PROTOCOL No.16 TO THE CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS: DIRECTIONS OF IMPROVEMENT OF THE PROCEDURAL LEGISLATION OF UKRAINE

Formation of the uniform case law is the main task of strengthening the judiciary, increasing its efficiency in the countries all over the world. Conflicting application of legal norms contributes to the deformation of the structural unity of case law in the application of national law, its compliance with supranational. To overcome such deformation the Protocol No.16 to the Convention for the Protection of Human Rights and Fundamental Freedoms was adopted in 2013, which expanded competence of the European Court of Human Rights to provide advisory opinions, which will further strengthen cooperation between the Court and national authorities and thus support execution of the Convention in accordance with the principle of subsidiarity. According to the Protocol No.16, the Highest Courts of a High Contracting Party shall have the right to request the European Court to give advisory opinions on the questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto, and procedure for consideration of such requests by the European Court is determined. Ratification of the Protocol No.16 to the Convention for the Protection of Human Rights and Fundamental Freedoms by the Law of Ukraine "On Ratification of the Protocols No.15 and No.16 to the Convention for the Protection of Rights and Fundamental Freedoms" of October 5, 2017 No.2156-VIII promotes further improvement of procedural legislation of Ukraine. In this context, we call your attention to that Article 36 of the Law of Ukraine "On the Judiciary and the Status of Judges" provides that the Supreme Court is the highest court in the judicial system of Ukraine, which ensures the stability and unity of judicial practice in the manner prescribed by procedural law. At the same time, the second part of Article 36 of the above Law contains a non-exhaustive list of powers of the Supreme Court, however provided that its other powers should be determined by law. In view of this, we believe that the relevant powers of the Supreme Court should be captured in the procedural legislation of Ukraine, which are currently missing therein. In other words, ratification of the Protocol No.16 requires amendments to the current legislation of Ukraine. Taking into account the requirements of part seven of Article 9 of the Law of Ukraine "On International Treaties of Ukraine", the draft law on ratification must be submitted to the Verkhovna Rada of Ukraine together with the relevant draft amendments to current laws of Ukraine and must be approved simultaneously. Unfortunately, the relevant procedure was not followed, which creates systemic obstacles to the application of this procedural institution.