Research Report on Protocol 16 in Judicial Practice

How has Protocol 16 ECHR has been implemented and applied so far and could its use be improved? A research report commissioned by the Research and Documentation Centre of the Ministry of Justice of the Netherlands has just been published and presented to the Dutch Parliament this week. It was authored by a team of researchers here at Utrecht University, led Janneke Gerards and Claire Loven, with my collaboration (Antoine Buyse). The report, entitled 'Protocol 16: backgrounds, significance, effects and experiences' (my translation of the title; it is available only in Dutch for now) is based amongst others on a large number of interviews with national judges.

The report is in Dutch, but includes an English-language summary. In the near future an English-language article presenting the findings is envisaged. The Dutch press release can be found here. Below is the press release:

'Dutch highest courts have yet to see cases where European Court opinion could be useful
 
On 1 June 2019, Protocol 16 to the European Convention on Human Rights (ECHR) entered into force for the Netherlands. This allows the highest Dutch courts* to request an opinion from the European Court of Human Rights (ECtHR) on the interpretation or application of the ECHR. Four years after the Protocol entered into force, the Dutch highest courts have not yet made use of it. Foreign courts also prove  reluctant to submit requests for opinions to the ECtHR. Although they see the added value of the Protocol, most courts believe it is primarily up to them to interpret and apply national law. These are the main outcomes of a study conducted at Utrecht University, commissioned by the WODC and carried out by prof. dr. Janneke Gerards and dr. Claire Loven, with the assistance of prof. dr. Antoine Buyse.
 
The purpose of the Protocol is to promote the dialogue between the ECtHR and national courts. As a result, human rights can be better protected in national proceedings. In addition, the idea is that with a proper application of the ECHR in national court cases, complaints to the ECtHR can be avoided. 
When the bill was adopted in the Netherlands, there was much discussion about the added value of the Protocol, as well as about the need for such a procedure and its consequences in practice. At the request of the House of Representatives, it was therefore agreed to evaluate the functioning of the Protocol after four years. This study maps the first experiences with the Protocol on the basis of, among other things, literature research and interviews with Dutch and foreign judges, government representatives and experts.
 
Concerns over active ECHR interference in domestic issues
Protocol 16 has so far been ratified by 19 of the 46 member states of the Council of Europe and eight requests for opinions have been submitted on the basis of the Protocol, which have led to the Court issuing a total of six opinions. Several European countries are reluctant to sign or ratify the Protocol. The research shows that they fear the ECtHR will interfere too actively in national fundamental rights issues. On the other hand, both Dutch and foreign judges see added value when there are new legal questions on which the ECtHR has not yet given clear rulings. 
 
Implementation of the ECHR on the national level

Based on the limited number of opinions requested and issued so far, it is not possible to say whether the advisory procedure contributes positively to the implementation of the ECHR at the national level. Similarly, it is still uncertain if the Protocol will lead to fewer proceedings at the ECtHR. Such reduction was projected to be realised in matters involving a large number of similar legal cases. An opinion could provide clarity as regards the application of the ECHR in all such cases and thus help to solve them already at the national level. This was expected to lead to a lower number of applications to be lodged with the European Court. So far, however, requests have not dealt with such repetitive issues, but concerned unique cases or very specific ambiguities in existing ECtHR jurisprudence.
 
Considerations by Dutch courts for not submitting a request for an advisory opinion

Interviews with the Dutch courts show that there have not yet been any cases that they thought they could not resolve satisfactorily themselves, based on their own analysis of the ECHR and ECHR case law. Another factor is that many cases also have an EU law component. When there is ambiguity about the application of EU law, courts prefer to seek an interpretation from the Court of Justice of the EU (CJEU). In EU member states, this so-called preliminary ruling procedure – which courts are obliged to follow in some cases – thus may take precedence over the advisory opinions procedure. Thirdly, there is a perception that proceedings at the ECtHR can lead to delays in national proceedings. The courts find this particularly problematic in cases concerning, for example, detention or immigration, where a speedy decision is of particular importance. However, the study does show that at the moment, the duration of the advisory procedure is shorter than that of the proceedings at the CJEU.
 
Criteria for requesting advice

The researchers provide – partly based on the experiences of the Dutch and foreign courts interviewed – criteria for when submitting a request for an opinion is useful. So far, in the Netherlands, according to the highest courts, there have been no cases that met these criteria. It is thus impossible to say whether the Protocol is being used to its full potential and whether more use of it will be made in the future.'

New Book on Positive Obligations under the ECHR

Vladislava Stoyanova (Lund University) has published a new book entitled Positive Obligations under the European Convention on Human Rights. This is the abstract:

''It is beyond question that States have positive obligations under the European Convention on Human Rights (ECHR) to prevent and address harm and risks of harm. However, given the difficulties of determining and delimiting the role of the State, the conditions under which positive obligations may apply can be unclear. The search for balance between intrusion and restraint by the State—between protection and freedom from interference—further complicates the question of state responsibility for breach of positive obligations.

Vladislava Stoyanova directly addresses these challenges in Positive Obligations under the European Convention on Human Rights. By systematising the case law of the European Court of Human Rights, the book provides key insights into the elements crucial for ascertaining state responsibility for omissions - state knowledge, causation, and reasonableness. It outlines different kinds of positive human rights obligations and identifies the circumstances under which they can be breached.

Stoyanova reflects upon what is at stake for political communities when the triggering, content, and scope of positive obligations has been determined. She offers serious evaluation of the dangers of ECHR obligations whose scope might be too expansive or intrusive, as well as the conceptual hurdles of applying positive human rights obligations extraterritorially.

The definitive resource on ECHR positive obligations, this book is essential reading for academics, legal practitioners, and policymakers working across the diverse fields in which positive human rights obligations may apply.''

MOOC on ECHR Starts Again on 7 September

Utrecht University's free Massive Open Online Course (MOOC) on the ECHR is starting again today, on 7 September. Registration is open now! To enroll, please go to the Coursera platform.

The MOOC entitled 'Human Rights for Open Societies - An introduction into the ECHR' is taught by my Utrecht University colleagues professor Antoine Buyse and professor Janneke Gerards. This is the description of our six-week course:

'Human rights are under pressure in many places across the globe. Peaceful protests are violently quashed. Voting is tampered with. And minorities are often excluded from decision-making. All of this threatens the ideal of an open society in which each of us can be free and participate equally. A solid protection of human rights is needed for an open society to exist and to flourish. But it is often an uphill battle to work towards that ideal. Equip yourself and learn more about what human rights are and how they work. 

In this course, we will introduce you to one of the world’s most intricate human rights systems: the European Convention on Human Rights. You will see when and how people can turn to the European Court of Human Rights to complain about human rights violations. You will learn how the Court tries to solve many of the difficult human rights dilemmas of today. We will look, amongst other things, at the freedom of expression and demonstration, the right to vote, and the prohibition of discrimination. And we will address the rights of migrants, refugees, and other vulnerable groups. And, of course, we will see whether it is possible to restrict rights and if so under what conditions. You will even encounter watchdogs and ice cream in this course. We invite you to follow us on a journey of discovery into the European Convention!'

Please watch this short introduction video to get an impression: