Abstract but Concrete, or Concrete but Abstract? A Guide to the Nature of Advisory Opinions under Protocol No 16 to the ECHR

Abstract

Abstract In constitutional adjudication, a well-known distinction exists between abstract and concrete review. Under abstract review, a court evaluates a rights interference detached from any particular application to the facts of a case. Under concrete review, the review arises as an element of adjudication of specific facts. In this contribution, we explain theoretically how this distinction plays both at the macro level of a review system and the micro level of specific cases. These concepts are then used to explore and understand the advisory procedure recently introduced by Protocol No 16 to the European Convention on Human Rights. We argue that this mechanism theoretically provides for a type of review that is more abstract than the review exercised under the European Court of Human Rights’ contentious jurisdiction, yet still allows for important elements of concreteness to enter the analysis. This is confirmed by Advisory Opinions Nos 1 and 2.