Journal of Constitutional Law (Nov 2022)
Advisory Jurisdiction of the Strasbourg Court – Effectiveness and Challenges
Abstract
The article concerns the practice of the Strasbourg Court in exercising advisory opinion jurisdiction, which has developed since the entry into force of Protocol No. 16 to the European Convention on Human Rights. The purpose of the article is to draw initial conclusions about the effectiveness and the strengths and weaknesses of this new jurisdiction of the European Court. The article reviews not only the cases in which the Grand Chamber of the Court has already issued advisory opinions but also those in which only decisions on admissibility have been made. The author will look at problematic issues and challenges that have already been identified in practice or are logically expected. These include requests by national courts for advisory opinions on issues already answered in the Strasbourg Court’s case-law and which they could have dealt with themselves; difficulties in adequately formulating their questions in accordance with the requirements of Protocol No. 16; the risk of change of the substance of questions asked as a result of reformulating of the questions by the Grand Chamber; the conditionality of the non-binding nature of the opinions of the Grand Chamber and the challenges that may arise from different interpretations of those opinions by national courts and parties to a case. The article critically discusses whether the new jurisdiction directly or indirectly threatens the independence of national courts, particularly in terms of the appearance of independence, as it concerns a kind of interference in the review of cases pending before domestic courts by a Grand Chamber giving guidance. The author also considers the perceived attitude of parties to a case to be problematic, which may arise if the Grand Chamber’s opinion is taken or not taken into account by the national court. The question is also raised as to whether the existence of the Grand Chamber’s preliminary opinion will have a negative impact on the admissibility of an application filed under Article 34 of the Convention in the same cases, and whether the content of the opinions will predetermine the fate of the application. Attention is also paid to procedural issues. The article contains some scepticism about the necessity and effectiveness of Protocol No. 16.
