Judicial dialogue and the procedure for advisory opinions of the European Court of Human Rights: theoretical and practical aspects

The article reveals the legal nature of judicial dialogue and the procedure for advisory opinions of the ECHR. Protocol No. 16 to the ECHR emphasizes the central place of national courts in the European system of protection of human rights and freedoms, and also stimulates a rethinking of the role of the ECHR in the domestic legal order. In particular, Protocol No. 16 strengthens the implementation of the principle of subsidiarity. The value and significance of the advisory opinion procedure established in Protocol No. 16 is due to the fact that, given the rapid development of social relations, some aspects of the issue of human rights protection are not clearly outlined in the practice of the ECHR. Referral to the ECtHR not only facilitates the delivery of appropriate decisions by national courts, but also prevents the need to submit individual applications for clarification of the interpretation of the ECHR. Protocol No. 16 does not require its ratification by all States Parties to the Convention, so the main effect of the ECtHR advisory opinion procedure lies in its non-binding nature. Since the ratification of Protocol No. 16 to the ECHR by Ukraine, the Supreme Court has never referred to the ECtHR for advisory opinions. For Ukraine, Protocol No. 16 has created a relatively new legal instrument that is still being implemented in national judicial practice. It is noted that Ukraine is one of the countries that has the right to refer to the ECtHR for advisory opinions, but in practice this mechanism is not used enough. Protocol No. 16 institutionalizes and legalizes judicial dialogue. Supreme (cassation) courts, when resolving particularly sensitive cases concerning violations of conventional human rights, may initiate the procedure for an advisory opinion of the ECHR. The procedure for judicial dialogue is optional, and advisory opinions are characterized by their own specifics. It is concluded that judicial dialogue between the ECHR and national courts has the potential to become a key element of the modern system of protection of human rights and freedoms in Europe. The advisory powers of the ECHR, established by Protocol No. 16, have the potential to contribute to the harmonization of law enforcement at the national level and strengthen the principle of subsidiarity.