Advisory Opinions of the European Court of Human Rights: Do National Judges Really Need This New Forum of Dialogue?

Abstract

On 1st August 2018 the Protocol No. 16 to the ECHR entered into force providing for the new channel of dialogue between highest courts and tribunals of the High Contracting Parties and the European Court of Human Rights. Although the Protocol has so far been ratified by only eleven States-Parties to the European Convention on Human Rights, advisory opinions delivered at the requests of their courts and tribunals will certainly have high precedential value. The interpretation of the rights and freedoms provided by the ECtHR sitting in Grand Chamber formation will have general application, also with reference to individual complaints brought under Article 34 of the Convention against States which are not Parties to the Protocol No. 16. This contribution will focus on some key aspects of this new path of judicial dialogue. It will touch upon the question whether the new advisory jurisdiction of the ECtHR is an appropriate tool for strengthening the principle of subsidiarity, as envisaged in the preamble of Protocol No. 16. It could be argued that the procedure applied to examination of individual complaints by the ECtHR leaves no space for conducting real judicial dialogue. An individual complaint may be brought to the Court only after final resolution of the case by domestic courts. Thus, the court responsible for final outcome of the case has no opportunity to provide the ECtHR with other arguments concerning interpretation and application of the Convention than these included into the case-file of domestic proceedings, usually completed a few years earlier. Article 3 of Protocol No. 16 as well as the Rules of the Court offer the opportunity for almost adversarial exchange of arguments between judicial interlocutors. Moreover, parties to the domestic proceedings may also be allowed to submit their observation in the case. Thus, at least in theory, the new advisory jurisdiction of the Court creates a mechanism for judicial dialogue which should potentially result in strengthening the principle of subsidiarity. The contribution will also address the challenges posed by advisory jurisdiction to domestic courts and the ECtHR itself. In particular it will focus on the effects the advisory opinions should have on the requesting court and on the courts of the States Parties to the Protocol no. 16 Furthermore, impact of advisory opinions on the courts of States which, like Poland, decide not to ratify Protocol No. 16 will also be analysed. It is mentioned in the literature that the new advisory jurisdiction may undermine the legitimacy and standing of the Court in the eyes of national courts. The contribution provides arguments defending the contrary view that proper use of this path of dialogue should enhance the trust between judicial interlocutors.

Małgorzata Wąsek-Wiaderek is Professor of Criminal Procedure Law and Judge of the Polish Supreme Court.