Advisory Opinions,Preliminary Rulings and the New Protocol No. 16 to the European Convention of Human Rights

Abstract

Through the introduction of an advisory opinions procedure, Protocol No. 16 to the European Convention of Human Rights (the Convention) aims to strengthen the interaction between national courts and the European Court of Human Rights (hereafter the Court), as well as to alleviate the Court's caseload. National courts can present questions to the Court on important aspects of the interpretation of the Convention, on which the Court will give a non-binding opinion. This article critically examines the potential of the procedure established by Protocol No. 16 in the light of its objectives. To this end, a comparison with the preliminary reference procedure in EU law is made to assess the procedure's prospective effects and its impact. It is concluded that it is not to be expected that the advisory opinions procedure will bring much added value, partly as a result of the different legal structure of the procedure of Protocol No. 16 when compared to the preliminary reference procedure in EU law, and partly because of the particular context in which the procedure is introduced.