Purposeless or Promising? Advisory Opinions from the European Court of Human Rights

Since October 2018, 58 national courts of 22 States Parties have been able to request an advisory opinion from the European Court of Human Rights (ECtHR). These national courts can request such an opinion on the basis of Protocol 16 (P16). Over the past six years ten requests have been filed by courts in eight Member States. This chapter examines the practice since ratification in light of the seemingly conflicting objectives of P16-namely the desire for both enhanced dialogue and a reduction in the workload of the ECtHR. If these two objectives are considered as essential parameters, the six years' practice leads to a rather bleak conclusion. Considering the dialogical function it is worthwhile to reflect on the extent to which the current functioning of P16 reflects a cooperative, heterarchical or horizontal logic that requires both national courts and the ECtHR to act in good faith in the spirit of dialogue and cooperation. From this perspective, one could criticise some of the requests by national courts. National courts have primarily used P16 to raise easy clair questions with a view of obtaining external and authoritative support in politically sensitive matters with conflicting findings or positions at the national level. Various requests also related to earlier ECtHR judgments determining violations of the ECHR. One could, at the same time, be slightly more positive about the ECtHR. The ECtHR has by and large kept a close eye on its subsidiary role and the national courts' primary responsibility, as also reflected in the division of tasks in the context of P16. The ECtHR has so far resisted the temptation to provide national courts with case-specific and highly factual answers and opted for rather abstract answers instead. The ECtHR also used the requests to date to accentuate the boundaries of P16 by providing more clarity as to the admissibility criteria, most notably the condition of 'question of principle' concerning the interpretation and application of ECHR rights.