ECHR’ role in domestic disputes heightened | Introducing the advisory opinion mechanism

√     The Romanian High Court of Cassation and Justice (HCCJ) or the Romanian Constitutional Court (the RCC) may now request advisory opinions from the European Court of Human Rights (ECHR) in pending domestic proceedings
√     This guidance will ease the interpretation/ application of the rights and freedoms set forth by the European Convention of Human Rights (the Convention) and protocols thereto
√     The mechanism closely resembles the preliminary referral before the European Court of Justice (ECJ) and may heighten ECHR’s role in the resolution of domestic disputes
√     Procedurally, an advisory opinion served after final resolution of the domestic dispute and materially impacting its outcome may provide grounds for an extraordinary appeal (in Romanian, revizuire)

In light of the long-awaited domestic ratification of Protocol No. 16 to the Convention, Law No. 173/2022[1] finally introduces the advisory opinion mechanism. The higher domestic Courts may now benefit from ECHR’s guidance in tackling the contents and implications of the fundamental rights and freedoms in the spirit of the Convention.

Speed-read of the mechanics:

  • When? Only in pending domestic proceedings.
  • How? Further to a documented referral by either (i) HCCJ, in (i.a) pending civil or criminal litigation, or (i.b) issuance of preliminary decisions on matters of law or (ii) the RCC, in pending examination of non-constitutionality pleas.
  • Outcome? ECHR’s advisory (non-mandatory) opinion on questions of principle regarding the interpretation or application of the rights and freedoms defined in the Convention/ ancillary protocols. Pending issuance of the advisory opinion, the national civil or criminal litigation before HCCJ may be stayed, if deemed necessary. If domestic proceedings are not stayed and an advisory opinion materially impacting the outcome is issued only after its final resolution, the interested party may file an extraordinary appeal (in Romanian, revizuire) to reverse the decision. Pending proceedings before either (i) RCC, in examination of non-constitutionality pleas, or (ii) HCCJ, in issuance of preliminary decisions on matters of law, will be stayed.

Why is it important?

Closely resembling the preliminary referral before the ECJ, this new mechanism may result instrumental in tackling domestic litigation with a prominent EU law / fundamental rights and guarantees component.

Topics such as (i) the hierarchy between the domestic law and international instruments granting superior protection to their subjects or (ii) substantive assimilation of law areas entailing drastic sanctions (e.g., competition, fiscal law) with the criminal matter in the sense of the Convention with the effect of benefitting from the ensuing procedural guarantees, were the object of convoluted past domestic decisional practice and may warmly benefit from ECHR’s closer guidance.

[1]              Official Gazette No. 560 of 8 June 2022.


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