ECHR • Protocol No. 16 now in force in Monaco: the Court of Review and the Supreme Court may request an advisory opinion in connection with a pending case (Sovereign Order No. 11.840 of 2 April 2026)

Sovereign Order No. 11.840 of 2 April 2026 (JDM No. 8795 of 17 April 2026) gave effect to Protocol No. 16 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (CETS No. 214), ratified by Monaco on 2 October 2024.

SUMMARY

Protocol No. 16 to the European Convention on Human Rights (CETS No. 214) enables the Supreme Court ("Tribunal Suprême") and the Court of Review ("Cour de Révision"), the highest courts of the Principality of Monaco, to refer to the European Court of Human Rights (ECHR) requests for advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms defined by the Convention or its protocols in the context of a case pending before them, prior to delivering their judgment.

The ECHR has the discretion to accept or reject the request for an advisory opinion. Advisory opinions, which are substantiated and non-binding, are delivered by the Grand Chamber (the ECHR’s full bench comprising 17 judges).

Direct dialogue between national courts and the ECHR aims to ensure a consistent European interpretation, to strengthen legal certainty and to prevent, at an early stage, violations that could give rise to individual applications.

As of the date of this publication (21/04/2026), 26 member states of the Council of Europe are parties to Protocol No. 16 to the Convention (Albania, Andorra, Armenia, Azerbaijan, Belgium, Bosnia and Herzegovina, Spain, Estonia, Finland, France, Georgia, Greece, Latvia, Lithuania, Luxembourg, North Macedonia, Monaco, Montenegro, the Netherlands, Republic of Moldova, Slovak Republic, Romania, San Marino, Slovenia, Sweden, Ukraine).

The ECHR has issued eight advisory opinions (out of 13 requests, including 1 pending and 4 rejected), summarised below, following the introduction of the advisory opinion procedure.

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THE PROCEDURE IN DETAIL

Request for an Advisory Opinion

A request for an advisory opinion from the ECHR may only be made in the context of a case pending before the court making the request. This mechanism does not allow for a theoretical examination of a provision of domestic law outside the context of any dispute.

It must relate to “questions of principle concerning the interpretation or application of the rights and freedoms defined by the Convention or its Protocols”.

The request must be substantiated, and the court must provide the relevant elements of the legal and factual context of the pending case (the subject matter of the domestic case, relevant facts revealed by the domestic proceedings, relevant domestic legal provisions, relevant questions relating to the Convention (including which rights or freedoms are at stake) and even a summary of the arguments of the parties to the domestic proceedings on the matter, a statement of its own opinion on the matter). The aim is not to transfer the dispute to the ECHR, but to submit to it the question(s) of principle relating to the interpretation or application of the Convention or its protocols.

As the request for an advisory opinion is not mandatory, the court may withdraw the request it has made.

ECHR’s discretion to accept or reject a request for an advisory opinion

It is for a panel of five judges of the Grand Chamber (which automatically includes the judge elected in respect of the High Contracting Party to which the court that made the request belongs) to decide whether to accept the request for an advisory opinion.

Any refusal to accept the request must be reasoned. This serves, for example, to clarify what is meant by “questions of principle relating to the interpretation or application of the rights and freedoms defined by the Convention or its Protocols”, to provide guidance to domestic courts considering making a request, and to avoid inappropriate requests.

As of the date of this publication (21 April 2026), four requests for advisory opinions have been rejected:

• ECHR, Decision of 14 December 2020 rejecting the request for an advisory opinion submitted by the Slovak Supreme Court concerning the independence of the existing mechanism for examining complaints against the police, the ECHR having considered that the points raised did not concern a matter on which the Slovak Supreme Court would require guidance to enable it to ensure compliance with the rights under the Convention when adjudicating the pending case.
• ECHR, Decision of 19 February 2024 rejecting the request for an advisory opinion made by a panel of the Criminal Chamber of the Supreme Court of Estonia concerning orders by the public prosecutor’s office to discontinue proceedings, the ECHR having considered that, contrary to the requirements of Protocol No. 16, this request does not raise a “question of principle”, that is to say, a new and/or complex issue, as the matter in question was already the subject of well-established case law; the discontinuance of proceedings by a prosecutor amounts to neither a conviction nor an acquittal, and Article 4 of Protocol No. 7 (Right not to be tried or punished twice – ne bis in idem) therefore does not apply in such a situation.
• ECHR, Decision of 28 June 2024 rejecting the request for an advisory opinion made by the High Court of Cassation and Justice of Romania, concerning the confiscation of a sum of money from a civil servant following an asset check carried out by the National Integrity Agency, the ECHR having considered that the request concerning the interpretation of Article 6 (right to a fair trial) of the Convention and Article 1 of Protocol No. 1 (protection of property) to the Convention did not concern a question of principle within the meaning of Article 1 § 1 of Protocol No. 16 which would justify an examination by the Grand Chamber; the questions raised form part of a well-established body of ECHR case-law, several aspects of which are judiciously cited by the referring court in its decision to refer the matter to the ECHR.
• ECHR, Decision of 16 December 2024 rejecting the request for an advisory opinion submitted by the High Court of Cassation and Justice of Romania, concerning the removal of a female judge from office on the grounds that she had failed to attend a medical assessment to determine whether she suffered from a mental illness preventing her from performing her duties properly, the ECHR having considered that the request concerning the application of Article 8 (right to respect for private and family life) and the required level of precision in the domestic law serving as the legal basis for the dismissal measure did not concern a question of principle within the meaning of Article 1 § 1 of Protocol No. 16 which would justify an examination by the Grand Chamber; the ECHR provides a relevant overview of its case-law in this regard; there are no grounds requiring the ECHR to further clarify existing principles; the referring court has the necessary means to ensure respect for the rights protected by the Convention when it adjudicates the pending dispute.

Written observations and hearings

If the request is accepted, the Council of Europe Commissioner for Human Rights and the High Contracting Party to which the court that made the request belongs shall be entitled to submit
written observations and to take part in the hearings.

As the advisory opinion procedure is not adversarial, the Government of the High Contracting Party has the right, but not the obligation, to submit its written observations.

Any other High Contracting Party or person may be invited by the President of the ECHR, in the interests of the proper administration of justice, to also submit written observations or to take part in the hearings.

Reasons and scope of advisory opinions

Advisory opinions must be confined to matters directly relevant to the domestic proceedings before the referring court, and must be reasoned.

The ECtHR has the power to reformulate the questions referred by the referring court, to join questions referred to it, and to decline answer questions that do not meet the criteria of Protocol No. 16.

If the advisory opinion does not, in whole or in part, reflect the unanimous opinion of the judges of the Grand Chamber, any judge is entitled to append a separate opinion (dissenting or concurring).

Advisory opinions of the ECHR are not binding. It is for the court that made the request to decide on the effects of the advisory opinion on the domestic proceedings.

The fact that an advisory opinion has been delivered does not prevent a party from subsequently bringing an individual application before the ECHR. However, if the national court has followed that opinion, complaints relating to issues already decided are in principle declared inadmissible or struck out of the list of cases.

Advisory opinions have no direct effect on other applications, but they form part of the case-law of the ECHR and their interpretation of the Convention and its Protocols has the same weight as that set out in its decisions and judgments.

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Advisory opinions issued by the ECHR

As of the date of this publication (21 April 2026), the ECHR has issued the following advisory opinions:

— ECHR, Advisory Opinion of 5 March 2026 on the status of monastic sites and the jurisdiction of the courts to hear disputes concerning them (Request No. P16-2025-001 from the Supreme Court of Ukraine)

• Dispute between a monastery of the Ukrainian Greek Catholic Church and a former nun concerning the latter’s right to reside in a convent belonging to the monastery, which she left in 2017 following a conflict within the religious community.
• ECHR Opinion:
  → A cell in a monastery or convent may be regarded as the “home”, within the meaning of Article 8 (right to respect for the home) read in conjunction with Article 9 (freedom of religion) of the Convention, of persons having sufficient and continuous links with that place. If those links are based solely on religious grounds, then the situation of those persons within the religious community in question occupying the premises is of particular importance.
  → The question of which court has jurisdiction to hear the dispute is not directly governed by Article 6 § 1 (right of access to a court) of the Convention. It is primarily for the referring court to decide by determining whether or not the proceedings concern a right recognised under domestic law.

— ECHR, Advisory Opinion of 14 December 2023 on the refusal to authorise a person to practise the profession of security guard or security officer on the grounds of their association with or membership of a religious movement (Request No. P16-2023-001 from the Belgian Council of State)

• An action for annulment brought by a security guard before the Administrative Litigation Division of the Belgian Council of State against a decision by the Ministry of the Interior to withdraw his identification card authorising him to work as a security guard or security officer on the grounds that he has links with individuals of a “scientific Salafist” persuasion.
• ECHR Opinion:
  → A person’s proven membership of a religious movement which the competent administrative authority, having regard to its characteristics, considers to pose a threat to the State may justify a refusal to authorise that person to work as a security guard or security officer, provided that the measure in question:
  1. is based on a clear and predictable legal basis,
  2. is adopted in view of the conduct or actions of the person concerned,
  3. is taken, in view of that person’s professional activity, with a view to preventing the materialisation of a real and serious risk to democratic society and pursues one or more legitimate aims within the meaning of Article 9 § 2 (right to freedom of thought, conscience and religion) of the Convention,
  4. be proportionate to the risk it seeks to prevent and to the legitimate aim(s) it is intended to pursue,
  5. and be subject to independent and effective judicial review, accompanied by adequate procedural safeguards as to compliance with the conditions set out above.

— ECHR, Advisory Opinion of 13 April 2023 on the status and procedural rights of a biological parent in adoption proceedings concerning their adult child (Request No. P16-2022-001 from the Supreme Court of Finland)

• Proceedings concerning an application for the adoption of a child who had reached the age of majority, brought by his aunt who had taken him in from the age of three, authorised by the national courts despite the opposition of the biological mother, who lodged the appeal.
• ECHR Opinion:
  → As legal proceedings concerning the adoption of an adult child may be regarded as affecting the private life of the biological parent, Article 8 (right to respect for private life) of the Convention is applicable. However, compliance with the resulting procedural requirements for the biological mother does not require that she be afforded guarantees such as the status of a party to the adoption proceedings or the right to lodge an appeal.
  → It is for the Finnish Supreme Court to determine whether the legal proceedings relating to the adoption of an adult give rise to any right recognised under domestic law for the biological mother, and if not, Article 6 (right of access to a court) will not apply in the present case.

— ECHR, Advisory Opinion of 13 July 2022 on the difference in treatment between landowners’ associations “recognised as existing at the date of the establishment of an approved municipal hunting association” and landowners’ associations established subsequently (Request No. P16-2021-002 from the French Council of State)

• Appeal for misuse of powers in connection with an amendment made to Article L. 422-18 of the Environment Code by Article 13 of Law No. 2019-773 of 24 July 2019 establishing the French Biodiversity Agency, amending the remit of hunting federations and strengthening environmental policing, which excludes the possibility for landowners’ associations established after the formation of an approved municipal hunting association (ACCA) to withdraw their land from the ACCA’s hunting area once the minimum area threshold required to do so has been reached.
• ECHR Opinion:
  → It is for the Council of State to determine whether the difference in treatment (resulting from Article L. 422-18 of the Environment Code, as amended by the Law of 24 July 2019, between associations “recognised as existing on the date of the ACCA’s establishment” and associations established subsequently) falls within the scope of Article 14 of the Convention (Prohibition of discrimination) read in conjunction with Article 1 of Protocol No. 1 (right to property) and, if so, whether or not it concerns persons in similar or comparable situations.
  → If the answer to both these questions is in the affirmative, the Council of State must determine whether the difference in treatment in question is “legitimate and reasonable” and, consequently, compatible with Article 14 of the Convention (the legislature must pursue one or more “legitimate aims” by distinguishing between categories of landowners or holders of hunting rights based on the date of their association’s establishment) read in conjunction with Article 1 of Protocol No. 1 (a legal basis satisfying the requirement of legality).

— ECHR, Advisory Opinion of 26 April 2022 on the applicability of the statute of limitations to prosecutions, convictions and penalties for offences constituting, in substance, acts of torture (Request No. P16-2021-001 from the Armenian Court of Cassation)

• Dispute concerning the enforcement of the judgment in Virabyan v. Armenia delivered in 2012 by the ECHR, in which the ill-treatment inflicted on the applicant whilst in police custody had been classified as torture. The two police officers in question were found guilty but were exempted from liability and any penalty on the grounds that the statute of limitations had expired. The prosecutor challenged this application of the statute of limitations, arguing that it was incompatible with Article 3 (Prohibition of torture) of the ECHR.
• ECHR Opinion:
  → It is primarily for the national court to determine whether rules of international law having normative force in the domestic legal order can constitute a sufficiently clear and foreseeable legal basis within the meaning of Article 7 (No punishment without law) of the Convention to allow the conclusion that the offence in question is not subject to a statute of limitations.

— ECHR, Advisory Opinion of 8 April 2022 on legislation relating to the impeachment procedure (Request No. P16-2020-002 from the Supreme Administrative Court of Lithuania)

• Dispute concerning the proportionality, under Article 3 (Right to free elections) of Protocol No. 1 to the Convention, of a general ban on a person standing as a candidate in an election following removal from office through an impeachment procedure.
• ECHR Opinion:
  → Any decision as to whether a ban on holding a parliamentary seat went beyond what is acceptable under Article 3 (Right to free elections) of Protocol No. 1 to the Convention should take into account not only the events leading to the removal of the person concerned but also the functions that person intends to perform in the future, from the perspective of the constitutional system and democracy as a whole in the State concerned.

— ECHR, Advisory Opinion of 29 May 2020 on the use of the "legislation by reference" technique in criminal law and the criteria to be applied when comparing the criminal law as it stood at the time the offence was committed with the criminal law as amended ECHR, Advisory Opinion of 29 May 2020 on the use of the technique of “legislation by reference” in criminal law (Request No. P16-2019-001 from the Constitutional Court of Armenia)

• Dispute concerning the interpretation and application of a provision of the Armenian Criminal Code criminalising the overthrow of the constitutional order by referring to several articles of the Armenian Constitution, and its application in the light of Article 7 (no punishment without law) of the Convention (offence defined by means of the “legislation by reference” technique), in the context of proceedings against former President Robert Kocharyan. The issue was whether this provision, which defines an offence by referring to certain provisions of the Constitution (a legal act possessing supreme legal force and a higher level of abstraction) can satisfy the requirements of precision, accessibility, foreseeability and stability arising from the Convention.
  
• ECHR Opinion:
  → A provision of this kind, which uses the technique of “legislation by reference” or “legislation by cross-reference” to criminalise acts or omissions, may be compatible with the requirements of the Convention. The referring provision and the provision to which it refers, read together, must enable the person concerned to determine, with the assistance of expert advice where necessary, which conduct is liable to give rise to criminal liability. The Court specifies, amongst other things, that the most effective way of ensuring the clarity and foreseeability of an offence formulated on this model is to ensure that the reference is explicit and that the referring provision defines the constituent elements of the offence.
  → Regarding the criteria to be applied in determining whether, for the purposes of Article 7 (no punishment without law) of the Convention, a law adopted after the commission of the alleged offence is more or less favourable to the accused than the law in force at the time of the alleged commission of the offence, having regard to the principle of non-retroactivity of criminal law, If the subsequent law is more severe, it cannot be applied.

— ECHR, Advisory Opinion of 10 April 2019 on the recognition under domestic law of a parent-child relationship between a child born following a surrogacy arrangement abroad and the intended mother (Request No. P16-2018-001 from the French Court of Cassation)

• Proceedings for the review of the appeal in cassation brought against the judgment of the Paris Court of Appeal of 18 March 2010, which had annulled the transcription into the French civil status registers of the American birth certificates of the Mennesson children, in so far as it designated the “intended mother” as their “legal mother”, following the Mennesson v. France judgment (2014) concerning the recognition in France of the parentage of children born via surrogacy in the United States, in which the ECHR had found a violation of the children’s right to respect for private life. Following this judgment, French case law has evolved to allow the registration of the birth certificate in the name of the intended father where he is the biological father, to the exclusion of the intended mother.
• ECHR Opinion:
  → In the case of a child born abroad via surrogacy using the gametes of the intended father and a third-party donor, where the parent-child relationship between the child and the intended father has been recognised under domestic law, Article 8 (Right to respect for private life) of the Convention requires States to provide for the possibility of recognising a parent-child relationship between the child and the intended mother, designated in the birth certificate legally drawn up abroad as the "legal mother"; but it does not require that such recognition be effected by the transcription of the birth certificate lawfully issued abroad into the civil registers; it may be effected by other means, such as the adoption of the child by the intended mother.

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Source: https://www.echr.coe.int/advis...