HRF/75/03
23 April 2003
Japan Hanging on to Death Penalty
JAPAN
is one of only two industrialized democracies that use the death penalty
Currently, there are 57 people on death row waiting to be executed, and
approximately an additional 50 inmates whose death sentences are still
under appeal. Japan's death
penalty practice has been called "inconsistent with the [ICCPR]"
by the UN Human Right Committee, "a violation of the most fundamental
human rights" by the Council of Europe, and tantamount to torture and
cruel punishment by numerous independent observers.
Japan's death penalty practice is
cloaked in secrecy, and administered under antiquated, unreformed laws
leaving near-absolute discretion in the hands of judges and the Justice
Minister to decide who is sentenced to death and who among the sentenced
are executed. This practice leaves little doubt about the practice's
arbitrariness, and little confidence in it as a measure of justice.
Although
the Japanese Penal Code provides capital punishment for 17 offences, it
does not offer any criteria to guide the judge in deciding what punishment
to impose. For instance, the penalty for homicide could be execution, life
imprisonment, or a prison term of not less than three years, which may
even be suspended. Thus, luck
or potentially discriminatory factors can determine what kind of
punishment the defendant will receive.
At
trial, statements taken at the investigation stage are given considerable
weight compared with in-court testimony.
Reliance on pre-trial confessions has led to many claims of
coercion and false conviction. Shizuka
Kamei, head of the Diet (Parliament) Member's League for the Abolition of
the Death Penalty, has said, "I used to be part of the police and I
know that, although it's deplorable, there is such a thing as a false
charge." The Washington Post reported
in 2001 that a former Supreme Court Justice, Shigemitsu Dando, concluded
that "[t]here is a high possibility that some [death row prisoners]
were executed in spite of being innocent. I am afraid that the total
number of such cases in the past has not been small."
In fact, between 1983 and 1990, five
inmates were declared falsely convicted and released. The acquittals were
an extraordinary admission of prosecutorial fault - not seen since -
considering 99.8 percent of those charged by police are convicted, and
appeals courts rarely overturn lower courts. "There are probably more
cases like that" currently on death row, former Minister of Justice
Hideo Usui acknowledged according to The
Washington Post.
Four
of the death row inmates that were found innocent on retrial had been
tortured during interrogations in order to produce confessions. It took 28 to 34 years before they were found innocent. In
1998, the Human Rights Committee expressed its deep concern that a
"large number of the convictions in criminal trials are based on
confessions" that may be "extracted under duress." The
Committee strongly recommended that the interrogation of the suspect be
"strictly monitored and recorded by electronic means."
The Japanese government has yet
to fulfil these recommendations.
Once a death sentence is meted out, the
Minister of Justice has broad and uncontrolled discretion to issue a death
warrant. Article 475 of the
Japanese Code of Criminal Procedure indicates that the death penalty is to
be executed upon an order from the Minister of Justice that shall be
issued within 6 months of the prisoner's final appeal.
But, in practice, the Justice Minister's discretion when and
whether to issue an order appears absolute, and is exercised without
public justification.
The Justice Ministry gives no
explanation for the choice of inmates selected for execution.
Thus, this process appears to be entirely arbitrary - and sometimes
appears politically motivated. In
1997, during the sentencing phase of a high profile juvenile murder trial,
a death row inmate who had committed his first of several murders as a
juvenile was executed in what some commentators have said was an attempt
to demonstrate the possibility for harsh punishment for juveniles. Under
the current system, a convict can obtain a pardon or leniency if the
Cabinet approves the application following a screening process at the
National Offenders Rehabilitation Commission, a Justice Ministry panel.
But in practice, reduced sentences or pardons have rarely been
granted since WWII, in part because convicts must confess and express
remorse to a crime they may deny having committed.
No pardon has been granted since 1976.
While
awaiting execution the death row prisoner is subjected to treatment that
constitutes torture and cruel punishment.
The Government indicates that these
restrictions are necessary to ensure the inmates mental stability;
however, it tests the bounds of credulity to suggest that these depths of
deprivation could enhance mental stability.
Are we to believe that in Japan contact with friends and family
diminishes one's mental health? Rather
than enhance the prisoner's mental state, this cruel treatment leads to a
well-documented, severe depression known as 'death row phenomenon.' As Sayoko Kikuchi, head of the Japanese abolitionist group
Rescue! has said: "It's inhumane.
They go through torture every day."
The life of the death row inmate is
totally dominated by the uncertainty of whether and when his or her
execution will be carried out. Typically
it takes 5-7 years between the death sentence and execution, but nearly 20
inmates have been on death row for more than a decade, and in some cases
much longer. Article 32 of
the Japanese Penal Code provides for a 30 year period of limitation for
the execution of the death penalty, but Japanese courts have interpreted
the "execution" of a death penalty to begin at the time of
execution of the judgment, therefore prisoners have languished on death
row for more than 30 years. Tsuneki
Tomiyama, the oldest man on death row at age 85, has been on death row for
26 years, his sentence was finalised in 1976.
Sadamichi Hirasawa died in 1987 at age 95 while awaiting execution
after 32 years on death row. Yukio Saito, put on death row death row at
age 24, was acquitted on re-appeal in 1984 when he was 53.
The death penalty is carried out against the elderly (15 people
executed since 1993 have been over age 60; currently there are at least 16
death row inmates over age 60), against those with mental illness, and
those still appealing their cases.
Executions are carried out in the
morning at one of seven detention centres (distinct from prisons) in
Japan. Generally, the inmate is not notified until a few hours before the
execution. No notice is given
to the inmate's lawyer or family until after the fact.
The inmate is blindfolded and taken from his cell.
In the execution room, the noose is secured and the inmate's knees
are tied. A veteran prison officer has said, "The idea is to have a
clean death. They aren't supposed to struggle and flop around." At
most prisons, a separate room contains three to five buttons. On command,
prison officers each push one button, one of which releases a trapdoor
that drops the condemned convict about 10 feet to his death. There are no
public witnesses.
Executions are shrouded in secrecy that
seems aimed at minimising public scrutiny.
Families and lawyers are never told of the decision beforehand, but
are later told that the prison "departed with the prisoner."
Japan carries out executions during periods when the Diet is not in
session so that public debates are minimised. Executions are only
announced after the fact, and even then the prisoner's name is not
publicly released out of consideration for "the feelings of the
criminal who gets the death penalty."
The Human Rights Committee stated in 1998 that the failure to give
notice of the decision to execute is incompatible with ICCPR articles 2,
7, 10. Yet, Japan continues to flaunt its treaty obligations.
In its communications with the
Committee, the government justifies the practice of capital punishment on
the seemingly strong public support it has in Japanese society; however,
as the Japan Federation of Bar Associations has argued, the public is
largely uninformed of the practice because of the secrecy that shrouds it,
and as the Human Rights Committee has stressed in its communication with
Japan, "human rights standards are not determined by popularity
polls." Indeed, as the
Japanese representative to the Human Rights Committee said in 1988,
"the implementation of protection of human rights [is] hampered in
Japan by a number of deeply-rooted prejudices...." (emphasis added)
Government policies that provide a cloak of secrecy to death
penalty practices seem aimed at ensuring that the public will continue to
rely on these prejudices. Advocates for abolition of the death penalty
were bolstered by the Council of Europe's First World Congress against the
Death Penalty in Strasbourg (June 2001).
Following the meeting, the Council passed Resolution 1253 calling
upon Japan to declare an immediate moratorium on executions and to take
necessary steps to abolish the death penalty by 1 January 2003 or risk
losing its Observer Status at the Council of Europe. The Council of Europe
views "the death penalty as a violation of the most fundamental human
rights, such as the right to life and the right to be protected against
torture and inhuman or degrading treatment."
This
pressure may be having some effect. In November 2002, the Abolition of
Death Penalty Diet Members League issued a report which outlined two draft
bills due to be submitted to the current Diet session. One is an amendment
to criminal code provisions to change the period to apply for parole; the
other is a draft bill to establish a cabinet committee to deal with death
penalty issues. Also in
November 2002, the Japanese Bar Association submitted recommendations to
the Diet because of their concern that innocent people were being put to
death and the realisation that the death penalty has little or no
deterrent value. The Bar Association has called for a moratorium on
executions, a public debate on the issue of the death penalty, and public
disclosure on all information related to the death penalty.
In
the past, the Human Rights Committee's dialogue with Japan has been
"a somewhat formal exercise," in which "none of the
Committee's recommendations" concerning, inter alia, "the death
penalty have been implemented."
In the coming year, Japan will submit its 5th periodic report under
ICCPR Article 40. It is hoped
that Japan will evidence a greater capacity to adapt the
"deeply-rooted prejudices and practices" of its antiquated,
feudalistic penal system to bring it into compliance with Japan's
obligations under the ICCPR and other international human rights law.
- Human Rights Features
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