CEDH · CASELAW;ADVISORYOPINIONS;PROTOCOL16;OTHERREQUESTS;ENG — 15 septembre 2021

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text-indent:0pt; display:inline-block } .s90A14307 { width:6.51pt; text-indent:0pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt }       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: PROCEDURE 1.     By letter of 3 December 2019, the Chair of the Council of Europe’s Committee on Bioethics (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 (ETS no. 164 – “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 . I.   Background to the request 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 long-standing 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 twenty-nine 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: 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: 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: 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 above-mentioned 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 procedure under Article 29 of the Oviedo Convention, the Court finds it relevant to refer to the drafting history of this provision. 13 .     The travaux préparatoires (Council of Europe 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 (ibid., 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 on Article 28 of the draft bioethics convention (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. 119-20) 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: 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 Recommendation No. R(83)2 of the Council of Europe’s Committee of Ministers to member States concerning the legal protection of persons suffering from 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 the Oviedo 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 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 [Oviedo] 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: 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 of the Oviedo Convention. 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, in so far as relevant: “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: 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 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 of the Recommendation: “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 of the Recommendation, which concerns involuntary treatment. 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 drawing up 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 Rec(2004)10 (mentioned in its sixth preambular paragraph – see 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 United Nations (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 UN Committee on the Rights of Persons with Disabilities 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 the 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 in 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.     The relevant parts of Article 47 of the Convention provide as follows: “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 of the Convention, 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 of the Convention (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 Protocol No.   16). The objective pursued by that 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 Protocol No. 16, 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 Protocol No.   16). The Court has confirmed that its advisory opinions delivered under that 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 (see Advisory opinion P16 ‑ 2019 ‑ 001, cited above, § 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, adopted on 23   May 1969 (“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 (eight of these twelve 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 of the Council of Europe 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, that is, all of the Contracting Parties to the Convention, accepted this additional function for the Court. By ratifying the Oviedo Convention, twenty-nine 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 [GC], § 26, ECHR 2004 ‑ VI). The Convention is silent regarding any jurisdiction for the Court outside the Convention system. It has been argued by some of the governments intervening in these proceedings that the above-mentioned 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 above-mentioned 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 long-standing 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 forty-seven 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 emphasised 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 jurisdictio