Study On The Implementation Mechanism Of European Convention On Human Rights And Its Inspirations To Asia And China

Having suffered the disaster caused by the Second World War, the whole international community realized that the human rights protection cannot be only dependent on domestic mechanisms, the international protection for human rights is also very important. In fact, regional protection for human rights has made great achievement, especially in Europe. On November 4,1950, European Convention on Human Rights has been adopted, on the basis of which, European human rights protection mechanism has been set up. European Court of Human Rights has experienced many reforms to deal with some problems, aiming at perfecting the implementation mechanism of European Convention on Human Rights and improve its effect. The dissertation tried to study on the implementation mechanism of European Convention on Human Rights, and to explore the possibility of establishing Asian human rights protection mechanism, and the inspirations which the implementation mechanism of European Convention on Human Rights brought to Asia and China.The dissertation consists of the preface, the body and the conclusion. The preface mainly introduces the reasons of choosing this topic, the studying situation inside and outside China on the implementation mechanism of European Convention on Human Rights, and the research methods used in this dissertation. The dissertation is composed of six chapters. Chapter I recalled the evolvement of the implementation mechanism of European Convention on Human Rights, and analyzed the reasons of its reforms. Protocol 11 to European Convention on Human Rights divided the development of the implementation mechanism of European Convention on Human Rights into two stages. Before Protocol 11 to European Convention on Human Rights entering into force, the implementing institutions of the Convention are the European Commission of Human Rights, the European Court of Human Rights and the Committee of Ministers of the Council of European, which separately exercised quasi-judicial, judicial and supervising powers. In the operation of the implementation mechanism of the Convention, many problems appeared:the procedure of the implementation mechanism seemed to be too complex, the European Court of Human Rights is not full-time, and the Committee of Ministers, with political character, exercised judicial power. On November 1,1998, Protocol 11 to the European Convention on Human Rights entered in to force, which established a permanent European Court of Human Rights, in place of the former European Commission of Human Rights and the European Court of Human Rights. However, as the increasing of the Contracting States, the new European Court of Human Rights faced new problems, such as low efficiency, thousands of backlogs of cases and so on. The last part of this chapter analyzed the tortuous process of Protocol 14 entering into force, and comment on the content of Protocol 14.ChapterⅡdiscussed the implementing procedures of the Convention, which consists of inter-State complaints procedure and individual complaints procedure. After Protocol 11, inter-State complaints procedure has become more compulsory, the new permanent European Court of Human Rights got compulsory jurisdiction over inter-State complaints. As to individual complaints mechanism, before Protocol 11, it is non-compulsory, but after Protocol 11 entering into force, it has become compulsory. In light of thousands of individual applications brought to European Court of Human Rights, the Court created pilot judgment procedure, which was first applied in 2004. The last part of this chapter commented on the pilot judgment procedure, and discussed the relationship between the procedure and the right of individual application, and compared the pilot judgment procedure and the expanded competence of the Committee of three judges.ChapterⅢanalyzed the implementing effect of the implementation mechanism of European Convention on Human Rights. The first part concluded that inter-State complaints procedure existed in name only, mainly because of international human rights treaties being non-corresponding and some political considerations. The second part concluded that individual complaints procedure was successful, and analyzed the national execution of judgments made by European Court of Human Rights. The application of pilot judgment procedure could prompt the respondent State adopted general measures to resolve some systemic issues, which could deal with lots of cases with one judgment, and greatly reduce the burden of the Court. On the basis of the above analysis, Chapter IV summarized the problems of the implementation mechanism of European Convention on Human Rights. It was concluded that the implementation mechanism of European Convention on Human Rights was instable, and the constitutionalizing development of the Court made it in dilemma, and there was lack of a mandatory mechanism to supervise the implementation of the judgments made by European Court of Human Rights.The last two chapters came to the reality of Asia and China. Chapter V elaborated the current situation of Asian human rights protection, analyzed the reasons why Asia lack a regional human rights protection mechanism, and discussed whether the establishment of Asian human rights protection mechanism was feasible. The last part of this chapter analyzed American and African human rights protection mechanisms, and concluded that European human rights protection mechanism were not suitable for America and Africa, and also it was not feasible in Asia. In light of Asian human rights current situation, special and sub-regional human rights protection should be promoted in Asia. Chapter VI discussed the inspirations of the implementation mechanism of European Convention on Human Rights to Chineas human rights protection. The experience of individual complaints procedure could be learned by China to reform the complaints letters and visits system, and establish specialized human rights institutions. And the single-judge procedure and pilot judgment procedure could be reference for the reformation of civil retrial system.The conclusion part of this paper discussed the outlook of the European Court of Human Rights, and affirmed it was not feasible to establish Asian human rights protection mechanism, and emphasized that China should take measures to perfect the domestic human rights legislation.