Op-Ed
Dolores Utrilla
“ECtHR’s advisory jurisdiction on the move: Bioethics
Committee requests first-ever advisory opinion”
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Suggested citation: Dolores Utrilla, “ECtHR’s advisory jurisdiction on the move: Bioethics Committee requests first-ever
advisory opinion”, EU Law Live, 26 June 2020
“ECtHR’s advisory jurisdiction on the move: Bioethics
Committee requests first-ever advisory opinion”
Dolores Utrilla
1
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
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her mental disorder only where, without such
treatment, serious harm is likely to result to his or
a) The ‘classical’ advisory procedure
her health’.
The ECtHR has had advisory jurisdiction ever
since the general advisory opinion procedure was
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
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
protection, in light of the Convention’s objective
‘to guarantee everyone, without discrimination,
respect for their integrity’ (Article 1).
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
Moreover, the Bioethics Committee asks whether
the same protective conditions apply in case of
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
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).
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.
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.
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.
(ii) Other advisory opinion mechanisms
In view of this narrow scope, it is by no means
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
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.
Article 29 of the Oviedo Convention.
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As can be seen, the main difference between this
mechanism and the one under Article 29 of the
This new ‘preliminary reference’ advisory opinion
mechanism entered into force in August 2018. So
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
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).
jurisdiction, because advisory opinions based
thereon can be broader and refer to the
interpretation
of
substantive
Convention
In a similar vein to the advisory mechanism under
provisions in an abstract manner, without
precluding the possibility that the same issue can
later be brought up in contentious proceedings.
b) The ‘preliminary
procedure
reference’
advisory
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.
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
3
authoritative legal interpretations, while avoiding
the confrontation inherent to contentious cases.
beyond the single case and therefore described as
‘exemplary’ for the ECtHR’s constitutional
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
function.
Oellers‐Frahm).
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
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
Europa’ (Thomson Reuters, 2012) and a coauthor of ‘Good Administration and the Council
of Europe: Law, Principles and Effectiveness’
(Stelkens ed., OUP, on press).
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