02 Nov The first request for an advisory opinion before the European Court of Human Rights under Protocol 16

On 16 October 2018 the Court received a request for an advisory opinion from the French Court of Cassation. It is the first request received by the Court since the entry into force of Protocol No. 16 to the European Convention on Human Rights on 1 August 2018.

This Protocol allows the highest courts and tribunals, as specified by the member States which have ratified this text, to request the Court to give advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or its protocols. An advisory opinion may be requested only in the context of a case pending before the domestic court.

The acceptance or refusal of a request is left to the Court’s discretion. A panel of five judges decides whether to accept the request, giving reasons for any refusal. Advisory opinions, given by the Grand Chamber, will give reasons and will not be binding. They will be published and communicated to the requesting court or tribunal and to the relevant High Contracting Party. Judges will be entitled to deliver a separate opinion.

The aim of Protocol No. 16 is to enhance the interaction between the Court and national authorities and thereby reinforce the implementation of Convention rights and freedoms by the requesting court in its adjudication of the pending case.

The French Court of Cassation, in its judgment of 5 October 2018, decided to submit to the European Court of Human Rights a request for an advisory opinion on the following question: Does the refusal to register the birth of a child born abroad to a surrogate mother overstep the margin of appreciation under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms? The Court of Cassation is adjourning its proceedings until the Court has given its opinion.

References from the official website of the Court of Human Rights