Bulletin n. 1/2015
June 2015
CONTENTS
  • Section A) The theory and practise of the federal states and multi-level systems of government
  • Section B) Global governance and international organizations
  • Section C) Regional integration processes
  • Section D) Federalism as a political idea
  • Christos Giannopoulos
    Considerations on Protocol N°16: Can the New Advisory Competence of the European Court of Human Rights Breathe New Life into the European Convention on Human Rights?
    in German Law Journal , vol. 16, issue 2 ,  2015 ,  337-350
    A. Introduction Protocol n°16 expands the advisory jurisdiction of the European Court of Human Rights (hereinafter ECtHR) by introducing a mechanism of litigation-related opinions (“avis contentieux”). It affords the highest national courts and tribunals the ability to ask the ECtHR for an advisory opinion on questions of principle related to the interpretation and application of the rights and freedoms defined in the European Convention on Human Rights (hereinafter Convention) and the Protocols thereto. In theory, the mechanism is simple. If a national court or tribunal sends a request to the Court, a panel of five judges of the Grand Chamber will decide on the admissibility of the question before the Grand Chamber rules on the merits. Protocol No. 16 (hereinafter “the Protocol”) reserves this right only for the highest courts and tribunals, as the Parties have designated them at the time of signature or when depositing their instruments of ratification, acceptance, or approval. This new Protocol aims to strengthen communication between the ECtHR and the national judges by introducing a dialogue between the various institutions that interpret the Convention. In this way, the protection of the Convention’s Rights will be reinforced at the national level according to the principle of subsidiarity. Moreover, this Protocol aspires to enhance the effectiveness of the conventional mechanism so as to ensure the maximal coherence of the case law of the ECtHR. The new mechanism, therefore, will gradually relieve the ECtHR of the deluge of petitions. This article presents an overview of this Protocol, which poses questions regarding the nature and role of the new advisory jurisdiction within the existing system. Part A sets forth the drafters’ deliberate choice in the Protocol of a flexible relationship between the ECtHR and national courts. Part B focuses on the evaluation of this optional Protocol with a...
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