ECHR's jurisdiction going towards extension to advisory opinions on legal questions

Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms

Typology: Legislation

Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms

Strasbourg, 2.X.2013

European Court of Human Rights
Steering Committee for Human Rights (CDDH)

Explanatory Report

Introduction

1. The proposal to extend the jurisdiction of the European Court of Human Rights (the Court) to give advisory opinions was made in the report to the Committee of Ministers of the Group of Wise Persons, set up under the Action Plan adopted at the Third Summit of Heads of State and Government of the Member States of the Council of Europe (Warsaw, 16-17 May 2005) “to consider the issue of the long-term effectiveness of the ECHR control mechanism”. The Group of Wise Persons concluded that “it would be useful to introduce a system under which the national courts could apply to the Court for advisory opinions on legal questions relating to interpretation of the Convention and the protocols thereto, in order to foster dialogue between courts and enhance the Court’s ‘constitutional’ role. Requests for an opinion, which would be submitted only by constitutional courts or courts of last instance, would always be optional and the opinions given by the Court would not be binding.” (1) Such a new competence would be in addition to that accorded to the Court under Protocol No. 2 to the European Convention on Human Rights (the Convention) (2), whose provisions are now principally reflected in Articles 47-49 of the Convention. The Group of Wise Persons’ proposal was examined by the Steering Committee for Human Rights (CDDH) as part of its work on follow-up to the former’s report. (3)

2. The Izmir High-level Conference on the future of the Court (26-27 April 2011), in its final Declaration, subsequently “[invited] the Committee of Ministers to reflect on the advisability of introducing a procedure allowing the highest national courts to request advisory opinions from the Court concerning the interpretation and application of the Convention that would help clarify the provisions of the Convention and the Court’s case-law, thus providing further guidance in order to assist States Parties in avoiding future violations”. The Ministers’ Deputies decisions on follow-up to the Izmir Conference then invited the CDDH to elaborate specific proposals, with options, for introducing such a procedure.(4) The CDDH’s Final Report to the Committee of Ministers on measures requiring amendment of the ECHR (5) included an in-depth examination of a more detailed proposal made by the experts of The Netherlands and Norway, reflected also in its Contribution to the Ministerial Conference organised by the United Kingdom Chairmanship of the Committee of Ministers. (6)

3. The question of advisory opinions was discussed at length during the preparation of the subsequent Brighton High-level Conference on the future of the Court (19-20 April 2012), to which the Court contributed a detailed “Reflection Paper on the proposal to extend the Court’s advisory jurisdiction”. (7) The final Declaration of the Brighton Conference, “[noting] that the interaction between the Court and national authorities could be strengthened by the introduction into the Convention of a further power of the Court, which States Parties could optionally accept, to deliver advisory opinions upon request on the interpretation of the Convention in the context of a specific case at domestic level, without prejudice to the non-binding character of the opinions for the other States Parties[, invited] the Committee of Ministers to draft the text of an optional protocol to the Convention with this effect by the end of 2013; and further invites the Committee of Ministers thereafter to decide whether to adopt it”.

4. Following the Brighton Conference, the 122nd Session of the Committee of Ministers (23rd May 2012) instructed the CDDH to draft the required text. This work initially took place during two meetings of a Drafting Group of restricted composition, before being examined by the plenary Committee of experts on the reform of the Court (DH-GDR), following which the draft was further examined and approved by the CDDH at its 77th meeting (22 March 2013) for submission to the Committee of Ministers. The key issues addressed during this process were: the nature of the domestic authority that may request an advisory opinion of the Court; the type of questions on which the Court may give an advisory opinion; the procedure for considering requests, for deliberating upon accepted requests and for issuing advisory opinions; and the legal effect of an advisory opinion on the different categories of subsequent case. The CDDH’s position on these issues is reflected in the commentary on the Protocol’s provisions in Section II below.

5. The Parliamentary Assembly, at the invitation of the Committee of Ministers, adopted Opinion No. 285 (2013) on the draft protocol on 28 June 2013.

6. At their 1176th meeting, the Ministers’ Deputies examined and decided to adopt the draft as Protocol No. 16 to the Convention (CETS No. 214). At the same time, it took note of the present Explanatory Report to Protocol No. 16.

(...)

Notes :
(1) See doc. CM(2006)203, para. 135.
(2) See CETS No. 044.
(3) See the CDDH Activity Report on guaranteeing the long-term effectiveness of the control system of the European Convention on Human Rights, doc. CDDH(2009)007 Addendum I, paras. 42-44 and the CDDH Opinion on the issues to be covered at the Interlaken Conference, doc. CDDH(2009)019 Addendum I, para. 19.
(4) See doc. CM/Del/Dec(2011)1114/1.5. These instructions were subsequently absorbed into the terms of reference for the biennium 2012-2013 of the CDDH’s subordinate body, the Committee of experts on the Reform of the Court (DH-GDR).
(5) See doc. CDDH(2012)R74 Addendum I, paras. 51-56 and Appendix V.
(6) See doc. CDDH(2012)R74 Addendum III, para. 17.
(7) See doc. # 3853038, 20 February 2012.

Preamble

The member States of the Council of Europe and other High Contracting Parties to the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (hereinafter referred to as “the Convention”), signatories hereto,

Having regard to the provisions of the Convention and, in particular, Article 19 establishing the European Court of Human Rights (hereinafter referred to as “the Court”);

Considering that the extension of the Court’s competence to give advisory opinions will further enhance the interaction between the Court and national authorities and thereby reinforce implementation of the Convention, in accordance with the principle of subsidiarity;

Having regard to Opinion No. 285 (2013) adopted by the Parliamentary Assembly of the Council of Europe on 28 June 2013,

Have agreed as follows:

Article 1

1 Highest courts and tribunals of a High Contracting Party, as specified in accordance with Article 10, may request the Court to give advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto.

2 The requesting court or tribunal may seek an advisory opinion only in the context of a case pending before it.

3 The requesting court or tribunal shall give reasons for its request and shall provide the relevant legal and factual background of the pending case.

Article 2

1 A panel of five judges of the Grand Chamber shall decide whether to accept the request for an advisory opinion, having regard to Article 1. The panel shall give reasons for any refusal to accept the request.

2 If the panel accepts the request, the Grand Chamber shall deliver the advisory opinion.

3 The panel and the Grand Chamber, as referred to in the preceding paragraphs, shall include ex officio the judge elected in respect of the High Contracting Party to which the requesting court or tribunal pertains. If there is none or if that judge is unable to sit, a person chosen by the President of the Court from a list submitted in advance by that Party shall sit in the capacity of judge.

Article 3

The Council of Europe Commissioner for Human Rights and the High Contracting Party to which the requesting court or tribunal pertains shall have the right to submit written comments and take part in any hearing. The President of the Court may, in the interest of the proper administration of justice, invite any other High Contracting Party or person also to submit written comments or take part in any hearing.

Article 4

1 Reasons shall be given for advisory opinions.

2 If the advisory opinion does not represent, in whole or in part, the unanimous opinion of the judges, any judge shall be entitled to deliver a separate opinion.

3 Advisory opinions shall be communicated to the requesting court or tribunal and to the High Contracting Party to which that court or tribunal pertains.

4 Advisory opinions shall be published.

Article 5

Advisory opinions shall not be binding.

Article 6

As between the High Contracting Parties the provisions of Articles 1 to 5 of this Protocol shall be regarded as additional articles to the Convention, and all the provisions of the Convention shall apply accordingly.

Article 7

1 This Protocol shall be open for signature by the High Contracting Parties to the Convention, which may express their consent to be bound by:

a signature without reservation as to ratification, acceptance or approval; or
b signature subject to ratification, acceptance or approval, followed by ratification, acceptance or approval.

2 The instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.

Article 8

1 This Protocol shall enter into force on the first day of the month following the expiration of a period of three months after the date on which ten High Contracting Parties to the Convention have expressed their consent to be bound by the Protocol in accordance with the provisions of Article 7.

2 In respect of any High Contracting Party to the Convention which subsequently expresses its consent to be bound by it, the Protocol shall enter into force on the first day of the month following the expiration of a period of three months after the date of the expression of its consent to be bound by the Protocol in accordance with the provisions of Article 7.

Article 9

No reservation may be made under Article 57 of the Convention in respect of the provisions of this Protocol.

Article 10

Each High Contracting Party to the Convention shall, at the time of signature or when depositing its instrument of ratification, acceptance or approval, by means of a declaration addressed to the Secretary General of the Council of Europe, indicate the courts or tribunals that it designates for the purposes of Article 1, paragraph 1, of this Protocol. This declaration may be modified at any later date and in the same manner.

Article 11

The Secretary General of the Council of Europe shall notify the member States of the Council of Europe and the other High Contracting Parties to the Convention of:

a any signature;
b the deposit of any instrument of ratification, acceptance or approval;
c any date of entry into force of this Protocol in accordance with Article 8;
d any declaration made in accordance with Article 10; and
e any other act, notification or communication relating to this Protocol.

In witness whereof the undersigned, being duly authorised thereto, have signed this Protocol.

Done at Strasbourg, this 2nd day of October 2013, in English and French, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Council of Europe. The Secretary General of the Council of Europe shall transmit certified copies to each member State of the Council of Europe and to the other High Contracting Parties to the Convention. 

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