Protocols Nos. 15 and 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms were opened for signature in 2013 with a several months of difference. Protocols were designed to reduce the burden on the European Court of Human Rights and, accordingly, increase its effectiveness.
Protocol No. 15 to the Convention, which provides for a reduction of the period of application to the European Court of Human Rights from 6 months to 4 months, enters into force upon ratification by all High Contracting Parties to the Convention. As of today, according to the information on the official website of the Council of Europe Protocol No. 15 has not been signed and ratified by Bosnia and Herzegovina; Greece, Italy and Spain signed Protocol No. 15, but have not yet ratified it.
Article 4 of Protocol No. 15, which actually contains provisions for the reduction of the period of application, enters into force on the first day of the month following the expiration of a period of six months from the date of ratification by all the Member States of the Council of Europe. Applicants shall look on the date of the final judgment in their case at the national level in order to determine the period within which they can apply to the European Court. A 4-month rule will not apply, if the final judgment has been made before the date of entry into force of Article 4 of Protocol No. 15.
Protocol No. 16, which allows the highest courts and tribunals of the states to request the European Court to give advisory opinions, enters into force after ten High Contracting Parties to the Convention have expressed their consent to be bound by it. A few days ago, France became the tenth state that ratified Protocol No. 16 to the Convention, and therefore it will come into force for the States that have ratified it (including Ukraine) starting from August 1, 2018.
To date, Protocol No. 16, except Ukraine and France, has also been ratified by Albania, Armenia, Georgia, Estonia, Lithuania, San Marino, Slovenia and Finland.
Let us briefly describe the key points of the procedure provided for in Protocol No. 16.
- Who has the right to apply?
The right to apply for advisory opinions is given to the highest courts and tribunals as specified by a High Contracting Party. Ukraine has identified the Supreme Court as such judicial body (the Law of Ukraine as of 05.10.2017 No. 2156-VIII).
It should be noted that in the text of Protocol No. 16, the term “higher courts and tribunals” is specifically used in plurality that allows in a widest possible way to take into account distinctive features of judicial systems of each Member States. Ukraine does not belong to those states where the Supreme Court is at the same time a court of constitutional jurisdiction and therefore it would be entirely justified to give the right to request advisory opinions of the European Court to the Constitutional Court of Ukraine as well. Fortunately, Article 10 of Protocol No. 16 provides for the possibility for a High Contracting Party to make appropriate changes to its list of higher courts and tribunals.
- Requirements to the request for advisory opinion
In accordance with the provisions of Protocol No. 16, the requesting court or tribunal may seek an advisory opinion only in the context of a case pending before it.
The request shall concern questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto. The requesting court or tribunal shall give reasons for its request and shall provide the relevant legal and factual background of the pending case.
Failure to comply with the above-mentioned requirements may result in a refusal to accept a request for an advisory opinion.
As stated in the Explanatory Report to Protocol No. 16, similar to individual applications, the request for advisory opinion can be submitted by the highest judicial bodies not only in English or French, but also in the official language of the Contracting Party.
- Who issues advisory opinions?
A panel of five judges of the Grand Chamber shall decide whether to accept the request for an advisory opinion.
If the panel accepts the request, the Grand Chamber shall deliver the advisory opinion. The Grand Chamber has to include the judge elected in respect of the High Contracting Party to which the requesting court or tribunal pertains.
The process involves the possibility of a broad representation of different views on the request. Thus, the Council of Europe Commissioner for Human Rights and the High Contracting Party to which the requesting court or tribunal pertains shall have the right to submit written comments. In addition, the President of the Court may invite any other High Contracting Party or person also to submit written comments.
- Legal force of an advisory opinion
As can be seen from the title itself, advisory opinion is advisory, that is, non-obligatory.
Moreover, it should not be forgotten that the European Court does not substitute national judicial bodies, and therefore the Grand Chamber will not provide advice on the merits of the case, but only on matters relating to the interpretation and application of the provisions of the Convention.
It is important to note that advisory opinions have to be published. So consequently, we will have an additional source of authoritative legal opinion.
It is also worth noting that the court’s request for an advisory opinion will in no way restrict the right of the person who is party to the case to apply to the European Court by submitting an individual application in accordance with Article 34 of the Convention.
- Time limits
The European Court usually does not bind itself to specific procedural time limits, and Protocol No. 16 is not an exception.
Objectively, providing of an advisory opinion will be much faster than consideration of individual applications, but we can talk about specific period only after the Court sets an appropriate practice.
Another issue is the time limits provided in national court proceedings. Currently none of the existing procedural codes contains such a reason of suspension of the proceedings as a request to the European Court for an advisory opinion.
Without making the relevant amendments to the procedural laws, the request of the Supreme Court for an advisory opinion of the European Court is likely to lead to a violation of time limits of a trial.