Published online by Cambridge University Press: 02 January 2018
Protocol 16 ECHR will provide for an extension of the advisory jurisdiction of the European Court of Human Rights (ECtHR), enabling highest national courts to request advisory opinions on questions of principle concerning the interpretation of the European Convention on Human Rights (ECHR) or its protocols. This extension of the ECtHR's advisory jurisdiction aims to achieve two goals: a reduction in the ECtHR's excessive docket, and the enhancement of dialogue between the ECtHR and (highest) national courts. While the aims of this reform initiative are laudable, we argue that Protocol 16 is likely to fail to achieve its objectives. Our analysis suggests that rather than facilitating the Court's adjudicatory function, extended advisory jurisdiction has the potential to impact on the Court's constitutionalist function in a manner that can be better achieved through the Court's contentious cases. The burden that this procedure will place on the Court's already overstretched resources would risk delays to contentious cases and potentially undermine judicial comity should requests for advisory opinions be declined. Furthermore, evidence of ‘constructive’ dialogue between highest national courts and the ECtHR is emerging in contentious cases without the need for a reformed advisory opinions mechanism. Rather than achieving its objectives, Protocol 16 risks exacerbating the Court's backlog and nullifying the positive effects of advisory opinions on dialogue.
We appreciate the feedback of colleagues at the Surrey European Law Unit (SELU) discussion group, at which this paper was presented. We are grateful to Dr Ed Bates and Dr Donal Coffey for valuable comments on a draft version. The usual disclaimers apply.
1. A high-level conference on the future of the Court was organised by the UK in Brighton on 18–20 April 2012, during the British Chairmanship of the Committee of Ministers of the Council of Europe. For further information, see http://www.echr.coe.int/ECHR/EN/Header/The+Court/Reform+of+the+Court/Conferences/ (accessed 10 February 2013).
2. Optional Protocol 16 will provide for an extension of the Court's advisory jurisdiction, while Protocol 15 will provide for other reforms agreed at the Brighton Conference.
3. The Court's backlog in 2012 was approximately 128,100 pending applications. ECtHR Annual Report 2012 (Strasbourg: Council of Europe, 2013) p 149.
4. Protocol 2 entered into force on 21 September 1970, empowering the ECtHR to deliver advisory opinions.
5. Greer, S and Wildhaber, L ‘Revisiting the debate about “constitutionalising” the European Court of Human Rights’ (2012) 12 HRLR 655 at 659.Google Scholar
6. Especially the highest courts and tribunals of Contracting Parties; Protocol 16, Art 1(1).
7. See also Greer and Wildhaber, above n 6, p 659.
8. Travaux Préparatoires constitute the official record of the negotiations held before the conclusion of a treaty. They include minutes of the meetings, draft wordings of the Convention and discussions of the drafters.
9. Travaux Préparatoires (Legal Committee memorandum by the Secretariat General (AS/Jur (11) 8 of 16 July 1959) p 7.
10. Decision on the Competence of the Court to Give an Advisory Opinion (2 June 2004), para 27.
11. Travaux Préparatoires, above n 10, pp 3–4. For a more elaborate list of issues that would fall under advisory jurisdiction, see ibid, pp 6–7.
12. The drafters of Protocol 2 stated: ‘[i]t is not sought to empower the Court to give advisory opinions on any matter referred to it by Member States of the Council but only on those questions which are within the scope of the Convention and which do not constitute disputes’. Ibid, p 36.
13. See further section 3, discussing possible consequences of extending the ECtHR's advisory jurisdiction.
14. Decision on the Competence of the Court to Give an Advisory Opinion, above n 11.
15. Ibid, para 33.
16. Ibid, para 33.
17. Advisory Opinion on Certain Legal Questions Concerning the Lists of Candidates Submitted with a View to the Election of Judges to the European Court of Human Rights (No. 1), 12 February 2008, para 54.
18. For the context in which this advisory opinion was rendered and subsequent debate, see Mowbray, A ‘The consideration of gender in the process of appointing judges to the European Court of Human Rights’ (2008) 8 HRLR 549 at 559.Google Scholar
19. Advisory Opinion on Certain Legal Questions Concerning the Lists of Candidates Submitted with a View to the Election of Judges to the European Court of Human Rights (No. 2), 22 January 2010.
20. Travaux Préparatoires, above n 10, p 12.
21. A handful of international courts and tribunals can deliver advisory opinions. The Permanent Court of International Justice (PCIJ), the first court of international standing, could deliver non-binding advisory opinions alongside binding judgments. The successor of the PCIJ – the International Court of Justice (ICJ) – has also obtained power to issue advisory opinions. According to Art 96(1) of the UN Charter, the General Assembly or the Security Council may request the ICJ to give an advisory opinion on any legal question. Tribunals such as the Law of the Sea Tribunal, the Court of Justice of Economic Community of West African State, the Judicial Board of the Organization of Arab Petroleum Exporting Countries, the Court of Justice of the European Union (CJEU) and others also have advisory jurisdiction. In relation to the CJEU, its advisory jurisdiction is rarely invoked, and is distinct from the preliminary reference procedure between the CJEU and national courts.
22. Judge of the IACtHR.
24. The statistic does take into account any developments after 30 October 2012.
25. Official website of the Inter-American Court of Human Rights, available at http://www.corteidh.or.cr/casos.cfm (accessed 30 October 2012).
26. Official website of the Inter-American Court of Human Rights, available at http://www.corteidh.or.cr/opiniones.cfm?&CFID=1201637&CFTOKEN=30265200 (accessed 30 October 2012).
27. The same tendency can be identified in relation to the advisory jurisdiction of the PCIJ and its successor, the ICJ. Karin Oellers-Frahm observes a significant decrease in numbers of advisory opinions. The PCIJ has delivered 27 advisory opinions between 1922 and 1940; the ICJ delivered only 26 between 1945 and 2010. See Oellers-Frahm, K ‘Lawmaking through advisory opinions?’ (2011) 12 GLJ 1033 at 1035. At the same time, the number of contentious cases has increased. See the ICJ website, available at http://www.icj-cij.org/docket/index.php?p1=3&p2=3 (accessed 22 April 2013).Google Scholar
28. Annual Report 2012, above n 4, p 149.
29. Pasqualucci, J ‘Advisory practice of the Inter-American Court of Human Rights: contributing to the evolution of international human rights law’ (2002) 38 Stan J Int'l L 241 at 246.Google Scholar
30. Schmid, J ‘Advisory opinions on human rights: moving beyond a pyrric victory’ (2006) 16 Duke J Comp & Int'l L 415 at 415.Google Scholar
31. M Entin, J-P P Jacqué Mahoney and L Wildhaber Case Overload at the European Court of Human Rights (European Law Institute, 27 March 2012), available at http://www.europeanlawinstitute.eu/projects/publications/, para 56.
32. For example, at the time of writing there were ten pending cases before the ICJ; http://www.icj-cij.org/docket/index.php?p1=3&p2=1 (accessed 10 February 2013). The backlog of cases at the CJEU is also much lighter. In 2011, there were 849 pending cases pending before the Court. This is about 140 times fewer than the number pending at the ECtHR. CJEU Annual Report 2011 (Luxembourg, 2012) p 95. In 2010, there were 21 cases pending before the Inter-American Court of Human Rights. IACtHR Court Statistics, p 14; available at http://www.oas.org/en/iachr/ (accessed 10 February 2013).
33. See Dzehtsiarou, K and Greene, A ‘Legitimacy and the future of the European Court of Human Rights: critical perspectives from academia and practitioners’ (2011) 12 GLJ 1707;Google Scholar Greer and Wildhaber, above n 6, p 678.
34. Draft Protocol No. 16, Preamble.
35. Robertson, A Human Rights in Europe (Manchester: Manchester University Press, 2nd edn, 1977) pp 226–227.Google Scholar
36. In 2011, pending applications reached a peak of over 150,000; ECtHR Annual Report 2011 (Strasbourg: Council of Europe, 2012) p 152. Note that the 2012 figures show a fall to 128,100: Annual Report 2012, above n 4, p 149.
37. Protocol 14 was adopted in 2004, only entering into force in 2010.
38. Report of the Wise Persons to the Committee of Ministers, para 79.
39. Ibid, para 85.
40. Opinion of the Court on the Wise Persons' report, 2 April 2007, p 3.
41. Interlaken Declaration (2010), available at http://www.eda.admin.ch/etc/medialib/downloads/edazen/topics/europa/euroc.Par.0133.File.tmp/final_en.pdf (accessed 19 December 2012).
42. Izmir Declaration (2011), para 13; available at http://www.coe.int/t/dc/press/news/20110427_declaration_en.asp. The Proceedings of the Izmir Conference record that a number of Contracting Parties supported an extended advisory opinions procedure (Armenia, Azerbaijan, France, Norway, Romania, Serbia and Spain). Some states supported the initiative with provisos that other measures be taken to address backlog first (Lithuania) and that the initiative should not conflict with national constitutional laws (Russia). Denmark and Latvia firmly rejected an extension of advisory jurisdiction. See further Izmir Conference Proceedings, available at http://www.coe.int/t/DGHL/STANDARDSETTING/CDDH/REFORMECHR/Publications/Proceedings_Izmir.pdf (accessed 28 March 2012).
43. Preliminary Opinion of the ECtHR (20 February 2012), paras 28, 48; Reflection Paper of the Court on Advisory Opinions (published 9 March 2012); ‘Guaranteeing the authority and effectiveness of the European Convention on Human Rights’, PACE Report, paras 43–44. The report is available at http://www.assembly.coe.int/ASP/Doc/XrefViewPDF.asp?FileID=12914&Language=EN (accessed 19 December 2012).
44. Prime Minister (David Cameron) ‘Speech on the European Court of Human Rights’, 25 January 2012.
45. D Grieve (Attorney General) ‘European Convention on Human Rights – Current Challenges’, speech delivered on 24 October 2011, available at http://www.attorneygeneral.gov.uk (accessed 19 December 2012).
46. The Commission for a Bill of Rights was primarily constituted to consider options for a new UK Bill of Rights, but took on a secondary role advising the government on ECtHR reform.
47. Draft Brighton Declaration (23 February 2012 version), para 19d provided that litigants would ‘not ordinarily’ have further recourse to the ECtHR in the same proceedings, a proposal that was of particular concern to NGOs.
48. O'Boyle, M ‘The future of the European Court of Human Rights’ (2011) 12 GLJ 1862 at 1867.Google Scholar
49. Preliminary Opinion of the Court in preparation for the Brighton Conference, 20 February 2012, para 28.
50. Reflection Paper, above n 44, para 24.
51. Ibid, para 24.
52. Ibid, para 4.
53. Brighton Conference Proceedings (18–20 April 2012), Opening Address of Sir Nicolas Bratza, 23. The proceedings are available at http://www.coe.int/t/DGHL/STANDARDSETTING/CDDH/REFORMECHR/Publications/Brightonproceedings.pdf (accessed 28 March 2013).
54. Manchester City Council v Pinnock  UKSC 45, para 48; Reflection Paper, above n 44, para 4.
55. Hirst v United Kingdom (No 2), App No 74025/01 (ECHR, 6 October 2005); Greens and M.T. v United Kingdom, App No 60041/08 (ECHR, 23 November 2010).
56. C Murphy ‘Human rights law and the challenges of explicit judicial dialogue’, Jean Monnet Working Paper No. 10/12, 20.
57. R v Horncastle  UKSC 14;  2 All ER 359, para 11.
58. Al-Khawaja and Tahery v United Kingdom (2009) 49 EHRR 1.
59. Ibid, Concurring Opinion of Judge Bratza, para 2.
60. Manchester City Council v Pinnock  UKSC 45,  1 All ER 285, para 48.
62. O'Boyle, M ‘The legitimacy of Strasbourg review: time for a reality check?’ in La conscience des droits: mélanges en l'honneur de Jean-Paul Costa (Paris: Dalloz, 2011) pp 494–496.Google Scholar
63. On socialisation in the ECtHR context, note M O'Boyle ‘European Court of Human Rights and national courts: a challenging dialogue?’ Plenary Address: Irish Human Rights Commission/Law Society Annual Conference, 13 October 2012.
64. Brighton Declaration, para 12d.
65. Council of Europe's Steering Committee for Human Rights (le Comité Directeur pour les Droits de l'Homme, CDDH). Drafting Group B (GT-GDR-B) was responsible for drafting Protocol 16.
66. Protocol 16, above n 7, Art 8(1). This figure is consistent with the threshold for Protocol 9 ECHR, the only other Optional Protocol to the Convention; Explanatory Report to Protocol 16.
67. Protocol No. 16, above n 7, Arts 1 and 10.
68. Ibid, Art 1(1).
69. Ibid, Art 1(2).
70. Ibid, Art 1(1)–(3).
71. Ibid, Art 2(1)–(2).
72. Ibid, Art 2(1).
73. Ibid, Art 4(2).
74. Ibid, Art 5. Note also Reflection Paper, above n 44, para 24.
75. These two functions are undeniably interconnected and interdependent, but they are nevertheless clearly analytically separable.
76. See Londras, F ‘Dual functionality and the persistent frailty of the European Court of Human Rights’ (2013) EHRLR 11 at 13–16.Google Scholar
77. Under trivial applications we do not mean inadmissible applications not causing significant disadvantage according to Art 35(3b). The breach is trivial if it is repetitive and the judgment in this case would not significantly amend or enrich existing case-law of the ECtHR.
78. For a more detailed and profound discussion of this issue, see Greer and Wildhaber, above n 6.
79. K Dzehtsiarou and A Greene ‘Restructuring the European Court of Human Rights: preserving the right of individual petition and promoting constitutionalism ’  PL (forthcoming).
80. Dembour, M-B ‘“Finishing off” cases: the radical solution to the problem of the expanding EctHr caseload’ (2002) 5 EHRLR 604 at 621.Google Scholar The raison d'être of the Court is not uncontroversial. For example, the Committee of Wise Persons stated, in contrast, that ‘[t]he raison d'être of this high-level European Court is to monitor states' compliance with human rights’. Report of the Group of Wise Persons to the Committee of Ministers, CM(2006)203, 15 November 2006, para 36.
81. See de Londras, above n 77; Greer and Wildhaber, above n 6.
82. In their contribution to the Interlaken Conference 2010, the NGOs submitted that ‘[w]e oppose proposals: that would undermine the accessibility of the Court such as charging applicants fees, or adding new, more restrictive admissibility criteria. Lack of funds should never be an obstacle for bringing an application before the Court; that would give the Court discretion to decide on which admissible cases it renders judgment …’ (emphasis added). Preparatory contributions, Interlaken Conference, at 35; available at http://www.eda.admin.ch/etc/medialib/downloads/edazen/topics/europa/euroc.Par.0108.File.tmp/Brochure_contributions_preparatoires_en.pdf (accessed 22 April 2013).
83. House of Lords/House of Commons Joint Committee on Human Rights Protocol No. 14 to the European Convention on Human Rights, First Report of Session 2004–05, 9; available at http://www.publications.parliament.uk/pa/jt200405/jtselect/jtrights/8/8.pdf (accessed 22 April 2013).
84. Mahoney, P ‘Thinking a small unthinkable: repatriating reparation from the European Court of Human Rights to the national legal order’ in Caflisch, L etal (eds) Liber amicorum Luzius Wildhaber: Human Rights – Strasbourg Views (Kehl: Engel, 2007) p 267.Google Scholar
85. De Londras, above n 77, p 18; see also Greer and Wildhaber, above n 6.
86. Annual Report 2012, above n 4, p 154.
87. Ibid, p 60.
88. Protocol 16, above n 7, Art 1(1).
89. Entin et al point out that ‘[t]he number of cases subject to an advisory-opinion procedure would, in statistical terms, perhaps not be that significant, but would nonetheless constitute a source of further, time-consuming judicial work for the Court’. Entin et al, above n 31, para 57.
90. According to Art 2(2) of Protocol 16 the Grand Chamber shall deliver the advisory opinion. According to current text of Art 31(c) of the Convention, the Grand Chamber shall consider requests for advisory opinions.
91. Buergenthal, above n 24, at 2. Of the first five requests for advisory opinions, two were made by the Inter-American Commission on Human Rights and two by Costa Rica – the host state of the IACtHR. Both of these actors had an interest in encouraging the IACtHR to exercise advisory jurisdiction with the view to giving an impetus to its functions more generally.
92. According to Art 3 of Protocol 16, 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.
93. See Dzehtsiarou, K ‘Does consensus matter? Legitimacy of European consensus in the case law of the European Court of Human Rights’ (2011) PL 534 at 534;Google Scholar Franck, T ‘Why a quest for legitimacy’ (1987) 21 UC Davis L Rev 535 at 540;Google Scholar Gerards, J ‘Judicial deliberations in the European Court of Human Rights’ in Huls, N, Adams, M and Bomhoff, J (eds) The Legitimacy of Highest Courts' Rulings: Judicial Deliberations and Beyond (Cambridge: Cambridge University Press, 2009).Google Scholar
94. European NGOs have already expressed their concern in this respect. A joint statement released indicates that NGOs ‘regret that the current text of article 3 of draft Protocol 16 creates an imbalance between the parties to the domestic proceedings in cases where the State concerned is one of the parties to such proceedings. While we consider that the protocol should mention that all parties to the domestic proceedings have a right to submit written comments and take part in any hearings …’; Joint NGO comments on the drafting of Protocols 15 and 16 to the European Convention for the Protection of Human Rights and Fundamental Freedoms; available at http://icj.wpengine.netdna-cdn.com/wp-content/uploads/2012/11/Draft-Protocols-15-and-16-to-the-ECHR-Joint-NGO-submission-16-November-2012.pdf (accessed 6 March 2013).
95. Explanatory Repor t, n 67 above, para 20.
97. Wise Persons' report, above n 38, paras 80–81; Reflection Paper, above n 43, para. 42, Entin et al, above n 31, para 59. For a comprehensive comparison of the advisory opinion and preliminary reference models, see Gragl, P ‘(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’ (2013) 2 EL Rev 229.Google Scholar
98. Statistics of judicial activity of the Court of Justice (2011), available at http://curia.europa.eu/jcms/upload/docs/application/pdf/2012-03/ra2011_stat_cour_provisoire_en.pdf (accessed 6 March 2013).
99. Analysis of statistics of the ECtHR (2011), available at http://www.echr.coe.int/NR/rdonlyres/11CE0BB3-9386-48DC-B012-AB2C046FEC7C/0/STATS_EN_2011.PDF (accessed 6 March 2013).
100. Gragl, above n 98, at 239.
101. Dutch/Norwegian expert submission to Drafting Group B on the Reform of the Court (31 August 2012).
102. Nominations shall be made in accordance with Art 1(1), Protocol 16, above n 7.
103. Drafting Group B on the Reform of the Court, First Meeting Report (14 September 2012).
104. Note, for example, the obligation to refer on national courts or tribunals ‘against whose decisions there is no judicial remedy under national law’ under Art 267(3) TFEU (an obligation governed by further requirements as provided in relevant CJEU case-law).
105. Gragl, above n 98, at 232.
106. Explanatory Report, above n 67, para 12.
107. Explanatory Report, above n 67, para 11.
108. Amos, above n 62, at 568. M Elliott ‘After Brighton: between a rock and a hard place’  PL 619 at 626. On the possible problems of ‘explicit’ judicial dialogue in this context, note Murphy, above n 57, pp 28–31.
109. Recommendations to National Courts and Tribunals in Relation to the Initiation of Preliminary Ruling Proceedings (2012/C 338/01), para 10. The new Recommendations supplement Title III of the Rules of Procedure of the Court of Justice, and constitute non-binding guidance for national courts on whether it is appropriate to refer, and on the form and effect of references.
110. Jacobs, FG ‘The Court of Justice in the twenty-first century: challenges ahead for the judicial system?’ in Rosas, A, Levits, E and Bot, Y (eds) The Court of Justice and the Construction of Europe: Analyses and Perspectives on Sixty Years of Case-Law (The Hague, The Netherlands: T. M. C. Asser Press, 2013) p 56.Google Scholar Sometimes national courts provide extensive reasons, which are not necessarily adopted by the CJEU. See eg Lord Hoffmann's views in West Tankers Inc v Ras Riunione Adriatica di Sicurta SpA and others  UKHL 4;  1 All ER (Comm) 794; Case C-185/07, Allianz SpA and Generali Assicurazioni Generali SpA v West Tankers Inc.  ECR I-663.
111. Draft Explanatory Report to Draft Protocol No. 16 (2 November version), para 8.
112. T Tridimas ‘Bifurcated justice: the dual character of judicial protection in Eu law’ in Rosas et al, above n 111, p 367.
113. Compare with the relatively rare situations in which ‘double references’ are made in the same litigation, in the context of preliminary references. See eg O'Byrne v Aventis Pasteur SA  UKHL 34,  4 All ER 881. (The UKSC eventually delivered judgment in O'Byrne v Aventis Pasteur SA  UKSC 23,  4 All ER 1 following the Court of Justice's second preliminary ruling in Case C-358/08 Aventis Pasteur SA v O'Byrne  ECR I-11305.)
114. It is not envisaged that the introduction of an Advisory Opinion mechanism should prejudice the right to individual petition; Reflection Paper, above n 43, para 7.
115. Protocol 16, above n 7, Art 1(1).
116. Ibid, Art 1(2)–(3).
117. Draft Explanatory Report, above n 112, para 17.
118. Ibid, para 9.
119. Barnard, C and Sharpston, E ‘The changing face of Article 177 references’ (1997) 34 CML Rev 1113, 1121.Google Scholar
120. Jurisdiction to give a preliminary reference was first declined in Case 104/79 Foglia v Novello (Foglia No 1)  ECR 745.
121. The approach to rewriting questions was exemplified in (for example) Case 96/80 Jenkins v Kingsgate (Clothing Productions) Ltd  ECR 911.
122. A provision that the ECtHR should provide reasons for refusing to accept any request for advisory opinions was included in draft Protocol 16 from the 15 October 2012 version onwards. This provision is now contained in Protocol 16, above n 7, Art 2(1).
123. Ullens de Schooten et Rezabek v Belgium App No. 3989/07 and 38353/07 (ECHR, 20 September 2011).
124. Explanatory Repor t, above n 67, para 15. See also Gragl, above n 98, at 239.
125. Made available from HUDOC – the ECtHR database of case-law.
126. Protocol 16, above n 6, Art 4(4). See further Explanatory Report, above n 67, para 24.
127. Note, for example, the pre-Brighton speeches by the UK Attorney General, Dominic Grieve and the UK Prime Minister, David Cameron, above nn 43–44. See further Bates, E ‘British sovereignty and the European Court of Human Rights’ (2012) 128 LQR 382 at 407.Google Scholar
128. On the consequences of mishandling in the ECtHR's ordinary adjudicatory function, note Amos, above n 62.CtHR's ordinary adjudicatory function, note Amos, above n 62.
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