreements may be called into question. In light of the ECtHR’s interpretation of the Convention, deportation is permissible only to countries that offer human rights standards comparable to those in Europe. Rwanda, although it is a safe country (no wars are being fought there, the police and security services ensure peace and order in the streets, and the lives of deportees are not at risk), nonetheless has a less efficient judiciary, and prison conditions there are far from European standards.

The signatories of the declaration called on the European Court of Human Rights to show greater respect for:

– the right of states to protect their borders;

– the principle of subsidiarity, according to which the primary responsibility for ensuring respect for human rights lies with the national authorities;

– the principle of proportionality, which balances the protection of immigrants’ individual rights with values such as national security or the protection of public order.

A new human right created by the ECtHR

In 2025, the ECtHR ruled that Estonia’s ban on smoking in prisons was incompatible with Article 8 of the Convention, holding that every prisoner has a right to smoke (Vainikand Others v. Estonia). In the reasoning of the judgment, the Tribunal held that the right to respect for private life entails a right to personal autonomy and the freedom to decide about one’s own body and health, and that these, in turn, encompass the right to decide whether to smoke. In the ECtHR’s assessment, when introducing the contested ban in prisons, the Estonian government focused excessively on smoking as a form of prison subculture and paid too little attention to smoking as a consequence of exercising freedom of choice. The Court noted that ” from the prisoners’ perspective, smoking may be viewed not only as a mere unhealthy habit but also as a means of relieving anxiety and tension.” In this context, an absolute ban on smoking was found to be a disproportionate restriction on the prisoners’ freedom of choice.

The ruling has implications for all European countries where restrictions on smoking in prisons are also in place, though not as strict as in Estonia. This is yet another instance of the Court “inventing” a new human right that has no basis whatsoever in the text of the Convention, by applying its “dynamic” interpretation.

Conclusion

Despite being administratively overburdened, the European Court of Human Rights remains an exceptionally active international court, speaking out on matters of fundamental importance. The ECtHR’s case law sometimes, however, has little to do with interpreting the Convention of which it is the guardian, and instead more closely resembles lawmaking: a set of postulates expressing the judges’ socio-political views on the family, immigration, or criminal justice policy. In this context, it should come as no surprise that some ECHR judgments are met with criticism, and even with open opposition from the governments of member states, a striking example of which is the appeal by 27 prime ministers for the Court to change its stance on illegal immigrants and on the permissibility of deportation for committing a serious crime.