Research On The Right To A Fair Trial

Fairness,justice is the goal of human eternal pursuit,justice is the last barrier for safeguard social fairness and justice.Right to a fair trial is the universally recognized basic human right by the international community,reflects the basic spirit of the rule of law and protection of human rights needs.The research purpose of this dissertation is in the context of the growing importance of human rights guarantees,discussion is well established in international conventions,but domestic research is relatively lacking in basic human rights,that is,the right to a fair trial.This dissertation consists of seven chapters in addition to the preamble and the conclusion.Chapter I:An overview of fair trial right.In this chapter,revealing the meaning of fair trial right on the basis of a comparative study,considered a fair trial right is a bundle of rights,both a "total" concept,is also a "structure" concept which are rights assemblies related to fair trial.In the composition of the right to a fair trial,rights body constituted by the principal and potential principal directly.Among them,directly subject to accused persons and litigants;Potential subjects for all citizens.In terms of the obligation,the formal obligations of fair trial right are court and country.Fair trial rights include articles 14 and 15 of International Covenant on Civil and Political Rights(simply called as the Covenant in the following).The concrete rights contained in fair trial rights can be divided into three parts:Principle provisions,basic provisions,special provisions.On the legal property,the right to a fair trial is attributed to fundamental human rights,its constitutional and procedural is particularly evident.On the connotation of value,justice is the basic value of the right to a fair trial;judicial efficiency is the value of tools;social harmony is the value of purpose;ultimate values are human rights protection.Through a variety of activities in trial practice,combined value of the right to a fair trial are met.Chapter II:Formation,evolution and theoretical basis of the right to a fair trial.The concept of fair trial right is derives from international human rights law,has experienced a process from the concept to the continuous development of the system and the rich.As a basic human right to a fair trial was first recognized in the United Nations,The 10th and 11th of the Universal Declaration of human rights,formed the embryonic form of the right to a fair trial.In 1950,the 6th article of the European Convention on human rights to extend the meaning.In 1966,the International Covenant on Civil and political rights further refined and expanded,the right to fair trial has been established.In addition to the worldwide international conventions,regional human rights conventions and domestic legislation also attached great importance to the right to a fair trial.In order to get a fair trial rights benefiting the world,ever since the promulgation of the International Covenant on Civil and political rights,international human rights agencies have been doing the interpretation,standardized and uniform standards.Especially through handling complaints,considering reports of States parties,dealing with a large number of cases,the Human Rights Committee elaborated the specific requirements the right to a fair trial,and put forward a series of constructive observations aimed at strengthening the right to a fair trial.After long efforts,the right to a fair trial been considerable development,and continuously enrich the connotation in the field of international human rights law.Theoretical basis of the right to a fair trial is profitable,the basis can be traced back to three aspects:natural justice,due process and the rule.Chapter III:Principle provisions of fair trial rights.Principle provisions of fair trial rights which are the provisions of sections 1,2,7 of article 14 and article 15,including the right to be equal before the courts;the right to a fair and public hearing;the right to be presumed innocent;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 right to be equal before the courts includes five aspects:all people having equal rights to access to the court;Everyone has right to actual use of the Tribunal or court;all people having equal equipment between defendants and prosecutors;Everyone in front of the Court or Tribunal should not enjoy privileges;Prohibition on establishing different courts in different people.The right to a fair and public hearing Located in the core part of "due process of law" includes the right to a competent,independent and impartial tribunal established by law and the right to a public hearing.Eligibility for court includes two aspects:judges and courts organization;independence of judges consisting of both personal independence and the institutional independence of the court.Neutrality of judges asked a judge to a neutral State of mind,however does not mean that a judge must be totally negative.The right to a public hearing includes the publicity of trial and judgment.The right to be presumed innocent,which is fundamental to the protection of human rights,including the following content:imposes on the prosecution the burden of proving the charge;ensures that the accused has the benefit of doubt;all public authorities have the obligation to refrain from any prejudging the outcome of the trial.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.Exceptions to the rights are major program defect,or the existence of new or newly discovered facts.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"(international treaties and international customs).It applies to all criminal offences,and distinguishes between reversible and irreversible penalty is crucial.The right 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 IV:Basic provisions of fair trial rights.Basic provisions of fair trial rights which are the provisions of sections 3 of article 14,including the right to be informed of the charge;the right to prepare his defense and to communicate with his counsel;the right to be tried without undue delay;the right to defend;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.,Among the right to prepare his defense and to communicate with his counsel,adequate time and facilities to be the basic element."Adequate time" may be in accordance with the specific circumstances of each case,lawyer's behavior is also a very important consideration.The meaning of "adequate facilities" is very broad,including access to files and trial notice etc.Check out files in the "full facilities" refers to the defendant or his defense counsel was granted access to the files necessary for the preparation of the defense,records,and so on.If the defendant has a lawyer,the defendant's lawyers were notified of the sitting is"facilitating" on.The right not to be tried without undue delay involves,the period begins when an allegation is made,and ends when a final judgment is made.A reasonable amount of time(or delays)depends on the circumstances and the complexity of the case,the main consideration should be the conduct of the accused,and the conduct of authorities.States are requested to form judicial institutions and systems.The right to defend includes:the right to be tried in his presence;chooseyour own lawyer;be informed of the right to employ counsels and rights of access to free legal aid and brought to trial.Among them,the right to be tried in his presence and the right to defend itself in a critical position,it means the possibility of giving defendants refused counsel?In order to fully guarantee the right for the accused to defense,,the Human Rights Committee specially laid emphasis on the effective assistance of counsel.In principle,States parties have not a responsibility for the conduct of privately retained counsel.In death penalty cases,Legal assistance applies-to all stages of criminal proceedings.The right to summon and examine witnesses guaranteed equality of prosecution and defense.The right to summon witnesses on his behalf is not absolute,it should have been "and under the same conditions as witnesses against them of restriction.The right to the free assistance of an interpreter is applicable to any stage of the procedure,requires the translation of the Tribunal to have a certain minimum quality is sufficient to guarantee a fair trial.The rights are absolute,that is,can not require defendants to pay after the conviction by the specified interpreter costs.Free translator's purpose is to safeguard the accused to understand the language used by the Court and get a fair trial.Therefore,when the accused is unable to read the indictment,documents or other written evidence,it should be given free translation.The privilege against self-incrimination is only related to the accused,the investigation organ shall not be imposed for the purpose of obtaining a confession of guilt against the accused of any direct or indirect physical or psychological pressure to get a confession of guilt,on the other hand,witness may not refuse to testify.Human Rights Committee calls on the State party to include in its set in the law on the prohibition of the use of such evidence?Chapter V:Special provisions of fair trial rights.Special provisions of fair trial rights are the provisions of sections 4-6 article 14.These provisions include:the special guarantees for juvenile persons;the right to appeal;the right to compensation for wrongful conviction.In the right to special protection in juvenile justice,juvenile crime should not be to punish but to educational measures to respond.In the fullness of time,the decriminalization of juvenile cases is necessary.The absolute nature of the right to appeal is reflected in the following three aspects:Firstly,the right of appeal applies to all types of crimes,that is,not only applies to serious crimes;Secondly,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;Thirdly,the Supreme Court can not enjoy the jurisdiction of first instance.Appeal the jurisdiction requirements States parties to review the sufficiency of the evidence,convictions and sentences.The right to compensation for wrongful conviction has two basic conditions:on one hand,a person has by a final decision been convicted of a criminal offence;on the other hand,subsequently his conviction has been reversed or he has been pardoned,due to three reasons:a new or newly discovered fact shows conclusively that there has been a miscarriage of justice;the person who was convicted is not responsible for the non-disclosure of the unknown fact in time;penalties have been actually implemented.Chapter VI:The reservation and interpretation of fair trial rights.Reservation is a result of compromise about the universality and integrity of the Convention.Reservation must satisfy two conditions:First,the reservation should be examined by the Human Rights Committee.Second,reservations must be specific and transparent.Another special reserved is derogation.Derogations must comply with the following six basic conditions:first,public emergency is objectivity and formally and announced by the State;second,the derogation must be proportionality;third,the derogation is not allowed to go against the rules of international humanitarian law;forth,the derogation may not contain discriminatory;fifth,the derogation shall not exceed the necessary scope of the derogation;Sixth,the derogation shall perform the necessary procedures.As to the derogation of fair trial rights,requires not only the six basic requirements,should be fully taken into account other relevant factors.On the interpretation of fair trial rights,In Vienna Convention on the Law of Treaties,article 31,32,33 established reasonable rules of treaty interpretation.Among them,article 31 provides for a "general rule of interpretation";that is,should refer to the context and purpose of the Convention and the Convention to interpret right to fair trial;article 32 provides for a "supplementary means of interpretation",it 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;article 33 is the provisions about "To two or more type certification of the interpretation of the Treaty".Chapter VII:Development opportunity and protection of fair trial rights.Right to a fair trial is dynamic,open concept,development,along with the progress of the times and always moving forward.Along with the deepening of the study of human rights theory and the strengthening of domestic human rights protection,human rights concepts and development of globalization,the protection of the human rights movement,a fair trial is now facing a good opportunity of development China has signed the International Covenant on Civil and political rights,in order to enable convergence of domestic and international law,We should seriously study the series of provisions of the Convention concerning the right to a fair trial and the case,make active exploration from concepts and principles and methods of handling cases for the effective exercise of the right to a fair trial.In particular pay attention to rules of thumb and interests balance on the smooth implementation of fair trial rights.