ECHR Judge Told about Peculiarities of Mechanism of Provision with Advisory Opinions

While the Conference “Uniformity of Case Law: Opinions of the European Court of Human Rights and the Supreme Court” the ECHR judge (Ukraine) Hanna Yudkivska presented her speech “Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms – from Theory to Practice”.

The ECHR judge told about the main idea of the Protocol No. 16 and the history of its formation. Hanna Yudkivska remarked that pursuant to Article 1 of the Protocol No. 16 highest courts and tribunals of a High Contracting Party may request the ECHR to give advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto.

Hanna Yudkivska emphasized that the mechanism of provision with advisory opinion had come into force on 1 August 2018; its development, implementation and benefit depended on subjects of application to the European Court of Human Rights, particularly, the Supreme Court.

The ECHR judge spoke in detail about each article of the abovementioned Protocol and drew attention to the fact that a court and a judicial body while applying with a request could receive an advisory opinion, only if the case was under its consideration.

According to her, a court and a judicial body while applying with a request shall note the reasons of this request and provide information regarding the relevant legal and factual circumstances of the case under its consideration. The ECHR judge underlined that such a functional peculiarity was aimed at the procedure, when the necessity and benefit of the request were, first of all, carefully assessed by the national court.

Hanna Yudkivska drew attention to the fact that a panel composed of five judges of the Grand Chamber should decide, whether the request on provision with an advisory opinion should be accepted. The panel of judges shall motivate any dismissal of request. In other words, in fact, the national judicial body receives guidelines as for circumstances, under which the relevant request shall be accepted, and under which ones – shall not.

Pursuant to Article 5 of the Protocol No. 16, advisory opinions shall not be binding. Mrs. Yudkivska emphasized that a court while applying with the request should make a decision on the consequences of the advisory opinion. The procedure of provision with an advisory opinion is not aimed at transferring a dispute to the ECHR; its goal is represented by provision of a national court with methodological assistance and the guidance regarding consideration.

Hanna Yudkivska also noted that presently only one advisory opinion had been provided (in April 2019); France had made relevant request in October 2018.