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FOCUS June 2012 Volume Vol. 68

Death Penalty in Japan

International Federation for Human Rights and the Center for Prisoners' Rights Japan

Since 2008, when Japan's human rights record was brought under the Universal Periodic Review of the United Nations Human Rights Council, twenty people had been executed. Among these executions, fifteen were approved by the previous government of the Liberal Democratic Party (LDP), and five by the current government of the Democratic Party of Japan (DPJ) that won the general elections in 2009.
While there was no execution in 2011, the current Justice Minister Toshio Ogawa ordered the execution of three death row inmates on 29 March 2012. The conservative LDP and some sections of the media have been calling for executions in response to the growing death row population.

INDEX 2009 and Death Penalty

Prior to taking power, DPJ adopted a set of policies called 'INDEX 2009' that included a review of the death penalty system and a consideration of moratorium on executions.
The new DPJ government appointed Keiko Chiba as Justice Minister, a lawyer turned politician who belonged to the Diet (Parliament) Members for the Abolition of the Death Penalty, and was the Secretary- General of the Amnesty Diet Members' League of Japan.
However, Chiba, as Justice Minister, did not take any action to realize INDEX 2009 during the first ten months of the new government.
On 28 July 2010, the first executions under the DPJ government took place. At a press conference, Minister Chiba announced that she had ordered the execution of two prisoners, both detained at Tokyo Detention Center. She was also the first Justice Minister to attend executions. On this occasion she announced her plan to create a Study Panel at the Justice Ministry to study the following items: a. approach on addressing the issue of either abolition or retention of the death penalty; b. execution system including notices on executions; c. provision of information on executions to the public; and d. visit of members of the media to the execution chamber.
The Study Panel was established on 6 August 2010 with all members belonging to the Ministry of Justice (i.e., Minister, Vice Minister, Parliamentary- Secretary for Justice and high-ranking officials of the Ministry).1
Coincidentally, the DPJ announced the establishment within the party of a working group on death penalty.
Since its establishment, the Panel held several meetings. Minister Chiba held two meetings, her immediate successor Minister Yoshito Sengoku held one meeting, and Minister Satsuki Eda held three meetings. Each Minister expressed the expectation that the Panel discussions would trigger national debate on death penalty, but no such debate occurred.

Challenges to the New Minister of Justice

By September 2011, a new Minister of Justice was appointed (Hideo Hiraoka) who said that "some people say [that] not signing off executions is sabotaging the duty of the Justice Minister, but the minister also has the duty to consider how to handle the death sentence amid various international opinions on the subject."2
During the first Panel meeting on 17 October 2011 that he attended, Minister Hiraoka expressed his determination to initiate a real "national debate" on death penalty. He then referred the matter to the Legislative Panel of the Ministry, which dealt with issues that required legal amendment. But the Ministry officials refused his proposal.
Minister Hiraoka then planned to establish another panel that would not be an internal body of the Ministry and would have various experts or stakeholders from outside the Ministry as members. But just before its formal establishment, Toshio Ogawa replaced Hiraoka in early January 2012.
Toward the end of 2011, Minister Hiraoka had been facing strong pressure not only from bureaucrats at the Ministry who wanted to retain the death penalty, but also from the DPJ- led Cabinet.
On 26 October 2011, at the Diet session, Chief Cabinet Secretary Osamu Fujimura said "the Cabinet has no plan to abolish the death penalty and it is the role of Justice Minister to sign off eventually after reflection. I'd like to say to Hiraoka that he should clearly express his own opinion [on the role of the Minister on this matter]".
It was obvious that Fujimura, and Prime Minister Yoshihiko Noda as well, wanted to avoid issues during the Diet sessions that would be targeted by the opposition party LDP. A de facto stay of executions was one such issue.
Furthermore, on 21 November 2011, the Supreme Court affirmed with finality the death sentence of Seiichi Endo, a former leading member of Aum Shinrikyo Cult, as penalty for committing a series of serious crimes including the Tokyo Subway Gas Attack in 1995. A total of thirteen death sentences handed down to Aum Shinrikyo cultists including its guru, Shoko Asahara, have been affirmed with finality. Voices from the media demanded the execution of Asahara, bringing another pressure on Minister Hiraoka on approving executions. 

Resumption of Executions

The new Justice Minister, Toshio Ogawa, clearly and repeatedly foreclosed the possibility of continuing the stay of executions. He claimed that authorizing executions was the Justice Minister's responsibility, and expressed his intention to order executions. At the same time, Minister Ogawa scrapped former Minister Hiraoka's plan for a special panel on capital punishment. He also abolished the Study Panel two months after assuming office. The Panel, as its last activity, issued a report that simply summarized the discussions during its meetings without providing any recommendation or conclusion.
On 29 March 2012, Minister Ogawa ordered the execution of three inmates detained at Tokyo, Hiroshima and Fukuoka Detention Centers. At the press conference, he said:

I just performed my duty as a justice minister. The right to punish criminals rests on Japanese nationals, and a government poll shows the majority of Japanese support the death sentence.... Also, lay judge trials maintain the death sentence as a punishment, and lay judges are from the general public.3

It is notable that Prime Minister Noda also told a press conference on 30 March 2012 that he had no plan to abolish the death penalty. He explained:

in view also of the fact that there is still no decline in or end to atrocious crimes, I recognize that it will be difficult to abolish the death penalty immediately. There is no change to the fact that Japan does not have a policy to abolish the death penalty.4

After the executions, Minister Ogawa announced that the three top officials at the Ministry (i.e., himself, the Vice Minister and the Parliamentary Secretary) would have private deliberations on the execution method. The four key points to be discussed were reportedly the following: whether or not the current execution method of death by hanging should be reviewed; whether or not inmates should be informed of their executions the day before the scheduled time rather than in the morning of the day of execution as currently practiced; how to inform inmates' relatives of the execution; and finally, how to handle prisoners sentenced to death in case of abolition of the death penalty.5
The lack of transparency in the process makes deliberation on these issues doubtful. In case such deliberation would take place, there is a likelihood that it would not involve in-depth research or discussion since Minister Ogawa deemed a year- long period for deliberation as too long. Neither would the deliberation stop executions in view of the repeated statement by Minister Ogawa that he would perform his 'duty as Justice Minister'.

Public Opinion

Government officials frequently cite public opinion to justify the death penalty, and yet the fact remains that the government has never properly measured the public opinion.
In February 2010, the Cabinet Office released the results of an opinion poll on the justice system. On the issue of death penalty, respondents were asked to choose one of the three answers: 1. Death penalty should be abolished unconditionally; 2. In some cases, the death penalty cannot be avoided; 3. I don't know/It depends. 85.6 percent of the respondents chose the second option that saw death penalty as unavoidable in “some cases.” Thus, there is no basis for claiming that more than 85% of the people actively supported the death penalty.
More importantly, Japanese citizens have never been provided with essential information on the death penalty system in Japan. Even after then Minister Chiba allowed the media to visit an execution chamber at the Tokyo Detention Center, almost all information other than the names and the detention places of the executed people have remained hidden to the public.6 Despite the recommendation made by the United Nations Human Rights Committee, the government has failed to disclose necessary information and has done nothing to "inform the public about the desirability of abolition [of death penalty]."
Disclosure of information should be the precondition and the first step in initiating public discussion on the death penalty. People would gradually advance the level of discussion on this issue if the government did not have total control of relevant information.

Lay Judge Trial and the Death Penalty

Under the new Lay Judge system, introduced in May 2009, fourteen defendants have been sentenced to death.7 Among them, two death sentences have become final due to withdrawal of appeal by the defendants themselves, while three sentences have been upheld by the High Courts.
Despite the repeated recommendations made by the  United Nations Committee against Torture and the Human Rights Committee, the government of Japan still insists that mandatory appeal system is not needed because most defendants exercise their right of appeal. However, the fact that two out of the twelve people tried at the lay judge courts did not exercise their right of appeal provides a compelling reason for having the system of mandatory appeal.
A simple majority, with at least one vote each from among professional judges and lay people respectively, is enough to render a death sentence (and other punishments). Until the death penalty has been abolished, unanimous verdict should be absolutely necessary for death sentences.

Human Rights Violations on Death Row

Despite the repeated recommendations by United Nations human rights bodies to respect the rights of death row inmates, their rights are still strictly restricted.
The Prison Law,8 as amended in 2006, provides that a death row prisoner shall be detained in a single cell and separated from other prisoners day and night. But the law allows, as an exception, "mutual contacts with other death row prisoners" when they are deemed "advantageous [to the prisoners] in light of the principle of treatment prescribed in paragraph (1) of Article 32.9  However, the Ministry of Justice admits that such treatment has never been allowed.
Contacts with people outside prisons are also strictly limited. Only three to five people are allowed to visit death row inmates, while those who are allowed to exchange letters with the prisoners are not necessarily permitted to meet with the prisoners.
Meetings between prisoners and their legal representatives are usually done in the presence of prison guards. On 27 January 2012, the Hiroshima High Court ruled that a meeting between a prisoner and her/his lawyers for a retrial case without the presence of prison guards was for the 'legitimate interest of the inmate sentenced to death' and unless special circumstances exist, a guard's attendance at such a meeting should not be allowed. The government sought to overturn this ruling by appealing to the Supreme Court, where the case is currently pending. Attendance of prison guards at meetings between lawyers and prisoners is still a common practice.
The idea underlying the exception to inhumanely restrictive treatment is “to maintain the peace of mind” of the prisoners as stipulated in Article 32 of the new Prison Law. The Ministry of Justice says that “maintaining the peace of mind” should not be interpreted as a tool for restricting prisoners' rights, but should be used to assist the prisoners. In practice, however, “peace of mind” still works as a strong reason to restrict the prisoners' rights, especially the right to be in contact with people outside the prison.

Conclusion

Recently, Japan failed to step forward in the right direction, i.e., maintain a de-facto moratorium on executions that could bring the country to agree to their ultimate abolition, by hanging three inmates after twenty months without executions.
As far as the issue of the death penalty is concerned, the attitude of the government of Japan deserves the strongest denunciation. And UPR process is an absolutely precious opportunity to convey international voices to the Japanese society.
Now is the most crucial time for Japan to face the strong criticism from the international community. Voices from the world, which tend to be ignored by Japanese society, should be conveyed to the government so that they can change the government's attitude towards the death penalty.

This is an edited version of the section on death penalty of the Stakeholder's Information Report for the 14th session of the Working Group on the UPR (April 2012) entitled “Prison and the Death Penalty in Japan,” submitted jointly by International Federation for Human Rights (FIDH) and the Center for Prisoners' Rights Japan (CPR).

For further information, please contact: Center for Prisoners' Rights Japan (CPR), Raffine Shinjuku #902, 1-36-5 Shinjuku, Shinjuku-ku, Tokyo, Japan 160-0022; ph (813) 5379-5055; fax (813) 5379-5055; e-mail : cpr@cpr.j ca.apc.org; www.cpr.jca.apc.org/.

Endnotes

1. Other members are: Assistant Vice-Minister of Justice, Director-General of the Criminal Affairs Bureau, Director of the Legislative Division, Director of the General Affairs Division of the Bureau, Director-General of the Correction Bureau, Director of the General Affairs Division of the Bureau, Director of the Prison Service Division of the Bureau, Director-General of the Rehabilitation Bureau and Director of the General Affairs Division of the Bureau.
2. Minoru Matsutani, “Hiraoka urges “active” debate on executions,” The Japan Times, 20 September 2011. Text available at www.japantimes.co.jp/text/nn20110920f1.html.
3. Minoru Matsutani “Three hanged: executions are first since ‘10’,” The Japan Times, 30 March 2012. Text available at www.japantimes.co.jp/text/nn20120330a1.html.
4. Press conference statement of Prime Minister Yoshihiko Noda, 30 March 2012, Speeches and Statements by the Prime Minister, www.kantei.go.jp/foreign/noda/statement/201203/30kaiken_e.html.
5. “Ministry of Justice's top officials to hold non-disclosed death penalty deliberations,” Mainichi Shimbun, 10 April 2012.
6. Maiko Tagusari, ‘Death Penalty in Japan’ (2010), East Asian Law Journal, vol. 1, no. 2, pages 93- 106.
7. As of 19 April 2012.
8. Act on Penal Detention Facilities and Treatment of Inmates and Detainees. See full English version at www.japaneselawtranslation.go.jp/law/detail_main?vm=&id=142.
For further information see “Reform of Penal Institutions,” at www.moj.go.jp/ENGLISH/issues/issues06.html.
9. Article 32: Upon treatment of an inmate sentenced to death, attention shall be paid to help him/her maintain peace of mind.
Text available at www.japaneselawtranslation.go.jp/law/detail_main?vm=&id=142.


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