SC GC Judges Joined the Discussion of Mechanisms for Obtaining ECHR Advisory Opinions

Judges and staff officials of the Supreme Court participated in online expert discussion “Effective procedure on interaction with the European Court of Human Rights: Implementation of the Protocol No. 16 to the European Convention on Human Rights”. The event was held in the framework of the implementation of the Council of Europe Project “Further support for the execution by Ukraine of judgments in respect of Article 6 of the European Convention on Human Rights”.

The participants exchanged views on legislative initiatives on the implementation of Protocol No. 16, the peculiarities of its application and the implementation of the optimal mechanism for obtaining advisory opinions of the European Court of Human Rights on the basis of this Protocol.

Vsevolod Kniaziev, the Secretary of the SC Grand Chamber, noted that the ECHR had given priority to providing advisory opinions over case consideration. This means that the paradigm of the ECHR's activity is gradually being transformed, and it not only states the violation of the Convention requirements by the state, but helps to prevent such violations.

Vsevolod Kniaziev is convinced that this is a turning point in understanding the ECHR philosophy and a significant step forward. Gradually, there will be the ability to prevent possible violations of the Convention at the stage of consideration of cases by national courts, and as a result, the number of applications to the ECHR will decrease.

He also pointed out that according to the Law of Ukraine “On Ratification of the Protocols No. 15 and No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms”, the body that may apply to the ECHR is the Supreme Court. However, there is still no norm in the procedural law that regulates the procedure for such an application.

"It is possible to apply the Law on Ratification directly, but it is better to regulate in detail this mechanism at the procedural level. The Supreme Court must provide its recommendations on how to resolve this issue. There is an opinion among the judges of the Supreme Court that the Grand Chamber should be empowered to address requests to the ECHR” – Vsevolod Kniaziev remarked.

A case in which there is a fundamental issue as for the application or interpretation of the Convention must be regarded as one containing an exclusive legal issue. And when such a case is submitted to the Grand Chamber of the Supreme Court, other courts must suspend proceedings in cases involving similar legal relations till the adoption of the judgment by the Grand Chamber of the Supreme Court. The relevant procedure is provided by practical recommendations as for applying to the ECHR for an advisory opinion.

Upon receipt of such an opinion, the Grand Chamber of the Supreme Court will reopen the proceedings, consider it, then other courts will resume proceedings in similar cases, and will consider them taking into account the advisory opinion and the judgment of the Grand Chamber adopted on its grounds.

In addition, the possibility of recourse to the ECHR for an advisory opinion may be useful while considering pilot cases involving a wide range of people, in particular in the sphere of social legal relations, as well as while resolving property disputes.

"Therefore, the importance of Protocol No. 16 for Ukraine should not be underestimated. Public authorities must unite their efforts for its final implementation into the national procedural legislation" – Vsevolod Kniaziev emphasized.

Judge of the Grand Chamber of the Supreme Court Vitalii Urkevych also joined the discussion. He noted that some lawyers were concerned that recourse to the ECHR for an advisory opinion could result in the delay of a case consideration and the violation of procedural deadlines.

"The first two opinions were provided by the European Court of Human Rights in 6–7 months after the application was received. This is quite an acceptable term for the consideration of a case, because it is important to obtain the ECHR’s understanding of the fundamental issues on application of the Convention and its protocols" – the judge noted.