In a statement to the British daily The Sunday Times on 26 October 2025, Poland’s Prime Minister Donald Tusk welcomed the radical idea that, if the 46 signatories cannot agree on changes to the European Convention on Human Rights (the Convention), it would be “quite reasonable” to consider leaving it. The initiative was put forward by Reform UK and the Conservative Part, and while the government spokesman was quick to explain that the Polish Government was not considering denouncing the Convention, the Prime Minister’s statement has raised serious concerns. Especially in the context of an earlier May Letter published by Donald Tusk and eight European prime ministers on 22 May 2025, and the subsequent meeting of the initiative’s proponents in Italy last week, which allegedly already resulted a first draft of a declaration aimed at curtailing the interpretive scope of the ECtHR. We urge the Prime Minister to publicly renounce these considerations, as the Convention forms a constitutional element of Poland’s commitment to external human rights oversight and to protection of shared human rights within a united and peaceful Europe governed by the rule of law. Never again shall politics control the law and its institutions; instead, it must adhere to the decisions of independent national and international courts and respect their case law. This must be so if we really want to show that we have learnt from the tragic history of our continent, where law has been bent, manipulated, and instrumentalized at will.

The May Letter

In the May Letter, the main point of contention appears to concern migration. Specifically, the expulsion of migrants accused of crimes. The proponents believe that the European Court of Human Rights (ECtHR) has interpreted the Convention, long understood as the living instrument, far too extensively. They stated:

“However, as leaders, we also believe 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.

We believe that the development in the Court’s interpretation has, in some cases, limited our ability to make political decisions in our own democracies. And thereby affected how we as leaders can protect our democratic societies and our populations against the challenges facing us in the world today”.

“Salami tactics” on human rights

Seventy-five years have passed since the text of the Convention was adopted. It entered into force in 1953. The ECtHR issued its first judgment in 1960. The Convention itself and the ECtHR’s judgments have always been closely monitored by the governments and the public interested in human rights. They have been frequently subject of the discussion and fierce criticism. Yet never before have the activities of the Strasbourg Court been called into question to the extent that nine heads of states are now threatening the Court and urging it to change its case law.

The reasons why Donald Tusk decided to sign this May Letter are unknown to the Polish public. The matter had not been previously discussed in Poland in any public forum – either governmental or parliamentary. The May Letter appeared as a deus ex machina. The Secretary General of the Council of Europe Alain Berset responded to it by saying:

“Debate is healthy, but politicizing the Court is not. In a society governed by the rule of law, no judiciary should face political pressure. Institutions that protect fundamental rights cannot bend to political cycles. If they do, we risk eroding the very stability they were built to ensure. The Court must not be weaponized – neither against governments, nor by them.”

The question arises now as to whether the Prime Minister’s interview with The Sunday Times should be seen as another stage in testing whether – and to what extent – it is possible to systematically weaken the position of the Convention and, more broadly, human rights in Poland? Such a “salami tactic” must cause concern. For years, successive rounds of negotiations have been taking place between the States Parties to the Convention with a view to reforming the Convention system and improving the functioning of the Court. Since 2023, further talks have been held, commonly referred to as the “Reykjavik process”. It was in the Icelandic capital that the States Parties decided that further reflection on the Convention’s structure and future was necessary to improve its functioning. Poland has a better opportunity to influence the future of the Convention by taking an active part in these talks than through ill-considered populist attempts to mobilise public opinion against human rights, which are presented as an alleged obstacle to ensuring security for both the State and society alike, and as an attempt to undermine the legitimacy of the Court.

The ECtHR restores faith in the rule of law

Polish citizens have consistently show that they want to be part of Europe and share its values. Poland joined the Council of Europe in 1991 and acceded to the European Union in 2004. The Convention has become a fundamental point of reference and a source of inspiration for the European Union when interpreting EU law. For its part the Court of Justice of the European Union in Luxembourg has long recognised the rights guaranteed therein as part of the general principles of EU law. Therefore, declaring – as this government rightly does – that Poland is and intends to remain part of the Union because that is its raison d’état, while at the same time attempting to undermine the importance of the Convention, is both contradictory and legally indefensible.

The Convention is a legal instrument that must keep up with the changing socio-political circumstances which define its environment. Its interpretation by the Court demonstrates that certain values are immutable and must be always respected. It reminds us that human rights are not a beauty contest in which the authorities graciously decide who should be allowed to enjoy them and who should not. They belong to all people and are based on human dignity.

For thirty-two years, regardless of which party has been in power, Polish citizens have been lodging applications with the Court against Poland for breaches of their Convention rights. It is this Court that has regularly restored their faith in the rule of law when their own State faltered. The Court gave Poles hope that no one will be deprived of their liberty arbitrarily, without reasonable grounds for doing so. It is thanks to successive judgments of the Court that Poland has strengthened guarantees against any deprivation of liberty without sufficient grounds. It has slowly restored their faith that they have the right to having their cases heard within a reasonable time. Indeed since 2004, thanks to the jurisprudence of the Court, the citizens have been able to complain to national courts about the excessive length of judicial proceedings and receive appropriate compensation. The Court upholds the freedom of expression, including the right to information. It has recently held that an association monitoring the activities of public institutions should have been allowed to obtain access to the meeting schedule of members of the (now captured and emasculated) Constitutional Tribunal to determine whether and when they met with politicians. The Court also gave impetus to claims for compensation from the state for properties lost in the Bug River region to be made realistic and effective, after years of inaction by the authorities in this matter, and for compensation to be paid in real money. The Court has reminded time and time again that the citizens have the right to a thorough investigation into the circumstances of the death of their loved ones and to those responsible to be held accountable – if the death was caused by third parties, regardless of whether it was the result of the actions of public officials or not. The Court upholds the right to family life. Where the domestic family court fails, the Court has been ready to examine whether the state has provided the defendants with sufficient means to ensure the continuity of family relationships. Finally, after 2018, the Court has said time and time again that judges cannot be dependent on the whims of the executive branch, and that citizens have the right to a fair trial before an independent, impartial, efficient court established by law.

In a democratic state, it is always possible – and indeed necessary – to strike a fair balance between different interests, both in the sphere of lawmaking and later in the practice of its application. The requirement for the state authorities to seek, in each individual case, such balance between the rights of the individual and other interests worthy of protection, such as security, is a fundamental principle of the Convention.

All this takes on special importance and is thrown into sharp relief given the fragility in Poland of the culture of human rights, the rule of law, and, more broadly, of constitutionalism. Add to this the years of the lawlessness during the Law and Justice (PIS) rule that have shattered it to smithereens and left behind the rule of law reduced to rubble, and you have a picture of the extreme vulnerability of an individual left at the unchecked mercy of the ever-changing powers that be. Therefore, it is in the citizens’ best interest to cherish and protect the Convention and the Court. Strong reactions to the Prime Minister’s statement (for our own take in Polish see here) are good indication of how inappropriate it was and how sensitive a nerve it struck in a country where human rights have not taken root yet and where they still depend on the whims of the political process. Fortunately, the Convention as an unique social contract is not for politicians, but for societies who want to adhere to its values. We believe that Polish citizens will continue to trust the Court and lodge their applications with it. While trust takes years to build, it can be destroyed in a second, and it takes an eternity to have it regained. Unfortunately, the Prime Minister’s statement does not contribute to building trust in the rule of law and to strengthening the predictability of the public authorities’ actions. Quite the contrary.

The promise of post-war Europe: politics follows the law

Finally, we must ask a fundamental question prompted by the Prime Minister’s disturbing statements. Is there still room in the Civic Coalition’s political project for Europe and for the great “Yes” of our parents’ and grandparents’ generation? For our dreams of and aspirations for a peaceful continent of which Poland constitutes an integral element. For dreams and aspirations that, during the eight dark years of PiS rule, suffered just as much as the humiliated and violated Polish Constitution?

When the Prime Minister raises the idea of possibly withdrawing from the Convention or repeats empty slogans about Strasbourg judges allegedly exceeding limits of their judicial mandate, we would like to remind him that European countries once settled disputes through bloody conflicts. From the very beginning, the strength and ambition of the Convention were to be based on the authority of the law binding on all and the respect for its institutions. Therefore, after 1945, European constitutionalism was shaped by liberal tradition that assumed the primacy of law over politics. Mindful of the tragic experiences of the past, when the will of the majority became a tool of oppression and led to unimaginable crimes committed in the name of “the people”, European states were prepared to relinquish part of their sovereignty in favour of an independent community and strong supranational institutions. Each time a majority wins in the national political process, it is bound by fundamental rules that cannot be changed at will just because “we won the elections”. Political power was to be limited not only from within (institutions, procedures, courts) but also from outside (European structures) to ensure that political choices at the national level would never again lead to authoritarianism. Bearing in mind the tragic past and the atrocities that some Europeans inflicted on others in the name of the uniqueness of their own country and history, the post-war European order was based on the principle that politics must conform to the law, and never the other way around.

In this sense Prime Minister Tusk’s remarks are not only an unfortunate slip of the tongue, but they undermine one of the fundamental principles of this order: “never again”. Surely, one can expect the Prime Minister from Gdańsk to understand the deep and painfully powerful symbolism of these two words. In 1989, we in Poland believed in the power of the law and independent institutions, which were supposed to represent a clear break with the period of facade institutions and a paper constitution. That is why we set our course for Europe. Will now populist questioning human rights become the driving force behind the actions of this government that after all was formed after the elections of 15 October 2023 on a wave of civic mobilization and hope for a return to Europe after the anti-European and anti-constitutional reign of PIS party?

By asking this dramatic question we rather risk overreacting rather than passively wait for a return to a world in which the political authorities are always right, the courts bow down to the instructions and expectations of the political powers, and where, as Russian poet Mayakovski once infamously wrote, “the individual is nothing”.

Paraphrasing here Chief Justice of the US Supreme Court John Marshal’s dictum in McCulloch v Maryland, “we must never forget that it is a constitution we are expounding”, we remind Donald Tusk and other European leaders for that matter that it is the Convention as “a constitutional instrument of European public order”, “designed to maintain and promote the ideals and values of a democratic society”, that we are talking about here. It is the long-term fidelity to this document and to the common heritage of political tradition, ideals, freedom, and the rule of law as the underlying values of the Convention, and not to fleeting impulses of the moment. This fidelity must serve as the ultimate test for the political credibility of all actors operating within the European public space.