European Court of Human Rights
GRAND CHAMBER
DECISION
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
STRASBOURG
15 September 2021
The European
Court of Human Rights, sitting
as a Grand Chamber composed
of:
Robert Spano, President,
Jon Fridrik Kjølbro,
Ksenija Turković,
Paul Lemmens,
Síofra O’Leary,
Yonko Grozev,
Carlo Ranzoni,
Armen Harutyunyan,
Gabriele Kucsko-Stadlmayer,
Alena Poláčková,
Marko Bošnjak,
Tim Eicke,
Jovan Ilievski,
Lado Chanturia,
Maria Elósegui,
Raffaele Sabato,
Lorraine Schembri Orland, judges,
and Johan Callewaert, Deputy Grand Chamber Registrar,
Having deliberated in private on
10 February and 9 June
2021,
Delivers the following decision, which was adopted
on the latter date:
1. By letter
of 3 December 2019, the Chair of the Council of Europe’s Committee on Bioethics (“the DH-BIO”) informed
the President of the European
Court of Human Rights (“the Court”) of that Committee’s decision, taken in its composition restricted to the
representatives of the Parties to 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 (“the Oviedo Convention”), to seek an advisory opinion from the Court pursuant
to the procedure laid down in Article
29 of that Convention. The request
was worded as follows:
“In accordance
with Article 29 of the Convention on Human Rights and Biomedicine (ETS no. 164, “Oviedo Convention”),
the Committee on Bioethics, in its
composition restricted to the representatives
of the Parties to the Oviedo Convention, requests the
European Court of Human Rights
to give an advisory opinion
on the following legal questions
concerning the interpretation
of the Oviedo Convention, having regard
to the European Convention on Human Rights, the relevant case law of the European Court of
Human Rights, and the Oviedo Convention:
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 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?”
2. The DH-BIO provided the following explanation
for its request:
“Both questions aim at
clarifying certain aspects of the legal interpretation of Article 7
of the Oviedo Convention, with a view to informing the current and future
work of the DH-BIO in the area.
Question 1: Has the aim of achieving clarity, based on the Court’s body of relevant case-law, regarding the requirements that the protective conditions referred to in Article 7 have to comply with in order to effectively safeguard the concerned person’s human rights and to protect his/her integrity.
Question 2: Article 7 of the
Oviedo Convention expressly limits
involuntary treatment of a person
with mental disorder to cases
where such treatment is necessary to prevent serious harm to that person’s
own health. Thus, Article 7 does not provide for involuntary treatment where such treatment may be necessary to prevent serious harm to others.
According to para. 151 of the Explanatory
report to the Oviedo Convention, “A person who may, due to his or her mental
disorder, be a possible source of serious
harm to others may, according to the law, be subjected to a measure of confinement or
treatment without his or her consent. Here, in addition to the cases contemplated in Article 7, the restriction may be applicable in order to protect other people’s rights and freedom.”
Question 2 aims at clarifying the protective conditions applicable when involuntary treatment is exceptionally allowed in order to
protect others from serious harm, as
compared to the protective conditions referred to in Article 7.”
3. In the absence
of rules specifically governing
proceedings of this nature,
the President decided that Chapter IX of the Rules of
Court should be applied per
analogiam. By letter of
23 June 2020, the Registrar informed
the Contracting Parties to the European
Convention on Human Rights (“the Convention”) of the possibility of making written submissions on the request (Rule
84 § 2). The Contracting Parties were
invited to address the question of the Court’s jurisdiction, to give their comments on the request of the DH-BIO, and to provide
information about relevant domestic law and practice, indicating notably whether a person suffering from a serious mental disorder could be subjected to treatment without their consent
aimed at protecting others from serious harm, and if so whether this
found a basis in Article 26 § 1 of the Oviedo Convention.
4. Submissions
were received from the
Governments of Albania, Andorra, Armenia, Azerbaijan, Cyprus, the Czech Republic, Estonia, Finland,
France, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, the Netherlands, Norway, Poland, Portugal, Romania, the Russian Federation,
Slovenia, Switzerland, Turkey
and Ukraine. These submissions
were transmitted to the
DH-BIO and to all of the Contracting
Parties (Rule 85 § 2, per analogiam).
5. The President
granted leave to the
following civil society organisations
to intervene in the proceedings:
Validity; the International Disability
Alliance, the European Disability
Forum, Inclusion Europe, Autism
Europe and Mental Health Europe (jointly);
and the Center for the Human Rights of Users and Survivors of Psychiatry. Their written comments
were transmitted to the
DH-BIO and to all of the Contracting
Parties. The intervening organisations
also received copies of the
Contracting Parties’ submissions
(Rule 44 §§ 3-6, per analogiam).
6. The request
was allocated to the Grand
Chamber of the Court. The composition of the Grand
Chamber was determined in accordance with the provisions of
Article 26 of the Convention and Rule 24, mutatis mutandis.
- The Oviedo
Convention and its drafting
history
7. The Oviedo Convention, opened for signature on 4 April 1997, was
drafted with the intention
of providing a common framework for the protection of human rights and
human dignity in both longstanding and developing areas concerning the application of biology and
medicine. As is clear from its text, particularly its title, its
preamble and its purpose and object as stated in its
Article 1, there is much in common between the Oviedo Convention and the Convention. In this regard the Explanatory Report to the Oviedo Convention states (at paragraph
9):
“The two
Conventions share not only
the same underlying approach but also
many ethical principles and legal concepts. Indeed, this Convention elaborates some of the principles
enshrined in the European
Convention for the Protection of Human Rights.”
8. The Oviedo Convention entered into force on 1 December 1999, following the requisite number
of ratifications (five, all of which were
member States of the Council
of Europe – Article 33 § 3). At the date of adoption
of the present decision,
the following 29 States were party to the Oviedo
Convention: Albania, Bosnia and Herzegovina,
Bulgaria, Croatia, Cyprus, the Czech
Republic, Denmark, Estonia, Finland,
France, Georgia, Greece, Hungary,
Iceland, Latvia, Lithuania, Montenegro, North Macedonia, Norway,
Portugal, the Republic of Moldova, Romania, San Marino, Serbia, Slovakia, Slovenia, Spain, Switzerland and Turkey. The non-member States of the Council of
Europe that participated in
the drafting of the Oviedo Convention and also the European Union may ratify it
(Article 33 § 1), as may any other
third State in accordance
with the procedure laid down in Article
34. To date, no such State has
done so.
9. Article 29 of
the Oviedo Convention provides:
“Article 29 – Interpretation of the Convention
The European
Court of Human Rights may give, without direct
reference to any specific proceedings pending in a court, advisory
opinions on legal questions
concerning the interpretation
of the present Convention at
the request of:
– the Government of a Party,
after having informed the other Parties;
– the Committee set up by Article 32, with membership restricted to the Representatives of the Parties to this
Convention, by a decision adopted
by a two-thirds majority of
votes cast.”
10. Article 31 of
the Oviedo Convention provides, as
relevant:
“Article 31 – Protocols
Protocols may be concluded in pursuance of Article 32, with a view to developing, in specific fields,
the principles contained in
this Convention.
...”
11. Article
32 of the Oviedo Convention provides, as relevant:
“Article 32 – Amendments to the Convention
1 The tasks assigned
to "the Committee" in the present article and in Article 29 shall be carried out by the
Steering Committee on Bioethics (CDBI), or by any other committee designated to do so by the Committee of Ministers.
2 Without prejudice to the specific provisions of Article 29, each member State of the Council of Europe, as well as each
Party to the present Convention which
is not a member of the Council of Europe, may be represented and have one vote in the Committee when
the Committee carries out the tasks assigned to it by the present Convention.
...”
Following the reorganisation
of intergovernmental bodies at
the Council of Europe, the abovementioned
Steering Committee on Bioethics was
replaced, as from 1 January 2012, by the DH-BIO, which
since that date has been the designated
committee within the meaning
of Article 32 § 1 of the Oviedo Convention.
12. As
the present request represents the first use of the Article
29 procedure, the Court finds it
relevant to refer to the drafting history of this provision.
13. The travaux
préparatoires (published
by the Council of Europe with the reference
CDBI/INF (2000) 1) indicate that the idea of conferring on the Court a role in
relation to what was to become the Oviedo Convention was initially discussed with representatives of the Court, among
others, in mid-1994. In that
initial discussion, the representatives of the Court took
a favourable view of a possible interpretative role for
the Court (op. cit., p. 118). In 1995, the Parliamentary
Assembly of the Council of Europe adopted
Opinion 184 on the draft bioethics convention in which it proposed
the creation of “a monitoring body in connection with
the European Court of Human Rights”,
tasked with observing the application of the new convention and also
its interpretation. The drafters of the convention prepared
the following draft provision (then
Article 28 of the draft convention):
"Parties to this
Convention member States of the Council
of Europe [and the European Community] may declare at
any time that they accept the jurisdiction of the European
Court of Human Rights to give
a ruling on the interpretation of [certain provisions of] the present Convention at the request of:
- the Government of a Party
[or of the European Commission if
the Community is a Party]
- any
court or tribunal of a Party for a preliminary ruling
- the Committee of Ministers of the Council of
Europe."
14. The Court responded
to this proposal with an
opinion of 6 November 1995 (Cour (95) 413). It generally welcomed
the draft, observing that
“[t]he object and purpose
of this convention is wholly in keeping with the Convention, whose
philosophy and some of whose
legal concepts it shares.”
It continued:
“Several of
the draft convention’s provisions,
and notably the concepts it
shares with the Human Rights Convention, are particularly open to divergent interpretations. It is therefore understandable
that the drafters should have wished
to establish a system capable
of providing a uniform interpretation of those provisions that would be regarded as authoritative by all the Contracting States. Entrusting this role to the European Court of
Human Rights is a means of ensuring that this goal is attained and at the same time of avoiding divergencies in the understanding and interpretation
of concepts that are common to the bioethics convention and the Convention on Human Rights.”
The Court stated
that it was
in favour of the principle
of assuming an interpretative function
in this field but considered that the proposal for a system of preliminary
rulings was not
appropriate. It specified that there should
be no link between a request
for interpretation and any specific case pending before a national court; a provision
to this effect “would appreciably reduce the risk
of an interpretation that might hamper the Court at a later stage if it was
called upon to rule under
the Human Rights Convention on the facts of the case that had prompted the request ...”.
15. Instead of
the phrasing proposed (“to give a ruling on an interpretation
of [certain provisions of]
the present Convention”), the Court suggested a wording similar to that used in Article 1 of Protocol No.
2 to the Convention (now Article
47 of the Convention): “without direct
reference to any specific proceedings pending in the national courts
... advisory opinions on legal
questions concerning the interpretation of [certain provisions of] the present
Convention”. This formulation
was accepted by the drafters, although without the words within square brackets, it being agreed
that as the procedure would be limited to legal questions, it should
be possible to allow consultation on any legal question of relevance to the Convention. Certain
other changes were made to the text on which
the Court was consulted (see CDBI/INF (2000) 1, pp. 119-120) but
these are not significant for present purposes. The final wording of the text was adopted by a large majority of
the delegates (25 votes in favour, 1 against and 8 abstentions). The travaux do
not indicate the reason for
the vote against or the abstentions.
16. Article
7 of the Oviedo Convention, which is
the subject of the first question
posed, appears in Chapter II of the treaty, which deals with consent. That Chapter
first lays down a general rule on consent
as follows:
“Article 5 –
General rule
An intervention
in the health field may only
be carried out after the person
concerned has given free and informed consent to it.
This person shall beforehand be given appropriate information as
to the purpose and nature of the intervention
as well as
on its consequences and
risks.
The person concerned may freely
withdraw consent at any time.”
Article 7 establishes an exception to the above general
rule. It provides:
“Article 7 – Protection of persons who have a mental
disorder
Subject to protective conditions prescribed by law, including supervisory,
control and appeal procedures, a person
who has a mental disorder of a serious
nature may be subjected, without his or her consent, to an intervention aimed at treating his
or her mental disorder only where, without
such treatment, serious harm is likely
to result to his or her health.”
17. The drafting
history of this provision, as relevant to the question posed, can be summarised as follows. The travaux préparatoires (see CDBI/INF (2000) 1, pp. 38-41) indicate the drafters’ intention to make provision for the problem of patients suffering from a mental illness who were required
to undergo compulsory
treatment for that illness.
The provision would enable doctors to disregard a person’s refusal to undergo the intervention in question, but only
in relation to the treatment of the particular
disorder when there was a serious risk to health, and
on the basis of respect for
the protective conditions defined by national law. A proposal was made in the discussions that the text specifically envisage the involvement of a court ordering diagnosis or treatment, and that
the protective conditions
include monitoring and appeal procedures. The idea of
referring to court intervention
was not accepted.
It was further
suggested that consideration be given to
Committee of Ministers Recommendation
No. R (83) 2 concerning the legal
protection of persons suffering from a mental disorder placed as involuntary
patients. This text, which at the time of drafting the Oviedo Convention represented
the current Council of
Europe standard in the matter, contains
a set of rules laying down safeguards
that States were recommended to follow. Mention is made of this Recommendation, along with certain relevant texts from other sources, in paragraph 55 of
the Explanatory Report to the Oviedo Convention. In
the course of the discussion,
doubt was expressed at one stage about the added value of Article 7 of this convention. This view was not
accepted by the majority of
delegates, who regarded the provision as necessary in that the number of cases in which the disorder could be treated without the person’s consent was limited by the subjection of treatment to precise conditions.
It would protect both the health of the individual as well
as their autonomy. The wording finally retained of “protective conditions prescribed by law, including supervisory, control and appeal procedures” emerged at a meeting held in September 1995. Subsequently, the
suggestion of some delegates
that the provision be removed pending progress with other work that was then being
done by the Council of
Europe on psychiatry and human rights
was not accepted,
the large majority of delegates
taking the view that it was
necessary for this provision to appear in the
convention. Article 7 was adopted as a part of the final text of the Oviedo Convention by the Committee of Ministers on 19 November 1996.
18. The Explanatory
Report to the Oviedo Convention states, as relevant for present purposes:
“54. ... The article
is concerned only with the risk to the patient’s
own health, whereas Article 26 of the Convention permits
patients to be treated against their will
in order to protect other people’s rights and freedoms (for example, in the
event of violent behaviour).
On the one hand, therefore, the article
protects the person’s
health (in so far as treatment of the mental disorder without consent is allowed
when failure to administer the treatment would seriously harm the person’s health), and on the other
hand it protects their autonomy (since treatment without consent is prohibited
when failure to administer the treatment represents
no serious risk to the person’s
health).
55. The last condition
is that the protective conditions laid down in national law must be
observed. The article specifies that these conditions must include
appropriate supervisory, control and appeal procedures,
such as mediation
by a judicial authority. This
requirement is understandable in view of the fact that it
will be possible for an intervention to be carried out on
a person who has not consented
to it; it is therefore necessary
to provide an arrangement for adequately
protecting the rights of that person. In this connection, Recommendation
No. R (83) 2 of the Committee of Ministers of the Council of Europe concerning the legal protection of persons suffering from mental disorder placed as involuntary patients establishes a number of principles which must be respected during psychiatric treatment and
placement. The Hawaii Declaration of the World Psychiatric Association of 10 July
1983 and its revised versions and the Madrid Declaration
of 25 August 1996, as well as Parliamentary Assembly Recommendation 1235 (1994) on psychiatry
and human rights, should also be mentioned.”
19. Article
26 of the Oviedo Convention provides:
“Article 26 – Restrictions on the exercise of
the rights
1. No restrictions shall be placed on the exercise of the rights and protective provisions contained in this Convention other than such as
are prescribed by law and
are necessary in a democratic
society in the interest of public safety,
for the prevention of crime, for the protection of public health or for the protection
of the rights and freedoms
of others.
2. The restrictions
contemplated in the preceding
paragraph may not be placed on Articles 11, 13, 14, 16, 17, 19, 20 and 21.”
20. The drafting
history of this provision, as recorded in CDBI/INF (2000) 1,
charts the discussions that
took place over the choice
of grounds permitting States to apply
restrictions. The drafters took as their
point of departure the terminology
used in the Convention, and in particular
Article 8, in order to show the links between the two texts. During the process, representatives of the Convention organs
gave their advice on the relevance and suitability of the various
grounds mentioned in Article
8, leading the drafters to agree on the narrower list that now appears
in Article 26. The drafting
history also explains that it was
considered preferable to have a general provision permitting the restriction of rights, with specified exceptions, instead of providing for this on an article-by article basis.
21. Regarding this provision, the Explanatory Report
to the Oviedo Convention states, as
relevant for present purposes:
“148. This article lists the only possible exceptions to the rights and protective provisions contained in all the provisions of the
Convention, without prejudice
to any specific restrictions which this or that Article
may involve.
...
151. A person who may, due to his or her mental
disorder, be a possible source of serious
harm to others may, according to the law, be subjected to a measure of confinement or
treatment without his or her consent. Here, in addition to the cases contemplated in Article 7, the restriction may be applicable in order to protect other people’s rights and freedom.
...
155. The protection
of the patient’s health is not mentioned in this paragraph as one of the factors justifying an exception to the provisions of the Convention as a
whole. In order to clarify its scope, it seemed
preferable to define this exception in each of the provisions expressly alluding to it. Article 7, for example, specifies the conditions on which individuals suffering from mental disorders may, without their consent,
be given treatment if their health might seriously suffer otherwise.
...”
22. Article
27 of the Oviedo Convention provides:
“Article 27 – Wider protection
None of the provisions
of this Convention shall be
interpreted as limiting or otherwise affecting the possibility for a
Party to grant a wider measure of protection with regard to the application of biology and medicine than is stipulated in this Convention.”
- Other relevant Council of Europe
texts
23. In 2004 the Committee of Ministers adopted Recommendation No. REC(2004)10 to member
States concerning the protection
of the human rights and dignity
of persons with mental
disorder. Chapter III of the Recommendation
concerns involuntary
placement in psychiatric facilities, and involuntary treatment, for mental
disorder. It sets out a series
of criteria, standards and rights
that States should respect in such situations. Of relevance for present purposes is the second criterion that appears under Article 17.1:
“A person may be subject to involuntary placement only if all the following conditions are met:
...
ii. the person’s
condition represents a significant risk of serious harm to his or her health or to other persons.
...”
The same criterion is specified
in Article 18, which concerns involuntary treatment.
- The draft Additional Protocol concerning
the protection of human rights
and dignity of persons
with mental disorder with regard
to involuntary placement and involuntary
treatment
24. Article
31 of the Oviedo Convention envisages the elaboration of Protocols “with a view to developing, in specific fields, the principles contained in this Convention” (see paragraph 10 above). As stated
in its Explanatory Report,
the Oviedo Convention sets out only the most important principles. Additional standards
and more detailed questions
should be dealt with via Protocols (see paragraph 7 of the Explanatory
Report). To date, three Additional
Protocols have been concluded, concerning transplantation of organs and tissue of human origin[1], biomedical research[2], and genetic testing for
health purposes[3].
25. In 2018, a draft Additional Protocol concerning
the protection of human rights
and dignity of persons with
mental disorder with regard
to involuntary placement and involuntary
treatment was published (see DH‑BIO/INF (2018) 7, dated
4 June 2018), followed by its draft explanatory report (see DH-BIO/INF (2018) 8, dated 15
June 2018). Its purpose, as stated
in its penultimate preambular provision, is to clarify the standards of protection applicable to the use
of involuntary placement and involuntary
treatment. The object of the draft instrument, stated in its Article 1, is that the Parties “protect the dignity and identity of persons with mental disorder and guarantee, without discrimination, respect for their integrity and other rights and fundamental freedoms with regard to involuntary placement and involuntary
treatment”.
26. As
further explained in the
draft explanatory report, the aim
is “to specify and develop the standards of human rights
protection applicable to
the use of involuntary measures,
based, in particular, on
the case-law of the European
Court of Human Rights, in a legally
binding instrument” (paragraph 1). The draft Additional
Protocol intends to “complement
and extend” the provisions
of the Oviedo Convention (paragraph 4).
27. The draft Additional Protocol draws on the content of Committee of Ministers
Recommendation No. REC(2004)10 (mentioned
in its sixth preambular paragraph; see at paragraph
23 above).
28. The draft Additional Protocol has met with opposition from various quarters and has been strongly criticised
as incompatible with the obligations flowing from the UN
Convention on the Rights of Persons
with Disabilities. Opposition
to it has come from, among others, the Parliamentary Assembly of the Council
of Europe, the Council of Europe Commissioner
for Human Rights, the Committee on the Rights of Persons with Disabilities of the United Nations, and from civil society.
II DECISION OF THE COURT
29. This
being the first occasion on
which use is made of the
procedure provided for in Article
29 of the Oviedo Convention, the Court considers it appropriate to first consider,
in general terms, the question
of its jurisdiction in
relation to that instrument.
It will then
clarify the nature, scope and limits
of that jurisdiction, and
in light of that rule on its
competence in respect of the present
request.
- Relevant legal framework
30. In addition
to Article 29 of the Oviedo Convention (set out at paragraph 9 above), it is
necessary to have regard to the following provisions
of the European Convention on Human Rights.
31. Article
19 of the Convention establishes the Court, and defines its function
thus:
“To ensure the
observance of the engagements undertaken
by the High Contracting Parties in the Convention and
the Protocols thereto, there shall be set up a European Court of Human Rights
...”
32. The jurisdiction
of the Court under the Convention is set by Article 32 in the following terms:
“1. The jurisdiction
of the Court shall extend
to all matters concerning the interpretation and
application of the Convention and the Protocols thereto which are referred to it as provided
in Articles 33, 34, 46 and 47.
2. In the event of dispute as to whether the Court has jurisdiction, the Court shall decide.”
33. Article
47 of the Convention provides, as
relevant:
“1. The Court may, at the request
of the Committee of Ministers, give
advisory opinions on legal questions concerning the interpretation of the Convention and the Protocols thereto.
2. Such
opinions shall not deal with any question
relating to the content or
scope of the rights or freedoms
defined in Section I of the
Convention and the Protocols thereto,
or with any other question which the Court or the
Committee of Ministers might
have to consider in consequence of any such proceedings as could be instituted
in accordance with the Convention.
...”
34. The Court’s
jurisdiction in this respect is defined
by Article 48, which provides:
“The Court shall
decide whether a request
for an advisory opinion submitted
by the Committee of Ministers is
within its competence as defined in Article
47.”
35. As explained above, when consulted during the process of drafting the Oviedo Convention about
its potential role under that instrument, the Court suggested that it be modelled
on its existing advisory jurisdiction, at that time conferred
by Protocol No. 2 to the Convention in terms essentially identical to those of the current Article 47 § 1 (see paragraph 15 above).
36. In addition
to the above types of jurisdiction that are set out in
the Convention, the Court also has
advisory jurisdiction by virtue of Protocol No. 16, which
States may choose to accept and whose provisions are regarded as additional articles
to the Convention. This advisory
jurisdiction, which came into being
on 1 August 2018, concerns questions
of principle posed by highest courts and tribunals relating to the interpretation or application of
the rights and freedoms defined in the Convention or the protocols
thereto (Article 1 § 1 of this Protocol). The objective pursued by this Protocol is to enhance the interaction, notably in the form of judicial dialogue, between the Court and national authorities,
thereby reinforcing implementation of the Convention in accordance
with the principle of subsidiarity.
The limits of this exercise are expressly set by the
Protocol, particularly that
an advisory opinion can only
be sought in the context of
a case pending before the requesting court, which must provide the Court with the relevant
legal and factual
background of that case (Article
1 §§ 2 and 3 of this Protocol). The Court has confirmed that
its advisory opinions delivered under this Protocol
must be confined to points that
are directly connected to
the proceedings pending at domestic level
(see Advisory
opinion concerning the recognition
in domestic law of a legal parent-child relationship between a child born through
a gestational surrogacy
arrangement abroad and the intended
mother, P16-2018-001, § 26, 10 April 2019,
and Advisory opinion concerning the use of the "blanket reference"
or "legislation by reference"
technique in the definition of an offence
and the standards of comparison between
the criminal law in force at the time of the commission of
the offence and the amended
criminal law,
P16-2019-001, §§ 44 and 47, 29 May 2020). In this context, the Court has held that
it cannot deal with questions of Convention
law that are abstract and
general in nature (ibid., § 55).
- Observations received from Governments regarding
the Court’s jurisdiction
and competence
37. The argument that, as a matter of principle, the Court does not have jurisdiction
to interpret the Oviedo Convention was made by the Governments of Andorra, Azerbaijan, Poland,
Russia and Turkey (the last of these
being a Party to the Oviedo Convention). The position
taken was that the Court’s jurisdiction is governed exclusively by the
Convention and is therefore
restricted, ratione materiae, to the Convention and the Protocols thereto. For it to be granted any further jurisdiction,
an amendment of the Convention or a new Protocol thereto would be required. It could
not be done by a separate treaty, even one as closely connected,
in terms of purpose and substance, as the Oviedo
Convention. Moreover, the only
body permitted to seek an advisory opinion from the Court is
the Committee of Ministers. Reference was made in this context to Article 34 of the
Vienna Convention on the Law of Treaties
(“the Vienna Convention”), which lays
down the general rule that a treaty
does not create either obligations or rights for a third State without its consent.
Accordingly, any perceived normative gaps should
be filled by means of an amending or additional protocol, not by interpretation. It was further argued
that although it purported to confer advisory jurisdiction on the Court, the Oviedo Convention failed to specify the procedure
to be followed, a deficiency
that could not be made good by adapting the
Rules of Court. The relevant procedural
modalities should have been laid
down in the Oviedo Convention, so that they would have
the express agreement of States.
38. A greater
number of intervening
Governments accepted that
the Court does indeed, in principle, have jurisdiction in relation to the Oviedo Convention. This was the position of the
Governments of the Czech Republic, Estonia, Finland, France, Italy, Latvia,
Luxembourg, the Netherlands, Norway, Portugal,
Romania and Ukraine (8 of these 12 States being Parties to the Oviedo Convention). The Government of
Lithuania considered that
the issue was a matter for the Court’s discretion. The submissions made
can be summarised as
follows. It was argued that the relevant provisions of the
Convention, cited above, should be seen as regulating the Court’s jurisdiction only in relation to the Convention itself
and the Protocols thereto. They did not
exclude the conferral of a distinct function on the Court by
another treaty concluded within the Council of Europe, in particular
one as closely related to the Convention as the
Oviedo Convention, which the Court itself had already
referred to in a number of judgments. Article 29 clearly expressed the drafters’ intention to entrust the task of interpreting
the Oviedo Convention to the Court, for good reasons that were readily
apparent from the drafting
history of that provision.
The Court itself had been favourable to assuming such a function. The Parliamentary
Assembly had also wished in 1995 to see a role for the Court. Indeed, during the negotiation of the
Oviedo Convention there had
been widespread support for
its Article 29. The adoption
of the final text by the Committee of Ministers was a clear indication that Council of Europe member States as a whole, i.e. all of the Contracting Parties to
the Convention, accepted this
additional function for the
Court. By ratifying the Oviedo Convention, 29 Council of Europe member States had formally accepted
the Court’s interpretative jurisdiction
under Article 29 of that treaty, and this was without effect
on the position of the remainder of the Contracting
Parties to the Convention. Nor did
it affect the provisions of the Convention, the Court not
having been granted any contentious
jurisdiction under the Oviedo Convention. The argument was made that Article 29 should be seen as a relevant rule of
international law within
the meaning of Article 31 §
3 (c) of the Vienna Convention. It was further submitted
that the relationship between the two conventions in this respect was
governed by Article 30 of
the Vienna Convention, on the application of
successive treaties relating
to the same subject-matter,
given the close substantive connection between them. Therefore, the strict limits applied
to the Court’s advisory jurisdiction under Article 47 of
the Convention, clearly justified
in that particular context, should not be read into
Article 29 of the Oviedo Convention. Otherwise, the clear intention of
the drafters of the latter treaty would be ignored, and the effectiveness of
Article 29 would be undermined.
39. Eight
Governments made reference to the limitation
laid down in Article 47 § 2
of the Convention on the scope of the Court’s
competence. It was argued by some that the questions posed by the DH-BIO were incompatible with this restriction, since they concerned
matters that had already arisen
often before the Court in
the context of contentious proceedings, and were likely to continue to do so. For this
reason, the Court should
conclude that it lacked the competence to accept
the request, as the limitation in Article 47 § 2 must
be respected in the present
context as well (position of the Governments of Armenia, Greece, Poland and Turkey).
Others considered that the request should not be automatically rejected for this reason. Rather, the Court should ensure that
its reply was formulated in such a way as not
to interfere with its functions under the Convention (position of the Governments
of the Czech Republic, Italy,
Norway and Ukraine).
- Observations received from the intervening
organisations regarding
the Court’s jurisdiction
and competence
40. One of the intervening organisations, Validity, addressed the issue of the Court’s competence. It considered that
the Court should apply Article 47 of the Convention, by analogy
or even directly. On this basis, the request should be considered as falling
outside the Court’s
competence, since it was not compatible
with either of the conditions
laid down in Article 47 §
2, as it related to the scope and content
of a series of Articles of
the Convention and also related
to questions which the
Court had already examined in numerous cases, and would have frequent occasion
to do so again in future. Thus,
any opinion provided by the
Court would prejudice its later consideration
of cases raising such questions under Article 34 of the Convention.
- The Court’s assessment
- The Court’s jurisdiction under Article 29 of the Oviedo Convention
41. Article
29 of the Oviedo Convention seeks to grant the Court jurisdiction to interpret that instrument. It is not unprecedented
for an international court to have, alongside its contentious
jurisdiction, a wide advisory
function extending beyond its principal
treaty. The examples of the
Inter-American Court of Human Rights and the African Court on Human and Peoples’ Rights
may be given here. The advisory jurisdiction of each court extends beyond the principal human rights treaty in the respective system, taking in certain other human rights instruments. In contrast with the
Court, though, such jurisdiction is expressly provided for in their constitutive instruments (Article 64 of the
American Convention on Human Rights; Article 4 of the Protocol to the African
Charter on Human and Peoples’ Rights on the
Establishment of an African Court on Human and
Peoples’ Rights).
42. The
Court’s constitutive
instrument is the
Convention, which determines
its function and its jurisdiction through Articles 19, 32, and 47 (see also Decision
on the competence of the Court to give an advisory opinion, 2 June
2004, § 26). The Convention is silent
regarding any jurisdiction for the Court outside
of the Convention system. It has
been argued by some of the
Governments intervening in these
proceedings that the abovementioned provisions of the
Convention form the sole and exclusive
basis for the jurisdiction
of the Court, ruling out any other
function under any other treaty, unless
expressly provided for via an
amendment of the Convention or a new Protocol thereto. The Court does not share this view. For while it is indisputable
that, in relation to the Convention and the Protocols thereto, the Court’s jurisdiction is governed by the abovementioned provisions, these do not expressly
preclude, nor is 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. This position is
also taken by the majority of those intervening Governments that addressed the issue. As the Court has often stated, the Convention cannot be interpreted in a vacuum
(see, among many others, S.M. v. Croatia [GC], no. 60561/14, § 287, 25 June 2020). In keeping with its longstanding practice, which reflects the rule laid down in Article 31 § 3(c) of
the Vienna Convention, in interpreting the Convention
it must 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 this
interpretative principle has
mostly been applied to the substantive provisions of the Convention, the Court considers
that it is
not without relevance to other types of provision, including the provisions on the jurisdiction of the Court. Furthermore,
it attaches significance to the fact that although the Oviedo
Convention has not been ratified by all 47 Contracting Parties to the
Convention, as a Council of
Europe treaty it received the approval of the
Committee of Ministers, which
adopted the text on 19 November 1996.
43. Moreover,
as emerges from the drafting history of Article 29, there was a common understanding among the relevant institutions that the intended advisory role for the Court was both legitimate and justified (see paragraph 13 above).
44. The Court itself was receptive
to this in its 1995 opinion
on the draft version of the Oviedo Convention (see paragraph 14 above), in which it underlined the significant degree of common ground between
this instrument and the
Convention. The Oviedo Convention numbers among the human rights treaties concluded within the framework of the Council
of Europe, pursuing the Council’s
statutory aim of achieving greater unity between the member States through the maintenance and further realisation of human rights and fundamental freedoms. It was considered
at that 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 these concepts and avoid divergent interpretations of them under each convention.
45. As
to the argument advanced by
one Government with reference to the absence from the Rules of Court of specific
procedural rules governing
the present procedure (see paragraph 37 above), the Court observes that this
is not determinative of the
question of its jurisdiction under Article 29 of
the Oviedo Convention. Nor does
it pose any particular difficulty; given the silence of the Oviedo
Convention in this respect,
it is for the Court to regulate the procedure, by analogy
with Article 25(d) of the Convention, which confers rule-making power
on the Court alone.
46. To conclude on this
first issue, in view of the
absence of conflict between the relevant provisions of both legal instruments, and also of the agreement of the Contracting
States as expressed by the
Committee of Ministers when
adopting the Oviedo Convention, the Court considers that the Convention does not preclude the granting of jurisdiction to it by the Oviedo Convention. Accordingly,
the Court recognises that it has jurisdiction
to give advisory opinions
under Article 29 of the Oviedo Convention. It will now
determine the nature, the scope and the limits of that jurisdiction, both as regards the Oviedo Convention itself as well
as relative to its jurisdiction under the Convention.
- The nature,
scope and the limits of the Court’s
advisory jurisdiction
under Article 29 of the Oviedo Convention
47. 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
is necessary to establish the meaning of these terms in the context in which they are used. In this respect, the Court finds it appropriate to refer once again to the drafting history of this provision. As noted
above (see paragraph 15), the terminology of
Article 29 can be clearly traced to the opinion given by
the Court in 1995, in which it
expressly drew on the wording of what is now Article
47 § 1 of the Convention. Consequently, the meaning of the terms used should be the same in both contexts.
48. The Court has already had
occasion to clarify the
nature of its advisory jurisdiction under the Convention, observing
that, with reference to the
relevant travaux
préparatoires, the use of the adjective
“legal” in Article 47 § 1 denotes 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 [GC], §§ 19 and 36, 12 February 2008). This point is further developed
in the Explanatory Report to Protocol No. 2, according to which the term “legal questions”
rules out questions which would go beyond the mere interpretation of the text and tend
by additions, improvements
or corrections to modify its substance (see paragraph 6 of the Explanatory Report). In light of the provenance
of Article 29 of the Oviedo Convention, the Court considers that a request under that provision is subject
to a similar limitation. Any questions posed
under this provision must therefore be of a “legal” nature.
49. With reference
to the other terms used in Article 29 – “interpretation”, “present
Convention” – the Court would further
clarify its methodological approach by noting that this
procedure entails an exercise
in treaty interpretation, applying the methods set out in Articles 31-33 of the Vienna Convention. These same provisions
have long guided the Court
in its elucidation of the meaning of the Convention through
the exercise of its contentious jurisdiction (see, among many
others, Magyar Helsinki Bizottság
v. Hungary [GC], no. 18030/11, §§ 118-125, 8 November 2016). However,
the Court has in addition continuously emphasised the Convention’s special character as a treaty for the collective enforcement of human rights
and fundamental freedoms (see, among many
others, Soering
v. the United Kingdom, 7 July 1989, § 87, Series
A no. 161, and also Slovenia v. Croatia (dec.) [GC],
no. 54155/16, §§60 and 67, 18 November 2020). Indeed, it has
underlined the unique character of the Convention as a constitutional instrument of European public order in the field of human rights (see, among
others, Bosphorus
Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, § 156, ECHR 2005‑VI). This
leads the Court to treat the Convention, over the interpretation and application of
which Article 32 grants it full jurisdiction, as a living instrument to be interpreted in
the light of present-day conditions
(see, among many others, Khamtokhu and Aksenchik
v. Russia [GC], nos. 60367/08 and 961/11, § 73, 24 January 2017).
The Court underlines that this particular interpretative approach, which is integral to its contentious jurisdiction, must be regarded as specific to the Convention and
the Protocols thereto. There is no similar
basis in Article 29 to take
the same approach, which was already
well known at the time the Oviedo Convention was
drafted, in relation to the interpretation
of that instrument. Rather, it is
the “present Convention” that
the Court may be requested
to interpret. The Court observes
here that, compared to the Convention, the Oviedo Convention represents a different normative
model, being a framework instrument
setting out the most important
principles, to be developed
further with respect to specific fields though protocols (see Article 31 of the Oviedo Convention at
paragraph 10 above).
50. The Court considers
it appropriate to clarify
on this occasion the relationship between its advisory jurisdiction
under the Oviedo Convention and its jurisdiction – contentious and advisory – under the Convention. It
points out, firstly, that
in the Convention the relationship between the Court’s contentious and advisory jurisdictions is regulated by Article 47 § 2, which significantly limits the latter with respect to the former in two related ways. Thus, an advisory opinion cannot concern the content or scope of the rights
and freedoms set forth in Section I of the Convention (Articles
2-18) and the Protocols thereto.
Nor can it concern any other
question that the Court or
the Committee of Ministers might
have to consider in the context of possible proceedings under the Convention.
51. Regarding
the second limitation, the Court has
clarified its purpose as follows:
“The Court considers
that the purpose of the provisions excluding its advisory jurisdiction
is to avoid the potential situation in which the
Court adopts in an advisory
opinion a position which might
prejudice its later examination of an application brought under Articles 33 or 34 of the Convention and that
it is irrelevant
that such an application has not and may never
be lodged. In this
connection, it again refers to the travaux
préparatoires, in which
it was stated
that it was
necessary “to ensure that the Court shall never be placed in the difficult position of being required, as the result of a request for its opinion, to make a direct or indirect pronouncement on a legal point with which it might subsequently
have to deal as a main consideration
in some case brought before
it” (see CM(61)91). The Court
considers therefore that it suffices
to exclude its advisory jurisdiction that the legal question submitted to it is one which
it might be called upon to address in the future in the exercise
of its primary judicial function, that is in the examination of the admissibility
or merits of a concrete case” (Decision
on the competence of the Court to give an advisory opinion, 2 June
2004, § 33).
52. This purpose of Article 47 § 2 is formulated in very general terms and also reflected in the drafting history of the Oviedo Convention. As described above
(see paragraph 14), the initial proposal put to the Court
envisaged a preliminary reference procedure. The Court disagreed
with this idea. It explained in its opinion on the
draft text that such a role under the (future) Oviedo Convention could have an influence
on the exercise of its contentious jurisdiction under
the Convention. The Court could be hampered in its consideration of a case in relation to which
it had already
delivered a preliminary
ruling at the request of
the domestic court seised
of the matter. That feature
was subsequently omitted. The drafters also specified in the text of the
future Article 29 that a request for an advisory opinion
must be without direct reference to any specific proceedings pending in a court. This too was at
the suggestion of the Court, rooted
in the concern to reduce the risk of an interpretation that might hamper it
at a later stage if the request originated in domestic proceedings that subsequently led to an application
under the Convention. With a purely advisory function, responding to legal questions of interpretation, this pitfall would
be avoided. That concern remains pertinent. The Court therefore underlines that its advisory jurisdiction
under the Oviedo Convention must operate harmoniously
with its jurisdiction under
the Convention, above all
with its contentious jurisdiction, for that is its pre-eminent
function and must be carefully
preserved.
53. The advisory
jurisdiction that was subsequently conferred on the Court by Protocol No. 16 (see paragraph 36 above) is to be clearly distinguished from that granted by the Oviedo
Convention. Apart from the obvious
formal difference –
Protocol No. 16 being part of the set of
international treaties that
make up the Convention system –, the procedure introduced
by the Protocol serves the purpose
of reinforcing the implementation
of the Convention in concrete cases pending before national courts, having regard to their specific factual and legal circumstances, thereby enhancing the implementation of the principle
of subsidiarity which is now expressly
set forth in the Preamble
to the Convention. Given this
fundamental difference with
the two other bases of the Court’s advisory jurisdiction, Article 47 of the Convention and Article
29 of the Oviedo Convention, the limits which apply to the latter and which are designed to preserve the judicial function of the Court cannot apply in the same way to the Court’s jurisdiction under Protocol No. 16.
54. Having
affirmed that the relevant provisions of the
Convention do 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 is subject to the proviso that its jurisdiction
under its constitutive instrument remains unaffected. Without needing to take a conclusive stance
on certain arguments advanced before it based on the Vienna
Convention, the Court emphasises that
it cannot 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 (also
reflected in the drafting
history of Article 29), which
is to preserve its primary judicial
function as an international
court administering justice
under the Convention.
- The Court’s competence in respect
of the present request
55. Having
affirmed its advisory jurisdiction, in
general, under Article 29 of the Oviedo Convention,
and clarified its nature,
scope and the necessary limits
to it, the Court now turns
to determine whether it has competence to accept the request at hand, considering in turn the questions put to it.
56. To begin
with, the Court observes that
the request has been submitted by the designated committee within the meaning of Article 32 of the
Oviedo Convention, the DH-BIO. According to the
information provided, the request
was adopted by the DH-BIO
in its composition
restricted to representatives of the Parties to the
Oviedo Convention. In the absence of any mention of votes being cast to adopt the request, the Court will presume that the requisite majority (two-thirds of votes cast) was attained.
57. In keeping with Article 29, the request makes no direct reference to any specific proceedings
pending in a court.
58. It
remains to be determined whether the request respects the nature, scope and limits
of the Court’s advisory jurisdiction. The Court observes that Article 29 of the Oviedo
Convention does not make it a requirement that requests for advisory opinions be accompanied
by reasons or explanations.
However, in order for the Court to be in a position
to satisfy itself that it is
indeed competent to accept a request, it needs to consider
not only its wording and explanation, but also the background and context
of the request.
59. In this
respect, the Court notes the wording
of the first question (“... which
ʻprotective conditionsʼ
does a Member State need to regulate ...”) and the
general explanation provided
by the DH-BIO that its aim is to obtain
clarification “of certain aspects of the legal interpretation of Article 7 of
the Oviedo Convention, with a view to informing [its] current and future work in the area”. While
the request does not refer to the international discussion that has taken place in relation to
the draft Additional Protocol concerning
the protection of human rights
and dignity of persons with
mental disorder with regard
to involuntary placement and involuntary
treatment, that is a matter of public record.
(a) Observations
received from Governments
60. As
already noted above (see paragraph
39) some Governments considered that
the nature of the questions posed
was such that the Court was not competent to answer them, by virtue of Article 47 § 2 of the
Convention. Some other Governments provided, in relation to the first question,
various suggestions as to what “protective
conditions” should be regulated by the States Party to the Oviedo Convention. The
Czech Government identified
a number of general principles
that should be taken into account, such as those
of necessity, proportionality,
taking an individualised approach, and having recourse to involuntary interventions only as a last resort. They then suggested a series of safeguards that should be provided for in domestic law, inspired by relevant international texts, notably
Committee of Ministers Recommendation
No. REC(2004)10, and the draft Additional Protocol concerning the protection of
human rights and dignity of
persons with mental
disorder with regard to involuntary
placement and involuntary treatment. The Governments
of Estonia, Latvia and Poland (the latter only in the event that the Court recognised jurisdiction as such under Article
29 of the Oviedo Convention) considered that the Court’s reply should refer
to its pertinent case-law under the relevant provisions of the Convention, particularly
Articles 3, 5 and 8, these being directly relevant to the subject-matter at hand. They derived
a series of protective conditions from a number of judgments delivered by the Court.
The Government of the Netherlands put forward a series of aspects that it considered
important for domestic legislation to include, adding that national law should also leave
room for the exercise of professional
judgment in each individual case. The Government of Portugal observed that Article
7 of the Oviedo Convention leaves it
to each Party to determine
in detail the protective conditions that will apply where
a person is subject to an intervention without their consent.
The States therefore had a certain margin of appreciation in the matter. However, it considered
that the guidelines set out
in Committee of Ministers Recommendation
No. REC(2004)10 took on particular
importance in this context, notably Articles 21-25 of that instrument.
61. Regarding
the second question, most of
the intervening Governments indicated
that their domestic law provided
for involuntary interventions
in relation to persons suffering
from a mental disorder where
this was necessary to protect others from serious harm. Generally, such interventions were governed by the same provisions, and were subject to the same protective conditions as interventions
aimed at protecting the persons concerned from causing harm to themselves. It would be very
difficult in reality to try
to differentiate between
the two bases for involuntary intervention, given that many
pathologies posed a risk to
the person concerned and to
third parties alike. The
Government of the Netherlands observed that where the aim was the protection
of others, additional conditions may be necessary, giving the example of
the duty on medical staff to consult
with the relevant local
authority and the prosecution service before terminating involuntary treatment that was ordered on this basis. The Swiss Government clarified that under domestic law the protection of third parties was a factor to be taken into account when assessing whether to arrange for the involuntary treatment of a person,
but it was
not in itself a decisive consideration. Several of the
Governments stated the view
that Article 26 of the
Oviedo Convention permitted such
interventions, and that the
same “protective conditions” referred to in Article 7 should also apply in such
circumstances. There was no basis to consider that Article
26 contemplated different
standards or safeguards. The Government of Portugal submitted that the fact that the two
bases for intervention were regulated by different provisions reflected a well-known
legislative technique, the broader provision covering other, unspecified situations that justified taking the same action. The two provisions should be interpreted in a concerted manner.
(b) Observations
received from the intervening
organisations
62. The common theme of the three interventions received was that Articles
7 and 26 of the Oviedo Convention were not compatible with relevant contemporary norms as laid
down in the Convention on the Rights of Persons with a Disability (CRPD).
The very notion of imposing treatment without consent was contrary
to the CRPD, which had shifted the paradigm for the protection of the human rights of
persons suffering mental illness or psychosocial disabilities. As established by the UN
Committee on the Rights of Persons
with a Disability, such a practice went against
the principles of dignity,
non-discrimination and the liberty and security of
the person, and violated a series of CRPD provisions, in particular Article 14 of that instrument. That Committee consistently urged States to cease such practices and to repeal the laws permitting them. That position had been widely accepted
within the broader UN human
rights system, and also by
the World Health Organisation, which
had revised its relevant policies so as to reflect it.
The intervenors pointed to
the fact that all of the Parties to the Oviedo Convention had ratified the CRPD, as had all
but one of the 47 Contracting
States to the Convention.
63. Several
submissions were made about how the Court should respond to the request of the DH-BIO. It was argued that
Article 53 of the Convention was
relevant. This provision ensured that the Convention cannot serve as a reason to reduce the degree
of human rights protection afforded by domestic law or other international
agreements. Accordingly, the Court could not interpret
the Convention in a manner at
variance with the CRPD; the effect
should be the same in
relation to the Oviedo Convention. It was further submitted
that the CRPD should be regarded as the lex specialis in
this particular area. Therefore, to the extent that there was
any conflict between this instrument,
on the one hand, and the Convention and the Oviedo Convention on the other, the relevant provisions of the latter instruments should be disapplied, or at least interpreted in light of
the lex specialis.
It was also
argued that the CRPD should be recognised as a “successive treaty” within the meaning of Article 30 of the Vienna Convention, and so Article 7 of the Oviedo Convention should
be regarded as applying only to the extent that it
could be interpreted compatibly with the corresponding
provisions of the CRPD. The Court should
in any event strive for a harmonious interpretation between the corresponding provisions of the Convention, the Oviedo Convention and the
CRPD. Since the Court treated
the Convention as a living instrument,
interpreting it in light of
the relevant rules of international law applicable among the Contracting States, and
since it also had regard
to the consensus emerging from specialised
instruments, it should both align
its interpretation of the relevant Articles of the
Convention with the higher standard set by CRPD in this field, and then interpret the related provisions of the Oviedo Convention in like manner. It should
seek to avoid, to the greatest extent possible, any conflict
between these concurrently applicable
international treaties, and to reflect
the growing consensus in national law
and policy about the unacceptability
of involuntary treatment. The Oviedo Convention itself offered a pathway to resolving its conflict
with contemporary standards. By relying
on its Article 27, which allows for wider protection, and also on the fundamental principles referred to in Articles 1 and 5, it would be possible to conclude that Article 7 should now be regarded
as having no effect.
(c) The Court’s
assessment
(i) Question 1
64. The first question
posed by the DH-BIO asks
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 this provision, and
to do so in light of the objective of that treaty as
stated in its Article 1. The Court is also invited to have regard to the Convention and
to the relevant case-law in
giving the advisory opinion requested.
The DH-BIO has explained that the aim of the first question is to achieve clarity, based on the relevant case-law of the Court, about the conditions that must be complied with in order to effectively
safeguard the person’s
human rights and protect their integrity, with a view to informing the committee’s current and future
work in the area.
65. In the Court’s opinion, however, the “protective conditions” that member States “need to regulate to meet the minimum requirements of protection” under Article 7 of
the Oviedo Convention cannot be further
specified by a process of
abstract judicial interpretation.
For it is clear that this provision
reflects 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 this context.
In this respect, Article 7 stands in contrast to other, more detailed provisions of the same treaty, for example Articles 16, 17 and 20. The drafters
were evidently mindful of relevant, specific standards that existed at that
time, and that are acknowledged
in the Explanatory Report, in particular
the standards set by the Committee of Ministers in
non-binding form (see paragraph 55 of the Explanatory Report, set out above
at paragraph 18). Yet they refrained
from incorporating them in
the treaty (see the drafting history of this provision, summarised above at paragraph
17).
66. The wider
context of the treaty, or its object and purpose, do not lead to an interpretation of Article 7 in
the sense requested. The fundamental theme of the Oviedo
Convention is the protection
of the dignity and human rights
of the human being, reflected
in its full title, its preamble and its General provisions, in particular Articles 1 and 2. While this implies
regulating with great care
the circumstances and conditions
in which an exception may be made to the general rule of consent
to interventions in the health field set out in Article 5, and there were many suggestions
inspired by existing
national and international standards from the intervening
Governments which addressed
this point, Article 7 leaves a degree of latitude to
the States Parties. In the Court’s view, that cannot
be restricted by an interpretation of that provision by the Court in
the sense requested. As clarified above
(at paragraph 47), the jurisdiction of the Court in this
context is an
interpretative one. Its advisory
opinions may only relate to
“legal questions concerning the interpretation of
the present Convention”, to the exclusion
of matters of policy and of questions
which would go beyond the mere interpretation of
the text and tend by additions,
improvements or corrections
to modify its substance.
67. This
is also in keeping with the
Oviedo Convention’s general approach
concerning the further development of its standards in specific fields. The Oviedo Convention is
a framework treaty setting out the most important human rights and principles in the area
of biomedicine, to be further elaborated
and specified through additional protocols (Article 31 of the Oviedo Convention; see
paragraphs 10 and 49 above).
This is, 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 is, the Court understands, ongoing.
68. While
the DH-BIO intimated that
the Court should have regard to the Convention and to the relevant
case-law, as has been explained
above (at paragraphs 50‑52)
the Court’s advisory jurisdiction under the Oviedo Convention must operate in harmony with and preserve its jurisdiction under the
Convention, the limits of which
are not disapplied in the present context. Accordingly, the Court should not, as part of this exercise, interpret any substantive
provisions or jurisprudential
principles of the Convention. Even
though this procedure concerns 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 cannot take such an approach, which has the potential to hamper its pre-eminent
contentious jurisdiction
under the Convention. It follows a fortiori that the Court cannot, 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
CRPD, and then interpret Article 7 of the Oviedo Convention in like manner.
69. The Court would nevertheless make the
following observation, given
the common ground between the two
treaties that is particularly evident in the area that is the subject matter of the DH-BIO’s request. Despite the distinct character of the Oviedo
Convention, the requirements for States under its Article 7 will
in practice be concurrent
with those under the Convention, it
being recalled that at present
all of the States having ratified the former are also bound by the latter. Accordingly, the safeguards in domestic law that correspond
to the “protective conditions”
of Article 7 of the Oviedo Convention need 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. In relation
to the treatment of mental disorder, that case-law is
extensive. Moreover, it is characterised
by the Court’s dynamic approach to interpreting the
Convention, which in this
field is guided inter
alia by evolving legal
and medical standards, national and international. Therefore, the competent domestic authorities should ensure that,
as a minimum, national law is and remains fully consistent with the relevant standards under the Convention, including those that impose positive obligations
on States.
70. For the reasons
set out above, neither the
establishment of the minimum requirements for “regulation” under Article 7 of
the Oviedo Convention (Question 1), nor “achieving clarity” regarding such requirements based on the Court’s judgments and decisions concerning involuntary interventions in relation to persons
with a mental disorder (see
the explanation to Question
1) can be the subject of an advisory
opinion requested under Article
29 of that instrument. Question 1 is therefore
not within the competence
of the Court.
(ii) Question 2
71. As
for question 2, which
follows on from the first and is closely
related to it, the Court likewise considers that it is
not within its competence to answer it.
FOR THESE
REASONS, THE COURT, BY A MAJORITY,
Decides that
the request for an advisory
opinion under Article 29 of the Oviedo Convention is not within
its competence.
Done in English and in French and notified
in writing on 15 September 2021.
Johan Callewaert Robert Spano
Deputy to the Registrar President
In accordance with Rule 88 § 2 of the Rules of Court (per analogiam), the separate opinion of Judges
Lemmens, Grozev, Eicke and Schembri Orland is annexed to this
decision.
R.S.O.
J.C.
JOINT DISSENTING OPINION OF JUDGES
LEMMENS, GROZEV, EICKE AND SCHEMBRI ORLAND
1. To our
regret, we are unable to agree with the majority’s conclusion that the request for an advisory opinion is not within the Court’s competence.
In our
opinion, not only does the Court have jurisdiction to give advisory opinions under Article
29 of the Oviedo Convention – as acknowledged
by the majority – but there is also
nothing in the two questions referred to the Court that make them inadmissible for consideration by
the Court.
I. THE COURT’S JURISDICTION UNDER
ARTICLE 29 OF THE OVIEDO CONVENTION
2. While
we come to the same conclusion as the majority with respect to the Court’s advisory jurisdiction under the Oviedo Convention, we do so with much less hesitation.
The majority
test the Court’s jurisdiction
under the Oviedo Convention against the Court’s so-called “primary judicial function” under the European
Convention on Human Rights (“the Convention”). We think the Oviedo Convention should be interpreted more autonomously. The Oviedo Convention is
not a mere “annex” to the
Convention. It is a separate
instrument, with its own internal logic.
It is true
that there are substantial links with the Convention and that the Court is included within the institutional machinery of the
Oviedo Convention, but that
does not place the Oviedo
Convention hierarchically under the Convention. In our opinion, the Oviedo Convention’s
provisions are not subject to limitations that follow from the specific logic inherent in the Convention.
3. Article
29 of the Oviedo Convention gives the Court jurisdiction to give “advisory opinions on legal questions concerning the interpretation” of that
Convention, at the request
of the Government of a Party or a designated
committee, which is now the Council of Europe’s Committee on Ethics (“the DH-BIO”).
The text of that
provision is in our opinion very clear. Article 29 sets no limits to the Court’s jurisdiction. In particular, there are no limitations of the kind provided for in Article 47 § 2 of
the Convention with respect to “advisory
opinions on legal questions
concerning the interpretation
of the Convention and the Protocols thereto”, at the request of the Committee of Ministers.
Article 47 § 2 provides that “such opinions shall not deal
with any question relating to the content or scope
of the rights or freedoms defined in Section I of the
Convention and the Protocols thereto,
or with any other question which the Court or the
Committee of Ministers might
have to consider in consequence of any such proceedings as could be instituted
in accordance with the Convention”. This is perfectly
understandable in the context
of the Convention: the drafters of Protocol No. 2 (Article 47) wanted to avoid the Court giving an interpretation
of a provision of the same treaty that the Court or the
Committee of Ministers might
have to consider in contentious proceedings. No such overlap is
possible between the advisory proceedings under the
Oviedo Convention and the contentious proceedings under the Convention. The object
in the two types of proceedings is, at least formally,
totally different. It is in our
opinion only logical that Article 29 of the Oviedo
Convention does not contain limitations like those in Article 47 § 2 of
the Convention.
4. The majority
nevertheless read into Article 29 of the Oviedo
Convention the same exceptions
as those set out in Article 47 § 2 (see paragraphs 50-52 and 54 of the decision).
Regretfully, we disagree.
We do not think that the text of Article 29 allows for such an interpretation (see paragraph 3 above). Moreover, in our opinion, such an interpretation is difficult to reconcile with the object and purpose of Article 29. Indeed, as is stated
in the explanatory report to the Oviedo Convention,
the Oviedo Convention and the Convention “share not only the same underlying
approach but also many ethical
principles and legal
concepts” (paragraph 9 of the report). Granting advisory jurisdiction to the Court, which was set up to ensure compliance
with the Convention, is obviously
intended to “promote a uniform interpretation of [the shared] concepts and avoid divergent interpretations of them under each convention” (see paragraph 44 of the present decision). Such an aim calls for a wide jurisdiction of the Court under the Oviedo Convention, not for limitations to that jurisdiction. A uniform interpretation can hardly be promoted, and divergent interpretations can hardly be avoided, if the Court is not able to examine
issues that might also come up in contentious proceedings under the
Convention.
5. The majority
draw an argument from
the travaux préparatoires of
the Oviedo Convention, and in particular from the Court’s opinion of 6 November 1995 on a draft of the Oviedo
Convention (Cour (95) 413; see
paragraphs 14-15 and 44 of the present
decision). We have a somewhat different understanding of the preparatory work.
First of all,
the overall message of the Court was
one of welcoming the provision
that would become Article 29 of the Oviedo
Convention. The Court found understandable
the wish of the drafters
“to establish a system capable
of providing a uniform interpretation of those provisions that would be regarded as authoritative by all the Contracting States”, and agreed that this
goal could be achieved by entrusting that role to the Court (paragraph 3 of
the Court’s opinion, quoted
in paragraph 14 of the present
decision). It explicitly stated that it was
“in favour of the principle
of assuming an interpretative jurisdiction
in this field” (paragraph 5
of the Court’s opinion; see
paragraph 14 of the present
decision).
Second, it is true that
the Court made a reservation relating
to its contentious jurisdiction under the Convention. That
reservation should, however, be read in its proper context.
The Court’s concern related to the draft provision that allowed for preliminary rulings at the request of domestic courts, since there
was a risk that its advisory opinion in a case pending before the national court
“could hamper the Court if at a later
stage it had to rule under,
for instance, Articles 2, 8
and 14 of the Human Rights Convention on the facts of the case that had led the national court to request
the interpretation of a provision
of the bioethics convention” (see
paragraph 5 of the Court’s
opinion). This concern was fully met
by the drafters of the Oviedo Convention: the possibility for a national court to submit
a request to the Court for a preliminary
ruling was completely removed from Article 29 of the
Oviedo Convention. Moreover, following another suggestion by the Court (see paragraph 5 of the Court’s opinion), the drafters of
the Oviedo Convention inserted the proviso that a request for an advisory opinion (either by a Government or by the committee that is currently
the DH-BIO) could not contain a “direct reference to any specific proceedings pending in a court”.
If any conclusions
can be drawn from the travaux
préparatoires, they
point in our opinion, on the one hand, to the fact that it
was the intention of the drafters, supported by the Court,
to grant the Court a wide advisory
jurisdiction under the Oviedo Convention, and on the other hand, to the fact that any possible
risks of overlap between a request for an advisory opinion
under the Oviedo Convention and a subsequent application under the Convention have
been removed in Article 29.
II. THE ADMISSIBILITY OF THE
PRESENT REQUEST
6. It
is on the basis of a broad understanding of the Court’s advisory jurisdiction under Article 29 of
the Oviedo Convention that we
now turn to the issue whether the present request satisfies the requirements of that provision. We consider
this to be an issue relating to the admissibility of
the request and the questions
forming the subject of it.
7. A request
made under Article 29 of the Oviedo Convention is admissible if
it has been
submitted by the Government of a Contracting
Party or the DH-BIO, if it does not directly
refer to any specific proceedings pending in a court, and if it relates to “legal questions concerning the interpretation of
the present Convention”. In the present
case, the first two conditions
are fulfilled, as is also acknowledged
by the majority (see paragraphs 56-57 of the decision).
The difficulty lies with
the third condition.
8. In so far as Article 29 requires
that the questions put before the Court be of a “legal”
nature, we agree with the majority that this
excludes questions “regarding matters of policy” (see paragraph 48 of the decision). The Court is a judicial body capable of dealing with legal questions, not a body vested with the power to make decisions
on matters of political choice.
However, we do not consider that
Article 29 rules out requests
for an opinion on a legal question
merely because the Court’s answer to the question could be a source of interpretation for a possible
future draft protocol to the Oviedo Convention. In our opinion, the fact that the DH-BIO explains that it has
submitted two questions to the Court “with a view
to informing the current
and future work of the DH-BIO in the area” (see paragraph 2 of the present decision), which may be understood as a reference to its internal discussions
on an additional protocol concerning the protection of
human rights and dignity of
persons with mental
disorder with regard to involuntary
placement and involuntary treatment (see paragraphs 24-28 and 59 of
the decision), should have no bearing on the admissibility of the request. It is the subject
of the request that counts, not the aim with which an opinion is sought.
9. In so far as Article 29 further
requires that the questions must concern “the interpretation of the present
Convention”, we do not consider that the “interpretation” which may be requested from the Court
must necessarily be limited to the Oviedo Convention as it was
understood in 1997, while any further development
of the principles contained
in the Oviedo Convention should be the exclusive result of additional protocols adopted by the Contracting
Parties to the Oviedo Convention pursuant to Article 31 of the Oviedo Convention (see
paragraph 49 of the decision).
We note that the majority categorically reject the idea of the Oviedo Convention as a “living instrument” (ibid.).
We think that this issue
needs further reflection, and that things may not
be that clear. Yes, the drafters
of the Oviedo Convention opted for further development of
the general principles through
specific protocols; but these protocols
are also intended to clarify the meaning
of these principles, which are “valid for all applications of biology and medicine in human beings”
(see explanatory report, §
167), in specific fields.
In any event,
the fact that the Oviedo
Convention provides for the possibility
of development of its principles through additional protocols concerning specific fields does not, in our opinion, preclude
an interpretation of the meaning of the provisions of the
Oviedo Convention itself, even
with a view to the application
of these principles in a specific field.
10. With respect
to the specific questions
put before the Court, we
are of the opinion that they
seek clarification of what are certain minimum requirements flowing from Articles 7 and 26 of the Oviedo Convention in the specific area of treatment of a mental
disorder. The DH-BIO invites the Court to have regard in its opinion to the Convention, its
case-law and the Oviedo Convention.
Such questions relate to the interpretation of the Oviedo Convention, not to any policy to be adopted by the competent authorities. The fact that the Court’s opinion may contain elements
that could assist the
DH-BIO in its further examination of the draft additional
protocol on involuntary
placement and involuntary treatment of persons with mental disorder does not change
our conclusion.
We therefore conclude that both questions
satisfy the requirements of
Article 29 of the Oviedo Convention and that the request should have been
declared admissible.
III. THE ABSENCE OF A RESPONSE TO
THE QUESTIONS REFERRED TO THE COURT
11. We
regret that, as a result of their conclusion with respect to the competence of the Court, the majority do not enter into a discussion
on the merits of the two questions raised by the DH-BIO. These are important questions, and we believe that the Court could have given
a meaningful answer.
It is the view of the majority that the Court should not become involved
in a field which is largely left to other actors under the Oviedo
Convention. While we disagree with that view, we acknowledge
that we are only a minority among the judges of the Grand
Chamber. In these circumstances,
we do not think that it
would be appropriate for us
to claim that we can provide answers, where these have
not been the subject of substantive collegial deliberations.
12. We
note that the majority, in
a sort of obiter dictum, make a general observation on the substantive issues raised by the first question, relating to Article 7 of the Oviedo Convention (see
paragraph 69 of the decision).
We agree that the safeguards in domestic law that
correspond to the “protective
conditions” of Article 7 “need 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”. We also agree
with the reference to the “Court’s
dynamic approach to interpreting the Convention, which
in this field is guided inter alia by evolving
legal and medical
standards, national and international”.
We would have
preferred the Court to go further
in its analysis, on the basis of these starting points. We regret that we
cannot do more.
[1] Additional Protocol to the Convention on Human Rights and Biomedicine concerning
Transplantation of Organs
and Tissues of Human Origin,
CETS No. 186, Strasbourg, 24.I.2002.
[2] Additional Protocol to the Convention on Human Rights and Biomedicine, concerning
Biomedical Research, CETS
No. 195, Strasbourg, 25.I.2005.
[3] Additional Protocol to the Convention on Human Rights and Biomedicine concerning
Genetic Testing for Health Purposes,
CETS No. 203, Strasbourg, 27.XI.2008.