Advisory opinions under the protocol 16 to the European convention on human rights and fundamental freedoms and preliminary decisions of the court of justice European Union

• Main Author: Lepotić Biljana
• Format: Article
• Language: English
• Published: Institute of Comparative Law, Belgrade 2018-01-01
• Series: Strani pravni život
• Subjects: human rights; european convention on human rights; advisory opinions; protocol no. 16 to the ec; preliminary procedure; court of justice of the eu
• Online Access: https://scindeks-clanci.ceon.rs/data/pdf/0039-2138/2018/0039-21381802141L.pdf

Protocol No. 16 to the European Convention on Human Rights and Fundamental Freedom prescribes that the highest courts and tribunals of the High Contracting Parties, may ask from the European Court of Human Rights for advisory opinion within the interpretation or application of the rights and the freedoms that are defined by the Convention or its protocols. Potential problems, after Protocol 16 enters into force, could occur in a situation where the Supreme Court or a court with the right to seek an adverse interference, is obliged to apply for a preliminary ruling to the EU Court of Justice in the sense of Art. 267 of the Treaty on the Functioning of the EU. As Protocol 16 allows the highest courts of a Member State to apply to the Strasbourg Court for advisory deliberations on the basic consumers of the affair or the rights and freedoms guaranteed by the Convention and its protocols, and, as, on the other hand, EU law orders the courts, for that purpose, to apply to the EU Court of Justice previous decision based on the article. 267 UEFU, the issue of the efficiency of preliminary procedure and the autonomy of Union law, could be questioned.