Request of the European Court of Human Rights for the issuing of an advisory opinion

Abstract

Romania ratified Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms by Law no. 172/2022. Protocol no. 16 extends the jurisdiction of the European Court of Human Rights by allowing it the possibility of issuing advisory opinions on questions of principle concerning the interpretation or application of the rights and freedoms defined in the Convention or the Protocols thereto. The procedure regarding the request to the European Court of Human Rights for the issuing of an advisory opinion was regulated in domestic law by Law no. 173/2022.

This article addresses the procedural aspects specific to the referral to the European Court for the issuing of an advisory opinion in jurisdictional issues related to criminal procedures. Under the current regulation the national jurisdictions designated to submit a request for an advisory opinion are the High Court of Cassation and Justice and the Constitutional Court. I have pointed out that the legislator's option regarding the institutions designated for the request practically annihilates the access to this mechanism for the participants in the criminal trials carried out in the first instance by the district courts and tribunals. A separate section is dedicated to the substantive and formal conditions for referral to the European Court. In this context, I indicated a series of relevant specialized legal literature and case-law. Subsequently, I presented the particular procedural aspects that occur before the national jurisdictions whenever this procedural mechanism is triggered.

Afterwards, I analyzed the procedure carried out before the European Court of Human Rights, which involves two steps: the verification regarding the admissibility of the request and the delivery of the Court’s advisory opinion. Even though the advisory opinion is not binding on the national jurisdiction that requested it, I have allocated a separate section to the effects it produces in relation to the interpretative authority of the judgments and decisions handed down by the European Court of Human Rights (res interpretata).