On April 14, 2018, France became the 10th State to ratify Protocol 16 to the Convention on the Protection of Human Rights and Fundamental Freedom, which will, upon entry into force, extend the jurisdiction of the European Court of Human Rights (ECtHR) to include advisory jurisdiction for States that have ratified Protocol 16. [ECtHR Press Release] France’s ratification triggered the protocol to enter into force, which it will officially do on August 1, 2018. [ECtHR Press Release] Advisory jurisdiction will allow the highest courts in those States that are a party to Protocol 16 to refer questions to the Court on its interpretation of State obligations under the European Convention on Human Rights or its protocols. Protocol 16 brings the European Court’s jurisdiction within the same practices as other regional human rights courts; the African Court on Human and Peoples’ Rights and the Inter-American Court of Human Rights both may issue advisory opinions, as established in Article 4 of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights and Article 2(2) of the Statute of the Inter‐American Court of Human Rights in conjunction with Article 64 of the American Convention on Human Rights, respectively. The 10th ratification of Protocol 16 comes in the midst of ongoing reforms of the European Court, including the recent Copenhagen Declaration. The Copenhagen Declaration calls for reduction to the backlog of cases at the European Court, an increase in communication between States parties and the Court, and improvement in the domestic implementation of European Court judgments.
Protocol 16 on Advisory Jurisdiction of the ECtHR
To request an advisory opinion, a State court must provide reasons for its request, provide the relevant legal and factual background of the case, and must have the issue currently pending before it. See Protocol No. 16 to the Convention on the Protection of Human Rights and Fundamental Freedoms (adopted 2 October 2013, enters into force 1 August 2018), CETS 214 (Protocol 16), art. 1(3).
A panel of five judges of the ECtHR Grand Chamber decides whether to accept the request for an advisory opinion, and must, under the Protocol, provide reasons for refusing a request. See id. at art. 2(1). If the panel accepts the request, the Grand Chamber will deliver and publish the advisory opinion and its reasoning that supports the opinion, and any judge who disagrees with that opinion may deliver a separate one. See id. at arts. 2(2), 4(1), 4(2), 4(4). The advisory opinion of the ECtHR is non-binding on the State. See id. at art. 5.
The composition of the panel must include a judge from the State of the requesting court, and the State from which the request originated has the right, under the Protocol, to take part in the proceedings. The European Court judge from the relevant State will sit on the panel, or, if that judge cannot do so, the President of the ECtHR will choose a judge from a list submitted by the State. See id. at art. 2(3). The State from which the request originated may submit written comments and may take part in the hearing. See id. at art. 3. The President of the ECtHR may also invite other States or individuals to submit comments or take part in the hearing. See id.
Ten States in the Council of Europe have ratified Protocol 16. Those are Albania, Armenia, Estonia, Finland, France, Georgia, Lithuania, San Marino, Slovenia, and Ukraine. See Council of Europe Treaty Office, Chart of signatures and ratifications of Treaty 214. An additional nine States have signed but not ratified Protocol 16. Those are Andorra, Greece, Italy, the Netherlands, Norway, Republic of Moldova, Romania, Slovak Republic, and Turkey. See id.
Protocol 16 enters into force on the first day of the month following a three-month period from the date of the tenth ratification. See Protocol 16, art. 8(1). France deposited its instrument of ratification on April 14, 2018, bringing the Protocol into force August 1, 2018. See Council of Europe Treaty Office, Chart of signatures and ratifications of Treaty 214. Once Protocol 16 enters into force, any subsequent ratification will enter into force on the first day of the month following a three-month period from deposit of ratification. See Protocol 16, art. 8(1).
Protocol 16 originates from the Brighton Declaration. See High Level Conference on the Future of the European Court of Human Rights, Brighton Declaration (2012). The 2012 high-level conference meeting at Brighton was one in a series of annual high-level talks led by the current Chair of the Council of Europe’s Committee of Ministers and aimed at reforming the European Court, in what is known as the Interlaken Process. The process is named after the first round of high-level talks on reforming the European Court, which occurred in Interlaken, Switzerland, in 2010. See European Court, History of the Court’s Reforms. In addition to being attended by State delegates of the Committee of Ministers, the talks may receive input from the European Court, including both judges and members of the registry. See id.; see also Council of Europe, Programme of the High Level Conference (2015).
The ECtHR had voiced its general support of Protocol 16 prior to its publication in its drafting phase. See ECtHR, Opinion of the Court on Draft Protocol No. 16 to the Convention extending its competence to give advisory opinions on the interpretation of the Convention (2013).
The Copenhagen Declaration, produced at the April 2018 high-level conference, focuses on issues of shared responsibility of the Court and States parties for “improved protection of rights” and effective national remedies. See High Level Conference on the Future of the European Court of Human Rights, Copenhagen Declaration. The Copenhagen Declaration uses the term shared responsibility to describe the link between the roles of the ECtHR and the States parties. See id. at para. 6. The purpose of shared responsibility is to strengthen the principle of subsidiarity, where the States have the primary responsibility to secure the rights and freedoms defined in the European Convention of Human Rights, and enjoy a margin of appreciation in doing so, under the supervisory jurisdiction of the Court. See id. at para. 7. The Declaration, therefore, calls upon States parties to strengthen the implementation of the European Convention on Human Rights by creating and improving domestic remedies; ensuring that legislation fully complies with the Convention; prioritizing the professional training of judges, prosecutors, and other public officials on the Convention and the ECtHR’s case law; and promoting the translation of the Court’s case law into relevant languages. See id. at para. 16.
The Declaration calls upon States to take further measures to execute ECtHR judgments at the national level, including by encouraging the Committee of Ministers to consider the need to strengthen its capacity to offer rapid and flexible assistance to States parties in implementing Court judgments, especially pilot judgments. See id. at paras. 21-22, 25.
The Declaration also highlights the need for increased dialogue and cooperation between States parties and the ECtHR as well as other Council of Europe bodies. The Declaration notes a need for dialogues between the national and European levels, which may include thematic discussions in the Committee of Ministers, the ability of States parties to show support for the referral of cases to the Grand Chamber, and ECtHR support of States parties’ submission of third party interventions in ECtHR cases. The Declaration also emphasizes the need to reduce the ECtHR’s caseload and backlog and for cooperation between States parties, the Committee of Ministers, and the Parliamentary Assembly in selecting and electing judges of the highest quality. See id. at paras. 33-62. Additionally, the Declaration calls on the European Union to accede to the European Convention on Human Rights. See id. at para. 63.
After the initial draft of the Copenhagen Declaration was released earlier this year, the ECtHR, as well as civil society, expressed some concerns. [IJRC] The draft indicated that rights should be secured in light of Member States’ “national circumstances” and “constitutional traditions,” which the ECtHR believed misinterpreted the role of the factors in the Court’s adjudication. Civil society similarly criticized the earlier draft for favoring State sovereignty too strongly. [IJRC] The language on “national circumstances” and “constitutional traditions” was eliminated for the final version of the Declaration.
European Court of Human Rights
The ECtHR is a regional human rights judicial body based in Strasbourg, France. The Court has jurisdiction to decide complaints that allege violations of the European Convention on Human Rights and are submitted by individuals, or States, against States parties to the European Convention.
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