Brief considerations on the impact of Additional Protocol No 16 to the Convention on civil trial

Some procedural and substantive law aspects of invoking the invalidity of addenda to the employment contract

Abstract

Additional Protocol No 16 to the European Convention on Human Rights is a relatively recent addition to the Convention's normative system, not so much in terms of the date of its adoption (2013), which is not too distant in time, but in terms of the time of its entry into force (2018). As has already been pointed out in the literature, including in our doctrine even before Romania became a party to the Protocol, the need for judicial dialogue between the courts of the Council of Europe member states and the Strasbourg Court underlies the adoption of the Protocol, with the mechanism of the advisory opinion of the Grand Chamber having the role of preventing convictions arising from a misunderstanding of the treaty provisions by national courts.

Law No 173/2022, adopted subsequent to the law ratifying Protocol No 16, implemented the mechanism of referral to the Grand Chamber, preferring solutions as close as possible to those enshrined in the Protocol's provisions, but without hesitating to draw inspiration from some of the theses of the explanatory report on the Protocol.

The implementation of the Protocol in domestic law has entailed changes to certain institutions of civil procedural law, such as the stay of proceedings and extraordinary remedies, and in this respect it is worth noting, despite the optional nature of the opinion provided for in the Protocol, the introduction of a ground for review which is no less forceful than the ground, which already exists in the Code of Civil Procedure, for a domestic judgment whose withdrawal is required by a judgment of the European Court of Human Rights finding a violation of a fundamental right with ongoing consequences.

Last but not least, the transposition into national law of the mechanism of the advisory opinion based on Protocol No 16 must be carried out responsibly, without in any way diminishing the ability of the national court to continue to apply the Convention directly, as it has done since 1995 and to date.

Keywords: Additional Protocol No 16 to the Convention, Law No 173/2022, stay of proceedings, referral to Grand Chamber, advisory opinion, fundamental rights and freedoms, review based on advisory opinion.