Chapter 4. Fair Trial Rights This chapter considers Safeguard Five which states that capital punishment may only be carried out by a “competent court” after a legal process which gives all possible safeguards to ensure a fair trial at least equal to article 14 of the ICCPR. We examine the understanding of fair trial rights in China and the right to be tried by an independent and impartial tribunal. Sentencing is considered in Chapter 1 on the most serious crime. The right to defence and effective legal assistance are considered in the following chapter. International Law One of the fundamental safeguards for those facing the death penalty is the right to a fair trial. As set out in Safeguard Five, the minimum standards of a fair trial are those of article 14 of the ICCPR. These include the consideration of criminal charges by a public hearing at an independent tribunal, the right to be presumed innocent and access to adequate legal and other services at all stages of the proceedings. A review of international and regional materials with respect to Safeguard Five suggests five key rights: i) the right to a defence, including effective assistance of counsel; ii) the right to be tried by an independent and impartial tribunal; iii) the right to prompt judicial proceedings; iv) the right to consular notification; and v) the right to individualised sentencing. The right to a fair trial is a human right recognised in the Universal Declaration of Human Rights (UDHR) and has become legally binding on all states as part of customary international law. The independence and impartiality of the court or other tribunal is essential to the conduct of a fair trial. Courts should be “autonomous from other branches of government, be free of influences, threats, or interference of any origin or for any reason” (Inter-American Court of Human Rights). The impartiality requirement applies both to judges and juries. Failure to ensure a fair trial, in cases involving the death penalty, that is consistent with the guarantees provided for in ICCPR article 14 would result in a sentence that would be considered arbitrary in nature. Under article 6 of the Covenant no one shall be arbitrarily deprived of his life and no state may derogate from article 6 during any time of public emergency (article 4(2)). Chinese Law Right to a Fair Trial Although China has not ratified the ICCPR, the country is a signatory to the convention and legal scholars are familiar with the provisions of article 14. Chinese understanding of law, however, generally favours substantive rather than procedural justice. For the authorities, the priority is to ensure that the outcome of a case satisfies demands for the ‘right result’. Where a case attracts strong public opinion, judicial agencies are expected to balance public concerns with the interests of the Party-state. 33