11 - Protocol 16 to the ECHR: A Convenient Tool for Judicial Dialogue and Better Domestic Implementation of the Convention?

Summary

INTRODUCTION

“The only thing to do with good advice is pass it on. It is never any use to oneself”, Oscar Wilde once noticed. Good advice might be worth passing on rather than practicable for oneself out of demand of an effort, self-restraint and commitment on the part of an agent or maybe even more because of its usual lack of any utility whatsoever. Nevertheless, sharing an advice not just passing it on, especially by a well respected person or entity, with authority in certain fi eld, and when it comes together with explanation and reasoning behind it, might amount to an element of important thought exchange, which enhances agreement and cooperation rather than resistance and concurrence.

This text shall be an attempt at analysing and assessing the newly adopted Protocol No. 162 (further: Protocol 16 or Protocol) to the Convention for the Protection of Human Rights and Fundamental Freedoms3 (further: European Convention of Human Rights; European Convention; Convention or ECHR) and the advisory opinion (further: AO) mechanism, which it introduces in the light of the recent discussion over the reform of the Strasbourg human rights protection system as well as in the light of some fundamental principles underlying this system. Of course the Protocol is not yet in force and, if at all, most likely it will not be in any near future. Therefore the argument below shall not be detailed when it comes to procedures or possible practices that could develop only with actual application of the Protocol. The text will focus on an attempt at identifying some week and strong sides of this document in the light of its main goals, which place it among endeavours aimed at enhancing the long term effectiveness and efficiency of the Strasburg human rights protection system. To do so, it will be necessary to present some background knowledge on the development of the Protocol as well as some essential information on what kind of regulations it introduces together with, if necessary for the argument developed in this text, some brief comments on their rationale and consequences. This will lead to conclusions on the possible chances, which the Protocol opens for the amendment of the system of the Convention as well as on some of its weak sides, which may lead it to have limited, if any, significance.