On August 1, 2018, Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms entered into force

On August 1, 2018, following the expiration of a three-month period from the date of ratification by the tenth state—France—Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms (English text—http://hudoc.echr.coe.int/eng-press?i=003-6159401-7972623, Ukrainian translation: http://zakon0.rada.gov.ua/laws/show/994_002-13). The Protocol has been ratified by Albania, Armenia, Georgia, Estonia, Lithuania, San Marino, Slovenia, Finland, France, and Ukraine.

A key provision of this Protocol is the expansion of the advisory jurisdiction of the European Court of Human Rights.

Whereas previously the ECHR could only, at the request of the Committee of Ministers, issue advisory opinions on legal questions concerning the interpretation of the Convention and its protocols (Article 47(1) of the ECHR), as of August 1, 2018, “the highest judicial authorities of a High Contracting Party, as defined in accordance with Article 10, may refer to the Court for advisory opinions on questions of principle concerning the interpretation or application of the rights and freedoms set forth in the Convention or its Protocols” (Article 1(1) of Protocol No. 16). Advisory opinions are issued by the Grand Chamber of the ECHR. On the other hand, “Advisory opinions shall not be binding” (Article 5 of Protocol No. 16).

The Law of Ukraine “On the Ratification of Protocols No. 15 and No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms” dated October 5, 2017, No. 2156-VIII (http://zakon5.rada.gov.ua/laws/show/2156-19), the highest court designated for the purposes of Article 1(1) of this Protocol is the Supreme Court.

Conditions for higher judicial authorities of states that have ratified Protocol No. 16 to request an advisory opinion from the ECHR: 1) the request for an advisory opinion must concern questions of principle relating to the interpretation or application of the rights and freedoms set forth in the Convention or its protocols; 2) the court making the request to the ECHR must have a case pending in which such questions of principle have arisen; 3) the request must be well-founded (the reasons for the request must be stated, and information must be provided regarding the relevant legal and factual circumstances of the case pending before the higher court).

The Protocol provides for a procedural filter for such requests—a panel of five judges of the Grand Chamber decides whether to accept a request for an advisory opinion, taking into account the aforementioned conditions. Thus, the ECHR has the right to refuse to issue an opinion.

If the panel of judges accepts the request, the Grand Chamber of the Court issues a reasoned advisory opinion. The Council of Europe Commissioner for Human Rights and the state that initiated the request have the right to submit written observations and participate in any hearing. The President of the Court, in the interests of the proper administration of justice, may invite anyother High Contracting Party or person (obviously, this may also include a party to the domestic proceedings before a higher court) to also submit written observations or participate in any hearing.

A judge elected from the State of the requesting Court shall participate ex officio in the consideration of the request at both stages; and in the absence of such a judge or if he or she is unable to participate in the proceedings, the President of the Court shall select from a list submitted in advance by that Party a person to sit as a judge. We will await such a list of national members (in the early years, it is quite possible that these will be ad hoc judges).

Procedural issues that will arise in connection with the entry into force of Protocol No. 16:

- the procedure for the Supreme Court to consider a request to the ECHR for an advisory opinion;

- the rights of parties to proceedings before the Supreme Court to initiate such a request;

- the significance of an advisory opinion from the ECHR provided at the request of the Supreme Court, since, despite the provision stating that “Advisory opinions shall not be binding” (Article 5 of Protocol No. 16), pursuant to Article 17 of the Law of Ukraine “On the Enforcement of Judgments and the Application of the Case Law of the European Court of Human Rights” dated February 23, 2006, No. 3477-IV (http://zakon5.rada.gov.ua/laws/show/3477-15), must be applied as a source of law (corresponding amendments to Articles 1 and 18 of this Law are required).

Two draft laws of Ukraine with the same title, “On Amending Certain Legislative Acts of Ukraine in Connection with the Ratification of Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms,” have been registered with the Verkhovna Rada of Ukraine

- registered on June 27, 2018, No. 8535; sponsor: People’s Deputy of Ukraine I. Lutsenko (http://bit.ly/protocol16law8535), which was referred to the Committee for consideration on July 2, 2018;

- Registered on July 6, 2018, No. 8535-1; sponsor: People’s Deputy of Ukraine R. Sydorovych (http://bit.ly/protocol16law85351). Responsible committee: Committee on Legal Policy and Justice.