| This Ph.D. dissertation has six chapters besides the preface and conclusion.Chapter I is the general introduction of fair trial rights, which are rights assemblies related to fair trial. Fair trial rights include articles 14 and 15 of International Covenant on Civil and Political Rights (simply called as the Covenant in the following). Sixteen types of rights ruled in articles 14 and 15 of the Covenant are the right to be equal before the courts; the right to a competent, independent and impartial tribunal established by law; the right to a public hearing; the right to be presumed innocent; the right to be informed of the charge; the right to prepare his defence and to communicate with his counsel; the right to be tried without undue delay; the right to be tried in his presence, to defend and to legal assistance; the right to call and examine witnesses; the right to the free assistance of an interpreter; the privilege against self-incrimination; the special guarantees for juvenile persons; the right to appeal; the right to compensation for wrongful conviction; the right against second trial for the same offence; the right not to be held guilty for an act or omission not constituting a criminal offence. However, the content of fair trial rights is not limited to the 16 types of rights mentioned above, for section 1 of article 14 in the Covenant also rule out the general rights to a fair trial or the principle of fair trial. For the distinctiveness of the general right to a fair trial, in the process of interpreting the Covenant, the Human Rights Committee has added more concrete rights to fair trial rights via the general right to a fair trial. The concrete rights contained in fair trial rights can be divided into three parts: basic rules, minimum guarantees and other rules. Fair trial rights in the Covenant are derived from due process of law. The right to a fair trial, having the features of extensiveness in subjects, diversity in content, vagueness and development in implication, is one of the basic rights approved and guaranteed by the international human rights law. Meanwhile, fair trial rights are not only suitable for domestic criminal trial, but international criminal trial; not only applicable to the trial, but to the pre-trial proceedings. Criminal and charge in section 1 of article 14 of the Covenant have autonomous definition. The following three criteria are used by the Human Rights Committee to define whether an act has criminal feature: the classification of the offence under national law, the nature of the offence, the nature and degree of severity of the sanction incurred. Charge is defined as: "The official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence, a definition that also corresponds to the test whether the situation of the suspect has been substantially affected."Chapter II is the basic rules of fair trial rights which are the rules of sections 1 and 2 of article 14, including the right to be equal before the courts; the right to a competent, independent and impartial tribunal established by law; the right to a public hearing and the right to be presumed innocent. The right to be equal before the courts includes all people having equal rights to access to the court and equal equipment between defendants and prosecutors. The right to a competent, independent and impartial tribunal established by law requires firstly the jurisdiction should be independent of any concrete trials; next the independence of courts and judges; thirdly the judges should be impartial objectively and subjectively. The right to a public hearing includes the publicity of trial and judgment. The publicity of trial requires courts to offer the information about time and place of the trial, and in the reasonable scope, offer the adequate facilities for the public to participate in the trial. The publicity of trial is not unconditionally suitable to all the processes, and in some appeal proceedings, the trial can been taken out on the basis of documents. There are three exceptional instances of the publicity of trial. The publicity of judgment has two means: oral publicity and documentary publicity. The publicity of judgment has two exceptions. The presumption of innocence, which is fundamental to the protection of human rights, imposes on the prosecution the burden of proving the charge, guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt, ensures that the accused has the benefit of doubt, and requires that persons accused of a criminal act must be treated in accordance with this principle.Chapter III is the minimum procedural guarantees. Article 14 paragraph 3 provides the minimum procedural guarantees, including the following seven specific rights: the right to be informed of the charge; the right to prepare his defence and to communicate with his counsel; the right to be tried without undue delay; the right to be tried in his presence, to defend and to legal assistance; the right to call and examine witnesses; the right to the free assistance of an interpreter; the privilege against self-incrimination. The right to be informed of the charge is only applicable to formal prosecution. The right to be informed of the charge requires that the accused be informed of the law and general facts which the allegations are based on immediately in written form with the language which the accused can understand after the formal prosecution is made. The right to prepare his defence and to communicate with his counsel refers to the right to have adequate time and facilities to prepare his defence and the right to have adequate time and facilities to communicate with counsel. In the right to have sufficient time and facilities to prepare his defence, "adequate time" may be in accordance with the specific circumstances of each case, the meaning of "adequate facilities" is very broad, including access to files and trial notice etc.. In order to protect the right to have adequate time and facilities to communicate with his counsel, the Human Rights Committee made four demands: the accused to be allowed rapidly to have access to the assistance of a counsel; to communicate secretly with his counsel; the counsel should be able to provide the accused with legal services without any undue intervention in accordance with accepted professional ethics; to provide free translators when the accused is very poor .The right not to be tried without undue delay involves two issue. One is the beginning and end of the period, and the second is the assessment of the period. The period begins when an allegation is made, and ends when a final judgment is made. What is a reasonable period of time must be judged according to the circumstances of the case. In accordance with the Human Rights Committee's view, the main consideration should be the conduct of the accused, the complexity of the cases and the conduct of authorities. The right to be tried in his presence, to defend and to legal assistance contains three rights: the right to be tried in his presence, the right to defend and the right to legal assistance. The right to be tried in his presence is closely related to legitimacy of trials in absentia. The right to be tried in court does not prohibit all trial in absentia. If the defendant has already been informed well in advance of the allegations associated with him, he refuses to appear in court, trial in absentia is legitimate. The right to defend refers to the right for the accused to defend for himself, choose counsels and be informed of the right to employ counsels. The condition to have access to legal assistance is the "interests of justice so require". The interests of justice are related to the seriousness of the crime, the complexity of the cases and other factors. Legal assistance is not always free. Only when the defendant does not have sufficient means to pay the costs of the case, the legal assistance is free. In order to protect the right for the accused to defence, the Human Rights Committee specially laid emphasis on the effective assistance of counsel. In the Human Rights Committee's view, only when special state organs are responsible for effectiveness of the legal assistance, States Parties would violate article 14; If the effectiveness of the legal assistance can not be attributed to special state organs, the State party would not be in contravention of the provisions. The right to summon and examine witnesses contains the right to examine witnesses against him and the right to summon witnesses on his behalf. There are two ways to examine witness against him: personally and through his counsel. During the trial, or the other stages of the procedure to give the defendant the opportunity to examine witnesses against him can make the right to be guaranteed. The right to summon witnesses on his behalf is not unrestricted, the defendant only has the right to require the court to summon witnesses recognized by the court and related to the defence. The right to the free assistance of an interpreter applies to not only the trial, but also the pre-trial stages; not only the interpretation of verbal language, but also the translation of written materials; not only foreigners, but also natives. The privilege against self-incrimination requires not to exert any direct or indirect physical or mental pressure to obtain confessions. Confessions obtained through coercion must not be used as evidence against the accused. States parties have the obligation to prove that the confession is made by the accused voluntarily. The privilege against self-incrimination doesn't allow drawing adverse inferences from the defendant's silence.Chapter IV is the other provisions of fair trial rights which refer to article 14, paragraph 4 to 7 and article 15. These provisions include: the special guarantees for juvenile persons, the right to appeal, the right to compensation for wrongful conviction, the right against second trial for the same offence and the right not to be held guilty for an act or omission not constituting a criminal offence. From the existing point of view of the Human Rights Committee, the special guarantees for juvenile persons is mainly reflected in two aspects: one is the special procedures of juvenile cases; second is the decriminalization of juvenile cases. The right to appeal is also known as the right to be reviewed. The Human Rights Committee considers that the right to appeal is absolute. The absolute nature of the right to appeal is reflected in the following three aspects: the right of appeal applies to all types of crimes, that is, not only applies to serious crimes; the right to appeal applies not only to the case of conviction in the first instance, but also equally applies to the case whose acquittal judgment in the first instance is overturned in second instance; the Supreme Court can not enjoy the jurisdiction of first instance. In order to effectively protect the right to appeal, the appeal court cannot limit the scope of trial to the legal issues. However, the right to appeal does not call for a comprehensive review, as long as the appeal court reviewing the facts of the case would be sufficient. In addition, the leave to appeal does not necessarily violate the right to appeal. The right to compensation for wrongful conviction is based on the following four conditions: Firstly, a person has by a final decision been convicted of a criminal offence. Secondly, subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice. Thirdly, the person who was convicted is not responsible for the non-disclosure of the unknown fact in time. Fourthly, penalties have been actually implemented. The right against second trial for the same offence is related to the final conviction or acquittal in accordance with the law and penal procedure of each country. If the final conviction or acquittal is made in another country, the person is not subject to the protection of the right. The right against second trial for the same offence has two exceptions: the first exception is a new or newly discovered fact which may affect the outcome of the case; The second exception is that the previous procedures have fundamental defects which may affect the outcome of the case. The "law" in the right not to be held guilty for an act or omission not constituting a criminal offence includes both "domestic law" and "international law". "Domestic law" is the law enacted by the highest legislature or the correspondent common law. In the criminal field, the source of "international law" only includes international treaties and international customs. The right not to be held guilty for an act or omission not constituting a criminal offence includes the right to benefit from lighter penalty. According to the Covenant, the right not to be held guilty for an act or omission not constituting a criminal offence is not absolute, the general principles of law recognized by the community of nations can be the grounds on which the offender is criminally liable.Chapter V is about the derogation, reservation and interpretation of fair trial rights. The derogation, reservation and interpretation of fair trial rights have drawn special concern in the theory of international law. Article 4 in Covenant provides for the derogations. Although the article does not incorporate article 14 into the non-derogable scope of the right, this does not mean that in the public emergency of a threat to national survival times, article 14 may permit arbitrary derogation. This is because, in addition to article 4, derogations have also been restricted by the following conditions. Firstly, the derogation is not allowed to go against the rules of international humanitarian law. Secondly, the basic requirement of a fair trial cannot be derogated. Thirdly, we cannot evade the protecting the non-derogable rights through derogating procedural safeguards. The Human Rights Committee considers that, although the Covenant does not provide for reservations, this does not mean that any reservations are allowed, because the reservations in Covenant should be governed by international law. The signatory states to Covenant should not be contrary to the object and purpose of the Covenant when asking for a reservation. First, the reservations violating peremptory norms are inconsistent with the object and purpose of the Covenant. Second, due to the importance of the non-derogable right, if the State party asks for a reservation of those rights, it has the responsibility to prove that reservations are legitimate. 30 countries, in the ratification, accession or succession to Covenant, asked for the varying degrees of reservations to articles 14 and 15. The right to a fair trial is put forward in a broad and principled manner, therefore, it must be explained to ensure that it can be applicable to the specific cases. In Vienna Convention on the Law of Treaties, article 31 provides for a "general rule of interpretation"; article 32 provides for a "supplementary means of interpretation". Article 31 and 32 is the customary law of treaty interpretation accepted for a long term by the relevant provisions of the international community, and in the interpretation of the Covenant the Human Rights Committee also adopted these provisions. According to article 31, the right to a fair trial should be explained based on the context of the Covenant and on the object and purpose of the Covenant. According to the provisions of article 32, article 32 can only be used in the following circumstances: to confirm the conclusions made in accordance with the above method, or if the conclusions made in accordance with the above method are still ambiguous, difficult to understand or manifestly absurd or unreasonable.Chapter VI is about the right to a fair trial and the criminal proceedings in our country. The Code of Criminal Procedure, the Code of Criminal Law and the judicial interpretations etc. have made certain achievements in guaranteeing fair trial rights. On the basic rules of fair trial rights, our law has made the following major achievements: there are clear and specific provisions for the competence and neutrality of the court and the right to a public hearing; there are also certain provisions on the independence of the court and the right to be presumed innocent. On the minimum procedural guarantees, China's law has made the following major achievements: there are clear provisions on the right to prepare a defence and the right to communicate with counsels, the right to be tried in his presence and the right to defend, and the right to call and examine witnesses; there is also a certain expression of the right to get legal aid and the right to have the free assistance of an interpreter in our law. On the other provisions of a fair trial, the major achievements that our laws have made include: the special guarantees for juvenile persons and the right to get compensation for wrongly conviction are entirely consistent with the Covenant; the right of appeal, the right against second trial for the same offence, and the right not to be held guilty for an act or omission not constituting a criminal offence, the provisions to a certain extent reflect the Covenant requirements.Although we have made certain achievements in the protection of our right to a fair trial, there are still a gap between our provisions of the law and international standards of fair trial. Firstly, the scope in applying fair trial rights is narrower in China. Secondly, the basic rules of fair trial rights. There are certain shortcomings in the right to equality before the courts, the court's neutrality and independence, the right to a public hearing, the right to be presumed innocent and the requirements of Covenant. Third, the minimum procedural guarantees. There is also a certain gap between the right to be informed of the charge, the right not be tried without undue delay time, the right to be tried and defend, the right to get the free assistance of an interpreter, the privilege against self-incrimination and the requirements of the Covenant. Finally, the other rules of fair trial rights. As to the right of appeal, the right against second trial for the same offence, as well as the right not to be held guilty for an act or omission not constituting a criminal offence, there is also a certain gap between our law and the requirements of Covenant. The reasons for the gap between the law of our country and the fair trial rights can be summarized as: the difference of the definition of the crime, the idealism of criminal policy, the lack of due process and the integration of the judicial system.Taking the reality of our country into account, two reservations concerning the right to a fair trial should be made when China ratifies the Covenant. The first is the scope of application of a fair trial. According to the standards established by the Human Rights Committee, at least the following seven categories of punitive measures in our country may have constituted a penalties: re-education through labor, forced treatment, custody, mandatory drug treatment, forbidden practice and the denial of eligibility. Apart from re-education through labor, China should reserve fair trial rights applicable to other punitive measures. The second is the "right to benefit from a lighter penalty" in article 14, paragraph 7.In order to ensure fair trial rights be effectively protected, China should make amend the laws which are inconsistent with the right to a fair trial(except the reservations).In the first place, the scope of applying fair trial rights. In order to fully protect the right to a fair trial in the reeducation through labor, a possible solution would be to abolish the existing system of reeducation through labor. In the second place, the basic rules of fair trial rights. First, we should establish the general right to a fair trial. Second, we should add the provision that "all persons are equal before the courts" and transform the prosecutorial power to improve the right to equality before the courts. Third, we can improve the court system's neutrality and independence by reforming the courts' financial system, repealing a higher court's instructions, reforming the judicial committee system, abolishing the case examination and approval system. Fourth, increasing the exceptions to public hearings and establishing an instruments inspection system can perfect the right to a public hearing. Fifth, the Code of Criminal Procedure should clearly stipulate the right to be presumed innocent and ensure that the accused enjoy the treatments consistent with the principle of presumption of innocence. In the third place, the minimum procedural guarantees. Firstly, we can improve the right to be informed of the charge by putting forward public prosecution as a benchmark time to inform the accused of the charge and improving the procedures of changing prosecutions. Secondly, we should establish the right to be tried without undue delay time. Third, we can improve the right to defend through appropriate expansion of the scope and time of the application of legal aid. Fourthly, we should ensure the witnesses testify in court through improving the corresponding legal systems and changing the corresponding conceptions relating to witness testimony. Fifth, we can improve the right to the free assistance of an interpreter through applying the right to foreigners. Sixth, we should improve the privilege against self-incrimination through codifying the right in the Code of Criminal Procedure explicitly, abolishing the provisions of "should answer truthfully" and perfecting the exclusionary rules of illegally obtained evidence. In the fourth place, the other provisions of fair trial rights. Firstly, we should perfect the right to appeal through the abolition of first instance jurisdiction of the Supreme Court over criminal cases. Secondly, we should establish the right against second trial for the same offence through the right against second trial for the same offence by stipulating the right the Criminal Procedure Law clearly and reforming the retrial system. Thirdly, we should improve the right not to be held guilty for an act or omission not constituting a criminal offence through the further legalization of the crime and the penalty and perfect the procedures and methods of the statutory interpretation. In order to achieve the comprehensive provisions and ensure the effective implementation of fair trial rights in our country, we should also take the following three measures: changing the guiding ideology and establishing the concept of due process, innovating the judicial systems and codifying fair trial rights in the Constitution.
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