Legal Summary – Request for an advisory opinion under Article 29 of the Oviedo Convention

Case-law Information Note 254
August-September 2021

Decision on a request for an advisory opinion under Article 29 of the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine

Request no. A47-2021-001
15.9.2021 [GC]

Legal summary
Article 29 of the Oviedo Convention
Court’s advisory jurisdiction

Questions concerning specification of the minimum requirements of protection of persons with mental disorders that States need to regulate: request rejected as outside Court competence

Background – The Chair of the Council of Europe’s Committee on Bioethics (“the DH-BIO”) sought an advisory opinion under Article 29 of the Convention on Human Rights and Biomedicine (“Oviedo Convention”). Article 29 provides that the European Court of Human rights may give “advisory opinions on legal questions concerning the interpretation of the present Convention”. The request posed two questions, both relating to persons who have a mental disorder:

  1. In light of the Oviedo Convention’s objective “to guarantee everyone, without discrimination, respect for their integrity” (Article 1 Oviedo Convention), which “protective conditions” referred to in Article 7 of the Oviedo Convention [protection of persons who have a mental disorder] does a Member State need to regulate to meet minimum requirements of protection?
  2. In case of 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 falls within the remit of Article 26(1) of the Oviedo Convention), should the same protective conditions apply as those referred to in question 1?

Decision –

This was the first occasion on which use had been made of the procedure provided for in Article 29 of the Oviedo Convention.

(a) The Court’s jurisdiction under Article 29 of the Oviedo Convention

The Court’s constitutive instrument – the European Convention on Human Rights (“the Convention”) – determines its function and jurisdiction through Articles 19, 32 and 47, and is silent regarding any jurisdiction for the Court outside the Convention system. However, those provisions did not expressly preclude, nor was it necessary to interpret them as completely precluding, the granting of jurisdiction to the Court by and in relation to another, closely-related human rights treaty concluded within the framework of the Council of Europe.

In interpreting the Convention, the Court had to take into account any relevant rules of international law applicable in relations between the parties, in this context the provisions of Article 29 of the Oviedo Convention. While that interpretative principle had mostly been applied to the substantive provisions of the Convention, it was not without relevance to other types of provision, including the provisions on the jurisdiction of the Court. Furthermore, although the Oviedo Convention had not been ratified by all Contracting Parties to the Convention, as a Council of Europe treaty it had received the approval of and its text had been adopted by the Committee of Ministers. Moreover, there had been a common understanding among the relevant institutions that the intended advisory role for the Court was both legitimate and justified. The Court itself had been receptive to that in its opinion on the draft version of the Oviedo Convention, in which it had underlined the significant degree of common ground between that instrument and the Convention. It had considered at the time that, because of the shared concepts between the two instruments, an interpretative function for the Court in relation to the Oviedo Convention could promote a uniform interpretation of those concepts and avoid divergent interpretations of them under each convention.

While there were no specific procedural rules governing the present procedure in the Rules of Court, this was not determinative of the question of its jurisdiction under Article 29 of the Oviedo Convention. Given the silence of the Oviedo Convention in this respect, it was for the Court to regulate the procedure, by analogy with Article 25(d) of the Convention, which conferred rule-making power on the Court alone.

The Convention therefore did not preclude the granting of jurisdiction to it by the Oviedo Convention and the Court had jurisdiction to give advisory opinions under Article 29 of the latter.

(b) The nature, scope and the limits of the Court’s advisory jurisdiction

Article 29 of the Oviedo Convention provides that the Court may give advisory opinions on “legal questions” that concern the “interpretation” of the “present Convention”. It was necessary to establish the meaning of those terms in the context in which they are used.

The Court had already had occasion to clarify the nature of its advisory jurisdiction under the Convention, observing that the use of the adjective “legal” in Article 47 § 1 denoted the intention of the drafters to rule out any jurisdiction on the Court’s part regarding matters of policy (see the advisory opinion on Certain legal questions concerning the lists of candidates submitted with a view to the election of judges to the European Court of Human Rights). Furthermore, according to the Explanatory Report to Protocol No. 2, the term “legal questions” ruled out questions which would go beyond the mere interpretation of the text and tend by additions, improvements or corrections to modify its substance. The Court considered that a request under Article 29 of the Oviedo Convention was subject to a similar limitation.

With reference to the other terms used in Article 29 – “interpretation”, “present Convention” – the Court’s methodological approach entailed an exercise in treaty interpretation, applying the methods set out in the Vienna Convention. The Convention, over the interpretation and application of which Article 32 grants the Court full jurisdiction, is to be treated as a living instrument interpreted in the light of present-day conditions. The Court underlined that that particular interpretative approach, which is integral to its contentious jurisdiction, had to be regarded as specific to the Convention and the Protocols thereto. There was no similar basis in Article 29 to take the same approach. Rather, it is the “present Convention” that the Court might be requested to interpret. Compared to the Convention, the Oviedo Convention represented a different normative model, being a framework instrument setting out the most important principles, to be developed further with respect to specific fields through protocols (Article 31 of the Oviedo Convention).

Moreover, the Court could not operate the procedure provided for in Article 29 of the Oviedo Convention in a manner incompatible with the purpose of Article 47 § 2 of the Convention, which is to preserve its primary judicial function as an international court administering justice under the Convention. Notably, the concern was to reduce the risk of an interpretation that might hamper the Court at a later stage if the request originated in domestic proceedings that subsequently led to an application under the Convention.

At the same time, the advisory jurisdiction that had subsequently been conferred on the Court by Protocol No. 16 was to be clearly distinguished from that granted by the Oviedo Convention. In particular, the limits which applied to the latter and which were designed to preserve the judicial function of the Court could not apply in the same way to the Court’s jurisdiction under Protocol No. 16, which served the purpose of reinforcing the implementation of the Convention in concrete cases pending before national courts, thereby enhancing the implementation of the principle of subsidiarity.

In sum, while the relevant provisions of the Convention did not completely preclude the conferral of a judicial function on the Court in relation to other human rights treaties concluded within the framework of the Council of Europe, this was subject to the proviso that its jurisdiction under its constitutive instrument remained unaffected.

(c) The Court’s competence in respect of the present request

While the request made no direct reference to any specific proceedings pending in a court, it remained to be determined whether it respected the nature, scope and limits of the Court’s advisory jurisdiction. In order for the Court to be in a position to satisfy itself that it was indeed competent to accept a request, it needed to consider not only its wording and explanation, but also the background and context of the request.

The first question posed by the DH-BIO asked the Court to interpret the term “protective conditions”, as used in Article 7 of the Oviedo Convention, so as to specify the minimum requirements of protection that the Parties need to regulate under that provision. However, the term could not be further specified by a process of abstract judicial interpretation. It was clear that that provision reflected the deliberate choice of the drafters to leave it to the Parties to determine, in further and fuller detail, the protective conditions applying in their domestic law in that context. The further elaboration and specification of the most important human rights and principles in the area of biomedicine, as set out in the Oviedo Convention, was, by its very nature, a legislative exercise, rooted in policymaking at the international level, aiming at the adoption of new international legal standards. In relation to non-consensual interventions for the purpose of treating persons with a mental disorder, that process was ongoing. A degree of latitude thus left to the States Parties, could not, in the Court’s view, be restricted by an interpretation of that provision by the Court in the sense requested. Its jurisdiction in that context excluded matters of policy and questions which would go beyond the mere interpretation of the text.

The DH-BIO had intimated that the Court should have regard to the Convention and to the relevant case-law. However, even though the procedure concerned the Oviedo Convention, and the Court’s opinions under Article 29 are advisory, i.e. non-binding, a reply in such terms would still be an authoritative judicial pronouncement focused at least as much on the Convention itself as on the Oviedo Convention. The Court could not take such an approach, which had the potential to hamper its preeminent contentious jurisdiction under the Convention. The Court should not, as part of this exercise, interpret any substantive provisions or jurisprudential principles of the Convention. It followed that the Court could not, as suggested by the intervening organisations, treat the present request for an advisory opinion as an opportunity for it to modify its interpretation of certain provisions of the Convention for the sake of aligning it with the Convention on the Rights of Persons with Disabilities (CRPD), and then interpret Article 7 of the Oviedo Convention in like manner.

The Court nevertheless observed that the safeguards in domestic law that correspond to the “protective conditions” of Article 7 of the Oviedo Convention needed to be such as to satisfy, at the very least, the requirements of the relevant provisions of the Convention, as developed by the Court through its case-law and including those that imposed positive obligations on States. In relation to the treatment of mental disorder, the case-law was extensive and was characterised by the Court’s dynamic approach to interpreting the Convention, which in this field was guided inter alia by evolving legal and medical standards, national and international.

Accordingly, question 1 was not within the competence of the Court.

Question 2, which followed on from the first and was closely related to it, was likewise not within the Court’s competence to answer it.

(See also advisory opinion on Certain legal questions concerning the lists of candidates submitted with a view to the election of judges to the European Court of Human Rights [GC] 12 February 2008)

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