Highest Dutch courts have not as yet heard any cases in which European Court’s advisory opinions might be of use

Protocol 16 to the European Convention on Human Rights (ECHR) took effect for the Netherlands on 1 June 2019. Under the Protocol, the Netherlands’ highest courts* are entitled to request the opinion of the European Court of Human Rights (ECtHR) on the ECHR’s interpretation and application. In the four years since the Protocol’s entry into force, the highest Dutch courts still have not availed of this entitlement. Foreign courts are also cautious about submitting requests for opinions to the ECtHR. Though they recognise the Protocol’s added value, most courts consider the explanation and application of national law to be first and foremost their own task. This was the conclusion arrived at in a Utrecht University study commissioned by the WODC.

The aim of the Protocol is to encourage dialogue between European and national courts. Such dialogue is intended to lead to the better safeguarding of human rights in states’ domestic legal proceedings. The idea is also that complaints to the European Court of Human Rights (ECtHR) can be avoided through the correct application of the ECHR in domestic legal proceedings.

When the proposed law to approve the Protocol was being passed in the Netherlands, there was much discussion regarding the Protocol’s added value, but also regarding the need for an advisory opinion procedure and the practical consequences thereof. The Protocol’s functioning was therefore evaluated at the request of the Dutch House of Representatives. The undertaken study analyses initial experiences with the Protocol based, on among other things, a literature review and interviews with Dutch and foreign judges, government representatives and experts.

Concerns regarding the ECtHR’s active involvement in domestic matters

At the time the report was written, Protocol 16 was ratified by 19 of the Council of Europe’s 46 member states, and eight requests for opinions had been submitted pursuant to this Protocol. At that time, the ECtHR had issued six advisory opinions in total. A number of European countries are still reluctant to approve the Protocol. The research shows that they are worried that the ECtHR will become too actively involved in issues regarding national fundamental rights. Nonetheless, both foreign and Dutch courts understand that such involvement is potentially worthwhile where new legal issues are concerned in respect of which the ECtHR has not yet delivered any clear judgments. On the basis of the still limited number of advisory opinions requested and issued, it is difficult to say whether the advisory procedure contributes positively to implementation of the ECHR at national level. It is as yet unclear whether the Protocol will also lead to fewer cases at the ECtHR. This would principally be so in situations in which a large number of comparable court cases are involved, where a single advisory opinion could be applied across the board. Thus far, the requests for opinion concerned unique cases or very specific ambiguities in existing ECtHR case law.

Considerations of Dutch courts in not submitting requests for opinion

It emerges from interviews with Dutch judicial authorities that there have not yet been any cases which, on the basis of those authorities’ own analysis of the ECHR and ECtHR case law, they themselves were not able to resolve in a satisfactory manner. An additional factor here is that many cases also involve an EU law component. Where there is uncertainty as to the application of EU law, the courts prefer to ask the Court of Justice of the European Union (CJEU) to provide an interpretation through a preliminary ruling. Often, these preliminary ruling proceedings - which in some cases courts are even obliged to engage in - take precedence over the Protocol’s advisory opinion procedure. Thirdly, many judges fear that ECtHR proceedings may lead to delays in domestic proceedings. This is deemed to be highly problematic in cases concerning e.g. compulsory admission, or aliens cases. However, the study demonstrates that so far, the advisory procedure takes less time than the proceedings at the CJEU.

Criteria for requests for opinion

Partly on the basis of the experiences of the Dutch and foreign judges interviewed, the researchers have defined several criteria for determining when the submission of a request for opinion might be of value. Up to now, there have not been any cases which, in the view of the highest courts, met these criteria. Although perhaps it can be said that the Protocol is currently being underutilised, these criteria show that there certainly will be opportunities to request an advisory opinion in the future.

*The highest courts in the Netherlands are the Supreme Court, the Administrative Jurisdiction Division of the Council of State, the Central Appeals Tribunal, the Trade and Industry Appeals Tribunal and the Joint Court of Justice of Aruba, Curaçao, Sint-Maarten and of Bonaire, Sint Eustatius and Saba.