On new Protocol 16 to the European Convention on Human Rights

Protocol 16 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), came into force on 1 August 2018, as ten Member States signed and ratified the Protocol. The following countries have signed and ratified Protocol 16: Albania, Armenia, Estonia, Finland, France, Georgia, Lithuania, San Marino, Slovenia and Ukraine, while: Andorra, Bosnia and Herzegovina, Greece, Italy, Moldova, Netherlands, Norway, Romania, Slovakia and Turkey have only signed the Protocol, but have not yet ratified it.

The protocol consists of eleven articles, out of which, only the first five, constitute substantive and procedural provisions of the Protocol.

Novelties introduced by Protocol 16, establishing a new procedure, are as follows: the highest domestic courts or tribunals will be able to request an advisory opinion on the fundamental issues concerning the interpretation or application of the rights and freedoms set forth in the ECHR or the protocols thereto; the court or tribunal may only request this in respect of the case before them; the possibility of participation in the session of the acting Council of the High Contracting Party representative is introduced; it envisages the participation of a national judge before the European Court of Human Rights (ECHR) of a State whose court or tribunal requests the advisory opinion be given at a session of the trial chamber; non-binding legal force of advisory opinion.

The domestic court or tribunal will be able to request an advisory opinion only in the context of the case before it, with the court or tribunal having to justify its request and provide the relevant legal and factual basis for the case pending before it. Each High Contracting Party shall, at the time of signing the Protocol or when depositing its instruments of ratification, acceptance or approval, specify a list of courts or tribunals which may request an advisory opinion. This list is subject to change, which leaves the possibility of extending the number of courts or tribunals that can achieve a dialogue with the ECtHR. It should be noted that this is only about the highest courts or tribunals.

The Commissioner of the Council of Europe for Human Rights and the High Contracting Party, whose court or tribunal, has lodged a request before the ECtHR, has the right to submit written comments and take part in the session. The ECtHR may also invite any other High Contracting Party or other person to submit written comments or to participate in the session, where appropriate, and the interest of the proper administration of justice.

All advisory opinions must be reasoned and published. If the advisory opinion does not represent, in whole or in part, the unanimous opinion of the judges, each judge has the right to give a separate opinion. However, advisory opinions are not binding, that is, they have no binding legal force. Advisory opinions from this Protocol will not have a direct impact on other subsequent requests, but they will be part of the jurisprudence of the ECtHR, in addition to its judgments and decisions. The interpretation of the ECHR and its protocols contained in the Advisory Opinions would be analogous in its effect to the interpretations provided by the ECtHR in its judgments and decisions.

In terms of procedure, the admissibility of the request for the advisory opinion will be decided by a five-member panel of judges of the Grand Chamber of the ECtHR. If a five-member panel of judges declares a request admissible, the decision on the application will be made by the Grand Chamber of the ECtHR, which must be reasoned. In addition, in the event that a five-member panel rejects the request for an advisory opinion, such a decision must be reasoned.

The significance of entry into force of Protocol 16 to the ECHR is high. In this way, the dialogue between the ECHR and national courts will be expanded and deepened. National courts will be given the opportunity to request „assistance“ from the ECHR in the form of an advisory opinion to resolve the current case. However, from a political point of view, national courts will in this way have the ability to „take away“ responsibility from themselves, considering the views of the ECHR given in the advisory opinion. The positive side of this „removal“ of responsibility from the national court could also be interpreted positively, for the judges of national courts would thus be given the opportunity to disperse the political influence of domestic (political) influences and pressures, which are often exposed in dealing with some more important cases, referring to the authority of the ECHR.

Until the adoption of Protocol 16, only the Committee of Ministers of the Council of Europe had the opportunity to request the advisory opinion, in accordance with Articles 47-49 of the ECHR, with the Committee of Ministers being able to seek advisory opinions only on legal issues related to the interpretation of the ECHR and protocols. Such opinions must not deal with issues relating to the content or scope of the rights and freedoms set forth in the ECHR and the protocols thereto.