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Dolores Utrilla
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29th May 2020
Human Rights Justice & Litigation

Insight: “Council of Europe’s new tool for judicial dialogue in motion: ECtHR issues second-ever advisory opinion” by Dolores Utrilla

The European Court of Human Rights (ECtHR) has just delivered an Advisory Opinion under the new reference mechanism established by Protocol No. 16 to the European Convention on Human Rights (ECHR). The Opinion, handed down at the request of the Constitutional Court of Armenia, provides guidance on certain aspects of Article 7 ECHR (no punishment without law).

This is the second ever Advisory Opinion issued by the Strasbourg-based court, after entry into force of the new Council of Europe’s ‘preliminary reference’ mechanism in August 2018. The first country to seek such an opinion was France, which made a request in a case concerning rights related to surrogacy in October 2018 and received an Advisory Opinion from the ECtHR in April 2019.

Today’s Advisory Opinion brings to the limelight a still largely unknown tool which presents significant parallels with other judicial dialogue instruments (mainly, the preliminary reference mechanism under EU law), but which is also distinguished by certain unique features.

The ECtHR’s advisory opinion mechanism

The mechanism of advisory opinions was introduced in the ECHR system in 2018 by Protocol No. 16 to the ECHR with the purpose of enhancing the interaction between the ECtHR and national authorities, thereby improving the implementation of the Convention in accordance with the principle of subsidiarity. The first proposals for this new tool date back to 2005, when the Group of Wise Persons set up under the Action Plan of the Council of Europe addressed a report to the Committee of Ministers advising it to ‘consider the issue of the long-term effectiveness of the ECHR control mechanism’ and to ‘foster dialogue between courts and enhance the Court’s “constitutional role”’.

This reveals that, from its inception, Protocol 16 advisory opinions were regarded as a tool very different from the (already existing) advisory opinions under Articles 47 to 49 ECHR, which were introduced by Protocol No. 2 in 1970. Under these provisions, the ECtHR already had the power to give advisory opinions, but only upon the request of the Council of Europe’s Committee of Ministers. Moreover, such opinions could not relate to ECHR substantive rights, but only to procedural and organisational issues. In addition, the purpose with which Protocol No. 16 was introduced shows that it is in line with the ECtHR’s efforts to speed up fundamental rights litigation by increased cooperation with national courts through procedural instruments aimed at reducing the number of repetitive cases, facilitating their resolution at the national level in accordance with the subsidiary role of ECHR law. A paradigmatic example of this is the pilot judgment procedure, as explained here.

Against this background, Protocol No. 16 extended the jurisdiction of the ECtHR to the issuance of non-binding advisory opinions in response to requests from the highest courts and tribunals of States Parties to the ECHR, as designated by the States which have ratified the Protocol. As of today, 22 States have signed Protocol No. 16, and 15 have ratified it (namely Albania, Andorra, Armenia, Estonia, Finland, France, Georgia, Greece, Lithuania, Luxembourg, the Netherlands, San Marino, the Slovak Republic, Slovenia, and Ukraine). In order to facilitate and speed-up familiarisation with the implementation of the advisory opinion procedure, in September 2017 the ECtHR issued a Guidelines document offering practical assistance on the initiation and the follow-up to the procedure.

Requests for advisory opinions must meet certain criteria: (i) they must concern questions of principle relating to the interpretation or application of the rights and freedoms defined in the ECHR or its protocols, (ii) they must be reasoned, and (iii) they can only be made in the context of a pending case before the referring court. This means that the procedure is not intended to allow for abstract review of legislation which is not to be applied in the pending case at hand. As made clear by the Council of Europe’s Explanatory Report on Protocol No. 16, these features are inspired by Article 43 ECHR concerning referrals to the Grand Chamber, a mechanism with which the referral for advisory opinions has certain parallelism. However, unlike the procedure under Article 43, the Grand Chamber’s panel must give reasons for any refusal to accept a domestic court or tribunal’s request for an advisory opinion, a requirement which is intended to reinforce dialogue between the ECtHR and national courts.

As already mentioned, Protocol 16 advisory opinions lack binding force for the requesting court, which is also free to decide whether the domestic proceedings are to be suspended pending the delivery of the ECtHR’s advisory opinion. However, requesting courts are invited to inform the ECtHR of the follow-up given to the opinion  in the domestic proceedings and to provide it with a copy of the final judgment or decision adopted in the case. Moreover, Protocol 16 advisory opinions form part of the ECtHR’s case law, alongside its judgments and decisions, and therefore they are analogous in its effect to the interpretative elements set out by the ECtHR in judgments and decisions.

It must be noted that the issuance of an advisory opinion does not prevent parties in the national proceedings from subsequently filing an individual application before the ECtHR, although where an advisory opinion has been followed by the requesting court it can be expected that the elements of the application that relate to the issues addressed in the advisory opinion would be declared inadmissible or struck out, according to the ECtHR’s guidelines.

The Advisory Opinion requested by the French Court of Cassation

The first ever advisory opinion request (No. P16-2018-001) was posed to the ECtHR by the French Court of Cassation on 12 October 2018. This is significant in and of itself, because France had ratified Protocol No. 16 only a few months earlier (on 14 April 2018) and it was precisely this ratification that triggered its entry into force in August of that year.

The French request concerned the requirements arising from the right for respect for private and family life (Article 8 ECHR) for the framework of parental rights in France in respect of intended mothers to children born abroad through a surrogacy arrangement.

By its Advisory Opinion of 10 April 2019, the ECtHR considered that where a child is born abroad through a gestational surrogacy arrangement (conceived using the gametes of the intended father and a third-party donor, where the legal parent-child relationship with the intended father has been recognised in domestic law), Article 8 ECHR requires that domestic law provide a possibility of recognition of a legal parent-child relationship with the intended mother, designated in the birth certificate that has been legally established abroad as the ‘legal mother’.

According to the ECtHR, it is not required that such recognition takes the form of entry in the register of births, marriages and deaths of the details of the birth certificate legally established abroad. Another means, such as adoption of the child by the intended mother, may be used provided that the procedure laid down by domestic law ensures that it can be implemented promptly and effectively, in accordance with the child’s best interests.

The Advisory Opinion requested by the Armenian Constitutional Court

As mentioned above, the second advisory opinion request (No. P16-2019-001) was lodged by the Constitutional Court of Armenia in September 2019. The request was made in pending proceedings concerning constitutional review of a provision in the Armenian Criminal Code penalising the overthrowing of the constitutional order, and asked for guidance on certain aspects of the prohibition of punishment without law under Article 7 of the European Convention on Human Rights (ECHR).

The dispute before the Armenian Constitutional Court relates to the criminal prosecution against former President Robert Kocharya, who was charged under Article 300.1 of the 2009 Criminal Code with the offence of overthrowing the constitutional order in respect of events which took place in February and March 2008, when protests broke out over a disputed presidential election. At that time, a different provision of the former Criminal Code, Article 300 (usurpation of power) was in force. Casting doubts on the compatibility of national rules with Article 7 ECHR, the Armenian Constitutional Court decided to refer four questions to the ECtHR for an advisory opinion. The first two questions concern the meaning of the concept of ‘law’ within Article 7 ECHR, as well as the meaning of the requirements of a law’s certainty, accessibility, foreseeability, and stability. The third and the fourth question concerned, respectively, the use of blanket references in criminal rules and the principle of non-retroactivity of criminal law.

In its Advisory Opinion given today, the Grand Chamber of the ECtHR considered, firstly, that it could not answer the first two questions of the Armenian Constitutional Court because they lacked any direct link with the ongoing domestic proceedings.

Concerning the Constitutional Court’s third question, the ECtHR held that the specific Armenian provision using the ‘blanket reference’ or ‘legislation by reference’ technique in criminalising acts or omissions, when read in conjunction with the referenced provision, had enabled individuals to foresee, if need be with the help of legal advice, what conduct would make them criminally liable. The ECtHR noted, however, that the most effective way of ensuring clarity and foreseeability was for the reference to be explicit and for the referencing provision to set out the constituent elements of the offence.

As for the question concerning the requirement of non-retroactivity of criminal law under Article 7 ECHR, the ECtHR held that the comparison between two different versions of a legal act, in order to assess whether the newer law is more or less favourable to the accused than the law that was in force at the time of the alleged commission of the offence, has to be carried out by the competent court, not by comparing the definitions of the offence in abstracto, but having regard to the specific circumstances of the case (principle of concretisation). If the subsequent law is more severe than the law that was in force at the time of the alleged commission of the offence, it may not be applied.

Some reflections from the perspective of EU law

It is apparent that the mechanism under Protocol No. 16 has some significant differences in respect of the preliminary reference procedure under Article 267 TFEU. Just to mention some of them, let’s remember that preliminary rulings by the Court of Justice: (i) are binding for the referring courts, (ii) can be referred by any national court, including lower courts, and (iii) must be made in some cases by the highest national courts.

Without prejudice thereto, today’s Advisory Opinion by the ECtHR confirms that Protocol No. 16 is comparable to Article 267 TFEU procedures to certain extents. Firstly, like the Court of Justice, the ECtHR has understood that it has the power to reformulate questions, as well as to combine them, something that had already been done in the French advisory opinion case. Secondly, the structure and the wording of both requests and advisory opinions clearly resemble those of orders for reference and of preliminary rulings under Article 267 TFEU. Thirdly, both courts provide reasons as to the admissibility decisions they take (which, for the Court of Justice, is not foreseen in the Rules of Procedure).

Now it is clear that the new creature is moving, but there is still much to be seen in respect of how it interacts in practice with EU law. It must be recalled that the advisory opinion procedure under Protocol No. 16 was one of the reasons why the Court of Justice declared, in its Opinion 2/13, that the EU’s Draft Accession Agreement to the ECHR was unlawful. In the Court of Justice’s view, this mechanism may pose a threat to the autonomy of EU law and interfere with the Article 267 TFEU preliminary reference procedure. In fact, it remains unclear what would happen, inter alia, if a national court makes a request to both the Court of Justice and the ECtHR, or if these courts would offer diverging interpretations on substantively similar issues at the same time.

 

Dolores Utrilla is Assistant Editor at EU Law Live and Associate Professor at the University of Castilla-La Mancha.

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