Op-Ed: “ECtHR’s advisory jurisdiction on the move: Bioethics Committee requests first-ever advisory opinion” by Dolores Utrilla
Earlier this week, the European Court of Human Rights (ECtHR) announced that it has received, for the first time ever, a request for an advisory opinion from the Council of Europe’s Steering Committee on Bioethics, made under Article 29 of the 1997 Convention on Human Rights and Biomedicine (the Oviedo Convention).
This request represents the first use in more than 20 years of this specific advisory mechanism, unexplored to date and therefore largely unknown. This warrants further explanation to understand (i) the mechanism’s main features, as well as (ii) its differences from other existing advisory tools of the ECtHR. Lastly, it will be shown that this pending request, together with certain recent developments in the context of the ECtHR’s advisory jurisdiction and in other areas, suggests an acceleration of the process of ‘constitutionalisation’ of the ECtHR’s role (iii).
(i) Advisory opinions under the Oviedo Convention
According to Article 29 of the Oviedo Convention, the ECtHR may give, without direct reference to any specific proceedings pending in a court, advisory opinions on legal questions concerning the interpretation of the Convention at the request of either the government of a State Party or the Steering Committee on Bioethics by a decision adopted by a two-thirds majority of votes cast.
No provision of the Oviedo Convention deals with the procedure for the management of advisory opinion requests. Therefore, the general procedural rules for advisory opinions under Articles 47 to 49 of the European Convention on Human Rights (ECHR) are applicable, as set up in Chapter IX of the ECtHR’s Rules of Court.
Within this framework, in its (still pending) request the Bioethics Committee has posed to the ECtHR two questions on the interpretation of Article 7 of the Oviedo Convention, which deals with the protection of persons who have a mental disorder. According to this provision, ‘subject to protective conditions prescribed by law, including supervisory, control and appeal procedures, a person who has a mental disorder of a serious nature may be subjected, without his or her consent, to an intervention aimed at treating his or her mental disorder only where, without such treatment, serious harm is likely to result to his or her health’.
Specifically, the Bioethics Committee asks the ECtHR, firstly, to identify the ‘protective conditions’ referred to in Article 7 that a Member State needs to regulate as a minimum level of protection, in light of the Convention’s objective ‘to guarantee everyone, without discrimination, respect for their integrity’ (Article 1).
Moreover, the Bioethics Committee asks whether the same protective conditions apply in case of treatment of a mental disorder to be given without the consent of the person concerned and with the aim of protecting others from serious harm (which is not covered by Article 7, but by Article 26(1) of the Oviedo Convention).
Therefore, as set up in Article 29 of the Oviedo Convention, the request does not concern any specific proceedings pending before a court. Moreover, it concerns general legal questions regarding the interpretation of substantive rules of the Convention. As will be explained below, these features distinguish this tool from other advisory opinion mechanisms existing under ECHR law.
(ii) Other advisory opinion mechanisms
The pending request by the Bioethics Committee brings to the limelight the advisory jurisdiction of the ECtHR, an issue which is not new, but that has attracted particular attention in recent times. In this regard it must be made clear that the ECHR’s system contains two different advisory opinion mechanisms, in addition to the one set up by Article 29 of the Oviedo Convention.
a) The ‘classical’ advisory procedure
The ECtHR has had advisory jurisdiction ever since the general advisory opinion procedure was introduced in the ECHR’s system by Protocol No. 2, adopted in 1963. This mechanism, now contained in Articles 47 to 49 ECHR, is subject to quite restrictive conditions and its scope is rather limited. According to Article 47 ECHR, only the Committee of Ministers of the Council of Europe may request advisory opinions on legal questions concerning the interpretation of the ECHR and the protocols thereto. Importantly, such opinions shall not deal with any question relating to the content or scope of the rights and freedoms enshrined in the ECHR’s system or any other question which the ECtHR or the Committee of Ministers might have to consider in consequence of any such proceedings as could be instituted in accordance with the ECHR.
The underlying rationale of this limited scope is the attempt to avoid that the advisory jurisdiction curtails the ‘primary’ contentious jurisdiction of the Strasbourg-based court, as explained in the preparatory texts of Protocol No. 2. In essence, the idea is that advisory jurisdiction should avoid overlapping with its contentious jurisdiction, in order to avoid double adjudication in the same case.
In view of this narrow scope, it is by no means surprising that this procedure has turned out to be of very little practical significance to date. According to the HUDOC database, only two such opinions have been issued in 2008 and 2010, involving legal questions on the procedures to be followed to elect new judges to the ECtHR.
As can be seen, the main difference between this mechanism and the one under Article 29 of the Oviedo Convention is the kind of legal questions that can be submitted to the ECtHR. In this regard, the Oviedo Convention’s mechanisms involves a sector-based broadening of the ECtHR’s advisory jurisdiction, because advisory opinions based thereon can be broader and refer to the interpretation of substantive Convention provisions in an abstract manner, without precluding the possibility that the same issue can later be brought up in contentious proceedings.
b) The ‘preliminary reference’ advisory procedure
The idea of establishing a ‘preliminary ruling’ system or advisory jurisdiction in concrete cases pending before national courts was under discussion for more than two decades. Finally introduced by means of Protocol No. 16 to the ECHR, the rationale behind such a procedure is quite different in nature from the advisory jurisdiction in Articles 47 to 49 ECHR.
As explained here, the main function of Protocol 16 is to enhance the interaction between the ECtHR and national courts, which are the ones entitled to request this kind of opinions. 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.
This new ‘preliminary reference’ advisory opinion mechanism entered into force in August 2018. So far, two advisory opinions of this kind have already been given, at the request of the French Court of Cassation (2019) and of the Armenian Constitutional Court (2020).
In a similar vein to the advisory mechanism under the Oviedo Convention, Protocol No. 16 advisory opinions can refer to the interpretation of substantive ECHR provisions. However, there are two important differences between both advisory mechanisms, namely the kind of actors that may request advisory opinions and the existence (or not) of an underlying concrete dispute pending before a national court, which conditions the scope of the advisory opinion given by the ECtHR in each scenario.
(iii) Advisory jurisdiction as a constitutional trend
According to the ECtHR itself, delivery of individual justice is the primary task of the Strasbourg-based court (see for example Konstantin Markin v. Russia). However, as has been shown, advisory jurisdiction has existed ever since the 70s (thought in a quite restricted manner) and was gradually extended in 1997 (by the Oviedo Convention) and 2018 (by Protocol No. 16). As noted by Jannika Jahn (here), these developments assert the ECtHR’s constitutional role by institutionalizing its function of delivery of justice beyond the single case, a paradigm shift from the long predominant individual justice approach.
Indeed, the main purpose of a court’s advisory jurisdiction is to provide non-binding, yet authoritative legal interpretations, while avoiding the confrontation inherent to contentious cases. From this perspective, and in so far as they set up general interpretations that go beyond the single case, advisory opinions entail a reinforced way of judicial law-making (as explained here by Karin Oellers‐Frahm).
These developments in the field of the ECtHR’s advisory jurisdiction are further reinforced by recent reforms of several of its procedural arrangements. The most important one is the introduction of the pilot-judgment procedure, used as a means of dealing with systemic dysfunctions under national law, hence delivering justice beyond the single case and therefore described as ‘exemplary’ for the ECtHR’s constitutional function.
Dolores Utrilla is Assistant Editor at EU Law Live and Associate Professor at the University of Castilla-La Mancha. She is author of ‘Las garantías del Derecho de propiedad privada en Europa’ (Thomson Reuters, 2012) and a co-author of ‘Good Administration and the Council of Europe: Law, Principles and Effectiveness’ (Stelkens ed., OUP, on press).