Advisory Opinions, Preliminary Rulings and the New Protocol No. 16 to the European Convention of Human Rights
| Date | 01 December 2014 |
| Published date | 01 December 2014 |
| Author | Janneke Gerards |
| DOI | 10.1177/1023263X1402100404 |
| Subject Matter | Article |
630 21 MJ 4 (2014)
ADVISORY OPINIONS, PRELIMINARY RULINGS
AND THE NEW PROTOCOL No. 16 TO THE
EUROPEAN CONVENTION OF HUMAN RIGHTS
A Comparative and Critical Appraisal
J G*
ABSTRACT
rough the introduction of an advisory opinions procedure, Protocol No. 16 to the
Eu r op e an C on ve n t io n o f Hu m an R ig h ts (t h e C o nv e nt i on) a im s t o s t re n gt h e n t he i nt e ra c ti o n
between national courts and the European Cour t of Human Rights (herea er the Court),
as well as to alleviate the Court’s caseload. National cour ts can present questions to
the Court on important aspects of the interpretation of the Convention, on which the
Court will give a non-binding opinion. is article critically examines the potential of
the procedure established by Protocol No. 16 in the light of its objectives. To this end, a
comparison with the preliminary reference procedure in EU law is made to assess the
procedure’s prospective e ects and its impact. It is concluded that it is not to be expected
that the advisory opinions procedure will bring much added value, partly as a result of
the di erent legal structure of the procedure of Protocol No. 16 when compared to the
preliminary reference procedure in EU law, and partly because of the partic ular context in
which the procedure is introduced.
Keywords: advisor y opinions; European Convention of Human Rights; Eu ropean Court
of Human Rights; interact ion between courts; preliminar y references
* Prof. dr. J.H. (Jannek e) Gerards is a Professor of Europea n Law at the Radboud University Nijmegen,
the Netherlands (j.gerards@jur.ru.nl).
Advisory Opi nions, Prelimin ary Rulings and t he New Protocol No. 16 to the ECHR
21 MJ 4 (2014) 631
§1. IN TRODUC TION
One of the core tasks of the Europea n Court of Human Rights (ECtHR or the Court)
is to decide on individual applications concerning alleged violations of the rights
For many individuals the ECtHR is a court of last resor t, to which they can turn if
they have remained unsuccessful in their e orts to seek redress before national courts.
However, the European system of individual protection of fundamental rights is under
heavy pressure. e Court ’s caseload has strongly increased and the Court ex periences
great di cult ies in dealing with all appl ications within a reasonable time.3 A variety of
measures and solutions has been introduced over the years in order to guarantee the
Court’s (future) e ectiveness.
4 In 2012, the Court for the rst time disp osed of a greater
number of applications than had been brought before it,5 and it is likely that the Court
wi ll ha ve s olv ed th e de lay s i n d ea li ng w it h s imp le cas es at t he la tes t i n 2 015. 6 Neverthe less,
the current measures have only partially solved the Court’s problems. ere are stil l
thousands of case s pending while there is a continuous in ux of new cases being added
to the Court’s docket. Moreover, the protection of Convention rights i n the states is only
partly determ ined by the e ciency of the organization of the ECt HR. Just as important
are the willingness and ability of national authorities to comply wit h the Convention
standards and to solve structural a nd systematic problems related to the protection of
fundamental r ights.
Hence, there is still reason to be concerned about the e ectiveness of the Europea n
system of human rights protection. e government leaders of the European states have
shown such concern when they assembled in Brighton in 2012 to discuss the ECtHR’s
future. is has resulted in the adoption of a High Level Declaration in which they did
not only express their support of the Convention and the Court, but also resolved to
take addition al meas ures to in crease t he e ectiveness of the Convention system. By now,
these resolutions have resulted in a number of concrete proposals for change. Protocol
2 Most recently, the core fu nction of this task has be en stressed in the Brighton De claration adopted at
the High Leve l Conference about the fu ture of the ECtHR on 19–20Apri l 2012, para. 13. See fu rther for
example, S. Greer a nd L. Wildhaber, ‘Revisiti ng the Debate about “constitutiona lising” the European
Court of Huma n Rights’, 12 Human Rights Law Re view (2012), p.655–687.
3 See already Re port of the Group of Wise Persons to the Com mittee of Ministers, 10 November 2006,
SAGES(2006) 06 EN Fina l, para. 28.
4 See for example, I. Ca meron, ‘ e Court and the member st ates: procedural aspe cts’, in A. Føllesdal et
al.(eds.), Constituting Europe. e European Court of Human Right s in a National, Europe an and Global
Context (Cambridge University Pre ss, 2013), p.25 et seq.
5 See website of the Eur opean Court of Hu man Rights, w ww.echr.coe.i nt, under the headi ng titled
‘Statistic s’; also compare CDDH, Repor t containing e lements to contribute to th e evaluation of the
e ects of Protocol No. 14 to the C onvention and the implementat ion of the Interlaken a nd Izmir
Declarations on t he Court’s Situation, St rasbourg 30November 2012, CDDH(2012)R76 Addendum II,
para. 18 et seq.
6 Ibid.
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