Приєднання ЄС до ЄКПЛ та механізм здійснення консультативних функцій

The article considers the issue of the EU’s accession to the ECHR and the mechanism for implementing advisory functions. Though ratification of the Convention is a prerequisite for the countries to join the EU, and its fundamental rights are integrated into the general principles of Union law, the European Union itself is still not a party to the Convention. At the same time, according to Protocol No. 16 to the European Convention on Human Rights, although the decisions of the ECHR are not legally binding on the requesting court or tribunal, they have legal effects on states, including those that have not ratified the Protocol. Nevertheless, the key feature is a completely non-binding nature of this mechanism. It is voluntary on three levels: national courts are not obliged to request an advisory opinion, the ECHR is not obliged to respond if an advisory opinion is requested, and, if the ECHR delivers an opinion, national courts are not bound by its content. According to Article 46 (1) of the ECHR, the ECHR’s decisions in the disputed cases are binding only between the parties, that is, as regards the respondent State and within the specific subject matter of the case. However, the introduction of advisory opinions, as well as, for example, the use of «principle judgments», are intended to broaden this scope. Even if the interpretation given in an advisory opinion is not binding on other States Parties to the Convention, it gives the ECHR the opportunity to express itself on the issues of special importance in the most authoritative judicial forum. The ECHR’s interpretation provides important guidance for national courts, which are in fact called upon to interpret and apply the Convention on a daily basis. It is worth noting that the advisory opinion mechanism is designed to assist the requesting court in this interpretative task. It also aims more generally to facilitate the application of the Convention at national level, in particular, by clarifying the case-law of the ECHR and thus preventing inconsistencies.