PROTOCOL 16 TO THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND FREEDOMS

Abstract

Although the primary jurisdiction of the European Court of Human Rights is the one relating to applications, the Court also has advisory jurisdiction which was established by adopting Protocol 2 in 1963. However, the scope of this Protocol was limited in a twofold manner: the circle of entities authorized to request an advisory opinion was very narrowly defined and there were also uncertainties as to the type of legal issues that may require review. Only the Committee of Ministers had the authority to request an advisory opinion, provided that the decision was made by a two-thirds majority vote. Moreover, the advisory opinion could only be requested on the questions that did not fall within the scope of content, interpretation and/or effects of the rights and freedoms guaranteed under the European Convention and the related protocols. As a result of this restrictive approach, Protocol 2 has been applied in only three cases so far, for which reason it is considered to have little practical significance.

The idea of ​​expanding the Court’s advisory jurisdiction was revived in the process of reforming the European human rights protection mechanism. The result of these endeavors was the adoption of Protocol 16 in 2013, which is yet expected to enter into force. Protocol 16 aims to achieve a dual objective: 1) to intensify and strengthen the dialogue between higher national courts and the European Court; and 2) to reduce the large backlog of applications. During the drafting process, the debate was concentrated on four key issues: a) the nature of the authorized national courts; b) the legal effect of advisory opinions; c) the category and type of questions which may be referred; and d) the process of adoption of advisory opinions. However, despite some good legal solutions, there are some reservations on the likelihood of accomplishing the goals envisaged in Protocol 16.

Key words: Protocol 2, Protocol 16, European Convention for the Protection of Human Rights and Fundamental Freedoms, European Court of Human Rights, advisory jurisdiction, advisory opinion.