Published: 25 Jul 2018 | By Harriet Bland
Protocol 16 to the ECHR
On 1 August 2018, Protocol No. 16 to the European Convention on Human Rights (ECHR) enters into force in ten Council of Europe member states, including Armenia, Georgia and Ukraine. The Protocol allows the highest courts of these States to request the European Court of Human Rights (ECtHR) provide non-binding advisory opinions on questions relating to the interpretation or application of the ECHR or its Protocols. Protocol No. 16 is intended to help resolve cases earlier, at the domestic level, so that they no longer need to be taken to the ECtHR. Since the Brussels Conference in March 2015, EHRAC has, as part of an NGO coalition, been calling for such changes to the ECHR system.
While EHRAC cautiously welcomes the new Protocol, there remain some potential issues. For example, Article 1(3) of the Protocol requires the requesting court to provide its reasons for making the request but does not require the arguments of the parties to the domestic proceedings to be included in the request. There are some fears that this will lead to domestic courts pre-judging the cases concerned. In addition, Article 3 of the Protocol affords no right for the claimant from the domestic proceedings to participate in the Advisory Opinion procedure itself. The Council of Europe Commissioner for Human Rights and the relevant State have the right to submit written comments and take part in any hearing, but these rights do not extend to any third party, except at the discretion of the Court. This, in combination with the above measures, risks excluding the voices of victims from the process. The Protocol also generates some uncertainty: it does not clarify the Court’s position on costs orders, the availability of legal aid to the parties, when the advisory opinions will be published, or whether the proceedings will be carried out in one of the Court’s two official languages.
It remains to be seen how Protocol No. 16 will operate in practice, how often it will be invoked, whether the potential difficulties described above will materialise and how they will be addressed by the Court.