The ruling of the European Court of Human Rights (ECHR) on Thursday, which supports the possibility that the Constitutional Court may veto, in certain cases, the processing of motions in favour of the right to self-determination or against the monarchy, has been a bucket of cold water, and there will be time to analyse it. In this article I focus on another issue relating to the ECHR. In the framework of the negotiations between Junts per Catalunya and Pedro Sánchez's executive in Switzerland, on Monday it became known that the Spanish Council of Ministers would approve Spain's accession to Protocol 16 of the European Convention on Human Rights (ECHR; Treaty No. 214) immediately. This protocol, which entered into force in August 2018, introduced a significant innovation in the judicial system for the protection of human rights in Europe. Specifically, it allows the highest instances of state courts designated by the Member States to request an advisory opinion from the European Court of Human Rights (ECHR) on questions of principle related to the interpretation or application of the rights and freedoms defined in the Convention. Applications can be made in the context of cases pending before the competent domestic courts, and the ECtHR has the power to accept the application and issue an opinion which is formally non-binding. Although the innovation is significant, it is not comparable with the impact of the preliminary ruling procedure in European Union (EU) law due to the different legal structure of the Protocol No. 16 procedure compared to the preliminary ruling procedure at the Court of Justice of the EU (CJEU) – the so-called preliminary question, which is binding because the aim is to ensure the supremacy of EU law.
Until now, Spain had ratified all the optional protocols to the ECHR, demonstrating its formal commitment to European guarantees for the protection of human rights. However, until now, the Spanish government had avoided adhering to Protocol 16. In fact, Spain signed it on 29 October 2024, but had not ratified it until this Tuesday, thus preventing its entry into force. Considering that, in contrast to judgments in contentious cases, the advisory opinions included in Protocol 16 are not strictly binding on state courts (and therefore the court requiring the opinion retains a degree of discretion in assessing whether to take the opinion into account), it is logical to ask why Spain has been reluctant to ratify.
The answer surely has to do with the complicated constitutional issues raised by this protocol, which has been perceived by some states and legal scholars as a potential threat to judicial autonomy and the interpretative powers of domestic courts, especially constitutional courts. Although the opinions are not legally binding – and therefore would not endanger state sovereignty or affect judicial discretion in interpreting the law – in practice the opinions are difficult to ignore by the very court that issued them (and therefore, according to established opinion, are binding). de facto). The reflection document on the proposal to extend the ECHR's advice supports this consideration and even points out that the ECHR itself should consider them as jurisprudence to be followed when it has to decide on an individual case later. In this sense, the opinions would have undeniable legal effects as they form part of the Strasbourg Court's jurisprudence applicable to contentious cases, together with the judgments. If one analyses the experience of the advisory opinions of the International Court of Justice, the Inter-American Court of Human Rights, or the African Court on Human and Peoples' Rights, it is clear that they have been crucial in the interpretation of treaty norms and have had a real impact by legitimising the requirement for states to adapt their behaviour and interpretations.
The Spanish government's communication on the ratification of Protocol 16 has avoided going into the reasons why it had not happened until now, and has focused on highlighting as a positive fact that its entry into force "will strengthen the dialogue between the ECHR and the national courts". In the European institutional scheme for the protection of human rights, this aspect of direct interaction between state courts and the Strasbourg court is surely the aspect that was most highlighted when the Protocol came into force. The mechanism allows the courts to engage in direct dialogue with the ECHR and to ask for clarifications on how the provisions of the Convention should be interpreted in relation to specific legal issues. In this sense, it is hoped to generate a preventive effect to ensure that legal decisions comply with the human rights standards established by the ECHR, reducing the number of individual cases. Interpretative doubts can now be addressed at an earlier stage, during the internal judicial process, and future human rights violations will be avoided and the current overload of the ECHR will be reduced.
Spain's reluctance to ratify Protocol 16 could be explained by the same political concern about loss of control and sovereignty at a historical moment when many eyes and observers are focused on the decisions of Spanish courts in controversial human rights cases, such as the application of the amnesty law. Although the relevance of Protocol 16 lies in its ability to strengthen the relationship between state courts and the ECHR and to encourage more proactive legal protection of human rights at the state level – the opinion must be requested by the competent state court and is optional, not mandatory – it adds a mechanism to pressure state courts and demand that they .
In the recent historical context, marked by signs of regression of human rights in Spain linked, above all, to the repressive reaction of the State in relation to the sovereignty process and the referendum of 1 October, the ambivalence of the Spanish government until Tuesday could be politically motivated. The strategic litigation in defence of these rights from exile by President Carles Puigdemont and some members of his government could have contributed to the reluctance to grant greater power to international courts. Although the effectiveness of advisory opinions would be formally limited, ignoring them has reputational effects and would call into question the legality and legitimacy of judicial decisions that contradict the opinion of the ECHR. In this sense, for example, a potential consultation on the interpretation or application of rights in the Convention could be raised without exhausting domestic remedies during the processing of the cases by the higher judicial authorities. Certainly, neither is the request for an opinion obligatory nor is the opinion binding, and the ECHR could even reject the request when it does not meet the established criteria on the content of the consultation. But, in any case, the increase in mechanisms to guarantee the protection of human rights is always good news, especially in contexts in which states and governments become potential violators of rights, instead of guarantors of their protection once they have made the commitment to comply with the treaties to which they have adhered. In particular, members of dissident groups or minorities, vulnerable or with less power in domestic institutions, are the potential beneficiaries of mechanisms that limit judicial discretion and favour the preservation of an idea of democracy based not on the tyranny of the majority but on respect for individual and collective human rights.
