THE ROLE OF DOMESTIC AUTHORITIES IN EFFECTIVE APPLICATION OF ADVISORY OPINION PROCEDURE UNDER THE PROTOCOL № 16 TO THE CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS
The purpose of the article is to underline that the comprehensive implementation of the Protocol № 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms depends on the appropriate efforts of the member States. Both the parliaments and the highest courts of the member States should take certain measures to achieve the goals persuaded by the Protocol. Thus, it is important to examine the risks of the Protocol’s implementation to find out what specific activity should be performed by the member States to minimize problems and provide for maximum benefits.
In particular, advisory opinions are not biding, so the opinion of the European Court’s of Human Rights may be ignored; it can lead to delays in the proceedings before the domestic courts themselves; there is a risk that it might generate additional workload for the Court.
However, the risks can be managed and in the end the advantages of advisory opinion procedure’s application outweigh its disadvantages.
The article involves some important recommandations for domestic parliaments to establish sufficient procedural rules and judicial bodies to make requests in proper manner. It is also argued that domestic parliaments should inter alia establish effective mechanisms of applying for advisory opinion by domestic courts and requests by domestic courts and tribunals should be based on appropriate guidelines and explanations. Sited recommandations are of great importance for Post-Soviet countries to apply the Protocol more correctly and widely.
As the international experience of requesting for advisory opinion is quite poor, it makes examples of it even more significant. So, the article also introduces two sample cases of requesting for advisory opinion made by the French Court of Cassation and the Constitutional Court of Armenia accordingly. Getting acquainted with the content and the purposes of this experience will maintain the level of application of advisory opinion procedure.