Advisory jurisdiction of the European Court of Human Rights

Abstract

Although the primary jurisdiction of the European Court of Human Rights is the one relating to applications, with the adoption of Protocol 2 in 1963, the Court also has advisory jurisdiction. However, it was limited in a twofold manner: the circle of entities authorized to request an advisory opinion was very narrowly defined and there were also uncertainties as to the type of legal issues that may require review. Only the Committee of Ministers had the authority to request an advisory opinion under the condition that the decision was made by a two-thirds majority vote. Also, they could only ask questions that were not concerning rights and freedoms guaranteed under the European Convention, as well as the related protocols. This restrictive approach has resulted in the implementation of Protocol 2 in only three cases, which caused it to have little practical significance. In the process of the reform of the Court, the old idea of expanding the advisory jurisdiction revived. It was implemented in 2013, with the adoption of Protocol 16, which aims at achieving a double objective: 1) intensifying and strengthening the dialogue between higher national courts and the European Court, as well as 2) reducing the large backlog of applications. During the drafting process, the debate was concentrated on four key issues: a) the nature of the authorized national courts; b) the legal effect of advisory opinions; c) the category and type of questions which may be referred; d) the process of adoption of advisory opinions. However, despite some good solutions there is doubt whether Protocol 16 will be able to achieve the set goals.