Wednesday 23 March 2016

Guest Post: NGO Views on Protocol 16

It is my pleasure to present a guest post by Jennifer Babaie, a litigation fellow with the Open Society Justice Initiative. The note reflects the core points that a number of human rights NGOs submitted to the Court on the new Protocol 16, also known as the 'dialogue'  protocol:

"On 30 July 2015, the European Court of Human Rights (ECtHR) invited contributions from NGOs on proposed amendments to the Rules of Court arising out of the implementation of Protocol 16 to the Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR). Protocol 16 creates a brand new mechanism allowing the ECtHR to issue advisory opinions on matters of ECHR law, in cases referred by national courts.

The Open Society Justice Initiative, together with 10 other NGOs responded to the court’s call by submitting detailed comments on the draft rules. In the note, the Justice Initiative addressed multiple short-falls of the draft amendments, ranging from substantive concerns to minor procedural issues. Additionally, the Justice Initiative has produced a briefing paper reflecting a detailed analysis of each of the proposed amendments to the rules, a comparative analysis of the ECtHR’s new advisory opinion procedures with those of the Court of Justice of the European Union and other regional human rights bodies, as well as a review of academic discussion of the issues.

Protocol 16 and the proposed rules of procedure are a significant expansion of the court’s power to provide advisory opinions. The new protocol, which will enter into force once it has been ratified by a minimum of ten states, introduces an entirely new system which allows the “highest courts and tribunals” of a state party to request a non-binding advisory opinion directly from the ECtHR. Domestic courts can seek opinions on “questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto”. They may also seek an advisory opinion for the purposes of clarifying the ECtHR’s case-law. 

As of 16 March 2016, six states have ratified Protocol 16 (Albania, Finland, Georgia, Lithuania, San Marino, and Slovenia); another 10 have signed it. The purpose of Protocol 16 is twofold. First, it is intended to strengthen the interaction between national courts and the ECtHR. Second, it is intended to reduce the court’s excessive caseload.

For priority number one, the underlying rationale is that state parties will have access to more guidance from the court so that they can avoid future violations. With the advent of the new mechanism, national courts will be able to request advisory opinions from the ECtHR prior to the conclusion of their domestic case. Upon receipt of the court’s opinion, the national judge presiding over the case can make an informed judgment on the issue, potentially eliminating the need for an appeal to the ECtHR.

The hope of the drafters is that the issuance of advisory opinions will result in fewer violations of the convention, thus increasing the court’s efficiency and reducing its workload in the long run. However, what is not addressed by either the standing committee in charge of the ECtHR’s procedural rules or the committee of ministers in charge of drafting Protocol 16 is the extra work load that could result from a flurry of national judges seeking advisory opinions on a multitude of questions. Moreover, the rather vague language of the proposed amendments as currently drafted leaves the reader without a clear sense of just what exactly the necessary elements of a successful request are. Without greater resources being allocated to the ECtHR, it is difficult to see how the new mechanism will increase its efficiency rather than further hampering the court’s productivity.

In comments provided to the court by the collection of civil society partners including the Justice Initiative, three main problem areas were identified primarily relating to due process concerns.

Firstly, the amendments proposed do not include a mechanism to formally allow parties in domestic proceedings to intervene in the event that their case is referred to the ECtHR for an advisory opinion. The civil society organisations in consultation have proposed that the rules be amended to require the ECtHR to automatically notify the parties in a domestic proceeding that their case is the subject of an advisory opinion; in addition, the civil society collective propose that the parties be automatically invited to intervene in the advisory opinion process as a third party.

Secondly, the proposed amendments carry a very real risk of excluding the voice of the victim entirely from the advisory opinion proceedings. For example, draft rule X(B)(d) requires that a summary of the arguments made by the parties to the domestic proceedings should only be included with the request for an advisory opinion “if relevant”. It seems unlikely that arguments made on the very issue put to the ECtHR would not be relevant, but this qualification opens the door for arbitrary exclusions. The Justice Initiative and its partners propose that the rule be amended to clarify that the domestic court should always include summaries of the arguments of the parties wherever they address the issue for which an advisory opinion is sought.

Thirdly, the proposed amendments carry some risk that the domestic court requesting an advisory opinion will pre-judge the very issue for which it has sought clarity from the ECtHR. This risk exists because the draft rules explicitly invite the domestic court to give its own view on the question referred to the ECtHR. Forming a view on a case that has not been fully argued risks subordinating the due process owed to the parties. The Justice Initiative and its civil society partners propose to amend the current form of the draft rules to clarify what is not appropriate to include in the domestic court’s request: any opinion that might amount to pre-judging the question referred should be emphatically discouraged."