Issue 1 (2015)

Human Rights European Court Advisory Opinion: Pros and Cons

Abstract: This study explores Legal Aspects of Advisory Opinion which is one of the functions of the European Court of Human Rights. The study describes positive as well as those problematic issues of Advisory Opinion which have been outlined in Protocol No.16 to the Convention on the Protection of Human Rights and Fundamental Freedoms. The aforementioned topic has not yet been explored from a legitimate perspective. The function of Advisory Opinion, as proposed by the European Court of Human Rights, is to provide a legal guideline since apolitical body may not properly decide a legal issue. Provision of an Advisory Opinion to the highest national jurisdictions relating to pending cases, as a novelty introduced by Protocol No.16, may itself limit the independence of and cause the impact on national courts. Apart from that, the European Court of Human Rights may itself be impacted by its Advisory Opinion as a decision of national courts could be appealed to the European Court of Human Rights. Ratification of Protocol No.16, therefore, reduces the level of independence of national jurisdictions. This study aims to analyze those risks within the scientific level in context of legal measurement.