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The Prospective Role of Constitutional Courts in the Advisory Opinion Mechanism Before the European Court of Human Rights: A First Comparative Assessment with the European Union and the Inter-American System

Published online by Cambridge University Press:  06 March 2019

Extract

On 2 October 2013, Protocol No. 16 to the European Convention on Human Rights (ECHR) was opened for signature by the Member States of the Council of Europe (CoE). The protocol, that has so far been signed by sixteen States and ratified by Albania, Georgia, Lithuania, San Marino and Slovenia, will enter into force in case of ratification by at least ten Member States. If the protocol becomes effective, it will expand the European Court of Human Rights’ competence to give advisory opinions upon request by domestic high courts and tribunals.

Type
Part One
Copyright
Copyright © 2015 by German Law Journal GbR 

References

1 According to the chart of signatures and ratifications, as of 20 April 2015 and since the date of opening for signatures, Albania, Armenia, Estonia, Finland, France, Georgia, Italy, Lithuania, the Netherlands, Norway, Romania, San Marino, Slovakia, Slovenia, Turkey, and Ukraine had signed Protocol no. 16, while Albania, Georgia, Lithuania, San Marino, and Slovenia also ratified it.Google Scholar

2 Prior to the adoption of the protocol, a very limited advisory competence was already conferred on the Court, on the basis of Article 47 ECHR. However, an advisory opinion could be requested only by the Committee of Ministers and could be delivered by the Court only on issues not involving the interpretation of the rights provided in the Convention. The strong limits, ratione personae as well as ratione materiae, in order to request and obtain an opinion, made the clause ineffective: in fact, since the adoption of the Convention, the Court has only delivered two opinions re Article 47. On this point, see Dzehtsiarou, Kanstantsin & O'Meara, Noreen, Advisory Jurisdiction and the European Court of Human Rights: A Magic Bullet for dialogue and docket-control?, 3 Legal Studs. 444-68 (2014).Google Scholar

3 As stated by the judges of the European Court of Human Rights—and in particular by François Tulkens, vice-President of the European Court of Human Rights at that time—at a Seminar held in Strasbourg, on 27 January 2012, How can we ensure greater involvement of national courts in the Convention system? The report of the seminar is available on the ECtHR's website at http://www.echr.coe.int/Documents/Dialogue_2012_ENG.pdf. Among the scholars, see Linos-Alexandre Sicilianos, L'élargissement de la compétence consultative de la Cour européenne des droits de l'homme—À propos du Protocole no 16 à la Convention européenne des droits de l'homme 97 Revue trimestrielle des droits de l'homme 9-29 (2014).Google Scholar

4 On this point, see Cartabia, Marta, Europe as a Space of Constitutional Interdependence: New Questions about the Preliminary Ruling, in this Special Issue. Google Scholar

5 According to Artcile 35(1) ECHR, “The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognized rules of international law, and within a period of six months from the date on which the final decision was taken.” This principle is even reinforced by the recently adopted Protocol no. 15 to the European Convention on Human Rights.Google Scholar

6 On pluralism in the Convention system, see Krish, Nico, The Open Architecture of European Human Rights Law, 11 LSE Law, Society and Economy Working Papers (2007).Google Scholar

7 On the ECHR as a cosmopolitan legal order, with the European Court as a “Constitutional Court,” see Sweet, Alec Stone, A Cosmopolitan Legal Order: Constitutional Pluralism and Rights Adjudication in Europe, 1 Global Constitutionalism 53–90 (2012).Google Scholar

8 Krish, Nico, The Case for Pluralism in Postnational Law, 12 LSE Law, Society and Economy Working Papers 2 (2009).Google Scholar

9 On the cases of hidden or “implied” dialogue, see Gisbert, Rafael Bustos, XV Proposiciones generales para una teoría de los diálogos judiciales, 95 Revista Española de Derecho Constitucional 30–31 (2012). Although “hidden,” this still amount to a form of engagement according to Vicky Jackson, Constitutional Engagement in a Transnational Era Chapter 3 (2013).Google Scholar

10 Françoise Benoit-Rohmer, Les perspectives de réformes à long terme de la Cour Européenne des droits de l'homme: “certiorari versus renvoi préjudiciel” Revue universelle des droits de l'homme 7-8 (2002).Google Scholar

11 Declaration, Brighton, 12.d.Google Scholar

12 Protocol No. 16 to the ECHR, Preamble.Google Scholar

13 Art. 10 of the Protocol.Google Scholar

14 Art. 1.2 of the Protocol.Google Scholar

15 See the Explanatory Report to Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms, point 10, http://www.echr.coe.int/Documents/Protocol_16_explanatory_report_ENG.pdf [hereinafter Explanatory Report].Google Scholar

16 Art. 1.1 of the Protocol, second part.Google Scholar

17 Art. 1.3 of the Protocol.Google Scholar

18 Explanatory Report at point 12.Google Scholar

19 It is not by chance that the President of the European Court of Human Rights, Dean Spielmann, in his speeches defined the protocol as “the dialogue protocol”, as pointed out, among the Italian scholars, by E. Nalin, I protocolli n. 15 e 16 alla Convenzione europea dei diritti dell'uomo, in I giudici di common law e la (cross)fertilization: i casi di Stati Uniti d'America, Canada, Unione Indiana e Regno Unito 119–50 (Pamela Martino ed., 2014).Google Scholar

20 Among the Italian scholars, a number of studies by Antonio Ruggeri are devoted to the role of judges in the multilevel system of fundamental rights. With particular reference to the effects of the adoption of Protocol No. 16 on the expansion of judicial functions, see Ruggeri, Antonio, Ragionando sui possibili sviluppi dei rapporti tra le Corti europee e i giudici nazionali (con specifico riguardo all'adesione dell'Unione alla Cedu e all'entrata in vigore del prot. 16), 1 Rivista dell'Associazione italiana dei costituzionalisti (2014).Google Scholar

21 On the crucial role of conflicts in the EU legal system, see Martinico, Giuseppe, The “Polemical” Spirit of European Constitutional Law: On the Importance of Conflicts in EU Law, in this Special Issue.Google Scholar

22 According to Jan Polakiewicz, “the main responsibility for ensuring the observance of the Convention in domestic law lies with the legislature and the judiciary.” Polakiewicz, Jan, The Status of the Convention in National Law, in Fundamental Rights in Europe. The European Convention on Human Rights and its Member States, 1950–2000, 31–53 (Robert Blackburn& Jörg Polakiewicz eds., 2001). Alec Stone Sweet and Helen Keller add also administrative officials. Alec Stone Sweet, Helen Keller, The Reception of the ECHR in National Legal Orders, in A Europe of Rights. The Impact of the ECHR on National Legal Systems, 3-712 (Robert Blackburn& Jörg Polakiewicz eds., 2008).Google Scholar

23 Martinico, Giuseppe & Pollicino, Oreste, The Interaction between Europe's Legal Systems: Judicial Dialogue and the Creation of Supranational Laws 6 (2012).Google Scholar

24 In this sense, see Martinico, Giuseppe, Is the European Convention Going To Be “Supreme”? A Comparative-Constitutional Overview of ECHR and EU Law before National Courts, 2 Eur. J. Int'l L. 401-24 (2012).Google Scholar

25 As Martinico points out, Art. 10 of the Spanish Constitution, Art. 20(1) of the Romanian Constitution, and Art. 5 of the Bulgarian Constitution are examples of the constitutional duty to follow the European Convention in judicial interpretation of national legislation. The case of the UK is an example of legal duty of consistent interpretation. Martinico, supra note 24,Google Scholar

26 Section 3(1) of the Human Rights Act, indeed, provides that “so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”Google Scholar

27 Section 2.1 of the European Convention on Human Rights Act, in fact, states, “[i]n interpreting and applying any statutory provision or rule of law, a court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State's obligations under the Convention provisions.” In so far as the incorporation of the European Convention into domestic systems is concerned, the cases of UK and Ireland are considered “relatively ‘like cases.'” See Besson, Samantha, The Reception Process in Ireland and the United Kingdom, in A Europe of Rights 34–106, supra at note 22.Google Scholar

28 This happens in particular in the Baltic countries. See in particular the cases of Latvia (Constitutional Court, judgments n. 2000-03-01 of 30 Aug. 2000 and n. 2006-03-0106 of 23 Nov. 2006). All cases are cited by Martinico, supra note 24.Google Scholar

29 References to the role of Constitutional Courts in the dialogue with the ECtHR can be found in the reports of the XVI Conference of the European Constitutional Courts, Vienna, Constitutional Court of Austria, 12–14 May 2014, devoted to “The cooperation of Constitutional Courts in Europe. Current situation and perspectives” (available at http://www.confeuconstco.org).Google Scholar

30 Explanatory report at point 25.Google Scholar

31 As can be derived by decision no. 49/2015 of the Italian Constitutional Court, according to which Strasbourg case-law is binding for domestic judges, only when based on an established jurisprudence. While, according to some authors, the decision is an expression of “constitutional patriotism,” intended to put strong limits on judicial interaction (Antonio Ruggeri, Fissati nuovi paletti dalla consulta a riguardo del rilievo della CEDU in ambito interno. A prima lettura di Corte cost. n. 49 del 2015, Diritto prnale contemporaneo (2015), http://www.penalecontemporaneo.it/upload/1427919457RUGGIERI_2015a.pdf; Tega, Diletta, La sentenza della Corte costituzionale n. 49 del 2015 sulla confisca: il predominio assiologico della Costituzione sulla Cedu, Forum di Quaderni Constitutionali (2015), http://www.forumcostituzionale.it/wordpress/wp-content/uploads/2015/04/nota_49_2015_tega.pdf), according to others, it is an expression of “functional disobedience,” that is a natural and positive effect of judicial dialogue (Giuseppe Martinico, Corti costituzionali (o supreme) e “disobbedienza funzionale”, Diritto penale contemporaneo (2015), http://www.penalecontemporaneo.it/upload/1430150015MARTINICO_2015.pdf).Google Scholar

32 In France, at least until the 2008 constitutional reform.Google Scholar

33 Stating that “Treaties or agreements properly ratified or approved shall, upon their publication, have an authority superior to legislation, provided always that the relevant agreement or treaty is applied by the other party.”Google Scholar

34 Dupré, Catherine, France, in Fundamental Rights in Europe, 313–33, supra note 22.Google Scholar

35 Article 120 Const. states, “The constitutionality of Acts of Parliament and treaties shall not be reviewed by the courts.”Google Scholar

36 See Wet, Erika De, The Reception Process in the Netherlands and Belgium, in A Europe of Rights, supra note 22, at 229–309.Google Scholar

37 After the adoption of the decision of the European Court of Human Rights in the case Marckx v. Belgium. Google Scholar

38 The competence to review the compatibility of statutes with reference to all fundamental rights was assigned to the Belgian Cour d'Arbitrage only in 2003. In 2007 its name was changed to Cour Constitutionnelle. Google Scholar

39 Article 96.1 Const. states, “Validly concluded international treaties, once officially published in Spain, shall be part of the internal legal system. Their provisions may only be repealed, amended or suspended in the manner provided for in the treaties themselves or in accordance with the general rules of international law.”Google Scholar

40 Where the European Convention on Human Rights has been incorporated into the Constitution.Google Scholar

41 Article 5(4) Const. provides that “International treaties which have been ratified in accordance with the constitutional procedure, promulgated and having come into force with respect to the Republic of Bulgaria, shall be part of the legislation of the State. They shall have primacy over any conflicting provision of the domestic legislation.” However, domestic judges have shown certain self-restraint in the exercise of this power.Google Scholar

42 Blackburn, Robert, The United Kingdom, in Fundamental Rights in Europe, 935–1008, supra note 22.Google Scholar

43 Namely when a domestic statute is not applied to the case but nevertheless remains in force in the legal system.Google Scholar

44 On the effects of the ICC 2007 judgments, see, critically, Oreste Pollicino, The European Court of Human Rights and the Italian Constitutional Court: No “Groovy King of Love,” in The UK and European Human Rights. A Strained Relationship?, 361-77 (Katja S Ziegler, Elizabeth Wicks & Loveday Hodson eds., 2015)Google Scholar

45 As Giuseppe Martinico pointed out, on one side, the judges usually make use of the power of “disapplication” of domestic legislation with caution, and, on the other, in a growing number of countries, Constitutional Courts are setting constitutional limits on the prevalence of conventional legislation over domestic statues, on the model of the theory of counter-limits within the EU system. Martinico, supra note 24.Google Scholar

46 On the effects of the European Convention on Human Rights in the Austrian legal system, see Thurnherr, Daniela, The Reception Process in Austria and Switzerland, in A Europe of Rights, 311–86, supra note 22. On the consequences of the constitutional status of the European Convention in the Austrian legal system with reference to the relationship between national legislation and EU legislation, see Orator, Andreas, The decision of the Austrian Verfassungsgerichtshof on the EU Charter of Fundamental Rights: an instrument of leverage or rearguard action?, in this Special Issue.Google Scholar

47 With reference to the EU, as well as the ECHR, Antonio Ruggeri points out the risk of imbalances between ordinary courts, Constitutional courts and European courts in the system for the protection of fundamental rights in Europe. See Ruggeri, Antonio, Tutela dei diritti fondamentali, squilibri nei rapporti tra giudici comuni, Corte costituzionale e Corti europee, ricerca dei modi con cui porvi almeno in parte rimedio (2012), available at www.giurcost.org.Google Scholar

48 References can be found in the reports of the XVI Conference of the European Constitutional Courts, Vienna, Constitutional Court of Austria, 12–14 May 2014, devoted to “The cooperation of Constitutional Courts in Europe. Current situation and perspectives” (available at http://www.confeuconstco.org).Google Scholar

49 The Constitutional Court of Austria seems to be the only clear example in this sense.Google Scholar

50 On the transformation of Constitutional Courts in the European legal order, see—among the Italian scholars-Marina Calamo Specchia, La giustizia costituzionale, un sistema atipico in un ordinamento democratico? Spunti di riflessione sul ruolo delle Corti nei sistemi costituzionali aperti, in Alle frontiere del diritto costituzionale. Scritti in onore di Valerio Onida (Marilisa D'Amico & Barbara Randazzo eds., 2011).Google Scholar

51 Art. 10 of the Protocol.Google Scholar

52 As can be derived from the choice of Romania that has already indicated the jurisdictions authorized to request advisory opinions from the European Court: the High Court of Cassation and Justice, the Constitutional Court, as well as the Courts of Appeal. On the possibility that Constitutional Courts will be likely included, see Pollicino, Oreste, La Corte costituzionale è una “alta giurisdizione nazionale” ai fini della richiesta di parere della Corte EDU ex Protocollo 16?, 2 Diritto dell'Unione europea 293–315 (2014).Google Scholar

53 See Gerards, Janneke, Advisory opinions, preliminary rulings and the new Protocol No. 16 to the European Convention on Human Rights, 4 Maastricht Journal of European and Comparative Law 630–651 (2014).Google Scholar

54 The relationship between national courts and the ECtHR is not a new topic (see Laurence R. Helfer, Redesigning the European Court of Human Rights. Embeddedness as a deep structural principle of the European human rights regime, 19 European Journal of International Law 125-29 (2008); A Europe of rights (Helen Keller & Alec Stone Sweet eds., 2008) 687–688, supra at note 22, although it will be reshaped and will become more formalized as a result of Protocol No. 16.Google Scholar

55 Compare Arnull, Anthony, The European Union and its Court of Justice 97 (2006). On the different scope and reach of the EU and the ECHR and on the different role played by the two supranational courts, see Martinico & Pollicino, supra note 23.Google Scholar

56 This is confirmed by the long-standing margin of appreciation doctrine, now entrenched in Protocol no. 15. See Fabbrini, Federico, The Margin of Appreciation and the Principle of Subsidiarity: A Comparison, 15 iCourts Working Paper Series 2015, forthcoming in A Future for the Margin of Appreciation? (Mads Andenas, Eirik Bjorge & Giuseppe Bianco eds., 2015).Google Scholar

57 Although a recent study has proven that at the very beginning of the process of European integration there was an (unsuccessful) attempt to make the European Community a truly human rights actor, particularly in order to preserve fundamental rights in the Member States. See Grainne de Búrca, The Road Not Taken: The European Union as a Global Human Right Actor, 4 Am. J. Int'l L. 653-64 (2011).Google Scholar

58 See, for more details, Section C.V.Google Scholar

59 On the reluctance of Constitutional Courts and its gradual overcoming, especially in the last few years, see Claes, Monica, Luxembourg, here we come? Constitutional Courts and the preliminary reference procedure, in this Special Issue. On the still hesitant attitude of some constitutional judges, in particular in Eastern Europe, see the articles of this Special Issue highlighting a missing link between Constitutional Courts and the CJEU.Google Scholar

60 See also Section B.IV supra on this point. In the EU, the lack of engagement of the CJEU with Constitutional Courts as the referring courts has been often criticized by scholars and has been put forward as justification, in turn, of most Constitutional Courts’ timid attitude toward the preliminary reference proceeding. See, e.g., Leonard F. M. Besselink, The parameters of constitutional conflict after Melloni, 39 Eur. L. Rev. 531-52 (2014).Google Scholar

61 Art. 10, Protocol No. 16. On this point, see Gragl, Paul, (Judicial) love is not a one-way street: the EU preliminary reference procedure as a model for ECtHR advisory opinions under draft Protocol no. 16, 2 Eur. L. Rev. 229-47 (2013).Google Scholar

62 Possibly with the only exceptions of countries like the UK and the Netherlands where no constitutional review of legislation is in place.Google Scholar

63 See, e.g., Joined Cases C–188 & C–189/10, Melki and Adbeli, 2010 E.C.R. I-05667 and the comment by Arthur Dyevre, The Melki Way: The Melki Case and Everything you Always Wanted to Know about French Judicial Politics (But Were Afraid to Ask), in Constitutional Conversations in Europe: Actors, Topics and Procedures 309-22 (M. Claes et al. eds., 2012).Google Scholar

64 See François-Xavier Millet & Perlo, Nicoletta, The first preliminary reference of the French Constitutional Court to the CJEU: révolution de palais or revolution in French constitutional law?, in this Special Issue. Google Scholar

65 See Zagrebelsky, Vladimiro, Parere consultivo della Corte europea dei diritti umani: vera e falsa sussidiarietà, in La richiesta di pareri consultivi alla Corte di Strasburgo da parte delle più alte giurisdizioni nazionali. Prime riflessioni in vista della ratifica del protocollo 16 alla convenzione europea dei diritti dell'uomo 91 (elisabetta Lamarque ed., 2015).Google Scholar

66 The issue of whether such an objective can actually be achieved cannot be discussed here, but it suffices to say that most applications reaching the courts are due to systematic violations of the Convention and come from 4 contracting parties: Ukraine, Russia, Turkey, and Italy. The advisory opinions under Protocol no. 16 do not appear to redress such systematic violations, which are patent and well known by the competent domestic authorities, and, thus, to eliminate the cause of the high number of applications from those States. Moreover, nothing prevents an individual from lodging an application before the ECtHR (Art. 34 ECHR), even if the matter has been already addressed by the Court under the advisory opinion procedure. See Explanatory Report to Protocol no. 16, Art. 5; Gerards, supra note 53, at 636.Google Scholar

67 See the statistics available on the website of the Court at http://www.echr.coe.int/Documents/Stats_pending_month_2015_BIL.pdf.Google Scholar

68 See Schepel, Harm & Blankenburg, Erhard, Mobilizing the European Court of Justice, in The European Court of Justice 37 (Grainne de Búrca & Joseph H.H. Weiler eds., 2001); Thomas de la Mare & Catherine Donnelly, Preliminary rulings and EU legal integration: evolution and stasis, in The evolution of EU law 363 (Paul Craig & Grainne de Búrca eds., 2011).Google Scholar

69 Dzehtsiarou, Kanstantsin, Interaction between the European Court of Human Rights and member states: European consensus, advisory opinions and the question of legitimacy, in The European Court of Human Rights and its discontents. Turning criticism into strength 116-46 (Spyridon Flogaitis et al. eds., 2013).Google Scholar

70 See the acte clair doctrine of the CJEU and the CILFIT case, Case C–283/81, Srl CILFIT e Lanificio di Gavardo SpA v. Ministero della sanità, 1982 E.C.R. 03415.Google Scholar

71 See Gerards, supra note 53, at 644–45.Google Scholar

72 Whether this centralization will succeed is difficult to predict, but some hypotheses are advanced in Section II.E.Google Scholar

73 See Zagrebelsky, supra note 65, at 93.Google Scholar

74 As noted by Vladimiro Zagrebelsky, Protocol No. 16, Art. 1, unexpectedly talks about “interpretation or application” rather than interpretation and application.Google Scholar

75 See Giannopoulos, Christos, Considerations on Protocol N°16: Can the New Advisory Competence of the European Court of Human Rights Breathe New Life into the European Convention on Human Rights?, 2 German L. J. 337, 345 (2015).Google Scholar

76 See Conti, Roberto, La richiesta di parere consultivo alla Corte europea da parte delle Alte Corti introdotto dal Prot. 16 CEDU e il rinvio pregiudiziale alla Corte di Giustizia dell'Unione europea. Prove d'orchestra per una nomofilachia europea, in La richiesta di pareri consultivi alla Corte di Strasburgo da parte delle più alte giurisdizioni nazionali, supra note 63, at 100-02; Giannopoulos, supra note 73, at 341–43.Google Scholar

77 See Komárek, Jan, Federal elements in the Community judicial system: building coherence in the Community legal order, 42 Common Mkt. L. Rev. 9, 10 (2005).Google Scholar

78 See Explanatory Report at point 27.Google Scholar

79 See Bodnar, Adam, Res interpretata: legal effect of the European Court of Human Rights judgments for other states than those which were party to the proceedings, in Human rights and civil liberties in the 21st century, 223–62 (Yves Haeck & Eva Brems eds., 2014); Gerards, Janneke, The European Court of Human Rights and the national courts—giving shape to the notion of “shared responsibility”, in Implementation of the ECHR and of the judgments of the ECtHR in national case law. A Comparative analysis 21–27 (Janneke Gerards & Joseph W.A. Fleuren eds., 2014).Google Scholar

80 It has also been argued, on the EU side, that the level of follow-up on the CJEU preliminary rulings by national courts has been rather modest: see, for example, Bobek, Michal, Of feasibility and silent elephants: the legitimacy of the Court of Justice through the eyes of national courts, in Judging Europe's judges: the legitimacy of the case law of the European Court of Justice examined 917-33 (Maurice Adams et al. eds., 2013).Google Scholar

81 Zagrebelsky, supra note 65, at 96.Google Scholar

82 Id. at 95.Google Scholar

83 See Opinion 2/13, paras. 197–199 (Dec. 18, 2014), http://curia.europa.eu/.Google Scholar

84 See, e.g., Halberstam, Daniel, It's the Autonomy, Stupid!” A Modest Defense of Opinion 2/13 on EU Accession to the ECHR, and the Way Forward, 16 German L. J. 10546 (2015); Callewaert, Johan, Protocol 16 and the Autonomy of EU Law: Who Is Threatening Whom?, European Law Blog, 3 October 2014, available at http://europeanlawblog.eu/?p=2551.Google Scholar

85 Lazowski, Adam & Wessel, Ramses A., When Caveats Turn into Locks: Opinion 2/13 on Accession of the European Union to the ECHR, 16 German L. J. 179, 188 (2015).Google Scholar

86 With reference to Constitutional Courts in the EU, see Komárek, Jan, National constitutional courts in the European constitutional democracy, 3 Int'l J. Const. L. 525-44 (2014).Google Scholar

87 On the ECtHR and the CJEU as “Constitutional Courts” in their respective domains, see Greer, Steven & Wildhaber, Luzius, Revisiting the Debate about “Constitutionalising” the European Court of Human Rights, 12 Human Rights L. Rev. 655, 668–70 (2012), Barbara Randazzo, Giustizia costituzionale sovranazionale. La Corte europea dei diritti dell'uomo 4–10 (2012); Vesterdorf, Bo, A constitutional court for the EU?, 4 Int'l J. Const. L. 607-17 (2006).Google Scholar

88 Pérez, Aida Torres, Too many voices? The prior involvement of the Court of Justice of the European Union, 4 Eur. J. Human Rights 565, 583 (2013).Google Scholar

89 See Sena, Pasquale De, Caratteri e prospettive del Protocollo 16 nel prisma dell'esperienza del sistema interamericano di protezione dei diritti dell'uomo, 8 Diritti umani e Diritto internazionale 593–606 (2014).Google Scholar

90 See Buergenthal, Thomas, The Advisory Practice of the Inter-American Human Rights Court, 79 Am. J. Int'l L. 1 (1985).Google Scholar

91 See I/A Court, H. R., Reports of the Inter-American Commission on Human Rights (Art. 51 American Convention on Human Rights), Advisory Opinion OC–15/97 of 14 November 1997. Series A, No.15, para. 26, according to which it is evident that the State or organ requesting an advisory opinion is not the only one with a legitimate interest in the outcome of the procedure, whose very purpose is the protection of human rights.Google Scholar

92 The advisory function, besides complementing the ICHR adjudicatory competence, also complements the competences of the Inter-American Commission of Human Rights, as indicated in the Charter of the Organization of American States (Art. 106) and in the American Convention of Human Rights (from Arts. 34 to 51).Google Scholar

93 The expression “within their sphere of competence” has been interpreted by the Court with a “legitimate institutional interest” by the requesting organ in the questions posed in the request. See I/A Court H.R., The Effect of Reservations on the Entry into Force of the American Convention on Human Rights (Arts. 74 and 75), Advisory Opinion OC-2/82 of September 24, 1982. Series A, No. 2, para. 14, according to which, even if initially each organ decides whether the request falls within its sphere of competence, the Court has the ultimate word in determining compliance with this requisite by reference to the OAS Charter and the constitutive instrument and legal practice of the particular organ. See also Bertha Santoscoy-Noro, Le systeme interamericain de protection des droits de l'Homme, en Institut International des Droits de l'Homme (1996).Google Scholar

94 See The Effect of Reservations on the Entry into Force, supra note 91, at para 16. See also I/A Court H.R., Restrictions to the Death Penalty (Arts. 4(2) and 4(4) American Convention on Human Rights), Advisory Opinion OC–3/83 of September 8, 1983. Series A, No. 3 OC 3/1983, para. 42.Google Scholar

95 See I/A Court, H.R., International Responsibility for the Promulgation and Enforcement of Laws in Violation of the Convention (Arts. 1 and 2 of the American Convention on Human Rights), Advisory Opinion OC–14/94 of December 9, 1994. Series A, no.14, paras. 24–26, in which the Court excluded the possibility for the Commission to request an advisory opinion on a proposed amendment to the Constitution of Peru, which would have expanded the number of cases for which the death penalty could have applied, because the Commission was not requesting a statement as to the compatibility of that provision of Peru's domestic law with the abovementioned provision of the Convention. On the contrary, the questions posed by the Commission made no reference to that provision, being general in nature and concerning the obligations and responsibilities of the states or individuals that promulgate or enforce a law manifestly in violation of the Convention.Google Scholar

96 Adopted by the General Assembly of the OAS at its Ninth Regular Session, held in La Paz Bolivia, October 1979 (Resolution No. 448).Google Scholar

97 See I/A Court, H.R., “Other treaties” subject to the consultative jurisdiction of the Court (Art. 64 American Convention on Human Rights), Advisory Opinion OC–1/82 of September 24, 1982. Series A No. 1, para. 5.Google Scholar

98 In the 2009 reform of the Rules of the Court, amicus curiae was expressly included for adjudicatory proceedings, while for advisory proceedings the Court may authorize any person to give its opinion on the consultation.Google Scholar

99 The Court was asked by the Government of Peru to interpret the phrase “or of other treaties concerning the protection of human rights in the ‘American States.'” Cf. “Other Treaties,” supra note 95.Google Scholar

100 Id. at para. 21.Google Scholar

101 Id. at para. 21. See Nikken, Pedro, La función consultiva de la Corte Interamericana de Derechos Humanos, Memoria del Seminario: El sistema interamericano de protección de los derechos humanos en el umbral del siglo XXI (2003); Buergenthal, supra note 90.Google Scholar

102 One of the objections posed to the extension of the limits of the Court's advisory jurisdiction is the possibility of conflicting interpretations between the Court and other organs outside the Inter-American system that might be called upon also to apply and interpret treaties concluded outside that system. Considering that this is a phenomenon common to all those legal systems that have certain courts which are not hierarchically integrated, the Court considered that even a restrictive interpretation of Art. 64 would not avoid the possibility that this type of conflict might arise. See Treaties, Other, supra note 95, at para. 50.Google Scholar

103 See I/A Court H.R., Juridical Condition and Human Rights of the Child, Advisory Opinion OC–17/02 of August 28, 2002. Series A, No.17; I/A Court H.R., Rights and guarantees of children in the context of migration and/or in need of international protection, Advisory Opinion OC–21/14 of 19 August 2014.Google Scholar

104 Even if at first glance the Vienna Convention on Consular Relations is not a treaty on human rights, it does contain important provisions on the right to information on consular notification (under Art. 36(1)(b)). The concurrent opinion of Judge Cançado Trindade is fundamental in recognizing that this Convention can no longer be dissociated from the international norms on human rights concerning the guarantees of the due process of law. See I/A Court H.R., The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Advisory Opinion OC–16/99 of 1 October 1999. Series A no.16.Google Scholar

105 See I/A Court H.R., Interpretation of the American Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights, Advisory Opinion OC–10/89 of 14 July 1989. Series A, no.10OC 10/1989, paras. 43 and 48.Google Scholar

106 According to the Court, the effect of a reservation, as provided in the Vienna Convention, is to modify with regard to the State making it the provisions of the treaty to which the reservation refers. See Restrictions to the Death Penalty, supra note 94, at para. 45.Google Scholar

107 See I/A Court H.R., Proposed Amendments of the Naturalization Provisions of the Constitution of Costa Rica, Advisory Opinion OC–4/84 of 19 January 1984. Series A, no. 4, on the request presented by the Government of Costa Rica of an advisory opinion on the compatibility of a constitutional reform of Articles 14 and 15 of its Constitution. See id. at para. 26.Google Scholar

108 See Restrictions to the Death Penalty, supra note 93, at para. 43.Google Scholar

109 See Roa, Jorge Ernesto, La función consultiva de la Corte Interamericana de Derechos Humanos 96 (2015).Google Scholar

110 See Treaties, Other, supra note 95, at para. 25.Google Scholar

111 Id. at para. 31.Google Scholar

112 See Nikken, supra note 101.Google Scholar

113 Id. at 171.Google Scholar

114 See Héctor Faúndez Ledezma, El Sistema Interamericano de Protección de los Derechos Humanos: aspectos institucionales y procesales 450-54 (1996).Google Scholar

115 See Treaties, Other, supra note 95, at para. 51.Google Scholar

116 I/A Court H.R., Juridical Condition and Human Rights of the Child, Advisory Opinion OC–17/02 of 28 August 2002. Series A, no.17.Google Scholar

117 I/A Court H.R., Case of the “Street Children” (Villagrán Morales and others) v. Guatemala, Decision of 19 November 1999, Series C No. 63.Google Scholar

118 See Roa, supra note 109.Google Scholar

119 See Treaties, Other, supra note 95. Another limit is represented by all those cases in which the advisory opinion of the Court could produce a determination of contentious matters not yet referred to the Court, without providing the victims with the opportunity to participate in the proceedings. Such a result would distort the Convention system. Cf. I/A Court H.R., Compatibility of Draft Legislation with Article 8(2)(h) of the American Convention on Human Rights, Advisory Opinion OC–12/91 of 6 December 1991. Series A, no.12, para. 28.Google Scholar

120 It is necessary to underline that “judicial dialogue” within the Inter-American system has been better realized through conventionality control and consistent interpretation. See Eduardo Ferrer Mac-Gregor, Interpretación conforme y control difuso de convencionalidad. El nuevo paradigma para el juez mexicano, 2 Estudios Constitucionales 531–622 (2011).Google Scholar

121 In this sense, for example, the Supreme Court of Argentina in the case Simón, Julio Héctor y otros s/privación ilegítima de la libertad, etc. case no. 17.768, decision of 14 June 2005, declared the unconstitutionality of two amnesty laws (Law no. 23.492 and Law no. 23.521). For several reasons, but with an explicit reference to the advisory opinion on International Responsibility for the Promulgation and Enforcement of Laws in Violation of the Convention, considered as part of the Convention case law. More specifically, this opinion underlined, with direct reference to the Convention, the general principle according to which all state organs have to comply with State international obligations. The supreme judge of Argentina invoked this principle in order to inhibit human rights violations committed during the military dictatorship. See Sena, De, supra note 89; Roa, supra note 109, at 130 on the application of the ICHR advisory opinion in the Constitutional Court of Colombia case law.Google Scholar

122 See Rights and guarantees of children in the context of migration and/or in need of international protection, supra note 103.Google Scholar

123 Id. at para. 31.Google Scholar

124 Palacios, Augusto Guevara, Los Dictámenes Consultivos de la Corte Interamericana de Derechos Humanos. Interpretación Constitucional y Convencional 321-22 (2012).Google Scholar

125 See Burgorgue-Larsen, Laurence, La Corte Interamericana de Derechos Humanos como Tribunal Constitucional, in Ius Constitutionale Commune en América Latina. Rasgos, potencialidades y desafíos 412-57 (Héctor Fix Fierro, Mariela Morales Antoniazzi & Armin von Bogdandy eds., 2014).Google Scholar

126 See Cartabia, Marta, Europe as a Space of Constitutional Interdependence: New Questions about the Preliminary Ruling, in this Special Issue. Google Scholar

127 In the practice of the Inter-American Court, the adoption of advisory opinions has developed considerably especially in the first phase of the life of the Court, primarily due to the reluctance of States to submit to the ICHR's adversarial jurisdiction. In fact, in the period of 1982–1989, the Court has issued its first ten advisory opinions or nearly half of those issued to date (total of twenty-one): two in 1982, one in 1983, one in 1984, one in 1985, two in 1986, two in 1987, and one in 1989. The same trend has been repeated in the early nineties (1990-1994), when the exercise of the adversarial jurisdiction was still very sporadic.Google Scholar

128 In this sense, see Other Treaties, supra note 95, at para. 17, according to which with reference to Art. 64 “This text, which was broader than any similar contemporary international provision.” See also Salvioli, Fabian, La competencia consultiva de la Corte Inter americana de Derechos Humanos: marco legal y desarrollo jurisprudencial, in Homenaje y reconocimiento a Antônio Cançado Trindade, T. Ill, 417-72 (S. Fabris eds., 2004).Google Scholar

129 This positive approach is resumed in the approach of the Constitutional Court of Peru, according to which it has referred to the ICHR as the “ultimate guardian of rights in the region,” underlining the necessity to take into consideration its interpretation. See Constitutional Court of Peru, 17 April 2002, Cartagena Vargas, no. 218-02-HC/TC, para. 2. The Constitutional Court of Peru considers that ICHR judgments—including advisory opinions—are binding for all public authorities, binding nature that “is not exhausted by its operative paragraphs, but extends to the ratio decidendi, even in those cases in which the Peruvian State has not been a party to the proceedings.” Id. at para. 36. On the same line is the Constitutional Court of Colombia. See Diego García-Sayán, The Inter-American Court and Constitutionalism in Latin America, 7 Tx. L. Rev. 1835-62 (2011). For a “negative approach” in the experiences of Argentina, Chile, and Venezuela, see Huneeus, Alexandra, Rejecting the Inter-American Court: Judicialization, National Courts, and Regional Human Rights, in Cultures of Legality: Judicialization and Political Activism in Latin America 112-39 (Javier A. Couso, Alexandra Huneeus, & Rachel Sieder eds., 2013).Google Scholar

130 See Cartabia, Marta, Europe as a Space of Constitutional Interdependence: New Questions about the Preliminary Ruling, in this Special Issue. Google Scholar

131 See, e.g., in matter of pensions, the case Da Conceição Mateus v. Portugal, App. Nos. 62235/12 and 57725/12, (Oct. 8, 2013), http://hudoc.echr.coe.int/, which took a different view to the Portuguese Constitutional Court in Decision no. 353/2012. By contrast, in Decision no. 264/2012, the Italian Constitutional Court, again on pensions, decided not to follow the judgment rendered on the same issue by the ECtHR in Maggio and others v. Italy, App. Nos. 46286/09, 52851/08, 53727/08, 54486/08, and 56001/08, (May 31, 2011), http://hudoc.echr.coe.int/. See Fasone, Cristina, Constitutional Courts Facing the Euro Crisis. Italy, Portugal and Spain in a Comparative Perspective, Max Weber Programme Working Papers (2014).Google Scholar

132 In this context, the “Case-Law Exchange Network with Highest Courts,” recently established by the European Court of Human Rights, represents a crucial intermediate step.Google Scholar

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